I deplored the use of injunctions, enforcement clauses and contempt of court powers to deal with environmental activists in 1994, and now, twenty years later, as the Kinder Morgan protests on Burnaby Mountain heat up, my views are the same. It may be helpful to revisit what Mr. Justice Mark McEwan had to say on the subject in Regional District of Central Kootenay v. Doe, 2003 BCSC 836:
“A Writ of this kind is, in essence, a request for the court to craft a proscriptive law binding on all citizens respecting certain activities. It is not the assertion of a civil claim at all, but the adaptation of the mechanics of a civil claim for the purpose of legislating, by way of injunction, a form of ad hoc criminal law (that is, a proscriptive law having general application). This apparently has the salutary effect, from the point of view of the Attorney General’s department and the police, of relieving them of their investigative and prosecutorial functions in matters they deem politically, or otherwise, sensitive, and handing them over to the Court. The Court is then in the invidious position of having before it a litigant whose only seeming recourse is to the Court, given the inaction of the authorities. The Court also subsequently finds itself in the position of prosecuting any breaches of the injunction as “contempts”, in effect, translating what are apparently offences against public order (for which Parliament has passed criminal sanctions), into attacks on the court’s authority. I am not at all persuaded that the court should inevitably put its authority on the line in such circumstances. I will not repeat what I have said on earlier occasions on this subject except to note that the misgivings I expressed in, for instance, Slocan Forest Products Ltd. v. John Doe et al, 2000 BCSC 150, inform these reasons.
The materials before me include a Writ and Statement of Claim asserting a trespass, but seeking only an injunction and enforcement orders, not damages or costs. The form of relief sought in the motion is not stated to be interlocutory, although that is clearly what the plaintiff must be seeking.
I think this proceeding amounts to a kind of officially induced abuse of process.”