IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Vancouver (City) v. O’Flynn-Magee,

 

2011 BCSC 1647

Date: 20111201

Docket: S117498

Registry: Vancouver

Between:

City of Vancouver

Plaintiff

And

Sean O'Flynn‑Magee, Celina‑Marie Webber Hay, Mathew Kagis,
Betty Krawczyk, Ian Dakers, Telquaa‑Helen Michell, Tavis Dodds,
Jane Doe, John Doe, and Other Unknown Persons

Defendants

 

Before: Associate Chief Justice MacKenzie

 

Reasons for Judgment

Counsel for the Plaintiff:

B. Parkin

& I. Dixon

Counsel for the Defendant,

Sean O’Flynn Magee:

J. Gratl

Counsel for the Defendant,

Celina-Marie Webber Hay:

M. McCubbin

Counsel for the Defendant,

Mathew Kagis

K.L. Campbell

B. Krawczyk

Appeared on her own behalf

I. Dakers

Appeared on his own behalf

T. Michell

Appeared on her own behalf

T. Dodds

Appeared on his own behalf

Place and Date of Hearing:

Vancouver, B.C.

November 18, 2011

Place and Date of Judgment:

Vancouver, B.C.

December 1, 2011


 

Introduction

[1]           On November 18, 2011, in a brief summary, I granted the interlocutory injunction sought by the City of Vancouver with written reasons to follow.  These are those reasons.

[2]           This is an application by the City of Vancouver (the “City”) for a statutory interlocutory injunction requiring the defendants, and all others having notice of the order, to comply with provisions of the City of Vancouver, By-law No. 8735, A By-law to regulate city land (3 December 2009), (the “City Land Regulation By-law”), with respect to the area of land bordered by Georgia, Howe, Robson, and Hornby Streets (the “Art Gallery Lands”).

[3]           The City seeks an order prohibiting certain activities and for removal of structures, tents, and other objects that have been constructed or placed on the Art Gallery Lands by the defendants.  The City is not seeking to enjoin lawful protest or assembly on the Art Gallery Lands.

Background

[4]           The defendants are part of the “Occupy Vancouver” protest movement which advocates for economic and political change. Beginning October 15, 2011, the defendants constructed, erected, maintained and occupied structures, tents and shelters on the Art Gallery Lands. The defendants do not have written permission from the City Manager for any activities on the Art Gallery Lands.

[5]           On November 4, 2011, the City notified the defendants that construction and continued maintenance and use of the structures, tents and shelters on the Art Gallery Lands violate the City Land Regulation By-law. Furthermore, the Fire Chief of Vancouver issued a Fire Order to the defendants, pursuant to the City of Vancouver, By-law No. 8191, Fire By-law (2 May 2000), (the “Fire By-Law”).

[6]           The defendants did not comply with the City’s Notice or the Fire Chief’s Order.  Mr. Johnston, the Chief Building Officer for the City, deposed that on November 6, 2011, he noticed people were building another structure on the Art Gallery Lands.

[7]           On November 7, 2011, the City gave a second notice to the defendants that their tents and structures were in violation of the by-laws and must be removed.  At that time, the City served the defendants with a notice of civil claim and a notice of this application.

[8]           The City was granted short leave to bring this application for hearing on November 8, 2011. The matter continued on November, 9, 2011 when another defendant, Celina-Marie Webber Hay, was added to the proceedings. The court heard from Mr. Gratl, Mr. McCubbin and the City, as well as four other speakers, three of whom are members of Occupy Vancouver, and one of whom is a Chief of an aboriginal band. She gave submissions unsupported by evidence with respect to aboriginal rights.

[9]           The court granted the defendants an adjournment to November 16, 2001 and also made an interim order requiring compliance with the Fire Chief’s Order.  On November 9, 2011, copies of the interim order were posted on the Art Gallery Lands.

[10]        On November 10, 2011, the City gave a third notice that the tents and other structures on the Art Gallery Lands violated the City Land Regulation By-law and must be removed. This notice was posted on site and copies were hand delivered by Mr. Johnston.

[11]        While members of Occupy Vancouver made some progress toward compliance with the interim fire order, the Fire Chief, John McKearney, deposed that on November 11, 2011 he observed a burning barrel on the site.  The Fire Chief attended again on November 12, 2011 and found the lands were not in full compliance with the interim order.

