Activist Legal Info: Injunctions and Contempt of Court

***This is general legal information. It is not advice. If you have questions or concerns about your particular circumstances, get specific legal advice from a lawyer.***

What is an injunction?

An injunction is a legal remedy granted by a court to prevent interference with the legal rights of a person, a company or the government. It is an order issued by a judge of the BC Supreme Court after an application is filed by a party to a lawsuit (“the Applicant”). The injunction is meant to protect the interests of the Applicant while the lawsuit is pending, usually by requiring certain people (e.g. protestors) to not do certain things (e.g. block access a particular road).

Before an injunction is issued, the court holds a hearing. If the matter is urgent, the hearing can be held ex parte, meaning that the defendants aren’t present. The court’s key concern is whether the injunction would be “just and equitable” given the circumstances of the case. The Applicant seeking the injunction needs to prove three things:

That there is a serious legal issue to be tried in the underlying lawsuit (even if it never gets to trial!)
That they will suffer “irreparable harm” if the junction is not granted (usually, this means damage that cannot be financially compensated)
That the “balance of convenience” favors issuing the injunction (in other words, the court asks who would suffer more harm if the injunction was granted or refused)
An injunction can be issued on an interim (temporary) basis or it can be interlocutory, meaning that it will stay in force until the lawsuit is completed. Injunctions can also be permanent.

What happens after an injunction is issued?

The Applicant must make sure that people subject to the injunction know that it exists and what it says. They can post signs, hand out copies, have the injunction read out, etc. Injunctions are commonly issued against named defendants as well as “John Doe, Jane Doe and Persons Unknown”. This means that anyone – not just the named defendants – who is made aware of that injunction is required to obey it. If the injunction doesn’t include an enforcement order, the police will seek one from the court so that they have the power to enforce injunction and detain those who violate it.

What is contempt of court?

Because an injunction is an order of the court, any person who violates the terms of an injunction can be charged with contempt of court. This means that deliberately violating an injunction can lead to your arrest. For example, if police read out the injunction and order people to leave the area and you choose to remain, you could be arrested for contempt. If arrested, you should be told what the charge is, and you have the right to get advice from a lawyer and to have a bail hearing within 24 hours or as soon as practicable.

Contempt of court is a unique, common law (judge made) offence that is not found in Canada’s Criminal Code. There are two kinds of contempt – civil and criminal – and both are meant to punish “willful” and/or “deliberate” behavior that interferes with the administration of justice. For contempt to be considered criminal, there must be conduct amounting to “public defiance” which demonstrates “scorn” or “contempt” for the court and justice system.

What happens if I am charged with contempt?

If you are charged with contempt – civil or criminal – you will be tried by a judge (not a jury) and will have the opportunity to present a defence. The possible penalties for people found guilty of criminal or civil contempt are the same: fines or terms of imprisonment. Sentences for contempt arising out civil disobedience have ranged from a few hundred dollars in fines to jail terms of 6 months or more. Contempt convictions do not result in a criminal record because they are not offences under the Criminal Code but they may be entered onto other police databases. Finally, defendants need to organize. Work together to support each other and your movements, to fundraise and to keep the focus on the struggles for environmental and social justice that got you here in the first place.

More info: BCCLA Arrest Handbook (https://bccla.org/our_work/the-arrest-handbook-a-guide-to-your-rights/); Leo McGrady’s Guide to the Law of Protests in BC (http://www.mbwlaw.ca); UVic Environmental Law Centre Civil Disobedience Handbook (http://www.elc.uvic.ca/projects/1999-01/civil_disobedience.html; beware: slightly dated).

Prepared by: Irina Ceric, Lawyer, Edelmann & Co. | irina @ edelmann.ca
November 2014, Unceded Coast Salish Territories

Posted in Uncategorized.