Message from Canadian attorney, Janice Switlo
- I thought everyone might like to read-up on the important press that was served out to the public by this AMAZING woman, attorney, Janice Switlo. She has been an amazing help to Jacqueline through out all the affairs in Canada. She asked that we circulate this widely. This article from her also contains a great deal of info, helpful to all of us in understanding how the true "workings" in Canada proceed and NEED to be based upon the issue of Tribal Sovereignty.blessings,Wahela BluejayThis is urgently brought to your attention and you are asked to distribute
"Here come de judge
Calamity's child at Caledonia: it's no Laugh-In' matter"
by Janice G.A.E. Switlo
This pertains to Mr. Justice Marshall's order to attend his court tomorrow,
June 1, 2006, regarding the Six Nations/Caledonia situation.May 31, 2006
Here come de judgeCalamity's child at Caledonia: it's no Laugh-In' matterJanice G.A.E. Switlo"Heyeah come duh judge" was the signature shtick of boisterous, raucous comedian Pigmeat Markham (Dewey Markham) April 16, 1904 - December 13, 1981 that mocks the court. Markham sat on an elevated judicial bench wearing a black graduation cap and gown for robes and would render his orders and reasons for judgment by leaning over the bench and hitting the accused with an inflated bladder-balloon:
"The judge is high as a Georgia pine! Everybody's goin' to jail today! And to show you I don't mean nobody no good this morning, I'm givin' myself six months! And if I'm gonna do six months, Mr. District Attorney, you can imagine what you're gonna do!"He made multiple appearances on the Ed Sullivan Show beginning in the 1950s, the television show that because it aired past a 4-year-old's bedtime I was forced to surreptitiously watch through the bars of the heating vent underneath my bed that opened onto the other side of the wall in perfect line of sight with our black and white TV in the living room.(Imagine my shock and hustle the evening of February 9, 1964 when I heard my late brother, Gary Switlo (Concert Box Offices/Ticketmaster), work incredibly hard to convince my mother to wake me up to watch the historical first American televised appearance of The Beatles, the beginning of Beatlemania. Why would I want to see some bugs, I thought. I was hoping Topo Gigo the mouse puppet would be on. Fortunately it was Gary who discovered my ploy when he came running down the hall to get me up. He kept my secret. He was forever after, my hero.)Markham's fame was enhanced when Sammy Davis Jr. popularized Markham's "Here come de judge" line on NBC's television comedy/variety show, Rowan and Martin's Laugh-In, broadcast for 140 episodes January 22, 1968 - May 14, 1973.In March 2006, I provided the following courtesy warning to Inspector Brain Haggith of the OPP, to Mr. Toby Barrett (Haldimand-Norfolk-Brant) MPP, to Mr. Bruder, solicitor of record for Douglas Creek Estates developer Henco Industries Limited, and to reporter Paul Legall:
"Dear Inspector Brian Haggith,You are referred to in the following article as speaking for Cayuga OPP and I do you the courtesy of providing to you that which I have provided in response thereto:Paul Legall, 'Native protesters brought in more firewood and erected two new shelters, including a tepee, as they continue their land protest. Criminal charges could follow injunction: lawyer,' The Hamilton Spectator, March 11, 2006.'The following is to better explain the situation. Background on the protectorate duties of the Crown is contained in my article, "To serve and protect: Her Majesty's obligations" http://www.switlo.com/opinion.php?selected=74I do you the courtesy of explaining application thereof to the current situation you are reporting on.Her Majesty's courts owe a higher duty to this Indigenous Nation, a protectorate duty that constitutes the highest law of the land. Once this duty is triggered, for example, by informing any of Her Majesty's servants, such as the RCMP (or other police force) and Her courts and judge(s) that it is their land and the subject developer is not entitled to be present on the land for any purpose, whereby public notice as the current land use displays is taken as constructive notice, subject developer must be kept from the land and not the reverse. This obligation is higher than the civil obligation that results from the civil injunction application of the subject developer.There is no ground for criminal sanction, Her Majesty's servants are to be respectfully reminded. This is not some simple matter between two of Her Majesty's people/entities. This is a matter of Her Majesty's relationship with an Indigenous Nation and Her duties to protect said Indigenous Nation and their land from the actions such as this developer. A higher law is thereby triggered Her Majesty's servants are reminded, and the court must respect it above that of the unilateral domestic action of one of Her Majesty's people/entities, i.e. the subject developer.It is not for the Indigenous Nation to deal with Her entities such as the subject developer as that is for Her Majesty to address - She is to remove the offender from their land and to protect them from further harm. The original injunction application is an abuse of process and ought to be set aside I would instruct the court. To build upon it by declaring failure to obey it a criminal matter is to tarnish Her Majesty's Honour and to cause Her Majesty to fail in Her duties to the Indigenous Nation, and ultimately, by failing to uphold treaty is to