IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Hayes Forest Services v. Forest Action Network et al.,

 

2003 BCSC 1444

Date: 20030919

Civil Docket: S03286

Criminal Docket:  22360

Registry: Vancouver

Between:

Hayes Forest Services Limited

Plaintiff

And

Forest Action Network, Women in the Woods, BC Pathways,

Betty Krawczyk, Jenna Bradley, Ingmar Lee, John Doe #1,

John Doe #2, John Doe #3, John Doe #4, John Doe #5,

Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4 Jane Doe #5

Defendants

And

Attorney General of British Columbia

Intervenor

 

 

 

 

Before: The Honourable Mr. Justice R.B. Harvey

Reasons for Judgment

Counsel for the Intervenor Crown,
Attorney General of B.C.:

S.J. Richards

Counsel for the Accused Defendant,
Betty Krawczyk:

A.C. Ward

Date and Place of Hearing:

September 8-12, 2003

 

Vancouver, B.C.

 

[1]            This is a hearing, within Action No. S03286, in which the Attorney General of British Columbia as intervenor seeks an order that the defendant, Betty Krawczyk be found in criminal contempt of this court in relation to an injunction Beames J. granted on May 5, 2003 to the plaintiff. 

[2]            The order of the court Beames J. granted on May 5, 2003 is in the following terms:

THIS COURT ORDERS AND DECLARES that: 

1.    the Defendants Forest Action Network, Women in the Woods, BC Pathways, Betty Krawczyk, Jenna Bradley or any person having notice of the Order are enjoined and prohibited from obstructing, interrupting or interfering with the lawful use and enjoyment by the Plaintiff, its employees, agents and contractors, of all roads and bridges on Tree Farm Licence 44 ("TFL44");

2.    the Defendants Forest Action Network, Women in the Woods, BC Pathways, Betty Krawczyk, Jenna Bradley or any person having notice of the Order are enjoined and prohibited from interfering with any logging operations being conducted by the Plaintiff, its employees, agents and contractors on TFL44.

The Order contains an enforcement provision in the following terms:

THIS COURT FURTHER ORDERS AND DECLARES that: 

1.    any Peace Officer be authorized to arrest and remove any person whom has knowledge of this Order and whom the Peace Officer has reasonable and probable grounds to believe is contravening or has contravened the provisions of this Order.  For the sake of clarity, such a Peace Officer retains his or her discretion to decide whether to arrest or remove any person pursuant to this Order;

2.    any Peace Officer who arrests or removes any person pursuant to this Order be authorized to:

(a)   release that person from arrest upon the person agreeing in writing to appear before this Court at such a time and place as may be fixed for the purpose of being proceeded against for contempt of court or for fixing a date for such proceeding;

(b)   where such person has refused to give a written undertaking to appear before this Court or where in the circumstances the Peace Officer considers it appropriate, to bring forthwith such person before this Court at the Supreme Court Registry in Vancouver, or any such other place as the Court may direct for the purpose of being proceeded against for contempt of court or for fixing the time for such proceedings; or

(c)   detain such person until such time until they can be brought before this Court.

BACKGROUND

[3]            In April and early May, 2003, a number of persons gathered at a certain point, described as Twin Bridges in the Walbron Valley on Vancouver Island, where the plaintiff as a subcontractor to Weyerhaeuser, the holder of a certain Tree Farm Licence 44, was about to commence logging.  The defendant was present as the leader and spokesperson for a number of women described as "Women in the Woods".

[4]            It was the intention of these persons, including the defendant, to prevent logging in the area by the plaintiff pursuant to its contractual relationship with Weyerhaeuser.  They did so by erecting a blockade of the logging road at Twin Bridges.  These persons communicated on a daily basis with representatives of the plaintiff and indicated that blockade of the area by them would continue for as long as it was necessary to do so. 

[5]            In these circumstances, the plaintiff on May 5, 2003 commenced an action in this court by way of writ of summons alleging that, inter alia, the defendants, amongst others, were intentionally interfering with the lawful use and enjoyment by the plaintiff and its employees, agents and contractors, of all roads and bridges on Tree Farm Licence 44.

[6]            The plaintiff obtained the ex-parte order referred to supra

[7]            On May 8, 2003, the defendant was at the site of the blockade at Twin Bridges and was arrested pursuant to the enforcement provision of the order, she being in breach of the terms of the order. 

