Saturday, February 03, 2007

Mens Rea
My Lady, in a paper by A. Pringle writing for the Canadian Encyclopedia entitled Constituents of a Crime, Mr. Pringle states on page three, para 2…

“Nevertheless, there is still an overriding principle in the criminal law that there is no criminal responsibility unless the guilty mind required by the offence can be proven. The idea of “Guilty mind required by the offence” has been refined in light of the Charter. For example, the Supreme Court of Canada has held that murder is so serious a crime that it would be fundamentally unjust to convict someone of murder who did not, at the time of the killing, have a murderous state of mind. The Court then struck down, as unconstitutional, those sections of the Criminal Code which permitted murder convictions where the intent to kill had not been proven.

Thus, the Charter has given rise to the principle that the mens rea to be proven must “fit” the crime. Most criminal trials are in fact contested on the basis of whether the accused had the requisite state of mind rather than whether he actually performed the prohibited act. This state of mind has to be proven with the same certainty as the other ingredients of a crime, and the prosecution must therefore present a clear picture of what was in the individual’s mind at the time the offence was committed.”

My Lady, I know what was in my mind at the time of my alleged offences and it wasn’t what the Crown said it was. My mens rea was, on all three of my Blockades at Eagleridge Bluffs, that I was there to bring attention to the needless and I believe, even the sacrilegious, wanton destruction of an irreplaceable eco system. And my mens rea of wanting desperately to help save Eagleridge Bluffs, and of peacefully tenting in the parking lot and talking to people who came by
does not fit with the mens rea the Crown claims I had when I set up my tent at Eagleridge Bluffs.

Was I tenting at Eagleridge to commit criminal contempt of court? Is that what I had in mind as the Crown claims? If you will recall, My Lady, the police didn’t come to arrest until several days after the injunction came down. Until the injunction came down I think even the Crown might agree that my presence at Eagleridge was one of calling attention to what I considered the egregious use of the Olympics by our provincial government to push through an up scale development scheme at taxpayers expense while destroying an incredible urban wild space that was teeming with wild life.

Until the injunction came down, almost any reasonable person would agree that my obvious mens rea for being at Eagleridge was to help call attention, to witness, to what I considered to be a government crime against nature. But then how is it that as soon as the injunction came down that my mens rea would shift so drastically from one of a civic minded great grandmother, one passionately involved with trying to help save what natural ecosystems are left that can be saved, suddenly possessed with a criminal mind as the Crown claims? Because I refused to move when the police told me to? Does it follow that my refusal to move when ordered that my mind had suddenly turned bad, that I had morphed into this notorious person the Crown refers to, one in the same category as a notorious gangster?

I think not, My Lady. Nothing had changed in my mens rea, my reasons for being there remained the same as before the injunction came down. The only mens rea that changed at this point was the mens rea of the Crown and the Office of the Attorney General. They are the ones who changed. Because at this point of my refusal to move the Crown and office of the Attorney General could now legally super impose their definition of my mens rea upon me. At this point they can legally accuse me of thinking like a criminal when my charges are turned over to the Crown as they always are. And the Crown, with a straight face, because it’s written in law…can now claim that my mens rea and his definition of my mens rea are somehow one and the same, only his is now super imposed over mine, in other words peaceful civil disobedience equals Criminal Contempt of Court.

But these two states of mind are not the same. They are very different from one another. Peaceful civil disobedience has been practiced historically by many different people in many different places without ever being accused of having the mens rea to commit criminal contempt of court, or even knowing what criminal contempt of court was. Civil disobedience, by calling attention to a law or set of laws or government actions of questionable legality or morality is not even in fact hostile to the law, because in western countries civil disobedience evolves into becoming part and parcel of the law. You can hardly find any ruling in the Charter of Rights and Freedoms that wasn’t placed there directly or indirectly by civil disobedients.

Civil disobedience is the main vehicle which allows the law to evolve.

