DATE:  20061214
DOCKET: C45859 and C45933

COURT OF APPEAL FOR ONTARIO

O’CONNOR A.C.J.O., LASKIN AND FELDMAN JJ.A.

BETWEEN:

HENCO INDUSTRIES LIMITED

Applicant

- and -

HAUDENOSAUNEE SIX NATIONS CONFEDERACY COUNCIL, JANIE JAMIESON, DAWN SMITH, OR ANY AGENT OR PERSON acting under their instructions, JOHN DOE, JANE DOE and any other Persons unknown, and THE CORPORATION OF HALDIMAND COUNTY

Respondents

BETWEEN:

RAILINK CANADA LTD. carrying on business as THE SOUTHERN ONTARIO RAILWAY

Plaintiff

- and -

HAUDENOSAUNEE CONFEDEACY OF MOHAWK, SENECA, CAYUGA, ONONDAGA, ONEIDA, TUSCARORA NATIONS; SIX NATIONS OF THE GRAND RIVER BAND OF INDIANS, CLYDE POWLESS; JAQUELINE HOUSE; HAZEL HILL; DAWN SMITH; SEAN MT. PLEASANT; WES HILL; JANE DOE; JOHN DOE; and PERSONS UNKNOWN

Respondents

Dennis W. Brown Q.C., Malliha Wilson, Orlando Da Silva and Christopher Thompson, for the Attorney General of Ontario

Mark J. Sandler and Denise Dwyer, for the Ontario Provincial Police

Kenneth Peel, for RaiLink Canada Ltd.

Michael Bruder, for Henco Industries Limited

W. B. McKaig, for The Corporation of  Haldimand County

James O’Reilly, amicus curiae for the perspectives of Aboriginal Peoples

David Byers and Manizeh Fancy, amicus curiae for the perspectives of the residents of Caledonia and Haldimand County

Darrell Doxtdator, agent for The Six Nations Council and Chief David General

Heard:  September 25 and 26, 2006

On appeal from the order of Justice T.D. Marshall of the Superior Court of Justice, dated August 8, 2006, with reasons reported at [2006] O.J. No. 3285 (Q.L.).

LASKIN J.A.:

A.        Introduction

[1]               This appeal raises two narrow issues arising from proceedings in the Superior Court of Justice concerning what has become known as the standoff at Caledonia. 

[2]               In February of this year, a large group of Six Nations Aboriginal protestors occupied property in Caledonia, known as Douglas Creek Estates, and refused to leave. Henco Industries Limited, a developer that then owned the property, obtained an injunction requiring the protestors to vacate the property and cease interfering with its development.  Many protestors refused to do so.  Henco then brought contempt proceedings against them.

[3]               The motions judge, Marshall J., found those who did not leave the property – both named and unnamed persons – in criminal contempt for breach of the injunction.  The Ontario Provincial Police arrested twenty-one persons, who, by virtue of their arrest, were convicted of contempt and sentenced.

[4]               Still the impasse continued.  It was accompanied by violence in the community: barricades were erected; a bridge was destroyed; the local rail line could not operate; vandalism, thefts and assaults occurred.  Protestors continued to occupy the property

[5]               In an attempt to relieve the impasse, the Ontario government decided to purchase Douglas Creek Estates from Henco and let the protestors remain on it.  On July 5, 2006, the day after its purchase, the government joined Henco in asking the motions judge to dissolve the injunction.  On August 8, 2006, the motions judge delivered his judgment, which is the subject of this appeal.  It contains two paragraphs. 

[6]               In paragraph 1, the motions judge ordered that the Attorney General of Ontario take carriage of the “matter of contempt”, that a case management meeting would be scheduled so that the Crown could apprise the public of its progress, and that he would remain seized of the matter until it was resolved.  In paragraph 2, he ordered that the injunction granted in favour of Henco would bind the Crown and that it would not be dissolved “until the criminal contempt has been disposed of.”  These two paragraphs alone are in issue on this appeal. 

[7]               The Attorney General of Ontario and the OPP submit that both paragraphs of the motions judge’s order are flawed and should be set aside.  The amicus curiae for the perspectives of Aboriginal Peoples, whom the Associate Chief Justice of Ontario appointed to assist the panel on this appeal, and the Six Nations Council support the appeal.  The amicus curiae for the perspectives of the residents of Caledonia and Haldimand County, whom the Associate Chief Justice of Ontario also appointed to assist the panel, oppose the appeal.  Other parties support at least some of the appellants’ submissions.

[8]               I would maintain paragraph 1 of the motions judge’s order but on three conditions: (i) no person may be found in criminal contempt for breach of the injunction unless new contempt proceedings are brought and the person is given a fair opportunity to be heard; (ii) new contempt proceedings may be brought only for alleged breaches of the injunction during the period between April 21 and July 4, 2006; and (iii) the Attorney General and the police, in the exercise their discretion, shall decide whether to bring further contempt proceedings.

[9]               I would maintain this paragraph because the referral to the Attorney General and the case management of that referral is a lawful exercise of the motions judge’s discretion.  I have included the first condition because the conduct of the contempt proceedings to date has been seriously flawed.  The motions judge’s finding of contempt permitted the OPP, instead of the court, to determine who was guilty of criminal contempt, operated prospectively instead of retrospectively and was made without affording basic procedural fairness to any of the twenty-one persons convicted.

[10]          I have included the second condition because, on the record before us, all possible contempts for breaches of the injunction that occurred before April 20 have already been dealt with; and, after July 4, when the Ontario government purchased the property, there have not been, and indeed cannot be, any breaches of the injunction.  The injunction prohibited interference with Henco’s development.  The mere occupation of Douglas Creek Estates with the consent of the Ontario government does not breach any court order.

[11]          I have included the third condition to ensure that the court does not seek to review the way the police exercises its operational discretion in enforcing the law and the Attorney General exercises his prosecutorial discretion.

[12]          I would set aside paragraph 2 of the motions judge’s order and in its place I would order that the injunction is dissolved effective July 5, 2006.  In my view, the motions judge erred in law and in the exercise of his discretion in maintaining the injunction against the wishes of both the previous owner of the property, Henco, and the current owner, the Ontario government.

[13]          I emphasize that the legal issues on this appeal are narrow.  The two broader questions that surround the standoff – the validity of the Six Nations land claim, which gave rise to the protest, and the wisdom of permitting the protestors to remain on the property while the land claim negotiations continue – are not before this court.  The first question will, preferably, be resolved at the negotiating table.  The decision on the second question rests with the Ontario government.

B.        Brief Chronology

1.                  Six Nations’ Land Claims

[14]          The mass protest in Caledonia has its origins in Aboriginal land claims.  Between 1976 and 1994, Six Nations asserted thirty land claims against the federal government.  Six Nations has claimed entitlement to the Halidmand Tract, a 950,000 acre parcel of land, which extends six miles on either side of the Grand River, from the river’s source to Lake Erie.

[15]          Some of the thirty land claims will be addressed through the federal government’s special claims system.  The others are being litigated.  In 1994, Six Nations began an action against Canada and Ontario.  They have asked for a judicial investigation into the land dealings in the Haldimand Tract for the past 200 years.  They seek an accounting of the proceeds of sale of the lands they have surrendered.  Canada and Ontario are defending this litigation.  This action raises a myriad of constitutional, Aboriginal and property law issues. 

2.                  Occupation of Douglas Creek Estates

[16]          Within the Haldimand Tract lies Douglas Creek Estates.  It is a residential subdivision in the Town of Caledonia.  And it is the site of Six Nations’ mass protest.  Until July 4, 2006, Douglas Creek Estates was owned by Henco. 

[17]          In late 2005, Henco registered a plan of subdivision for Douglas Creek Estates and entered into an agreement with Haldimand County to obtain municipal utilities and services.  The Six Nations Band Council was given notice of the plan of subdivision.  It did not file an objection to the plan.  In early 2006, Henco began construction.

[18]          On February 11, 2006, apparently out of frustration with the pace of the land claims, Haudenosaunee Six Nations Confederacy Council, a distinct entity from the band council, notified Henco in writing that people from the Six Nations intended to assemble on Douglas Creek Estates.

[19]          On February 28, 2006 a group of protestors belonging to or associated with Six Nations occupied Douglas Creek Estates and blocked the roadway entrance to the property by parking cars on the streets.  They did so to try to stop, or at least disrupt, further development of the subdivision.  Protesters also erected barricades on the streets surrounding Douglas Creek Estates – Argyle Street, Thistlemoor Drive, Surrey Street and Highway 6 – and on the local railway line owned by RaiLink Canada Ltd.  The protest and the blockades were followed by acts of civil disobedience, vandalism, thefts and assaults in and around Douglas Creek Estates. 

