Court File and Parties

COURT FILE NO.: CV-24-00731943-0000 DATE: 20241128 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LAKSHMI NARAYAN MANDIR, Applicant AND: JOHN DOE and JANE DOE, Respondent

BEFORE: Akazaki, J.

COUNSEL: Soumya Roop Sanyal and Subramanyam Narasimhan, for the Applicant

HEARD: November 28, 2024

Reasons for Decision

Overview and Background

[1] On November 3, 2024, during the South Asian festival of Diwali, Sikh nationalists seeking an independent Khalistan protested at the Hindu Sabha Temple in Brampton. A clash with pro-India counter-protesters ensued and turned ugly. Mob violence instigated by some leaders of the protest and by counter-protesters inflicted personal injuries and property damage. The object of the protest was the involvement of officials from the Consulate General of India in holding an event called a consular camp, for the issuance of Life Certificates to pensioners. The protest disrupted the consular activities and the religious activities of devotees attending the temple as a place of worship.

[2] The Life Certificates, attesting that the bearers are alive on that date, are necessary for elderly Indian nationals to continue receiving their state pensions while resident abroad. Indian law requires these certificates to be completed on or before November 30 every year, failing which pension payments are suspended.

[3] Because of the violence and advice from local police, as well as widely publicized social media posts by protest organizers, the Kalibari and Triveni Mandirs, other temples in the Greater Toronto Area, cancelled their consular camps for November 16 and 17, 2024. Attempts by Halton Regional Police to host a camp on behalf of the Vaishno Devi Temple in Oakville failed, after the police force assessed the security threat too serious.

[4] The applicant is a temple operated by the Hindu Cultural Society, a Canadian registered charity in Scarborough. The consulate has announced that the camp at this temple will take place on November 30, 2024. The pro-Khalistan protest organizers have now called on their sympathizers to assemble at the applicant’s temple on that date. That is almost certain to prompt counter-protesters to meet them. The applicant therefore brought a motion without notice for an interlocutory injunction against holding a protest within 100 metres of its temple, to allow its consular camp to proceed and to allow safe entry for congregants.

[5] The protesters are Sikh nationalists seeking the creation of Khalistan, a separate Sikh enclave in India. The stated rationale for targeting the consular camps appeared in a social media post included in the supporting affidavit, claiming the cancellation of the Triveni Mandir event “a Victory for Pro Khalistan Sikhs because Indian Consular Camps Are Not Life Certificate Camps but Death Certificate Camps.” Elaborating on this claim, the authors alleged that consulates were found by the RCMP and CSIS to have recruited “Proxies and Foot Soldiers to Spy on and attack Pro Khalistan Sikhs during community events.” The stated purpose of the protest campaign was to persuade the Canadian government to close Indian consulates in Toronto and Vancouver. According to the media reports filed in the motion record, the effect of the protests have had the opposite effect. They have attracted condemnation of the protesters from the Prime Minister, the Brampton mayor, and other politicians.

[6] To illustrate the complexity of the situation, Canada’s relations with India have been strained because of reporting of Canadian officials’ statements, included in the motion record, that Indian diplomats spy on Canadian Sikhs and are responsible for the assassination on Canadian soil of a supporter of the Sikh separatist movement. Whatever the truth of this contention, the characterization of the Life Certificate Camps as “Death Certificate Camps” appears tied to the belief that the Indian government ran an intelligence operation concluding with the individual’s murder. One can therefore find at the root of the protests the raw ingredients of political speech protected by the Canadian constitution and, in some respects, aligned with the Canadian government’s diplomatic protest lodged with its Indian counterpart. The counter-protesters’ activities, also to be enjoined, are also political in nature and are protected if conducted in a peaceful manner.

[7] The problem with the protests is that the political interests are emotionally charged, and the coming together of the protesters and counter-protesters has proven to lead to violent behaviour.

[8] The core issue in this motion does not require the court to consider, even if it could, the ethnic and religious politics between the advocates of an independent Khalistan and the Indian state. Moreover, the diplomatic tensions between Canada and India, as reported in the background content to the news reports filed in the motion evidence, do not impact the reasoning except, as stated above, that the root messages of the protest and counter-protest are political in nature. Rather, as the discussion of the appropriate legal test will establish, the court must determine the extent to which the protesters’ freedom of expression can be allowed to impede the temple operators’ ability to host the consular officials in the administration of a vital service to pensioners in the community and the religious activities of worshipers unconnected to the camps.