My Lady, I was born in 1928. Had I been born in Canada I would not have been considered a legal person. It took the combined agitation and civil disobedience of women in England, Canada, and the US to convince the somewhat more sober men of the English Privy Council to overturn the opinion of the more macho, less sober men of the Canadian Supreme Court and say in effect, …”oh, come on, guys. The ladies must be persons; I mean…gosh, they made us, doesn’t that make them persons?

And I contend, My Lady, that by interpreting the laws of British Columbia to equate the mens rea of peaceful civil disobedience with the mens rea of criminal contempt of court is to falsify my mind, my character, my concern for the environment, my concern for what I, as an elder, will be leaving behind for the young ones…it is indeed, to falsify my entire life.

And I contend that it is simply illogical to maintain that the mens rea for committing peaceful civil disobedience and the mens reas to commit criminal contempt of court are one and the same because there is a simple test for this…if the two mens reas are interchangeable, if they are the same, if this then would led us to the conclusion that when one commits peaceful civil disobedience one also commits criminal contempt of court. But My Lady, if this were absolutely true, then the reverse would also be true, if one committed criminal contempt of court then one would also be guilty of peaceful civil disobedience. And we know without even thinking deeply about it, that this is a foolish conclusion. There is no logic to this, My Lady.

As these two states of mind are very different and the fact that they are not treated differently lies with the fault of the law and the court’s interpretation and application of the law. There has been an unproblematic collapse of these two states of mind in legal rulings so that they have become synonymous. I protest this collapse under the Crown’s claims that I had criminial intent when I know I did not as this puts me in the same psychological position all Canadian women were in back in 1928 when women were legally non-persons. Anybody, man or woman, whose true intent is wrestled from them by an outside agency and an erroneous one imposed in its place, will experience something of what it means to be a non-person.

My Lady, I believe in the strength of the law. The law is not some frail flower that is going to fall over and die due to a couple of whiffs of peaceful civil disobedience. The law has been around a very long time, since the earliest hunters and gathers. And the reason the law is strong is because it exists in people’s hearts and minds, not because it is written down and studied line by line in the law books; the concept of law is hard wired into our brains. The belief, as described by Chief Justice of Canada Madam Beverly Mclachlin that if protesters are out there, up front with their protests including peaceful civil disobedience then the entire edifice of Canadian law will collapse around our ears makes me wonder about Madam Mclachlin's knowledge of the history of civil protests. It makes me wonder if Madam McLachlin knows that civil disobedience is not hostile to the law, that peaceful civil disobedience gets incorporated into the law, becomes part and parcel of the law. In fact, peaceful civil disobedience is the main vehicle by which the law evolves. It is only when peaceful civil disobedience is not allowed to seek expression, when the courts and the police refuse to allow the law to evolve that the law is in danger as it is now in war torn countries around the world.

The threat to BC law and BC courts is not through people like me, but from a growing corporate mens rea that is spreading out over the land even as it destroys the land, a corporate mens rea that owes nothing to anybody except their select group of stockholders. This Corporate mens rea is also in my opinion, damaging our governmental rights but I won’t digress.

My Lady, I am an extremely law abiding person as are all of my children and grandchildren and it is very disturbing to me when the law does not reflect reality. And when I am accused of having the mens rea of one action that I didn’t have and am denied the recognition of the mens rea of an action that I did have, then the mens rea of which I am accused does not “fit” the reality of my experience or of the law and the charge against me by the Crown of having a criminal mind is in error.
I certainly did disobey a court order. And after reading most of the relevant cases, some of them mine, and the learned judge’s decisions about how a court order is the most enormously important thing in the entire edifice of the law, I don’t believe it. Judges can be replaced, they can have conflicting opinions, they retire, move away, die. The criminal code and the constitution are the most important elements in Canadian law that brings justice to our land, when justice is brought. It is not an individual judge’s opinion to keeps order in the land and it is the criminal code and the Constitution of Canada the compose the elements all citizens should be subject to, and be willing to give obedience and homage to, not to the personal dispositions of an individual judge.