3.                  The Henco Injunction

i)         Matheson J. Issues a Without Notice Injunction Order on March 3, 2006

[20]          Because the Six Nations protest impeded its development, Henco brought a motion without notice for injunctive relief.  It sought relief against the Confederacy Council; against three individual respondents, Janie Jamieson, Dawn Smith and Tom Deer; and against “John Doe” and “Jane Doe”, representing unidentified protestors.[1]  On March 3, 2006, Matheson J. granted Henco’s motion and made the following interim and interlocutory orders:

ii)        Matheson J. Provides for Substituted Service of his Order

[21]          Matheson J. also provided for service of the injunction.  He ordered that service could be effected by posting Henco’s notice of motion and the injunction order at Thistlemoor Drive and Surrey Street in Douglas Creek Estates, and at the municipal office of the Corporation of Haldimand County, and by delivering the notice of motion and injunction order to any persons manning the barricades.

[22]          The Sheriff tried to deliver Matheson J.’s order to the protestors late Sunday evening, March 5.  They would not accept delivery.  One of the protestors, the respondent Dawn Smith, burned the order.  The burning was broadcast on local television.  The next day the protestors burned the order again.

iii)      Marshall J. Issues a Permanent Injunction on March 9, 2006

[23]          The protestors refused to comply with Matheson J.’s order.  Instead, on March 7, a group calling itself the Trustees of the Mohawk Nation Grand River served the Attorney General of Ontario[2] with a notice of constitutional question, styled as a claim that the Haldimand is the supreme law of the land and that Canada does not exist as a country.

[24]          The motion to continue Matheson J.’s injunction had been scheduled for March 9.  As the protestors had refused to comply with the injunction, Henco also brought a motion returnable March 9 asking the court to find the respondents in contempt for breach of the March 3 order.  Counsel for Henco, the Attorney General and Haldimand County appeared on the return of the motion.  None of the Aboriginal respondents appeared.

[25]          Marshall J. made three orders on March 9.  At Henco’s request, he made the March 3 order, the interim and interlocutory injunction, permanent;[3] he adjourned Henco’s contempt motion to March 16; and he ordered that the service of the contempt motion on the respondents could be effected by the same methods Matheson J. had provided for service of the injunction order. 

4.                  The Contempt Orders and their Enforcement

i)         The Motions Judge Finds the Respondents in Contempt on March 17, 2006

[26]          The motions judge heard Henco’s contempt motion over two days, March 16 and 17, 2006.  Henco filed an affidavit attesting to the protestors’ continuing breach of the injunction through their occupation of Douglas Creek Estates.  The respondents filed no evidence.  However, Ms. Smith did appear at the hearing.  She asked the motions judge to recuse himself because he owned land in the Haldimand Tract.  He declined to do so.  Ms. Smith read two letters, one addressed to the Queen and the other to the general public, contending that her people had never relinquished title to North America.  On three occasions she told the motions judge that she did not recognize the court’s jurisdiction.  Dr. Anthony Hall, a historian, also attended the hearing at the request of the respondents.  He asked to give expert evidence on historical and political matters affecting the Haldimand Tract.  The motions judge concluded that his evidence was not relevant. 

[27]          The motions judge issued his order on March 17.  He held the respondents, the Confederacy Council, Ms. Jamieson, Ms. Smith and “unknown persons identified as John Doe and Jane Doe” in both civil and criminal contempt for breach of the injunction.[4]  He found that the order of Matheson J. was “clear and unambiguous”, that proper notice had been given, that he was satisfied beyond a reasonable doubt these respondents had breached the order, and that they intended to do so.  He concluded that “here the [r]espondents, I find, defied the clear Order of the court, and in a very public way, which was their intent.  They could not have but known that such defiance would harm the court’s enforcement of its orders generally.”

[28]          The motions judge heard submissions from counsel and from Dawn Smith on the appropriate penalty and the enforcement of his order in the light of the number of protestors on the property.  He began his reasons on penalty by stating that he did not want to sentence anyone to jail and that he hoped, having made this point, the respondents would abandon their protest at Douglas Creek Estates.

[29]          To give effect to his intent, the motions judge sentenced the respondents – named and unknown – to thirty days in jail, but suspended sentence for six months once they had been taken into custody, photographed and fingerprinted.[5]  For respondents who complied with the injunction for six months “that [would] be the end of the matter.”  Respondents who did not comply would serve a thirty day sentence.

[30]          The motions judge also ordered the Sheriff to go to Douglas Creek Estates, read aloud the March 17 contempt order and the March 3 injunction order of Matheson J., and distribute copies to anyone present.  Finally, the motions judge ordered that warrants of committal for contempt be issued.  However, he delayed their execution for five days to permit the respondents to “quit the blockade and leave Douglas Creek Estates.”

[31]          During the hearing of the motion on March 16 and 17, both counsel for the Sheriff and Ms. Smith suggested the need for a show cause hearing before a person could be found in contempt.  The motions judge rejected their suggestion.  In his view, his order, under which the OPP would give protestors an opportunity to leave the property before arresting them, was an adequate substitute for a show cause hearing. 

ii)        The Motions Judge Issues a Second Contempt Order on March 28, 2006 

[32]          Before any warrants of committal had been executed, the Attorney General brought a motion to amend the motions judge’s March 17 order to better promote its intent.  The Attorney General, supported by the OPP, proposed a new form of an order and warrant of arrest in which the motions judge would:

[33]          The motions judge accepted the Attorney General’s proposed amendments.  On March 28 he issued a new order of contempt and a warrant of arrest that incorporated these amendments.  The warrant of arrest was directed to all police officers in Ontario and ordered them to arrest Dawn Smith, Janie Jamieson and unknown persons present at the barricades and blocking access to Douglas Creek Estates in contravention of the injunction.  The warrant also required the police to take reasonable measures to ensure that the offenders understood the order.

iii)      The OPP Execute the Warrant of Arrest on April 20, 2006

[34]          On April 20, more than three weeks after the motions judge’s second contempt order, the OPP went to Douglas Creek Estates and arrested twenty-one persons under the warrant of arrest. 

[35]          Immediately after the arrests were made, the conflict between the protestors and the government intensified.  Many more protestors occupied Douglas Creek Estates; the occupation expanded to include the surrounding roads; an OPP officer was hit by a bag of rocks; the Sterling Street bridge was burned to the ground; fires were set near railway tracks at Sixth Line; and supporters of Six Nations protestors blocked railway tracks at Marysville.

[36]          Despite these consequences of enforcing the contempt order, the OPP continued to investigate criminal activity arising from the protest.  To the date of the appeal, the OPP has laid fifty-three charges for breaches of the injunction and other breaches of the peace against twenty-eight individuals.  We were told that these charges will proceed normally through the criminal justice system. 

5.                  The RaiLink Injunction

[37]          RaiLink, which carries on business as the Southern Ontario Railway, provides freight rail services to a number of communities in southwestern Ontario, including Caledonia.  Despite the Six Nations protest, RaiLink was able to maintain its usual railway operations up to April 20, 2006. 

[38]          Service ceased, however, after the OPP executed the warrant of arrest.  The obstructions and blockades that followed the arrests made rail service impossible.  Indeed, the OPP directed RaiLink to stop operating around Douglas Creek Estates. 

[39]          Unable to carry on its business, RaiLink asked the motions judge for injunctive relief.  On May 4, 2006 he granted an injunction to permit RaiLink to resume its services around Douglas Creek Estates.  After negotiations between the federal and provincial governments and Six Nations, rail service resumed on June 14, 2006.   Although the RaiLink injunction remains in effect, it is not at issue in this appeal.

6.                  The Perspectives of the Residents

[40]          The Six Nations protest in and around Douglas Creek Estates undoubtedly has profoundly affected many of the residents in Caledonia and Haldimand County.  Although no resident filed an affidavit or testified before the motions judge, for the purpose of the appeal the amicus for the perspectives of the residents extensively canvassed the views of those living in the community, especially those persons living on the streets bordering Douglas Creek Estates. 

[41]          Although, in the absence of sworn testimony, I will refrain from making any express findings of fact on the residents’ perspectives, I think it fair to record the views that they expressed to the amicus.  By doing so I hope to provide a better context for the issues this court must resolve. 

