No appeal to the SCC over plastic bags and misleading statements by politicians concerning the Coastal GasLink Pipeline injunction

 

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Topics discussed on the show this week include the Supreme Court of Canada refusing an application by the City of Victoria for leave to appeal a decision by the BC Court of Appeal that the city lacked jurisdiction to ban plastic bags.

In addition, various politicians have mischaracterized the nature of an interim injunction prohibiting blockades, and other self-help remedies, by individuals opposed to the construction of a natural gas pipeline.

A federal Green Party member of parliament suggested that the premier of BC, or the Prime Minister of Canada, should “call off the RCMP” from enforcing the injunction.

Neither the premier nor the prime minister, have the authority to “call off” the RCMP. Because protesters had not voluntarily complied with a previous injunction, imposed a year ago, the BC Supreme Court judge hearing the case ordered the RCMP to enforce the injunction against physically blocking construction.

The obligation of the RCMP to prevent protesters from blocking the construction of the pipeline is a result of the court order and not a political decision.

A number of young people, who apparently misunderstood who had the authority to decide how the matter was going to proceed, occupied the Ministry of Energy, Mines & Petroleum Resources building in Victoria. After fifteen hours, the police carried the protesters out of the building and released them without charges.

In this context, a City of Victoria Councillor unfairly alleged that “there is always a high risk that police will use violence” when dealing with protesters.

What appears to be either uninformed or politically motivated, mischaracterizations of the court-ordered injunction are most unfortunate.

It would be wise for anyone who is inclined to wade into the pipeline issue, the role of the elected first nations representatives, Wet’suwet’en hereditary chiefs, the RCMP, or the government, to actually read the judge’s reasons for judgment.

The background, context and reasons really do matter.

Finally, a tribute to Ted Hughes, the former judge, and lawyer, who passed away on January 17, at age 92, after making a numerous contribution to the Canadian legal system.

 

Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am.

 

An automated transcript of the Jan 23, 2020 show:

 

Adam Stirling [00:00:00] For example, the councillor there, he has spoken about how he’s trying to have single-use Styrofoam restricted there and also talked about expanding that to plastic bags, but Saanich had the foresight and the wisdom, in my view, to put their bylaw aside at least pending the outcome of this appeal. So, I guess sandwiches bylaw will remain not enforced in effect as well. But that’s the sort of prudence I think we need to see more of in Victoria’s governance. They can learn a lot from Saanich, in my view…

unknown Caller [00:00:26] But they are not interested in learning. This is a group that wants to change the city. The physical characteristics of the city get into all of these issues around human equity or human whatever and justice and economic issues and so on. And they want to do it all at one time. So, this is why the costs are escalating. And for the people that are essentially paying the taxes are property owners and business and a good many of the business owners can’t vote. So basically, Ivan said it all this morning and his little blurb and his constituency want him to do what he’s doing and that it comes back to Ivan…

Adam Stirling [00:01:07] All right. The guiding voice to which we turn to better understand legal issues on this program during the second half of our second hour. And also, he is kind enough to provide analysis where necessary on our shows, Michael Mulligan from Mulligan Defence Lawyers with Legally Speaking, good morning. Thanks for coming in, as always.

Michael T. Mulligan [00:01:24] Thanks for having me. I must say, this is a thick pile of paper, kind of weak. There is no shortage of legal events going on in this country.

Adam Stirling [00:01:32] Indeed. So, let’s dive in and get started.

Michael T. Mulligan [00:01:34] Well, there’s been lots of discussion about this dismissed application for leave to the Supreme Court of Canada on the plastic bag ban. So, I do think it’s worth providing a little bit of context about that.

Adam Stirling [00:01:45] Yes.