[9] For the reasons that follow, I have concluded that the 100-metre cordon is justified to protect the participants in the consular camp and congregants while not unduly limiting the ability of the protesters to communicate their message to the participants and to the larger public. Even if the consular events are part of an Indian government scheme to spy on Canadian residents or to recruit operatives – somewhat of a stretch when one considers the advanced age of the participants and the very public nature of the events – monitoring of foreign diplomatic staff is the remit of Canada’s security services and not that of provincial superior courts. Despite the geopolitical intrigue that could very well be occurring, consulates do exist to provide ordinary but important regular services to nationals abroad. The fact that the applicant’s temple is also a place of worship means that there are competing Charter rights in play.

Legal Issues Engaged in This Case

[10] The court may grant an interlocutory injunction, in accordance with s. 101 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The general test for interlocutory injunctions, including injunctions made on motions without notice, were the three RJR MacDonald and American Cyanamid criteria of (a) a serious issue to be tried, (b) irreparable harm to the applicant if the court does not issue the injunction, and (c) the balance of convenience: R. v. Canadian Broadcasting Corp., 2018 SCC 5, [2018] 1 SCR 196, at para. 12.

[11] Ontario rule 40.03 also requires an undertaking for damages, but the court can relieve the applicant of that requirement where, as here, the persons being restrained are unlikely to suffer damages. As a precaution, the applicant has filed such an undertaking. Similarly, the 10-day restriction of an order made on a without-notice motion under rule 40.02 is of no application, because the order will expire by the end of the same day it comes into effect.

[12] The issue between the applicant and the unidentified but expected protesters and counter-protesters is the conflict between, in the applicant group, the rights of the consular camp participants to hold their event and of the worshipers to attend temple, and in the respondent group, the rights of protesters to express their views and assemble near the temple. On the general test, the first condition is clearly satisfied.

[13] Cancellation of the event could lead to pensioners having their benefits suspended and their right to assembly frustrated. While there are other avenues for obtaining Life Certificates, many will miss out. These are vulnerable people dependent on pension income. Waiting for months to have their pensions reinstated could lead to rental evictions and inability to buy necessaries. The knock-on socio-economic effect of missed pension payments cannot be dismissed as transitory. The rights of worshipers is also self-evident and cannot be quantified as reparable. Overall, I am persuaded that there would be irreparable harm if the injunction is not granted.

[14] The balance of convenience likely favours the applicant. It is not seeking a blanket curtailment of the protesters’ ability to make their views known, whereas protest impinging on the space around the temple could discourage pensioners from entering to get their Life Certificates processed and worshipers seeking spiritual comfort and religious services. The moving party has therefore met the ordinary criteria for an interlocutory injunction.

[15] In cases involving restraint of free speech, the Supreme Court has held that the ordinary RJR MacDonald and American Cyanamid criteria are not wholly appropriate, because the person whose expression is in issue usually does not have an interest beyond free speech. The ordinary criteria, developed in the commercial context, “stack the cards against the non-commercial speaker where there is no tangible, immediate utility from the expression other than the freedom of expression itself”: Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 SCR 626, at para. 47.

[16] In those instances, the balancing test gives way to a more stringent requirement of reserving injunctive relief to the clearest of cases. Unlike commercial speech deemed to be of “low- to no- value,” political speech protected by s. 2 of the Charter is of intrinsic value: See Canadian Broadcasting Corp., para. 20.

[17] There are also additional restrictions on the court’s jurisdiction to grant quia timet injunctions to prevent activity even though no harm has yet been suffered. Quia timet is a Latin phrase meaning ‘because he fears.’ The party seeking such an order must prove a high probability that the feared harm will in fact occur. “Quia timet injunctions, particularly those restraining expression, should not be issued ‘to be on the safe side’”: 40 Days for Life v. Dietrich, 2023 ONSC 5879, at paras. 47 and 53. Although the applicant has yet to suffer harm, the rights of pensioners and congregants in other temple communities have already been prejudiced.

[18] The motion therefore turns on two issues: (1) whether the basis for the injunction is clear, and (2) whether there is a high probability that the harm will occur if the court does not issue the injunction. The issues may ostensibly bleed into each other. The difference is that the first one applies to all cases involving the impairment of a Charter right such as freedom of expression and assembly, whereas the second issue arises from requests for injunctions against future activity.

Issue #1: Is There a Clear Case for an Interlocutory Injunction?

[19] Both parties have or represent parties with fundamental rights which are starkly opposed. The protesters’ rights to free speech and assembly potentially infringes the rights of the temple and its congregants to freedom of assembly and religion. The pensioners’ right is not intrinsically a Charter right, because the access to consular services is not of itself connected with a democratic activity. Strictly speaking, that access relates to property and economic rights. That said, those rights are protected by tort laws restraining trespass and interference with economic interests. Despite the religious nature of the applicant, the consular camps do not engage freedom of religion because the activities do not entail religious activities. However, the applicant operates a temple of worship whose devotees’ freedom of religion will be impacted if they are blocked by a protest.