threaten the peace, which She must not do. Indeed She has committed to the international community through convention and to Her subjects through constitutional documents that she will not threaten the peace.It is therefore far more complicated than the image of some Indigenous nationals and a few structures on a road and than your readers may appreciate, or for that matter, this particular court may appreciate given the subject developer's lawyer would not likely have advised Her court of this, but, ought to. His oath is to protect Her Majesty's interests and Her Honour - that extends to preserving and not threatening Her relations with this Indigenous Nation. He is rather, with respect, in a conflict of interest, for to make application to Her court as suggested in your article, to receive criminal sanction for failure to comply with the civil injunction, is to request Her court to order Her servants to cause Her Majesty to fail to protect this Indigenous Nation.'I trust you appreciate the implications of this serving as a reminder of said duty to you on behalf of Cayuga OPP."So just who is the rebel in this troubling scenario pitting Her Majesty's servants and governments against Her Majesty's allies?Certainly not those working to strengthen and mend Her Majesty's relationships that are governed by treaty, including treaties with Indigenous nations such as the Six Nations and treaties with member states of the United Nations, and by other components of international law, which constrain Canada's constitution and governments and which are not justiciable in Mr. Justice Marshall's domestic courtroom, including those exasperated by years of neglect to the covenant chain who felt compelled, as Her Majesty's ally, to bring attention to the very serious threat to the peace being posed to Canadians and consequent threat to their economy by the actions of Her Majesty's servants and governments by becoming very visible at Caledonia instead of being tucked inside some forgotten rusting filing cabinets or being bantered about by equally ill-equipped domestic lawyers no matter their respective representation.How so terribly ironic and dangerous that Mr. Justice Marshall, a servant of Her Majesty who swore to protect, argues that he must take action to preserve the peace but that that very action may threaten the peace and risk conveying to the world that no rule of law operates in Canada.
"Ontario Superior Court Justice David Marshall has taken the highly unusual step of ordering the OPP, the attorney general of Ontario, natives, the developers and other parties to a special court session Thursday to explain why his orders are being flouted.It's not clear what effect it will have on the ongoing negotiations to end the dispute.Osgoode Hall law professor Alan Young said he can't remember another instance when a judge has taken the initiative of pressing for the enforcement of his own order. He added judges usually assume their orders will be obeyed and maintain an 'out-of-sight-out-of-mind' attitude toward enforcement.'The reason for this unusual step is because there are injunctive and other orders of this court that remain outstanding,' Marshall said. 'The Superior Court of Justice has the ultimate responsibility to ensure that peace in the community is maintained under the rule of law -- hence this court calls the parties in order to further resolution of these matters.'In his ruling, Marshall referred to an injunction that Henco Industries Limited obtained in March to evict native protesters from Douglas Creek Estates and a separate injunction that Railink Canada Ltd. obtained from Marshall on May 4.In addition to the OPP commissioner and the attorney general, Marshall has summoned lawyers for the developers, Railink Canada Ltd., the County of Haldimand and the Haldimand Law Society.He has also called on the Six Nations elected band council and the traditional confederacy chiefs to appear. The judge notes, however, that the confederacy has not responded to the jurisdiction of the court.Young said that the party who applied for the injunction -- the developers of Douglas Creek Estates -- would normally press for compliance. In this case, however, he believes Marshall may have seen himself as a party because the flouting of his orders would constitute contempt in 'the face of the court.''(Because the flouting) caused the disrespect to the court, you can get out of that passive shell and take the matter into your own hands,' he said.Young does not know if Marshall can require enforcement."Paul Legall, "Land foes ordered to court," The Hamilton Spectator, May 30, 2006.Who is the reckless one, Calamity's child?Certainly not those trying to resolve outstanding issues between allies so as to create certainty and financial stability.Rather, he is reckless, who bound by duty and limited by jurisdiction, would undermine the entire economy of Canada by holding that in order to calm the panic that he assumes will result but is not evident (perhaps rising personally as the result of being an allegedly property owner in the subject Caledonia area) as holders of property interests through Her Majesty appreciate the limits of their titles, that treaty commitments requiring diplomacy be immediately dispensed with and domestic law be made to supercede.This would be like saying that the rule of law must be broken in order to preserve the rule of law and that there is justification in threatening the peace in order to preserve the peace. It is circular reasoning, illogical and nonsensical.
