2006 BCCA 156 Hayes Forest Services Limited v. KrawczykCOURT OF APPEAL FOR 
BRITISH COLUMBIA
      Citation:Hayes Forest Services Limited v. Krawczyk,
       2006 BCCA 156

Date: 20060330


Docket:  CA031235
Between:
Hayes Forest Services Limited
Respondent
(Plaintiff)
And
Betty Krawczyk
Appellant
(Defendant)
And
Forest Action Network, Women in the Woods, BC Pathways, 
Jenna Bradley, Ingmar Lee, John Doe #1, 
John Doe #2, John Doe #3, John Doe #4, John Doe #5, 
Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4 Jane Doe #5
Defendants
 


      Before:The Honourable Madam Justice Rowles
      The Honourable Madam Justice Saunders
      The Honourable Mr. Justice Lowry

 
      A.C. WardCounsel for the Appellant 
      P.W. Ewart Q.C.Counsel for the Respondent
      Place and Date of Hearing:Vancouver, British Columbia 
      7 September 2005
      Place and Date of Judgment:Vancouver, British Columbia 
      30 March 2006

 
      Written Reasons by:
      The Honourable Madam Justice Rowles
      Concurred in by:
      The Honourable Madam Justice Saunders
      The Honourable Mr. Justice Lowry

 
Reasons for Judgment of the Honourable Madam Justice Rowles:
I.          Introduction
[1]                        The appellant was arrested on 8 May 2003 when she 
refused to comply with an ex parte interlocutory injunction that had been 
granted by Madam Justice Beames on 5 May 2003 in a civil action brought by Hayes 
Forest Services Limited (“Hayes”).  It was alleged that the appellant and others 
were intentionally interfering with the contractual or economic relations of 
Hayes in carrying out logging services under a contract.
[2]                On 19 September 2003, Mr. Justice Harvey found the appellant 
to have been in contempt of the order and that the contempt was criminal in 
nature.  The reasons for judgment of Mr. Justice Harvey are reported at (2003), 
18 B.C.L.R. (4th) 317 and may be found at 2003 BCSC 1444 and [2003] B.C.J. No. 
2184.  
[3]                The error in judgment put forward by the appellant on her 
appeal from the order finding her in criminal contempt is that the trial judge:
. . . erred in finding that the procedure by which the Appellant was arrested, 
“charged”, detained in custody and tried did not violate her fundamental rights 
and freedoms as guaranteed by the Canadian Charter of Rights and Freedoms.
[4]                The appellant argues that s. 7 of the Charter applies to 
contempt proceedings and submits that United Nurses of Alberta v. Alberta 
(Attorney General), [1992] 1 S.C.R. 901, 71 C.C.C. (3d) 225 and R. v. Cohn 
(1984), 48 O.R. (2d) 65, 15 C.C.C. (3d) 150 (Ont. C.A.), leave to appeal to 
S.C.C. refused, [1985] 1 S.C.R. vii, provide support for that proposition.  The 
essence of the appellant’s submissions based on the Charter is that as a person 
facing criminal contempt proceedings, she ought to have had, but was not 
afforded all of the procedural safeguards and protections to which an accused is 
ordinarily entitled after being charged with a criminal offence.  
[5]                In the main, the arguments the appellant has advanced in 
relation to the contempt proceedings brought against her have been considered 
and rejected in other cases, and cannot succeed.
[6]                The appellant has raised a further point which relates to 
injunction practice generally and how that may have an impact on freedom of 
expression protected by the Charter and the right to a fair hearing.  The 
appellant submits that interlocutory injunctions in civil proceedings, 
particularly when granted ex parte and as a matter of course, may be perceived 
by the public as a coercive weapon to eliminate dissent concerning environmental 
and other matters because injunctions can be and often are enforced by contempt 
proceedings.  
[7]                To support his submissions concerning the potential adverse 
effect of granting ex parte injunctions as a matter of course, appellant’s 
counsel included in his material two articles by lawyers who subsequently became 
jurists, one by Bora Laskin, entitled “The Labour Injunction in Canada: A 
Caveat” (1937) 25 Can. Bar Rev. 279 and the other by Mary F. Southin, Q.C., 
entitled “The Courts and Labour Injunctions” (1970) 28 Advocate (B.C.) 74.
[8]                No one familiar with the potent effect of injunctions would 
question the importance of the practice, as the following extracts from the 
articles to which the appellant referred demonstrate.  In "The Labour Injunction 
in Canada: A Caveat", Bora Laskin (as he then was) wrote at p. 271-74 and p. 
282:
. . . The complaints that have been levied against the injunction, particularly 
of the interlocutory type, may be shortly summarised:  (1) They are granted upon 
affidavit evidence; there is no examination and cross-examination of witnesses 
or the careful sifting of facts, but the judge, sitting without a jury, is asked 
to choose between conflicting documentary statements, in which both sides strain 
the truth, to say the least; (2) They are prepared by the complainant's counsel 
and accepted by the court with very little ceremony; (3) They prejudge the 
issues involved in a dispute by acting as strike-breakers; (4) They are couched 
in broad language and in such far-reaching terms that they implant a fear in men 
more potent than does the criminal law; (5) They endow the owner of a business 
or of property with a militant power, little short of sovereignty; (6) They 
place the judiciary, so far as the labourer is concerned, in the ranks of the 
employers; (7) They arouse a resentment and antagonism that often leads to 
active violence where there was none before; (8) They circumscribe union 
activity far beyond the needs of the particular case; (9) They generally issue 
ex parte, and quite perfunctorily, on a false analogy to cases involving real 
property, in which, on occasion, prompt action may well be necessary.
