IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation:
British Columbia (Attorney General) v. Sager et al,
2004 BCSC 720
Date: 20040528
Docket: S40511
Registry: Nanaimo
Between:
Her Majesty the Queen in Right of the
Province of British Columbia and
The Attorney General of the
Province of British Columbia
Plaintiffs
And:
Maureen Rose Sager, Nancy Ellen Goldsberry,
Susanna Winifred Frazer, Richard Boyce,
John Doe 2 through John Doe 50 and
Jane Doe 4 through Jane Doe 50
Defendants
Before: The Honourable Madam Justice Quijano
Reasons for Judgment
Counsel for the Plaintiffs:
G. J. Underwood and
K. W. Inaya
Counsel for the Defendant
Maureen Rose Sager:
A. C. Ward and L. Tessaro
The remaining Defendants
Appearing in Person
Dates and Place of Trial/Hearing:
March 12 and 18, 2004
Nanaimo, B.C.
NARRATIVE
[1] In or about December 2000 the provincial government acquired
a parcel of land located adjacent to Cathedral Grove Park, upon
which it intended to construct a parking lot for use by visitors
to the park (the “Land”).
[2] The government then entered into a contract with a firm
to construct the parking lot, with construction to commence
in early February 2004. As a necessary adjunct of the construction
several old growth trees would have to be removed.
[3] Some local citizens opposed the construction of the parking
lot and, by February 12, 2004, a number of individuals participated
in daily protests at the entrance to the Land. In part they
protested the loss of old growth trees, but they were also concerned
about what they perceived as a lack of public input into the
decision.
[4] The presence of the protesters meant that the contractor
could not begin the clearing required due to Workers’ Compensation
Board regulations which require that no trees may be felled
if there are persons within certain defined distances.
[5] On February 24, 2004, the Attorney General commenced this
action alleging trespass and seeking damages against 50 Jane
Does and 50 John Does and, at the same time, brought this application
in which he seeks a restraining order preventing any persons
with notice of the order from entering on the Land.
[6] On February 25, 2004, a Parks employee attended at the
entrance to the subject Crown Land and served some, but not
all, of the people there with the pleadings, including notice
of this application. The same employee returned a day or two
later and handed out copies of the pleadings to whoever was
at the site at that time.
[7] Up to this time the Land had not been posted in accordance
with the provisions of the Land Act, R.S.B.C. 1996, c. 245 (the
"Land Act"), nor had any other barrier been created
which could have been construed as notice to the public that
access to the Land was restricted.
[8] The application for the interlocutory injunction came on
for hearing March 12, 2004. By that time the Land had still
not been posted. Also by that time there had been a preliminary
determination of the names of 5 persons who maintained that
they were properly defendants in the action. Those are the named
defendants in the style of proceeding.
[9] The hearing did not complete the first day and the remainder
of the application was heard the following Thursday, at which
time the Land still had not been posted, although some of the
trees had been flagged with orange tape.
[10] At some point in time relevant to this application someone
built a platform up in one of the trees on the subject land,
and someone put a lock on the gate across the access road to
the site of the proposed construction.
[11] The plaintiff alleges that a number of offences have been
committed by the defendants on Crown land at or near the site
of the proposed construction. Section 60 of the Land Act sets
out various offences which may occur on Crown land and reads,
in part:
60 A person commits an offence if the person does any of the
following:
(a) occupies or possesses Crown land without lawful authority;
(b) uses Crown land without lawful authority;
...
(e) constructs on Crown land a building, structure, enclosure
or other works, or does or performs any dredging, excavation
or filling, without the authorization of the minister;
[12] The Land Act contains a statutory penalty for trespass
where notice is given. Under s. 59(1), if a person does anything
that is an offence specified in s. 60 the Minister may, on notice
to that person, require the person to cease the unauthorized
occupation of the Crown land. Notice may be given by posting
it on the Crown land if the person is unknown. The maximum penalty
for non-compliance with the notice is $1,000, and may be imposed
multiple times. In all cases, a public officer can initiate
legal action against a trespasser, and under the Land Act penalties
include fines of up to $20,000 and jail terms of up to six months.
