Canadian National Railway Company v. Plain et al.

[Indexed as: Canadian National Railway Co. v. Plain]

114 O.R. (3d) 27

2012 ONSC 7356

Ontario Superior Court of Justice,

D.M. Brown J.

December 27, 2012

Injunctions -- Interim injunction -- Aboriginal protestors blockading plaintiff's spur line to protest actions of federal government -- Plaintiff obtaining ex parte interim injunction against protestors -- Blockade continuing -- Plaintiff having strong case that protestors were trespassing on its property -- Blockade causing irreparable harm to plaintiff, its customers and local economy -- Local police refusing to enforce injunction in interest of maintaining goodwill of aboriginal community and in hope that peaceful solution could be found -- Plaintiff granted order continuing injunction -- Unwillingness of local police to enforce injunction not factor in balance of convenience analysis.

Aboriginal protestors were blockading the plaintiffs St. Clair Industrial Spur Line to protest certain actions of the federal government. The plaintiff applied successfully for an ex parte interim injunction against the protestors. The blockade continued. The local police force refused to enforce the injunction in the interest of maintaining the goodwill of the aboriginal community and in hope that a peaceful solution could be found. The plaintiff brought a motion for a continuation of the injunction. It also asked the court to set a date for a motion for a contempt order against one of the protestors, and to reschedule a motion for an order requiring the chief of police to explain the steps the police had taken to enforce the order.

Held, the motion to continue the injunction should be granted.

The plaintiff had a very strong case that the protestors were trespassing on its property. There was no aboriginal claim to that property. The protestors were simply using the property as the site of a political protest aimed at others. The blockade had caused, and would continue to cause, irreparable harm to the plaintiffs, its customers and the local community. The balance of convenience favoured the plaintiff. The unwillingness of the local police to enforce the injunction was not a factor for consideration in the balance of convenience analysis.

A motion for contempt against a protestor should not be scheduled in the absence of any confidence that the police would provide the court with the assistance it required in order to enforce its orders. The motion for requiring the chief of police to appear and explain what steps had been taken to enforce the [page28 ]injunction should not be rescheduled, as the position of the police had already been made clear.

MOTION to continue an interim injunction.

Cases referred to Canadian National Railway Co. v. Plain, [2012] O.J. No. 6272, 2012 ONSC 7348 (S.C.J.); Frontenac Ventures Corp. v. Ardoch Algonquin First Nation (2008), 91 O.R. (3d) 1, [2008] O.J. No. 2651, 2008 ONCA 534, [2008] 3 C.N.L.R. 119, 239 O.A.C. 257, 295 D.L.R. (4th) 108, 56 C.P.C. (6th) 237, 168 A.C.W.S. (3d) 301; Henco Industries Ltd. v. Haudenosaunee Six Nations Confederacy Council (2006), 2006 41649 (ON CA), 82 O.R. (3d) 721, [2006] O.J. No. 4790, 277 D.L.R. (4th) 274, 31 C.P.C. (6th) 11, 36 C.P.C. (6th) 199, 240 O.A.C. 119, 154 A.C.W.S. (3d) 183, 73 W.C.B. (2d) 469 (C.A.); Nelles v. Ontario, 1989 77 (SCC), [1989] 2 S.C.R. 170, [1989] S.C.J. No. 86, 60 D.L.R. (4th) 609, 98 N.R. 321, J.E. 89-1206, 35 O.A.C. 161, 41 Admin. L.R. 1, 49 C.C.L.T. 217, 37 C.P.C. (2d) 1, 71 C.R. (3d) 358, 42 C.R.R. 1, 16 A.C.W.S. (3d) 318

Statutes referred to Criminal Code, R.S.C. 1985, c. C-46 [as am.] Trespass to Property Act, R.S.O. 1990, c. T.21, ss. 2, 5(1), 9(1)

Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 13.1

C. Bredt and H. Pessione, for plaintiff. T. Carsten, for Entropex Inc.

D.M. BROWN J.:--

I. Request to Continue an Injunction Restraining a First Nations Blockade of CNR's Sarnia Spur Line

[1] On December 21, 2012, at the request of the plaintiff, Canadian National Railway Company, I granted an ex parte interim injunction against protestors who had blockaded the plaintiff's St. Clair Industrial Spur Line (the "injunction order"). In my reasons [[2012] O.J. No. 6272, 2012 ONSC 7348 (S.C.J.)] of last Friday (the "injunction reasons"), I wrote [at paras. 21-24]:

I am satisfied that CN has demonstrated a serious issue to be tried. The protestors are trespassing on CN's Spur Line and are blocking rail traffic. During oral argument counsel showed me a photograph of the blockade of the rail line by a truck with a snow-plough which appeared today in the Sarnia Observer. The trespass and obstruction were obvious.