[8]            The defendant appeared before Ralph J. in Duncan, British Columbia on May 8 at which time he adjourned the fixing of a date for the hearing of the plaintiff's contempt application to May 12, 2003 at Victoria. 

[9]            Ralph J. further ordered at that time that the defendant may be released from custody if she executed an undertaking to the court with the following conditions:

(a)   I promise that I will attend before a judge of the Supreme Court on the 12th day of May, 2003 at 10:00 a.m., 850 Burdett Avenue, Victoria, British Columbia, and will attend at the other times required by the court to be dealt with according to law.

(b)   Not to attend at the Plaintiff's place of operations in British Columbia or the access points to Tree Farm Licence 44.

(c)   I promise that I will abide by the court order of Madam Justice Beames, filed in this action on the 5th day of May, 2003 as attached hereto.

The defendant refused to sign the undertaking. 

[10]        On May 14, 2003, the defendant appeared before Wilson J. at Victoria, B.C.  At that time, counsel for the Attorney General of British Columbia appeared.  The court ordered the defendant to appear next in Vancouver on May 15, 2003 for the purpose of fixing a date for the hearing of the contempt application. 

[11]        The court further declared that the alleged contempt of the defendant, if proven, would constitute criminal contempt.

[12]        On May 15, 2003 the defendant appeared before Maczko J. at Vancouver at which time the matter was adjourned to May 22, 2003. 

[13]        On May 22, 2003, following submissions by counsel for the Attorney General and after having heard the defendant, Dohm A.C.J. adjourned the matter to June 16, 2003. 

[14]        In the interim, the defendant retained counsel on May 23, 2003.  Mr. Ward brought a proceeding by petition seeking the defendant's release from custody, which Metzger J. heard on May 28, 2003.  While no reasons are available or were made available before me, it appears that Metzger J. amended the conditions of release and directed that the defendant be released from custody. 

[15]        On June 24, 2003, the defendant was arrested by the R.C.M.P. at a place within Tree Farm Licence 44 described as the "Ball Park", a point approximately one kilometre from the Twin Bridges area, for being in breach of the May 5, 2003 order of Beames J.  In relation to this alleged breach of the order, the defendant had returned to the area of the tree farm license and had resumed her role as leader and spokesperson for "Women in the Woods". 

[16]        On July 7, 2003, counsel for the Attorney General and the defendant appeared before Pitfield J.  In keeping with the importance of what occurred at this hearing, which will become apparent later in these reasons, I will refer in some detail to what occurred at that time.

[17]        At this hearing, Mr. Justice Pitfield addressed the directions to be made for the hearing of the allegations of contempt against the defendant.  He made it clear at that time that the process at the hearing "is the Court's process and no one else's". 

[18]        It is clear from the transcript of these proceedings and the oral reasons delivered at that time which have subsequently been transcribed, there was a fundamental difference between the court and Mr. Ward, representing the defendant, as to what was to be the nature of the "hearing" and its procedure or process.

[19]        At the hearing, in addition to or as an alternative to his application for a stay of proceedings, which was summarily dismissed, Mr. Ward advanced an application for a jury trial.  Mr. Justice Pitfield "disposed" of the application in these words, after referring to a particular Rule of the Court:

There is no provision for a jury trial and there will be none.  You can make your application but you can rest assured that it will be heard on the basis of written representations to be made within a time specified, and the ruling will undoubtedly be as I have indicated it will be.

Pure and simple, there is no substance to the application and I do not see any reason why I should be obliged to hear it.

[20]        I comment in passing the application for trial of the issues of contempt before a judge and jury was never renewed.

[21]        Mr. Justice Pitfield went on to settle on a procedure for the hearing, his intention being to ensure the matter could proceed in a timely fashion.

[22]        His directions were as follows:

(a)   The proceedings will commence by way of the service of a notice of motion, with a form provided by the court.

(b)   The evidence of the crown will be in the form of affidavits from whomever in the ordinary course of events would be called as witnesses in the proceeding, the affidavits to be complete and based upon personal knowledge.

(c)   The alleged contemnor will be permitted to cross-examine the deponents of the affidavits in open court.

