Court File and Parties
COURT FILE NO.: TBD DATE: 20200626 SUPERIOR COURT OF JUSTICE - ONTARIO
B E T W E E N:
Canadian National Railway Company, Plaintiff
– and –
John Doe et al., Defendants
BEFORE: F.L. Myers J.
COUNSEL: Marina E. Sampson and Andy Pushalik, for the Plaintiff
HEARD: June 26, 2020
Endorsement
[1] CN moves for an injunction to prevent unnamed protesters from trespassing on or near its lands and blockading its trains.
[2] On Wednesday evening, protesters attended at CN’s Brampton intermodal terminal. This is its major hub serving the Greater Toronto Area. The protesters were expressing outrage about police brutality in relation to the death of Ejaz Choudry.
[3] The protesters blocked several trains from entering and leaving the terminal. Trains carrying over 1,000 containers were delayed. To achieve their blockade, protesters stood on the train tracks exposing themselves and CN personnel to danger.
[4] Earlier today, protesters again began gathering near the CN property. The press reports that another blockade is planned for tonight. Traffic is already blocked at a nearby intersection in which protesters have gathered throughout the day.
[5] We are living in volatile times. Urgent, vitally important messages are being delivered in protests across North America and throughout much of the world triggered by the death of George Floyd at the hands of police in Minnesota.
[6] Earlier this afternoon, the court released a decision in the highly publicized criminal proceedings against Const. Michael Theriault and Christian Theriault in relation to the beating of Dafonte Miller. No doubt people will have strongly held views about the verdicts one way or the other.
[7] The protesters are entitled to be heard. Our Charter of Rights and Freedoms guarantees people in Canada freedom of expression. The importance of freedom of expression in our democracy cannot be overstated.
[8] CN asks the court to order the demonstrators to stay off their land and not to block their trains during their protests. CN does not seek to stifle protesters’ rights to protest or to express their deeply held views. However, it argues that the right to freedom of expression does not include trespassing onto others’ land, exposing people to danger, violating the law, or impairing CN’s business.
[9] This is not a new area of law. The principles are well settled and understood. In Canadian National Railway Company v. John Doe, 2013 ONSC 115 at para. 11, Brown J. (as he then was) wrote:
[…] expressive conduct by lawful means enjoys strong protection in our system of governance and law, expressive conduct by unlawful means does not. No one can seriously suggest that a person can block freight and passenger traffic on one of the main arteries of our economy and then cloak himself with protection by asserting freedom of expression.
[10] On February 26, 2020, in relation to another blockade protest on CN’s tracks, in Canadian National Railway Company v Doe, (unreported, Court File No. CV-20-00635938) at para 4, I wrote:
Freedom of expression and association do not provide a legal basis to illegally deprive others of the enjoyment of their legal rights to use their land, operate their businesses, or travel. Neither does it guarantee the right to amplify one’s voice by trammelling others’ rights. The rule of law must be the dominant policy. If people do not respect the law then our rights become meaningless.
[11] I incorporate my reasons from February as to the three-part test for an interim injunction. CN has a strong case; it will be harmed irreparably by the blockading of its business; and the balance of convenience favours CN. On the last point, I note that the protesters remain free to protest and to get their messages across. Provided they comply with relevant laws, they can use public land or privately owned land where they have the occupants’ permission. They have no basis however, to trespass on CN’s intermodal hub any more than they could rightly occupy your house or mine.
[12] I am satisfied that there is a very strong risk of a blockade tonight. The protesters have already started to amass at the same location as they did on Wednesday. The protest has been announced in the press. The Theriault verdict was released today. As night follows day, an illegal and dangerous entry onto CN’s land is threatened sufficiently to justify granting relief now.
[13] I cannot say any more clearly, that no one is stifling the substance of the protesters’ message or their rights to express whatever words they choose. But the law of trespass does not allow them to invade someone else’s land, to endanger themselves and others by standing in front of moving trains, or to impair the public interest in keeping CN’s trains moving.