I am also satisfied that CN has demonstrated that it will suffer irreparable harm if an injunction were not granted. Mr. Curtis described the important role played by the Spur Line in servicing local industries and the economic disruption a continued blockade would have. Such widespread economic harm to industries in an area constitutes harm of an irreparable nature. [page29 ]

Turning to the balance of convenience, again CN has demonstrated that unless an injunction restraining the blockade is granted, its operations will be significantly disrupted and third parties will suffer economic harm. The protestors obviously are engaged in a form of expressive activity, but according to the information learned by Mr. Curtis, the protestors do not have a complaint against CN, the property owner; their ire is directed toward the federal Parliament which passed legislation to which they object. Persons are free to engage in political protest of that public nature, but the law does not permit them to do so by engaging in civil disobedience through trespassing on the private property of others, such as CN. Given the alternative locations for expressive conduct open to the protestors, and the economic disruption their expressive activity most probably will have on other industries, the political nature of the message expressed by the protestors carries little weight in the balance of convenience analysis in the particular circumstances of this case.

Moreover, from the information learned by Mr. Curtis, the protest does not involve a claim to aboriginal title or aboriginal rights in connection with the property upon which the protest is taking place. The protest is more in the nature of an expression of opposition by one group of Canadian citizens to legislation which they oppose. As a result, the factors identified by the Court of Appeal in the Haudenosaunee Six Nations Confederacy Council play little role in the circumstances of this case. [See Note 1 below]

[2] CN moved today for a continuation of the injunction order until such time as it was varied or discharged by further order of this court. Entropex Inc., a CN customer which relies on the spur line for the operations of its Sarnia plant, supported CN's request for a continuation order.

[3] In addition, CN asked that I set dates for two motions: (i) a motion returnable tomorrow in which CN will seek a contempt order against Mr. Ron Plain, one of the protesters; and (ii) a motion, initially returnable today, in which CN seeks an order against Phil Nelson, the chief of the Sarnia Police Service, requiring him to explain "the steps (if any) the Sarnia Police Service has taken to enforce" the injunction order.

II. Motion to Continue the Injunction Order

[4] Let me deal first with the motion to continue the injunction order.

A. Service

[5] I am satisfied from the affidavits of service filed by CN that the motion materials, injunction order and reasons were served by e-mail on Chief Chris Plain at 12:40 p.m. on Saturday, December 22, 2012. I am satisfied that reasonable efforts were [page30 ]made by CN to serve the head office of the Aamjiwnaag Chippewas of Sarnia First Nations Band on December 22 and 24, 2012. The office was locked; the court papers, including the injunction order and reasons, were taped to the door. Finally, I reviewed the DVD marked as an exhibit at the hearing which recorded service of the order on Saturday, December 22 at around 9:10 a.m. on the two male protestors who were blocking the spur line (the "service video"). Neither gave his name.

[6] I am also satisfied that proper service of the motion against the Sarnia Police was given by CN on December 24, 2012. Although the Sarnia Police did not see fit to send counsel or any representative to the hearing today, although properly served, yesterday its counsel sent a letter to CN's lawyer. I will consider that letter below.

B. Response of the defendant protestors

[7] Although proper service has been made on Chief Plain, the band and two of the protesters, and although on the service video the protesters told the process server to deal with Chief Plain and the band's lawyer, no representative of the band or protesters appeared today in court. I conclude that they have made a deliberate decision not to attend this court proceeding.

C. The continuation of the blockade and its impact

[8] In support of its motion to continue the injunction order, CN filed a further affidavit from Greg Curtis, sworn December 24, 2012. As of the early afternoon on December 23, over 1,000 rail cars were backed up as a result of the blockade. Mr. Curtis also deposed that (i) one of CN's major petrochemical customers has advised that this rail service is essential to ensure their customers, in particular those in rural areas, have propane supplied reliably and rateably for home heating; (ii) another major Canadian petrochemical and plastics company customer has advised that the rail blockade is jeopardizing their operations and has halted the inflow of some key raw materials and outbound finished products for customers and an extended blockade would force their operating plants which employ over a thousand people in the region to shut down within a week; (iii) customers are assessing the risk of imminent shut-downs due to disruption in the supply chain; and [page31 ] (iv) propane, produced in large quantities in Sarnia, is used to heat homes in Eastern Canada and the propane industry is heavily dependent on rail, particularly in the heating season, as a means to transport the propane to market for distribution to local propane delivery companies. The blockade has continued uninterrupted up until today.