The plaintiff has not provided notice in the form set out in
the Land Act and has not utilized the enforcement provisions
in the Land Act.
[13] The plaintiff alleges that the provisions prohibiting
trespass on Crown land found in the Land Act have been breached
by the building of a structure and the placing of a lock on
the gates to the access road to the proposed parking lot site.
In addition, the plaintiff argues that by asking some people
to leave the area, or alternatively, by commencing these proceedings,
it has served sufficient notice on the defendants as to the
limits placed on access to the Land. The plaintiff asserts that
because there are numerous and unidentified protesters frequently
impeding the construction of the parking lot on the Land, an
injunction ought to be granted “as of right”. The
plaintiff argues that the public interest in the construction
of the parking lot must be protected and this is the most effective
way to protect it: by enjoining, in advance, all those who might
trespass on the property and thereby interfere with the government’s
right to build the parking lot.
[14] The defendants state that the Land Act provides a nearly
complete code governing the management of Crown lands and that
the plaintiff must first avail himself of the remedies under
the Act before applying for injunctive relief.
ISSUE
[15] What is the extent of the entitlement of an Attorney General
to injunctive relief at common law where alternative statutory
remedies are available?
ANALYSIS
[16] It is clear that the Attorney General, as the representative
of the public, has the right to seek redress in the courts whenever
a public right is infringed or threatened with infringement.
The question raised by this application is whether, in the circumstances
of this case, the equitable jurisdiction of this court ought
to be invoked to restrict the rights of members of the public
to enter on Crown land through the use of a Jane/John Doe injunction
where the Attorney General has chosen not to utilize the offence
provisions of the Land Act.
[17] Historically, the right of the Attorney General to sue
at common law to enforce public rights has been exercised rarely
and only on facts clearly warranting granting this powerful
remedy. For example, in the early English case of Attorney-General
v. Harris, [1961] 1 Q.B. 74 (C.A.), injunctions were granted
restraining a husband and wife who had been convicted more than
one hundred times in three years for using a flower and fruit
stall outside a cemetery which obstructed a pathway. In the
Court of Appeal, Sellers L.J. stated:
... It cannot, in my opinion, be anything other than a public
detriment for the law to be defied, week by week, and the offender
to find it profitable to pay the fine and continue to flout
the law. The matter becomes no more favourable when it is shown
that by so defying the law the offender is reaping an advantage
over his competitors who are complying with it.
[18] It is only in more recent history that injunctions have
been used to restrain public protest against unnamed and unknown
defendants. The practice of issuing Jane/John Doe injunctions
was validated by the Supreme Court of Canada in MacMillan Bloedel
Ltd. v. Simpson, [1996] 2 S.C.R. 1048. McLachlin J. (as she
then was) found that the criminal law remedy offered little
assistance to MacMillan Bloedel in restraining protestors in
the summer of 1993 as the Attorney General had a specific policy
not to lay criminal charges against environmental groups engaging
in civil disobedience, but to leave it to affected parties to
seek injunctive relief.
[19] McLachlin J. stated in Simpson that every citizen would
endorse the idea that the Attorney General as the chief law
enforcement officer in a province has the responsibility to
see that the criminal law is enforced, but also went on to say
at page 215:
... Yet, as this case demonstrates, to state the obligation
of the Attorney General is not to ensure that it will be discharged
in such a way as to provide the required protection to citizens
injured by the conduct of others. It is to fill this gap that
the equitable remedy of injunctions -- injunctions which not
only the parties but also all others must respect on peril of
being found in contempt of court -- has developed.
[20] This statement was interpreted by Williamson J. in Alliford
Bay Logging (Nanaimo) Ltd. v. Mychajlowycz, 2001 BCSC 636 in
the following manner:
[14] I read this as suggesting that if there is a gap, that
is, if the Attorney General does not ensure that the obligation
to uphold the law is fulfilled, assuming other requirements
are met the injunction should issue. But I take it as well that
the converse would be true. If there were no gap presumably
the injunction would be unnecessary and would not issue.
