REPORTING · 21st January 2010
On October 26, 2007, the entire Haisla Kitamaat Village Council (KVC), led by former Chief Councillor, Steve Wilson, filed papers to commence a lawsuit for defamation against six Haisla Band members along with a lawyer from Edmonton, Janice Switlo, who was representing at least two Haisla Hereditary Chiefs. A seventh Haisla member was added to the defamation case in 2009. After many hearings and delays the trial got underway 23 months later, on Wednesday, September 30, 2009. It continued every court day from October 1st to October 9th, with the Plaintiffs (KVC) lawyer presenting the case on how, when and where the defamation took place. Witnesses were called to the stand to testify and were cross examined by the Defense Lawyer. On Friday, October 9th, a break in the trial was held and it was scheduled to resume on October 26, 2009.
On Wednesday, October 6th, while the trial was underway, the KVC offices were searched by the RCMP after recording equipment was discovered. The RCMP claimed the equipment was recording telephone conversations and the newly elected Council headed by Chief Councillor Deloras Pollard had contacted them and requested they investigate.
When the trial resumed on Monday, October 26th, Haisla Hereditary Chiefs attended and were beginning to give evidence on the Haisla traditional law, with Raven Chief Hemaas Wakas (Allan Williams) preparing to ask questions of elder Don Stewart, who was in the witness box. Objections were made by the KVC lawyer and Stewart was eventually released as a witness without completing his evidence. Chief Wakas then took the stand and Morris Amos began asking questions, which again were frequently objected to by the KVC lawyer. After much debate as to the admissibility of evidence regarding traditional Haisla law, Williams was allowed to provide his evidence. He remained on the witness stand until Tuesday afternoon. After his evidence the Plaintiffs case was finished and the defense began with Sandra Robinson taking the stand. In the final hour of Wednesday October 28, 2009, Haisla Elders and Hereditary Chiefs, Don Williams and Magnus Duncan each provided testimony as to the existence of the Haisla customary, traditional law and courts. One feature of the defence has been the argument that the entire affair is an internal Haisla matter and should be handled by the Haisla without the use of the Canadian Courts.
On Friday October 30, 2009, the trail was adjourned until yesterday, Tuesday, January 19, 2010. When the trial began the Court was informed that Hereditary Chief John Wilson Sr. had passed away. Arguments then took place by the KVC lawyer as to how his estate could be attached to the lawsuit and if there was a Will. It was later determined there was no Will.
Wendy Bolton was the last witness scheduled to take the stand and she was questioned on much the same way as all the others who provided evidence as they were being questioned by the KVC lawyer. The use of the word ‘Fraud’ was the main focus of the questioning. It is a serious charge. In legal terms, anyone who is accused of fraud in a public manner can have the very serious legal meaning of the word applied to sue the people who used the term. In the course of this trial it has become apparent this word is the most dangerous. It is the swear word of all swear words when it comes to defamation actions. It implies purposeful criminality. The word fraud and fraudulent was applied to Steve Wilson and the KVC Council on a letter sent to the British Columbia Utilities Commission (BCUC) hearings in October of 2007, regarding the use of a rubber signature stamp used by a KVC member to influence the BCUC.
Bolton was repeatedly asked about her involvement in the creation of this letter and her witnessing of the signatures on the letter. Her UBC background, a Bachelor of Education degree, was used to imply she had a duty to inform those signing the letter of the implications of the word ‘Fraud’. The letter was composed by Janice Switlo and signed by Haisla High Chief Jassee (Tom Robinson), Chief John Wilson Sr., Allan Williams Sr. and Harvey Grant Sr. It was pointed out Harvey Grant Sr. was no longer a Hereditary Chief as he had already passed his name down to his son, Harvey Grant Jr.
Under cross examination it was put to her she would have recognized it as a business letter, “rather than a letter from one friend to another.” Bolton agreed.
