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Friday, December 12, 2008

"10 peaceniks convicted of trespassing," Homes Not Bombs, December 11, 2008.

This message comes from Toronto Action for Social Change.

10 Anti-War Advocates Convicted in Burlington, Ontario Court on International Human Rights Day; Decision by Justice of the Peace Upholds Supremacy of Property Rights over Human Rights

December 10, 2008, Burlington, Ontario -- With no trace of irony, Justice of the Peace Kenneth Dechert today convicted 10 peace advocates of trespassing in a decision that upheld the supremacy of property rights over human rights on World Human Rights Day. All had been arrested November 20, 2006, while trying to seek a dialogue with the executives at L-3 Wescam. Wescam is one of the largest military manufacturing facilities owned by Canada’s self-proclaimed #1 warmaker, L-3 Communications.

Declaring that he had to “send a message” that property owners can do whatever they please, even if that means making decisions that do not “follow the principles of natural justice when excluding the person,” Dechert then sentenced the 10 to a year’s worth of probation, noting with a sense of giddiness that any breach could result in a month’s worth of jail time and fines of up to $1,000. (The defendants were Barney Barningham, Matthew Behrens, Dan Hilton, Gail Lorimer, Dave Marshall, David Milne, Maggie Panter, Kirsten Romaine, Mike Smith, and Paul York)

The lengthy probation was a shock even to the Crown attorney, and was certainly disproportionate considering that a previous decision against individuals convicted of trespassing at Wescam had resulted in a mere suspended sentence.

The ruling and sentencing, defendants stated, was a bad day for the people of Afghanistan, Iraq, and other countries, where simply walking down the street on any given day, attending a wedding, or going to school, can be suddenly and terminally interrupted by the unexpected explosion of a Hellfire missile, fired from an unmanned aerial vehicle (or drone) and guided to its target by Wescam’s imaging and targetting technology.

Despite the fact that Wescam proudly features its military products on its website (including numerous pictures of the Predator drone), Dechert could only bring himself to state that it was “alleged” that such materials were manufactured at the Burlington, Ontario facility.

Drones like the Predator have become hugely popular killing vehicles for Canadian, U.S., and other occupying forces in Afghanistan and Iraq. The drones allow individuals sitting in safe bunkers thousands of miles away to push the launch switch that sends these missiles slicing through wedding parties, schools, and other gatherings of human beings half a world away.

Today’s hearing also marked the sixth anniversary of the peace campaign at Wescam; on December 10, 2002, three individuals were arrested for seeking the same dialogue that continues to be refused six years later.

During the lengthy trial, individuals had testified about being motivated to act by having visited and seen the horrific human damage done by such technology in Iraq and also by their understanding both of international law, and the obligations placed on all people by the Nuremberg principles. One defence allowed under the trespass laws of Ontario is a colour of right justification under which an individual can point out “that he or she had title to or an interest in the land that entitled him or her to do the act complained of.”

Because the act is non-specific in defining “interest,” the group argued that “interest” need not be a specific legal title to ownership, but rather, could be a concern with what is going on in a particular location, an interest in the land sanctioned by their understanding of the law with respect to things like participation in war crimes. If this were a factory producing poison that was being used to kill the schoolchildren located next door, they argued, it is fair to say that the community would have an interest in that property and what is taking place there. In this instance, there were people who had a substantially grounded legal and humane interest in the war materiel being produced at Wescam that is being used to kill schoolchildren halfway around the world.

While the crown had argued that such an interpretation needed to be very narrow -- an interest only means an ownership interest -- Dechert was presented with numerous options to exercise his discretion under the law to, under these particular circumstances, take into consideration the context and reasoned submissions of the defendants. The group relied both on international law, Supreme Court cases, as well as the words of the Beverley McLachlin, Chief Justice of the Supreme Court, who, in an address on “unwritten constitutional principles,” had stated: “because lawmakers can never imagine all possible circumstances under which their laws apply, just laws will become unjust in certain circumstances.”

It is the role of judges, she asserted, to step in and “do justice” when such breaches occur and, applying those unwritten but certainly well-understood principles, to prevent a further injustice (such as the abovementioned conviction and sentence).

Despite the JP’s insistence that he was ““bound” by archaic and dusty justifications of landowner supremacy, we pointed out that the Supreme Court had declared, “Absolute precision in the law exists rarely, if at all. The question is whether the legislature has provided an intelligible standard according to which the judiciary must do its work. The task of interpreting how that standard applies in particular instances might always be characterized as having a discretionary element, because the standard can never specify all the instances in which it applies."

Refusing to exercise his discretion, Dechert backed away from the challenge and re-enforced the old standard: property rights rule, even when human beings suffer.

“Their actions were guided by entirely altruistic purposes,” Dechert noted, citing the obligations of the Nuremberg Principles and political and spiritual beliefs that provided “good reason for the strength of their convictions.” Nevertheless, he insisted that the Trespass to Property laws exist to “protect the exclusive rights of a property owner. That law must be obeyed and that is the message that must be sent by this enforce the exclusive dominion of the landowner.”

It’s a bizarre message that essentially says the law does not allow room for altruism or justice.