* * *
. . . The question is too, whether a person who obtains an injunction decree is 
to be allowed, by giving such decree wide publicity, to enforce, in effect, a 
rule of conduct on the community at large.  In other words, having obtained an 
injunction in protection of a private right, the plaintiff seeks to turn it into 
a public criminal prohibition against the whole community, on the ground that 
there would be otherwise a flouting of the due course of justice.  Can it be 
doubted that the proposition carries its own condemnation?  It is indeed an 
ingenious argument for securing the aid of the criminal powers of an equity 
court against any persons whom the court can be induced to regard as having 
affronted its dignity or having interfered with the due performance of its 
functions.
[9]                In "The Courts and Labour Injunctions", Mary F. Southin, Q.C. 
(as she then was) wrote at p. 82-83 and p. 84:
There are some aspects of this whole problem which to my mind deserve some 
comment.
Ex parte injunctions or injunctions on such short notice that they are in 
reality ex parte injunctions are still being granted.  If somebody is served at 
midnight to be in Court at 10.00 a.m. the next morning what real opportunity has 
his Counsel to prepare?  Short notice where there is evidence of violence or 
apprehended violence or damage to property is one thing; short notice where the 
employer simply says he is losing money, even a lot of money, is another.
It should not be overlooked that when an injunction is granted on no notice or 
notice so short as to be derisory the men do not think they had a fair hearing 
and that reinforces their feelings of being victims of judicial bias.
* * *
Nor in my view should any ex parte injunction or injunction on short notice be 
granted with liberty to apply to set aside.  All ex parte injunctions and if 
counsel requests, those granted on short notice should be to a day certain with 
liberty to the Plaintiff to move to continue.  That puts the burden where it 
belongs: on the Plaintiff to show upon a full hearing that it is entitled to 
what it seeks. 
[Underlining added.]
[10]            When the remedy of an interlocutory injunction is sought, the 
courts must ensure adherence to fundamental procedural safeguards including the 
right to be heard.  In Gulf Islands Navigation Ltd. v. Seafarers International 
Union of North America (Canadian District) (1959), 27 W.W.R. 652, 18 D.L.R. (2d) 
216 (B.C.S.C.); aff'd 28 W.W.R. 517, 18 D.L.R. (2d) 625 (B.C.C.A.) [cited to 
W.W.R.], an ex parte injunction had been granted in the context of a labour 
dispute, which the defendants were seeking to set aside.  Wilson J., as he then 
was, made the following observation about applications for ex parte 
interlocutory injunctions, at 653:
A great many interlocutory injunctions are applied for, particularly in actions 
relating to labour disputes.  Where the application is made ex parte the utmost 
scrupulosity and care must be exercised by the judge.  In the course of trying 
to restrain "irreparable" damage to one litigant, he may cause it to another.  
The first inquiry to be made in all cases is, "Why did you not give notice?"; 
and if the answer elicited does not reveal extraordinary urgency, the 
application must be refused.
[11]            Courts today are often faced with applications for interlocutory 
injunctions in civil actions in which plaintiffs seek to enforce their property 
or other private rights in the context of political protest that may have 
trenched on those rights.  Everywoman's Health Centre Society (1988) v. Bridges 
(1990), 54 B.C.L.R. (2d) 273, 78 D.L.R. (4th) 529 (C.A.) [cited to B.C.L.R.] 
arose out of demonstrations outside a Vancouver abortion clinic.  In that case, 
Southin J.A., with McEachern C.J.B.C. and Hollinrake J.A. concurring, expressed 
unease about the circumstances in which injunctive relief is granted in cases 
involving public protest and the form such relief takes (at paras. 31-37):
[31]      Today, the citizenry take to the streets over many social issues.  
Once upon a time, the citizenry rarely took to the streets save in labour 
disputes. . .
[32]      I think it is not unfair or unkind to say that by the 1950's, the 
courts of British Columbia were thought to be anti-labour because of the number 
of injunctions granted in labour disputes.
[33]      Ultimately, to the relief of most, if not all, judges, the 
jurisdiction to deal with what is commonly called picketing was, in large 
measure, placed in the hands of what is now the Industrial Relations Council.
There is today the grave question of whether public order should be maintained 
by the granting of an injunction, which often leads thereafter to an application 
to commit for contempt or should be maintained by the Attorney General insisting 
that the police who are under his control do their duty by enforcing the 
relevant provisions of the Criminal Code.
* * *
[37]      It is obvious to me that the terms of this order were taken from 
precedents developed during the course of labour disputes.  There is much to be 
said for the proposition that such precedents should be put permanently away and 
the court should give, in these cases where the citizens take to the streets and 
an injunction is sought, a fresh consideration to the extent to which the court 
should go.  That consideration should, in every case, depend on the precise 
nature of the dispute, the precise conduct in issue and so on.