[9] From the evidence placed before me on this motion, a photograph which appeared in the December 21 edition of the Sarnia Observer showed that the blockade consisted of a pickup truck with a front-end snowplow parked on the rail lines, together with less than a dozen people blocking the line. A few lawn chairs, an oil can and a canopy placed over the spur line could also be seen.

[10] When Mr. Doran, a process server, attended the blockade last Saturday morning, there were only two protestors, a bench and a few chairs blocking the spur line.

[11] Mr. Devlin, CN's manager of aboriginal affairs, went to the blockade site on the morning of December 23. About 50 people were present.

[12] CN Police Inspector Currier attended the site on the evening of December 23 where he observed about a dozen people, a burn barrel and fire, about eight or nine vehicles, a tent, a travel trailer, signage on the railway safety crossing signals, with the burn barrel and most of the people on the tracks.

[13] When Mr. Devlin went back to the site on December 24, he encountered about six to eight people, including one who identified himself as Ron Plain. At that time, Mr. Devlin read out a December 24 letter from Olivier Chouc, the vice- president, law, at CN, informing the protestors of the continuing damage caused by their blockage and concluding:

Notice is hereby given to every recipient of this letter that CN will seek to recover from any individual participating in these illegal activities, any and all damages it incurs as a result of the disruption of its operations.

[14] According to Mr. Devlin, as of today the protesters have placed a large storage container on the spur line.

[15] Mr. Keith Bechard, the president of Entropex, a CN customer, filed an affidavit and testified at today's hearing. Entropex has 130 employees and runs a 24/7 operation at its Sarnia plastic recovery facility. Over 70 municipalities in Ontario, Quebec, Michigan, Ohio and New York rely on Entropex to process their curbside blue-box plastics. Material delivered by truck to the Entropex facility is processed into pure resin which is shipped by bulk rail transport. Approximately 30 per cent of Entropex's resin, by volume, is shipped to its clients by rail on [page32 ]the spur line. Delivery to customers of resin is done on a "just in time" basis. Entropex has been unable to find alternatives to shipping its resin on the spur line so that it can meet its contractual obligations to its customers.

[16] Mr. Bechard deposed that unless Entropex can ship resin to its rail clients via the spur line, he believed Entropex would cease its Sarnia operations -- both the receipt of blue- bin plastics and the shipment of resin -- by December 31, 2012. If that occurred, Entropex would lay off its 130 employees indefinitely.

[17] In his testimony at the hearing, Mr. Devlin stated that the reasons given by the protesters he had spoken to for the blockade had nothing to do with CN or any land right issues concerning the spur line, but concerned protester disapproval of federal legislation (Bill C-45), support for a hunger strike presently being carried on by a Chief Spence on an island in the Ottawa River near Parliament Hill, environmental issues and other issues involving the federal government.

[18] News media reports filed by CN contained similar themes, with a December 23 Canadian Press article reporting:

[The demonstrators] say the blockade of the commercial-rail corridor will continue until Prime Minister Stephen Harper meets with Attiwapiskat Chief Theresa Spence, who is on a hunger strike to bring attention to aboriginal issues.

[19] A Facebook video by one Monica Virtue, entitled "You've Inspired a Nation", filed by CN (Exhibit 6), recorded activities by the protesters and contained the statement that "the blockade organizers want a meeting between Canada's Prime Minister Stephen Harper and Chief Spence". One of the demonstrators filmed on the video stated that he wanted an acknowledgment that the CN tracks were there illegally. He also stated that CN could file all the injunctions they wanted, but they could not remove the protesters "from our own territory". The speaker also suggested that the injunction order named the wrong crossing, and that the blockade was actually taking place at another crossing. That said, the video left no doubt that the protesters were blocking the spur line.