(d)   The alleged contemnor will be permitted to call such evidence on the hearing as is relevant to the proceeding.  Relevance is to be found within the context of the order of Beames J. and nothing more. 

[23]        At this hearing, Mr. Ward indicated to the court that at the future hearing itself, he expected he would be advancing submissions related to, inter alia, what occurred here as constituting an abuse of the process of the court; questioning the addition of the Attorney General of British Columbia as intervenor; and the violation of the defendant's Charter rights.  He wanted to make these submissions at the commencement of the hearing.

[24]        Mr. Justice Pitfield responded to his submission in the following manner:

All of the applications that you wish to bring as you have described them will be heard in the course of the contempt proceeding itself.  There will be no preliminary applications other than the Rowbotham application.

. . .

The other matters, as I say, whether in relation to the Charter, the question of the abuse of the court's process, the addition of the Attorney General, are matters which can be dealt with in the course of the contempt proceeding itself.

[25]        Finally, in this perspective, Mr. Justice Pitfield, further to his view the matter should proceed in a timely basis, imposed time limits for the service of the affidavits, set dates for the appearances of the witnesses for the Crown, and imposed time limits for the respective submissions of counsel related to the issues, including the submissions of Mr. Ward described supra.

[26]        In keeping with these directions, Mr. Justice Pitfield expected the hearing could be completed in four days.  I comment in passing that the hearing was completed in four and one half days, even with Mr. Ward's submission as described supra taking in itself more than a full day.

[27]        It is apparent from the transcript of the proceedings at this time that Mr. Justice Pitfield had planned that the hearing would proceed in the second week of August, with the reservation that it may have to be heard at a later date.  In relation to what occurred thereafter, counsel indicated jointly that they would require a further eight weeks approximately and I assume it is for this reason that the hearing was set to take place at Vancouver during the week commencing September 8 last.

[28]        On September 8, 2003, the hearing commenced before me. 

[29]        At the commencement of the hearing, Mr. Ward informed the court his retainer was restricted to the advancement of the applications referred to before Mr. Justice Pitfield and cross-examination of the peace officers called in the case for the Crown.  In this regard, the defendant was expected to cross-examine all other witnesses.

[30]        Mr. Ward informed the court he had "a series of objections to process" which he submitted should be heard and adjudicated upon before the hearing proper commenced.  As I understood his submission, if these objections were accepted as valid, the hearing of evidence would not be necessary and would dispose of the matter.

[31]        I did not accede to the hearing proceeding in this manner.  In this regard, I was in agreement with the direction of Mr. Justice Pitfield that there would be no preliminary applications and that the objections referred to by Mr. Ward would be heard during the course of the proceeding itself.

[32]        Therefore the hearing proceeded with the calling of evidence in the case for the Attorney General.  Upon the close of the Attorney General's case, Mr. Ward advanced the submissions of the defendant which by that time were expanded to include submissions beyond "process", including those related to delay and jurisdiction.  I reserved my decision in relation to these submissions and called upon Mr. Ward in due course to indicated whether the defendant wished to call evidence.  Mr. Ward informed the court no evidence would be called on behalf of the defendant.

[33]        On the following day, counsel made submissions in relation to the remaining issues requiring determination. 

[34]        It is useful to consider the principles for judicial use of the law of contempt in circumstances where the contempt occurs not in the face of the court, but, as here, in the contravention of an order of the court.

[35]        They are:

(a)   Contempt of court is the mechanism which the law provides for the protection of the authority of the court from improper interference.

(b)   Contempt of court powers exist for the protection of the courts and judges as judges.

(c)   Contempt of court is part of a court's inherent jurisdiction.

(d)   Contempt of court can be criminal contempt by any private or public conduct that interferes with a court's process or seriously threatens the proper administration of justice.

(e)   Civil contempt is governed by the context of an existing proceeding according to the Rules of Court.

(f)   Criminal contempt is governed by summary process, fixed by the court to meet the exigencies of the situation.  This process is not governed by the Rules of Court.

(g)   The preferred course is to leave the initiation and conduct of proceedings for contempt that occurs out of court to the Attorney General.

[36]        The law of contempt derives from the common law and has developed case by case within the inherent jurisdiction of a superior court.  The courts of justice exist for the benefit of the people and for this reason the authority of the court must be protected from unauthorized interference.  