[12]        The Fire Chief supervised a fire crew on the lands to work toward compliance with the interim order. After four hours, the site was significantly improved. However, compliance with the interim order was not complete.

[13]        On November 15, 2011, the Fire Chief and a fire crew made another effort to obtain compliance with the interim order.  When the Fire Chief and crew completed their work, the area had improved, but it was still not in full compliance with the interim order.

[14]        As of November 15, the defendants had not removed the structures, tents and shelters from the Art Gallery Lands.

[15]        On November 16, 2011, Mathew Kagis, a medical volunteer at Occupy Vancouver represented by Ms. Campbell, was added as a defendant. Over the course of the proceedings, four unrepresented litigants, Telquaa-Helen Michell, Betty Krawczyk, Ian Dakers and Tavis Dodds, were added as defendants.

Statutory Provisions and By-Laws

[16]        Pursuant to s. 185 (2) of the Vancouver Charter, S.B.C. 1953, c. 55, the City has the authority to regulate the use of and access to land owned or leased by the City.

[17]        Section 185 of the Vancouver Charter reads:

185. Council to provide for upkeep of city property

185(1) The Council may from time to time make the necessary expenditures for the maintenance, upkeep, conservation, repair and improvement of any property of the city.

185(2) In addition to the proprietary rights of the city to control the use of its property, the Council may, by by-law, regulate the use of, or access to, any land owned or leased to the city.

[18]        Pursuant to s. 334(1) of the Vancouver Charter, the City is granted the power to enforce its by-laws by bringing a proceeding and seeking an injunction in BC Supreme Court. Section 334(1) reads:

334 . Civil proceedings by city

334(1) A by-law of the Council or of the Board of Parks and Recreation may be enforced, and the contravention of such a by-law may be restrained, by the Supreme Court in a proceeding brought by the city or by the Board of Parks and Recreation, as the case may be.

[19]        The City enacted the City Land Regulation By-law. Section 3 of the City Land Regulation By-law reads:

3.         A person must not, without the prior written consent of the manager:

(a)        cut, break, injure, damage, or destroy any tree, shrub, plant, turf, or flower on city land;

(b)        remove any rock, soil, tree, shrub, plant, turf, or flower from city land;

(c)        deposit any garbage, refuse, litter, or other waste material on city land, except in containers provided by the city for that purpose;

(d)        construct, erect, place, deposit, maintain, occupy, or cause to be constructed, erected, placed, deposited, maintained or occupied, any structure, tent, shelter, object, substance, or thing on city land; or

(e)        light any fires or burn any material on city land.

[20]        Section 4 of the Trespass Act, R.S.B.C. 1996, c. 462, prohibits activities by a person after that person has received notice from the occupier of lands that the activities are prohibited. Section 4 of the Trespass Act reads:

Trespass prohibited

4 (1) Subject to section 4.1, a person commits an offence if the person does any of the following:

(a) enters premises that are enclosed land;

(b) enters premises after the person has had notice from an occupier of the premises or an authorized person that the entry is prohibited;

(c) engages in activity on or in premises after the person has had notice from an occupier of the premises or an authorized person that the activity is prohibited

(2) A person found on or in premises that are enclosed land is presumed not to have the consent of an occupier or an authorized person to be there.

3) Subject to section 4.1, a person who has been directed, either orally or in writing, by an occupier of premises or an authorized person to

(a) leave the premises, or

(b) stop engaging in an activity on or in the premises,

commits an offence if the person

(c) does not leave the premises or stop the activity, as applicable, as soon as practicable after receiving the direction, or

(d) re-enters the premises or resumes the activity on or in the premises.

Defences to trespass

4.1 A person may not be convicted of an offence under section 4 in relation to premises if the person's action or inaction, as applicable to the offence, was with

(a) the consent of an occupier of the premises or an authorized person,

(b) other lawful authority, or

(c) colour of right.

