Supreme Court

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

ROYAL OAK MINES INC. (Plaintiff) Applicant

- and-CANADIAN ASSOCIATION OF SMELTER AND ALLIED WORKERS LOCAK NO. 4, and BILL SHRAM, HARRY SEETON, BOB KOSTA, RICK CASSIDY, AL SHEARING, and ROBIN JANZ (Defendants) Respondents

- and-

AMOS SIMON (Alleged Contemner) Respondent

Transcript of Judgment and Sentencing given by The Honourable Mr. Justice J.E. Richard, at Yellowknife, Northwest Territories, on the 30th day of December A.D. 1992.

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1 APPEARANCES: 2 V. Schuler, Ms., Q.C., Counsel for the Applicant 3 A. Marshall, Esq., Counsel for the Respondents 4 D. Miller, Esq., Appeared for the Crown 5 Cheryl Mendryk, Ms., Court Reporter 6 7 THE COURT: On this application, the 8 employer. Royal Oak Mines, alleges that one of the 9 striking employees, Amos Simon, breached the 10 Court's injunction order on June 22nd, 1992, a 11 date which was about one month into the strike. 12 The Court's injunction order restricted the 13 type of activity which the striking employees 14 could engage in at the mine site. Informational 15 picketing with up to five picketers was permitted 16 at each of several entrances to the mine 17 property. All other forms of picketing and all 18 other watching and besetting was prohibited by the 19 Court's injunction order. The Court's order also 20 prohibited any interference with persons entering 21 or leaving the mine site on unlawful business. 22 The Court's function is to keep the peace and 23 to prevent unlawful acts. The purpose of the 24 Court's injunction order was simply to stablize a 25 very volatile situation at the mine site. The 26 union was on lawful strike, the company was 27 continuing to operate the mine. The Court's order

1 simply laid out in fairly clear terms what could 2 or could not happen on the picket line where 3 emotions were high on both sides. The Court 4 expected its order to be obeyed. The community of 5 Yellowknife and society generally expects court 6 orders to be obeyed. 7 Early in the strike, there were numerous 8 allegations that striking employees were openly 9 breaching the Court's order. A number of these 10 employees were brought before the Court; for 11 example, Mr. Simon here, to answer allegations 12 that they were acting in contempt of the Court's 13 order. 14 The purpose of the Court entertaining 15 contempt of court proceedings is simply to ensure 16 compliance with the Court's order. Any confusion 17 or misunderstanding about what activity is or is 18 not allowed by the injunction order can be 19 clarified and the alleged contemner and others can 20 govern themselves accordingly in the future. 21 This purpose of contempt proceedings is, of 22 course, virtually defeated when there is an 23 unreasonable delay in having an adjudication of 24 the alleged contempt of the Court's order. I'm >5 aware that the main parties to this litigation, !6 the company and the union, have been engaged in a :7 very bitter dispute. I do not know what

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1 motivation either side might have to delay these 2 contempt proceedings, but I will state once again 3 for the record that I find the delays that I have 4 seen unreasonable and unacceptable. 5 In the present application, the allegation 6 against Amos Simon is not a gravely serious one, 7 all the more reason to have the allegation against 8 him dealt with in expeditious fashion. The 9 allegation against him is not a gravely serious 10 one as I say, at least in comparison with some of 11 the other matters that the Court has had to deal 12 with in these many hearings. 13 The company's witnesses, Chris Morton and 14 Karl Tettenborn, gave eyewitness testimony to the 15 effect that Amos Simon left the area of the picket 16 line in the late morning of June 22nd and entered L7 well onto the mine property up onto an area of a L8 rock outcropping that is above and somewhat behind .9 some of the mine's buildings. :o One of the security officers went to that 1 area and confronted Amos Simon and advised him to 2 leave the mine property. Although Mr. Simon did 3 not leave the mine property immediately, he did 4 eventually leave, and the duration of his trespass 5 on to the property was short, perhaps 15 to 20 6 minutes. The second trespass, which was described 7 by the Plaintiff's witnesses, was of much shorter

1 duration. 2 Mr. Simon himself testified on this hearing, 3 but I regret to say that I have serious concerns 4 about the credibility of his testimony. He 5 persistently gave evasive answers to fairly 6 straight forward questions. He clearly colored 7 his evidence, and for that reason, I simply have 8 difficulty accepting as credible any of his 9 testimony; but on his own evidence, he was on the 10 mine property without authorization in 11 circumstances which amount to trespass, and more 12 importantly, amount to watching and besetting, 13 contrary to the Court's order. 14 I am satisfied that by June 22nd, 1992, Mr. 15 Simon was well aware of the provisions of the 16 injunction order, and specifically, was well aware 17 that he was not to enter onto the mine property. 18 His conduct clearly constitutes watching and 19 besetting that is prohibited by the court order. 20 I'm satisfied beyond a reasonable doubt that 21 Mr. Simon defied or disobeyed the Court's order in 22 a public way, with the knowledge that this public 23 disobedience would tend to depreciate the respect 24 and authority of the Court, and I accordingly find 25 him to be in criminal contempt. 26 (BRIEF ADJOURNMENT) 27 THE COURT: Now, Mr. Simon, is there

