In the last few weeks, Vancouver was treated to the next chapter in the Environmental Protestor vs. Primary Resource Extraction Company story. I am referring, of course, to the protests on Burnaby Mountain against Kinder Morgan conducting geotechnical and engineering surveys in order to determine whether or not they can build a new pipeline through the mountain.
This brief clash brought with it many unexpected twists and turns, memorable figures, hilarious hashtags, propaganda, and a dash of hubris. We watched events unfold with glee as people gathered, faces and speeches were made, and injunctions were applied for in court. Kinder Morgan brightened our day when they cried to the court that the faces of protestors were assaulting their employees. The Twitter campaign #KMFace or #kindermorganface was good for more than a few chuckles, in what is otherwise the serious business of protesting and enforcing rights.
Shortly thereafter, more than a hundred protestors went to Burnaby Mountain to be arrested for crossing a police line. Visions of Lynne Quarmby, molecular biology professor at SFU, triumphantly getting arrested spread through the media like wildfire. Her words prior to her arrest seared into our minds.
“At the end of the day when you’re dealing with unjust law and abusive power, the last resource we have is civil disobedience. It’s done in full respect of the rule of law. But it’s also done with serious responsibility with being a citizen in this country,” she said, as cheers erupted.
“So now, I’m going to turn around and walk up this hill—and be the best citizen I can be.”
Then came the plot twist that no one expected at the outset—Kinder Morgan applied for an extension of their injunction, but in the course of doing so, admitted that they had provided the incorrect GPS coordinates for the first injunction. In short the protestors were prohibited from crossing a line that ended up being nowhere near the work site they were protesting. So, in crossing the line they crossed, it is arguable whether or not they were violating the injunction. All civil contempt charges for arrested protestors were thrown out.
And for those not hanging onto every word of the Burnaby Mountain protest story, Kinder Morgan was not granted an extension of their injunction because they had already reported to the National Energy Board that they had the information they needed.
But this is a legal column and not a gossip mag, so let’s get down to business. What was Lynne Quarmby talking about? Is civil disobedience ever done with full respect of the rule of law?
So that we’re completely clear, the rule of law is a cornerstone of democracy. It is a principle that means that everyone, including lawmakers, is governed by predetermined laws, rather than arbitrary decisions by government officials on an ad hoc basis. We elect our representatives to government to make laws. Everyone has a say in who is elected (once they are in power, we do not have much say over every little decision they make, however).
The courts are the arm of government responsible for applying the law and interpreting the law.
In many of the cases dealing with civil disobedience, there has been an injunction. At the risk of oversimplification, an injunction is a court order, which prohibits one party from interfering with another party’s lawful rights. The key words here are “court order”.
Defying a court order can bring a person into civil contempt or criminal contempt of court. There is a large difference between civil contempt and criminal contempt. Civil contempt does not threaten peace, order, and applying the law fairly. Conduct that causes a situation to become violent will be considered criminal contempt. Even peaceful protest can cross this fine line.
To understand how the courts view civil disobedience that verges on criminal contempt, here is a quote from a case called R. v. Brydges decided in 1989:
Many of you apologized for any embarrassment or inconvenience that your actions may have caused the court. Your conduct does not embarrass this court, it challenges its very existence. The breach of an order of this court is not a crime against the judge who issued it, it is an attack upon the institution itself -- that institution which alone stands between the rule of law and anarchy. The inherent jurisdiction of this court to punish for contempt does not exist for the purpose of preserving judicial vanity. It is the sole device by which the court can ensure its own continued effectiveness in the struggle to preserve the rule of law. Thus it is that the more serious the contempt the more serious the threat to the rule of law. In the whole spectrum of conduct classified as contemptuous, there can be none more sinister or more threatening than that of organized, large scale, deliberate defiance of an order of the court.
Lynne Quarmby said that she took her actions in full respect of the rule of law. She said that she was protesting the regulations and law brought in under an omnibus 2012 bill which stripped environmental regulation. Prior to her arrest she stated that the law was unethical during a time that climate change is the biggest problem facing humanity. After her arrest, Quarmby was prepared to accept the consequences of her action.
Is Quarmby an anarchist? Was she tearing at the very fabric of our society and the rule of law with her flagrant breaching of a court order? Is there room in democracy for her actions?
I think it is safe to say the topic of civil disobedience is not as black and white as the courts will make it. Given the role of the courts in our society, they must penalize civil disobedience. Civil disobedience is usually done to make a philosophical and political point. Without upstanding citizens receiving sanctions for their civil disobedience, no one would sit up and listen. No one would pay attention.
Civil disobedience cannot be a legal principle or a defence to a willful breach of the law because it is the exact opposite of what the rule of law proposes. It is by disrespecting the rule of law that those practicing civil disobedience get their power. For there is power in civil disobedience to change hearts and minds, to rally people to a cause, which can then change governments or influence large corporations. It’s in that space, outside of the courtrooms, where civil disobedience takes it’s place in our democracy.
Being “the best citizen you can be” does not necessarily mean that at all times you must “have full respect of the rule of law”. Being a good citizen in a democratic country can include disrespecting its institutions if done peacefully and pointedly.