The Appropriate Test

[21]        There is an issue about which test applies on this application for an interlocutory statutory injunction, the test from Maple Ridge (District) v. Thornhill Aggregates Ltd., 54 B.C.L.R. (3d) 155, and Vancouver (City) v. Maurice, 2002 BCSC 1421, (affirmed on other grounds, 2005 BCCA 37), or the test from RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 111 D.L.R. (4th) 385 (S.C.C.). The case law is somewhat confusing. On the one hand, Pitfield J. said in Vancouver Board of Parks and Recreation v. Mickelson, 2003 BCSC 1271, that the test from In Re Attorney-General of Manitoba v. Metropolitan Stores (MTS) Ltd. et al. (1987), 38 D.L.R. (4th) 321 (S.C.C.) (which is the same test found in RJR- MacDonald) applies where Charter challenges would be made to the by-law or other legislation.

[22]        In British Columbia (Minister of Forests) v. Okanagan Indian Band, 2000 BCCA 315, the court held that where there are complex issues of fact and law, they are best resolved at a trial on the merits. Charter arguments have complex factual foundations, and it is difficult to distinguish Charter arguments from other difficult factual and legal arguments.

[23]        Lowry J., in Maurice (S.C.) said that Charter rights were “engaged” by the defendants in that case, but nonetheless applied the test from Thornhill. This approach was implicitly upheld by the Court of Appeal, which heard an appeal on procedural issues only, but approved the approach taken by Lowry J., (2005 BCCA 37).  The defendants in that case were not seeking to have the by-law declared unconstitutional.  Similarly in this case, the defendants, while not challenging the validity of the by-law at this interlocutory stage, contended that Charter rights were relevant and engaged such that the by-law was “constitutionally suspect”.

[24]        Fortunately, in this case, it is unnecessary to resolve the interesting point as to which test is applied, whether the Maurice/Thornhill, or the RJR-MacDonald test because either way, this application for an interlocutory injunction must succeed.

[25]        I will first discuss the test in Thornhill.

The Thornhill Test

[26]        Although constitutional challenges and other complex arguments may be relevant to the dispute, at the interlocutory injunction stage, pending a trial on the merits, the public interest suggests that the statutory regime or status quo be maintained (R. v. Bernard, [2000] N.B.J. No. 138, para. 76; Okanagan Indian Band, para. 19).

[27]        There is a difference in principle and rationale between an equitable interlocutory injunction and one that is based upon statutory authority. The rationale for not requiring the equitable injunction test where the party seeking the injunction is a municipality, or other elected body, is that when elected officials enact by-laws or other legislation, they are deemed to do so in the public interest at large (Toronto v. Polai (1969), 8 D.L.R. (3d) 689 (Ont. C.A.) at p. 697).

[28]        Therefore, the irreparable harm and balance of convenience factors are pre-emptively satisfied in ensuring complying with law that is in the public interest (Thompson-Nicola (Regional District) v. Galbraith, [1998] B.C.J. No. 1436, para. 2). To the extent that the appellants may suffer hardship from the imposition and enforcement of an injunction, that will not outweigh the public interest in having the law obeyed (Thornhill, para 9).

[29]        The appropriate test as set out in Thornhill was concisely explained by the Court of Appeal in Maurice at para. 34 as follows:

Contrary to the submissions made by the appellants, where a public authority, such as the City, turns to the courts to enforce an enactment, it seeks a statutory rather than an equitable remedy, and once a clear breach of an enactment is shown, the courts will refuse an injunction to restrain the continued breach only in exceptional circumstances: Maple Ridge (District) v. Thornhill Aggregates Ltd. (1998), 47 M.P.L.R. (2d) 249 (B.C.C.A.), and British Columbia (Minister of Forests) v. Okanagan Indian Band (2000), 187 D.L.R. (4th) 664 (B.C.C.A.).

[30]        Thus, the onus is on the City to show that there has been a clear breach of the by-law. If it does, the court will grant the injunction unless there are exceptional circumstances that permit it to use its narrow discretion to deny it.

Issues

1.         Has the City established a “clear breach” of the by-law in question; and if so,

2.         Are there exceptional circumstances to justify the court’s refusal of the injunction which is sought to restrain the continued breach?

