Judge slams police for inaction on aboriginal blockades

An Ontario judge who has issued two injunctions to end blockades of critical rail arteries is slamming police for not ending the aboriginal protests, saying their inaction leads to "dangerous waters."

A small group of protesters blocked the railway Saturday afternoon near Kingston, Ont., affecting freight and passenger train service between Toronto and Montreal, and CN Rail went to court Saturday night for an injunction.

Ontario Superior Court Justice David Brown ordered them to leave by 12:01 a.m. ET Sunday and they left the site about then anyway, but as Brown noted in his reasons for the injunction, released Monday, it wasn't because police enforced the order.

"No person in Canada stands above or outside of the law," Brown said.

'Just 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.'  —Ontario Superior Court Justice David Brown

"Although that principle of the rule of law is simple, at the same time it is fragile. Without Canadians sharing a public expectation of obeying the law, the rule of law will shatter."

According to evidence before Brown from CN lawyers, the local sheriff got a copy of the injunction around 10:30 p.m. Saturday, within an hour of Brown making the order.

The sheriff contacted the Ontario Provincial Police officer on the scene of the blockade, who told her it was "too dangerous" to serve the injunction that night on the 15 protesters, but that the police would accompany the sheriff the next morning to do so, Brown said.

"I made a time-sensitive order because the evidence showed that significant irreparable harm resulted from each hour the blockade remained in place, yet the OPP would not assist the local sheriff to ensure the order was served by the time stipulated," Brown said.

"Such an approach by the OPP was most disappointing because it undercut the practical effect of the injunction order. That kind of passivity by the police leads me to doubt that a future exists in this province for the use of court injunctions in cases of public demonstrations."

About 1,000 passengers were affected and blockades can cause significant economic impacts as materials such as daily shipments of fuel for Air Canada and other airlines are transported through that artery, CN told the court.

Brown said he does not understand why the rail line had to be shut for several hours in Marysville, Ont., while CN rushed off to court and the police "simply stood by, inactive."

"We seem to be drifting into dangerous waters in the life of 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," he said.

The fact that CN had to turn to the courts at all is puzzling, Brown said.

"In light of those powers of arrest enjoyed by police officers, why does the operator of a critical railway have to run off to court to secure an injunction when a small group of protesters park themselves on the rail line, bringing operations to a grinding halt?" he wrote.

Brown also noted he issued an injunction to end a First Nations blockade of a rail line in Sarnia, Ont., on Dec. 21 and it wasn't enforced until Jan. 2 "under pressure from another judge of this court."

The fact that the protesters were First Nations people has no bearing on this case, Brown said.

'Straight-forward political protest'

A previous court decision about a land claim dispute in Caledonia, Ont., said that when injunction motions involve aboriginal people, treaty rights must be considered and negotiation, not litigation, is the way to go.

But this protest had nothing to do with the land-claim process, rather it was a "straight-forward political protest," Brown said.

"Just as 15 persons from some other group would have no right to stand in the middle of the main line tracks blocking rail traffic in order to espouse a political cause close to their hearts, neither do 15 persons from a First Nation," Brown said.

The blockades are part of the Idle No More movement, which began last month in protest of the federal government's omnibus Bill C-45.

First Nations groups claim the bill threatens their treaty rights set out in the Constitution. The protesters on the rail line in Marysville said they were showing support for First Nations chiefs in an upcoming meeting with the prime minister, Brown said.

A spokesman for the Ontario Provincial Police was not immediately available for comment.