1. Police Enforcement of Injunction Orders∗
I. Overview
The rule of law requires respect for and compliance with orders of the court. At the same time,
police discretion in law enforcement is a key component of the justice system. This paper
reviews how these two principles have intersected in the context of police enforcement of
injunction orders.
Courts have considered the role of police in enforcing injunctions many times. Much of the
discussion has related to the inclusion of police enforcement clauses in injunction orders. From a
practical perspective four key points that emerge from these cases are:
1. Police often have authority to take action in a matter even without an injunction order (or
police enforcement clause).
2. Courts have jurisdiction to include police enforcement clauses in injunction orders.
3. Police enforcement clauses maintain police discretion and do not mandate police action.
4. Courts vindicate the rule of law through their power of contempt.
For the legal practitioner, these four points will be of assistance when advising clients how to
approach a matter. As such they will be discussed further below.
It will be useful, however, to first have a deeper knowledge of the legal context in which these
points arise. There is no doubt that police have a duty to prevent and protect against crime.
Furthermore, disobedience of a court order is an offence under the Criminal Code. From that
perspective, it could be argued that police have a duty to enforce injunction orders. However,
police also have extremely broad discretion how – or whether – to act in any particular case. The
conclusion that appears to result is that police have no duty to enforce an injunction in any given
way or case, particularly through the use of force.
∗
Scott McCrossin, Counsel, Department of Justice Canada. Prepared for the CBA Canadian Legal
Conference, 16 August 2014, St. John’s, NL.
1

2. II. Police Duties: Common Law and Statutory
Police duties spring from two wells: the common law and statute. Of these two sources, the
common law may be most important, and is the foundation upon which much of the
corresponding statute law is built.1
The common law duties of police officers include the preservation of the peace, the prevention
and investigation of crime, and the protection of life and property.2
These duties have yet to be
judicially circumscribed,3
and their performance can be accomplished in a number of different
ways. However, it can fairly be observed that as the police’s common law duties continue to be
further described, they are invariably tied to matters of police or public safety.
The various policing statutes found across Canada generally describe police duties using
traditional common law language. Federally, for example, the applicable provision of the RCMP
Act begins by directing members of the RCMP “to perform all duties that are assigned to peace
officers in relation to the preservation of the peace, the prevention of crime and of offences
against the laws of Canada and the laws in force in any province in which they may be
employed, and the apprehension of criminals and offenders and others who may be lawfully
taken into custody”.4
Ontario’s Police Services Act, to take another example, also begins by
1
As the Federal Court has observed, “the RCMP Act imports and clothes with statutory authority police
powers, duties and privileges which remain largely defined by common law”: Canada (Deputy
Commissioner, Royal Canadian Mounted Police) v. Canada (Commissioner, Royal Canadian Mounted
Police) (2007), [2008] 1 F.C.R. 752, 2007 FC 564, at para. 44.
2
Dedman v. The Queen, [1985] 2 S.C.R. 2 at 32 (para. 65); R. v. Clayton, [2007] 2 S.C.R. 725, 2007 SCC
32, at para. 69.
3
R. v. Godoy, [1999] 1 S.C.R. 311 at para. 15.
4
RCMP Act, R.S.C. 1985, c. R-10, s. 18(a). Further duties pertaining to such matters as execution of
warrants and protection of specific places and persons are also prescribed by s. 18 of the RCMP Act, as
well as by s. 17 of the RCMP Regulations, 1988, SOR/88-361.
2

3. using language reflective of the traditional common law duties of police, and adds a provision
that explicitly incorporates the “common law” into statute.5
III. The Duty to Enforce Injunctions
(a) Statutory
In most jurisdictions there is no express duty to enforce court orders in the governing police
legislation. PEI and New Brunswick are the exceptions. The PEI Police Act states that the
duties of police include “assisting in the enforcement of an order of the court.”6
New
Brunswick’s Police Act includes among police duties “assisting in the enforcement of any court
order when requested by the Minister”.7
Even in PEI and New Brunswick the duty to enforce
court orders is couched in terms of police assisting in such enforcement, rather than stating that
police are to enforce court orders directly. This language can be contrasted, for example, with
the numerous police statutes that directly impose a duty on police “to execute warrants”.8
Furthermore, in Ontario the Courts of Justice Act specifically states that civil court orders are to
be directed to the sheriff for enforcement, and it has been held improper to direct an injunction to
the police.9
However, if the sheriff believes that execution of an order will give rise to a breach
5
Police Services Act, R.S.O. 1990, c. P.15, s. 42(3): “A police officer has the powers and duties ascribed
to a constable at common law.” See also: Police Act, R.S.B.C. 1996, c. 367, s. 10(1)(a); The Police
Services Act, C.C.S.M. c. P94.5, s. 18(2)(a); Royal Newfoundland Constabulary Act, 1992, S.N.L. 1992,
c. R-17, s. 8(1)(3).
6
Police Act, R.S.P.E.I. 1988, c P-11.1, s. 7(1)(i).
7
Police Act, S.N.B. 1977, c. P-9.2, s. 12(1)(f.2). The statutory authority of the Minister to direct the
enforcement of court orders may raise some interesting questions in relation to potential interference in an
area usually reserved police discretion.
8
RCMP Act, R.S.C. 1985, c. R-10, s. 18(b); Police Act, R.S.A. 2000, c. P-17, s. 38(1)(b); Police Act,
1990, S.S. 1990-91, c. P-15, s. 36(2)(b); The Police Services Act, C.C.S.M. c. P94.5, s. 25(e); Police Act,
S.N.B. 1977, c. P-9.2, s. 12(1)(e); Police Act, S.N.S. 2004, c. 31, s. 42(2)(g); Royal Newfoundland
Constabulary Act, 1992, S.N.L. 1992, c. R-17, s. 8(1)(f); Police Act, R.S.P.E.I. 1988, c. P-11.1, s. 7(1)(g).
9
Courts of Justice Act, R.S.O. 1990, c. C.43, s. 141. Ogden Entertainment Services v. United
Steelworkers of America, Local 440 (1998), 38 O.R. (3d) 448 (C.A.) at para. 10; Canadian National
Railway Company v. John Doe, 2013 ONSC 115 at para. 18. With further respect to the role of sheriffs in
injunction proceedings, see Canada Post Corp. v. L.C.U.C., Local 12., infra note 19 at para. 19, and Poje
v. Attorney General for British Columbia, infra note 58.
3

