NO. C994195
Vancouver Registry

IN THE SUPREME COURT OF BRITISH COLUMBIA

BETWEEN:

International Forest Products Limited, Elaho Logging Ltd.,
and B.R. Adam Limited

PLAINTIFFS

AND:

Barney Kern, John Doe, Jane Doe, and Persons Unknown

DEFENDANTS

______________________________

ARGUMENT OF THE B.C. CIVIL LIBERTIES ASSOCIATION

______________________________

I. INTRODUCTION

1. Although constitutional rights are discussed in this Argument, the British Columbia Civil Liberties Association (“BCCLA”, “Association”) is not conducting a Charter challenge. That is to say, the Association is not here applying for a constitutional remedy under s. 24 of the Canadian Charter of Rights and Freedoms. The Association also does not seek to challenge the Order as a “person affected” by it -although given the scope of the order the Association and its members are certainly “affected” - if our application for leave to intervene is accepted.

2. The goal of the BCCLA’s submissions to the Court in this matter is to provide submissions on particular factors which should have been considered by Mr. Justice Parrett before granting his Order of September 17, 1999 (the “Injunction”), and must be considered in any review of the terms of that Injunction. In particular, we seek to demonstrate that an Order of such breadth and magnitude is unjust and inequitable, and beyond the jurisdiction of the Supreme Court of British Columbia.

3. The BCCLA will restrict its submissions to sections (b) and (c) of the Injunction, which provide:

   THIS COURT ORDERS that the defendants and each of them, and anyone else having knowledge of this Order, be restrained and enjoined … from:

   (b) placing themselves… at any time (24 hours per day, 7 days per week) within a 500 metre radius exclusion zone around the area of any drilling, blasting or other road construction or falling operations for road construction in the areas covered by Road Permit No. R09478…

   (c) placing themselves… at any time (24 hours per day, 7 days per week) within a 200 metre radius exclusion zone on either side of the E1000 logging road extending from a point one kilometre south of the Lava Creek bridge North to the point of completed construction on the E1000 logging road…

4. It is the understanding of the BCCLA that, absent the terms of this injunction, any person would have access to the “exclusion zones” for lawful purposes, including for the purpose of peaceful assembly and expression.

5. This is the principle distinguishing feature between the case at bar and that of MacMillan Bloedel v. Simpson, infra. In that case, although the injunction applied to non-parties, it enjoined interference only. This Injunction is unique in that it bans third parties from merely being present in an important area of public land, regardless of whether their activities might possibly interfere with the lawful activities of the Plaintiffs.

6. As stated earlier, the BCCLA recognizes that this is not a Charter challenge. The fact that this is not a Charter case, though, is in a sense a procedural accident. If a forestry company, faced with disruptive protests, had simply called the police, and had the police arrested those disrupting logging on whatever grounds, it would be open for those so accused to raise their Charter rights in their defence against the charges. There is authority to suggest that this is by far the preferable route.

7. In B.C. today, though, we allow what amounts to an end-run around the Charter. It is commonly accepted that many anti-protest lawsuits filed by forestry companies are legal fictions, whose sole purpose is to provide a platform to support an “interlocutory” injunction. It is in turn understood that such an “interlocutory” injunction is anything but; it is in fact the raison d’etre of the proceedings, and is for all intents and purposes designed to be indefinite.

8. These injunctions are frequently sought ex parte, and, like the Injunction at bar, against both the defendants in the underlying action and “against the world”. This fact, combined with a lack of legal sophistication in the majority of those affected, means that, at first instance, there is no opportunity for those persons to argue their rights or the terms of the injunction.

9. While it is true that a non-party who is arrested pursuant to the injunction will be able to avail himself of Charter protections should he be prosecuted for criminal, as opposed to civil, contempt, the fact is that in such a case the Charter arguments could not be made unless the person is willing to violate the court order and be arrested. Unlike unconstitutional legislation or executive action, there is no method available for a non-party to challenge the constitutionality of an injunction which directly affects him.

