In a commentary in the National Post, Professors Kent Roach and David Schneiderman analyze the legal situation behind the manner in which police are dealing with of injunctions against the aboriginal Idle No More protestors ("Police are right to be cautious with Idle No More protesters," January 18, 2013).
Read the full commentary on the National Post website, or below.
Police are right to be cautious with Idle No More protesters
Kent Roach and David Schneiderman
The growing impatience of Justice David Brown of the Ontario Superior Court at the lack of prompt law enforcement against Idle No More protests has received a fair amount of press attention. It may well be a popular position to take. What are demanded are simple solutions: The law must be enforced to the letter, no matter who breaks it. But things are not so simple in practice.
Justice Brown has issued two injunctions against Idle No More protests, in Sarnia and in Kingston. In both cases he dismissed the relevance of prior decisions by the Ontario Court of Appeal that appear to us to be very much on point. Those decisions, including one involving aboriginal protests at Caledonia, counselled deference to the police in deciding how to enforce injunctions against aboriginal protests. Justice Brown asserted that the Court of Appeal cases were not relevant because they involved assertions of aboriginal rights over land. The Idle No More protests, he declared, do not.
It would have been hard for Justice Brown to know what Idle No More protests really are about, as no one representing this diffuse group was before him when he ruled that the protests were solely about federal government policy and not about land rights. But rights over the land, including related environmental concerns, seem to be a part of Idle No More grievances. Most aboriginal protests involve concerns about treaty, land, and constitutional rights — the kinds of concerns that also were the focus of the Court of Appeal’s earlier decisions that rejected a simple law-enforcement approach to court-ordered injunctions.
Justice Brown nevertheless displayed considerable frustration that the Sarnia police had not enforced the injunction and ended the blockade six days after his initial injunction was issued.
This decision was lauded by National Post columnist Christie Blatchford, a vehement critic of “go slow” responses to aboriginal protests at Caledonia. In our view, however, Justice Brown’s approach runs a serious risk of undermining the legitimate role of police and prosecutorial discretion in enforcing injunctions, and ignores clear warnings issued by the Ontario Court of Appeal.
Justice Brown’s second injunction decision in Kingston also lapsed into legal error by stating that expressive conduct by unlawful means does not receive constitutional protection. This clearly is incorrect. It ignores the fundamental distinction in a democracy between peaceful civil disobedience and violent protest. Even Justice Brown’s prior decisions in this realm — he seems to be the “go-to” judge on injunctions relating to freedom of expression — recognize that constitutionally protected freedoms can be engaged when participating in unlawful conduct.
In the Kingston case, Justice Brown asked why the Toronto-Montreal rail corridor had to be shut down for several hours. “I do not understand why a judge of this Court cannot predict with certainty whether a police agency will assist in enforcing his or her court order,” he declared. “A simpler solution under the law exists.”
So-called “simpler solutions” of immediate arrest may not adequately respect all of the competing rights in play, including those of freedom of expression. The Ipperwash Inquiry, in its report on the death of aboriginal protester Dudley George, warned of the danger of viewing the policing of protests simply through a law-enforcement lens. It endorsed the approach of the Ontario Court of Appeal, which stressed the need to consider not simply the need to enforce the law, but also aboriginal and treaty rights, the right to lawful protest, private property, concerns about public safety and, importantly, “the government’s obligation to bring about the reconciliation of aboriginal and non-aboriginal peoples through negotiation.”
Justice Brown’s decisions are questionable not only as law but as policy prescriptions. Superintendent Chris Lewis of the OPP has now engaged the issue, arguing that the approach favoured by “pundits” — also, we would add, the approach favored by Justice Brown — does not work well. Superintendent Lewis prefers a cautious approach rather than one that will unnecessarily risk officer or public safety. By recognizing the complexity of the issues at stake, his comments are much more faithful to the Court of Appeal’s approach than is Justice Brown’s call for heavy-handed law-enforcement solutions.
