Summary of Mr. Justice Thompsons Reasons for Judg

Issued at Nanaimo, BC, September 28, 2021
Notes compiled by Ben Isitt

1. Mr. Justice Thompson exercises his discretion in deciding against extending the injunction requested by Teal Cedar Products Ltd. (paras 2 and 89)
2. Thompson accepts Mr. Justice Verhoeven’s proposition that it is for the legislature and government, rather than the court, to decide on matters of public policy such as climate change – consistent with the doctrine of the separation of powers and “constitutional constraints on judicial powers.” Thompson therefore refuses to consider “the fact that the protesters are moral and ethical citizens endeavouring to ward off impending destruction of a rare and irreplaceable ecosystem in the context of an existential environmental and climatological crisis.” (paras 31 and 65)
3. Thompson cites favourably from Mr. Justice Wood’s dissenting reasons for judgement in Greenpeace Canada v. MacMillan Bloedel Ltd., 1994 BCCA 943, para 168, to the effect that the courts are “ill-suited” to legislate ad hoc criminal laws in response to protests under the guise of injunctions, and that the court’s jurisdiction to issue injunctions should be exercised “sparingly” and as a “last resort”:
“The inherent jurisdiction of the Supreme Court to punish for contempt of court is essential to the preservation of... the due administration of justice. It is and always has been a jurisdiction to be exercised sparingly and as a last resort. It was never intended to be used to preserve law and order on our streets, or in our forests, any more than equity was ever intended to be used as an instrument of crowd control.” (para 34)
4. Thompson finds that notwithstanding the duty of the Attorney General to enforce the criminal law, a civil party may seek an injunction to restrain conduct that appears to be criminal in nature. (para 37, citing favourably from R. v. CBC, 2018 SCC 5, at para 26)
5. Thompson finds that a chambers judge is not obligated to issue an injunction to restrain conduct that appears to be criminal in nature. (para 38)
6. Thompson states that the reputational risk to the court’s legitimacy and effectiveness – by being “pressed to the front line” in a dispute between citizens on one side and the government and a logging company on the other – is a legitimate factor for the court to consider when weighing the public interest in the RJR-MacDonald test to determine whether an injunction is reasonable and just in all the circumstances. (paras 43 and 44, citing favourably from Justice Williamson in Alliford Bay Logging [Nanaimo] Ltd. v Mychajlowycz, 2001 BCSC 636, at paras 4, 8, 14, 26 and 27)
7. Thompson suggests that the courts have often looked to whether the applicant has shown that an “enforcement gap” exists – the absence of an alternative remedy – in weighing two apparently conflicting public interests at the third stage of the RJR-Macdonald test: (1) the public interest in relieving a private party facing illegal interference with its lawful operations, and (2) the public interest in upholding the reputation of the court and the rule of law during moments of societal controversy. (paras 28, 38 and 45, citing Greenpeace Canada v. MacMillan Bloedel Ltd., 1994 BCCA 943, at para 152; Alliford Bay Logging [Nanaimo] Ltd. v Mychajlowycz, 2001 BCSC 636, at paras 14; and Cermaq Canada Ltd. v. Stewart, 2017 BCSC 2526, at para 70)
8. While Thompson finds that an enforcement gap may have existed in April 2021, when Justice Verhoeven issued the injunction, he suggests that “the escalation in illegality” in the conduct of some protesters has removed whatever gap existed, citing in particular the digging of deep trenches in roads and the erection of high tripods, which pose elevated risks to life and property. (paras 51 and 54)
9. Thompson concludes that there is currently no enforcement gap that would justify providing Teal Cedar with a civil remedy in the form of an injunction – citing a letter from the BC Crown Prosecution Service’s director of criminal appeals and special prosecutions regarding its approach to prosecutions, the Prosecution Service’s policy CIV 1 on “Civil Disobedience and Contempt of Related Court Orders”, evidence of escalation of illegal activity and tension in TFL 46, and Criminal Code provisions including the offences of intimidation and mischief at CCC ss. 423 and 430. (paras 58 and 60)
10. Thompson concludes that since Justice Verhoeven issued the injunction in April 2021, “competing equities” have emerged and “the context has changed to the extent that considerations that continue to favour an injunction are now outweighed by a combination of countervailing public interest considerations.” (para 64)
11. Among these “countervailing public interests,” Thompson places the greatest emphasis on the reputational risk to the court, and by extension to the rule of law, of having the court expend its “reputational capital” “in the front line of the dispute.” (para 67)
(At the time that Thompson issued his reasons for judgement on September 28, 2021, the Fairy Creek old-growth logging dispute had become the largest episode of mass civil disobedience resulting in arrests in Canadian history, with a total of 1101 individuals arrested in TFL 46 in the preceding four and half months, including 865 individuals arrested for breaching Justice Verhoeven’s injunction order.)
12. Thompson identifies “the strong public interest in keeping the Court away from the front line of this dispute,” in refusing the logging company’s request to extend the injunction and the RCMP’s request for enhanced enforcement powers, including “greater search powers and expansive exclusion zones.” (paras 66 and 67)
13. Thompson identifies additional public interests as relevant factors to be weighed, including public access to roads in TFL 46. He suggests that the RCMP practice of blockading roads and “substantially impairing public road access” impacts the weighing of this public interest in determining whether or not to issue an injunction. (para 63)
14. Thompson rejects the option of “ramping up enforcement powers” with a court order that would “keep at bay protesters who might (or might not) be inclined to breach the injunction,” citing “the accompanying impact on civil liberties” and the dangers of “legislating, by way of injunction, a form of ad hoc criminal law.” (para 67, citing favourably from Justice McEwan in Central Kootenay (Regional District) v. Doe, 2003 BCSC 836, at para 7)
