- by John Tamming
Justice Susan Vella
Judge Susan Vella was appointed an Ontario justice in 2020. Within her first year on the bench, this land claims case was assigned to her.
In her previous life as a lawyer, she was counsel to the Ipperwash Inquiry.
Just three years before her appointment, she was lead counsel to the National Inquiry on Missing and Murdered Indigenous Women and Girls.
Lead counsels to commissions and inquiries tend to be, without exception, propelled by the same societal impulses and sympathies which triggered the inquiry to begin with.
We have no idea if she considered whether she too close to the aboriginal activism of her immediate past and thought of recusing herself from this case.
It would seem to be a fair question for the defendants in this case to ask. As the cliché holds, the question is not of actual bias but rather of the appearance of bias.
As an aside, the beach case was not her first exposure to Saugeen First Nation: years ago, she acted for band members who were victims of pedophile priest named Father Epoch. (Our firm acted in a large number of parallel cases at the time. Ms Vella – as she then was – was a solid advocate and an adept negotiator.)
The Court as Political Actor
The most telling part about the judgement is its opening, taken straight from a past Supreme Court of Canada ruling.
Justice Vella issues a ringing, emphatic declaration that in the 170 pages which follow, she is fully engaged not only as an arbiter of the law but also as a full-fledged political agent:
The fundamental objective of the modern law of aboriginal and treaty rights is the reconciliation of aboriginal peoples and non-aboriginal peoples and their respective claims, interests and ambitions.
No family court judge would declare that his primary job is to promote harmony between the warring spouses before him; rather, his task is to decide on the value of the Bruce Nuclear pension or on whether spousal support ought to be fixed at $2,000 or $2,800 per month.
No commercial list judge would announce to the dueling corporations before her that her primary concern is that tranquility between them prevail; instead, she is there to decide if the defendant breached the lease and, if so, what the damages will be.
Land claim litigation is different, apparently. Remarkably, but completely in line with directives from our Supreme Court, the judge is asked not just to make a call on surveyor notes and a chief’s memory of seine nets but also to interpret all such evidence through the lens of what might promote reconciliation.
The problem is that reconciliation is the work of politicians as they mediate societal differences, not judges.
Antonin Scalia’s Question
After all, with the greatest respect to her Honour, or any judge saddled with the expectations place upon them by our highest court, how does a judge know what will promote reconciliation among the various Sauble Beach stakeholders?
How is a judge in any better position to make that call than, say, a random table of Tim Horton’s customers or a gaggle of my monthly poker mates?
To paraphrase what Justice Antonin Scalia once said of the hubris of his over-reaching court to the south of us, what exclusive wisdom on what is good for society lies within the rarified chambers of a judge or emanates from the professional training of a lawyer?
In the present case, did the judge commission opinion surveys of the town and of the band? Did she consult with anthropologists as to the likely outcome over time of a pro-Saugeen decision? Were psychologists retained by the bench to predict how the residents of 5th Street might react if the beach was rendered as part of the reserve? Did an expert witness have coffee with Saugeen members to see how they might get along with the storekeepers on Lakeshore if she ruled in favour of the Town?
No, neither the trial judge nor the litigants before her did any of that.
In perhaps the weakest part of the judgement, she does refer to a Dave Dobson email as solid evidence which she allows to inform her reconciliation analysis.
Poor Dobson. He just could not get a break in the decision. He owns The Crowd Inn Restaurant and was one of three private landowners of part of the beach. It turns out that, sick and tired of the 20 year legal battle, a frustrated Dobson emailed someone that he was ready to sell his place and be done with it.
The court allowed this email into evidence and claimed it showed the land meant less to Dobson than it did to Saugeen.
Thus, pace the two mothers holding the infant before King Solomon, the beach goes to the band. Take away the beach from he who would miss it least. Presumably therein lies reconciliation and societal harmony.
Whatever Justice Vella is doing here, it is not serious legal analysis. It is instead a form of politics, a balancing of interests. Scalia calls this “social transformation without representation”.
