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)

Today Commission Counsel Art Vertleib, Q.C. advised us that the Missing Women Commission of Inquiry will not be sitting this Thursday, November 10 or at all next week.  The Commission will resume hearings on November 21, 2011 and will apparently sit for only another eight days this year, until December 1, 2011, before adjourning until some time in January.

Although the Terms of Reference say that this public nquiry has been convened to inquire into VPD and RCMP investigations conducted over a five year period, and although we are now in the fifth week of Commission hearings, we have yet to hear any testimony from a single police investigator, and as far as we know, none are on the horizon.

This raises all sorts of questions…

This morning, Vancouver Police Department Deputy Chief has taken the stand.  Under questioning from Commission Counsel Art Vertlieb, Q.C., he has testified extensively about his qualifications, at one point saying that a judge had advised him “that my evidence was the best he had ever heard.”

He is expected to be on the stand for some time.  Mr. Vertlieb said, “I am not going to stand you down from examination in chief until Deputy Chief Evans’ report is available”.

That was a reference to an anticipated report from Peel Regional Police Deputy Chief Jennifer Evans, who has been poring over the files and interviewing witnesses for about a year.  Although we haven’t been told when the report will be delivered, the media has reported that Commission spokesman Chris Freimond indicated it will be ready by November 14.

We don’t know yet whether any other VPD witnesses will be testifying at the hearings, as we haven’t got a witness list yet.  As far as we can tell, Lepard didn’t actually work on the missing women investigation case, but spent some eight years, from September 2002 until August 2010, conducting a review of his Department’s conduct.

“We don’t do anything by ambush here…” – Commissioner Oppal, October 27, 2011, Transcript, p. 134

The fourth week of the Missing Women Commission of Inquiry hearings ended oddly, with Commission Counsel Art Vertlieb, Q.C. opening the day by unexpectedly reading correspondence between him and I into the record for forty minutes.  The object of the exercise was unclear, but he established that I had been seeking full disclosure of documents and a witness list since early this year.  (At this point, we still have neither).  I responded by wondering out loud why Jennifer Evans of Ontario was given access to all the files last December, while I, the lawyer for the families of this missing and murdered women, wasn’t able to see them for another six months.  Mr. Vertlieb didn’t really have an answer to that question, saying, “I don’t know when she was given access to the documents” and “maybe different considerations applied” to her.  All very puzzling.

The hearing ended at about noon.  Next week, the first police witness, Vancouver Deputy Chief Doug LePard, is scheduled to testify.

The following is one of a series of occasional comments on my participation in the Missing Women Commission of Inquiry and includes my personal opinions, a form of expression protected by the Canadian Charter of Rights and Freedoms.  Every effort is made to ensure factual statements are accurate.

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My associate Neil Chantler and I represent the families of 18 missing and murdered women at the Missing Women Commission of Inquiry.  One other family is represented by counsel, but I haven’t seen their lawyer in attendance since the first morning.  As a result, our task in trying to reveal the whole truth about why it took police nearly five years to arrest the man considered responsible for up to 49 murders is a most daunting, uphill struggle against the most powerful entities in our society, who seem intent on packaging the case neatly for public consumption.

Consider these facts: the RCMP, the Vancouver Police Department and the Criminal Justice Branch have been working on these matters since 1997.  They have access to virtually unlimited public funds and, when it became apparent in 2002 that there would be serious questions about the conduct of the investigations, they put their lawyers to work.  The VPD retained the services of Farris LLP, one of Vancouver’s most respected litigation firms, and the RCMP called upon lawyers from the Canada’s Department of Justice.  These lawyers have been poring over the files for almost a decade.

We were retained to represent families in October, 2010, and we initially acted on a pro bono (without fee) basis.  We immediately applied for participant status and the Commission conferred such status on our clients concurrently with the RCMP, VPD and CJB, in January, 2011 “in advance of the other applicants due to their clear legal interest in the subject matter of the Commission.”

In February, 2011, without notice to us, the Commission reached an agreement with the other three participants about the manner in which their records would be vetted, redacted and disclosed.  We did not get access to any documents at all until June of 2011.  When we finally saw the files for the first time, we could tell that huge numbers of records were being withheld.  We started requesting proper disclosure, and we are currently preparing a compendious application for full disclosure, which we hope will be heard soon.  Department of Justice lawyers say there are over 2 million pages of documents in “the Project Evenhanded database”, but we’ve been given access to perhaps ten percent of that, “only” about 200,000 pages.  (The number changes daily, as documents continue to arrive, sometimes in a trickle, sometimes in a flood, even though the hearings are well under way).

So, let’s look at the playing field:

The RCMP, the VPD and the CJB have each had teams of lawyers carefully reviewing all the files for several years.  Mr. Chantler, myself and a paralegal have had four months to access and digest the material, heavily redacted, over the last four months.

The RCMP, the VPD and the CJB seem to have as much public funds as they need for their legal teams.  While the provincial government has commendably granted the families of the missing and murdered women funding for legal assistance, it is tightly limited.

The Commission itself has a staff of at least fourteen people, including at least eight lawyers, and has reportedly spent $2 million since October 2010 in preparation for this matter.  They have also retained “Independent Commission Counsel”, Jason Gratl and Robyn Gervais, who are obviously working extremely hard, but they have no actual clients to serve.

When I attend the hearing each day, I look around at the desks in the room and see the Commission’s lawyers plus teams of lawyers representing the RCMP, the VPD, the CJB, Vancouver Police Union, a VPD member and a former VPD member.  Any interested observer can gauge how interested all these other lawyers are in ferreting out the truth by attending the hearings or reading the transcripts.

So, a level playing field?  You be the judge.