[42]          The amicus grouped the residents’ perspectives under “five common themes,” which, he submitted, illustrate how the protest in Caledonia has adversely affected those who live there.  I am content to follow his outline, though I note that no specific timeframes are given for any of these perspectives or the incidents relied on.  Nonetheless, these are the five themes: some residents (i) fear for their safety and the safety of their families because of threats of physical violence from protestors, acts of vandalism, throwing of rocks at houses, and the presence of police, sometimes in riot gear, in residential areas; (ii) claim that the protestors have interfered with the quiet enjoyment of their property by revving car engines, playing loud music, chanting and beating drums, all in the middle of the night; (iii) claim that property values in the town have dropped because of the dispute, and say that potential buyers view Caledonia as an unsafe place to raise a family; (iv) say that the dispute has caused them to suffer bouts of anxiety, including an ongoing concern every time their children step outside; and (v) feel that the government and the police have abandoned them. 

7.                  Negotiations Restore a Measure of Peace

[43]          Partway through the conflict, representatives of the governments of Canada and Ontario and Six Nations began to meet regularly and to work to ease tensions, restore calm, preserve order and, ultimately to resolve the dispute.  They did so in what has become known as the “Main Table Negotiations”.  The first meeting took place on May 9, 2006. 

[44]          Although the situation in Caledonia remained fragile, these negotiations have achieved some progress and have restored a measure of peace to the community.[6]   For example, on June 13, 2006, Six Nations removed the blockades on Highway 6 and the blockade of the rail line.  By the time of this appeal the protesters had removed all other barricades.  And they had substantially reduced their acts of civil disobedience.

[45]          Thus, at the time the appeal was argued essentially all that remained of the civil disruption was a group of protestors at Douglas Creek Estates.  The Ontario government, which now owns the property, was content to let these protesters remain there.  It had signalled its intention to obtain a negotiated settlement through the Main Table Negotiations.  In our reasons on the stay motion, reported at [2006] O.J. No. 3411 (Q.L.), we noted at para. 41 that “the parties involved in the negotiations described them as very productive, and in fact, precedent setting in the progress that has been made toward the potential resolution of a previously intractable, centuries-old dispute.” 

8.                  The Court-Ordered Status Hearings

[46]          In the three months after the OPP acted on the warrant of arrest, the motions judge, on his own motion, ordered the parties to appear before him to make submissions on the status of the enforcement of his contempt order.  He did so on four occasions: June 1, June 16, July 5 and July 24.

[47]          At each of these status hearings the motions judge sought an explanation from the Attorney General and the OPP why, as he saw it, “the rule of law has been suspended to some extent in our county,” the injunction had not been adhered to and his contempt order had not been enforced. 

[48]          The Attorney General did not dispute the desirability of these status hearings.  Instead, counsel for the Attorney General apologized for not having kept the motions judge informed about the enforcement of his order and suggested establishing a schedule for reporting to the court.  The OPP was agreeable to updating the court periodically and participating in case management conferences as long as no orders were made that interfered with its operational discretion.  The OPP also stressed that the motions judge’s warrant of arrest had already been enforced.

9.                  Henco’s Sale of Douglas Creek Estates to the Ontario Government and its Motion to Dissolve the Injunction

[49]          In mid-June 2006, in the midst of the negotiations with Six Nations, the Ontario government agreed to purchase Douglas Creek Estates from Henco.  Ontario made a political decision to allow the protestors to continue to occupy Douglas Creek Estates.  Therefore, a term of the sale agreement required Henco to obtain an order dissolving the March 3 and March 9 injunctions. 

[50]          The sale closed on July 4, 2006.  The next day, July 5, during the third of the court-ordered status hearings, Henco brought a motion to dissolve the injunctions.  No one opposed the motion.  Nevertheless, the motions judge reserved his decision.

10.             The Court-Ordered Status Hearing on July 24, 2006

[51]          As I have said, on July 24, 2006, the motions judge convened a fourth status hearing.  He did so to receive “submissions as to what the court should do with the extant orders of contempt.”  Counsel for the Attorneys General of Ontario and Canada , the OPP, Henco, RaiLink, Haldimand County, the Haldimand Law Association, and the Six Nations Elected Council all made submissions, as did the amicus curiae appointed by the motions judge to provide the court with advice on its legal options.  These submissions focused on whether the March 28 order continued to operate after the execution of the warrant of arrest on April 20, and what role the motions judge could assume in any future arrests and prosecutions for contempt.

[52]          Counsel for the OPP took the position that the court’s jurisdiction to supervise the enforcement of the injunction should be divided into two time periods: pre-April 20 and post-April 20.  In the OPP’s view, its execution of the March 28 order on April 20 finally disposed of all contempts that occurred before that date.  After April 20, however, new contempts of the injunction took place because of the protestors’ re-occupation of the Douglas Creek Estates.  The OPP submitted that the court could exercise its inherent jurisdiction to address these contempts, but would have to do so in new proceedings.  In its view, the March 28 order was spent after its execution and a new order would be required to address post-April 20 contempt matters.

[53]          Although the record is unclear, at one point the motions judge appeared to agree with the OPP’s position that the March 28 order had no continuing legal effect after its execution on April 20.  He did not, however, view the court’s involvement in enforcing the injunction as ending with the execution of the March 28 order.  Much of the hearing, therefore, was devoted to submissions on the court’s jurisdiction to continue enforcing the injunction through new orders. While emphasizing that the motions judge should allow the Crown to decide whether future contempt proceedings would be appropriate, the other parties conceded that the court was entitled to exercise its inherent jurisdiction to refer the matter to the Attorney General.  The Haldimand Law Association asked the motions judge to make a new contempt order, that, while allowing the OPP discretion over its execution, would “sen[d] a definite signal that it’s time the [site] was cleared.”  The motions judge declined to do so.

[54]          Importantly, the Attorneys General, RaiLink, the Elected Council and Haldimand County all expressed concern for maintaining the integrity of the ongoing negotiations to resolve the underlying land claim.  Although all counsel acknowledged that before July 4 the protestors had been in contempt of the injunction, these parties emphasized that a lasting resolution to the standoff was most likely to be achieved through negotiations.

[55]          At the conclusion of these submissions, the motions judge adjourned the proceedings to August 8, at which time he delivered the reasons that are under appeal.

11.             The Motions Judge’s Decision on August 8, 2006

[56]          The motions judge handed down his decision to the parties on August 8.  Throughout his reasons he expressed the view that the rule of law was not functioning in Caledonia and that his orders were not being enforced.  The motions judge went as far as to say, at para. 82, that he had jurisdiction to order that all negotiations over the Six Nations land claims be suspended “until the barricades are removed from Douglas Creek Estates and the rule of law restored to that property.”  He said, at para. 87, that “the government agents involved in these negotiations should, in deference to the court order, withdraw from these negotiations until the court orders are respected, and the rule of law returned and the barricades removed”.  And near the end of his reasons he repeated, at para. 95, that “there should be no further negotiations till the blockades are lifted and the occupation is ended.”  His formal order, however, contained no term suspending negotiations.

[57]          His order contained only two operative paragraphs:

THIS COURT ORDERS that the matter of contempt is to be referred to the Attorney General of Ontario for carriage, and at that time to be fixed in the course of a case management meeting, a time will be set so that the [c]ourt and the public may be apprised of the Crown’s progression or lack thereof in regard to the criminal contempt.  The [c]ourt will remain seized of this matter until it is resolved.

THIS COURT ORDERS that the injunction issued in favour of Henco Industries Limited binds the (new) property owner, Her Majesty the Queen in [R]ight of Ontario, and is hereby dissolved, but that dissolution is not to take place until the criminal contempt has been disposed of.

These two paragraphs alone are the subject of this appeal.

12.             This Court’s Stay on August 25, 2006

[58]          The Attorney General appealed the motions judge’s August 8 order and asked for a stay of the order pending appeal.  This panel heard the motion on August 22.  At the end of the oral hearing, we addressed the question of ongoing negotiations.  We recognized that although the motions judge’s formal order did not preclude negotiations, the parties felt constrained from negotiating because of the statements in the motions judge’s reasons.  Thus, we said that “the parties should be free to continue to negotiate if they choose to do so without fear of being in breach of contempt of a court order.”  We reserved the balance of the motion and gave our reasons on August 25.

[59]          We granted, in part, the relief the Attorney General had requested.  We stayed paragraph 2 of the motions judge’s order, finding it of dubious validity.  The stay suspended, until the hearing of the appeal, the order that the Henco injunction binds the provincial Crown.  It meant that the mere occupation of Douglas Creek Estates would not be a breach of the Henco injunction. 

[60]          We declined to stay paragraph 1 of the motions judge’s order.  Having stayed paragraph 2, however, we said that only contempts occurring before July 5, the date of the sale of Douglas Creek Estates to the Ontario government, could be the subject of the motions judge’s ongoing supervision.

[61]          I turn now to the legal issues on the appeal.  As we did in our reasons on the stay, I will begin with paragraph 2 of the motions judge’s order.