[12]            In MacMillan Bloedel Ltd. v. Simpson, [1996] 2 S.C.R. 1048, 109 
C.C.C. (3d) 259, the Supreme Court of Canada dispelled any question about 
whether the courts have the power in the context of civil litigation to enjoin 
non-parties or members of the public from specified conduct, regardless of 
whether such conduct would also constitute a criminal offence.  That case arose 
out of protests against logging operations on Vancouver Island in the Clayoquot 
Sound region of British Columbia, following a government decision to permit 
certain harvesting of old-growth forest in the Pacific Rain Forest.  A number of 
people opposed to the harvest mounted protests and one form of protest was to 
block public roads so as to prevent the logging trucks from sending cut logs out 
of the forest area.
[13]            The fundamental conflict that arises in such litigation was 
described by McLachlin J., as she then was, in MacMillan Bloedel:
[13]      This case, like most, rests on a fundamental conflict.  The conflict 
is between the right to express public dissent on the one hand, and the exercise 
of property and contractual rights on the other.  Thus the appellants are wrong 
in asserting that the orders in question are nothing more than "government by 
injunction" aimed at suppressing public dissent.  The respondent is equally 
wrong in asserting that this case has nothing to do with the public expression 
of dissenting views and pertains only to private property.  This case is about 
both.  In a society that prizes both the right to express dissent and the 
maintenance of private rights, a way to reconcile both interests must be found.  
One of the ways this can be done is through court orders like the one at issue 
in this case.  The task of the courts is to find a way to protect the legitimate 
exercise of lawful private rights while preserving maximum scope for the lawful 
exercise of the right of expression and protest.
[Underlining added.]
[14]            In Provincial Rental Housing Corp. v. Hall (2005), 41 B.C.L.R. 
(4th) 291, 250 D.L.R. (4th) 112, 4 C.P.C. (6th) 329, 2005 BCCA 36, this Court 
commented on the way in which the practice may affect the right to express 
dissent:
[19]      Rule 45(3) of the Rules of Court provides that "[i]f an application 
for an interlocutory injunction is made without notice, the court may grant an 
interim injunction."  In this case, no consideration appears to have been given 
to granting injunctive relief limited to a short, stated period of time rather 
than the interlocutory injunction granted in this case. Had a time-limited 
interim order been granted, the burden of establishing the need for injunctive 
relief would have remained with PRHC when it moved to continue the injunction.  
By contrast, the ex parte interlocutory injunction the chambers judge granted in 
this case cast the burden on the protestors to make any further application and 
to show that the order ought to be set aside or varied as to its terms.
[20]      When no notice is given to protestors of an application for injunctive 
relief, it seems to me that even where extraordinary urgency can be made out by 
the applicant, the granting of a short, time-limited injunction would be a 
preferable form of order.  Granting an injunction for a short period limits the 
risk of irreparable harm to the plaintiff while ensuring that notice can be 
given to the protestors and others who may be affected by the order.  
Preparation of material and a contested hearing are then possible.  Among other 
matters that can be heard at the contested hearing, submissions can then be 
directed at how the lawful exercise of the right of freedom of expression, which 
includes protest, is to be taken into account in weighing the balance of 
convenience and, if an interlocutory order is required, how freedom of 
expression can be minimally impaired.
[Underlining added.]
[15]            On the appeal, the appellant cannot challenge the ex parte order 
which was granted in this case because it amounts to a collateral attack on the 
order.
II.         Background
[16]            The appellant is a resident of British Columbia and an 
environmental activist.  At the time of the activities which led to the contempt 
proceedings, she was the leader and spokesperson for a number of women known as 
“Women in the Woods”.
[17]            On 23 April 2003, the appellant was part of a group of 20 to 25 
people who gathered on a road in the Walbran Valley area of Vancouver Island 
(“the protest site”) in order to protest the provincial government’s forestry 
policies and to prevent Hayes from carrying out the logging contract it had with 
Weyerhaeuser Company Limited (“Weyerhaeuser”).  The appellant and others were 
also in the vicinity of the protest site on 24, 25 and 30 April 2003, and 1 and 
2 May 2003, at times when representatives of Hayes had returned to the area.  
During this time, the appellant and others communicated on a daily basis with 
representatives from Hayes.
[18]            On 5 May 2003, Hayes filed an endorsed writ of summons alleging, 
among other things, that the appellant and others were intentionally interfering 
with the contractual or economic relations of Hayes.  The endorsement on the 
writ filed by Hayes read as follows:
1.         The Plaintiff, Hayes Forest Services Limited, (“Hayes”) is a company 
incorporated pursuant to the laws of British Columbia and is in the business of 
providing logging services in British Columbia.
2.         Hayes has been authorized by Weyerhaeuser Company Limited, the holder 
of Tree Farm Licence 44 (“TFL 44”) located on Vancouver Island, to engage in log 
harvesting services pursuant to a Timber Supply Execution Agreement effective 
January 2, 2003 (the “Agreement”) between Hayes and Weyerhaeuser Company 
Limited.
3.         On or about April 23, 2003 and continuing as of the date of this 
Writ, the Defendants wrongfully obstructed, interrupted or interfered with the 
lawful use and enjoyment by Hayes and its employees of a public road (the 
“Road”) on TFL 44 which provides the only access to Hayes’ work site on Cutting 
Block 683409, thereby blocking all access to Hayes’ work site and causing Hayes 
loss, damages and expense.
4.         On or about April 23, 2003 and continuing as of the date of this 
Writ, the Defendants, or some of them, conspired to wrongfully obstruct, 
interrupt or interfere with the lawful use and enjoyment of the Road by Hayes 
and its employees, thereby blocking all access to Hayes’ work site and causing 
Hayes loss, damage and expense.