3.         Has the City established a trespass either at common law or under the Trespass Act?

General Position of the Defendants

[31]        Before addressing the issues, I will briefly address the defendants’ positions generally.  Counsel for the defendants divided up the issues and essentially adopted each others’ positions.  Mr. McCubbin focused on homelessness and the effect of the by-law on his client’s s. 7 Charter right to security of the person and s. 15 right to equality based on gender. Mr. Gratl concentrated on the by-law’s impact on the freedom of expression and association rights of the members of Occupy Vancouver. Ms. Campbell represented Mr. Kagis, a volunteer medic who was chosen by the general assembly of Occupy Vancouver as its representative. She expanded on the arguments of both Mr. McCubbin and Mr. Gratl.

[32]        Mr. McCubbin relied on affidavits of his client and others to describe the problem of homelessness in Vancouver with its insufficient shelter spaces and its dangerous conditions. He specifically addressed the challenges facing homeless women in Vancouver, pointing to reports that he claimed reflected a shortfall of approximately 500 shelter spaces in the city. He argued that women who do find shelter space face unsanitary conditions and the risk of theft, harassment, and assault. Mr. McCubbin claimed the by-law put his client’s s. 7 and s. 15 rights at risk as the conditions in the shelters, if space could even be found, are far worse than at Occupy Vancouver’s encampment.

[33]        Mr. Gratl made extensive submissions on the nature of the Art Gallery Lands, the global Occupy movement, and the expressive nature of the structures at Occupy Vancouver. He noted the Art Gallery Lands have been used historically as an area of political and social protest and expression. He pointed to communications between Occupy Vancouver and the City, and between Occupy Vancouver and other groups to demonstrate that Occupy Vancouver has been trying to accommodate other groups who also wish to use the Art Gallery Lands.

[34]        Mr. Gratl claimed the affidavit evidence refuted the City’s claims about health and safety issues at the encampment.

[35]        On the issue of expressive content, Mr. Gratl submitted that the tents and structures on the Art Gallery Lands were essential to the expressive nature of Occupy Vancouver’s message. He relied on Weisfeld v. Canada (F.C.A.), [1995] 1 F.C. 68, for the proposition that expression is not limited to words as long as it conveys a meaning. Like the tents and structures in Weisfeld, Mr. Gratl argued that the tents and structures at Occupy Vancouver were part of, and facilitated, its expression.

[36]        Ms. Campbell made further submissions refuting the health and safety concerns of the City and emphasizing the expressive content of Occupy Vancouver.  She argued that to deny her client’s individual expression through the provision of medical assistance to those encamped at the site would be to deny the message itself.

Issue 1:         Has the City of Vancouver established a “clear breach” of the by-law in question?

[37]        The City submits the evidence establishes the defendants breached and continue to breach the City Land Regulation By-law by construction and maintenance of structures, including tents, on the Art Gallery Lands without written permission from the City Manager.

[38]        Mr. McCubbin and Ms. Campbell addressed the application of the test in Thornhill and Maurice, arguing that the City had not shown a clear breach of the by-law because it was essentially the same as the by-law declared inoperable in Victoria (City) v. Adams, 2009 BCCA 563 in indistinguishable circumstances.

Discussion:

[39]        I find the City has indeed established a clear breach of s. 3(d) of the City Land Regulation By-law. The City exercised its authority to regulate city property pursuant to s. 185(2) of the Vancouver Charter by enacting the City Land Regulation By-law. The Art Gallery Lands are leased by the City from the Province of British Columbia. Therefore, the Art Gallery Lands are governed by the City Land Regulation By-law.

[40]        From October 15, 2011, to November 15, 2011, the defendants maintained and occupied tents and other structures on the Art Gallery Lands. The defendants do not have the written consent of the City Manager for any activities on the Art Gallery Lands. The defendants were notified on several occasions their activities are in breach of the by-law. The breach of s. 3(d) of City Land Regulation By-law is clear.

[41]        The defendants also raise a constitutional argument regarding the validity of the City Land Regulation By-law.  The argument is based on Vancouver (City) v. Zhang, 2010 BCCA 450 and Adams. However, an interlocutory injunction application is not the appropriate time to address constitutional arguments (Okanagan Indian Band). Rather, constitutional arguments are properly examined at the trial of the matter to provide the parties sufficient time to prepare and to allow the Attorney General the opportunity to intervene pursuant to s. 8 (2) of the Constitutional Question Act, R.S.B.C. 1996, c. 68.

