Remembering a Great Legal Warrior

gt;Highly respected defence lawyer David Gibbons died on August 27, 2004. Gibbons had worked some of the most famous cases in Canada, including the Air India bombing and Glen Clark case, but he also served Greenpeace during its first decade. He defended them in court, guided their organizational development, and mediated internal conflicts to pave the way for an international organization formed in 1979. He was known for legal ingenuity and a notorious sense of humour.

On Sept. 21, a concert at the Commodore in Vancouver will celebrate the Greenpeace legacy. Musicians include Chilliwack, who played at the first Greenpeace benefit in 1971, Paul Horn, Ann Mortifee, Jim Byrnes, Zubot & Dawson, Shari Ulrich, Joe Keithley, and special guests Leonard George, Mayor Larry Campbell, Bob Hunter, Dorothy Stowe, Paul Spong, Tzeporah Berman, and others.

gt;In the summer of 1978, in the tranquil town of Corner Brook, Newfoundland, Patrick Moore, Peter Ballem, and I faced criminal charges for our alleged misdeeds during the spring seal campaign.

gt;We had been indicted for loitering in the Department of Fisheries office in Newfoundland after being stonewalled by department public relations officer Charles Friend, and with violating the notorious Seal Protection Act, which made it a criminal offence to protect a seal. Lawyer Ballem had been charged with "aiding and abetting" our crimes. This apparent attempt to intimidate a lawyer infuriated the BC Law Society. Greenpeace stalwart Davie Gibbons led the defence team that included his fiancé, Janice Dillon, from Ottawa, colleague Tom Heintzman from Toronto, and Randy Earl from Newfoundland.

gt;The fun started right away when Newfoundland Law Society boss Bob Wells attempted to deny our lawyers the right to practise in Newfoundland. Terse telegrams from the BC and Ontario Law Societies, copied to Pierre Trudeau, removed the impasse and we proceeded to argue the case.

gt;Winning wasn't the point

gt;Over breakfast, on the first morning, Gibbons explained the loitering case: "You see, Section 171(1)(c) of the Criminal Code of Canada states that anyone who loiters in a public place and in any way obstructs persons who are there is guilty of an offence."

gt;"So are we going to do jail time, Davie?" asked Moore.

gt;"Well, the thing is," said Gibbons, "if Charles Friend had the right to order you out of the fisheries office, it's not a public place, is it? It's a private place. You can't technically loiter in a private place.

gt;"Don't win it too fast," Moore said.

gt;"Oh, no, we have to go through their whole case," said Janice Dillon, who did the work of digging into the laws and precedents for the trial. Winning the case was not the point of our mission. The trivial charges reflected vital principles. We treated the trial as a campaign, an opportunity to expose the Seal Protection Act as an abuse of power.

gt;Before Judge Gordon Seabright, the Crown called Charles Friend as its first witness. He identified himself as a "public relations officer," and said he was "just following orders," and "trying to help Greenpeace." Under cross-examination by Gibbons, he revealed that his responsibilities in Newfoundland were to "handle the news media."

gt;"Do you have the authority to issue permits, or to set or interpret fisheries policy?" asked Gibbons.

gt;"No."

gt;"From where do you derive your authority to demand that citizens of Canada remove themselves from a fisheries office?"

gt;"I was busy," said the rattled p.r. man.

gt;Judge Seabright broke in softly: "You are skirting the issue, Mr. Friend."

gt;Obfuscation and avoidance

gt;When Moore, Ballem, and I took the stand, we told our stories and faced cross-examination by prosecutor Gerard Martin. Ballem and I had kept extensive notes of every encounter with the government officials. Ballem had written out an agenda for the meeting with Friend and his promise to issue us permits to visit the icefloes. These notes helped our case, as we supplied details that the bureaucrats could not match. When prosecutor Martin interrupted Moore, Judge Seabright admonished him, allowing Moore to describe the pattern of obfuscation and avoidance that we faced in St. Anthony.

gt;Gibbons pointed out that Charles Friend had "set up the accused. He invited them into his office, refused to meet with them, left, and then had them arrested." However, the climax of the first trial occurred when Gibbons told the court: "Your Honour, ten minutes elapsed from the time Mr. Friend left the room, and before the RCMP arrived. The accused hardly had time to work up a good loiter. We've done some research and, if I may, I'd like to point out that if my clients are convicted, this will be a world's record, the shortest loiter in the history of British or Canadian jurisprudence."