[37]        The principles related to the jurisdiction of the court have been discussed by Sir Jack Jacobs in his article, "The Inherent Jurisdiction of the Court" (1970) 23 Current Legal Problems at 27-28:

... For the essential character of a superior court of law necessarily involves that it should be invested with a power to maintain its authority and to prevent its process being obstructed and abused.  Such a power is intrinsic in a superior court; it is its very life-blood, its very essence, its immanent attribute.  Without such a power, the court would have form but would lack substance.  . . .  The juridical basis of this jurisdiction is therefore the authority of the judiciary to uphold, to protect and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner.

[38]        Referring to the inherent jurisdiction aspect, the author makes the following statement:

The distinctive and basic feature of the inherent jurisdiction of the court is that it is exercisable by summary process, i.e., without a plenary trial conducted in the normal or ordinary way, and generally without waiting for the trial or for the outcome of any pending or other proceeding.

[39]        The Supreme Court of Canada in R. v. Vermette (1987), 32 C.C.C. (3d) 519 stated the following with regard to jurisdiction at 522:

The power to deal with contempt as part of the inherent and essential jurisdiction of the courts has existed, it is said, as long as the courts themselves (see Fox, The History of Contempt of Court (London, 1972), p. 1).  This power was necessary, and remains so, to enable the orderly conduct of the court's business and to prevent interference with the court's proceedings.

[40]        The common law jurisdiction in criminal matters is preserved by s. 9 of the Criminal Code of Canada, which prevents any conviction for offences at common law, but also states:

... nothing in this section affects the power, jurisdiction or authority that a court, judge, justice or provincial court judge had, immediately before April 1, 1955, to impose punishment for contempt of court.

[41]        The contempt alleged here is the repeated disobedience of an order of the court.

[42]        The determination of whether a contempt arising in a civil proceeding is criminal or civil contempt is a determination made by the court in the course of the proceeding.

[43]        The decisions of the Supreme Court of Canada in Poje v. Attorney General of British Columbia, [1953] 1 S.C.R. 516 and United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901, illustrate the distinction between civil and criminal contempt.  In Poje, Kellock J. provided the following distinction between civil and criminal contempt.  He said at 517:

There are many statements in the books that contempt proceedings for breach of an injunction are civil process, but it is obvious that conduct which is a violation of an injunction may, in addition to its civil aspect, possess all the features of criminal contempt of court.  In case of a breach of a purely civil nature, the requirements of the situation from the standpoint of enforcement of the rights of the opposite party constitute the criterion upon which the court acts.  But a punitive sentence is called for where the act of violation has passed beyond the realm of the purely civil.

Kellock J. went on to say at 522, quoting with approval a statement found in Oswald, 3rd edition at p. 36:

And, generally, the distinction between contempts criminal and not criminal seems to be that contempts which tend to bring the administration of justice into scorn, or which tend to interfere with the due course of justice, are criminal in their nature; but that contempt in disregarding orders or judgments of a Civil Court, or in not doing something ordered to be done in a cause, is not criminal in its nature.  In other words, where contempt involves a public injury or offence, it is criminal in its nature, and the proper remedy is committal -- but where the contempt involves a private injury only it is not criminal in its nature.

[44]        In United Nurses of Alberta, McLachin J., as she then was, referred to the distinction between civil and criminal contempt drawn in Poje, and offered the following elaboration regarding the public nature of criminal contempt (at 931):

...  A person who simply breaches a court order, for example by failing to abide by visiting hours stipulated in a child custody order, is viewed as having committed civil contempt.  However, when the element of public defiance of the court's process in a way calculated to lessen societal respect for the courts is added to the breach, it becomes criminal.

She goes on to say (at 932):

...  The gravamen of the offence [of criminal contempt] is not actual or threatened injury to persons or property; other offences deal with those evils.  The gravamen of the offence is rather the open, continuous and flagrant violation of a court order without regard for the effect that may have on the respect accorded to edicts of the court.

And further (at 933):

While publicity is required for the offence, a civil contempt is not converted to a criminal contempt merely because it attracts publicity, as the union contends, but rather because it constitutes a public act of defiance of the court in circumstances where the accused knew, intended or was reckless as to the fact that the act would publicly bring the court into contempt.

[45]        A public disobedience of an injunction has been considered to be a classic example of criminal contempt.  It follows that a repeated disobedience of the same injunction would be even more so.

