Plain’s lawyers want to know if judge declared past CN work

 Protestors at leave the CN Rail Line blockade Jan 2, 2013. A legal fund has been set up for the lone person facing charges from the blockade. Heather Wright photo

Protestors at leave the CN Rail Line blockade Jan 2, 2013. Ron Plain is the only person still facing charges in the incident.
Heather Wright photo

Lawyers for the only Aamjiwnaang man facing charges for the Christmas-time blockade of the CN Rail in the Chemical Valley want more documents about the incident to be released.

In December, members of the Aamjiwnaang First Nation blocked a spur line in their community in support of Chief Theresa Spence who was on a hunger strike. CN immediately went to a judge for an injunction to stop the blockade, which was grinding business to a halt in the Chemical Valley. But the blockade lasted 13 days and in the process, Ron Plain, who served as the blockaders spokesman, members of the First Nation band council and Sarnia’s Police chief were facing contempt of court charges. Plain is now the only person still facing  charges in the case.

Peter Rosenthal, Plain’s lawyer, now wants access to notes from CN Officers about what happened at the blockade, information on CN’s rights to use the land the spur line is on and – what Rosenthal says it the most controversial item of the request – information surrounding the judicial application for the injunction.

At the beginning of the blockade, Justice David Brown of Ontario’s Superior court gave CN an injunction at a hearing in Toronto; a hearing members of the First Nation were not a part of.  A week later, Brown renewed the order criticizing Sarnia’s police chief for not acting on the. Phil Nelson at the time said he was making every effort to ensure the blockade came down peacefully.

Rosenthal is concerned about Justice Brown’s involvement in the injunction. He told Justice Bruce Thomas during the hearing Friday that in Aug. 2011 in the case of CN vs Holmes, Justice Brown advised the lawyers that he had worked for CN in the past and was a witness for them in a case in the US. “We want to find out if he disclosed this or if his appropriateness in this matter was raised,” Rosenthal said during a break in the hearing. “It’s not uncommon for a judge to offer to recuse him or herself…Justice Brown indicated he appeared as a witness for CN in another case in the US, that is more of an involvement that regularly occurs (between a lawyer and client.)”

Rosenthal wants the information from the ex parte to see if Justice Brown disclosed his prior work with CN before the Aamjiwnaang injunction was issued.

“Doesn’t Mr. Plain have the right to know in the order he is accused of violating under the circumstances it came to be…Can we tell anyone, in particular someone of the First Nations, you don’t have the right to know what happened,” Rosenthal said in his argument before Thomas to have the information released.

Justice Thomas heard Rosenthal and CN lawyers arguments on the additional disclosure and will issue a written decision before Plain’s contempt case moves forward.