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Ontario Superior Court Upholds the Rule of Law in Railway Blockade

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Aboriginal Law Bulletin

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.

To view the decision, click here.

[1]       This was an appeal of a sentence arising from a contempt proceeding.


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