C.        Analysis

1.         Did the Motions Judge Err by Refusing to Dissolve the Henco Injunction Unconditionally?

(i)        Background

[62]          On March 9, 2006, the motions judge granted Henco a permanent injunction.  The injunction restrained both named and unnamed protestors from obstructing the roads in and around Douglas Creek Estates and from interfering with Henco’s construction work.  It also required the protestors to remove cars and take down the barricades they had erected on the public highways to prevent access to Douglas Creek Estates.

[63]          On July 4, 2006, Henco conveyed Douglas Creek Estates to the Ontario government.  The following day, July 5, Henco moved to dissolve the injunction.  As it had sold the property, it no longer needed the injunction.  Ontario supported the motion for dissolution.  It now owned the property and did not wish to enjoin the protestors.  No other party to the litigation opposed Henco’s motion.  Nonetheless, the motions judge refused to dissolve the injunction unconditionally.  Instead, he postponed its dissolution “until the criminal contempt has been disposed of.”  For convenience, I set out again paragraph 2 of his order:

THIS COURT ORDERS that the injunction issued in favour of Henco Industries Limited binds the (new) property owner, Her Majesty the Queen in [R]ight of Ontario, and is hereby dissolved, but that dissolution is not to take place until the criminal contempt has been disposed of.

[64]          As I have said, on August 25, 2006, we stayed paragraph 2.  We concluded that there was a serious question about its validity.  We expressed our concern in para. 19 of our reasons:

The Province owns Douglas Creek Estates.  It does not claim that the protesters are on its property unlawfully.  It does not seek a court order removing them.  It is content to let them remain.  We see no reason why it should not be permitted to do so.  If the protesters cause a nuisance or other disturbance affecting neighbouring lands or residents of Caledonia, then action may be required.  But no evidence was presented to us of any current incident requiring the intervention of the Attorney General, the Ontario Provincial Police (O.P.P.) or the courts.

[65]          The Attorney General reiterates the position he took on the stay.  He submits that the motions judge erred in law and improperly exercised whatever discretion he had by refusing to dissolve the injunction unconditionally as of July 5.  Only the amicus for the residents supports the motions judge’s order.  All other parties support the Attorney General’s position.  I agree with the Attorney General’s submissions.

[66]          The motions judge gave two reasons for refusing to dissolve the injunction as of July 5: as a matter of law, an injunction binds a subsequent purchaser until the court dissolves it; and as a matter of discretion, the court is entitled to continue the injunction until its breach is dealt with by contempt proceedings. 

[67]          On this record, neither reason is supportable.  As a matter of law, maintaining the injunction unjustifiably interfered with the government’s property rights.  As a matter of discretion, maintaining the injunction was not needed to deal with any breaches of it that had already occurred but had not been dealt with by contempt proceedings.

(ii)      The injunction does not bind the Ontario government as a subsequent purchaser

[68]          The motions judge held that despite the conveyance of Douglas Creek Estates to the Ontario government, the injunction continued because “if the law were otherwise – an injunction could be defeated by transferring ownership.”  Thus, in his view “the injunction here will bind the new owner with notice – as here until it is finally dissolved.”

[69]          In my view, the motions judge’s reasoning confuses two categories of cases.  In the first category, a person succeeds to the title of one who had obtained an injunction for its benefit; in the second category, a person succeeds to the title of one who is subject to an injunction.  The Ontario government is a person in the first category.  The legal principle the motions judge relied on applies to persons in the second category. 

[70]          Thus, if a defendant property owner is enjoined from doing things on its property, a person who purchases the defendant’s property with notice of the injunction may be bound by it.  The court will not allow the beneficiary of an injunction to be thwarted by a change in ownership. 

[71]          An example of a case in the second category is this court’s decision in Ruthig v. Stuart Brothers Limited (1923), 53 O.L.R. 558 (S.C. (A.D.)).  There, the plaintiff used a shallow ford to cross a river running through his property.  He had obtained an injunction to restrain the defendant, a milling company, from drowning the ford by damming the waters of the river.  The defendant, however, sold its mill and dam to another company.  Although the purchasing company bought the property with notice of the injunction, it caused the ford to flood.  The plaintiff moved to enforce the injunction against the purchaser.  The purchaser contended that it was not bound by the injunction because it was not a party to the original lawsuit.  The court rejected this contention.  Either the purchaser was bound by the injunction, or if not technically bound, was nonetheless bound to obey it or be guilty of contempt for obstructing the course of justice.  Middleton J. stated the applicable principle at 560-561:

Where there is an action brought concerning land, the defendant is not permitted to defeat the plaintiff by conveying the property which is the subject of the suit.

I am not at all troubled by the question as to whether the remedy against the offending grantee should be technically for a breach of the injunction or whether it should be for contempt of court – the distinction between these two remedies is well pointed out in the case of Seaward v. Paterson, [1897] 1 Ch. 545 – because the result is the same in either case.  The contempt, whether it is technically – a breach of the injunction, or whether it is contempt arising from the doing of the thing which it is known the Court has enjoined, has the same outcome – a writ of sequestration, as in this case.

See also MacMillan Bloedel Ltd. v. Simpson, [1996] 2 S.C.R. 1048, where the Supreme Court of Canada applied this principle.

[72]          The motions judge’s order misapplies this principle.  Henco is not a defendant; it is a plaintiff.  It is not subject to the injunction; it obtained the injunction for its benefit.  The Ontario government stands in Henco’s shoes.  If it wanted to do so, it may have been entitled to enforce the injunction against the protestors.  But it does not want to do so.  Instead, Ontario is content to permit the peaceful occupation of its property.  It has the right to do so.  As a property owner it has the right to use its own land as it sees fit, as long as it complies with municipal by-laws and the laws concerning nuisance and public safety. 

[73]          Ontario has complied with its legal obligations.  The record does not show that by permitting the protestors to remain, the government has breached any municipal requirements, created a nuisance or adversely affected public safety.  Nor even does the record show that after July 5 the public’s right to use the highways has been impeded. 

[74]          The Ontario government made a political decision to buy Douglas Creek Estates from Henco and to allow the protestors to remain on the property. The motions judge ought not to have interfered with that decision.  Even if he disagreed with the government’s decision because he wanted the protestors removed, he overstepped his role by keeping the injunction alive against the wishes of both the current and previous owners of the property.  Paragraph 2 of the motions judge’s order rests on a misapplication of the law.  And it unjustifiably interfered with the Ontario government’s property rights.  It ought to be set aside. 

(iii)     Outstanding breaches of the injunction can be addressed in contempt proceedings without maintaining the injunction.

[75]          The motions judge sought to support paragraph 2 of his order on a second basis: the exercise of his discretion.  He held that despite the wishes of Henco and the government to dissolve the injunction, he nevertheless had the discretion to maintain it until the outstanding contempt proceedings had been resolved.  He put it this way at para. 43:

The law is clear.  Just because Henco Ltd., and in this case, the Attorney General of Ontario and the Ontario Provincial Police are no longer interested in the enforcement of the injunction, this [c]ourt is entitled to continue the prosecution of the case for the reason that defiance of court orders transfers the conduct in question from a mere civil contempt to the realm of public depreciation of the authority of the court and tends to bring the administration of justice into scorn.  It has become a penal matter for the court to deal with, not unlike any other breach of a criminal statute in Canada .

[76]          The motions judge was right to be concerned about the defiance of the injunction.  The court has a legitimate interest in seeing that breaches of its orders are addressed in contempt proceedings.  But whether the court may also have a discretion to refuse to dissolve an injunction or to dissolve it on terms, despite the wishes of the party for whom the injunction was originally granted, is dubious.  I do not think, however, that I need decide this question, because even if this discretion exists, it must be exercised for a proper purpose.  Here, there was no proper purpose.

[77]          The motions judge considered that maintaining the injunction was necessary to uphold the integrity of the court’s orders.  He apparently thought that if the injunction were dissolved, the outstanding breaches of it could not be addressed in contempt proceedings.  I do not agree.  The dissolution of the injunction would not have prevented past breaches of it from being addressed in contempt proceedings.  In other words, the resolution of any outstanding contempts did not depend on maintaining the injunction.  The court had a continuing interest in the contempt proceedings.   It did not have a similar interest in the injunction, once the party for whose benefit it was originally granted sought its dissolution.  Keeping the injunction alive did nothing to uphold the integrity of the court’s processes.

[78]          Moreover, keeping the injunction alive meant that the protestors who remained on Douglas Creek Estates after July 5 risked being found in contempt even though they were on the property with the new owner’s consent.