Michael T. Mulligan [00:01:46] …and how that works. So, to give some idea of what it takes to go to the Supreme Court of Canada, it’s more than simply as you hear often ” I’ll take this to the Supreme Court of Canada”. A little bit more is required. You need to, in most cases, apply for leave or permission to go there. Last year or 2018 actually, now, they received 525 applications for leave. So, requests to go there. But of those, ultimately the only wound up hearing 66 appeals. So, the very large majority of leave applications are dismissed. And I should say, as a lawyer, I found this interest.

Adam Stirling [00:02:22] Yes.

Michael T. Mulligan [00:02:22] Of those 66, 26 of them were cases where leave is not required. And those would be criminal cases where there is a dissent from a judge on the Court of Appeal. So, like if you’re convicted of murder, you appeal it to the Court of Appeal. You get a 2:1 split. One of the Court of Appeal Judges said, you know, there should have been a new trial. You get to go to the Supreme Court of Canada automatically without asking for leave or permission.

Adam Stirling [00:02:47] So five hundred and sixty-six applications, 40 were granted leave voluntarily by the court?

Michael T. Mulligan [00:02:52] Yes, I think that’s, that’s correct. That’s what it amounted to. So a small percentage of them. And then, in this case, there’s also been some discussion about the costs award and what that would amount to. Right. Against the city…

Adam Stirling [00:03:06] Ya what does that mean?

Michael T. Mulligan [00:03:06] Right. So, costs, including to the Supreme Court of Canada when costs are awarded, the idea is that they are ordinarily awarded against the party who is successful. So, if you sue somebody and you lose, the other party would get costs which don’t amount to all of their legal costs, but a portion of them and vice versa. If you sue somebody, they don’t settle the thing and you win. You would ordinarily get costs against them. And the whole idea is to encourage people to act reasonably and settle cases. Don’t do things that have no merit because you will wind up bearing some expense for doing so. But you don’t make them the entire amount because it could make the process so risky for people who wouldn’t want to engage in it. And so, the costs award against the city for this unsuccessful leave application won’t be the entire legal costs borne by the Plastic Bag Association. There’s a party organization you ever mentioned, sorry, the Canadian Plastic Bag Association. Presumably, there’s like an international following.

Adam Stirling [00:04:06] We talked to them earlier in the show, yeah,

Michael T. Mulligan [00:04:08] You know, maybe, maybe they have some like international conferences in Vegas every few years. It’s crazy…

Adam Stirling [00:04:14] Little plastic bags that they put their little things in… never mind the…. highest quality.

Michael T. Mulligan [00:04:21] So they wouldn’t get all of the expenses back the incurred, but they would wind up with a portion of them. They would get all of the things that are like filing fees or other like actual outlays like that. There are and there are various other things that are attached to an effort to go to the Supreme Court of Canada that don’t attach to other lower-level courts, one of which, for example, is you have to hire what’s called a local agent. Like if you’re a lawyer here and you want to appeal to the Supreme Court of Canada, you have to hire a local lawyer in Ottawa to be your sort of representative on the ground there to deal with the Supreme Court of Canada. You know, they don’t want to have to worry about hey sorry, you’re out here, they need to deal with some matter more promptly. So, there are other expenses. So, the upshot of all of that, is it’s likely to be a few thousand dollars that the city will need to pay to the Canadian Plastic Bag Association. Maybe they can put it into a paper bag or something. Tape it shut. Mail it over to them. So, there it is.

Adam Stirling [00:05:19] Thank you for helping us understand the intricate details of how that all works. Another very contentious matter that has not yet ascended to a court as high as the Supreme Court of Canada. But who knows? May well in time the Coastal Gaslink Pipeline decision. Now, this is an injunction which you’ve told us in the past just means in order to interlocutory injunction, which is a complicated term. How does this all fit together?

Michael T. Mulligan [00:05:42] Yeah. There are a few elements about this that I think are important. So the decision that was just made a few days ago, the December 31, so I guess more than a few days ago was an application actually trying to get rid of an interim injunction that was granted to stop the Hereditary Chiefs and others from physically self-help remedies blocking this pipeline project.