10. Nor is it very helpful to suggest that a person, advised of the restriction of his constitutional rights, may apply to a court to have them restored by seeking a variance of the Order granted. Such restoration would come at the expense of time and money and would as such be impractical in almost every case; at any rate, the effect of the order is to force persons to pay, in time or money, for fundamental rights that are innately theirs, and which they have not put in jeopardy through any unlawful or harmful action. Moreover, if even a small percentage of innocent persons in B.C. whose rights had been diminished by the Injunction applied to have them reinstated, the Courts would be immediately overwhelmed; such injunctions diminish, albeit slightly, the rights of - literally - millions of innocent persons.

11. The fact that the regime described above uses the authority of the civil courts to provide a criminal sanction against protesters and others who are, injunction excepted, not committing any criminal acts, is of central concern to the BCCLA. In our submission, this is by far the least preferable way to deal with disruptive protests; at the very least, if such methods are invoked, the courts must be very careful in drafting the terms of such injunctions.

12. Under the current regime and jurisprudence, the employment of these “interlocutory” injunctions “against the world” has the effect of both substantially affecting the constitutional rights of non-parties, and immunizing the order from constitutional review unless the aggrieved person is willing to submit to criminal prosecution. This is, in the BCCLA’s submission, powerful support for the idea that constitutional rights must be weighed before the interlocutory injunction is granted. This is even more so where the constitutional rights affected are those of an enormous number of British Columbians who are not parties to the underlying action and not named in the injunction.

    II. OUTLINE OF ARGUMENT

13. The BCCLA relies on two central propositions:

    • First, the Association submits that there is no jurisdiction in the Supreme Court of British Columbia to enjoin non-parties to a civil suit from doing something that does not affect the private rights of the parties before it.

    • Secondly, the Court imposing injunctive restrictions is bound to consider any infringement of constitutional rights that would necessarily flow, and balance those against the objectives to be served by the injunction.

14. The first proposition is entirely consistent with the decision of the unanimous Supreme Court of Canada in MacMillan Bloedel v. Simpson. In the submission of the Association, Simpson extended the Court’s jurisdiction to enjoin non-parties only to the extent that the behaviour enjoined affects the private rights of one of the parties to the underlying litigation.

15. The second proposition will require the Association to demonstrate that the injunction affects constitutional rights, and also that the Court considering an injunction must consider the impact of its Order on these rights. This argument draws its support principally from the Supreme Court of Canada decisions in Simpson, supra, BCGEU v. B.C, and Dagenais v. C.B.C.

16. With respect to the second proposition, the Association will argue that:

    • The Injunction restricts constitutional rights: Although the BCCLA does not seek a “constitutional remedy” under the Charter, the Association does submit that the Injunction seeks to restrict, and has the effect of restricting the otherwise lawful exercise of constitutionally protected rights, including the rights of free expression, association and peaceful assembly, the right to a free press, and the right to liberty.

    • The Court must consider all relevant factors, including the effect of the injunction on constitutional rights: In the submission of the Association, because of the importance of the rights affected, it is incumbent upon a Court considering an injunction application to:

      • Grant an injunction against the exercise of constitutionally protected rights only in extreme and demonstrably justified cases;

      • take into account “Charter principles” by weighing the effect of an injunction on the Charter rights of all of those persons subject to the injunction; and

      • craft the terms of the injunction as narrowly as possible to accomplish the central goal, keeping in mind the underlying cause of action and the parties thereto.

17. In the case at bar, the BCCLA submits that, by the inclusion of sections (b) and (c), the Injunction unreasonably restricts the exercise of fundamental rights and freedoms, does not indicate adequate consideration of “Charter principles”, which must inform the judicial process whether civil or criminal, and was not drafted as narrowly as possible to accomplish its goals.