[79]          Still, the amicus for the residents submits that the Supreme Court of Canada’s decision in Poje v. British Columbia (A.G.), [1953] 1 S.C.R. 516 supports the motions judge’s order.  I disagree because I think that the issue in Poje differed from the issue in this case.

[80]          In Poje, union picketers blocked the entrance to a dock to prevent cargo from being loaded onto a ship.  The company that owned the ship obtained an injunction to restrain the picketing.  When the picketers refused to obey the injunction, the company brought a motion to commit them for contempt.  The day before the return of the motion, the company and the union settled their dispute, and asked the court to dissolve the injunction and discontinue the contempt proceedings.  Farris C.J.B.C. refused the parties’ request.  Instead, he adjourned the motion to determine whether the picketing amounted to a criminal contempt of court.  He concluded that it did, fined all the picketers and sent one of them to prison.  Both the British Columbia Court of Appeal and the Supreme Court of Canada approved of the procedure that he had adopted.  Their decisions, however, focused not on the injunction, but instead on whether the trial judge had jurisdiction to continue the contempt proceedings on his own motion.  They held, at 527, that he did because the defiance of the injunction against picketing “tend[ed] to bring the administration of justice into scorn.” 

[81]          In the present case, no one disputes that the motions judge similarly had inherent jurisdiction to invoke contempt proceedings for past breaches of the Henco injunction.  Unlike in Poje, however, the issue on this part of the appeal is whether the motions judge erred by refusing to dissolve the injunction.  In my view, he did err.  He should have dissolved the injunction unconditionally on July 5. 

2.         Should the Motions Judge be Permitted to Require the Attorney General to Report Back to Him and to Remain Seized of the “Matter” Until it is Resolved?

                        (i)        Background

[82]          As is evident from the four status hearings that he ordered, the motions judge was of the view that the criminal contempt for breach of the injunction continued and that his jurisdiction to supervise or case manage the enforcement of his contempt order was ongoing.  His August 8 decision reflects this view.  He referred the criminal contempt proceedings to the Attorney General, ordered a case management meeting where the Attorney General would apprise the court and the public of his progress in dealing with possible contempts of the injunction, and said that he would remain seized of the “matter” until it was resolved.   Paragraph 1 of his order states:

THIS COURT ORDERS that the matter of contempt is referred to the Attorney General of Ontario for carriage, and at a time to be fixed in the course of a case management meeting, a time will be set so that the [c]ourt and the public may be apprised of the Crown’s progress or lack thereof in regard to the criminal contempt.  The [c]ourt will remain seized of this matter until it is resolved.

[83]          Both the Attorney General and the OPP appeal this paragraph of the motions judge’s order and submit that it should be set aside.  The amicus for Aboriginal perspectives and the Six Nations Council support the appeal.  The appellants accept that the motions judge had jurisdiction to refer the conduct of potential contempt matters to the Attorney General.   They question, however, whether he had jurisdiction to case manage future contempt proceedings.  They contend that he erred in requiring the Attorney General to report back to him and in remaining seized of the “matter” until it is resolved.  And, they contend that even if he does have this jurisdiction, he should not be allowed to exercise it for either of two reasons: first, on the record no outstanding contempts remain to be case managed; and second, the process the motions judge has used to date has been so flawed that we should not permit his ongoing supervision of the proceedings.

[84]          Haldimand County and the amicus for the residents oppose the appeal of paragraph 1 of the motions judge’s order.  They contend that the motions judge does have jurisdiction to supervise or case manage the enforcement of the injunction order, that not all criminal contempts have been dealt with, that the court and the public are entitled to be told of the progress of the contempt proceedings, and finally that the process used by the motions judge has been fair. 

[85]          To put the parties’ submissions in context, I will briefly outline the nature of criminal contempt.  Contempts are of two kinds, civil and criminal.  Civil contempt is disobedience of a court order in a private matter causing a private injury or wrong.  Criminal contempt is any private or public misconduct that interferes with a court’s process or seriously threatens the proper administration of justice.  See Canadian Judicial Council, Some Guidelines on the Use of Contempt Powers (May 2001).

[86]          Contempts can take place in the face of the court or outside the face of the court.  In these proceedings, we are dealing with criminal contempt committed outside the face of the court.  The large scale public defiance of a court-ordered injunction can amount to a criminal contempt that has been committed outside the face of the court.  See United Nurses of Alberta v. Alberta (A.G.), [1992] 1 S.C.R 901.  I turn now to the appellants’ arguments for setting aside paragraph 1 of the motions judge’s order.

(ii)      Do any contempts remain to be case managed?

[87]          Some of the debate over the validity of paragraph 1 of the motions judge’s August 8 order turns on whether the Crown and the OPP have already dealt with and have reported on all outstanding criminal contempts.  They say that they have done so.  Haldimand County and the amicus for the residents disagree. 

[88]          To address this debate, I think it helpful to divide the timeframe in question into three periods:

[89]          No possible contempts remain outstanding for the first period, March 28 to April 20.  As directed by the motions judge, the OPP went to Douglas Creek Estates on April 20 and arrested all twenty-one protestors who refused to leave the property.  By the terms of the motions judge’s order, on arrest these protestors were convicted and sentenced.  The Attorney General and the OPP have so reported to the motions judge on at least four occasions.  Although in his reasons the motions judge does not refer to the execution of the warrant of arrest or the reports back to him, I am satisfied that in this first period there are no remaining “contempt matters” to be case managed. 

[90]          All parties acknowledge that in the third period, July 5 to August 25, the court has no valid contempt power to exercise because no person has breached the injunction in this period.  That is so factually, as I outline below, not because we have concluded that the motions judge erred in failing to dissolve the injunction unconditionally as of July 5.  The law is clear that an order of the court, however wrong, must be obeyed until it is reversed or varied.  See Ontario (A.G.) v. Paul Magder Furs Ltd. (1991), 6 O.R. (3d) 188 (C.A).  Thus, even though the motions judge ought to have dissolved the injunction on July 5, it nonetheless remained in force until our stay on August 25.  During the time the injunction remained in force, protestors were required to obey it.  Any failure to do so would amount to contempt.

[91]          But from July 5 on, no protestor did breach the injunction.  The terms of the injunction are important.  The injunction did not prohibit protestors from merely occupying Douglas Creek Estates.  The injunction prohibited protestors from interfering with Henco’s operations and Henco’s use of the roads in and around Douglas Creek Estates.  By July 5, Henco had no operations in Douglas Creek Estates and was not using the surrounding roads.  The motions judge may have thought that the continued occupation of Douglas Creek Estates after July 5 breached the terms of the injunction.  If so, he was quite wrong.

[92]          The injunction also required the protestors to remove cars and barricades that were preventing access to Douglas Creek Estates.  On the record before us, by July 5 all cars and barricades preventing access to the property had been removed.  Therefore, there are no outstanding potential contempt matters in this third period to be case managed. 

[93]          That leaves the second time period, between April 21 and July 4, the period beginning after the OPP executed the warrant of arrest and ending when Henco sold Douglas Creek Estates to the Ontario government.  During at least part of this period, Henco was continuing to build its subdivision in Douglas Creek Estates.  Protestors who interfered with Henco’s development or blocked access to it would have breached the injunction, and so be subject to contempt proceedings.  No proceedings have been taken for any contempts that may have been committed during this period.  The Attorney General has said that he would prefer to negotiate rather than to prosecute.  Still, he has not clearly reported on whether it has carried out the motions judge’s mandate or explained why he has not done so.  Thus, at least in principle, contempt matters may remain outstanding for the second period. 

[94]          The appellants say that even if this is so, the motions judge’s jurisdiction to case manage these contempt matters is dubious.  They submit that the Attorney General (and through him, the OPP) should not be required to report back to the motions judge.  They also submit that the motions judge erred in remaining seized of the matter.  Most importantly, they argue that even if the motions judge had jurisdiction to require a report and to remain seized, we should nonetheless set aside paragraph 1 of his order in the light of the flawed process he has invoked to date.  They say that maintaining paragraph 1 will only perpetuate these flawed proceedings.

[95]          I will discuss these submissions in two parts: first, whether paragraph 1 of the motions judge’s order is a lawful exercise of his discretion; and second, even if it is, whether we ought to maintain this order in the light of the process he has used to date and his intent in remaining seized of the proceedings.

(iii)     Is paragraph 1 of the motions judge’s order a lawful exercise of his discretion?

[96]          In my view, on its face, paragraph 1 of the motions judge’s order is a lawful exercise of his discretion.  Contempt of court forms part of the court’s inherent jurisdiction. It is the means the law provides to protect the court’s authority from improper interference.  As the motions judge recognized, the rule of law depends on the court’s ability to enforce its own orders by punishing for contempt.  Where no other party has done so, the court may in its discretion even initiate contempt proceedings on its own motion to ensure that its process and authority are respected.  See Poje, supra and Some Guidelines on the Use of Contempt Power, supra.  