5.         On or about April 23, 2003 and continuing as of the date of this 
Writ, the Defendants blocked all access to Hayes’ work site on TFL 44, thereby 
intentionally interfering with the contractual or economic relations of Hayes, 
and causing Hayes loss, damage and expense.
6.         WHEREFORE the Plaintiff claims:
(a)        interim, interlocutory and permanent injunction;
(b)        damages;
(c)        special damages;
(d)        punitive damages;
(e)        costs and special costs; and
(f)         such further and other relief as to this Honourable Court may seem 
meet.
[19]            The defendants named in the writ included Forest Action Network, 
Women in the Woods, BC Pathways, and the appellant, Betty Krawczyk.
[20]            On the same day it filed its writ, Hayes sought an ex parte 
interlocutory injunction restraining the appellant and others from obstructing, 
interrupting or interfering with the lawful use and enjoyment by Hayes of all 
roads and bridges on Tree Farm Licence 44.
[21]            The material part of the ex parte interlocutory injunction 
granted by Beames J. on 5 May 2003 provided:
THIS COURT ORDERS AND DECLARES that:
1.         the Defendants Forest Action Network, Women in the Woods, BC 
Pathways, Betty Krawczyk, Jenna Bradley or any person having notice of the Order 
are enjoined and prohibited from obstructing, interrupting or interfering with 
the lawful use and enjoyment by the Plaintiff, its employees, agents and 
contractors, of all roads and bridges on Tree Farm Licence 44 ("TFL 44"); 
2.         the Defendants Forest Action Network, Women in the Woods, BC 
Pathways, Betty Krawczyk, Jenna Bradley or any person having notice of the Order 
are enjoined and prohibited from interfering with any logging operations being 
conducted by the Plaintiff, its employees, agents and contractors on TFL 44.
[22]            The ex parte order also contained the following enforcement 
provision:
THIS COURT FURTHER ORDERS AND DECLARES that:  
1.         any Peace Officer be authorized to arrest and remove any person whom 
has knowledge of this Order and whom the Peace Officer has reasonable and 
probable grounds to believe is contravening or has contravened the provisions of 
this Order.  For the sake of clarity, such a Peace Officer retains his or her 
discretion to decide whether to arrest or remove any person pursuant to this 
Order; 
2.         any Peace Officer who arrests or removes any person pursuant to this 
Order be authorized to:
(a)        release that person from arrest upon the person agreeing in writing 
to appear before this Court at such a time and place as may be fixed for the 
purpose of being proceeded against for contempt of court or for fixing a date 
for such proceeding; 
(b)        where such person has refused to give a written undertaking to appear 
before this Court or where in the circumstances the Peace Officer considers it 
appropriate, to bring forthwith such person before this Court at the Supreme 
Court Registry in Vancouver, or any such other place as the Court may direct for 
the purpose of being proceeded against for contempt of court or for fixing the 
time for such proceedings; or
(c)        detain such person until such time until they can be brought before 
this Court. 
[23]            None of the personal defendants or entities named was served 
with the writ or the notice of motion before the injunction was granted.  An ex 
parte application is now referred to in the Rules of Court as a “without 
hearing” application.  “Without hearing” is not an accurate description for a 
hearing that is conducted but in the absence of the other party.  While the name 
has changed, the jurisprudence has not.  
[24]            On 8 May 2003, four R.C.M.P. officers attended the protest site. 
 The appellant sat on the road and refused to move.  After some attempt at 
negotiation by the R.C.M.P., the appellant was arrested for allegedly violating 
the interlocutory injunction.  She was lifted off the road, taken into custody 
and transported to Duncan, British Columbia.
[25]            Mr. Justice Ralph ordered that the appellant and another woman 
arrested with her could be released if she executed an undertaking to the court 
on the following conditions:
(a)        I promise that I will attend before a judge of the Supreme Court on 
the 12th day of May, 2003 at 10:00 a.m., 850 Burdett Avenue, Victoria, British 
Columbia, and will attend at the other times required by the court to be dealt 
with according to law. 
(b)        Not to attend at the Plaintiff's place of operations in British 
Columbia or the access points to Tree Farm Licence 44. 
(c)        I promise that I will abide by the court order of Madam Justice 
Beames, filed in this action on the 5th day of May, 2003 as attached hereto. 
[26]            The appellant refused to sign the undertaking on the ground that 
the undertaking prevented her from being present on public lands when she had 
not been charged with any offence, and thus contravened her rights and freedoms 
under the Canadian Charter of Rights and Freedoms.
[27]            The appellant was taken to Victoria where she was held for four 
nights.
[28]            On 13 May 2003 the appellant filed an appearance to the action 
brought by Hayes.
[29]            On 14 May 2003, the appellant appeared before Wilson J. in 
Victoria.  At that time, counsel for the Attorney General of British Columbia 
appeared.  We were informed that Wilson J., after hearing the background, 
expressed the view that the alleged contempt, if proven, would constitute 
criminal contempt.  Wilson J. ordered that the appellant be taken to Vancouver 
to appear next on 15 May 2003 for the purpose of fixing a date for the hearing 
of a contempt application. 
[30]            The appellant next appeared before Maczko J. on 15 May 2003, at 
which time the matter was adjourned to 22 May 2003.
