The Canadian Charter of Rights and Freedoms guarantees the freedoms of expression, peaceful assembly and association. The residents of Nanaimo need the BC Attorney General to step in so that their Charter Rights are heard and protected regarding the issue of Colliery Dams park.
Nanaimo residents have expressed their disagreement with the removal process of the Colliery Dams to the City Council but to no avail. The City of Nanaimo has chosen a totalitarian approach by requesting an injunction with a John/Jane Doe Order against anyone gathering in Colliery Dams, a public park.
The City of Nanaimo is seeking a prohibitive injunction, which would restrain any protesters from ”engaging in actions which would interfere with the rights of others.”
Quia timet (meaning ‘because he or she fears’) injunctions may be granted before any harm has actually been done, but the applicant must show a “very strong
probability upon the facts that grave damage will accrue to him in the future” (Operation Dismantle Inc. v. Canada, 1985).
The applicant must demonstrate that irreparable harm will result if the injunction is not granted. As the Supreme Court of Canada noted in RJR MacDonald “irreparable refers to the nature of the harm rather than its magnitude.”
There must be a high degree of probability that the harm will in fact occur. Justice Sharpe wrote: This assessment can be made only where the court has a firm grasp of the actual effect the harm will have on the plaintiff at the time it occurs and the cost alleviating or avoiding that harm will impose upon the defendant.
John/Jane Doe Orders
John/Jane Doe orders are used where the moving party is unaware of the identity of the defendants. They have been used to prevent protesters, whose names could not be identified, from blocking public roads such as in the case MacMillan Bloedel Ltd. v. Simpson, .
John/Jane Doe Orders were first introduced in the 1990′s.
In 1996, MacMillan Bloedel obtained a John Doe injunction to combat hundreds of protesters blockading a logging road in Clayoquot Sound. When these Clayoquot protesters literally stepped over the line (a line of spray paint on the ground), they knew they were breaching a court order for which they could be found “in contempt of court.”
The result of the Clayoquot Sound injunctions represents one potential outcome of the increased use of this remedy and its attached enforcement and penalty provisions. Judge McEachern, in his judgment on the appeal of two criminal contempt convictions, admitted that the previously unheard-of imposition of unsuspended prison terms in the MacMillan Bloedel Ltd. case may lead to increasingly severe sentences. Despite early statements that, in general, an injunction to enforce extant legislation should only be made with “caution,” such John and Jane Doe orders have become more common.
800 protesters were pushed through the Clayoquot trials en masse without any formal charging documents as there would be with a Criminal Code offence such as mischief or trespass. Judges and lawyers, however, continued to speak of a charge, much to the confusion of the defendants. Judge Bouck drew up his own document which he called a “complaint” which was never adopted and the confusion led to problems with subsequent procedures such as probation and criminal records. 600 people were convicted at the Clayoquot trials.
“If an injunction is sought in an area in which, as in Clayoquot, the Attorney General has already made a policy decision not to enforce the criminal law provisions that might otherwise apply, then it appears inconsistent to the public for that same Attorney General to step into the shoes of prosecutor when citizens are charged with criminal contempt for breaching a court order…
“An injunction that enjoins the future acts of unknown persons is problematic since, if it is not carefully crafted, it may protect the plaintiff at the expense of the defendant’s lawful right to non-tortious, peaceful protest. Unless the Attorney General is involved in the action, Charter arguments will not be heard…”
In comparison, there were no similar orders for the Stanley Cup Riot in 2011 and each person was charged individually. B.C.’s Criminal Justice Branch recommended charges against a total of 325 people. Charges against 40 people were dropped.
The BC Attorney General needs to step in and ensure Nanaimo residents are allowed their rights to peaceful assembly in a public park without being arrested.