As dozens of protesters see their lives upended as a result of being arrested for civil contempt, it's worth turning attention to how these orders are issued.
In 1999, Amir Attaran, now an associate professor of law at the University of Ottawa, wrote a paper in the UBC Law Review offering an alternative to these "John Doe, Jane Doe and persons unknown" injunctions. [Click downloads above to read the article.]
These court orders often inflict greater penalties on protesters than Criminal Code charges for mischief, trespassing, or other offences connected to public protests.
Attaran wrote that an attorney general's ministry document dating back to 1990 explained the Crown's policy: "On occasion those involved in public demonstrations come into conflict with the law and obstruct or interfere with the rights of others. The use of criminal sanctions in these situations is generally not appropriate."
Instead, the policy's guidelines stated that where "a select group of individuals" are affected, "those individuals should generally be encouraged to apply for a civil injunction to stop the disobedience".
"In the event the civil disobedience continues after an injunction is granted the party obtaining the injunction should be encouraged to proceed with civil contempt proceedings in the court in which the injunction was obtained," the document stated.
Kinder Morgan wins approval to nail protesters
This is precisely the road map that Kinder Morgan's subsidiary, Trans Mountain Pipeline ULC, has taken. It applied for an injunction against five people as well as "John Doe, Jane Doe and persons unknown" to prevent them entering an area on Burnaby Mountain.
In the meantime, a company contracted by Kinder Morgan is conducting surveying work along a "preferred corridor" for a pipeline. This will involve cutting down trees, conducting soil surveys, and drilling to examine groundwater conditions.
Associate Chief Justice Austin Cullen granted the company's application on November 14, concluding that cutting down trees "does not cause irreparable harm" to the defendants.
This means that anyone who violates the civil court order is subject to extremely harsh penalties, including lengthy imprisonment and large fines.
RCMP avoids relying on Criminal Code
Attaran noted that police would not enforce the Criminal Code during these types of protests "except where there are 'significant acts of violence or property damage' ".
Moreover, "police will not arrest contemnors, except where a subsequent enforcement order of the Court directs them to do so."
"Taken together, the Attorney General and RCMP policies create a regime in which public authorities foreclose the use of the Criminal Code offences relevant to civil disobedience and blockading—such as mischief, intimidation, breach of the peace, contempt, and so on—leaving only remedies in private law," Attaran wrote. "To put it politely, this is a perverse way to administer justice, since the definitive feature of civil disobedience is that it is protest coupled with the wilful violation of law."
As Attaran highlighted, protesters are willing to be "criminally stigmatized" to make their point, but the attorney general and the RCMP won't allow this to happen.
"The problem is really that the Crown has abdicated its law enforcement duties with these policies," Attaran wrote. "And that is exactly where an intelligent legal attack should be directed."
Judicial review is one option
He suggested that the tool of mandamus is available for citizens to use against the Crown and the police. This involves obtaining a court order under the Judicial Review Procedure Act to force the attorney general and the Mounties to uphold the Criminal Code.
"Both England and Australia have been more successful than British Columbia in making use of mandamus against the police in avoiding the anti-protest injunction habit," Attaran acknowledged in his paper. "Cases there affirm that the police are ordinarily afforded a wide discretion in carrying out their statutory and common law duties, but this discretion remains susceptible to mandamus in extraordinary cases."
He noted that the leading case, R. v. Ex Parte Blackburn Metropolitan Police Commissioner (No. 1) in the English Court of Appeal, has been adopted in Canadian courts. In this instance, a Mr. Blackburn obtained a court order to force police to enforce gambling laws in London's clubs.
In addition, Attaran argued that the attorney general and police are "susceptible" to judicial review.
"In British Columbia, the common law duties of the police are codified, thus making possible an application for an order in the nature of mandamus pursuant to the Judicial Review Procedure Act," Attaran wrote.
Judicial transparency is lacking in Canada
In the meantime, Canada's judges don't face the same level of transparency as their peers in the United States. This has the effect of undermining public confidence in the courts.
Not only are there no confirmation hearings in Canada, there is also no requirement for a judge to publicly disclose assets.
This issue was dealt with at length in former law-school dean Philip Slayton's 2011 book, Mighty Judgment: How the Supreme Court of Canada Rules Your Life.
For example, Slayton wrote, U.S. Chief Justice John Roberts and his wife had investments in 57 publicly traded companies in 2008, including a significant number of Microsoft shares. In India, Slayton added, Supreme Court justices must disclose their assets on the court's website.
The public has no knowledge of the investment portfolio of Chief Justice Beverley McLachlin (or B.C. Supreme Court Associate Chief Justice Cullen).
"Supreme Court of Canada judges (all judges, for that matter) should be required to make full, annual, public disclosure of their assets and liabilities," Slayton declared in his book.
He added that he doesn't care about what cars they drive or which jewellery they own.
"But we do care very much, or should, about how much money they've got, where it came from, and how it's invested," he wrote. "The Canadian public is entitled to have this information about very senior public servants as part of a broad concept of good and transparent governance. With it, we would have a better understanding of who our judges are. Our confidence in what they do would be increased. Rumours would be easily dispelled."