gt;The defence table cracked up, the prosecutors bristled, journalists scribbled in their notebooks, and even Judge Seabright could not hide his mirth.

gt;The next morning, July 14, Seabright delivered his ruling: "I find the evidence before me no proof of either loitering or obstruction, and therefore I dismiss this case."

gt;"There goes our world record," shrugged Moore.

gt;Never on Sunday

gt;During the break between trials, we drove to the famous Gros Morne cliffs, a frozen coastline ten months of the year, but now a wonderland of wildflowers overlooking blue Bonne Bay. We ate lunch among the buttercups and bellflowers and watched thick-billed puffins on the cliffs. While researching our case, Dillon and Gibbons had discovered a section in the Revised Statutes of Newfoundland, Section 15, Chapter 347 of the Seal Fisheries Act: it was against the law to kill seals on Sunday. "Did any of those guys ever kill seals on Sunday?" she asked.

gt;"Sure," said Moore. "They killed seals on Sunday, March 12, the first day we were on the ice. In fact, John Lundrigan, the Newfie cabinet minister, killed seals that day. He was out there getting his mug in front of the cameras and telling how he had just killed 100 seals. He had blood all over him. There are photographs. Doug Ball at CP has 'em."

gt;The lawyers smiled at each other. Moore had a wide grin on his face. "Lawyers of the Rainbow," he said.

gt;On Monday morning, Moore skipped breakfast, walked to the magistrate's office, and swore out charges against Progressive Conservative member of the Newfoundland legislature for Grand Falls, John Lundrigan, and Captain Morrissey Johnson, skipper of the vessel Lady Johnson, for sealing on Sunday.

gt;Fear of Gibbons

gt;After losing the first round, the new prosecutor, Clyde Wells, the son of Newfoundland Law Society head Bob Wells, refused to allow Gibbons the right to represent us. To snub a lawyer from another Canadian province was no small matter. However, Judge Seabright was bound by the law and explained that Gibbons could not act without an invitation from the Newfoundland Law Society. "I regret the action," he said as he glared at Clyde Wells, who sank in his seat. Everyone knew that the Newfoundland Law Society had just embarrassed itself. We counted it as a victory, another exposure of government scheming to shore up its patchwork Seal Protection Act.

gt;The Lawyers of the Rainbow never faltered. Randy Earl, the Newfoundlander, took over our case. Dillon, Gibbons, and Heintzman supplied research. The lawyers seemed to be having more fun than we were.

gt;Journalists arrived from Corner Brook, Toronto, and Ottawa. Judge Seabright's children sat in the courtroom, wearing Greenpeace buttons.

gt;Question of rage

gt;Lawyer Peter Ballem had never before been charged with a criminal offence. During cross-examination, Wells characterized Ballem as a radical troublemaker using his lawyer status as cover. "The cause I'm dedicated to, Mr. Wells," said Ballem, "is that every citizen of Canada gets a fair shake."

gt;Charles Friend had revealed to Wells that Ballem had once threatened him in rage. Wells paused as if he were done, then turned and offhandedly gestured to Ballem.

gt;"Here it comes," whispered Gibbons behind the defence table.

gt;"Mr. Ballem," drawled Wells, "did you ever threaten Mr. Friend?"

gt;Ballem savoured the moment. "Well," he said slowly, "there were rumours circulating that the fisheries officers might confiscate our film, which we assumed would be consistent with their attempts to silence and obstruct us, and to keep these images from the public. Now, I believe I might have told Friend that if he tried this, I'd have his nuts." The courtroom remained silent except for the scratching of pencil lead. Ballem grinned. "Now, of course," said Ballem, "I didn't mean that literally."

gt;The courtroom broke into laughter, and the ambush fizzled.

gt;Judge Seabright dismissed the case against Ballem, but ruled that Moore "did minimally interfere with the seal hunt" and sentenced him to a $200 fine, like an overblown traffic ticket. We filed an appeal, which the Minister of Justice ignored, and the fine was never paid.

gt;However, the "sealing on Sunday" charges remained pending against the Newfoundland cabinet minister and the sealing ship captain.