    III. ARGUMENT

    (a) Proposition One: The Supreme Court lacks jurisdiction to enjoin non-parties from non-harmful behaviour

18. The BCCLA accepts that, under certain conditions, injunctions may be drafted that bind or affect non-parties who receive notice of their terms.

19. However, the Association submits that there is absolutely no authority for restricting the lawful activities of innocent, unnamed persons via injunction. The leading case on the effect of injunctions on non-parties is MacMillan Bloedel v. Simpson (1996) 137 D.L.R. (4th) 633. In that case, the injunction in question was aimed at a blockade of a public road, and forbade any person with notice of the order from interfering with MacMillan Bloedel’s operations in a certain area. In that sense, the injunction was analogous to the Injunction at bar, with the exception of sections (b) and (c), with which the Association takes strenuous exception.

20. The unanimous Court in Simpson was clearly relying on the fact that the type of activity proscribed was activity at least alleged to be actionable and to have a negative effect on MacMillan Bloedel’s private rights. The Court said at 645 (D.L.R.):

    Subject to this caveat and other considerations bearing on the special circumstances of the case, the proposition that the courts possess inherent jurisdiction to issue injunctions to restrain large-scale public action violative of private rights enjoys wide recognition. [emphasis added]

21. In the case at bar there has been no suggestion that a law-abiding citizen, standing within 200 metres of the Elaho logging road peacefully expressing his views, would be doing so “violative of [the Plaintiffs’] private rights”. The same can be said for persons entering the area for any number of lawful purposes, and is especially true with respect to members of the press, whose rights will be discussed further infra.

22. We reiterate that the activity enjoined in Simpson was ‘interfering’ activity. The persons arrested were blockading a logging road, not simply standing within 200 metres of it. The Court held at 646:

    Finally, it is necessary that the orders be carefully worded and constrained to ensure that they are fair and not unduly broad. This requirement, too, was met in the case at bar. Over the months, a number of justices reviewed and amended the terminology of the injunctions to make them clearer and fairer. For example… Esson C.J.S.C. removed language enjoining “creating a nuisance” - legal language which some members of the public might not have understood - and replaced it by more precise language specifying that what was prohibited was “physical” obstruction. Words could be used, signs could be paraded; what could not be done was to physically block the road. [emphasis added]

23. So, it is apparent from this passage that the injunction in Simpson was upheld precisely because it did not do what the Injunction at bar seeks to; in the Elaho injunction “exclusion zone”, words can not be used, and signs cannot be paraded.

24. Finally, the Association submits that, in all the cases where the Supreme Court has considered the application of constitutional principles to injunctions restricting Charter rights, the injunctions at issue enjoined only unlawful activity; i.e. tortious activity in Dolphin Delivery and Simpson, and criminal contempt in CGEU v. B.C. (Vancouver Courthouse), all infra. In the case at bar, sections (b) and (c) enjoin innocent non-parties from undertaking activity that is perfectly lawful.

    (b) Proposition Two: The Court is bound to consider infringement of constitutional rights and balance those against the objectives to be served by the injunction.

25. Even if an argument can be established under Simpson, supra, that an injunction is indeed carefully aimed only at restricting activities which unlawfully interfere with ‘private rights’ (ie, if it is established that the mere presence of persons in the “exclusion zone” unlawfully “interferes” with logging or road building operations), then it remains incumbent upon the Court to weigh these private interests against the constitutional rights of those affected. It is obvious, from the passages quoted above from Simpson, supra, that the Supreme Court was cognizant of this weighing process, and decided that the balance favoured MacMillan Bloedel in that case.

26. However, the BCCLA submits that, with respect to sections (b) and (c) of the Injunction, there is no private right conceivably affected that could begin to offset the restriction upon fundamental freedoms contained in those sections.

27. It appears that the “exclusion zone” around the logging road may have been, at least in part, an attempt by the Court to ‘cool off’ the area after a series of violent confrontations had allegedly occurred. However, it is apparent that the allegations of violence concern activities of the Plaintiffs and/or employees and agents of the Plaintiffs, who are, under the terms of the injunction, allowed to remain in the “exclusion zone”. On the other hand, their alleged victims are excluded.