Adam Stirling [00:06:13] mmhhmmm.

Michael T. Mulligan [00:06:13] And they were actually trying to get that set-aside. And that produced ultimately a hearing, which was a substantive hearing to sort out whether that injunction should remain in place. The interim injunction or not.

Adam Stirling [00:06:25] So was this the one from a year ago? Because a year ago they had the controversy, the blockade again and at that point, an injunction was being carried out. So, there was a court battle in the interim about trying to get the injunction set aside that was unsuccessful, is that what happened?

Michael T. Mulligan [00:06:38] What happened is about a year ago, Coast Gaslink Pipelines wound up by getting an interim injunction to stop people from the self-help blockade, efforts up there to prevent the pipeline from being built.

Adam Stirling [00:06:50] Okay.

Michael T. Mulligan [00:06:51] And then the various people who were subject to that injunction didn’t, by all, according to the judgment, adhere to it. There were still efforts during that period of time to physically block access to the construction. But they tried on an application to set aside the interim injunction saying, oh, things have changed, you shouldn’t carry on with this. And it is that effort which then lead to a more fulsome hearing about whether this injunction should remain in place and the various groups or various individuals were unsuccessful in trying to set aside the injunction. Now, there are a number of things I think are important because the way the thing’s been portrayed since then and media reports have been in some instances inaccurate.

Adam Stirling [00:07:38] Okay.

Michael T. Mulligan [00:07:38] Whether that’s intentionally so or not, I’m not sure. But it’s a few things are important here. First of all, the pipeline company, this Coastal Gaslink Pipelines Ltd., has all of the required permits from the province to construct this pipeline, use the roads, there is nothing more required from the Province of British Columbia. And the Province of British Columbia, in fact, the government of Canada have no standing and no role in these injunction applications. The company has the Coast Gaslink Pipelines Inc. done everything they needed in terms of getting permits to build the pipeline. That’s complete.

Adam Stirling [00:08:18] Okay.

Michael T. Mulligan [00:08:18] And so it the hearing is not a hearing involving the Ministry of Energy and Mines, it’s not a hearing involving the Government of Canada or the Province of British Columbia. It’s simply the gas company who, having spent years getting consent from all of the elected band councils, permission from the province, everything that was required is now just trying to build this pipeline. And ultimately with that background, having gotten the injunction about a year ago, not being followed, this unsuccessful effort to try to get rid of the injunction. The judge hearing that Madam Justice Church, she also made what’s referred to as an enforcement order, which is an order directing the RCMP to enforce the injunction, you know, make sure that people aren’t blocking the physically blocking the effort to construct the pipeline, because that’s that issue has been determined. And some of the comments, for example, there were news reports that there was a he was on the on CFAX, the NDP Green Party MP was on CFAX just the other day.

Adam Stirling [00:09:27] For Nanaimo Paul Manley.

Michael T. Mulligan [00:09:28] Yeah. That’s right. And he was making comments suggesting things like the Prime Minister and John Horgan ought to call off the RCMP.

Adam Stirling [00:09:39] Yes, I’ll call that.

Michael T. Mulligan [00:09:40] That, to my mind, is really not fair commentary because the Premier of the Province nor the Prime Minister of Canada has any part of this or any control over it. The Premier has no capacity to either send in the RCMP or not send in the RCMP, nor does the Prime Minister of Canada. This is a court order. It’s an order that these, this group of people, stop physically blockading the construction efforts and because they didn’t follow, voluntarily, the order made a year ago. The judge has now ordered the RCMP to enforce that and to make sure they stop blocking the roads. The, there is no provincial involvement in that decision, politically. There’s no federal political involvement in that decision. And they have, frankly, no particular say in that matter. The required permits were granted by the Province. In fact, this didn’t involve federal permitting, although the Hereditary Chiefs made an argument that this should have been a federal matter that was rejected.