[21] The ability of the Attorney General to create such a gap
as a matter of policy was cast into doubt in British Columbia
(Attorney General) v. Perry Ridge Waters Users Assn., [1997]
B.C.J. No. 2348 (S.C.)(QL) where McEwan J. stated, in obiter,
at paragraph 9:
I summarize a great deal of case law in saying that there
appears to be considerable authority for the proposition that
the Attorney General's resort to the courts for injunctive relief
ought to be a final step and not merely a convenient alternative
to the application of criminal or other available sanctions.
[22] A number of cases follow in the footsteps of Perry Ridge
and express concern regarding the use of an injunction as a
first choice remedy. These cases are well summarized in Alliford
Bay Logging by Williamson J. starting at paragraph 4:
[4] Mr. Ward, for one of the defendants, in a compelling submission
argues that it is wrong to resort to court injunctions in these
circumstances when the simple course is for the police to act
to protect the plaintiff's legal rights by advising protesters
that they will be charged pursuant to the Criminal Code if they
do not cease to impede the way, and by arresting the protesters
if they do not accede to that warning.
[5] The police in this province, I understand with the knowledge
of the Attorney General, do not adopt that course. This is evident
from a review of three recent decisions of this court. I am
going to refer to those decisions. The first is a decision of
Mr. Justice Vickers in International Forest Products Limited
v. Kern, 2000 BCSC 888, a decision handed down on June 6, 2000,
[2000] B.C.J. No. 1129. That learned judge dealt with the issue
of whether the police should be enforcing the law. He said in
paragraph 29:
In the circumstances that were then ongoing the court concluded
that a bubble zone of 500 metres was required in order to preserve
peace and order. All three orders are also a result of a political
decision by law enforcement officials that a criminal law will
not be enforced in this type of dispute, rather it is considered
to be a dispute that need only be responded to if the court
grants an injunction. Thus it is the order of the court that
becomes the subject of criticism and not the decision of law
enforcement officials. In the discharge of its duty the court
is drawn into a controversy that could have been resolved by
more traditional and less costly law enforcement strategies.
[6] The second decision is that of Mr. Justice McEwan in Slocan
Forest Products Limited v. Doe, a decision dated July 21, 2000,
[2000] B.C.J. No. 1592 [which stated]:
In sum, having had the benefit of explanations offered by
the Attorney General and the police for the policies now in
place, I am simply not convinced that the rule of law is enhanced
by the present process which (a) forces innocent bystanders
to seek their own protection by manufacturing ill-fitting civil
suits; (b) places the court in a position where it must fashion
some remedy at the expense of repeatedly putting its authority
in issue; and (c) arguably deprives demonstrators of due process.
[7] The third decision handed down only about a week later
which deals with this issue is International Forest Products
Limited v. Kern, Mr. Justice Pitfield, 2000 BCSC 1141, [2000]
B.C.J. No. 1533, so all of these decisions are just this past
summer. Mr. Justice Pitfield, in a strongly worded judgment,
was critical of the policies in place that the police do not
enforce the law in these particular sorts of circumstances.
Starting at paragraph 57 he said the following:
Whatever decision has been made the result is regrettable.
The court is placed in the unenviable position of being asked
to respond in order to preserve the rule of law. It is the duty
of the Attorney General to ensure respect for and the benefit
of laws enacted by the legislature. In this case the law in
question is the right to harvest timber from Crown land. There
appear to be adequate provisions in the Criminal Code to permit
the Attorney General to ensure the required protection. If the
Attorney General doubts the adequacy of the criminal law then
the legislature should search for other means to ensure that
rights it has lawfully created are not abrogated by actions
taken by members of the public. The responsibility to devise
a means of ensuring that protection should not be delegated
to the courts.