28. As a result, it would not be unreasonable for forestry workers, or forestry companies, to conclude that the Court will assist them in excluding protestors from their vicinity if the loggers react violently to their presence. This is precisely the sort of result that the common law must discourage. As Field J. (Cave J. concurring) put it in Beatty v. Gillbanks [1882] 9 Q.B. 308, after members of the Salvation Army were denied the right to protest when a mob threatened violence against them:

    What has happened here is that an unlawful organization [the mob] has assumed to itself the right to prevent the appellants and others from lawfully assembling together, and the finding of the justices amounts to this, that a man may be convicted for doing a lawful act if he knows that his doing it may cause another to do an unlawful act. There is no authority for such a proposition, and the question of the justices whether the facts stated in the case constituted the offence charged in the information must therefore be answered in the negative.

29. To the extent that the threat of violence informs the decision to grant an exclusionary injunction, the BCCLA submits that it cannot influence a court to effectively punish the victim and reward an aggressor.

    (i) The Injunction restricts constitutional rights

30. In the case at bar, the BCCLA respectfully submits that, on its face, the Injunction seeks to prevent members of the public from entering the areas covered by the Injunction. The rights and freedoms restricted by sections (b) and (c) of the Injunction include:

    Freedom of Speech and Association

31. The Injunction prevents protesters, both pro- and anti-logging, from peacefully assembling for non-violent demonstrations on a large area of public land.

32. In Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, 64 D.L.R. (4th) 577, Mr. Justice Cory stated at p. 1336 (S.C.R.):

    It is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression. ... It seems that the rights enshrined in s.2(b) should therefore only be restricted in the clearest of circumstances. The courts recognize that the freedom of expression benefits both the listener and the speaker, as shown in Ford v.Quebec (Attorney General), [1988] 2 S.C.R. 712, 54 D.L.R. (4th) 577, and R. v. Keegstra, [1990] 3 S.C.R. 697, [1991] 2 W.W.R. 1.

33. It is accepted by the Courts that freedom of expression is most strong in public places: Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139. As in that case, the Association accepts that persons in the Elaho “exclusion zone” must respect the functions of the place and cannot in any way invoke their freedom of expression so as to interfere with those functions. The BCCLA submits that political expression on issues of forestry and resource use are a proper use of the public lands in question. Moreover, any suggestion that they are not the appropriate forum for any particular kind of protest is necessarily fact specific, and is not amenable to ‘prior restraint’ of the kind imposed by the Injunction.

34. Although the BCCLA concedes that it may be, in extreme circumstances, permissible to restrict all protest within a given area, as for instance with abortion clinic “bubble zones”, such a restriction is subject to the Charter and must be justified under section 1. Moreover, even under B.C.’s Access to Abortion Services Act, R.S.B.C. 1996, Ch. 1, the public areas circumscribed from protesters is a maximum of 50 metres, creating a considerably smaller “exclusion zone” than that in this case, and one that proscribed certain interfering activity (including protest), not mere presence within that zone.

35. In R. v. Lewis, (October 8, 1996 No. CC960120 Vancouver Registry) the B.C. Supreme Court decision upholding the Access to Abortion Act noted that it was reasonable that the section 2(b) rights of the protesters should yield to the Section 7 rights of women seeking abortions. In the case at bar, there is no suggestion that there are constitutionally protected rights of the Plaintiffs which are threatened by peaceful, lawful protest within the “exclusion zone”.

36. Moreover, the BCCLA is unaware of any such ‘bubble zone’ law or injunction, anywhere in North America outside of B.C., which prohibits peaceful protest by completely denying all access to such a large area of public space: see for instance the decision of the U.S. Supreme Court in Madsen v. Women's Health Centre, Inc., 512 U.S. 753 (1994).