15. Thompson decides in favour of an alternate approach: “to get the Court out from the middle of this dispute, and let the government and police do what they will with the tools at their disposal – patrolling the roads and other lawful preventative policing measures, mobilization of the criminal law, and use of provincial laws such as the Forest and Range Practices Act.” He expresses optimism that “criminal law remedies will be employed,” in light of “recent escalation of tension and obstructive behaviour.” (paras 68 and 87)
16. Thompson suggests that further public interest considerations arise out of the manner of RCMP enforcement of Justice Verhoeven’s order, concluding that “the Court’s reputation has been depreciated by the manner in which the order has been enforced.” (paras 69 and 76)
17. Thompson rejects the submission of the Attorney General of Canada (on behalf of the RCMP) that he should await the outcome of police complaint procedures (“which could take years”) before making findings based on evidence of police or protester misconduct, pointing out that interlocutory injunction proceedings inevitably rely on imperfect, incomplete evidence that has not been tested by cross-examination. (para 72)
18. Thompson suggests that most interactions between police and protesters have been “respectful” and nearly all have been non-violent, describing the protesters as “respectful, intelligent, and peaceable in nature”, “disciplined and patient adherents to standards of non-violent disobedience”: “They are good citizens in the important sense that they care about the common good.” (para 73)
19. Thompson suggests that despite protesters’ concerns over use of excessive force by police, that “a reasonable level of force is necessary to effect an arrest and removal”, and that “on the totality of evidence,” the police have “generally used reasonable force”, with some “disquieting lapses in reasonable crowd control,” such as removing individuals’ masks to apply pepper spray and destruction of personal property such as a guitar. (paras 74 and 75)
20. Thompson notes that the problem with these “occasional” incidents of “police excess” is that they are “widely broadcast” and “seen as the methods by which this Court’s order is being enforced” – a problem exacerbated by “constant police messaging” emphasizing that they are enforcing a court order. Nonetheless, Thompson suggests that “isolated instances of widely broadcast misconduct by front-line police officers” are not sufficient on their own “to meaningfully tip the scales” against granting an injunction. (paras 75, 76 and 77)
21. Thompson reiterates his concerns (published in his reasons for judgement on August 9, 2021, in Teal Cedar Products Ltd. v. Rainforest Flying Squad, 2021 BCSC 1554), relating to the use of expansive exclusion zones and checkpoints, “blockading” public access in TFL 46. Thompson repeats his conclusions that these methods are “unlawful” and that “the infringements of civil liberties” are “unjustified, substantial, and serious”, discussing the connection to the public interest: “It goes without saying that unlawful measures imposed by those given authority to enforce the Court’s order does no credit to the rule of law or the Court’s reputation, especially when those measures trench on civil liberties in a substantial way.” (para 78)
22. Thompson finds that the RCMP “continue to enforce exclusion zones that are more expansive than the law permits” and that “the media’s right of access continues to be improperly constrained.” (para 78)
23. Finally, Thompson suggests that “other command decisions” made by the RCMP “impact adversely on the Court’s reputation,” including an order to front-line officers to remove identification patches on their uniforms, and the RCMP’s refusal to enforce a “directive to its members not to wear ‘thin blue line’ patches on their uniforms.” Thompson describes the justification for these command decisions provided by counsel for the Attorney General of Canada (on behalf of the RCMP) as “not persuasive”. (paras 79 to 86)
24. Thompson notes a “visceral reaction” against police officers performing duties without identification, and notes several “good reasons” for insisting that police be “precisely identifiable at least by regimental number”, including deterring bad conduct from officers who “might be tempted to stray from propriety” and removing obstacles to citizens pursuing complaints against police. (para 80)
25. Regarding “thin blue line” patches, Thompson comments on the “different meanings” of this symbol, noting that one RCMP officer of Indigenous ancestry considered the patches to be equivalent to a “mourning ribbon” for officers who had died in service, while also noting that the patches “deeply offend some citizens,” including Indigenous people who see the patches as “symbolic of the history of RCMP involvement in enforcing policies that brought about the genocide of Indigenous people.” Thompson states that he is certain that RCMP commanders know that the patches are seen as “provocative and insensitive by some of the citizens they serve.” (para 82)
26. While stating that he has “no jurisdiction or inclination” to make orders about RCMP attire or labour relations, Thompson notes that “the wearing of this symbol reflects on the Court” when the officers are enforcing a court order, and that this “regrettable RCMP decision” is a “relevant public interest consideration” for him to consider in weighing whether to extend the injunction or grant enhanced enforcement powers. (para 86)
27. Thompson concludes that RCMP enforcement of Justice Verhoeven’s order of April 1, 2021 has resulted in “serious and substantial infringement of civil liberties, including impairment of freedom of the press to a marked degree”, carried out by police officers “rendered anonymous to protesters” many of whom are wearing “thin-blue line” patches, adding to the “already substantial risk to the Court’s reputation whenever an injunction pulls the Court into this type of dispute between citizens and the government.” (para 88)
28. Finally, Thompson concludes that the balance of convenience does not favour extending the injunction. Factors weighing in favour of extension (such as the risk to Teal Cedar’s business interests and to the rule of law) do not outweigh the public interest “in protecting the Court from the risk of further depreciation of its reputation.” Thompson concludes that it is not equitable and just in all the circumstances to make the order sought by Teal Cedar, and therefore declines to extend the injunction, with his interim order expiring at 4:00 pm on September 28, 2021. (paras 87 and 89)
Source: Teal Cedar Products Ltd. v. Rainforest Flying Squad, 2021 BCSC 1903
https://www.bccourts.ca/jdb-txt/sc/21/19/2021BCSC1903.htm

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