4. of the peace, the sheriff can require police to accompany him or her to “assist in the execution of
the order”: Courts of Justice Act, s. 141(2). Other statutes, such as Nova Scotia’s Family Court
Act, may specifically require peace officers to enforce a court order.10
(b) Common law
There is no well-established authority for the proposition that the police have a common law
duty to enforce court orders in general, nor injunctions specifically.11
However, courts have held
on occasion that the duties of police include the enforcement of court orders. The question has
usually arisen in the context of injunction orders. The existence of such a positive duty was
expressed in no uncertain terms by Justice Vickers of the British Columbia Supreme Court in
Finning Ltd. v. U.M.W.:
. . . I want to say for the record that orders of this court should be enforced without an
enforcement order. The police authorities have a public duty, as well as a duty to this
court, to enforce its orders without any further direction.12
In an earlier decision, Everywoman’s Health Centre Soc. (1988) v. Bridges, the Court had
considered a request “to order a special direction to the Vancouver Police Department to enforce
the injunction order and gather evidence relating to any contempt of the injunction order.”13
10
Family Court Act, R.S.N.S. 1989, c. 159, s. 9(2): “It shall be the duty of peace officers to serve any
process issued out of the Family Court, to execute any order issued by any judge of the Court, to convey a
young offender to such place or places as may be directed in such orders and to assist the Court and the
officers of the Court in carrying out the Young Offenders Act (Canada) and any other matters or
enactment for which the Court is responsible.” See also, for e.g., Competition Act, R.S.C. 1985, c. C-34,
s. 15(6), which empowers a court to “by order direct a peace officer to take such steps as the judge
considers necessary” to give the Competition Commissioner access to premises or other things in
executing a warrant.
11
For a further discussion of this area, see Ceyssens, Legal Aspects of Policing (Salt Spring Island, BC:
Earlscourt Legal Press, 1994 (loose-leaf)), at §2.9.
12
Finning Ltd. v. U.M.W., 1992 CarswellBC 576, 10 C.P.C. (3d) 17 (S.C.) at para. 2. The Ontario Court
(General Division) seemed to endorse these comments in Ochiichagwe’babigo’ining v. Beardy (1996), 1
C.P.C. (4th) 276 at para. 21.
13
Everywoman’s Health Centre Soc. (1988) v. Bridges, [1989] B.C.W.L.D. 1177, 1989 CarswellBC 1136
(S.C.) per McKenzie J., aff’d without discussion of this point at (1991), 78 D.L.R. (4th) 529, 62 C.C.C.
(3d) 455 (C.A.), per Southin J.A..
4

5. Although the Court declined to make the order, it seemed to accept it had jurisdiction to do so.14
In Telus Injunction Re: Enforcement Order, the B.C. Supreme Court again spoke of peace
officers’ “public duty as well as their duty to this court to enforce orders”.15
More recently, the Ontario Superior Court of Justice criticized the police in Canadian National
Railway Company v. Plain for not enforcing an injunction that related to the blockade of a main
railway line in December 2012:
With all due respect to the Sarnia Police, local police agencies cannot ignore judicial
orders under the guise of contemplating how best to use their tactical discretion. Such an
approach would have the practical effect of neutering court orders.16
However, in Canadian National Railway Company v. John Doe, a similar matter that came
before the same judge two weeks later, the Court referred to Ontario’s Courts of Justice Act in
acknowledging its lack of jurisdiction to order the police to take action.17
That did not stop the
Court, however, from expressing its frustration with the police for their “failure” to assist in
enforcing court injunctions.18
Unfortunately, none of the preceding cases discuss any authority for the proposition that the
police have a duty to enforce court orders, injunctive or otherwise. Further, in Canada Post
Corp. v. L.C.U.C., Local 12, an earlier decision not referred to by Justice Vickers in Finning
Ltd., the British Columbia Supreme Court held that contempt was the proper process for dealing
with non-compliance with court orders, and questioned its ability to grant an order the would
compel police to take enforcement action:
14
In this respect, the Court seemed to be relying on an even earlier decision in Brink’s Canada Ltd. v.
Teamsters Local Union No. 213, [1984] B.C.J. No. 190 (S.C.) at para. 43. Note, however, that the Court
in Brink’s did not actually issue such a direction either, but only ordered that the relevant police forces
“be requested” to undertake the noted activity.
15
Telus Injunction Re: Enforcement Order, 2006 BCSC 441 at para. 10.
16
Canadian National Railway Company v. Plain, 2012 ONSC 7356 at para. 38, per D.M. Brown, J.
17
Canadian National Railway Company v. John Doe, supra note 9.
18
Ibid. at para. 15.
5