    Freedom of the Press

37. The Injunction prevents members of the media from investigating and reporting on forestry and other activity in this environmentally sensitive area, and thus from contributing to the B.C. public’s understanding of the issues at stake and the role of its government, which regulates forestry activity in the Province.

38. The Supreme Court of Canada has stated in Canadian Broadcasting Corp. v. New Brunswick (A.G.), [1996] 3 S.C.R. 480 that:

    The full and fair discussion of public institutions, which is vital to any democracy, is the raison d'ętre of the s. 2(b) guarantees. Debate in the public domain is predicated on an informed public, which is in turn reliant upon a free and vigorous press. The public's entitlement to be informed imposes on the media the responsibility to inform fairly and accurately. This responsibility is especially grave given that the freedom of the press is, and must be, largely unfettered.

39. Moreover, injunctions of the type issued prevent independent monitoring of forestry activity by interested individuals and organizations, inevitably undermining democratic accountability in the industry.

40. As there has been no pleading that the presence of members of the media is disruptive to forestry activities in the Elaho area, there is no reason why the press should be effectively banned from accessing, investigating and reporting inside the “exclusion zone”. On the contrary, the BCCLA submits that the presence of the media within the area affected may well discourage acts of violence should protestors decide to engage in civil disobedience of the Injunction.

    Liberty Interests

41. Restricting the citizenry from the enjoyment of public property which they would otherwise be able to enjoy is in itself abhorrent in a democracy. Indeed absent an injunction, there would be no legal basis for restricting a particular individual’s access to public areas short of a criminal charge or a peace bond under s. 810, 810.1, or 810.2 of the Criminal Code. To restrict such access by the public at large would likely require an emergent situation, and would be temporary only as long as that emergent situation continued. In either case, of course, such a decision would be subject to scrutiny under the Charter of Rights.

42. There is no doubt that geographic restrictions on citizens’ free movement in public areas represents a prima facie infringement on the liberty of the individual. Perhaps the most enlightening analogies can be drawn from R. v. Heywood. In that case, the Supreme Court of Canada decided, in a 5-4 decision, that the law prohibiting convicted child sex offenders from ‘loitering’ around schoolyards was an unconstitutional violation of s. 7 of the Charter.

43. It is important to emphasize that the law struck down in Heywood applied only to sexual offenders, and only to those who were also considered an ongoing threat to children. Even the dissenters in Heywood held that the law could only be upheld against persons who “loitered” with a “malevolent intent”.

44. The injunction at bar, on its face, operates against persons who have had no criminal convictions, have not been shown likely to commit any offence, and have no “malevolent intent” whatsoever, and indeed have no opportunity for a hearing before the restrictive terms are imposed.

    (ii) The Injunction does not reflect all relevant factors

45. The BCCLA accepts that there are what are frequently described as a loose ‘checklist of factors’ when considering applications for interlocutory injunctions: American Cyanamid Co. v. Ethicon Ltd. [1975] A.C. 396 (H.L.). Those factors include the relative strength of the cases, irreparable harm, the balance of convenience, the preservation of the status quo, etc. The BCCLA submits that there must be either added to the ‘checklist’ or incorporated into the existing ‘factors’ a regard for the constitutional rights of those affected by the order. This is even more important when those whose rights are affected are not parties to the action before the Court, and who have no intention of interfering in the lawful activities of the Plaintiff.

46. The terms of the Injunction indicate that Charter principles played either no role or an insufficient role in the crafting of the injunction.

    The Court must be reluctant to restrict constitutional rights through an injunction.

47. It is the submission of the Association that a Court must be reluctant to restrict constitutional rights through an injunction, and must grant an injunction against the exercise of constitutionally protected rights only in extreme and demonstrably justified cases.