[20] Whether characterized as a conflict between opposed Charter rights or between a Charter right and private law rights, the dispute is a clearly defined one and must be reconciled in a proportionate manner. The proportionate balancing must robustly give effect to the Charter protection to its fullest extent and not simply rely on a “literal” application of the limitations on fundamental rights justifiable under s. 1. A decision having a disproportionate impact on a Charter right is not reasonable: Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293, at paras. 79-80.

[21] In the administrative law context, the Supreme Court has stated that Charter rights could also engage a proportionality analysis if the rights conflict with Canada’s international obligations: Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1 SCR 761, at para. 27. Despite the political tensions between Canada and India, this country has diplomatic relations with India, and residents of Indian origin whose access to consular services must be protected as a matter of international law.

[22] In this case, the nature and medium of the speech must also inform the legal standard. In the case of press or media publication, where the issue is restraint of “pure” speech, injunctions would stifle expression altogether. The applicant is not seeking to restrain the protesters’ ability to post their opinions online, speak to reporters, or even to protest. They instead seek a zone of safety around the temple to allow pensioners to meet with consular officials to process their Life Certificates, and for congregants to attend temple. What the protesters do beyond the 100-metre cordon, including the use of megaphones to be heard, is not to be subject to court order.

[23] I therefore conclude that the order the applicant requests clearly delineates how the court should balance the competing rights in a manner that gives effect to the protesters’ freedom of expression and assembly, while preserving the temple’s ability to welcome the consular officials and the pensioners accessing their services and to serve congregants. Even at 100 metres, undoubtedly some pensioners could be deterred, either because of the noise and voices or because of their own political sympathies with the protesters’ cause. Such interference might not be avoidable. However, in the circumstances, the order requested is reasonable and has considered the protesters’ right to engage in protest in a peaceful manner.

Issue #2: Is There a High Probability That Harm Will Occur if the Injunction Is Not Granted?

[24] In this case, it is possible the next protest will not involve violence, especially because the police are on alert and some of the leaders have been arrested. However, the harm does not end with violence. Intimidation of elderly persons attending the temple for administrative consular services and for worship is harm to them and to the community the temple represents. Given the evidence filed by the applicant of social media and other communications by the protest organizers to prevent the consular camps from taking place, there is a high probability that the aim of the protest is to create harm by affecting participation in the consular camps.

[25] The B.C. Supreme Court has recently granted a quia timet injunction in very similar circumstances, citing the risk of harm based on prior conduct and threats: Khalsa Diwan Society v Doe, 2024 BCSC 2072, at para. 25. A similar pattern of events justified an injunction against protesting at the B.C. Parliament Buildings in Victoria: British Columbia (Legislative Assembly) v John Doe, 2020 BCSC 301.

[26] In this case, two facts establish the high probability of harm.

[27] First, reports of the November 3 incident involved actual personal injuries and property damage. The perpetrators were arrested and are subject to bail conditions. Whether others will fill their shoes is somewhat of an imponderable, and the court must be wary of painting all protesters with the same brush. The press clippings filed by the applicant also included a report that “the Canadian PM, RCMP have acknowledged that Indian diplomats spy on Canadian Sikhs and are responsible for the assassination of [Sikh nationalist] Shaheed Nijjar.” This arc of intrigue is broad enough to include the possibility of agents provocateurs helping to stoke the protest to turn Canadian public opinion against the secessionists. The Indian government, in fact, can benefit by bad publicity for Sikh separatists in Canada. These current events have stoked considerable sectarian and ethnic strife in otherwise peaceful South Asian communities in Canada.

[28] The second pertinent fact is the cancellation of other consular camps because of the risk assessment by the local police and the actual threats by the protest organizers. The violence on November 3 has therefore informed both law enforcement and reasonable facility operators of the need to cancel the events for the sake of public safety. The protesters’ de facto interdiction of lawful consular services to pensioners from the Indian community by the threat of conduct intended to prevent participation amounts to harm that will occur if the court does not push back against the threats already made. Although an apparent afterthought, the congregants of the temples also find themselves as collateral damage in the conflict.

[29] I therefore conclude that there is a high probability of at least some harm if the court refused to grant the injunction. Accordingly, the injunction should issue in a manner that least disrupts the protesters and counter-protesters’ freedoms of speech and assembly.

Conclusion

[30] On the balance of probabilities, the applicant has satisfied the elevated requirements of a motion for an injunction restraining the protesters from encroaching the 100-metre perimeter of the applicant’s temple. Since it will expire on the same day it is operative, there is no need for a further attendance to extend its duration or scope.

[31] Pursuant to rule 57.03(3), the court does not award costs of the motion. Due to the urgency of releasing this decision, it is released today. The need for any minor or editorial changes should be brought to my attention, if necessary.

Akazaki J. Date: November 28, 2024