A. Cameron Ward Barristers and Solicitors » Opinion
A. Cameron Ward
Vancouver BC
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The trial of Betty Krawczyk on allegations that she violated a Court Order made in a civil case initiated by Hayes Forest Services (a Weyerhauser subcontractor) ended Friday, September 12, 2003. Mr. Justice Harvey of the Supreme Court of British Columbia has reserved judgment. Ms. Krawczyk, a 75 year old great-grandmother, environmentalist and author, was arrested on May 8, 2003 and has spent a total of 103 days in jail awaiting disposition of her case.

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The Vancouver park board is apparently about to meet to decide whether to seek a court injunction to remove the squatters occupying the area near the cenotaph (“Veterans demand tenters end Victory Square protest”, July 17). City residents might well ask, “isn’t it against the law to camp in a city park; why get an injunction?” Of course it is against the law, pursuant to sections 3, 10 and 11 of the Parks Control By-Law, and the city doesn’t need an injunction to oust the protesters any more than a fish needs a bicycle.

The resort to the courts in a situation like this is a peculiar British Columbia phenomenon known as “government by injunction”. We’ve seen it time and time again. When environmentalists block logging roads to protest government forest use policy or when the homeless occupy abandoned buildings to draw attention to their plight, the response is inevitably the same; the government or corporate entity affected by the protest activity rushes into B.C. Supreme Court to seek an injunction against “John Doe, Jane Doe and persons unknown”. Once the injunction is obtained, usually after a cursory and one-sided court hearing, the police arrest people and bring them before the court on allegations that they are in contempt of the court’s order.

What’s wrong with this scenario? Many things. First, this process is completely unnecessary. There are already existing laws prohibiting such behaviour, which can be enforced by the police without a court injunction. Secondly, it is an imposition on the scarce resources of the B.C. Supreme Court. Most litigants wait years for their day in court, and may be shunted aside by “urgent” injunction applications. Thirdly, it unfairly raises the stakes for the protesters. In the absence of a court injunction, sitting on a logging road or a sidewalk might draw a small fine in the lower court, but when the same conduct has been restrained by a court order, stiff jail sentences are the norm. This leads to the spectacle whereby a peaceful, conscientious great-grandmother may be sentenced to a year in jail while someone else who kills an innocent person in a street race may not spend a single day in a cell. Finally, and most importantly, the process demeans the authority of the courts. The courts may be perceived to be acting as the servant of government or industry, by creating a special law binding on everyone, by inviting the police to arrest those with the temerity to disobey it, by trying alleged offenders and then by imposing swift and severe punishment on those it convicts. This should not be the court’s role. The court should be an impartial arbiter of disputes brought before it and should not appear to enter the fray to take sides with one of the litigants. When the court is asked to enter the arena in this way, it can only emerge with dust on its boots.

The reason that the courts are repeatedly asked to intervene is obvious. Politicians, whether provincial or civic, do not want to be seen as making the decision to use police action to clamp down on peaceful protest activity. They ignore their responsibility to ensure existing laws are enforced and pass the buck to the courts. In this way the politicians can deflect any criticism directed their way once the police move in, by saying, “don’t blame us, the court made the decision”. This is a most unhappy state of affairs which makes a complete mockery of the justice system and the rule of law.

While the foregoing opinions are in the minority among lawyers and judges of this province, they are not completely eccentric. Recently, in another case involving squatters on municipal land in the Kootenays, Mr. Justice McEwan of the B.C. Supreme Court refused to issue an injunction on the basis that it was the duty of the Nelson police, not the courts, to deal with the matter. He said that the use of an injunction to drive away squatters “amounts to a kind of officially induced abuse of process”. He is absolutely right, and this abuse should stop.

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