[46]        In relation to the summary aspect of the procedure, the exact procedure for the summary determination of a question of criminal contempt is nowhere stated.  It may vary from case to case.  What is significant about the summary procedure is that the court has a discretion to determine how to proceed, and the court is not bound by time limits or other procedural rules except, of course, the principle of fairness. 

[47]        I have stated supra certain of the principles applicable to the procedures to be followed for the summary hearing. 

[48]        In my view, the authority of a superior court judge to deal effectively with criminal contempt is not compromised by the Charter.  At the same time, an alleged contemnor must be treated fairly and afforded his or her equivalent of Charter rights and protections, some of which have been commented upon in R. v. Cohn (1984), 15 C.C.C. (3d) 150.  In this regard, the alleged contemnor has the right to know specifically what is charged, the right to cross-examine witnesses, the right to give evidence or call evidence on his or her behalf, the right to make submissions in relation to both guilt and punishment, and the right to be presumed innocent and to require proof beyond reasonable doubt of the allegations of contempt.

[49]        In my view, the current law, properly applied, does not offend against the Charter, as long as the court affords appropriate safeguards to the alleged contemnor. 

[50]        I comment in passing that in United Nurses of Alberta, supra, McLachlin J., as she then was, stated that criminal contempt does not violate s. 7 of the Charter

[51]        I return to the submissions of Mr. Ward made following the completion of the case for the Attorney General, referred to before Mr. Justice Pitfield as encompassing the Charter, the question of the abuse of the court's process, and the addition of the Attorney General, and, before me, as "a series of objections to process".  The submissions occupied in excess of a day of the hearing, which in themselves exceeded the direction of Mr. Justice Pitfield of approximately two hours.  I decided not to so limit the submissions because of the obvious importance attributed by Mr. Ward to them, although I had initial reservations, which I did not express at the time, as to some part of the submission's relevancy.

[52]        Mr. Ward's main theme as I understood it is that there is a practice, particularly in British Columbia, whereby the commencement of a civil action, followed shortly thereafter by the obtaining of an ex-parte injunction, and then by contempt proceedings taken against persons disobeying the injunction, are used "to maintain public order".  He submits this practice occurred in this case, and as such constitutes an abuse of the process of the court, which abuse should be terminated by the court issuing a judicial stay of proceedings.

[53]        Mr. Ward commenced his submissions with reference to an article by Bora Laskin, as he then was, entitled "The Labour Injunction in Canada: A Caveat" (1937) 15 Canadian Bar Review.

[54]        In chronological order, he then moved to the writings of Ghandi, Martin Luther King (Why We Can't Wait), and the defendant (Lock Me Up or Let Me Go). 

[55]        I refer in passing to an extract from the defendant's writings:

Canadian citizens are protected by the Criminal Code and the Charter of Rights and Freedoms.  If anti-logging protesters were treated like all other citizens, we would be arrested and charged under the Criminal Code, which makes provisions for an accused's defence.  The reasons for the crime and the circumstances surrounding the crime would then be taken into account by a judge or jury.  We would be able to bring into the public consciousness the fact that logging corporations are stealing the forests that belong to us and our children and grandchildren.  Instead, an unholy threesome corporate companies like Interfor, the Attorney General's office and the judiciary circumvents justice in the province of British Columbia by refusing protesters the protections of the Criminal Code.  They do this by arresting us under an injunction. 

. . .

Judges have ruled in the past that a charge of civil contempt changes to criminal contempt based on how public the protest is.  In 1992 Chief Justice Beverley McLachlin ruled that when a person not only breaches a court order but publicly defies the court's process in a way calculated to lessen societal respect for the court, the charges is criminal contempt of court. 

[56]        Mr. Ward then turned to the statements of judges of the courts of this province, referring in the first instance to a statement made by Southin J.A. in 1990 in Everywoman's Health Centre Society (1988) v. Bridges (1990), 54 B.C.L.R. (2d) 273 at 284.  This statement is in a section of the judgment interestingly entitled "A CAVEAT" with particular emphasis upon paragraph 34 of the caveat, which reads as follows:

There is today the grave question of whether public order should be maintained by the granting of an injunction, which often leads thereafter to an application to commit for contempt or should be maintained by the Attorney General insisting that the police who are under his control do their duty by enforcing the relevant provisions of the Criminal Code.