Adam Stirling [00:10:46] So the Constitution Act 92,10 (c) the declaratory power?

Michael T. Mulligan [00:10:50] Well, it’s a… it’s a provincial work. It doesn’t cross provincial boundaries; it is a matter….

Adam Stirling [00:10:54] so clause ‘C’ can be engaged, 470 times, according to Professor Chaffin since confederation. But ya rarely used.

Michael T. Mulligan [00:11:03] So the point is that this litigation does not involve the province. It does not involve B.C. fisheries. It does not involve the Ministry of Mines and Resources, whatever they’re calling themselves now. All of the required permits have been granted and the Hereditary Chiefs who are protesting that just don’t like that decision. And so, we’re physically trying to block it from proceeding.

Adam Stirling [00:11:27] Which is why John Horgan says this is a rule of law issue.

Michael T. Mulligan [00:11:29] Correct.

Adam Stirling [00:11:30] Okay.

Adam Stirling [00:11:31] …the judges. I get it…

Michael T. Mulligan [00:11:31] This is a rule of law. The judge has made the order that these people stop blocking the road. The judge has ordered the RCMP to enforce that order. That’s not a matter of provincial discretion or federal discretion. And those permits have been granted. This decision has been made. And it’s simply a function of the unelected Hereditary Chiefs not liking that outcome. Another interesting thing I should say when I reread carefully this decision from the B.C. Supreme Court upholding the injunction.

Adam Stirling [00:12:02] Yes.

Michael T. Mulligan [00:12:03] One of the interesting things is that the spokesperson for one of the Hereditary Chiefs. All right. The houses, it’s called Dark House.

Adam Stirling [00:12:13] Yes. Is in addition to and she acknowledges this in her response to that application, she describes herself as the spokesperson for Dark House is also, very interestingly, an elected member of the one of the First Nation Band Councils who granted approval for this project to proceed. So, what that really means, and this is important, the all of the elected band council’s in the area and one surrounding it, were consulted for a number of years, all of them granted approval for the construction of the pipeline. And in fact, many of the contracts to actually build the pipeline are going to Aboriginal businesses and employing Aboriginal people doing the construction.

Adam Stirling [00:12:57] Yes.

Michael T. Mulligan [00:12:58] But what this means is that this person, who one of the named persons trying to set aside the order to stop blocking the road on behalf of the Hereditary unelected Chiefs, is herself an elected member of one of the band councils who approved the order, approve the construction. So what that means is that she was in a minority on a band council that was elected that approved the pipeline and is now in a capacity of acting for the unelected Hereditary Chiefs trying to stop the efforts to remove the blockades on the road. So, it’s, I thought, that was a really interesting detail that hasn’t been focused on because it’s clear that the elected bands have given clear permission for this to proceed.

Adam Stirling [00:13:44] Yes.

Michael T. Mulligan [00:13:44] But there are some people in the community, including this person that’s a Ms. Huson, H-U-S-O-N.

Adam Stirling [00:13:50] Yes.

Michael T. Mulligan [00:13:52] Who is both the spokesperson for one of these Hereditary Chiefs that don’t want the thing to proceed. She’s also an elected member of one of the band councils that gave approval. So, it would sort of like you were on the minority in the city council, something got approved you didn’t like. And now you’re out acting on behalf of, you know, purportedly on the behalf of the Royal Family or something, who doesn’t think things should proceed. So, I think that’s just really important context that I don’t think has been clearly pointed out.

Adam Stirling [00:14:23] Michael, I want to thank you for your efforts in educating the public on this matter, because I believe that the version of events that has been portrayed to the public by many activists has been lacking in many material facts. So as too in the mind of an ordinary observer, I would suggest, undermine public confidence in the dispensation of justice, because a court would not do the things that this court is being alleged to have done. What you have described to us seems to be a much more reasonable course of action.