Mr. Justice Grist in his reasons for quashing the Eagleridge Bluffs petiton against Kiewit and Sons and Sea to Sky Highway didn’t even mention the arguments on Charter rights that Mr. Cameron Ward brought before his court. Mr. Justice Grist didn’t even consider them worth mentioning, much less arguing. I’ve never heard of that before where a judge refused to respond to a Charter argument, or any kind of oppositional argument for that matter in his reasons for judgment. Mr. Justice Grist just ignored the entire issue of how the injunction affected the Charter Rights of all the people involved in the protest.

Many judges, my Lady, give out injunctions involving environmental disputes knowing little or nothing about the area involved except how good corporate lawyers are by reducing proof of environmental damage to little or nothing. The argument reminds me very much of a religious argument that upheld masculine superiority even when I was a child and that is… it didn’t matter if a woman was smarter than her husband; she had to obey his stupid decisions simply because he was the authority. And the populace is increasingly becoming smarter about what’s happening to the environment that the judges who are giving out these injunctions in environmental disputes.

In fact, I think a lot of people, My lady, are beginning to go into panic mode over the stupid decisions of governments and court procedures that result in horrid environmental degradation that is leading the entire bio system of the earth toward collapse. We have to stop this madness. We, as a people, have to use reliable uncompromised legal authority and give it the precedence and honor it deserves and that is the careful construction and protections of the criminal code, to put this code aside and say well, we used to deny the code to unions but we can’t do that anymore, but we can still deny the criminal code and the constitution to environmentalists and First Nations so we’ll do that.

My Lady, when all of the arguments are over here in this case of my protest at Eagleridge, one fact remains…Kiewit and Sons an Sea to Sky Highway and Gordon Campbell, Wally Opal, and Mr. Justice Grist have all had their way…Eagleridge Bluffs as an intact eco-system is destroyed.

And we are all the poorer for it. Even the ones who brought the destruction are the poorer in spite of the money they have made and will make out of it because they, too, must now live in a world where there is a little less natural diversity, fewer will animals including numerous insects as well as frogs, deer and bear, fewer native plants, fewer wetlands to store water and cleanse the atmosphere, fewer Arbutus forests already rare, fewer birds will come to next, there will be a little less connection altogether between humans, especially urban humans which most of us are now, with our own biological world.

But nature is fighting back. She is telling us that we are destroying our own habitat, but we know that already because people are grieving. Depression is rife in our land because every species grieves when its habitat is being destroyed and humans, too, are wild creatures. We don’t’ ordinarily think of ourselves as wild creatures but it hasn’t been that long in evolutionary terms that we’ve come out of the caves and forests ourselves. We have the same needs as all other animals, for safe places to sleep, clean water to drink and food that won’t poison us in order to have the strength to mate and look for more food and water. These are essentials for human life, and we’re running out of all of it just as the wild animals are. And the idea that governments in partnership with business have the right to get more and more powerful rich and richer and richer while the earth is being deconstructed by their efforts is going to kill us all unless we as a people put a stop to it.

I do not believe the law is the static, dead thing as presented to us by the Crown and the Attorney General and the courts of British Columbia by as they do by always resorting to precedent, which is the concept that that if a law or ruling has never been interpreted in a certain way by the courts then that is the way it must be forever. I believe that in spite of how it looks at the moment, that while the Courts of BC seem to be playing dead on the issue of injunctions, the court really is still alive, is a living, breathing entity.

Peaceful civil disobedience is not easy under the best of circumstances; in the worse it can be a horror show. But I believe it is an agent for change, peaceful civil disobedience can change the law and the land and citizens and creatures of the land for the better. I believe that peaceful civil disobedience can bring the protections of the Criminal code to all of the citizens of British Columbia and Canada and that people like me will no longer be put into a category of special legal processes and denied the protections of the criminal code while we struggle to retard some of the worst of the deforestation and environmental degradation of our province.

I know the law can change. I’ve witnessed changes in the law. My Lady, you have the power to facilitate change in this court. I ask you to place that power in the service of the children of this province who will need the life support systems being destroyed just to live and breathe and grow up. Stephen Hawkins said in one of his books “The universe is going somewhere and we’re all going with it.” And I believe that. That the universe is going somewhere and that all of the earth’s children will need their life support systems for the journey.” I plead for you assistance, My Lady

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