6. I agree that the inherent jurisdiction of this court is broad. Theoretically, I can make any
order I please and it is binding upon those against whom it is made unless and until it is
overturned on appeal. But this is a court of principle and precedent. There are well-
known and understood ways which have developed over the centuries of orders of this
court being enforced. This is not one for which the plaintiff could provide any considered
precedent in the 800 years since the beginning of legal memory.19
Leaving aside for the moment any objections that also exist under its Courts of Justice Act, the
Ontario Court of Appeal has also raised doubt about the propriety of a court issuing a blanket
order against police to enforce a court order.20
(c) Criminal Code, s. 127
Although there may be no specific duty on the police to enforce injunctions, such a duty
arguably arises indirectly under the Criminal Code. Section 127 of the Criminal Code states:21
127. (1) Every one who, without lawful excuse, disobeys a lawful order made by a court
of justice or by a person or body of persons authorized by any Act to make or give the
order, other than an order for the payment of money, is, unless a punishment or other
mode of proceeding is expressly provided by law, guilty of
(a) an indictable offence and liable to imprisonment for a term not exceeding two years;
or
(b) an offence punishable on summary conviction.
In Telus Injunction Re: Enforcement Order, the British Columbia Supreme Court confirmed that
it is an offence under section 127 of the Criminal Code to disobey a civil injunction order.22
Importantly, section 127 is not displaced by the possibility of contempt, which does not qualify
as “a punishment or other mode of proceeding … expressly provided by law”.23
19
Canada Post Corp. v. L.C.U.C., Local 12, (1987), 15 B.C.L.R. (2d) 356, 1987 CarswellBC 202 (S.C.), at
para. 12. The Court went on to say that the question of whether it could order the police to enforce a
court order raised issues involving “deeply rooted constitutional doctrine”, and suggested that mandamus
would be the proper mode of procedure to pursue the matter: see paras. 32-36. See also: Everywoman’s
Health Centre Soc. (1988) v. Bridges, supra note 13 at para. 28 (C.A.); and Amir Attaran, Mandamus in
the Enforcement of the Criminal Law: Ending the Anti-Protest Injunction Habit – Issues Arising from
MacMillan Bloedel v. Simpson, (1999) 33 U.B.C. Law Review 181.
20
Leponiemi v. Leponiemi (1982), 35 O.R. (2d) 440, 132 D.L.R. (3d) 701 (C.A.).
21
Criminal Code, R.S.C. 1985, c. C-46, s. 127.
22
Telus Injunction Re: Enforcement Order, supra note 15.
23
R. v. Gibbons, [2012] 2 S.C.R. 92, 2012 SCC 28.
6

7. Notwithstanding the presence of this seemingly-applicable Criminal Code provision, some
Crown prosecution services may be reluctant to authorize or prosecute a section 127 charge in
relation to matters of civil disobedience.24
This may affect how police proceed in provinces
where there is Crown pre-approval of charges. However the Crown decides to exercise its
discretion and proceed in the public interest, the police may still have this provision at their
disposal in appropriate circumstances.
(d) Police Discretion
Although police may be under a duty to enforce the criminal law, the law also affords them
discretion in individual cases. The fact that the police may be able to charge someone for
disobeying a court injunction, therefore, does not mean they are obligated to do so. Courts have
long recognized that police have broad discretion in how they fulfil their duties. As Lord
Denning famously held:
Although the chief officers of police are answerable to the law, there are many fields in
which they have a discretion with which the law will not interfere. For instance, it is for
the Commissioner of Police of the Metropolis, or the chief constable, as the case may be,
to decide in any particular case whether enquiries should be pursued, or whether an arrest
should be made, or a prosecution brought. It must be for him to decide on the disposition
of his force and the concentration of his resources on any particular crime or area. No
court can or should give him direction on such a matter.25
In R. v. Beaudry, the Supreme Court of Canada reaffirmed this discretion, while also making it
clear that police decisions must be justified rationally. In the context of upholding the conviction
of a police officer for obstruction of justice for having failed to pursue an impaired driving
investigation against another officer, the Court held:
The ability — indeed the duty — to use one’s judgment to adapt the process of law
enforcement to individual circumstances and to the real-life demands of justice is in fact
the basis of police discretion. … Thus, a police officer who has reasonable grounds to
believe that an offence has been committed, or that a more thorough investigation might
24
See: British Columbia Crown Counsel Policy Manual, Policy Code CIV 1, “Civil Disobedience and
Contempt of Related Court Orders” (October 2, 2009), found online at
http://www.ag.gov.bc.ca/prosecution-service/policy-man/.
25
R. v. Commissioner of the Police of the Metropolis, Ex parte Blackburn, [1968] 2 Q.B. 118 at 136,
[1968] 1 All ER 763 (C.A.).
7