[97]          Here, the motions judge believed that widespread defiance of the injunction continued after April 20.  He was not prepared to let the “matter of contempt” rest.  Instead, in the exercise of his discretion, he decided that further contempt proceedings should be considered.  I am not persuaded that he exercised his discretion unreasonably.

[98]          The motions judge’s order itself consists of three elements: the referral of the contempt proceedings to the Attorney General; the requirement that the Attorney General report on his progress to the court and the public at a case management meeting; and the provision that the motions judge will remain seized of the “matter of contempt” until it is resolved.  In principle, none of these elements is objectionable.

[99]          The first element of the motions judge’s order – the referral to the “matter of contempt” to the Attorney General – is open to two interpretations.  On one interpretation, the motions judge intended that his finding of criminal contempt on March 28 and the warrant of arrest he issued that day would continue to apply to persons who occupied Douglas Creek Estates in breach of the injunction after April 20.  The Crown and the OPP would continue to act on his finding and re-execute the March 28 warrant of arrest.  On the other interpretation, the motions judge intended that the Attorney General should bring and conduct any new contempt proceedings for breaches of the injunction after April 20, which he would case manage and remain seized of until they were resolved.

[100]      The record does not entirely clear up this ambiguity.  At the status hearing on July 24, all the parties agreed with the OPP’s position that the March 28 contempt order and the warrant of arrest were spent after their execution on April 20, and that new proceedings would be necessary before anyone else could be found in contempt.  Although at one point during the hearing the motions judge appeared to accept the OPP’s position, some of his comments during the day suggest otherwise.

[101]      If, by his referral to the Attorney General, the motions judge intended that his March 28 finding of contempt and warrant of arrest would permit further convictions for criminal contempt, then paragraph 1 of his order cannot stand.  The OPP is likely correct in saying that the warrant of arrest is spent.  But even if the warrant is not spent, for reasons I will discuss, the contempt proceedings to date have been so flawed that continuing to use the same process would be untenable.

[102]      However, the referral to the Attorney General can stand if it means that any further convictions for criminal contempt must be based on new proceedings, which the Attorney General would bring and conduct.  I accept this more benign interpretation of the motions judge’s order.  It is consistent with how the parties viewed any further proceedings. 

[103]      Accepting that the motions judge intended any further conviction for contempt must be based on new proceedings, his referral of the “matter of contempt” to the Attorney General was the prudent course of action.  All parties concede this to be so.  Although a court has inherent jurisdiction to initiate and conduct contempt proceedings on its own motion, in cases of alleged widespread disobedience of a court order outside the face of the court, a judge lacks both the knowledge and the necessary resources to take carriage of these proceedings.  Moreover, allowing the Attorney General to conduct the contempt proceeding avoids the undesirable spectre of the court playing the role of investigator and prosecutor as well as judge.

[104]      Indeed, in cases like this one, referral of the carriage of contempt proceedings to the Attorney General is the course of action recommended by the Canadian Judicial Council.  In its Some Guidelines on the Use of Contempt Powers, supra, the Council said:

In most cases, it will be the wise course for the judge to leave the initiation of proceedings to the parties or to the Attorney General.  Indeed it may be appropriate particularly where there is a large number of defendants, for the court to request that the Attorney General take conduct of the proceedings [footnote omitted].

See also MacMillan Bloedel Ltd. v. Simpson (1994), 111 D.L.R. (4th) 368 (B.C.C.A.), aff’d on other grounds, supra

[105]      Although the appellants accept the referral to the Attorney General, they take issue with the second and third elements of the motions judge’s order.  I do not agree with their position.

[106]      The second element requires the Attorney General at a case management meeting scheduled by the motions judge to report to the court and the public on his progress in dealing with any potential outstanding criminal contempts.  At the status hearings called by the motions judge, both the Attorney General and the OPP agreed that reporting back was appropriate.  Indeed, on one occasion, counsel for the Attorney General even apologized to the motions judge for not having done so.  Now, however, the appellants argue that a reporting back requirement is wrong in law.  I make the following two points in support of the legitimacy of the motions judge’s order to report back.

[107]      First, as the Supreme Court of Canada recognized in Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3 at paras. 71 and 81, modern judges have assumed an active, managerial role over many different kinds of cases.  Reporting back is consistent with the modern court’s active supervision of litigation, and it does not compromise the functus principle because it does not alter the court’s final judgment, in this case the injunction.

[108]      Second, because criminal contempt engages the court’s inherent jurisdiction, the judge concerned with it will necessarily play a more active role than the judge presiding over an ordinary criminal trial.  Where the judge asks the Attorney General to take carriage of enforcing the court’s order, the judge can legitimately ask the Attorney General for a report on the steps he has taken to do so.  A report back is consistent with the court’s legitimate interest in ensuring that its authority and its orders are respected.

[109]      Thus, I agree with the observations of Farley J. in Canada Post Corp. v. Canadian Union of Postal Workers (CUPW), [1991] O.J. No. 2472 (Q.L.) (Gen. Div.) that a court may ask the police and the Crown to report on the exercise of their discretion:

Unless I am convinced otherwise, it would seem to me that in any case that was referred by the court to the Attorney General where he decided not to proceed in his prosecutorial discretion that it would be incumbent upon him to advise in open court why it was felt inappropriate to proceed since in essence the Attorney General is acting to assist the court.  I cannot but emphasize that this falls squarely within the role as set out in Boucher [v. the Queen (1954), 114 C.C.C. 263 (S.C.C.)] and which I have quoted above.

[110]      The third element of paragraph 1 of the motions judge’s order is the provision that he would remain seized of the “matter of contempt” until it is resolved.  In principle, this element of the order is also proper.  Again, because of the court’s role in contempt proceedings, the motions judge is entitled to remain seized of the “matter” until the Attorney General reports back on his conduct of the referral.

[111]      Accordingly, I am satisfied that paragraph 1 of the motions judge’s order represents a proper exercise of his discretion.  Even though it does, I must still consider whether it is appropriate to maintain paragraph 1 and if so, the time period it should cover.  Because, as I have said, the only breaches of the injunction not already addressed are those that may have been committed in the period from between April 21 and July 4, paragraph 1 of the motions judge’s order can apply only to this time period.  This answers the second question.  However, the appellants submit that even if paragraph 1 on its face is not legally flawed and is limited to this time period, the process leading up to it has been so flawed that it should be set aside.  They contend that maintaining paragraph 1 will serve only to perpetuate this flawed process.

(iv)      Has the process to date been unfair?

[112]      The Attorney General and the OPP submit that the process that the motions judge has used to date has been unfair in two important ways: first, during the proceedings, the motions judge improperly interfered with the OPP’s operational discretion in the enforcement of the law and the Attorney General’s prosecutorial discretion; and second – more critically – by his contempt order, the motions judge has convicted and sentenced numerous individuals without affording any of them even the most basic procedural fairness.  I agree with this submission. 

(a)       The motions judge has improperly interfered with the OPP’s opertational discretion and the Attorney General’s prosecutorial discretion.

[113]      Our courts have long recognized that the effectiveness of our justice system depends on the police’s operational discretion in investigating and enforcing violations of the law and the Crown’s discretion in prosecuting these violations.  Apart from instances of flagrant impropriety or civil actions for malicious prosecution, courts should not interfere with either police or prosecutorial discretion.  See R. v. Beare (1988), 45 C.C.C. (3d) 57 (S.C.C.); R. v. Power (1994), 89 C.C.C. (3d) 1 (S.C.C.); and Krieger v. Law Society ( Alberta), [2002] 3 S.C.R. 372. 

[114]      There are cogent reasons why the courts ordinarily have no business interfering with or questioning how the police and the Crown exercise their discretion.  Respect for the separation of powers and the rule of law depend on the courts not interfering. 

[115]      The court’s respect for police and prosecutorial discretion certainly applies in respect of ordinary criminal offences.  But here we are not dealing with an ordinary criminal offence; we are dealing with criminal contempt of court, which forms part of the court’s inherent jurisdiction.  Is the court then entitled to question how the police and the Crown exercise their discretion in respect of contempt proceedings?  In my view, the court ought not to do so unless the Attorney General has exhibited bad faith or otherwise acted improperly.  Thus, where, as in the present case, the court refers the conduct of contempt proceedings to the Attorney General (and implicitly to the OPP) the court should respect the police’s and the Crown’s discretion whether to initiate contempt proceedings, and if so, against whom.  To do otherwise would undermine the very rationale for the court’s contempt power: protection of the court’s process and respect for its authority.

