Ian Mulgrew: Judge robbed protesters of right to civil disobedience

BY IAN MULGREW, VANCOUVER SUN NOVEMBER 24, 2014 9:13 AM

By issuing an injuction on the Burnaby Mountain pipeline dispute, a B.C. judge has robbed protesters of their right to civil disobedience, fettered their defences and sullied the court, writes Ian Mulgrew.
Photograph by: Arlen Redekop , PNG
The B.C. Supreme Court smeared its robes with political tar sand by issuing the injunction in the Burnaby Mountain pipeline dispute.

In a bit of legal sleight-of-hand, Associate Chief Justice Austin Cullen robbed protesters of their right to civil disobedience, fettered their defences and sullied the court.

He ought to have known better: Members of his own bench have railed for years against this use of injunctions as a substitute for police doing their job.

Since the NDP government first adopted this policy to subvert environmental and First Nations civil disobedience, smart judges have slammed it.

First of all, civil contempt isn’t a criminal charge so the charged protesters have a restricted number of defences but they’re facing stiffer punishment.

They cannot argue the injunction violated their constitutional rights, for instance, because that’s considered an impermissible “collateral attack” on the court order.

These injunctions are like papal bulls.

In the 1990s the province obtained one by materially misleading a judge, but those who were charged with contempt in the interim were nonetheless guilty.

There is no maximum sentence for contempt and no time off for good behaviour.

(Though in the Clayoquot trials, provincial corrections nonetheless released some inmates immediately after they began to serve their sentences.)

That’s why judges have grave concerns with this little two-step quadrille — get an injunction, proceed under the contempt law — formalized in 1990 under the NDP.

Here’s the background: in 1989, 70 individuals were prosecuted on mischief charges relating to protests against resource extraction in Strathcona Park. Notwithstanding the disruptions and damage they caused, 67 were acquitted, only three were convicted and received minor sentences.

But the trials were drawn out over a period of 18 months, sapping official and private resources, and drawing further attention to the issue.

Compare this to what happened at Clayoquot Sound in 1993 where more than 700 people were prosecuted for criminal contempt.

The trials were concluded within eight months and almost all were convicted. The average jail sentence was three weeks.

In 1994, a labour dispute at a MacMillan Bloedel construction site in Port Alberni resulted in the conviction of more than 90 individuals for contempt. On average, their trials lasted one or two days. Sentences ranged between 10 and 14 days in jail.

Here’s what the late B.C. Court of Appeal Justice Josiah Wood had to say about this policy:

“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.”

Retired B.C. Supreme Court Justice Ian Pitfield similarly complained that the entire excuse for this policy offered by the government 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.”

Over the last quarter century, B.C. Supreme Court Justice Mark McEwan has been the most strident denouncing what he considered in some cases to be “a kind of officially induced abuse of process.”

In the 2000 Slocan dispute over “clean water,” he underscored the late Justice Wood’s point and said these cases don’t involve “a legal question, but a question of social policy.”

He added: “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.

“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.”

Justice Cullen should be embarrassed by his Nov. 14 injunction.

Justice Minister Suzanne Anton’s inaction should be under scrutiny — not the ability of the Supreme Court to quash dissent and force protesters to kowtow.

The Crown has abdicated its law enforcement responsibilities to prevent these citizens from spotlighting their martyrdom in a criminal trial.

There are criminal laws in place to boot those who cross the line from the Burnaby Mountain Conservation Area.

Justice Cullen should have told Trans Mountain to do what the rest of us have to do — phone the cops.

If they won’t act and the Crown refuses to lay charges, the government would be forced to accept the political consequences.

Removing this responsibility from elected representatives by allowing Trans Mountain to seek an injunction where the criminal code already provides a remedy does nothing but debase the only currency the court possesses — respect.

Instead of being a disinterested forum for deciding important issues, Justice Cullen has turned the court into a tool for Big Oil and Bad Government.

imulgrew@vancouversun.com

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