D. Evidence regarding the steps taken by the Sarnia Police to enforce the injunction order

[20] Several pieces of evidence were put before me regarding CN's efforts to engage the Sarnia Police in enforcing the injunction order. First, from Mr. Curtis' affidavit of December 24, 2012 the following evidence emerged: [page33 ] (i) the injunction order and reasons were in the hands of the Sarnia Police within two hours of their making -- i.e., by 12:30 a.m. Saturday morning, December 22; (ii) at 6:50 a.m. Saturday morning, S/Sgt Beni of the Sarnia Police told CN Police Inspector Currier that the Sarnia Police would not assist in serving the order and reasons and would not be on the scene when service was made; (iii) in subsequent meetings with the Sarnia Police, Inspector Currier was told by Sarnia Police Chief Phil Nelson that he "would look at all the issues and attempt to resolve this issue in a peaceful manner before considering a more aggressive approach"; (iv) CN Inspector Currier observed a number of limited initiatives undertaken by the Sarnia Police to reach out to people assisting in the blockade including "unsuccessful attempts to reach Chief Chris Plain, a meeting with the Aamjiwnaag Chippewas of Sarnia First Nations Band council, utilizing Band Councilor Anrol Grey to meet and talk to the protesters at the blockade, and involving Sarnia Mayor Mike Bradley"; (v) a Sarnia Police Inspector told Inspector Currier that "their regular members have been directed not to attend at the blockade and only supervisory officers are allowed to attend the blockade"; (vi) when Inspector Currier told the Sarnia Police he planned to go the blockade site on the evening of December 23, the Sarnia Police "advised they would not accompany them to the blockade, but did provide a police radio"; (vii) CN Chief of Police Stephen Covey has had a number of conversations with Sarnia Police Chief Nelson in which

Chief Nelson indicated he wanted to negotiate a peaceful resolution and made several such attempts that have failed, and when asked after those failed attempts as to what the Sarnia police would do to enforce the Order, Chief Nelson indicated that he would continue to use negotiations but thought it would only resolve if the federal government got involved.

[21] Second, as mentioned, no representative of the Sarnia Police saw fit to appear in court today, notwithstanding service of CN's motion on Sarnia Police Deputy Chief Bob Farlow on December 24 at 4:26 p.m. I must confess that I am shocked by such disrespect shown to this court by the Sarnia Police. [page34 ]

[22] Instead of sending a representative to the hearing today, the Sarnia Police had their counsel, Glen S. Donald, write yesterday to CN's counsel. Here is the text of that letter in full:

I am counsel for the Sarnia Police Service [the "Service"] as it relates to the order of Justice Brown of the Superior Court of Justice dated December 21, 2012 [the "Order"]. Further to our telephone conversation of today's date, this letter, rather than an affidavit, will serve to provide you with the information related to your court appearance tomorrow at 10:00 a.m.

The Service is tasked with balancing various, and sometimes disparate, community interests. It has the overarching responsibility of protecting the peace and the public it serves; an objective which forces the Service to balance the immediate with both the short and long-term. At present, the Service remains active with other members of the community, both political and industrial, in its search for a negotiated solution to this situation. No doubt that you appreciate that the Service (and its officers), on a daily basis, is tasked with the arduous challenge of policing in a jurisdiction where respect for aboriginal interests and issues must be reconciled with "the rule of law". Today, the citizenry of Sarnia has been very well served by this progressive and forward thinking approach.

The Service has read and reviewed the Order and believes it imperative that it maintain its discretion when it comes to the enforcement of same. For the time being, and while efforts are being made to find a peaceful solution to this situation through an amalgamation of community partners, the Service is of the view that a more pro-active approach, by the police, would be detrimental not only to the interests of CN Rail and the industrial area affected by the blockage, but also to the safety of the community at large.

A more rigid application of the rule of law would also undo much of the goodwill that the Service has created with the aboriginal members of the community that it serves. The Service believes that maintaining its discretion is imperative to the proper policing of this jurisdiction and thus to the safety of the public at large.

My client has reviewed the affidavit materials filed in support of your Motion. Certainly you appreciate that Sarnia Police Services shares the jurisdiction relevant to this application with both the CN Police and the RCMP. We trust that, consistent with your obligation to make full and frank disclosure, you will not allow his Honour to labour under the misapprehension that my client has "exclusive authority" over the jurisdiction wherein lies the blockade.

Subsequent to our conversation, my client has advised, that CN re-commissioned a transfer switch which will serve to provide limited rail service to the area impacted by the blockage. The Service obtained this information because it remains in close communication with the industries which normally have a rail service through the area of the blockade. As such the Service has a strong factual understanding of the actual/true immediate impact of the blockade.

We trust that you will edify the Judge as to this change in circumstances.