"Got your mother in a whirl 'cause
She's not sure if you're a boy or a girl ...Rebel Rebel, how could they know? ...You've torn your dress, your face is a mess
You can't get enough, but enough ain't the test
You've got transmission and a live wire
Got your cue lines and a handful of ludes
You wanna be there when they count up the dues
And I love your dress
You're a juvenile success
Because your face is a mess
So how could they know?
I said, how could they know?
To what you wanna know
Calamitys child, chi-chile, chi-chile
Where'd you wanna go?
Can I do for you? Looks like you've been there too
'Cause you've torn your dress
And your face is a mess
Ooo, ooo, your face is a mess
Ooo, ooo, so how could they know?
How could they know? Hah
Hah-hah""Rebel Rebel," David Bowie
"Taken at face value, 'Rebel Rebel' is a song about the victory of youth, polymorphous sexuality and loud rock music over adulthood and societal conventions. More viscerally, the rebellion taking place is clearly personal, based on pure lust/love/attraction without deeper meaning or political subtext. All the main characters desire is to escape the mundane. ... the subject of the song becomes more one of freedom from constraint than some kind of prelude to sexual activity. Even better, he's left enough doubt about exactly who or even what the object of his affection is that it can be applied to almost any situation. Is he talking about a boy? Is he talking about a girl? Is he talking about a girl-boy or a boy-girl? Is he talking about a rock star? A kid? Kid A? Me? You? Himself?In the end it doesn't really matter."Mallory O'Donnell, Stylus Magazine, February 22, 2006Whatever Justice Marshall ends up talking about in his courtroom Thursday, June 1, 2006 doesn't really matter. What will crucially matter is who lives up to their duties, to the Crown, to protect. Mr. Justice Marshall is one of the very many who owe duties.
"I am writing to you in my capacity as president of the Haldimand Law Association, which represents lawyers practising law in Haldimand County.The refusal of the Ontario Provincial Police to comply with and enforce valid and outstanding court orders issued by the Ontario Superior Court of Justice in respect of the land occupation by natives of the Douglas Creek Estates development is of great concern to our membership.We believe the failure of the OPP to enforce direct court orders has serious implications in respect of the administration of justice, both real and perceived, and the rights of landowners not only in Caledonia and Haldimand County, but [also] throughout the province.We understand that the actions of the natives in this matter are motivated by frustration by the process and manner in which native land claims and other related issues have been dealt with by the federal and provincial governments.However, this does not permit these individuals to ignore court orders and to violate the law of this province and country.A fundamental characteristic of any democratic civilization is the governance of the rule of law.When the rule of law comes under attack, so do the rights and freedoms of every individual in that society. The rule of law is under attack in Haldimand County. The powers that be, having been entrusted to ensure the operation of the rule of law and to protect the rights and freedoms of the residents of Canada, are either refusing or neglecting to act."Michael McLachlin, President, Haldimand Law Association. "Preserving the rule of law," The Hamilton Spectator, May 25, 2006Quite correct Mr. McLachlin,
"A fundamental characteristic of any democratic civilization is the governance of the rule of law."Now, with respect, your members need to review just what is the law and it should disturb you and them that it may be your action that threatens the rule of law and not those being the subject of the injunction orders that you speak of.