[116]      This is especially so in a case like the present one, where the alleged widespread and ongoing defiance of an injunction occurs outside the face of the court.  In this kind of case, the police and the Crown, not the court, are in the best position to assess whether a serious breach of the injunction has occurred, and if so, by whom.  And even if the injunction has been breached, the police and the Crown must invariably balance many competing rights and obligations and must take account of many considerations beyond the knowledge and expertise of the judge. 

[117]      In the present case, for example, many considerations are at play beyond the obligation to enforce the law.  These considerations include Aboriginal and treaty rights, constitutional rights, the right to lawful enjoyment of property, the right to lawful protest, concerns about public safety, and importantly, the government’s obligation to bring about the reconciliation of Aboriginal and non-Aboriginal peoples through negotiation. 

[118]      The immediate enforcement and prosecution of violations of the law may not always be the wise course of action or the course of action that best serves the public interest.  The House of Lords explained this balancing exercise in R. v. Chief Constable of Sussex, ex parte International Trader’s Ferry Ltd., [1999] 1 All E.R. 129 at 137 (H.L.):

In a situation where there are conflicting rights and the police have a duty to uphold the law the police may, in deciding what to do, have to balance a number of factors, not the least of which is the likelihood of a serious breach of the peace being committed.  That balancing involves the exercise of judgment and discretion.

[119]      Therefore, although a judge presiding over criminal contempt proceedings may properly ask the police and the Crown to report fully on how they have exercised their discretion and why, the judge ought to go no further.  Unless the judge can point to some gross impropriety or some evidence of bad faith in the way the police and the Crown have exercised their discretion, the judge should accept their report and their explanation.  The judge ought not order the police and the Crown to exercise their discretion differently or even to review or question why that discretion has been exercised in a way the judge may find unpalatable.  Doing so might invite an inappropriate or irresponsible use of the contempt power, and therefore, disrespect for the court and its authority.  Such an exercise of the contempt power would run counter to its animating purposes: to uphold the dignity of the court and to maintain its process.  See United Nurses, supra

[120]      Here, there is no evidence that either the OPP or the Crown has exercised its discretion improperly or in bad faith.  Yet, on the record before us, the motions judge went further than he should have in reviewing both the OPP’s operational discretion and the Crown’s prosecutorial discretion.  He did so, apparently, because he was dissatisfied with what he viewed as the police’s and the Attorney General’s failure to fully enforce the injunction and his contempt order.  His reasons are replete with comments reflecting this dissatisfaction.  Perhaps the most obvious example is the following passage at paras. 51-52 of his August 8 reasons, where the motions judge directly addresses the discretion of the Crown and the police:

The discretion of the crown and police – It is clear that the police and the [C]rown have wide powers of discretion in when, and how to act.  The police and the [C]rown each have important roles in maintaining the peace.  But, that discretion should not be used to advance a particular policy.  That is not a proper exercise of their discretion.  They must not use their discretion to oust the rightful jurisdiction of the court or to defeat the court’s orders [footnote omitted].

The [C]rown and the police take the position, as I have said, that this is entirely a land claims matter.  That may or may not be the case – but it would be wrong to formulate a policy based on that assumption and wrongly use their discretion to further that policy.

[121]      These comments, respectfully, are not justified.  By seeking to review the way the police and the Crown have exercised their discretion, the motions judge stepped beyond the proper role of a court.

(b)       The persons convicted of contempt were denied procedural fairness.

[122]      On March 17, 2006 the motions judge found Dawn Smith, Janie Jamieson and persons unnamed in criminal contempt of court for disobeying the injunction.  On March 28 the motions judge amended his earlier order, but maintained the finding of contempt, varied the sentence to a probation order and issued a warrant of arrest.  On April 20, the OPP went to Douglas Creek Estates and executed the warrant of arrest against twenty-one individuals.  Under the terms of the motions judge’s order, by virtue of the arrest, all twenty-one persons were guilty of criminal contempt and sentenced to probation without ever participating in a proceeding against them or being given an opportunity to explain why the contempt finding was not merited.[7] 

[123]      In this court, counsel for the Attorney General conceded that the contempt proceedings and the convictions for contempt are fatally flawed.  This is a surprising concession because the terms of the motions judge’s March 28 order were those proposed by the Attorney General.  But it is a concession with which I agree.  Although we have no jurisdiction to overturn the convictions for contempt because none of the persons convicted has appealed, I will nonetheless address the flaws in the process.  In my view, there are three related and fundamental flaws.

[124]      First, the motions judge found a class of unnamed persons guilty of criminal contempt, and then delegated to the OPP the power to determine who was a member of the guilty class.  That is because the warrant of arrest entitled the OPP to decide who was in contempt.  Persons arrested were convicted and sentenced simply by virtue of their arrest.  They had no opportunity to contest their conviction.  Persons present on the property may not have been in violation of the warrant, which required the police to arrest only those “persons present at the barricades and blocking access to Douglas Creek Estates.”  Yet, on the motions judge’s order, even a person wrongly arrested would automatically be guilty of criminal contempt.  Under our criminal justice system, a court, not the police, determines individual guilt and innocence.  The motions judge disregarded this basic principle. 

[125]      Second, the motions judge’s March 28 order operated prospectively.  On that day, he found persons guilty of contempt in the future.  Under the motions judge’s order, a person who went to Douglas Creek Estates for the first time on April 20 could be found guilty of criminal contempt.  Courts find people guilty of a criminal offence for past conduct, not for conduct that might take place in the future.  The motions judge disregarded this principle too. 

[126]      Third, each person was convicted of contempt and sentenced without being afforded even minimum procedural fairness.[8]  The motions judge heard the contempt motions in a summary procedure without the trappings of a formal criminal trial.  That he was entitled to do.  Typically, a criminal contempt hearing is a summary proceeding.  See R. v. K. (B.) (1995), 102 C.C.C. (3d) 18 at para. 9 (S.C.C.).  What the motions judge was not entitled to do was deny those he convicted of contempt and sentenced the procedural protections of natural justice – the basic rights afforded to any person charged with a criminal offence.

[127]      Instead of providing that on arrest individuals were automatically convicted and sentenced, the motions judge should have given each protestor on the property an opportunity to be heard, an opportunity to call evidence and be represented by counsel, and if necessary, an opportunity to make representations on an appropriate sentence.  See K. (B.), supra, at para. 15; and R. v. Cohn (1985), 48 O.R. (2d) 65 ( C.A. ).  In his desire to end the occupation of Douglas Creek Estates, the motions judge denied those he found guilty of criminal contempt a fair process.  He was not justified in doing so.

[128]      For these reasons, I conclude that the convictions for criminal contempt are fundamentally flawed.   They were made without basic procedural fairness.  Because of the lack of fair procedures, I need not discuss whether the contempt proceedings also violated the Charter’s procedural fairness guarantees.  The remaining question, however, is whether the proceedings to date have been so tainted that we should set aside paragraph 1 of the motions judge’s order.

(v)              Should paragraph 1 of the motions judge’s order be set aside?

[129]      The Attorney General and the OPP submit that we should set aside paragraph 1 of the motions judge’s order for two reasons: first, maintaining the order will perpetuate the flawed process that has already occurred; or second, even if that is not true, because the process to date has been so unfair the motions judge should not be allowed to case manage or remained seized of any further contempt proceedings for breach of the injunction.  I do not accept this submission. 

[130]      I would not set aside paragraph 1, although I would limit its application by the conditions that I outline below.  I would uphold paragraph 1 for the following three reasons.  First, paragraph 1 represents a lawful exercise of the motions judge’s discretion.  Second, an important point of principle is at stake: the right of a judge to supervise and invoke contempt proceedings for breaches of a court order to maintain respect for the court and its process.  Here, the motions judge believed that there were ongoing breaches of an injunction, which in his view, neither the Crown nor the police had adequately enforced.  He was justifiably concerned about the apparent unpunished defiance of the court’s order, and therefore, justified in referring the “matter of contempt” to the Attorney General.

[131]      Third, this dispute has caused much community and public concern.  The protest at Douglas Creek Estates has unsettled the local residents.  An atmosphere of tension, even hostility, has permeated Caledonia.  In the midst of the protest, the government decided to purchase the property and let the occupation of it continue.  No doubt many residents object to what the government has done.  Probably many wonder why more protestors have not been found in contempt for breach of the injunction.  The motions judge was in the best position to assess whether the public’s concern about the protestors’ apparent defiance of the court’s order should be addressed by referring the matter to the Attorney General and by calling on the Attorney General and the police to report on how they had carried out that referral. 