Hopefully, CN ingenuity will continue to provide the Service and the community in Sarnia with the opportunity of finding a peaceful solution to the rail blockade. [page35 ]

I trust that the above is of assistance. Please feel free to provide a copy of this letter to the Court tomorrow morning.

[23] At the hearing, counsel for CN advised that the transfer switch referred to by Mr. Donald has allowed CN to move around and park rail cars stuck behind the blockade, but it does not enable the re-routing of rail cars around the blockade.

[24] As to Mr. Donald's suggestion that responsibility for the enforcement of the injunction order is shared with other police services, statements by Sarnia Mayor Mike Bradley reported in media articles filed by CN contained no suggestion that any police force other than the Sarnia Police was responsible for enforcing the injunction order.

[25] CN filed a YouTube video entitled "Sarnia Police Officer drumming at the Aamjiwnaang First Nation Blockade Dec. 26, 2012" (Exhibit 6). The video showed a uniformed, three- chevroned Sarnia Police officer participating in a circle of drummers. Given the clothing worn by the drummers, the event obviously took place outdoors, but I was not able to ascertain the location of the event from the footage itself.

III. Analysis

[26] Dealing first with CN's motion to continue the injunction order, the evidence leaves no doubt that CN has a very strong case that the defendant protesters are trespassing on its property and preventing CN from using that property as it has been for many decades. Mr. Devlin testified that CN owns the fee simple under the spur line, although in places, including the blockade site, the spur line is bordered by the reserve lands of the band. Mr. Devlin testified at the hearing that CN has not received any notice from the band disputing CN's title to the spur line or its continued use of the spur line. Based on the evidence filed before me, I find that the demonstrators are trespassing on CN property and blocking CN's spur line preventing its ordinary use. The weight of the evidence indicates that the protesters are doing so not to advance any claim in respect of the title to or use of the spur line lands, but as simple political protest directed at others -- the federal government -- and not at CN. The evidence disclosed that the protest has nothing to do with the ownership or use of the spur line; the demonstrators simply have chosen a location which they evidently believe will exert political pressure on various government authorities to deal with them, and CN and its customers are caught in the middle of a fight which purportedly concerns others. [page36 ]

[27] The evidence filed by CN, and its customer, Entropex, disclosed that the unlawful blockade has caused, and will continue to cause, irreparable harm to CN, to its customers who rely on the spur line, to their employees, to their own customers and to the local economy.

[28] That then leaves for consideration the balance of convenience. In the ordinary case, the balance of convenience overwhelmingly would favour CN and the continuation of the injunction order. This is not an ordinary case. That is so because the protesters represent themselves as members of a First Nation, and I have no reason to doubt their representations in that regard. Two issues flow from that factor.

[29] First, as I mentioned in my injunction reasons, our Court of Appeal has spoken twice in recent years on the approach which courts must take when faced with a private landowner seeking an injunction against aboriginal protesters. In the Caledonia case, Henco Industries Ltd. v. Haudenosaunee Six Nations Confederacy Council, [See Note 2 below] the Court of Appeal stated [at paras. 141-43]:

But the rule of law has many dimensions, or in the words of the Supreme Court of Canada is "highly textured". See Reference re Resolution to Amend the Constitution, supra, at p. 805 S.C.R. One dimension is certainly that focused on by the motions judge: the court's exercise of its contempt power to vindicate the court's authority and ultimately to uphold the rule of law. The rule of law requires a justice system that can ensure orders of the court are enforced and the process of the court is respected.

Other dimensions of the rule of law, however, have a significant role in this dispute. These other dimensions include respect for minority rights, reconciliation of Aboriginal and non-Aboriginal interests through negotiations, fair procedural safeguards for those subject to criminal proceedings, respect for Crown and police discretion, respect for the separation of the executive, legislative and judicial branches of government and respect for Crown property rights.

It seems to me that in focusing on vindicating the court's authority through the use of the contempt power, the motions judge did not adequately consider these other important dimensions of the rule of law.

[30] Two years later, in Frontenac Ventures Corp. v. Ardoch Algonquin First Nation, [See Note 3 below] the Court of Appeal elaborated on their Henco Industries decision as follows [at paras. 42-48]:

I fully accept and agree that compliance with court orders is an important, but not exclusive, component of the rule of law. The motion judge in his [page37 ]sentencing decision did not address the other dimensions of the rule of law referred to in Henco. However, I do not think that he erred in focusing at the sentencing stage of contempt proceedings on the dimension of the rule of law that relates to ensuring that orders of the court are enforced. The following passage from McLachlin J.'s reasons in United Nurses of Alberta, at p. 931 S.C.R., supports this view:

Both civil and criminal contempt of court rest on the power of the court to uphold its dignity and process. The rule of law is at the heart of our society; without it there can be neither peace, nor order nor good government. The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect. To maintain their process and respect, courts since the 12th century have exercised the power to punish for contempt of court. [Emphasis added.]

