Justice David M. Brown Superior Court of Justice, Ontario | Canadian National Railway Company, plaintiff, and John Doe, Jane Doe and persons unknown, defendants. January 7, 2013

We seem to be drifting into dangerous waters in the life of the public affairs of this province when courts cannot predict, with any practical degree of certainty, whether police agencies will assist in enforcing court injunctions against demonstrators who will not voluntarily cease unlawful activities, such as those carried on by the protesters in this case. Just over two weeks ago, on December 21, 2012, I issued an injunction requiring First Nation protesters blocking a CN Spur Line in Sarnia to remove ”forthwith” their obstructions. To my astonishment, the local police failed to assist in enforcing that order until January 2, 2013, under pressure from another judge of this Court, a passage of almost two weeks. In that case, the failure of a police agency to assist in enforcing a court order prompted me to query whether, as a matter of the balance of convenience analysis, a court should take into account the willingness of the local police agency to enforce a court order:

[L]ocal police agencies cannot ignore judicial orders under the guise of contemplating how best to use their tactical discretion. Such an approach would have the practical effect of neutering court orders. It is not the purpose of a court order simply to initiate talks or consultations between the police and those whom the court has found to have breached the law. A court order is not one amongst several chips to be played in an on-going contest between the police and transgressors of legal rights. On the contrary, a court order is intended to initiate the process of bringing unlawful conduct to an end in a short period of time so that the harm which the court has found to be irreparable is brought to an end…

[I]f those upon whom the courts rely to enforce the law have decided, in effect, that the writ of the courts does not run against particular groups or particular political messages, and that disputes involving such groups or messages should be determined in accordance with the respective strengths of the protagonists’ political wills, then I do not see how courts can involve themselves productively in such situations. Courts do not engage in contests of political wills. Under our constitutional system courts are to remain outside such contests of political wills…

As a judge, I make an order expecting it will be obeyed or enforced. If it will not be enforced, why should I make the order? An order which will not be enforced is simply a piece of paper with meaningless words typed on it, and making a meaningless order only undermines the authority and concomitant legitimacy of the courts.

The repeated applications by a major railway owner to this Court in the past few weeks to secure injunctions to remove blockades of their operating lines prompt the larger question of why, in these sorts of circumstances, a property owner has to resort to the courts for a remedy. Let me make two simple points.

Saturday night I made a time-sensitive order because the evidence showed that significant irreparable harm resulted from each hour the blockade remained in place, yet the OPP [Ontario Provincial Police] would not assist the local sheriff to ensure the order was served by the time stipulated for the removal of the blockade. Such an approach by the OPP was most disappointing because it undercut the practical effect of the Injunction Order. That kind of passivity by the police leads me to doubt that a future exists in this province for the use of court injunctions in cases of public demonstrations.

Which takes me to the second point. I question why a landowner must resort to seeking a court injunction to stop the sort of unlawful conduct engaged in by the protesters in this case. It strikes me that the police enjoy adequate powers of arrest to deal with the unlawful conduct without the further need of a court injunction.

In light of those powers of arrest enjoyed by police officers, why does the operator of a critical railway have to run off to court to secure an injunction when a small group of protesters park themselves on the rail line bringing operations to a grinding halt? I do not get it. The remedy to remove the unlawful conduct is apparent and within the authority of the police.

I acknowledge that in some respects the concept of the rule of law possesses its own subtleties, texturedness and nuances, but in some fundamental respects it is quite simple  no person in Canada stands above or outside of the law.

Although that principle of the rule of law is simple, at the same time it is fragile. Without Canadians sharing a public expectation of obeying the law, the rule of law will shatter. And a key support for maintaining that expectation of abiding by the law is that those who are empowered to enforce the law will do so, and do so in an evenhanded fashion.