8. produce evidence that could form the basis of a criminal charge, may exercise his or her
discretion to decide not to engage the judicial process. But this discretion is not absolute.
Far from having carte blanche, police officers must justify their decisions rationally.26
The Court went on to note that even in very serious cases such as robberies or worse, the police
maintain discretion whether to arrest a suspect or pursue an investigation. However, the Court
held, “the justification offered must be proportionate to the seriousness of the conduct and it
must be clear that the discretion was exercised in the public interest.”27
The House of Lords’ decision in R. v. Chief Constable of Sussex, Ex parte International Trader’s
Ferry Ltd. is instructive on the deference to be shown to police in the context of civil
disobedience.28
That case involved mass protests and blockades undertaken in England to stop
the export of livestock. Having facilitated the required transport for many weeks, the police
decided to reduce their protection which would allow the trucks carrying the livestock to reach
the ferry docks at the English Channel at much more limited times. The livestock traders sought
a declaration that the police were obligated to more regularly protect them from the unlawful acts
of others. The House of Lords disagreed:
As I see it, however, a right of the kind claimed—here to trade lawfully—is not an
absolute right by which the Chief Constable owes a duty to protect the trader at whatever
cost and in whatever way necessary, any more than is the right to protest lawfully an
absolute right owed by the Chief Constable to protestors which he must protect at
whatever cost.29
The House of Lords recognized the difference between ignoring one’s duty, and deciding how
(or whether) to act based on a rational assessment of a given situation. Their Lordships were
satisfied that the police had given due consideration to the matter before them:
On the evidence it is clear that in coming to his decisions the Chief Constable took into
account in the present case (a) the number of men available to him, (b) his financial
26
R. v. Beaudry, [2007] 1 S.C.R. 190, 2007 SCC 5, at para. 37.
27
Ibid. at para. 40.
28
R. v. Chief Constable of Sussex, Ex parte International Trader’s Ferry Ltd., [1998] 2 A.C. 418 (H.L.).
See also Globe & Rutgers Fire Ins. Co. v. Glace Bay, [1927] 1 D.L.R. 180, 1926 CarswellNS 85 (S.C.).
29
Ibid. at 430.
8

9. resources to provide police officers, (c) the rights of others in his area and their
protection, (d) the risk of injury during the demonstration to the drivers, to the police and
to others; he took into account no less the competing rights of I.T.F. to trade and of those
who objected to the trade peacefully to demonstrate.30
The House of Lords saw no reason to intervene in the police’s decision. Of further interest in
this case was the House of Lords’ endorsement of the police’s power to restrain lawful activity
and arrest the truckers if necessary to prevent breaches of the peace where the continuation of
their journey would result in violence by the protestors.31
Therefore, although police do have numerous common law and statutory duties, they also have
discretion in how to implement them in the public interest.
IV. Four Key Points
Having reviewed the law as it relates to police duties and discretion, regard can be had to how
these principles play out in practice in relation to injunction orders. Below are four key points
that emerge from the case law.
1. Police often have authority to take action in a matter even without an injunction order
(or police enforcement clause).
It will often be the case that legal avenues other than injunction proceedings are available to
address conduct that takes place during a protest. As the Ontario Superior Court of Justice
remarked in Canadian National Railway v. John Doe:
I question why a landowner must resort to seeking a court injunction to stop the sort of
unlawful conduct engaged in by the protesters in this case. It strikes me that the police
enjoy adequate powers of arrest to deal with the unlawful conduct without the further
need of a court injunction.32
The Criminal Code provisions that can often apply to serious protests include:
30
Ibid. at 431.
31
Ibid. at 435.
32
Canadian National Railway Co. v. John Doe, supra note 9 at para. 21 (see also para. 25). See also:
Everywoman’s Health Centre Soc. (1988) v. Bridges, supra note 13 at para. 39 (C.A., per Southin J.A.);
Interfor v. Kern et al., ibid. at paras. 59ff.
9