In my view, the stage at which the comprehensive and nuanced description of the rule of law expressed in Henco must be considered is when a court is requested by a private party to grant an injunction and where doing so might have an adverse impact on asserted aboriginal and treaty rights affirmed in s. 35 of the Constitution Act, 1982. Such cases demand a careful and sensitive balancing of many important interests in assessing whether to grant the requested injunction and on what terms.

In the present case, as in Henco, the competing interests include the asserted aboriginal rights of the Algonquin First Nations, Frontenac's private interest in pursuing its exploration plan in accordance with valid mining claims and agreements, and respect for the Crown property rights of Ontario.

And how are these interests to be effectively balanced? The answer has been clear for almost 20 years in the jurisprudence of the Supreme Court of Canada -- consultation, negotiation, accommodation, and ultimately, reconciliation of aboriginal rights and other important, but at times, conflicting interests: see R. v. Sparrow, 1990 104 (SCC), [1990] 1 S.C.R. 1075; Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550; and Mikisew Cree First Nation v. Canada (Minister of Canada Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388. The honour of the Crown requires that it act as a committed participant in the undoubtedly complex process of consultation and reconciliation: Haida Nation, Taku River and Mikisew Cree.

Having regard to the clear line of Supreme Court jurisprudence, from Sparrow to Mikisew, where constitutionally protected aboriginal rights are asserted, injunctions sought by private parties to protect their interests should only be granted where every effort has been made by the court to encourage consultation, negotiation, accommodation and reconciliation among the competing rights and interests. Such is the case even if the affected aboriginal communities choose not to fully participate in the injunction proceedings.

I am quick to point out that in this case, the AAFN did not appeal either the interim or the interlocutory injunctions granted by Thomson J. and Cunningham A.S.C.J.C. It is thus not for this court to address the merits of either order. However, I think it is important to give judicial guidance on the role to be played by the nuanced rule of law described in Henco when courts [page38 ]are asked to grant injunctions, the violation of which will result in aboriginal protestors facing civil or criminal contempt proceedings.

Where a requested injunction is intended to create "a protest-free zone" for contentious private activity that affects asserted aboriginal or treaty rights, the court must be very careful to ensure that, in the context of the dispute before it, the Crown has fully and faithfully discharged its duty to consult with the affected First Nations: see Julia E. Lawn, "The John Doe Injunction in Mass Protest Cases" (1998) 56 U.T. Fac. L. Rev. 101. The court must further be satisfied that every effort has been exhausted to obtain a negotiated or legislated solution to the dispute before it. Good faith on both sides is required in this process: Haida Nation, p. 532.

[31] Having considered the additional evidence filed before me on this continuation motion, I remain of the view, expressed in my injunction reasons, that the blockade of the spur line undertaken by the protesters does not involve a claim to aboriginal title or aboriginal rights connected with the spur line. Instead, the protesters simply have chosen the spur line as a convenient place at which to exert political pressure on various governments based upon their displeasure with recent federal legislation and in support of a protest ongoing in Ottawa by Chief Spence. Simply put, they have chosen the spur line crossing as their Hyde Park and intend to express their views from that location regardless of the harm caused to those who use and rely on the spur line. For this reason, I would not regard the aboriginal identity of the protesters or their message as immunizing them from the standard balance of convenience analysis on a continuation motion.

[32] However, a second factor weighs heavily in the balance of convenience analysis -- the unwillingness of the Sarnia Police to enforce the injunction order in order to remove the obstructions of the spur line to enable CN to resume normal operations.

[33] Under our system of government, citizens have ceded the use of force to public, government agencies, save in limited circumstances. The use of force to deal with domestic disturbances, such as that taking place at the spur line blockade, has been ceded to police forces which operate under civilian government control; under the Criminal Code, R.S.C. 1985, c. C-46 the power of an individual to use force to stop a domestic breach of the law is quite limited. Looking outward rather than inward, Canadian citizens have ceded the use of force to our armed forces to protect our boundaries and to intervene in foreign disturbances. This is the political governance system within which courts operate.