Michael T. Mulligan [00:14:51] Yeah. The other thing to point out in this decision, the court makes clear that the gas pipeline company, spent years consulting with everyone involved, not only all the elected councils who all approved it, they also spent a very long period of time trying to consult with and speak to all of the Hereditary Chiefs, even though they don’t actually have the authority to approve the thing or not. Including making. The judge described it as the plaintiff made repeated attempts to consult directly with Dark House. That’s one of the groups.

Adam Stirling [00:15:24] Yes.

Michael T. Mulligan [00:15:25] And offered to provide information, discuss the concerns of Dark House, require, regarding the pipeline project and ways to mitigate the potential impacts to Dark House territory. Dark House was invited to participate in the Environmental Assessment Office’s working group and refused to do so.

Adam Stirling [00:15:40] Interesting.

Michael T. Mulligan [00:15:40] and they just wouldn’t engage. So, the other thing being suggested now is that, hey, why haven’t these Hereditary Chiefs been consulted? Everyone should surely sit down and do that. Well, the judge makes clear that the many years were spent engaging them. In some cases, they engaged. In other cases, they simply refused to engage, at all. So that background, I think, is very important.

Adam Stirling [00:16:05] It is.

Michael T. Mulligan [00:16:06] The other thing I think I need to comment on as well.

Adam Stirling [00:16:08] Can we can break in…

Michael T. Mulligan [00:16:10] Sorry, Yes.

Adam Stirling [00:16:10] We’ll continue analyzing. This matter is a very important folks. This is the matter that has given rise to all the protests that we’ve seen in our city so far this week. Michael Mulligan taking us through the details. Context matters. This looks different when you hear the whole story will continue telling it after this.

Commercial [00:16:27] COMMERCIAL BREAK.

Adam Stirling [00:16:27] All right. We’re back on the air here at CFAX 1070. Michael Mulligan from Mulligan Defence Lawyers offering his analysis on the legal stories of the week. Again, ladies and gentlemen, as I often remind you, I’m not a lawyer. I’m a journalist. Michael Mulligan is a lawyer. So, we turn to him to help us understand the more intricate nature of these matters. You were talking about another issue we want to underline on this matter of the Wet’suwet’en, Hereditary Chiefs, Michael?

Michael T. Mulligan [00:16:50] Sure. And, you know, we’ve seen here sort of various groups joining in protests. I think perhaps with not the clearest understanding of what, in fact, is going on in the actual case. And we saw that the other day with this protest of young people at the Ministry of whatever it is, Mines and Resources, whatever they call themselves.

Adam Stirling [00:17:14] Mines, resources and petroleum, No, that’s a never mind. I want to say Energy Mines and Petroleum Resources, but I’m not sure.

Michael T. Mulligan [00:17:21] Right. Something along these lines. So, I mean, it’s a suppose great to see young people get involved in things, but it’s a, ah I think that demonstrates just a clear misunderstanding of who’s involved and who has control over these things. That Ministry simply doesn’t have control over what’s going on. All of the required permits have been granted, the things being constructed, and the actual injunction has been sought by the company who’s now proceeding with the construction as a result of all the permits having already been granted. So, the protest is perhaps and pointing in the wrong direction. But nice to see people enthusiastic. I should say this the way I listen carefully to the comments that were replayed today from the city councillor, Isitt, Ben Isitt. I actually took the time to write them down. And he had this comment about whenever there is a police operation involving protests, there is always a high risk that police will use violence. And I thought that was really quite unfair. I mean, I got to say, in my daily work, that I have done for some time. I do criminal defence work. I spend my time reading police reports, cross-examining police officers. I represent people who are charged with criminal offences. That’s what I do for a living. And it’s, in my experience, not fair to say to the police that there’s a high risk that the police are going to use violence when dealing with these matters. That’s just not the usual state of things. There are, of course, unusual circumstances that we deal with those as they arise. But I just thought that was a really unfair characterization of what they’re dealing with and the way they deal with it. In my experience, at least, the expectation is that there’s going to be proper and professional behaviour. It’s carefully reviewed and scrutinized where they were that isn’t so, as is appropriate. But it’s really not fair to be suggesting that the police are using violence or somehow behaving inappropriately. There was a similar suggestion made by the Green Party Federal MP the other day talking about the enforcement of the in the court-ordered enforcement of the injunction to stop blocking the road. Suggesting somehow this was sort of a police decision, but it’s not. The police are doing what they’re required to do in that case pursuant to a court order. And in the case here, sort of removing people who wouldn’t leave after 15 hours or something of protest. So, I just don’t think it’s a fair characterization to suggests that, the we can expect the police or, you know, act in a violent fashion, which suggests somehow inappropriate conduct on their part. And I see nothing to suggest that what went on here could be properly characterized in that way at all.