10. • Breach of the peace: s. 31
• Causing a disturbance: s. 175
• Common nuisance: s. 180
• Intimidation: s. 423(1)
 Persistently follows: s. 423(1)(c)
 Hides, deprives or hinders use of any tools, clothing or other property: s. 423(1)(d)
 Besets or watches residence or workplace: s. 423(1)(f)
 Blocks or obstructs a highway: s. 423(1)(g)
• Mischief to property, including interference with lawful use, enjoyment or operation of
property: s. 430(1)
• Unlawful assembly: s. 66
• Rioting: s. 65
• Resists or unlawfully obstructs a peace officer: s. 129(a)
• Uttering threats: s. 264.1
• Assaults and causing bodily harm: ss. 265-69
• Assaulting a peace officer: s. 270
• Possession of a weapon for purposes dangerous to the public peace: s. 88(1)
• Disobeying a court order: s. 127
In addition to these Criminal Code powers, the federal Railway Safety Act also makes it an
offence to enter without lawful excuse on a property where a rail line is located, or to fail to yield
the right of way to railway equipment at a road crossing.33
Provincial legislation governing
roadways (e.g. the Motor Vehicle Act or Highway Traffic Act) also contains a number of
provisions that can be relied upon by police in respect of protestors who are interfering with
traffic.34
33
Railway Safety Act, R.S.C. 1985, c. 32 (4th Supp.), ss. 26.1 and 26.2.
34
See, for e.g, the Motor Vehicle Act, R.S.N.S. 1989, c. 293, ss. 83(1), 90(9), 125(5) & 127(3), which
restrict pedestrian movement on roadways.
10

11. Other provincial legislation, such as a Trespass Act or Protection of Property Act (depending on
the jurisdiction), provide the police or affected individuals with power to prohibit certain
conduct, such as entry or continued presence on specified property. Such statutes also often
contain a power for police to detain and arrest offending individuals if it is necessary to do so to
prevent continuation or repetition of an offence, or to establish an offender’s identity.35
These
prohibitions may not apply, however, if the activity in question is undertaken as part of lawful
strike or involves a peaceful demonstration in the vicinity of premises to which the public
normally has access.36
Notwithstanding the foregoing authorities, as discussed earlier the police have discretion as to
what enforcement action to take in any given situation, and they might not invoke these powers
for any number of reasons.37
On the other hand, it may be that such authorities will indeed be
relied upon by the police, with the question being more a matter of the timing and intensity of
enforcement as the police seek to manage a situation in a manner that maximizes public safety.38
2. Courts have jurisdiction to include police enforcement clauses in injunction orders.
Since the Supreme Court of Canada’s decision in MacMillan Bloedel v. Simpson, few have
questioned the ability of the courts to include police enforcement clauses in injunction orders.
Speaking for the Court, Justice McLachlin (as she then was) stated:
35
See, for e.g., Protection of Property Act, R.S.N.S. 1989, c. 363, s. 6(1).
36
Ibid., s. 16.
37
For reasons why the police may choose not to pursue criminal charges, see for e.g. the discussion in
The Report of the Ipperwash Inquiry (Toronto: Ontario Ministry of the Attorney General, 2007), vol. 2, at
pp. 189-94 concerning best police practices during Aboriginal disputes, which includes the advice (at
194) that “the primary police objective should not be to dissolve the occupation or blockade but to keep
the peace.” However, the Report also concludes (at 191) that keeping in mind long-term police and
societal objectives, even in the context of Aboriginal occupation or protests, “police must be certain to
pursue protestors or others alleged to have committed serious offences.”
38
See, for e.g., Telus Injunction Re: Enforcement Order, supra note 15 at para. 8. See also Ontario
Provincial Police, Annual Report on the Framework Approach 2007-2012 – A Framework for Police
Preparedness for Aboriginal Critical Incidents [January 2014] at 5: “The officer is expected to use good
judgement while keeping the peace and protecting the public. Police may use discretion to avoid
inflaming an unstable situation, waiting for less dangerous circumstances to make arrests or enforce court
injunctions, for example.”
11