[23] Also of significance in the Alliford Bay decision is Williamson
J.’s analysis of the obiter comments of Esson J.A. of the
British Columbia Court of Appeal in International Forest Products
Ltd. v. Kern (2000), 144 B.C.A.C. 141, 2000 BCCA 500, which
provided some support for the government policy of seeking injunctions
to restrain public protest where an alternate criminal law remedy
was available. Williamson J. determined that the origin of the
court’s concern regarding this sort of injunctive relief
was valid and based upon earlier case law including Everywoman's
Health Centre v. Bridges (1990), 54 B.C.L.R. (2d) 273 (C.A.)
in which Southin J.A. said at page 285:
There is today the grave question of whether public order should
be maintained by the granting of an injunction which often leads
thereafter to an application to commit for contempt or should
be maintained by the Attorney General insisting that the police
who are under his control do their duty by enforcing the relevant
provisions of the Criminal Code.
[24] Subsequent to Alliford Bay, an application for an injunction
as a result of government and police policy was again brought
before McEwan J. in Central Kootenay (Regional District) v.
Jane Doe (2003), 228 D.L.R. (4th) 252 (B.C.S.C.). McEwan J.
refused to grant the interlocutory injunction restraining the
illegal occupation of a certain residence owned by the regional
district. He held that the order sought was not a civil claim
at all but a form of ad hoc criminal law which had the effect
of relieving the Attorney General and the police of investigative
and prosecutorial functions in matters they deem politically,
or otherwise, sensitive, and handing them over to the Court,
the effect being to translate "what are apparently offences
against public order ... into attacks on the court’s authority.”
[25] It is clear that the courts in British Columbia have become
increasingly reluctant to grant injunctions to individuals where
an alternate criminal or statutory remedy is available and has
not proven ineffective. The defendants in this case assert that
the Attorney General, in a similar fashion to the cases set
out above, is attempting to ignore the statute and subvert the
courts processes in order to reach an expedient result.
[26] The plaintiffs say that because the Attorney General is
the guardian of the public interest, the test to be applied
to a determination as to whether to grant a Jane Doe/John Doe
injunction is different than that to be applied to a private
plaintiff. In support of this position the plaintiffs point
out that courts have issued Jane Doe/John Doe injunctions to
restrain persistent breaches of statutory provisions enacted
for the public benefit where the statutory remedies have not
been fully exhausted or proven inadequate.
[27] In particular, the plaintiffs rely on Attorney-General
for Ontario v. Grabarchuk (1976), 67 D.L.R. (3d) 31 (C.A.) in
which the Court granted the Attorney General an interim injunction
enjoining the defendants from carrying on a business without
a licence contrary to the Public Commercial Vehicles Act. At
paragraph 36, Reid J. stated:
There are numerous precedents in England and Australia for
the proposition that the Attorney-General, as the protector
of public rights and the public interest, may obtain an injunction
where the law as contained in a public statute is being flouted.
This is so notwithstanding that, (a) the statute itself may
contain penalties of a different kind, and (b) all possible
alternative remedies have not been exhausted. The position of
the Attorney-General as custodian of the public interest is
the same whether one speaks of England, Australia or Canada.
[28] Reid J. also suggested that the usual criteria used by
the court in exercising its discretion to grant an injunction,
namely irreparable harm and the impossibility of adequate compensation
and damages, should not be applied in such cases. It must be
noted that in Grabarchuk the statute provided an ineffective
remedy as the defendants had been convicted of offences under
the Public Commercial Vehicles Act on seven prior occasions.
[29] The quote from Grabarchuk set out above was recently cited
with approval in Vancouver Board of Parks and Recreation v.