[31]            On 22 May 2003, counsel for the Attorney General asked for a 
three-week adjournment because time was needed to decide how to proceed.  Hayes’ 
counsel was not participating in the proceedings at this point.  The appellant 
appeared in person and objected to the adjournment and to remaining in custody.  
Dohm A.C.J. adjourned the matter until 16 June 2003 and ordered that she remain 
in custody until that date.
[32]            On 23 May 2003, the appellant retained counsel, Mr. Cameron 
Ward, who brought a petition for habeas corpus to seek the appellant’s release 
from custody.  After filing and serving the petition, Mr. Ward received letters 
dated 26 May 2003 from counsel for Hayes and counsel for the Crown.  The letter 
from Hayes stated, “[w]e continue to be of the view that this is a matter more 
appropriately addressed by Crown Counsel”.  The letter from Crown counsel said:
The Crown takes the view that this matter is one between the plaintiff Hayes 
Services Limited [sic] and the Respondents.  Until such time as we have received 
a report from the police and reached a conclusion as to whether or not the Crown 
can prove a criminal contempt, we have no further position in this proceeding.
[33]            The petition for habeas corpus was heard on 28 May 2003 by 
Metzger J. who amended the conditions of release and ordered the appellant 
released without the requirement that she sign an undertaking.  Whether reasons 
were given by Metzger J. is unclear but there is no dispute that the appellant 
was released that day.
[34]            On 24 June 2003, the appellant was arrested again within Tree 
Farm Licence 44 for another alleged violation of the interlocutory injunction 
granted by Beames J.  At that time, the appellant had returned to the area of 
the tree farm licence and had resumed her role as leader and spokesperson for 
“Women in the Woods”.  Thereafter, counsel for the Attorney General filed a 
notice in the proceeding brought by Hayes stating that the appellant “may be 
found guilty of Criminal Contempt of Court.”  
[35]            On 7 July 2003, counsel for the Attorney General and the 
appellant appeared before Pitfield J.  At that time, the appellant sought a stay 
of proceedings which was dismissed summarily.  The appellant’s application for a 
jury trial was also dismissed.  Pitfield J. gave some directions as to how the 
matter was to proceed, a summary of which appears in the reasons of Harvey J., 
at para. 22:
(a)        The proceedings will commence by way of the service of a notice of 
motion, with a form provided by the court. 
(b)        The evidence of the crown will be in the form of affidavits from 
whomever in the ordinary course of events would be called as witnesses in the 
proceeding, the affidavits to be complete and based upon personal knowledge. 
(c)        The alleged contemnor will be permitted to cross-examine the 
deponents of the affidavits in open court.
(d)        The alleged contemnor will be permitted to call such evidence on the 
hearing as is relevant to the proceeding.  Relevance is to be found within the 
context of the order of Beames J. and nothing more.  
[36]            The specific directions given by Pitfield J. in his reasons at 
(8 July 2003) Vancouver S032386/22360, respecting the conduct of the contempt 
trial were as follows:
[16]      Firstly, the Attorney General or the Crown prosecutor will serve on 
Ms. Krawczyk, . . . a notice of motion in action S032386 . . . The Crown will 
serve with that application affidavits of the Crown witnesses who in the 
ordinary course would be called as witnesses at the proceeding.  Those 
affidavits must be complete.  They must be based on personal knowledge and not 
on hearsay knowledge or information and belief.  
[17]      The Crown will not be permitted to tender evidence in chief except by 
way of those affidavits at the hearing of the contempt.
[37]            After her arrest on 24 June 2003, the appellant remained in 
custody until she was tried for contempt of court before Harvey J. commencing 8 
September 2003. 
[38]            Before Harvey J., appellant’s counsel sought to make a number of 
preliminary objections to the proceeding, however, Harvey J. held that the 
“preliminary” applications could be made as part of the main submissions.  In 
the hearing, the Attorney General adduced evidence by affidavit to support a 
finding of criminal contempt.  Most of the deponents were cross-examined.  The 
appellant called no evidence.  
[39]            Appellant’s counsel made a number of submissions, the main theme 
of which was described by Harvey J. as follows:
[52]      . . . there is a practice, particularly in British Columbia, whereby 
the commencement of a civil action, followed shortly thereafter by the obtaining 
of an ex-parte injunction, and then by contempt proceedings taken against 
persons disobeying the injunction, are used “to maintain public order”. 
It was the appellant’s submission that the practice described constituted an 
abuse of process and should be brought to an end by a judicial stay of 
proceedings.  
[40]            The various arguments the appellant put forward were rejected by 
Harvey J. and on 19 September 2003, the appellant was convicted of criminal 
contempt.  On 14 October 2003, she was sentenced to six months imprisonment in 
addition to the four and one-half months she had spent in custody awaiting 
trial:  Hayes Forest Services Ltd. v. Forest Action Network, 2003 BCSC 1569.
[41]            On 23 January 2004, the appellant successfully applied on 
compassionate grounds for an early release from prison.  Although the 
application was opposed, the appellant was released forthwith.
[42]            After the order was made by Harvey J. finding the appellant in 
contempt, the following steps have been taken in the proceedings.  The appellant 
brought a motion to have the interlocutory injunction issued by Beames J. set 
aside.  In reasons issued 30 March 2004, Ralph J. dismissed that application.  