[57]        Mr. Ward then turned to the dissenting judgment of Wood J.A., as he then was, in MacMillan Bloedel Ltd. v. Simpson (1994), 96 B.C.L.R. (2d) 201 ("MacMillan Bloedel #2")at 248, and particularly 155-156 of the decision. 

[58]        Finally, in this perspective, he referred to and relied upon the decisions of McEwan J. of this court in Slocan Forest Products Ltd. v. John Doe, [2000] B.C.J. No. 1592, 2000 BCSC 150 and Central Kootenay (Regional District) v. Jane Doe, [2003] B.C.J. No. 1289, 2003 BCSC 836.

[59]        In general terms, Mr. Ward submitted that McEwan J. in both cases made a scalding indictment of the procedures employed in those cases, including what he understood was the policy of the law enforcement authorities at the relevant times. 

[60]        Mr. Ward place particular emphasis (because of its currency) paragraphs seven through nine of McEwan J.'s decision in Central Kootenay, supra, which I will repeat here:

... This apparently has the salutary effect, from the point of view of the Attorney General's department and the police, of relieving them of their investigative and prosecutorial functions in matters they deem politically, or otherwise, sensitive, and handing them over to the Court.  The Court is then in the invidious position of having before it a litigant whose only seeming recourse is to the Court, given the inaction of the authorities.  The Court also subsequently finds itself in the position of prosecuting any breaches of the injunction as "contempts", in effect, translating what are apparently offences against public order (for which Parliament has passed criminal sanctions), into attacks on the court's authority.  I am not at all persuaded that the court should inevitably put its authority on the line in such circumstances.  I will not repeat what I have said on earlier occasions on this subject except to note that the misgivings I expressed in, for instance, Slocan Forest Products Ltd. v. John Doe et al, [2000] B.C.J. No. 1592, 2000 BCSC 150, inform these reasons.

The materials before me include a Writ and Statement of Claim asserting a trespass, but seeking only an injunction and enforcement orders, not damages or costs.  The form of relief sought in the motion is not stated to be interlocutory, although that is clearly what the plaintiff must be seeking.

I think this proceeding amounts to a kind of officially induced abuse of process.

[61]        In the first of these decisions, McEwan J. did not set aside an injunction made earlier.  In the second, he refused to grant the injunction sought. 

[62]        I do not purport to suggest that this brief review of a submission which took over a day to make is in any way complete.  The submissions were far ranging and encompassed many subjective factors that Mr. Ward considered were applicable to the circumstances here.

[63]        In keeping with my view of the law applicable to a hearing of this nature, in my opinion, the submissions are not appropriately made.  My principle reason is that the submissions are, in substance, an impermissible collateral attack upon the order of Beames J. made on May 5, 2003. 

[64]        It is to be remembered no application was made, as provided in the order itself, to set aside the order, nor has any appeal been taken from it, nor at the time of the alleged criminal contempt here had it been varied in any respect.  The order therefore stands as having been lawfully made and in full effect at the material times. 

[65]        The law is clear that the validity of such an order is not an issue on a contempt hearing.  In this perspective, I refer to United Nurses, supra, MacMillan Bloedel v. Simpson (1994), 90 B.C.L.R. (2d) 24 ("MacMillan Bloedel #1"), and British Columbia (Attorney General) v. Mount Currie Indian Band (1991), 54 B.C.L.R. (2d) 129 (S.C.).  In United Nurses, the Supreme Court of Canada said at 935:

...  One way of approaching the problem is to ask whether a judge entertaining a motion for contempt of an order made by a judge of the court, as opposed to an inferior tribunal, would have the power to go behind the order.  It would seem not.  The validity of the order is not an issue on the contempt hearing.  ...

[66]        In MacMillan Bloedel #1, the British Columbia Court of Appeal at 32 stated:

...  On the theory that an order of a Superior Court must be obeyed until it is set aside, it was not open to these Defendants to question its validity either by their blockades, or by a collateral attack during contempt proceedings.  The refusal of the Defendants and some of their counsel to accept this legal truism was one of the reasons why the trial of these matters was so unduly delayed.