12. The appellant Valerie Langer has questioned the appropriateness of including a provision
authorizing the police to arrest and detain persons breaching the injunction. She argues
that no authorization or direction from the court is necessary to enable the police to act.
The respondent accepts that the authorization is superfluous, and states that it is included
only because the police have requested such wording. No objection to this term was
made before Hall J. and it is not suggested that it vitiates the order. In these
circumstances, this Court need not consider it further. I observe only that the inclusion of
police authorization appears to follow the Canadian practice of ensuring that orders
which may affect members of the public clearly spell out the consequences of non-
compliance. Members of the public need not take the word of the police that the arrest
and detention of violators is authorized because this is clearly set out in the order signed
by the judge. Viewed thus, the inclusion does no harm and may make the order fairer.39
Even before this decision, courts had included police enforcement clauses in injunction orders on
numerous occasions.40
In cases where they had opted not to do so, it was not on jurisdictional
grounds.41
Still, it has been suggested that such clauses should not be “a usual term of an
injunction order”,42
and other reservations have been expressed as well.43
Also, as noted, the
Ontario Courts of Justice Act states that such orders should be directed to a sheriff and not to the
police.44
Ultimately, the jurisdiction to include discretionary enforcement clauses does not seem
to be disputed.
39
MacMillan Bloedel v. Simpson, [1996] 2 S.C.R. 1048 at 1069 (para. 41).
40
See, for e.g.: British Columbia Rail v. Seton Lake Indian Bank (1990), 52 B.C.L.R. (2d) 373 (S.C.);
Canada Post Corp. v. C.U.P.W., [1992] 1 W.W.R. 730, 61 B.C.L.R. (2d) 120 (S.C.); Royal Oak Mines
Inc. v. CASAW, Local 4, [1992] N.W.T.R. 335 (S.C.); Finning Ltd. v. UMW (1993), supra note 12; SWN
Resources Canada Inc. v. Claire, 2013 NBQB 328 at para. 21.
41
See, for e.g.: Canada Post Corp. v. L.C.U.C., Local 12 (1987), 15 B.C.L.R. (2d) 356 (S.C.);
Everywoman’s Health Centre Soc. (1988) v. Bridges, supra note 13 (S.C., per McKenzie J.); British
Columbia (Attorney General) v. Mount Currie Indian Band, 1990 CarswellBC 1354 (S.C.);
Ochiichagwe’babigo’ining v. Beardy, supra note 12.
42
British Columbia (Attorney General) v. Mount Currie Indian Band, ibid., at para. 4.
43
See: I.M.P. Group Ltd. v. C.A.W. (N.S.S.C., September 17, 1997; unreported decision of Glube
C.J.N.S. in Court File S.H. No. 140978C): “I have great difficulty in appreciating my jurisdiction to grant
an enforcement order as has been requested. In spite of some of the law that has been presented to me, it
is not one that I would choose to do.” Note that it is not clear from the decision what the terms of the
requested enforcement order were, and in particular whether it was discretionary or mandatory terms that
gave the Court cause for concern. Given that this case was decided after the Supreme Court of Canada’s
decision in MacMillan Bloedel v. Simpson, supra note 39, it may be that it was the particular terms of the
requested order that troubled the Court.
44
See footnote 9 and associated text.
12

13. Nonetheless, the wisdom of including police enforcement clauses in injunction orders is subject
to debate. Some of the key benefits, particularly for police, include:
• Police enforcement clauses help make clear to protestors the seriousness of an injunction
and the fact that they may be arrested and detained if they fail to obey it.
• Police enforcement clauses remove any uncertainty police may have in a “civil” situation
as to the respective rights of the parties or their powers to arrest and detain persons in
relation to prohibited conduct.
• Police enforcement clauses may assist the police in maintaining their appearance of
impartiality by enabling them to rely on such clauses as a basis for their actions.
• Where there is period of time between the granting of an initial injunction and the
addition of a police enforcement clause, police may have an additional opportunity to
effectively negotiate an end to a protest.
• Police enforcement clauses can set out arrest, detention and release provisions which
allow the police to intervene without criminalizing the matter.
Indeed, the benefits of police enforcement clauses in injunction orders are such that there was a
time at least when some police agencies refused to act in injunction matters without the inclusion
of such a clause.45
However, there are also some concerns associated with the inclusion of police enforcement
clauses in injunctions. From a judicial perspective, most notable is the concern that people will
feel injunctions need not immediately be obeyed in the absence of such a clause:
. . . it has become clear in the last few days that one regrettable consequence of making
this a common term in orders for injunctions is that members of the public, and perhaps
some lawyers, have come to believe that, in the absence of such language, there is no
enforceable order. That is a very serious error.46
45
See B.C. Rail Ltd. v. Seton Lake Indian Band at paras. 6 and 32, and Canada Post Corp. v. C.U.P.W. at
paras. 13ff, both supra note 40.
46
British Columbia (Attorney General) v. Mount Currie Indian Band, supra note 42 at para. 4.
13

14. It is “fundamental to the rule of law” that an injunction is immediately enforceable and must be
obeyed until it is set aside or varied by the court that made it, or reversed on appeal.47
The
courts’ reluctance to include a police enforcement clause in an injunction at the outset of a matter
where there has not yet been a breach, combined with their desire not to reinforce disregard for
an initial court order by only later including such a clause, does risk creating a Catch-22
situation.48
A police enforcement clause may not always be desirable from a police perspective either. Even
if such a clause maintains police discretion, its inclusion will often heighten both judicial and
public scrutiny of the police response to a matter. That can cause police to divert some effort
from managing the underlying situation to managing their position in relation to the injunction at
a time when their resources are already under stress. Police may also find such a clause (or an
injunction itself) may negatively affect their efforts to resolve a dispute in certain circumstances.
3. Police enforcement clauses maintain police discretion and do not mandate police action.
In jurisdictions where police enforcement clauses have been included in injunction orders, they
invariably maintain police discretion as to if, when and how to act.49
This deference to police
discretion has been displayed even when courts have been concerned that the police have not
understood the seriousness of an injunction. Commenting in one case that police conduct may
appear to be “aiding and abetting flagrant breaches of the injunction order”, the Northwest
Territories Supreme Court nonetheless noted in adding a police enforcement clause to an existing
injunction:
In granting the order sought I make haste to make clear that it is not to be understood as
reflecting adversely on the Royal Canadian Mounted Police or the Attorney General of
Canada. Rather, it is to be understood as an expression of the court’s confidence in their
47
Ibid. at para. 5.
48
See also B.C. Rail Ltd. v. Seton Lake Indian Band, supra note 40 at paras. 81-85.
49
See, for e.g., all of the cases cited in footnotes 40 and 41 above.
14