As of that date, a statement of claim had not been filed in Hayes’ action 
against the appellant and others but a statement of claim was filed on 1 April 
2004.  The appellant then filed a statement of defence and counterclaim, 
alleging that the action brought by Hayes was an abuse of process.  Appellant’s 
counsel informed us that no further steps have been taken by Hayes in 
furtherance of the action.  
III.        Trial judge’s reasons for judgment
[43]            Many of the same arguments that have been advanced before us on 
the appeal were rejected by the trial judge in his reasons for judgment finding 
the appellant in criminal contempt of the order of Beames J.  I will summarize 
his reasons.
[44]            In this case, the alleged contempt is the repeated disobedience 
of an order of the Court.  At paragraph 46, Harvey J. pointed out that the Court 
“has a discretion to determine how to proceed, and the Court is not bound by 
time limits of other procedural rules except, of course, the principle of 
fairness.”
[45]            Harvey J., continued by stating, at paragraph 48, that, in his 
view, “the authority of a superior court judge to deal effectively with criminal 
contempt is not compromised by the Charter", though the contemnor must be 
treated fairly and be given the equivalent of Charter rights and protections 
(such as the right to know the charge, to cross-examine witnesses, to give 
evidence, to make submissions, and to be presumed innocent and be proven guilty 
beyond a reasonable doubt).
[46]            At paragraphs 63-65 of his reasons, Harvey J. found that the 
submissions made by counsel for the appellant regarding abuse of court process 
were not appropriately made, as they constituted an impermissible collateral 
attack on the interlocutory injunction.  The validity of such an order is not an 
issue on a contempt hearing.
[47]            Harvey J. also found that other submissions made by appellant’s 
counsel regarding objections to the process had no merit, first, because “on a 
summary hearing related to criminal contempt, the court determines its own 
process, which is not governed by the Rules of Court” (para. 80).  Rather, as he 
stated at paragraph 81, the test is whether “the terms and conditions set by Mr. 
Justice Pitfield for the summary procedure meet the principle of fairness”, and 
at paragraph 83, he concluded that in this case, those terms and conditions “in 
certain respects, exceed the test for fairness in relation to a summary 
proceeding of this nature.”
[48]            Harvey J. held there was no arbitrary detention.  The conditions 
set in the undertaking for the appellant’s release, which the appellant refused 
to sign, were necessary and reasonable, as “amply demonstrated by the conduct of 
the [appellant] following her release without conditions” (para. 88).
[49]            In Harvey J.’s view, at paragraph 92, the delay in scheduling of 
the contempt hearing from early August to mid-September did “not even approach 
the delay necessary to support the entering of a judicial stay of proceedings.”
[50]            Harvey J. concluded his reasons, finding that:
[102]    . . . the contempt shown by the [appellant] for the order of the court 
meets all the requirements for criminal contempt.
[103]    The contempt shown by the [appellant] here was open, public, continuous 
and flagrant disobedience of a court order on two occasions.  It was conduct 
staged and orchestrated with communication to the media of what occurred for the 
purpose of dissemination to the public.
IV.        Discussion
[51]            The appellant’s arguments on the appeal are divided into four 
parts, each focusing on an aspect of the proceedings against her: her arrest; 
the “charge” against her; her pre-trial detention; and her trial.  The appellant 
submits that at each of these stages, her rights which are recognized and 
protected under s. 7 of the Charter were violated.
[52]            The preliminary point raised by the appellant that the Attorney 
General has no standing to advance criminal contempt proceedings is without 
merit.  The Attorney General’s role is a special one within the context of our 
Parliamentary system of Government.  That role was described by Lord Diplock in 
Attorney General v. Times Newspapers Ltd., [1974] A.C.  273 at 311:
. . . He is the appropriate public officer to represent the public interest in 
the administration of justice.  In doing so he acts in constitutional theory on 
behalf of the Crown, as do Her Majesty’s judges themselves; but he acts on 
behalf of the Crown as “the fountain of justice” and not in the exercise of its 
executive functions.
[53]            When the Attorney General intervenes in contempt proceedings in 
this province he assumes conduct of the proceedings where the evidence relating 
to those proceedings meets the charging standard of the Criminal Justice Branch. 
 Contrary to the argument of the appellant, the Attorney General does not 
require an invitation of the court or the consent of any party to assume the 
conduct of a criminal contempt proceeding.
[54]            In this case, the alleged contempt is the repeated disobedience 
of an order of the Court.  At paragraph 46, Harvey J. pointed out that the Court 
"has a discretion to determine how to proceed, and the Court is not bound by 
time limits of other procedural rules except, of course, the principle of 
fairness."  Proceedings had their foundation in the injunction and enforcement 
order granted by Beames J. on 5 May 2003, which prohibited an interference in 
logging operations at Tree Farm Licence 44 on Vancouver Island.  The subsequent 
knowing violation of that order by the appellant on 8 May 2003 resulted in her 
arrest.  Following some interim appearances and upon her release she was once 
again arrested on 24 June when she resumed her role as leader and spokesperson 
for "Women in the Woods" and blockaded access to the logging area.  
[55]            No formal documents are required to proceed with the common law 
offence of criminal contempt.  Pitfield J. gave directions as to the conduct of 
the proceedings.  The Crown was directed to provide a notice of motion in 
addition to the motion it had already filed outlining the nature of the 
proceedings.  The trial judge set out in paragraph 35 of his decision the 
applicable principles and the procedure he intended to be followed.  In my view, 
there is no error in the procedures and principles Harvey J. stated.  I agree 
with his observations that criminal contempt is governed by a summary process, 
fixed by the court to meet the exigencies of the situation.  