[42]        Furthermore, even if a constitutional challenge to the by-law were appropriate at this stage, Adams and Zhang would not assist the defendants because both cases were decided on their own unique facts. The defendants here have urged an inappropriately broad interpretation of Adams. Adams only permitted temporary overnight shelter when the number of homeless people in Victoria exceeded the number of available shelter beds. Thus, it cannot be said that the decision in Adams supports an argument that the by-law in question in this case is “evidently unconstitutional” or “constitutionally suspect”.

Issue 2:         Are there exceptional circumstances so that this court should refuse the injunction sought to restrain the continued breach?

[43]        The defendants argued that the court should exercise its narrow discretion to refuse the injunction. Mr. McCubbin relied on British Columbia (Minister of Environment, Lands & Parks) v. Alpha Manufacturing Inc. et al. (1997), 150 D.L.R. (4th) 193 (B.C.C.A.), where the court identified examples of circumstances that might be considered exceptional. He submitted that several examples from that list could apply here. These included the existence of an arguable issue as to the validity of the by-law.

[44]        Finally, Mr. McCubbin contended that the risk of infringements of his client’s Charter rights arising from an interlocutory injunction and its practical effects on his client’s ability to prepare for trial on the merits are sufficient to constitute exceptional circumstances in this case.

[45]        The City says the defendants’ arguments clearly fall outside the scope of exceptional circumstances as defined in the case law.

Discussion:

[46]        I agree with the City that there are no exceptional circumstances to justify a refusal of the statutory interlocutory injunction.

[47]        In Alpha, the court provided a non-exhaustive list of the type of exceptional circumstances that might justify the refusal of an interlocutory injunction.  The exceptional circumstances listed in Alpha, namely, the willingness of the defendants to refrain from the unlawful act, the fact there may not be a clear case of “flouting” the law because the defendant has ceased the primary unlawful activity, or the absence of proof that the activity carried on was related to the mischief the statute was designed to address, do not exist in the present case.

[48]        Here, the evidence of “flouting” of the by-law is clear. The defendants have expressed their intention to continue their violation of the by-law and their activities are related to the mischief the City Land Regulation By-law is intended to address.

[49]        Finally, although an interlocutory injunction may result in inconvenience to the defendants, personal hardship is not an exceptional circumstance (Maurice (BCSC), para. 19). Therefore, based on the evidence, there are no exceptional circumstances to justify the court’s use of its narrow discretion to refuse an interlocutory statutory injunction where there is a clear breach of the by-law.

[50]        Based on the above, I find the City has made out its case for an injunction.

[51]        In the alternative, on application of the RJR-MacDonald test, which Pitfield J. in Mickelson said did apply where Charter arguments are raised on an application for an interlocutory injunction, for the following reasons, I would still grant the City’s application.

RJR-MacDonald Test

[52]        The RJR-MacDonald test consists of three questions: has the applicant demonstrated there is a fair question to be tried? Will the applicant suffer irreparable harm if an injunction is not granted? Does the balance of convenience favour the granting of an injunction?  These are assessed from the perspective of the applicant. (Mickelson, para. 21).

Serious Question to be Tried

[53]        The City says the application constitutes a serious question to be tried. Although two of the defendants conceded this point, Mr. Gratl argued that the City barely meets this threshold, if at all. He claimed that since the interim order addressed all the safety concerns of the City and that Adams and Zhang raise significant concerns as to the validity of the by-law, the City has not raised a sufficiently serious issue to justify granting the injunction.

[54]        The constitutional validity of the by-law is not at issue when determining whether there is a fair question to be tried because it is not part of the applicant’s case. This is a low threshold (Mickelson, para. 23; RJR-MacDonald, p. 402).

[55]        The first stage of the test is easily met. The question of whether the defendants’ activities breach s. 3(d) of the City Land Regulation By-law and justify an interlocutory injunction is a serious issue to be tried.

Irreparable Harm

[56]        The City says it would suffer irreparable harm if the injunction were not granted. Specifically, the public would suffer irreparable harm in terms of access to, and use of, public space.

[57]        As to irreparable harm to the City if the injunction were denied, Mr. McCubbin submitted that case law, including Mickelson, could not be relied upon in light of Adams and Zhang. In Mickelson, Pitfield J. found that denying the injunction would cause irreparable harm to the Parks Board as it could not be properly compensated in damages for the violation of the by-law.