[34] Canadian courts adjudicate claims alleging the violation of legal rights, and our courts pronounce or declare legal remedies. [page39 ]But courts lack the power to enforce that which they declare. In a real where-the-rubber-meets-the-road sense, our courts are powerless. Our effectiveness and our legitimacy lie in the hands of the political branches of government which possess the monopoly over the public instruments of force.

[35] Where a court orders the cessation of unlawful conduct and calls on the assistance of police agencies to achieve that result, including through the use of force to arrest transgressors and remove obstructions, the court recognizes that the police must retain, to a degree, a tactical discretion to choose the time and manner of enforcement. Paragraph 3 of my injunction order recognized the tactical discretion the police, of necessity, must possess in deciding when and how to enforce the injunction order:

3. THIS COURT ORDERS that any police service or peace officer be and hereby is authorized to arrest, or arrest and remove, any person who has knowledge of this Order and who the police service or peace officer has reasonable and probable grounds to believe is contravening or has contravened the provisions of this Order, and for greater certainty, such a police service or peace officer retains his or her discretion to decide whether to arrest or remove any person pursuant to this Order. The on-the-ground practical realities of any domestic breach of the peace or public protest by way of trespass require such a division of labour as between courts and the police.

[36] However, such discretion of the police is circumscribed in a very important way -- the judicial decision that certain misconduct must end must be brought about in a timely way by the police. As stated in para. 2 of the injunction order:

2. THIS COURT ORDERS that the Defendants and each of them, and any and all persons having knowledge of this Order, forthwith remove any and all obstructions placed or created or imposed by them to the Plaintiff's full use of its lands, premises, facilities and equipment on the Spur Line.

[37] Consequently, the discretion of the Sarnia Police about when and how barriers blocking the spur line were to be removed had to be exercised within the plain and obvious direction to the transgressors to remove the blockade "forthwith". It was not open to the Sarnia Police to interpret the injunction order as permitting the blockade to remain indefinitely. Such an interpretation would make no sense in the face of the plain language of the order. Yet, six days after making the injunction order, the blockade remains in place and the evidence indicates that the Sarnia Police have taken no active steps to enforce the order -- "forthwith" passed by many days ago. [page40 ]

[38] With all due respect to the Sarnia Police, local 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 ongoing 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.

[39] I granted an interim injunction six days ago. The conduct which I found to be unlawful still continues. It is causing irreparable harm. Notwithstanding the tactical discretion which I granted to the police in the injunction order, the passage of six days, when coupled with the evidence set out above regarding the approach the Sarnia Police have taken, strongly suggests that at this point of time the Sarnia Police do not intend to enforce the injunction order. Put another way, it appears the Sarnia Police are looking for some way to resolve the public misconduct of the protesters other than by enforcing the injunction order.

[40] If civilian authorities have decided that civil disobedience by particular groups, or involving particular political messages, should not be ended by the use of force, such as the arrest of the transgressors and the removal of blockades, then that is a political decision made by civilian authorities, for which the civilian authorities are accountable to the citizenry at large. But, if 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.

[41] Courts examine facts in the light of applicable laws and adjudicate legal rights. If a legal right has been breached, courts may grant a remedy. An injunction to require those who are breaking the law and infringing legal rights to stop such conduct is one such remedy. As a judge, I make an order expecting it will [page41 ]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.

[42] Where persons are trespassing on private or public property, such as the protestors who in this case are blocking CN's spur line, resort to the courts to obtain an injunction is not the only avenue open to the property owner or occupier to secure the arrest of the transgressors. A statutory remedy exists under the Trespass to Property Act, R.S.O. 1990, c. T.21. Section 2 provides:

2(1) Every person who is not acting under a right or authority conferred by law and who, (a) without the express permission of the occupier, the proof of which rests on the defendant, (i) enters on premises when entry is prohibited under this Act, or (ii) engages in an activity on premises when the activity is prohibited under this Act; or (b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier,

is guilty of an offence and on conviction is liable to a fine of not more than $2,000.

That Act provides for a variety of means by which to give notice to trespassers:

5(1) A notice under this Act may be given, (a) orally or in writing; (b) by means of signs posted so that a sign is clearly visible in daylight under normal conditions from the approach to each ordinary point of access to the premises to which it applies; or (c) by means of the marking system set out in section 7.

The Act specifically confers powers on police officers to arrest trespassers:

9(1) A police officer, or the occupier of premises, or a person authorized by the occupier may arrest without warrant any person he or she believes on reasonable and probable grounds to be on the premises in contravention of section 2.