[56]            In his reasons for judgment Harvey J. noted that the court has a 
discretion to determine how to proceed and is not bound by time limits or other 
procedural rules with the exception that the proceedings must adhere to the 
principle of fairness.  Harvey J. acknowledged that an alleged contemnor must be 
treated fairly and afforded his or her equivalent of Charter rights and 
protections, some of which have been commented upon in R. v. Cohn, supra.  While 
the trial judge said that the authority of a Superior Court Judge to deal 
effectively with criminal contempt was not compromised by the Charter, he 
clearly decided that the contemnor has the right to know specifically what is 
charged, the right to cross-examine witnesses, the right to give evidence or 
call evidence on his or her behalf, the right to make submissions in relation to 
both guilt and punishment, and the right to be presumed innocent and to require 
proof beyond a reasonable doubt of the allegations of contempt.  
[57]            One of the matters about which the appellant complains is the 
Crown’s use of affidavits in the proceedings.  The Crown filed affidavits but 
also made the deponents available for cross-examination.  For the Crown to 
proceed in that manner complied with the specific summary procedure which had 
been authorized by the court and the use of that procedure created no unfairness 
to the appellant in this case.
[58]            Contrary to the arguments of the appellant, it appears to me 
that the trial judge was scrupulous in affording the appellant all the rights 
and protections to which he had referred.  
[59]            The appellant argues that following her arrest on 8 May 2003 she 
was arbitrarily detained because the order permitting her release required her 
to sign an undertaking with conditions which inter alia required her not to go 
near the site of the unlawful breach of the injunction.  An examination of the 
provision shows that it was aimed at ensuring that there would be no further 
violation of the court’s order.  The requirement was not an arbitrary or 
otherwise inappropriate condition in this case.  The later repetition of the 
conduct which resulted in the appellant’s initial arrest tends to support the 
wisdom of requiring such a condition in the undertaking in the first place.  
[60]            The arguments advanced by the appellant on the foregoing points 
and others amounts to a collateral attack on the injunction and subsequent 
orders issued by the court and for that reason cannot be sustained.
[61]            The respondent characterizes the appellant’s arguments as a plea 
to sanction the “breach now, challenge later” approach which has repeatedly been 
rejected by Canadian courts as a threat to the authority of the court and the 
rule of law.
[62]            There are many examples in the jurisprudence in which collateral 
attacks on orders made have been rebuffed.  In Canada (Human Rights Commission) 
v. Taylor, [1990] 3 S.C.R. 892, 75 D.L.R. (4th) 577 [cited to S.C.R.], the 
appellants sought to evade a finding of contempt by arguing a reasonable 
apprehension of bias on the part of an administrative tribunal.  In dismissing 
the appeal, Dickson C.J. stated, at p. 942:
The narrow ratio of Mahoney J.’s reasons, however, hinged on the fact that the 
appellants had not sought to challenge the legitimacy of the Tribunal order 
directly, but rather had simply treated the order as void and attacked it 
collaterally in a contempt proceeding.  Adopting the rationale of O’Leary J. in 
Canada Metal Co. v. Canadian Broadcasting Corp. (No. 2) (1974), 4 O.R. (2d) 585 
(H.C.), at p. 613, he stated (at p. 601):
The duty of a person bound by an order of a court is to obey that order while it 
remains in force regardless of how flawed he may consider it or how flawed it 
may, in fact, be.  Public order demands that it be negated by due process of 
law, not by disobedience.
As the Appellants had neglected to attack the impugned order by due process of 
law, Mahoney J. concluded that the finding of contempt could not be challenged 
by alleging a reasonable apprehension of bias.
I am in complete accord with the reasoning of Mahoney J. . . .
[63]            In Canadian Transport (U.K.) Ltd. v. Alsbury, Tony Poje and 
Others (1952), 105 C.C.C. 20, [1953] 1 D.L.R. 385 (B.C.C.A.), [Canadian 
Transport cited to C.C.C.], the appellants who were convicted of criminal 
contempt of court sought to have the convictions set aside by challenging the 
order on numerous grounds including:
i.                     the injunction was granted pursuant to improper and 
inadmissible evidence;
ii.                   the injunction was in conflict with various legislation; 
and
iii.                  the injunction was in a permanent form and no court could 
grant a permanent injunction ex parte.
[64]            Mr. Justice Sidney Smith’s reasons, which were accepted on 
appeal by the Supreme Court of Canada (see [1953] 1 S.C.R. 516, 105 C.C.C. 311) 
included the following remarks at p. 44:
To this the general answer is made that the order of a Superior Court is never a 
nullity; but, however wrong or irregular, still binds, cannot be questioned 
collaterally, and has full force until reversed on appeal . . .
[65]            Mr. Justice Bird further held at p. 57:
. . . Each of the grounds relied upon no doubt is proper matter for 
consideration upon an appeal from such an order when an Appellate Court, because 
of one or more of the alleged defects, might determine that the order could not 
be sustained; but that is far from saying that a party to an action or one 
acting in his interest, while the order stands unchallenged, may with impunity 
disobey or ignore that order because he or they consider it to be invalid”. 