"If this all seems a little bit dramatic, then we ask the reader to consider what their reaction would be if protesters or individuals, whether native or of other origin, attended at your residence and summarily evicted you from your property without any legal right to do so and those responsible for enforcing the law refused to take any action to assist.This is what has happened and is happening in Caledonia right now."Ibid.Mr. McLachlin, this is not what is happening in Caledonia right now and it is reckless and provocative of you to suggest it and to suggest that Her Majesty's allies have no legal rights. You must live to a higher standard in our society by the nature of your duty and this misleads the very public that relies on all those who have made oath to Her Majesty.But in fairness to Mr. McLachlin, is there to be expected anything different than the above reaction of the lawyers he is speaking on behalf of when domestic lawyers in Canada were closed off from pursuing the necessary skills, knowledge and experience in the matters of controversies between Her Majesty and Her allies, in matters of the relationship whether de jure by treaty or de facto, as the result of parliamentary action more than 80 years ago to prevent assistance being given to Her Majesty's allies in such matters by making it illegal for lawyers and others to be retained by Indians?Today that no longer is the case and so there is no longer any excuse to act and speak on matters of the Crown pertaining to Her allies unless fully skilled to do so.Preserve the Crown and all that depends on the Crown, or tarnish it and risk all?That is what is being decided directly or indirectly, right now, in Caledonia.And it effects far more than the clients of Haldimand County lawyers, the Caledonia community and the province of Ontario.Understanding this and acting consistent with duties to protect are unfortunately difficult today for lawyers and the judiciary in Canada. Improving this will lead to certainty and prosperity.You do not polish precious metal with barbed metal or even with steel wool or scouring pads - that will do damage, often times permanent damage that proves very difficult to repair.That is the effect that Mr. Justice's actions tomorrow, June 1, 2006, perhaps provoked instead of aided by lawyers who like me swore an oath to Her Majesty to protect, may have on the ongoing negotiations to end the dispute. (It is expected that the breach of appropriate diplomatic protocol exercised by Mr. Marshall regarding the Confederacy Chiefs may be brought to his attention as perhaps will comments and explanation be offered as help in how to proceed, respectfully, as befitting matters between Her Majesty and Her allies.)If so, Mr. Marshall's actions would go well beyond any reasonable exercise of judicial activism engaged in for the benefit of Her Majesty, Her interests and that of Her people, in the interests of peace and the protection of the rule of law, and it would be interesting to see the reaction of Her Majesty's Privy Council Prime Minister Stephen Harper, leader of the federal Conservative minority government, to such action by Mr. Justice Marshall given not only Prime Minister Harper's high duty but also the opinion of some Conservative members as to judicial activism in Canada.I hate to have to breaks the news to the investment community but it looks like it's about to get far worse here in Canada than was put to Ontario Securities Commission chairman David Wilson addressing the Canadian Club of Montreal on May 29, 2006:
"After his speech, Mr. Wilson took issue with the argument raised in some quarters that Canada has an international image as a Wild West for securities crime."Bertrand Marotte, "OSC chairman zeroes in on executive pay," The Globe and Mail, May 30, 2006, p. B1 (Report on Business)It may very well be, very shortly, the Wild West in all things in Canada, not just the TSX, with the rule of law no where to be found at high noon.And that is all I have to say.Janice G.A.E. Switlo"Rebel Rebel" is from David Bowie's album Diamond Dogs (1974), originally intended for a theatrical production based on George Orwell's novel 1984 and incorporating Bowie's vision of a post-apocalyptic world. Orwell's estate denied Bowie the rights and so the 1984 theme is prominent through Bowie songs on the second half of Diamond Dogs: "Rebel Rebel", "1984," "We Are the Dead," "Sweet Thing/Candidate/Sweet Thing (Reprise)," and "Big Brother".In February 1997, David Bowie became the first to sell his persona on the stock market, shortly after his 50th birthday. Fahnenstock & Co issued 10-year Bowie bonds on expected royalty income to the society set up to hold his transferred rights that he had kept control over since 1975, generating income through licensing the use of a catalogue of hundreds of his songs.
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