[58]        Mr. McCubbin urged that to grant the injunction would prevent a challenge to this by-law. Mr. Gratl said the mischief the by-law is meant to address would not be affected by denying the injunction because Occupy Vancouver does not pose a safety concern and is cooperating with other groups who may want to use the Art Gallery Lands.

[59]        Ms. Campbell said there would be irreparable harm to the occupiers if an injunction were granted before the main issues were addressed.

[60]        I agree with the City that as the representative of the public, it will suffer irreparable harm if the injunction is not granted. "Irreparable" refers to the nature of the harm suffered rather than its magnitude (RJR-MacDonald, p. 405). It is harm that cannot be readily compensated by an award of damages (Mickelson, para. 24). In the circumstances, an award of damages cannot properly compensate the public for the irreparable harm in terms of the use of public property.

Balance of Convenience

[61]        The City says the balance of convenience clearly favours an injunction. The City argues there is a public interest in the enforcement of the City Land Regulation By-law as the by-law promotes several public interests, including the promotion of health and safety and open access to public space. The interlocutory injunction should be granted to allow the City to fulfill its obligation to regulate city lands for the benefit of the public.

[62]        Mr. McCubbin said there was considerable doubt as to whether Charter rights were engaged in Mickelson, but that is no longer the case since the decision in Adams. He added that deterrence of further erection of structures was a factor in Mickelson, but since there has not been expansion of the Occupy Vancouver site in over a month, deterrence is not a factor here.

[63]        As further considerations, Mr. McCubbin also pointed to the “suspect” constitutionality of the by-law, the deprivation to the public if this issue is not brought to trial, and the availability of solutions for the City if the injunction were denied.

[64]        Mr. Gratl argued that political expression would disappear if the injunction were granted.  He said the City’s case consisted only of vague apprehensions and speculative concern.  Ms. Campbell asked the court to consider the irreplaceable loss to Occupy Vancouver in granting the injunction.

[65]        I agree the balance of convenience favours the City. The City has a right to regulate the use of its land, including the type and length of use of public lands. The defendants have chosen to protest at the Art Gallery Lands, but it is in the public interest to allow a variety of users access to public lands. Although Occupy Vancouver may not intend to exclude other groups, the very nature of its protest by the positioning of tents throughout the entire north plaza prevents others from using this public space.

[66]        The City has an obligation to regulate city lands to maintain safety. It is liable for the activities which occur on city lands. Therefore, it must have control over those lands.  There are significant health and safety concerns at the site. There have been drug overdoses, an assault of a police officer and other concerns.

[67]        I cannot accept the defendants’ argument that it is clear from Adams that the by-law at issue here is “evidently unconstitutional” or “constitutionally suspect”. In Adams, the court did not strike down the by-law; rather it crafted an order that rendered certain provisions of the by-law inoperable in specific circumstances to allow for temporary shelter during the night hours only (Adams at para. 166).

Issue 3:         Has the City established a trespass either at common law or under the Trespass Act?

[68]        The City says that the defendants’ continued occupation of the Art Gallery Lands constitutes trespass under both s. 4(3) of the Trespass Act and at common law. Trespass under s. 4(3) is established because the tents and structures contravene the City Land Regulation By-law of which the City has given the defendants notice.

[69]        The City submits it has established trespass at common law because the City has a leasehold interest in the Art Gallery Lands.  Therefore, the fact there is a serious question to be tried determines that the injunction should be granted (Cariboo-Chilcotin School  v. Van Osch et al, 2004 BCSC 1827, leave to appeal refused 2004 BCCA 570).

[70]        Mr. Gratl argued that s. 4(1) of the Trespass Act provides an exception to trespass where a person has lawful authority or colour of right to do what would otherwise constitute trespass. He submitted that the constitutionally suspect nature of the by-law and his client’s right of freedom of expression should be sufficient to find lawful authority or colour of right under this section.

[71]        The concept of a “constitutionally suspect” by-law in the circumstances is a dubious proposition. There is no legal basis to find that a “constitutionally suspect” by-law, even if it existed, could amount to a “colour of right” as defined in the Trespass Act. “Colour of right” is a right of property. It is not a defence based on Charter rights. I therefore agree with the City that the defendants are trespassing on the Art Gallery Lands under the Trespass Act and the common law.