48. Canadian Courts have been historically reluctant to grant an injunction that impinges upon a constitutionally protected right: Trieger v. Canadian Broadcasting Corp. (1988), 54 D.L.R. (4th) 143 (Ont. H.C.J.); National Law Party of Canada v. Canadian Broadcasting Cortp., [1994] 1 F.C. 580 (T.D.). This has been especially so when the injunction sought seeks to restrict the freedom of expression: Daishowa Inc. v. Friends of the Lubicon (1988), 158 D.L.R. (4th) 699 (Ont. Ct. (Gen. Div.)).

49. And of course, in the above cases, the restrictions proposed applied only to the defendants. In the case at bar, the Injunction restricts the constitutional rights of both parties and non-parties.

    The Court must consider “Charter principles”

50. In RWDSU v. Dolphin Delivery, [1986] 2 S.C.R. 573, the Supreme Court of Canada held that the Charter could not be used to challenge the terms of an injunction granted in the course of a private dispute.

51. However, in BCGEU v. B.C. (Vancouver Courthouse) [1988] 2 S.C.R. 214, the Supreme Court appeared to modify its position, and say that Dolphin Delivery stood instead for the proposition that where an injunction affected constitutional rights, it was appropriate to use a Charter analysis in assessing its legality. Chief Justice Dickson said at p. 245:

    In Dolphin Delivery, the picketing was… unlawful in that it constituted the tort of inducing breach of contract. The Court held that the constitutional validity of an injunction to restrain commission of that tort had to be determined pursuant to the analysis required under section 1 of the Charter.

52. More recently, in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, a court had held that the broadcast of a film entitled The Boys of Saint Vincent should be enjoined until the trials of four persons accused of the crimes portrayed in the film were concluded. Lamer C.J.C. held at para. 38 that the exercise of the common-law discretion of a superior court justice to issue a ‘publication ban’ “must be consistent with the principles of the Charter.” To that end, the Chief Justice of Canada said, at paragraph 73:

    It is open to this Court to “develop the principles of the common law in a manner consistent with the fundamental values enshrined in the Constitution”: Dolphin Delivery, supra, at p. 603 (per McIntyre J.). I am, therefore, of the view that it is necessary to reformulate the common law rule governing the issuance of publication bans in a manner that reflects the principles of the Charter. Given that publication bans, by their very definition, curtail the freedom of expression of third parties, I believe that the common law rule must be adapted so as to require a consideration both of the objectives of a publication ban, and the proportionality of the ban to its effect on protected Charter rights. The modified rule may be stated as follows:

    A publication ban should only be ordered when:

    (a) Such a ban is necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and

    (b) The salutary effects of the publication ban outweigh the deleterious effects to the free expression of those affected by the ban.

53. Applying the test in Dagenais, the Chief Justice found that a less intrusive alternative to a publication was available in the form of jury sequestration, and, rather than basing the relief in the form of a s. 24 Charter remedy, held at paragraph 100 that the Order enjoining publication be set aside “as an error of law”, being outside the applicable “common law rule”.

54. Madame Justice L’Heureux-Dube, dissenting in Dagenais, invoked Dolphin Delivery for the propositon that the Charter had no application to court orders (Dagenais, supra, para. 141-144. Despite the fact that the Madame Justice pointed out that the facts of Dolphin Delivery were essentially similar to those in Dagenais, the Majority were obviously unpersuaded and such objections were swept aside. As a result, it is likely that the ‘general rule’ developed in Dolphin Delivery is no longer the law of Canada.

55. It should be noted that Dagenais in a sense involved a ‘conflict’ between two sets of Charter rights, those of a fair trial and the freedom of expression. In the case at bar, the Plaintiff cannot, and has not, pled any Charter rights of its own which would justify infringement on those of another, and in the case of non-parties engaged in lawful, harmless behaviour, cannot even assert a threat to its private rights in answer to a complaint that the Injunction impinges on the Charter rights of innocent non-parties.

