Court injunctions in pipeline protest giving the rule of law a black eye
Once again, with the regularity of clockwork it seems, the B.C. Supreme Court is back at the old game of ordering police to do their job and of insulating politicians from accountability.
Usually, it’s to remove First Nations from some logging or mining road. This time, it’s to get rid of Camp Cloud, which was established to oppose the Kinder Morgan pipeline expansion.
Last week, B.C. Supreme Court Justice Geoffrey Gomery granted Burnaby an injunction ordering all structures, shelters and vehicles be removed from outside the company’s tank farm within 48 hours. He also ordered a sacred fire burning in the camp be extinguished.
The protesters ignored him. For more than a quarter-century, this injunction two-step has occurred with regularity as one level of government or another, or some giant resource company, uses the court to transform civil disobedience into contempt of court. The result, I think, is a black eye for the rule of law.
Some judges have railed against this situation, insisting the cops don’t need injunctions to stop law-breaking and this isn’t how it used to be done.
The legal legerdemain was scripted by the last NDP government in the late 20th century to subvert environmental and First Nations protests.
The catalyst was a dispute in Strathcona Park in 1989 when 70 environmentalists were prosecuted on Criminal Code mischief charges — 67 were acquitted and received minor sentences at great public expense, enraging the powers that be.
The trials were drawn out over 18 months, sapping official and private resources. The trials just drew further attention to the cause — the goal of the civil disobedience.
The idea of using injunctions to deal with dissent changed the rules of the game and robbed those who oppose a public policy of their desired soapbox. And it’s the court that takes the blame, rather than the politicians or corporate honchos.
These injunctions are like papal bulls. There is no maximum sentence for contempt and no time off for good behaviour.
That’s why a number of judges have grave concerns with this process, which tends to be a rubber stamp for suppressing civil disobedience and stripping citizens of the tool used so effectively by Mohandas Gandhi.
At Clayoquot Sound in 1993, more than 700 people were prosecuted for contempt rather than mischief.
The trials were concluded within eight months and almost all were convicted. The average jail sentence was three weeks, though the provincial corrections branch released some immediately.
In 1994, a labour dispute at a MacMillan Bloedel construction site in Port Alberni was handled the same way — more than 90 individuals cited for contempt.
Numerous logging, environmental and First Nations conflicts have been handled like this.
In 2011, Mayor Gregor Robertson resorted to the strategy when the Vancouver Police Department sat on its hands while Occupy Vancouver erected a rancid, unhealthy encampment at the art gallery. Instead of being ticketed and prosecuted under the Trespass Act, City Land Regulation Bylaw or the Fire Bylaw, the city did the injunction quadrille.
But not all judges like wearing the black hat.
A year after the Vancouver debacle, Supreme Court Justice Mark McEwan railed against this process when told of the RCMP’s refusal to enforce both the Criminal Code and an injunction to end a five-month blockade of an office building in Hazelton.
He scoffed at their fears about potential violence — like a cop refusing to break up a Saturday night brawl — calling the response “completely inappropriate.”
“You are saying that as long as you assemble enough people in this country you can get away with anything,” McEwan complained. “That cannot be. That cannot be. This is a trespass at a minimum of premises by people who have no right to be there, as far as I can see.
“And so it starts with why do you even bother with an injunction? There’s the general law that obliges the police to enforce the law. Why don’t they do that?”
He said an injunction in these kinds of cases wasn’t even needed, and noted that a blockade of the railway line in White Rock was removed within a day. Other judges have agreed. The late justice Josiah Wood condemned the practice, explaining: “It is only because the obligations of the office of the attorney general have not been discharged, in connection with mass public protests which are designed to interfere with the exercise of private rights, that in recent years the courts have been drawn into a role which they were never intended to perform, and for which they are ill-suited.”
Wood maintained these cases don’t involve “a legal question, but a question of social policy.”
“It appears to be taken for granted by the authorities that the court’s civil jurisdiction is available to the public as a substitute for criminal law enforcement,” he said. “This can only be done, however, by characterizing as a dispute between ‘parties’ what is really nothing of the kind. ... acts of civil disobedience are not, in essence, civil disputes between individuals.”
Retired justice Ian Pitfield insisted the justification for this policy was a fraud: “The analysis that applies in relation to private disputes has been applied in cases of civil disobedience, notwithstanding that the true nature of the debate is a contest between members of the public on the one hand and policy-makers on the other.”
It’s the politicians and their policies that should be under scrutiny — not the ability of the Supreme Court to use contempt orders to quash dissent by forcing protesters to kowtow and douse their sacred fire.
Insulating politicians from accountability while rerouting protesters from the forum they seek debases the only currency the court possesses; respect.
The Crown has abdicated its law enforcement responsibilities preventing these citizens from spotlighting their martyrdom in a criminal trial. Those who believe in civil society should be concerned.