[132]      In other words, the motions judge, in his discretion, determined that the court, the residents of Caledonia and Haldimand County, and the citizens of Ontario would be well served by a report from the Attorney General (and through it, or directly, a report from the OPP).  That determination was a proper exercise of his discretion.  The motions judge is entitled to require the Attorney General, in a public forum, to disclose how he has exercised its prosecutorial discretion in connection with any possible outstanding breaches of the injunction between April 20 and July 4, and why.  He is entitled to ask the Attorney General to explain his actions or his inaction in enforcing the court’s orders.  Similarly, he is entitled to require the OPP to explain how it has exercised its operational discretion in the enforcement of the law.    

[133]      Accordingly, I would uphold paragraph 1 of the motions judge’s August 8 order.  I would do so, however, on three conditions, which flow from my reasons on the proceedings to date.  First, no person can be found in criminal contempt for a breach of the injunction during this period unless new proceedings are brought and the person is given a fair opportunity to be heard; second, any further contempt proceedings for breaches of the injunction must be limited to breaches during the period between April 21 and July 4, 2006; and third, the Attorney General and the police, in the exercise of their discretion, shall decide whether to bring further contempt proceedings.

D.        Three Concluding Comments

[134]      I conclude these reasons with three brief comments, one about the importance of negotiations, one about the rule of law and one about the motions judge’s conduct of the proceedings.

1.         The Importance of Negotiations

[135]      In his reasons, the motions judge stressed that Six Nations, Ontario and Canada should stop their negotiations until the blockades were lifted and the occupation of Douglas Creek Estates ended.  Although his formal order contained no term suspending negotiations, it seems to me that the motions judge’s comments were unfortunate and at odds with the Supreme Court of Canada’s jurisprudence.

[136]      The Supreme Court of Canada has repeatedly said that negotiation, not litigation, is the best way for our country to reconcile the claims of our Aboriginal communities with the rights of the Crown.  In Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 at para. 186, Lamer C.J.C. discussed the importance of negotiations and the obligation of the Crown to negotiate in good faith:

Moreover, the Crown is under a moral, if not a legal, duty to enter into and conduct those negotiations in good faith.  Ultimately, it is through negotiated settlements, with good faith and give and take on all sides, reinforced by the judgments of this Court, that we will achieve what I stated in [R. v.] Vander Peet, [[1996] 2 S.C.R. 507], at para. 31, to be a basic purpose of s. 35(1) – “the reconciliation of the pre-existence of [A]boriginal societies with the sovereignty of the Crown”. 

[137]      More recently, in Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511 at para. 14, McLachlin C.J.C. reiterated that “[w]hile Aboriginal claims can be and are pursued through litigation, negotiation is a preferable way of reconciling state and Aboriginal interests.”

[138]      Although the motions judge’s reasons had the effect of interrupting the negotiations that had begun in May and according to the parties had already achieved some success, we were told that negotiations resumed after the stay hearing when we made it clear that the August 8 order did not preclude negotiations.  Addressing the disputed issues by negotiations has obvious advantages as long as all parties work reasonably and constructively towards a settlement.

[139]      At the same time, of course, I accept that negotiations are not a substitute for individual responsibility for criminal acts.  Still, the peaceful occupation of what is now Crown land points to reconciliation, not the force of the law, as the best way to achieve a lasting resolution of this dispute.

2.         The Rule of Law

[140]      Throughout his reasons the motions judge emphasized both the importance of the rule of law and his view that “the rule of law is not functioning in Caledonia” and “the law has not been enforced.”  As we said in our reasons on the stay motion, no one can deny the importance of the rule of law in Canada .  The preamble to our Constitution states that Canada is founded on principles that recognize the rule of law.  The Supreme Court of Canada has said that it is one of our underlying constitutional values.  See Reference re Secession of Quebec, [1998] 2 S.C.R. 217; and Reference re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753.

[141]      But the rule of law has many dimensions, or in the words of the Supreme Court of Canada is “highly textured.”  See Reference re Resolution to Amend the Constitution, supra, at 805.  One dimension is certainly that focused on by the motions judge: the court’s exercise of its contempt power to vindicate the court’s authority and ultimately to uphold the rule of law.  The rule of law requires a justice system that can ensure orders of the court are enforced and the process of the court is respected. 

[142]      Other dimensions of the rule of law, however, have a significant role in this dispute.  These other dimensions include respect for minority rights, reconciliation of Aboriginal and non-Aboriginal interests through negotiations, fair procedural safeguards for those subject to criminal proceedings, respect for Crown and police discretion, respect for the separation of the executive, legislative and judicial branches of government and respect for Crown property rights.

[143]      It seems to me that in focusing on vindicating the court’s authority through the use of the contempt power, the motions judge did not adequately consider these other important dimensions of the rule of law.

3.         The Motions Judge’s Conduct of the Proceedings

[144]      I have concluded that the motions judge erred in refusing to dissolve the injunction on July 5 when the Ontario government purchased Douglas Creek Estates from Henco, and I have been critical of his conduct of the contempt proceedings.  I should also say, however, that appellate review invariably takes place with the benefit of time, distance and a measure of detachment not always available to a trial judge.

[145]      For many months the motions judge presided over a dispute that often seemed incapable of any resolution, produced great hostility in the community and interfered with the daily lives of many residents in Caledonia.  His task was not an easy one.  A review of the record of the many court appearances shows without qualification that the motions judge exhibited great patience throughout, gave all parties and their counsel a fair opportunity to make submissions on how best to proceed, and sought to balance everyone’s rights while maintaining respect for the orders of the court.

E.        Result

[146]      I would allow the Attorney General’s and the OPP’s appeal in part. 

[147]      In paragraph 1 of his order dated August 8, 2006, the motions judge ordered that the Attorney General take carriage of the “matter of contempt”, that a case management meeting would be scheduled so that the Crown could apprise the public of its progress, and that he would remain seized of the matter until it is resolved.  I would maintain this paragraph of the motions judge’s order but on three conditions:

i)         No person may be found in criminal contempt for breach of the injunction unless new contempt proceedings are brought and the person is given a fair opportunity to be heard;

ii)                New contempt proceedings may be brought only for breaches of the injunction during the period between April 21 and July 4, 2006; and

iii)              The Attorney General and the police, in the exercise of their discretion, shall decide whether to bring further contempt proceedings.

[148]      In paragraph 2 of his order, the motions judge ordered that the injunction granted in favour of Henco binds the Crown and that it is not to be dissolved until the criminal contempts have been disposed.  I would set aside this paragraph of the order.  In its place I would order that the injunction is dissolved effective July 5, 2006.

[149]      Only RaiLink asked for costs of the appeal.  The Attorney General has agreed to pay its costs in an amount to be agreed on and I would so order.  I would make no other order for costs.

[150]      Finally, I express the panel’s gratitude to all counsel for their written and oral submissions.

RELEASED: Dec 14 2006        DOC  

“John Laskin J.A.”

“I agree Dennis O’Connor A.C.J.O.”

“I agree K. Feldman J.A.”



[1] In cases of large scale protests or demonstrations, plaintiffs now typically sue “John Doe and Jane Doe”, as proxies for unidentified persons against whom relief is sought.  See Julia E. Lawn, “The John Doe Injunction in Mass Protest Cases” (1998) 56 U. T. Fac. L. Rev. 101.  Naming John Doe and Jane Doe to represent unidentified protestors is, however, likely unnecessary because courts can enforce their orders against persons who are not parties to the action.  A non-party who disobeys a court order may be found guilty of contempt for interfering with the administration of justice.  See MacMillan Bloedel Ltd. v. Simpson, [1996] 2 S.C.R. 1048.

[2] The Attorney General of Canada participated in this litigation only in a limited way.  Therefore, throughout the rest of these reasons I will refer to the Attorney General of Ontario as the Attorney General.

[3] A week later, at the Attorney General’s request, the motions judge clarified that the injunction should continue only until trial.  His clarification was correct but his March 9 order was never amended.

[4] A person may be found in civil contempt for refusing to comply with a court order (other than an order for the payment of money) where the refusal causes a private injury or wrong.  A person may be found in criminal contempt for refusing to comply with a court order, where the refusal interferes with a court’s process or seriously threatens the proper administration of justice.  See Canadian Judicial Council, Some Guidelines on the Use of Contempt Powers (May 2001).

[5] Under the Identification of Criminals Act, R.S.C. 1985, c. I-1.

[6] This appeal was heard on September 25 and 26, 2006.  I do not comment on any later incidents or events.

[7] The respondent Dawn Smith did participate in parts of the contempt proceedings.

[8] Dawn Smith may be the exception.  See footnote 7.