The B.C. Civil Liberties Association is preparing to take legal action over an injunction granted this week in Kelowna.
Kelowna Fur-Town (1991) Ltd., which operates a retail fur store in Kelowna and has in the past been the target of anti-fur protesters, launched a lawsuit against the protesters alleging conspiracy and interference with economic interests. On December 5, 2000, Fur-Town’s counsel, Kelowna’s Pushor Mitchell, applied ex parte for an injunction. The terms of the injunction are broad. It seeks to restrict “anyone having knowledge of this order” from:
Situating themselves within fifty feet of the front entranceway to the Plaintiff’s retail store… during the Plaintiff’s business operating hours.
Unlike most injunctions, there are no exceptions within the document, even for employees or customers of the store, let alone lawful protesters. Craig Jones, BCCLA president, says that “this is even worse than a bubble zone. This is a dead zone. It is patently improper.”
The BCCLA has two concerns about the injunction. First, because it must by its own terms be broken (i.e., in order for there to be “business operating hours”, employees of the store must be inside the exclusion zone), it can only be effective as long as it is arbitrarily enforced.
“The total exclusion is particularly odious, because it gives the store owner carte blanche to ask the police to arrest anybody within the zone without any other reason whatsoever. It is sad that the power of the Supreme Court has been co-opted to this end,” said Jones.
But, even if the injunction was directed only at protesters, the BCCLA would still criticize it. “The Supreme Court of Canada has said said that you cannot enjoin lawful expression, except to protect a constitutional right of equal importance,” says Jones, citing the Court’s decision in Dagenais v. CBC, which reversed the Court’s previous position that the Charter need not be considered in private disputes. “The courts have held that economic interests do not outweigh expression rights in these cases.”
Jones also noted that the B.C. Supreme Court set aside the anti-protest “bubble zone” injunction in the Elaho Valley earlier this year, saying that “any injunction granted by the court should not be so wide as to enjoin non-parties from doing something that does not affect the private rights of the parties before the court”. A similar result was reached in Daishowa Inc. v. Friends of the Lubicon, where the court refused an injunction against anti-forestry protesters picketing retail businesses. “It is perfectly legitimate to use picketing or protest to bring economic pressure against a business,” said Jones. “That is rather the point of picketing.” “It is no defence of this injunction to say that it is not meant to apply to everybody, only to protesters. It is the protesters who have an even greater right to be there, protected by section 2 of the Charter of Rights,” he added.
Because there have been no reasons published for the Kelowna Court’s decision, it is not clear whether the authorities of Dagenais, Daishowa, and Elaho Logging Co. were considered by the Judge.
The BCCLA has engaged the services of John G. Dives of Dives Grauer Harper to challenge the terms of the injunction. Mr. Dives represented the BCCLA in the Elaho hearing and before the Supreme Court of Canada in R. v. Cuerrier.