Opinion

COLUMN: Injunction process a ‘sham,’ Nelson judge says

The Crown declined to pursue mischief charges against three people arrested on Perry Ridge last year but didn
The Crown declined to pursue mischief charges against three people arrested on Perry Ridge last year but didn't hesitate to prosecute for criminal contempt. A BC Supreme Court Justice isn't impressed.
— image credit: Facebook photo

My shorthand skills are severely lacking, so when BC Supreme Court Justice Mark McEwan recently found local Sinixt woman Marilyn James in criminal contempt, it was all I could do to keep up as he delivered his judgement.

Now that a transcription is available online, I can revisit portions of his ruling that my writing hand failed to take down. McEwan reiterated his long-standing distaste for the courts being dragged into these sort of disputes.

When the matter first came before him a year ago, McEwan declined to grant an injunction to a logging company working on Perry Ridge to prevent anyone from blocking the road, suggesting it should be handled under the Criminal Code’s mischief provisions.

The RCMP did, in fact, recommend mischief charges against three people, but five months later Crown counsel declined to approve them. The company returned to court in February, again seeking an injunction, at which time McEwan summonsed the Crown for an explanation. A representative attended as a courtesy but shed no light on the matter.

As a result, McEwan wrote, “parties affected by the unlawful activity of others go to court, at their own expense, to get the court to craft a kind of ad hoc criminal law in place of the Criminal Code.

“The civil claims issued in such circumstances are not properly civil claims at all … They are simply vehicles for translating antisocial behaviour, which the court should adjudicate as neutrals, into contests with the judiciary itself. This creates an opportunity for histrionic submissions about due process, and the apparent enlistment of the court on one side of a political debate, that would simply be absent if the petty crimes alleged in these cases were treated as such.”

McEwan said the problem is compounded when police refuse to act on injunctions. “This is ruinous to the administration of justice. It would be far better not to issue an injunction at all.”

He did, however, grant an injunction after receiving assurances from RCMP they would enforce it. Consequently, James was arrested along with Dennis Zarelli and brought before McEwan. That the Crown would prosecute them for contempt but not mischief “was baffling to Ms. James and not particularly easy for the court to explain,” McEwan wrote. In his view, government policy prefers public mischief “be treated ultimately as a contest between the courts and the protestors.”

He further called the civil process in such cases “a sham” that “typically creates the opportunity for long public discourses, courts being quintessentially public places, on due process, the court’s apparent implication on one side of the case, and issues of title and right that are not properly before it. All of this happened in the course of this case.”

SINGLETON’S FOLLY: Marvin Singleton certainly doesn’t lack chutzpah.

The disgraced Nelson lawyer argued that charges against him of fraud and theft should have been stayed because police didn’t try hard enough to find him — in Kansas, where he was teaching at a community college. The trial judge disagreed. So did the BC Court of Appeal.

True, Singleton didn’t change his name, but as a recent judgment made clear, he was in no hurry to return to Canada to face the music.

Singleton was charged with absconding with nearly half a million dollars from an estate for which he’d been executor, although by then he’d moved to the US.

He further argued he should have been given a break because of his declining mental health — despite the fact he was responsible for delaying the start of his trial through endless procedural wrangling.

Nice try.

It’s all moot anyway. Singleton, who was sentenced to three years in prison, has already been released.

REFERENDUM REJECTED: Kaslo council’s decision not to participate in a referendum this fall on creating a Kootenay Lake conservation fund is based on bizarre and specious reasoning. Despite councillor Jim Holland’s impassioned plea, they voted four to one to opt out.

Say what you will about the merits of such a fund — and council raised points that might persuade some voters to reject it — but passing on the chance to let taxpayers have their say at no extra cost to the village is puzzling.

Some councillors noted they could come on board later, once they have seen the fund in action, but at that point a referendum won’t be free. The next municipal election isn’t until 2018.

Judging from their comments, most of council doesn’t understand the fund’s purpose or how a similar arrangement works in East Kootenay. I can appreciate their reluctance to put a referendum question to residents about something they don’t fully comprehend, but it still strikes me as a lost opportunity.

(CORRECTION: An earlier version of this column incorrectly stated that the next municipal election after this year will be in 2017.)

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