According to media reports, the City of Vancouver will be in B.C. Supreme Court later today to apply for an injunction that would have the effect of evicting the Occupy Vancouver crowd from the Art Gallery grounds.  City Manager Penny Ballem is treating the matter as a fait accompli, and she’s probably right to do so, for the British Columbia courts have rarely shied away from granting such orders to government or corporate applicants.

However, in my humble opinion, using the civil court processes of injunction orders coupled with the prospect of contempt of court sanctions to control public behaviour is a wrongful abdication of responsibility.

It was wrong to use the courts to enjoin and punish Martin Luther King Jr. for marching in the streets of Birmingham in the 1960’s and it’s just as wrong today to invoke that process to clamp down on the Occupy Vancouver activists, no matter how misguided their movement may seem to be.

The problem with this approach is, as some courageous B.C. judges have pointed out*, that the court is forced to enter the fray, rather than fill its traditional role as an impartial arbiter.  A judge will be asked to craft a sort of criminal law of general application, then invite the police to enforce it and then punish those who disobey the court’s injunction order with extraordinary contempt of court sanctions.

This is completely wrong headed.  In a democratic society governed by the rule of law, our elected representatives are supposed to make the laws and see that they are enforced.  Here, the City and its law enforcement personnel have all the necessary authority to do maintain public order by enforcing existing laws and they shouldn’t be shirking their responsibility by treating the court as some kind of emergency responder.

This has the potential to get very messy, as ws the case when injunctions were granted to MacMillan Bloedel to prevent environmentalists from protesting against clearcut logging in Clayoquot Sound in the early 1990’s.  Hundreds of well-intentioned folks from all walks of life were tried en masse and jailed for expressing their opinions peacefully, in what I concluded, as a lawyer involved in the process, were some of the darkest days our legal system endured.

It remains to be seen whether history will repeat itself.

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*Notably, Wood J.A. (as he then was, dissenting in Greenpeace Canada v. MacMillan Bloedel Ltd., appeal to SCC dismissed) and McEwan J. (in Slocan Forest Products Ltd. v. Doe, 2000 BCSC 150 and Regional District of Central Kootenay v. Doe, 2003 BCSC 836)