31. THE IDLE NO MORE PROTESTS: TWO-TIER POLICING ON DISPLAY

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 even-handed fashion. – Mr. Justice D.M. Brown, Ontario Superior Court of Justice, in Canadian National Railway Co. v. John Doe1

The law is our last defence against ourselves.- Playwright Arthur Miller 2

Canadians associate the image of police officers standing idly while the law is being broken right in front of them with corrupt and dysfunctional third world countries. But we no longer have to be abroad to experience this frightening and disturbing phenomenon. We can experience it anywhere in Canada now, whenever and wherever Indians choose to stage a protest or an illegal occupation.

The Idle No More protests, and similar public street or highway protests since then, best represent this civically unhealthy and dangerous new reality. Canadians have recently had to endure the minor frustrations  of being stopped and delayed in their travels while placard-bearing Indian protestors, being slowly led by a local police car and surrounded by enabling and accommodating police officers, march down the middle of some major city street or provincial highway. We’ve also, as a country, had to endure the major situations of illegal road and rail blockades causing major delays, disruptions and financial losses.

The common theme throughout is government and police passivity and inaction in the face of blatantly illegal behavior. The Idle No More protests have put “paid” to any notion that there is not a two-tier law enforcement system in Canada, a sad part of Canada’s two-tier justice system in this area of Canadian life.

In December of 2012, Idle No More protestors, protesting legislation passed by the federal government, illegally parked a large truck on an important CN railway line near Sarnia. CN applied for and got an injunction against the protestors requiring them to immediately remove the truck and stop trespassing on the line. Disgracefully, the Sarnia Police Service, holding themselves above the court order, refused to enforce it. Their position, cribbed from the Frontenac Ventures decision, was that “respect for aboriginal interests and issues” qualified the traditional application of the rule of law, and that enforcing the court order would, in their view, be detrimental to all and would “undo much of the goodwill that the Service has created with the aboriginal members of the community it serves.”

Part of the evidence CN put before the court was a YouTube video showing a Sarnia police officer participating in a drumming circle at the blockade site. Superior Court Justice D.M. Brown was clearly shocked and angry at the contemptuous (of the court) and shameful conduct of the Sarnia Police.

The injunction order expressly said that it was to be carried out “forthwith.” (Legalese for “NOW!”) But six days had gone by since the order was made and the Sarnia Police had done nothing about it except try to get the illegal blockaders, now in contempt of court, to “make nice” and leave voluntarily.

Justice Brown condemned this contemptuous police conduct and warned of the harm it was causing to respect for the law and to the administration of justice. As he wrote:

…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.

He continued later in his decision in more pointed fashion:

Where the police do not enforce court orders in a timely fashion…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 lawsbut such is the result if those charged with enforcing court orders do not do so.

No charges were ever laid against the protestors, no police officer was ever disciplined for failing to do his or her duty, and no government official ever complained or did anything about the quasi-anarchical behavior of the Sarnia Police Service.

A similar occurrence happened near Kingston. Another group of Idle No More protestors blocked CN’s main Toronto-Montreal line. A time-sensitive court order was made by the same Mr. Justice Brown requiring the illegal blockaders to end their blockade. The OPP refused to assist the local sheriff in serving and enforcing the order! Justice Brown observed the following about this shameful, contemptuous conduct on the part of the OPP:

We seem to be drifting into dangerous waters in 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 an approach by the OPP was most disappointing because it undercut the practical effect of the injunction order. That kind of passivity leads me to doubt that a future exists in this province for the use of court injunctions in cases of public demonstrations.

Finally, articulating the profound and fundamental principles in issue, fully understood by ordinary Canadians, but apparently not by our short-sighted, timid and unprincipled police and government elites, Justice Brown wrote:

Without Canadians sharing a public expectation of obeying the rule of 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 even-handed fashion.

Again, no charges were ever laid against any of the protestors, no police officer was ever charged with dereliction of duty, and no government official ever complained about the quasi-anarchical behavior of the Ontario Provincial Police.

Poor Justice Brown. To our weak and pandering elites it was if, with all his trenchant and true words, he was talking into a void! Nothing changed! In 2020 the same CN rail line was blocked by a Mohawk group solidarity-protesting in support of the the opposition of the B.C. Wet’suwet’en band hereditary chiefs to the Coastal GasLink pipeline going through their “traditional territories.”The same injunction order was issued. The same shameful passivity and inaction on the part of the police and politicians occurred, and there were the same lack of consequences.

The distinguished United States Supreme Court Justice Felix Frankfurter observed in a 1943 case, McNabb vs. United States,3 that “the history of liberty has largely been the history of the observance of procedural safeguards.”  The late political scientist Samuel Huntington famously wrote, “Men may, of course, have order without liberty, but they cannot have liberty without order.”

In fact, the preservation of not just law and order, but of anything good in civilized society, is dependent on respecting the rule of law.

Observing procedural safeguards includes obeying court orders. By not obeying court orders, or by standing by idly while laws and court orders are being flouted, our elites forfeit the confidence and respect of the citizenry, threaten our civil liberties and betray the values upon which our country is based.

  1. Canadian National Railway Company v John Doe 2013 ONSC 115.
  2. From Timebends-A Life, above
  3. McNabb v United States (1943) 318 U.S. 332.

By: Peter Best