[67]        In the Mount Currie Indian Band case, the court summarized the plaintiff's position at 133 as follows:

The collateral attack doctrine, the plaintiffs argue, is founded on the principle that an order of a court of general jurisdiction is valid and binding until set aside or varied by the court itself or reversed on appeal.  They say that the Indian sovereignty argument, however characterized, is a collateral attack on the injunction itself, because to allege that this court has no jurisdiction to find the persons arrested in contempt of its order necessarily impugnes its jurisdiction to issue the injunction in the first instance. 

[68]        The court went on to consider the plaintiff's position, including its submission that for the court to hold it was without jurisdiction in the circumstances was tantamount to holding that it was not a superior court, that the injunction is of no force and effect, and can be disobeyed with impunity.

[69]        The court went on to say the following at 142:

I consider it to be clear that there are no exceptions to the collateral attack doctrine insofar as contempt of court proceedings are concerned. ...

Underlying the collateral attack doctrine is the principle that an order of a court of general jurisdiction is valid, binding and must be obeyed until set aside or varied by the court itself (in those limited circumstances in which that course is open) or reversed on appeal.  That principle is fundamental to the maintenance of this court's authority.  One of the essential inherent powers of a superior court is the power to maintain its own authority.  

[70]        In my view, the submissions of Mr. Ward related to the issues addressed up to this point in time in the submission, if applicable at all, may be applicable and appropriate in an application to set aside the injunction or, if unsuccessful in so doing, upon an appeal taken from such a decision to the Court of Appeal. 

[71]        For the reasons I have stated, these submissions are not appropriate to attack the order of the court in contempt procedures.

[72]        I comment in passing it is apparent the defendant chose not to apply to set aside the order of Beames J., which application could have been made on 48 hours notice and, as I have stated, would lead to an appeal from any decision of the court refusing to set aside the order.  The defendant appears to have been of the belief at those times and up to the time of the hearing before Mr. Justice Pitfield that even if she were not arrested and charged with an offence under the Criminal Code in the circumstances (her obvious preference), she could subsequently have the allegations of contempt against her tried by a court composed of a judge and jury, and in this way obtain the public forum she so earnestly desired. 

[73]        I turn next to the remaining part of Mr. Ward's submission related to "objection to process", confined to "procedures". 

[74]        These objections may be summarized in the following manner:

(a)   Notice of Motion is a nullity;

(b)   Crown lacks standing;

(c)   trial on affidavits the use of affidavits in a criminal proceeding; and

(d)   the failure to give the defendant notice of the plaintiff's intention to apply for injunctive relief.

[75]        I do not understand (d) supra as being seriously advanced as a tenable proposition.  In the absence of any authority to support the submission, I find it has no merit. 

[76]        In my view, there is also no merit to the other objections. 

[77]        The evidence indicates that from his early involvement in the matter, Mr. Ward was of the view that the contempt proceeding was to take place in the form of a trial.  This is illustrated graphically by way of the defendant's submission before Mr. Justice Pitfield on July 8, 2003, that in relation to the allegations of contempt, there should be a trial by judge and jury.  Mr. Justice Pitfield clearly and unequivocally rejected the hearing of such applications, as I have stated supra

[78]        No such application was made thereafter.

[79]        It is also apparent from the submissions made before me at the commencement of the hearing on September 8, 2003 that Mr. Ward continued to believe the procedure was to be a trial.  While he later modified this view, he continued to submit the summary hearing should be conducted on the procedures applicable to a trial and, most importantly, that the Rules of Court and provisions of other enactments related to procedure applied to the procedure.

[80]        As I have indicated supra at paragraph 35(f), on a summary hearing related to criminal contempt, the court determines its own process, which is not governed by the Rules of Court.

[81]        The test is whether, as in the case here, the terms and conditions set by Mr. Justice Pitfield for the summary procedure meet the principle of fairness. 

[82]        An alleged contemnor therefore must be treated fairly and accorded the equivalent of his or her Charter rights and protections.  These protections include, not necessarily in the order of importance: the presumption of innocence; the right to know specifically what is alleged by way of the contempt; the right to counsel; the right to cross-examine witnesses, if any; the right to give evidence or to refuse to testify; the right to call witnesses; the right to make submissions on guilt and punishment; and proof beyond reasonable doubt. 

[83]        In my view, the terms and conditions set by Mr. Justice Pitfield meet, and in certain respects, exceed the test for fairness in relation to a summary proceeding of this nature.