Mickelson (2003), 38 C.P.C. (5th) 110. In Mickelson, the Parks
Board was granted an interlocutory mandatory injunction requiring
the removal of a tent city from a city park and setting out
enforcement procedures, despite the fact that alternative statutory
remedies were available to the Parks Board. Mickelson may be
distinguished from the present case by the fact that the Vancouver
Charter specifically authorized the Parks Board to apply for
an injunction "where an offence is committed against any
by-law passed in the exercise of the powers of ... the Board
of Parks and Recreation". Pitfield J. also concluded that
an injunction was the only effective way to enforce the city
bylaws on the facts of the case and found that it was clear
on the evidence that the defendants, including persons unknown,
were deliberately flouting the law.
[30] The defendants acknowledge that the fact that the Attorney
General represents the public interest may be significant, say
that it is not determinative and injunctive relief is not available
as of right in such cases. In Attorney General for Ontario v.
Ontario Teachers' Federation et al (1997), 36 O.R.(3d) 367 (Gen.
Div.) the Attorney General sought a Jane Doe/John Doe injunction
to prohibit teachers from striking. The application was refused.
The court pointed out that a negative consequence of granting
the injunction was that the very statute that the Attorney General
asserted had been violated would be ignored, since the statute
provided a clear enforcement mechanism and robust enforcement
provisions. The court held that the Attorney General could not
ignore the remedy and penalty provisions of that Act. In addition,
MacPherson J. found that the courts in Ontario have consistently
held that public rights injunctions brought by the Attorney
General to restrain an alleged statutory breach will only be
granted in exceptional cases where:
(a) there is repeated flouting of the law following determinations
of illegality by the body entrusted with making those findings,
or there is a serious and established risk to public health
and safety;
(b) the court is satisfied that the alleged breach of law is
clear; and,
(c) the enforcement provisions of the statute in question have
proven ineffective.
[31] Although Ontario Teachers’ Federation is not binding
upon this court, I find that the test set out therein is relevant
here and reflects a reasonable limit on the availability of
such injunctive relief at common law.
[32] Without question the public interest in obtaining compliance
with the law is high, but there is a corresponding public interest
in ensuring that individuals are not denied due process under
existing legislation solely on the grounds that it would be
expedient or convenient to do so. As has been pointed out in
a number of recent decisions of the British Columbia Supreme
Court, an injunction is a powerful remedy which may transform
a dispute between a citizen and the government into a dispute
between the citizen and the court and it is not to be used as
a first choice remedy except in extraordinary circumstances.
[33] In the present case, the Land Act sets out the rights
and responsibilities of the Crown in the administration of public
land. The procedures set out in s. 59 of the Act are intended
to ensure that adequate notice is given to the public of limits
placed by the Crown on access to such lands. The remedies and
procedures provided in the relevant sections of the Act are
intended to provide due process for those accused of trespass
on Crown lands.
[34] The defendants' affidavit materials indicate that they
believed they had a right to be on the Land at the times in
question. This belief is consistent with the lack of clear notice
by way of boundary markings or signs limiting access to the
proposed construction site which the government is obliged to
give pursuant to the Land Act in order to establish a situation
of trespass.
[35] While the construction of a platform in one of the trees
on the subject land and the placing of a lock on the gate across
the access road to the site of the proposed construction are
evidence of trespasses under the Land Act, these are single
offences and do not demonstrate that the law has been “flouted”
in a manner which would support the imposition of the Jane/John
Doe injunction sought by the plaintiff.
[36] The fundamental question in the test for a grant of interlocutory
injunctive relief in each case is whether the granting of an
injunction is just and equitable in all the circumstances of
the case: Attorney General v. Wale (1986), 9 B.C.L.R. (2d) 333
(C.A.). In the absence of extenuating circumstances, to issue
a Jane Doe/John Doe injunction and bypass the provisions of
the Land Act would deprive those individuals, who might otherwise
be accused of offences under the Act, of the due process to
which they are entitled in relation to such an alleged offence.
[37] I am satisfied, therefore, that it would be neither just
nor equitable to allow the application. The motion is dismissed.
COSTS
[38] Costs to the defendants on Scale 3.
“G.M. Quijano, J.”
The Honourable Madam Justice G.M. Quijano