“You would understand that from your training, a business letter is different than a off the cuff letter to a friend?” the KVC lawyer asked, “At John Wilson’s you saw this as a business letter?” and again she agreed as he stated, “Lets look at this letter.”
“The October 2, 2007 letter was a fraud perpetrated on the BCUC.”
“’Pertaining to that fraudulent letter’, you saw that?” Yes, Bolton replied.
“Using the fraudulent letter dated October 2. 2007.” continued the KVC lawyer, “Janice Switlo submitted a detailed explanation of what happened after [the fraud].”
“Steve Wilson has since cut the stamp in half used to commit this fraud.” again reciting paragraphs from the letter sent to the BCUC.
“Your training,” he stated, “the repetitive use of strong words, fraud, fraudulent, they have a significant literary impact […] powerful words?”
“Yes,” replied Bolton, “wasn’t my letter.”
All of this exchange had to do with the rubber signature stamp used to apply Tom Robinsons authority to a letter sent to the BCUC by Steve Wilson and the KVC. Kevin Stewart admitted, under oath, to using the stamp in the presence of the KVC Comptroller (Rhoda Poschenrieder), Ellis Ross and Margaret Grant.
During direct evidence Bolton described how Kevin Stewart admitted to committing fraud, by using the stamp, in front of the Haisla Community during a public meeting where the crowd was chanting “Stop the Lawsuit”. She stated he was pacing back and forth, physically upset, “He said he was the one who used the stamp. Didn’t mean for it to be fraudulent, [he said] he should have gone and talked to Tom.”
On October 26th, 2007, the lawyer for the Band Council, Allan Donovan, wrote stating the stamp was used by Margaret Grant on a prior draft of the letter.
The issue of disclosure of details regarding the Independent Power Projects (IPP) was raised as well and Bolton confirmed she was unaware of any of it until the issue of the signature stamp brought the whole matter public. When the various Haisla members discovered the IPP projects were not disclosed and were owned by Wilson and other non Haisla they began to ask questions and openly accuse the KVC and Wilson of wrong doing. With the combination of the ‘fraudulent’ use of the rubber signature stamp during the electricity purchase agreement between BC Hydro and Alcan to influence their deliberations, the sudden disclosure of the Europa Creek IPP owned by Wilson and purported private agreements with Alcan to use transmission lines, the Hereditary Chiefs and various other community members became more vocal in their accusations. On October 28th the Kitamaat Village Councillors and Steve Wilson launched the lawsuit, challenging the accusations. It was acknowledged under oath by various KVC Councillors, Steve Wilson did not even inform them of his arrangements and negotiations.
When asked, how many public meetings the newly elected council has held since taking office in June 2009, Bolton’s lawyer objected to the relevance. Immediately the KVC lawyer asked the question again and Bolton’s lawyer demanded “I have an objection outstanding.” The Judge agreed stating the relevance of the question was marginal at best and the KVC lawyer moved on.
He asked Bolton about her role in the Strategic Alliance Committee (SAC), stating it had as its objective the “refusal to recognize the jurisdiction of this Court.” Bolton disagreed claiming she was never a part of the SAC. The lawyer continued suggesting she was part of a complaint to Indian and Northern Affairs Canada (INAC) about the KVC, which was nothing more than another delay tactic. Again she disagreed.
The Defence rested it’s case and the final arguments began after the lunch break. The Lawyer for the KVC began by detailing how the malicious attacks against Steve Wilson and the KVC were such that the qualified privilege and fair comment defenses were defeated. His final arguments will continue this morning and the trail is expected to conclude Thursday afternoon with time possibly being made available on Friday if needed.
Justice Punnett has stated the decision will take many weeks and won’t likely be delivered until March.
joint submissions by participants only
Comment by Janice G.A.E. Switlo on 22nd January 2010
I must clarify your reporting. I was not representing anyone as a practicing lawyer nor myself as a practicing lawyer during the hearing before the BCUC. I was a registered participant, as were the Haisla Hereditary Chiefs and, as is encouraged by the BCUC, joint submissions were filed.