[84]        Counsel also addressed the subject of detention without charge. 

[85]        Mr. Ward submits detention is arbitrary if it is governed by unstructured discretion.  He submits the detention here was arbitrary, whimsical, and capricious. 

[86]        Mr. Richards in response submits the court is entitled to protect its own processes and that the terms imposed by the court, here Mr. Justice Ralph, were reasonable under the circumstances.

[87]        I would put the issue higher than the court being entitled to protect its own processes, in the sense that the court has a duty to protect its processes and to ensure the integrity of its orders.

[88]        In the circumstances here, I consider the conditions set by Ralph J. for the release of the plaintiff were necessary and reasonable.  In my view, the necessity for such conditions was amply demonstrated by the conduct of the defendant following her release without conditions by Metzger J.  Within weeks, she returned to the same area and was again arrested in breach of the same order.

[89]        I do not accept that during what was described as her first term in custody she was held in limbo for the reasons I have stated.  In the result, I do not find the defendant was arbitrarily detained.  In keeping with her refusal to agree to conditions of release that were reasonable and necessary to protect the integrity of the order and to make it meaningful, her detention was necessary.

[90]        Mr. Ward made further submissions during the hearing related to what he described as two additional issues referred to as delay and jurisdiction.

[91]        While there was some delay in proceeding with the hearing  Mr. Justice Pitfield had hoped it could have been held in August the logistics of preparing the materials as well as the scheduling commitments of both counsel required an eight week delay.

[92]        The delay here does not even approach the delay necessary to support the entering of a judicial stay of proceedings. 

[93]        The submission related to jurisdiction is essentially that there is no specific reference in the evidence to the alleged contempt on the part of the defendant as having occurred in the province of British Columbia.

[94]        The short answer to this submission is that in my view, there is overwhelming evidence from which the court can take notice leading to the conclusion that the alleged contempt occurred within the province of British Columbia. 

[95]        There remains for consideration whether the Attorney General of British Columbia has proved beyond reasonable doubt that the defendant at the material times was in contempt of an order of the court and, if so, whether such contempt was criminal in nature. 

[96]        Mr. Ward concedes the conduct of the defendant may properly be characterized as civil contempt, but submits it has not proven to be criminal intent. 

[97]        As I have stated supra, it has been held that the public disobedience of a court order in the form of a specific injunction is a classic criminal contempt.  The repeated public disobedience of such an injunction is confirmation of such contempt, leaving no doubt as to the intention of the contemnor.

[98]        In keeping with the evidence and circumstances here, statements made by the defendant during the days leading up to May 8, 2003 and her conduct on that day also evidence her intent.

[99]        During those times the defendant repeatedly stated, in public, the following:

The R.C.M.P. and the Attorney General are not responsible they are cowards in not assisting us to "get to court" by way of arrest on criminal charges. 

The plaintiff is doing the dirty work of an international corporation.

We are here forever.

We are all going to go down forever.

There may be other places where we will go.

We will shut down all logging on Vancouver Island.

[100]    Finally in this perspective, on two occasions, during the reading of the writ of summons and order of Beames J. to the assembled group, there was group "singing", participated in by the defendant in which verses were sung followed by a repetition of a refrain.  The verses ranged from references to the plaintiff and Weyerhaeuser being on their way out, to judges getting kicked off the bench, and disposing of the courts.

[101]        As I have stated supra, the defendant, along with others were attempting to get the law enforcement authorities to arrest them for a crime or crimes pursuant to the provisions of the Criminal Code of Canada.  A public trial, perhaps a trial by judge and jury, would then serve as the platform to enable them to proclaim their grievances.

[102]        In my view, the contempt shown by the defendant for the order of the court meets all the requirements for criminal contempt.

[103]        The contempt shown by the defendant here was open, public, continuous and flagrant disobedience of a court order on two occasions.  It was conduct staged and orchestrated with communication to the media of what occurred for the purpose of dissemination to the public.

[104]        It was conduct without regard for the effect the conduct may have on the respect accorded to orders of the court.

[105]        For these reasons, I find the conduct of the defendant at the material times is criminal contempt within the requisite degree of proof required.

R.B. Harvey, J.
The Honourable Mr. Justice R.B. Harvey