15. exercising their professional discretions and discharging their important independent
roles and functions with the additional authority which the court has confided in them.50
A similar respect for police discretion was expressed by the Ontario Court (General Division) in
Ochiichagwe’babigo’ining v. Beardy, where it too was considering whether to include an
enforcement provision in an injunction order:
The exercise of discretion is an essential component throughout all levels of the
administration of justice, no less so for police officers. The orders which courts make
ought not to circumscribe unnecessarily the exercise of that discretion.51
The discretion afforded to police in the context of disobedience of a court order was perhaps
most notably discussed by the Ontario Court of Appeal in a 2006 decision involving a major
Aboriginal land claims dispute. In Henco Industries Ltd. v. Haudenosaunee Six Nations
Confederacy, the Court held that apart from instances of flagrant impropriety, courts should not
interfere with police discretion. The Court held further that such “respect” for police discretion
applies not only in cases of “ordinary criminal offences”, but even in the context of criminal
contempt of court where “the police and the Crown must invariably balance many competing
rights and obligations and must take account of many considerations beyond the knowledge and
expertise of the judge.”52
The Court of Appeal went on to hold that although a judge could ask the police to report fully on
how they exercised their discretion, the judge ought to go no further. Absent some gross
impropriety or evidence of bad faith in the way the police exercised their discretion, the judge
should accept the police’s report and explanation. The Court concluded: “The judge ought not
50
Royal Oak Mines Inc. v. C.A.S.A.W., Local 4, supra note 40 at para. 40.
51
Ochiichagwe’babigo’ining v. Beardy (1996), supra note 12 at para. 22.
52
Henco Industries Ltd. v. Haudenosaunee Six Nations Confederacy Council (2006), 82 O.R. (3d) 721
(C.A.) at paras. 114-16.
15

16. order the police and the Crown to exercise their discretion differently or even to review or
question why that discretion has been exercised in a way the judge may find unpalatable.”53
This deference expressed by the Ontario courts has arisen largely in the context of Aboriginal
disputes, and may well be influenced by the difficult history of such matters in that province.
British Columbia, on the other hand, has its own unique history of injunction orders being issued
in respect of civil disobedience in the context of environmental protests, such as those related to
the logging of old-growth forests. It is fair to say that the British Columbia Supreme Court has
much more regularly expressed frustration with perceived Crown and police inactivity in the face
of civil disobedience, with the Court recently stating in Galena Contractors Ltd. v. Zarelli for
example:
I expect my order to be enforced from the moment it is pronounced. I expect it to be put
in the hands of the RCMP immediately. I do not expect there to be a ceremony of reading
the order and returning to court for a further order that suggests that the court really
meant what it said the first time. I expect the police to enforce the order …54
Courts may therefore make it very clear at times how they expect the police to exercise their
discretion in a given matter. Nonetheless, the existence of police discretion is well-rooted in law,
and explicitly maintaining that discretion in police enforcement clauses is the governing practice.
4. Courts vindicate the rule of law through their power of contempt.
In Canada Post Corp. v. C.U.P.W., the British Columbia Supreme Court noted that without or
without police enforcement clauses, courts expect their orders to be obeyed. The Court
continued: “When those orders are not obeyed, proceedings for contempt of court are the
appropriate remedy.”55
53
Ibid. at para. 119.
54
Galena Contractors Ltd. v. Zarelli, 2014 BCSC 324 at para. 30. See also, for e.g., Slocan Forest
Products Ltd. v. John Doe, Jane Doe, and Persons Unknown, 2000 BCSC 1337; Interfor v. Kern et al.,
2000 BCSC 1141; and Alliford Bay Logging (Nanaimo) Ltd. v. Mychajlowycz et al., 2001 BCSC 636.
55
Canada Post Corp. v. C.U.P.W, supra note 40 at para. 52.
16

17. Courts have long relied on their power of contempt to enforce the rule of law. As Justice
McLachlin (as she then was) explained in United Nurses of Alberta v. Alberta (Attorney
General):
Both civil and criminal contempt of court rest on the power of the court to uphold its
dignity and process. The rule of law is at the heart of our society; without it there can be
neither peace, nor order nor good government. The rule of law is directly dependent on
the ability of the courts to enforce their process and maintain their dignity and respect. To
maintain their process and respect, courts since the 12th have century exercised the power
to punish for contempt of court.56
The differences between civil contempt and criminal contempt have been well described, with
the key element of criminal contempt being the defiance or disobedience of a court order in a
public way with intent, knowledge or recklessness to the fact that the public disobedience will
tend to depreciate the authority of the court.57
The 1953 decision of the Supreme Court of Canada in Poje v. Attorney General for B.C. is an
early example of the use of the courts’ contempt power in a case of disobedience of an
injunction.58
In Poje, the Court upheld the power of a lower court to proceed in contempt
against labour picketers who had blocked access to a dock, notwithstanding that the parties had
discontinued the underlying legal proceeding because they had resolved their dispute. Decades
later in Everywoman’s Health Centre Soc. (1988) v. Bridges, the British Columbia Supreme
Court explained the importance of such contempt proceedings while finding numerous persons
guilty of criminal contempt for disobeying an injunction by interfering with access to a clinic
that was providing abortions:
The spectre of mass organized disobedience of an order of this court is one that strikes at
the very heart and threatens the continued existence of the rule of law. It is essential to
the proper administration of justice in this community that allegations of such conduct be
carefully scrutinized in accordance with the principles of fundamental justice, and, if
56
United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901 at 931.
57
Ibid. at 933.
58
Poje v. Attorney General for B.C., [1953] S.C.R. 516.
17