The judge seems aware of the implications of her decision towards its end. She encourages the parties to talk (an unusual way for a formal judgement to end) and rather glibly observes that “after all, the beach is not going anywhere”.
Perhaps the defendants should have led evidence from some of the 70 former Hope Bay cottagers, for whom their beach did effectively go somewhere. Their life on the beach was cancelled and cottages removed as a result of a secret agreement between Canada and that First Nation.
Whatever assurances are made today, as elections roll around and new band councils are elected, First Nations can be as capricious in these matters as anyone else.
They are entitled to do whatever they want with their land and, after being denied ownership of this beach for 170 years, many would not blame them if down the road they restricted public access.
The point is that no one knows, including the author of this decision. The credulity which underlies the judgement’s closing exhortations is rather unfortunate.
It Does Not Matter, The Judgement Will Stand
But that will not matter on appeal.
The main conclusion of the judgement is clear and defensible, perhaps even apart from any of the politics contained within it.
It is a fact that surveyor Rankin plunked a post in the ground somewhere near Sixth Street. People saw and noted the post. As a rule, surveyors do not bother to hammer in stakes for the hell of it.
Later, standing where the iconic Sauble Beach sign is now, he gazed north across the curvature of the beach towards the post and opted to forget about it, even though this omission cost Saugeen 1.4 miles of beach.
Why did Rankin so act? Per the judgement, three reasons:
Rankin was in a hurry (the settlers were coming).
Also, he was likely loath to drag his chains through shallow water to reach that post.
Finally, he did not think that the sliver of land on which the post stood had much value at the time.
It is all a little speculative, but likely grounded in enough evidence to render the judgement appeal-proof.
There are records that afterwards, when Rankin’s helpers were trying to survey the town lots, fisticuffs almost broke out as the members of Saugeen immediately objected to the loss of their beach.
This is credible evidence that Rankin messed up – both in his survey and in his assumptions that Saugeen would neither notice nor care.
Justice Vella ruled (at paragraph 5) that the beach west of Lakeshore all the way north up to 6th Street belongs to SON. It captures nothing of Lakeshore Drive itself nor of lands to the east of the road.
Justice Vella does not tell us exactly where to pound the northern stake. The answer to that is not an appeal but rather a quick negotiated fresh survey reflective of the judge’s clear intent.
Because that would be simple, inexpensive and makes sense, it will not happen.
Rather, a few hundred more billable hours will lay further waste to our municipal budget as we claim to see some insurmountable ambiguity in the judgement which requires clarity by the Ontario Court of Appeal.
Appeals are not second kicks at the same evidentiary can. You don’t get to run the same facts by a different panel of judges and hope for a different result.
Unless Judge Vella is found to have completely misunderstood material facts or the law, her judgement will stand.
A Legal Bill for the Ages
Saugeen made do at trial with three lawyers.
Ontario brought four gowns to the party as did Canada. SBP won the numbers contest with no fewer than five lawyers of record. David Dobson, got away with just one, the legendary Ted Oldfield.
In recent years, the beach has been a place where municipal budgets go to die.
The Town previously managed to blow $1.3 million on a simple dispute over piping plovers. The plover case involved a short environmental hearing at an Owen Sound motel, some beach detritus, a couple of little birds and a bulldozer.
The Town lost every single step of the case, all the way to the Ontario Court of Appeal. The same law firm represented the Town on the beach land claim case.
The final tally of this doomed foray over this lawsuit is not yet known.
Some have suggested that there will be no hits to the budget, that parking fees will pay for the plover lawsuit and that Canada may gratuitously offer the Town $5 million or so for the loss of the beach – and that cheque too can simply be signed over to the lawyers.
Lawyers may in fact be worthy recipients of public largesse but one would think that six or seven or ten million dollars could go to better causes for a small municipality with acute needs everywhere.
Replacing an embarrassment of a town hall might be one such project. But I digress.