56. The BCCLA submits that, where an injunction is bound to affect the fundamental rights of persons who are not parties to the action, the Court is bound, at the very least, to consider “Charter principles” by examining:

    • Whose rights will be infringed, which rights, and to what degree; and

    • Whether the restrictions are ‘demonstrably justifiable in a free and democratic society’, according to an analysis comparable to that employed in Charter cases and the Dagenais decision, supra.

57. This is particularly so because a reviewing court in Canada generally allows a wide discretion in setting the terms of the Injunction; the practical effect is that, if the judge at first instance does not adequately consider constitutional concerns, the opportunity will be unavailable or diminished later, due to the rule against “collateral attacks”. This too was addressed by the Chief Justice in Dagenais, at para. 54:

    In R. v. Litchfield, [1993] 4 S.C.R. 333, a majority of this Court noted that the rule against collateral attacks is “not intended to immunize court orders from review” (per Iacobucci J., at p. 349), and held that in situations where the purposes underlying the rule are not engaged, some flexibility in the rule’s application should recognized.

    The Court must craft the terms of the injunction as narrowly as possible

58. The BCCLA submits that, quite apart from the constitutional imperatives discussed in this argument, there is a common law requirement that the terms of an injunction must not go further than is necessary to achieve the Court’s purpose.

59. This requirement is reflected in the “irreparable harm” branch of the American Cyanimid case. The courts and the authorities unanimously recognize that the issuance of an interlocutory injunction is a “drastic remedy”. The fact that it is “drastic”, in the submission of the Association, makes it even more critical that it be “remedial”. In other words, the restriction can be no more drastic than necessary to provide the necessary relief to the plaintiff.

60. This is supported by the words of Madame Justice MacLachlin, writing for the unanimous court in Simpson, and cited earlier:

    [I]t is necessary that the orders be carefully worded and constrained to ensure that they are fair and not unduly broad.

61. The BCCLA suggests that the Injunction can be readily varied so that it conforms with Charter principles. At the very least, this will require a restriction of the Injunction’s terms to precluding those activities which are, at least arguably, tortious. In the submission of the Association, this would mean that all terms should be phrased so as to enjoin interfering activity, but not to enjoin activity that does not interfere.

62. The BCCLA submits that it may be that some activity which might be characterized as “interfering” may also be protected by the Charter principles enunciated in Dagenais. However, it is not necessary for the BCCLA to address this question given the clearly overbroad wording of the Injunction, and its clear application to activity which is not criminal, tortious or otherwise “interfering”.

    (iii) The Injunction does not attempt to accommodate the constitutional rights of those affected

63. If the above propositions are accepted by this Honourable Court, and it is held that a Court when considering an application for injunction should consider its impact upon the constitutional rights of parties and non-parties alike, then it is apparent that the Injunction fails to adequately accommodate those rights.

    IV. CONCLUSION

64. It is the submission of the B.C. Civil Liberties Association that sections (b) and (c) of the Injunction go far further than other injunctions of its type, and more importantly, far further than the injunctions cautiously approved in Dolphin Delivery, Simpson, or BCGEU v. B.C., all supra.

65. To the extent that the terms of the Injunction seek to restrict activities of non-parties who are not interfering with or otherwise affecting the private rights of the parties before the Court, the Supreme Court of British Columbia does not have jurisdiction to impose such terms on non-parties.

66. The Injunction effectively bars persons from free assembly and expression. It effectively excludes the press from an area of acute public interest. It forbids innocent persons from using and enjoying public lands, and it does all this without any suggestion that the lawful exercise of these rights could adversely affect the lawful rights of the parties to the litigation before the Court.

67. The BCCLA therefore respectfully submits that sections (b) and (c) of the Order of September 17th, 1999 ought to be set aside as beyond the jurisdiction of the Court, or in the alternative, that the terms of the Injunction ought to be varied to accommodate the constitutional rights of parties and, especially, non-parties.

    All of which is respectfully submitted.

    ________________________________________

    Solicitors for the B.C. Civil Liberties Association

    DIVES GRAUER HARPER