The order under review is that of a Superior Court of Record, and is binding and 
conclusive on all the world until it is set aside, or varied on appeal.  No such 
order may be treated as a nullity.
[66]            This Court in R. v. United Fisherman and Allied Workers Union et 
al., [1968] 2 C.C.C. 257, 65 D.L.R. (2d) 579 [cited to C.C.C.], leave to appeal 
to S.C.C. refused, [1968] S.C.R. 255, followed Canadian Transport, supra, and 
Davey C.J.B.C. stated at p. 273:
Even if the order was wrongly made, it was an order dealing with legal rights 
and obligations that form a proper subject of litigation in the Supreme Court, 
and a kind of order that the Supreme Court may make in the course of such 
litigation, so it was not a nullity; having been made it had to be obeyed until 
it was set aside:  see Poje et al. v. A.-G. B.C., 105 C.C.C. 311 at pp. 322-3, 
17 C.R. 176, [1953] 2 D.L.R. 785; and in this Court sub nom. Canadian Transport 
(U.K.) Ltd. v. Alsbury, 105 C.C.C. 20 at pp. 44, 46 and 55-8, [1953] 1 D.L.R. 
385, 7 W.W.R. (N.S.) 49.  The appellants should have moved to set it aside if 
their contentions are well founded.
[67]            Madam Justice McLachlin (as she then was) writing for the 
majority in United Nurses of Alberta v. Alberta (Attorney General), supra, at p. 
935, stated:
. . . The validity of the order is not an issue on the contempt hearing.  Unless 
the order has been set aside for want of jurisdiction, the judge hearing the 
motion on criminal contempt must accept it as valid. . .
[68]            In R. v. Domm (1996), 31 O.R. (3d) 540, 111 C.C.C. (3d) 449 
(Ont. C.A.) [cited to O.R.], leave to appeal to S.C.C. refused, [1997] S.C.C.A. 
No. 78, Doherty J.A. stated at p. 551-52:
In my opinion, an allegation that an individual’s constitutional rights have 
been violated by a court order cannot justify the abandonment of the rule 
against collateral attack.  In such cases (and this is a good example), there 
are usually fundamental and conflicting values to be balanced.  It is very much 
in the community’s best interests that those whose values clash settle their 
competing claims by resort to established judicial procedures and not by 
pre-emptive acts by those convinced of the righteousness of their cause. . .
[69]            The rule barring collateral attacks on court orders is 
fundamental to preserving the rule of law and maintaining the authority of the 
court.  Mr. Justice Iacobucci in R. v. Litchfield, [1993] 4 S.C.R. 333, 86 
C.C.C. (3d) 97 [cited to S.C.R.] discussed the underlying principles of the rule 
against collateral attack at p. 349:
. . . The rationale behind the rule is powerful:  the rule seeks to maintain the 
rule of law and to preserve the repute of the administration of justice.  To 
allow parties to govern their affairs according to their perception of matters 
such as the jurisdiction of the court issuing the order would result in 
uncertainty.  Further, “the orderly and functional administration of justice” 
requires that court orders be considered final and binding unless they are 
reversed on appeal . . .
[70]            In B.C. (A.G.) v. Mount Currie Indian Band (1991), 54 B.C.L.R. 
(2d) 129 (S.C.), [1991] 4 W.W.R. 507, Macdonald J. addressed the collateral 
attack doctrine in response to a claim by native contemners that the court 
lacked jurisdiction over unceded Indian territory: 
[33]      . . . I consider it to be clear that there are no exceptions to the 
collateral attack doctrine insofar as contempt of court proceedings are 
concerned.  Any exception would be tantamount to permitting this court to sit on 
appeal from one of its own orders.
[34]      Underlying the collateral attack doctrine is the principle that an 
order of a court of general jurisdiction is valid, binding and must be obeyed 
until set aside or varied by the court itself (in those limited circumstances in 
which that course is open) or reversed on appeal.  That principle is fundamental 
to the maintenance of this court’s authority.  One of the essential inherent 
powers of a superior court is the power to maintain its own authority.
[71]            The collateral attack doctrine has been applied repeatedly by 
this Court in criminal prosecutions wherein the accused has attempted to 
challenge the validity of a court order (recognizance or undertaking) which the 
accused was convicted of breaching.  Notwithstanding the Court’s acknowledgement 
that the court order which had been breached may have been invalid or may have 
violated the Charter, this Court upheld the convictions finding that the 
challenges constituted impermissible collateral attacks on the court orders:  R. 
v. Conkin (1998), 52 B.C.L.R. (3d) 315 (C.A.);  R. v. Pheiffer (1999), 139 
C.C.C. (3d) 552, 1999 BCCA 558;  R. v. Swanson, 2000 BCCA 177;  R. v. Reed 
(1994), 91 C.C.C. (3d) 481 (B.C.C.A.).
[72]            The rationale for the collateral attack doctrine in preserving 
the rule of law is engaged in this case.  The appellant chose to ignore the 
court process and elected the route of a “flagrant defiance of an extant court 
order” in order to take “direct action” and not “capitulate”.  
V.         Conclusion
[73]            In my view, the various arguments the appellant advanced based 
on the Charter cannot succeed.  I would dismiss the appeal.  
“The Honourable Madam Justice Rowles”
I agree:
“The Honourable Madam Justice Saunders”
I agree:
“The Honourable Mr. Justice Lowry”