The defendants had urged Dechert not to be a German judge or a segregationist judge, noting that the law must evolve with the times. His decision was reminiscent of those that would have asserted the “right” of a Montgomery bus company to prevent Rosa Parks from sitting in the front of the bus because property rights took precedence over her right to be treated as an equal human being. Dechert was also challenged not to be the kind of judge who would have been honoured in Nazi Germany for convicting trespassers who were protesting the construction of weapons at Krupp or the manufacture of Xyklon B at IG Farben.

“The missiles guided by L-3 Wescam technology do not respect people’s private property rights or any other boundaries,” Frank “Barney” Barningham told the court today. “Why are the executives at L-3 afraid to talk with us? Why are they afraid of an unarmed 75-year-old man? They are afraid enough to call in armed police and prevent me from speaking with them. What is the problem here? After all, I only have a one-word question for them. ‘Why?’ Why are they manufacturing these weapons? Perhaps they’re afraid to speak with us because they would be made aware that their actions are immoral and greedy. How many lives have been lost over the past two years? I should speak for those who cannot speak...the thousands killed in Afghanistan and Iraq, the 100 million killed in 20th century wars.”

Kirsten Romaine told Dechert that “‘we live in a militaristic world that values profit above all. We need to talk with people about how we can live our lives without manufacturing things that hurt others.”

At this point, Romaine explained that sometimes music is a better way of explaining things than words, and before Dechert could move to stop her, she launched into a haunting version of a song made popular by women resisters at Greenham Common:

They can forbid nearly everything
But they can't forbid me to think
And they can't forbid my tears to flow
And they can't shut my mouth when I sing.
They can forbid nearly everything
But they can't forbid me to think
And they can't forbid the flowers to grow
And they can't shut my mouth when I sing.
They can forbid nearly everything
But they can't forbid me to think
And they can't forbid the sun to shine
And they can't shut my mouth when I sing.

An uncomfortable Dechert did not leave the room at this juncture, although during an earlier court hearing, the group rose in silence to honour the victims of Wescam technology, during which he hastily exited.

Defendant David Milne, who had eloquently testified about what he had witnessed first-hand in Iraq, pointed out the irony that today was the 60th anniversary of the Universal Declaration of Human Rights, a document that was certainly not being respected or honoured in the ongoing wars and the profiting from such atrocities.

When the evidence and submissions portion of the trial had come to a close earlier this year, Dechert was handed a statement from Chief Justice Beverley McLachlin: “When judges allow themselves to be co-opted be evil regimes, they are no longer fit to be judges. This is the lesson of the Nuremberg Trials. It is also a lesson, however, that should embolden judges when faced with seemingly more mundane manifestations of injustice.”

McLachlin then references the 1961 film Judgment at Nuremberg, in which Judge Dan Haywood - played by Spencer Tracy - “delivers a powerful set of justifications for punishing those who not only had violated the law, but who had done so under the cover of their own allegiance to the state and its positive law. The judge rules as follows: ‘But the Tribunal does say that the men in the dock are responsible for their actions, men who sat in black robes in judgment on other men; men who took part in the enactment of laws and decrees, the purpose of which was the extermination of humans beings; men who in executive positions actively participated in the enforcement of these laws -- illegal even under German law.’”

“By this,” McLachlin continued, “I take the judge to mean that these laws and decrees were unconstitutional under the higher principles as affirmed by Germany’s history, culture and constitution.” She then quotes Judge Haywood as stating that what is shocking about the atrocities is the degree to which they were normalized.

“Had the defendants been ‘degraded perverts’ or ‘sadistic monsters and maniacs,’ then these events would have no more moral significance than an earthquake, or any other natural catastrophe,” says the judge played by Spencer Tracy.

“Judges must resist this normalization – this making “law” out of what cannot be just, and hence, in a profound sense, cannot be legal,” says McLachlin. “To do otherwise is to allow injustice to hide itself under the cloak of false legality.”

Employing these comments, we concluded our trial with the following statement: “We no more gathered at Wescam on November 20 than we do here today to suggest that those who make these weapons systems or those who are potentially implicated in complicity with torture are ‘degraded perverts’ or ‘sadistic monsters and maniacs.’ These are individuals who are divided from the better part of themselves. But they are linked, through acts and omissions, to global atrocities which have become all too normalized. Under such a global regime of injustice, citizens with knowledge have an obligation to speak up and seek an end to these atrocities, and to end our own silence when that contributes to these atrocities. By being at Wescam we have attempted in some small way to fulfill our Nuremberg obligation. The only remaining question is whether, by refusing to convict us, you will fulfill yours.”

On December 10, Dechert refused. The wars go on. War production at L-3 Wescam, among many other Canadian weapons facilities, continues, quite profitably.

Homes not Bombs is considering an appeal of both the decision and the sentence. If you would like to contribute to our ongoing costs (since it costs a fair bit to order transcripts among other things related to the case), please send a contribution to Homes not Bombs at PO Box 73620, 509 St. Clair Ave. West, Toronto, ON M6C 1C0.

Some Background:
(Video from Mother’s Day Direct Action at Wescam--Parts 1 and 2) and

Trial of Mothers Day Coalition Members

Arrest of the Mothers Day Coalition Members

Acquittal of the Wescam 3

Arrests of Wescam 3

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