[43] If, in the case of particular groups of protesters or particular types of protests, police agencies are not prepared to act with reasonable dispatch to enforce a court order, then perhaps the time has come for motions courts to exercise their discretion by [page42 ]declining to grant injunctions, even in cases such as the present one where private legal rights clearly have been violated and continue to be violated in a manner which is causing irreparable harm. In Nelles v. Ontario, Lamer J. stated that,

[w]hen a person can demonstrate that one of his Charter rights has been infringed, access to a court of competent jurisdiction to seek a remedy is essential for the vindication of a constitutional wrong. To create a right without a remedy is antithetical to one of the purposes of the Charter which surely is to allow courts to fashion remedies when constitutional infringements occur. [See Note 4 below]

A similar approach is taken by the common law -- where there is a legal right which has been violated, the courts will strive to find a remedy. However, where the police do not enforce court orders in a timely fashion, that one-time axiom of the law may no longer hold true. Or, at least, there may not exist a practical legal remedy to the violation of legal rights in the particular circumstances. That would not be a healthy situation. It would leave the person whose rights have been transgressed only with a political remedy, trying to persuade those who control the agencies of public force to come to its protection. That would then leave us with a government of men, not a government of laws, but such is the result if those charged with enforcing court orders do not do so.

[44] On the evidence before me, I have little confidence that the present approach undertaken by the Sarnia Police will result in the enforcement of the injunction order, as worded, and the removal of the current blockade. However, I cannot bring myself to decline to grant the continuation order sought by a plaintiff whose legal rights are being infringed and where the conduct of the protesters is causing irreparable harm to the plaintiff and others who rely on the spur line, even where the court has no practical means to enforce the order in the circumstances. Consequently, I will continue my injunction order, until such time as it is varied or discharged by further order of this court, but I vary para. 3 of the injunction order so as to remove the last phrase. Section 3 of the amended injunction order will now read as follows:

3. THIS COURT ORDERS that any police service or peace officer be and hereby is authorized to arrest, or arrest and remove, any person who has knowledge of this Order and who the police service or peace officer has reasonable and probable grounds to believe is contravening or has contravened the provisions of this Order. [page43 ]

[45] I will not schedule the motion for contempt CN wishes to bring against Ron Plain. For the contempt process to achieve any practical result in the context of a public demonstration, such as the present one, requires the assistance of the local police. Based on the evidence presently before me, I have little confidence that at the present time the Sarnia Police will provide this court with the assistance it requires in order to enforce its orders.

[46] Nor will I reschedule CN's motion requiring the Sarnia chief of police to appear in court to explain what steps the service has taken to enforce the injunction order. Mr. Donald's letter purported to provide that information; the position of the Sarnia Police, at this particular point of time, seems quite clear -- they will not enforce the injunction order requiring the removal of the blockade of the spur line.

[47] However, my decision today concerning those two motions is without prejudice to CN applying, on very short notice if required, for further relief, coupled with CN requiring the Sarnia Police to give evidence on the return of that motion. It may be that the position of the Sarnia Police will change in the near future.

[48] Such a motion, and indeed any further motion in this proceeding, must be heard in the South-West Region of this court, not the Toronto Region. I appreciate that rule 13.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 entitled CN to commence this action in the Toronto Region. But, there exists a very public dimension to this proceeding which points to the South-West Region as the proper venue. Further, if contempt proceedings are brought at some later date, most of the alleged contemnors no doubt will reside in the South-West Region, so that would be the appropriate location for those hearings.

[49] This past Monday, I spoke with the Office of the Regional Senior Justice for the South-West Region. Judges are available in that region over these holidays to hear emergency motions. Counsel should contact the South-West Regional Manager, Ms. Penny Marr, to arrange for any emergency motion. I have provided counsel with Ms. Marr's office and after-hours work cellphone numbers.

Motion granted.

@7 Notes

Note 1: [2012] O.J. No. 6272, 2012 ONSC 7348 (S.C.J.).

Note 2: (2006), 2006 41649 (ON CA), 82 O.R. (3d) 721, [2006] O.J. No. 4790 (C.A.).

Note 3: (2008), 2008 ONCA 534, 91 O.R. (3d) 1, [2008] O.J. No. 2651 (C.A.).

Note 4: 1989 77 (SCC), [1989] 2 S.C.R. 170, [1989] S.C.J. No. 86, para. 50.