Conclusion

[72]        The City’s application for an interlocutory injunction pursuant to s. 334 of the Vancouver Charter is granted. I also order the police enforcement clause because, as McLachlin J. (as she then was) observed in MacMillan Bloedel Ltd. v. Simpson, [1996] 2 S.C.R. 1048, at para. 41, the inclusion of police authorization ensures “that orders which may affect members of the public clearly spell out the consequences of non-compliance”.

Order

[73]        I order that:

1.         By 2:00 p.m. on Monday, November 21, 2011, the Defendants, and all other persons having knowledge of this Order remove all structures, tents, shelters, objects and things owned, constructed, maintained, placed or occupied by them which are located on the lands legally described as Block 51 District Lot 541 Plan 14423, Group l New Westminster District (the “Art Gallery Lands”);

2.         By 2:00 p.m. on Monday, November 21, 2011, the Defendants, and all other persons having knowledge of this Order cease constructing, placing, or maintaining structures, tents, shelters, objects and things upon the Art Gallery Lands, without having first obtained a permit or written consent;

3.         By 2:00 p.m. on Monday, November 21, 2011, the Defendants, and all other persons having knowledge of this Order cease burning materials and setting fires on the Art Gallery Lands;

4.         By 2:00 p.m. on Monday, November 21, 2011, the Defendants, and all other persons having knowledge of this Order cease depositing garbage, litter or refuse on the Art Gallery Lands;

5.         By 2:00 p.m. on Monday, November 21, 2011, the Defendants, and all other persons having knowledge of this Order cease removing soil form the Art Gallery Lands;

6.         By 2:00 p.m. on Monday. November 21, 2011, the Defendants, and all other persons having knowledge of this Order comply with any and all Fire Orders relating to the Art Gallery Lands issued by the Fire Chief pursuant to the City of Vancouver Fire By-law;

7.         All employees or agents of the City are hereby authorized to remove all structures, tents, shelters, objects and things owned, constructed, maintained, placed or occupied by the Defendants which are located on the Art Gallery Lands, should the Defendants and all other persons having knowledge of this Order fail to comply with this Order;

8.         Any police officer with the Vancouver Police Department or other municipal police force or R.C.M.P. is hereby authorized to arrest and remove from the Art Gallery Lands any person who the police officer has reasonable and probable grounds to believe is interfering with or obstructing, or is attempting to interfere with or obstruct, any employee or agent of the City of Vancouver who is seeking to remove any structures, tents, shelters, objects and things owned, constructed, maintained, placed or occupied by the Defendants which are located on the Art Gallery Lands;

9.         Any police officer with the Vancouver Police Department or other municipal police force or R.C.M.P. is hereby authorized to arrest and remove from the Art Gallery Lands any person who the police officer has reasonable and probable grounds to believe is interfering with or obstructing, or is attempting to interfere with or obstruct, any defendant or person with notice of this Order who is seeking to remove all structures, tents, shelters, objects and things owned, constructed, maintained, placed or occupied by the Defendants from the Art Galley Lands;

10.       Any police officer with the Vancouver Police Department or other municipal police force or R.C.M.P. is hereby authorized to arrest and remove from the Art Gallery Lands any person who the police officer has reasonable and probable grounds to believe is attempting to impede, obstruct or interfere with any person who is lawfully entitled to be present upon the Art Gallery Lands from being present thereon;

11.       Any police officer with the Vancouver Police Department or other municipal police force or R.C.M.P. who arrests and removes any person from the Art Gallery Lands in accordance with this Order may release that person on receipt of a signed Undertaking by that person to not re-attend the Art Gallery Lands and to appear before this Court to have the alleged contempt of this Order dealt with by the Court;

12.       This Order shall remain in force until this matter is tried, or until further Order of this Honourable Court;

13.       This Order does not prohibit or limit the right of the Defendants, or any other persons, to lawfully assemble on the Art Gallery Lands;

14.       Notice of this Order may be given to the Defendants by posting of this Order on the Art Gallery Lands; and

15.       Approval of the form of the Order by unrepresented Defendants is hereby dispensed with.

“A. MacKenzie A.C.J.”

____________________________

Associate Chief Justice MacKenzie