On January 5, 2013, the Ontario Superior Court granted an
interim injunction prohibiting any interference with the main
railway line of Canadian National Railway Company ("CN")
between Toronto and Montréal. In its reasons released two
days later, the Court rejected the argument that the
protestor's Aboriginal identity should be a factor in
determining whether an injunction should be granted.
On January 5, 2013, CN became aware that their Transcontinental
main line was being blocked by a protest near Kingston, Ontario.
The protestors refused to identify themselves but eventually stated
that they were staging an "open ended" protest to show
support for First Nations chiefs in their upcoming meeting with the
Prime Minister. The blockade had the potential to affect thousands
of commuters and millions of dollars of freight.
Finding that CN would experience irreparable harm if the
blockade were allowed to continue, the Court granted an injunction
against the blockade. In its reasons, the Court considered a number
of factors that might support the legitimacy of the protest. Most
importantly, the Court firmly rejected the argument that the law
should be applied differently to Aboriginal protestors: "...I
would not regard the Aboriginal identity of the protestors or their
message as immunizing them from the standard balance of convenience
analysis on a motion for interlocutory injunction".
This decision interprets and distinguishes the Court of
Appeal's comments in Frontenac Ventures Corp. v. Ardoch
Algonquin First Nation,2008 ONCA 534. Although not directly before
the Court of Appeal in Frontenac,1 that Court
questioned whether the legal test for an injunction applied equally
to First Nations "protests".
In rendering its decision in the CN case, Mr. Justice Brown
framed the decision as upholding the rule of law, finding that
"[j]ust as 15 persons from some other group would have no
right to stand in the middle of the main line... neither do 15
persons from a First Nation". The Court characterized the CN
blockade as a "political protest" and nothing to do with
"sorting out land or usage claims under section 35 [of the
Constitution]". The interesting questions not answered by the
CN case are, (a) whether a remedy, or a different remedy than that
ordered, would have been granted if the protestors' stated
reason for the blockade related to land or usage claims; and (b)
should the subject matter of the political protest matter if
irreparable harm to a party can be established?
Mr. Justice Brown also expressed frustration and consternation
that the police were apparently uninterested in enforcing
injunctions against First Nations, citing the lack of enforcement
of an injunction order granted by His Honour in another recent case
(CNR v. Chief Chris Plain, 2012 ONSC 7356). While recognizing that a
level of police discretion is appropriate and that a court cannot
compel police forces to enforce court orders, Justice Brown
observed that, as a practical matter, court-ordered injunctions
against Aboriginal protests have little meaning unless enforced by
the police. Although not all police forces take the same approach,
the Ipperwash Report's criticism of the police, and the
"politics" of these situations, often lead the police to
tread lightly in protests involving First Nations members. This
inevitably undermines the rights of other Ontario citizens and
erodes the rule of law.
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