Threats by native leaders to escalate blockades that would disrupt commercial activity could soon force a showdown of a different sort in Canada: one involving police, the judiciary and the federal government.
It hasn't just been aboriginal protesters who have recently been ignoring orders of the court – it's been law enforcement organizations as well. And their decision not to carry out rulings from the bench has prompted some judges to issue strong warnings about where this intransigence could ultimately lead.
The latest is Ontario Superior Court Judge David Brown. In December, the judge issued an injunction to end what was deemed an illegal native blockade of a rail line near Sarnia. Local police not only disregarded the order but instructed officers to not even attend the protest lines.
Meantime, the judge had also granted an emergency injunction to end an Idle No More-related blockade of a CN main line between Toronto and Montreal. This time it was the Ontario Provincial Police that flouted the judge's directions because it deemed the situation created by 15 protesters to be too dangerous.
Eventually, that blockade ended, but not because of any actions of the police.
While the judge accepted that police agencies have to have some leeway about when and how they go about enforcing any ruling, "they cannot," he said, "ignore judicial orders under the guise of contemplating how best to use their tactical discretion. Such an approach would have the practical effect of neutering court orders."
In that instance he was speaking about the Sarnia blockade which stayed up until earlier this month when police, thanks to pressure brought to bear by yet another court order, finally enforced the injunction.
As for the decisions of the OPP, the judge said: "That kind of passivity by the police leads me to doubt that a future exists in this province for the use of court injunctions in cases of public demonstrations."
Judge Brown's frustration echoed that of B.C. Supreme Court Judge Mark McEwan last spring. In that case, Justice McEwan was so angry with the RCMP's unwillingness to administer his orders to end an aboriginal blockade in the northern part of the province he compared the situation to one of the most infamous native standoffs in recent memory – Caledonia.
Justice McEwan asked lawyers in the case if they understood how "demoralizing and undermining to the whole idea of the rule of law it is to have people carry on in a community flagrantly in violation of both the Criminal Code and a court law – a court order."
Both these judges are right, of course. When the police decide to stuff court orders in their back pockets and do nothing about them, we have a problem. In fact, we have a problem when innocent third parties such as railway companies are forced to go to court to get relief from the patently illegal action of a small group of activists. Why does it take an injunction? Whatever happened to telling people to move or they'll be arrested? And since when did 15 people blocking a railway line present a situation that is "too dangerous" for police intervention?
As Justice McEwan remarked: policing in Canada is in a dire condition if a court order to end an occupation can't be carried out because of a small group of protesters.
As concerning as the police tactics themselves are, the manner in which they might be interpreted is equally alarming. It is a generally understood and accepted tenet of our criminal justice system that no one stands above the law. Any perception that one group is being allowed to creates broader concerns. As Judge Brown said: "Without Canadians sharing a public expectation of obeying the law, the rule of law will shatter."
Police doubtlessly believe that these protests, given enough time, will fizzle out on their own. They are also likely concerned about the optics of going in and removing protesters, especially if there is resistance and things get ugly. That's understandable. But generally, Canadians will always side with those trying to enforce our laws.
If native leaders initiate further blockades, especially ones that disrupt the commercial lifeblood of our country, the federal government will have to insist the RCMP and other police forces in Canada begin doing their job. Idle No More could take on a completely new meaning.