Canadian National Railway Company v. Doe

2020 BCSC 1855 Canadian National Railway Company v. Doe

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Canadian National Railway Company v. Doe, 2020 BCSC 1855 Date: 20200626 Docket: S201466 Registry: Vancouver Between: Canadian National Railway Company Plaintiff And Jane Doe, John Doe and Persons Unknown Defendants Before: The Honourable Mr. Justice Branch Oral Reasons for Judgment In Chambers Counsel for the Plaintiff appearing by videoconference: J. Doyle, Q.C. S. Nelligan Counsel for the Defendants appearing by videoconference: M. Peters Counsel for Melissa Cox appearing by teleconference: D.F. Sutherland, Q.C. Place and Date of Trial: Vancouver, B.C. June 26, 2020 Place and Date of Judgment: Vancouver, B.C. June 26, 2020 [1] Before me is an application by Canadian National Railway Company ("CNR") seeking that I request that the Attorney General consider whether it should intervene in this proceeding to pursue any potential criminal contempt charges. I have already determined that there should be no contempt referral in relation to Melissa Cox. Her position is materially different in light of her efforts to purge any contempt. Her matter will be heard separately in August. [2] The remaining alleged contemnors oppose CNR's request. They rely primarily on two grounds: 1. that the outcome of such a request is a foregone conclusion given that the Attorney General was previously asked to intervene in a comparable proceeding

brought by Coastal GasLink before Justice Church and the Attorney General declined to do so; and 2. that the evidence in support of the request is insufficient. [3] I conclude that I should issue the request to the Attorney General to consider whether it is prepared to intervene. [4] In terms of the first objection, there are aspects of the present matter that at least arguably distinguish it from the one before Justice Church: 1. CNR was not the party against whom the protests appear to have been primarily directed, raising an additional layer of concern in terms of any public interest evaluation; and 2. CNR's rail operations arguably carry a broader public interest than Coastal GasLink's operations. [5] In terms of the second objection, I conclude that this is not the type of application that requires the applicant to meet a heavy or technically rigid evidentiary standard. This is not an application for a final order. The court is not making any binding findings on the merits. The request for the Attorney General to consider intervention is sought, in part, to ensure that there be a full and proper presentation of the case on the merits, aided by the Attorney General's underlying obligation to fairly present the relevant facts and law. As Justice Rand stated in Boucher v. The Queen, [1955] S.C.R. 16 at pp. 23-24: It cannot be overemphasized that the purpose of a criminal

prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings. [6] Seeking an evaluation from the Attorney General makes sense in this case. The decision on this request, either to intervene or to not intervene, will assist the court in its evaluation of the public interest in the further pursuit of this matter. [7] I conclude that the evidence available at this stage is sufficient upon which to make a decision. [8] The main objection appears to be that there was no firsthand affidavit from the RCMP officers involved in the arrests. However, I note that Exhibit B of the affidavit of Vivian Law contains a summary of events from Corporal David Goodyear outlining the relevant events leading to the arrest. While perhaps not the best possible evidence, it is still useful evidence and

certainly enough to support the limited order requested. As noted by Chief Justice Esson in MacMillan Bloedel Ltd. v. Simpson, 87 B.C.L.R. (2d) 154, [1994] 4 W.W.R. 24 (SC), this type of proceeding is intended to be dealt with summarily (at para.12). [9] In conclusion, as found in R. v. Krawczyk, 2009 BCCA 250 at para. 7, quoting Justice Brown in Chambers, I am satisfied that there is evidence in this case which, if accepted by the court, may support a finding of criminal contempt. As Justice Brown emphasized, I do not say that there is a prima facie case against any of the contemnors but, in my view, the situation has developed such that there is a public interest to be served here, and it is timely for the Crown to consider whether it is appropriate to intercede and conduct the proceedings that have been initiated. [10] Thank you, counsel. I take it, Mr. Doyle, that you will take the necessary steps to make the referral? [11] MR. DOYLE: I will do that and I will copy my friends with my correspondence to Mr. Shaw in that regard. [Further discussion with counsel] "Branch J."