Adam Stirling [00:20:13] All right. Well, thank you for that analysis, Michael, because I honestly, I don’t know, I wasn’t there. I don’t know where the thresholds are. You’re the professional. You mentioned you’re a criminal defence counsel. You, of course, deal with individuals who have been apprehended by Victoria Police on suspicion of various offences every single day. So, you would know, and you don’t share that assessment.

Michael T. Mulligan [00:20:34] I don’t. I mean, we always have to review each thing individually. But to suggest that that the police ordinarily or can be expected to respond with violence is just not a fair characterization.

Adam Stirling [00:20:47] All right. Thank you for that assessment. It’s greatly appreciated. We have three minutes and 15 seconds left in our segment today. How shall we spend them?

Michael T. Mulligan [00:20:55] I think probably should spend that just commenting and reflecting upon a member of the legal profession that we lost recently in the form of Ted Hughes. Oh, yes. You know, he passed away recently the age of 92. And he had really a pretty remarkable career, which included being a former Superior Court Judge and various roles with the provincial government here in British Columbia after he moved here. But one of the things which I think is just remarkable, you know, reading about and reflecting upon his background and his contributions. Are the contributions and the efforts he made long after he did all of those things, right after he previously served as a judge, he had various provincial roles. People are familiar with his acting as the Conflicts Commissioner, dealing with the Vander Zalm and others. But he carried on, you know, well into his 80s doing all sorts of valuable work, engaging in things like doing reports on the role of women in the legal profession, looking at how young people are dealt with in the child protection scheme here, looking at the Aboriginal youth and how they’re treated in other parts of the country. So, one of the things I think is just really notable and remarkable about him was the length of his service and the breadth of his service. And, you know, many of his, I think, important contributions, including those that I’ve mentioned, were contributions that he made well after serving in all various other capacities, you know, up until very recently. So, a really pretty remarkable career all the way to age 92, and I think that’s a well-deserved reflection upon all of the contributions that he’s made over many, many years.

Adam Stirling [00:22:54] I never had the pleasure of meeting the man, but by reputation, a giant, nothing less than a giant, and the cause of justice and of giving a voice and power to those who are voiceless and powerless. I, I cannot imagine a more comprehensive contribution to the well-being of the people of British Columbia than what was made by former Justice Hughes.

Michael T. Mulligan [00:23:13] Yeah. And his wife, that should be mentioned as well. Right. And she served on city council here.

Adam Stirling [00:23:17] That’s yep.

Michael T. Mulligan [00:23:18] Involved in charitable work. So anyways, a remarkable career and I think worth reflecting upon and remembering age 92.

Adam Stirling [00:23:25] Absolutely. An example for all of us. Michael Mulligan, thank you, as always, for your analysis and insight. Greatly appreciate it.

Michael T. Mulligan [00:23:29] Thank you.

Adam Stirling [00:23:30] All right. Take care. Michael Mulligan, every Thursday during the second half of our second hour here on CFAX 1070

Automatically Transcribed on January 23, 2020 – MULLIGAN DEFENCE LAWYERS