r 6 ~ 1 anything, sir, that you wish to say in addition to 2 what Mr. Marshall has said on your behalf? 3 MR. SIMON: No, Your Honour, I have 4 nothing to say. 5 THE COURT: Mr. Simon, do you now 6 understand, sir, that you can't go on to that 7 property when you're on picket duty? 8 MR. SIMON: (No response) 9 THE COURT: I want to know, Mr. Simon, 10 whether you are agreeing to obey the terms of this 11 court order, because I have to decide whether it's 12 necessary for me to impose any particular sanction 13 in order to ensure the Court's order is obeyed to 14 the letter by you and by the others. Now, do you 15 continue to have a problem with that, or not? 16 MR. SIMON: No, Your Honour, I have no 17 problem with keeping off the mine property. Your 18 Honour. It's a -- it's a simple thing to do, it's 19 just that, like, mine property comes right to the 20 ditch of the road, and it's only six or seven feet 21 over the ditch, so if you're, you know, five feet 22 past that into the company property, then you're 23 trespassing -- you know, it's true, we're in a big 24 land here, and I guess -- if I could see it. Your 25 Honour, if it was fenced and somebody jumped the 16 fence or something, but, you know, to go in five >7 feet on company property or whatever it is --

1 THE COURT: But, Mr. Simon, let me just 2 follow up on something --3 MR. SIMON: Your Honour, I think that 4 it's sad when the courts today -- that you can sit 5 there and you can say that I'm in -- that I have 6 criminal charges against me because I went in a 7 few feet. So I used the washroom because we never 8 had proper washroom facilities, and now you hold 9 me guilty of this charge, you have now the risk of 10 my job in jeopardy, because now we have two 11 arbitrators in Ottawa waiting to have judgment on L2 the 45 workers. We want extradited arbitration. L3 Well, yes, we will get extradited arbitration. An L4 extradited arbitration is rapid arbitration, and L5 in order to have rapid arbitration, you must have .6 in our society rapid justice. So you are a part .7 of the rapid justice, you are providing the ground .8 work for the two arbitrators in Ottawa, which is .9 waiting their faith on the 45. It lays in your 0 hands. Your Honour. It's your hands. You see fit 1 to do as you do as a judge. 2 I asked you the other day, could I have judge 3 and jury, you explained to me quite frequently. I 4 believe in your heart and sole as a judge when I 5 ask for judge and jury. If you believed in the 6 justice that you're supposed to believe in, you 7 would have elected me to have judge and jury, but

8 1 you defied my right to be judged by my peers, so I 2 feel today I'm not judged by my peers, but give us 3 judge and jury, let the people decide what 4 happened in Yellowknife, but you're afraid of the 5 truth, and the law is afraid of the truth, and I 6 believe that this strike has become what we call 7 big, but bigger than big. I think there's so much 8 corruption by the justice and the law system and 9 the court system and all of them that was in the LO bag together, that I believe that they must hide LI the truth from the public and that's why I was L2 denied judge and jury, because we're under L3 pressure, I believe, from maybe the big brother, .4 maybe Ottawa has got pressure over this, that .5 makes these decisions fast, and we'll find the .6 faith of the 45, but I hope some of the people in .7 the justice system, when they go home tonight, if 8 that's the attitude they're going to have, that 9 they can sleep a good night. That's all I have to 0 say. Your Honour. 1 THE COURT: In considering the 2 circumstances of the type of breach committed by 3 Mr. Simon and all of the other submissions that 4 have been made to me, it's my view that an 5 appropriate sanction is one similar -- similar to 6 the one that was imposed on Mr. Bettger. 7 I'm going to reduce the period to two months t <i

1 keeping into -- taking into consideration the fact 2 that Mr. Simon was under virtually the same type 3 of condition for four months while he was awaiting 4 this hearing. So in the matter of Amos Simon, I 5 hereby suspend the passing of sentence for a 6 period of two months. During that time, Mr. 7 Simon, you'll be allowed to go free, but you will 8 be bound by the order of this Court to keep the 9 peace and be of good behavior, to refrain from 10 being within one kilometre of the property of 11 Royal Oak Mines at the Giant Mine site, and to 12 appear before this Court again when you're 13 required to do so. 14 Mr. Simon, as your lawyer will no doubt 15 explain to you if you do keep the peace and obey 16 the orders of this Court within the next two 17 months, no further sanction or penalty will be 18 imposed on you. On the other hand, if you breach 19 the peace or you disobey any order of this Court 20 within the next two months, you will be brought 21 back before this Court for judgment and for the 22 imposition of a sentence for your contempt. >3 Once again, just so that it is clear, at any !4 time during the next two months for whatever 15 reason, if the strike is over, and for whatever 6 reason you are permitted to and you want to return 7 to your employment at the Giant Mine, you can make

10 1 application to the Court for any necessary 2 variations in this order. Once again, I'm going 3 to ask the representative of the Attorney General 4 of Canada to prepare the necessary order and 5 arrange for it to be served on Mr. Simon 6 personally, but the order will take effect from 7 today's date and Mr. Simon will be free to go 8 under those terms. Court is adjourned. 9 (PROCEEDINGS ADJOURNED) LO .1 I, Cheryl Mendryk, C.S.R.(A), hereby certify .2 that I attended the above Proceeding and took 3 faithful and accurate shorthand notes and the 4 foregoing is a true and accurate transcript of my 5 shorthand notes to the best of my skill and 6 abi1ity. 7 Dated at the City of Calgary, Province of 8 Alberta, this 13th day of January, A.D. 1993. 9 0 1 Cheryl' Mendryk, M 2 Court Reporter. 3 1

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