18. proven, be addressed with the full measure of the criminal jurisdiction available to the
court. Anything less would be to resign the citizens of this community to anarchy.59
The Court also explained that in an application for contempt in relation to disobedience of an
injunction, “it is the nature (and quality) of the alleged contemptuous conduct which determines
whether it is a criminal as opposed to a civil contempt”, and that “[t]he form of the proceedings
by which the alleged contemptor is brought before the court is irrelevant.”60
In addition to the
aforementioned cases, courts have held protestors in contempt on numerous other occasions for
disobeying injunction orders – including, for example, in that case of the CN railway blockade in
December 2012.61
At the same time, courts have been cautious in resorting to contempt proceedings when
injunctions have not been obeyed in the context of disputes over Aboriginal rights. Thus, while
affirming that the “rule of law requires a justice system that can ensure orders of the court are
enforced and the process of the court is respected”, the Ontario Court of Appeal went on to hold
in Henco Industries Ltd.:
Other dimensions of the rule of law, however, have a significant role in this dispute.
These other dimensions include respect for minority rights, reconciliation of Aboriginal
and non-Aboriginal interests through negotiations, fair procedural safeguards for those
subject to criminal proceedings, respect for Crown and police discretion, respect for the
separation of the executive, legislative and judicial branches of government and respect
for Crown property rights.62
The Court reiterated these sentiments in Frontenac Ventures Corp. v. Ardoch Algonquin First
Nation, adding further that Aboriginal sentencing principles enunciated by the Supreme Court of
Canada in R. v. Gladue apply when sentencing an Aboriginal person found guilty of civil
59
Everywoman’s Health Centre Soc. (1988) v. Bridges, 1989 CarswellBC 1134 (S.C.) at para. 11 (per
Wood J.). See Justice Wood’s further eloquent explanation of this point at Everywoman’s Health Centre
Soc. (1988) v. Bridges, 1989 CarswellBC 728 (S.C.) at paras. 8-11.
60
Ibid. at para. 6. See also Poje v. Attorney General for B.C., supra note 58, at 527.
61
Canadian National Railway v. Plain, 2013 ONSC 4806. See also: Brink’s Canada Ltd. v. Teamsters
Local Union No. 213, supra note 14; R. v. Krawczyk, 2007 BCSC 345, aff’d 2009 BCCA 250 and 2009
BCCA 542 (leave to app. dismissed May 13, 2010, Doc. No. 33549 [2010 CanLII 25908 (SCC)]).
62
Henco Industries Ltd. v. Haudenosaunee Six Nations Confederacy Council. Supra note 52 at para. 142.
18

19. contempt in relation to disobedience of an injunction.63
Nevertheless, courts have also been
clear that “self-help” remedies such as blockades or occupations will not be condoned.64
To come full circle on this discussion of police enforcement of injunction orders, it is in
exercising its power of contempt that the courts might best attract police involvement in a matter
where violence or serious property damage is not in issue. Police who may otherwise be
reluctant to become involved in a “civil” proceeding may view the situation differently if a
warrant of committal or arrest has been issued to bring a person into custody for contempt.65
Although the police will continue to maintain discretion to execute such warrants when it is safe
and practical to do so, notwithstanding Henco Industries it is perhaps at this point that the
traditional role of the police may most be most apparent in relation to the disobedience of an
injunction order.
Conclusion
Police have a duty to prevent crime, which may arise in the context of the disobedience of a
court order. However, the police also have discretion whether or how best to implement their
duty in individual cases. At times courts may explicitly authorize the police to assist in the
enforcement of injunctions, but they will also generally recognize that the police exercise
judgment in how to respond to particular situations in the public interest. Ultimately, that
interest involves something all participants in the justice system – indeed, all members of society
– have a need to protect, which is the rule of law.
63
Frontenac Ventures Corp. v. Ardoch Algonquin First Nation (2008), 91 O.R. (3d) 1 (C.A.), applying (at
para. 54) R. v. Gladue, [1999] 1 S.C.R. 688.
64
Behn v. Moulton Contracting Ltd., [2013] 2 S.C.R. 227, 2013 SCC 26, at para. 42; R. v. Manuel, 2008
BCCA 143 at para. 62; British Columbia (Attorney General) v. Mount Currie Indian Band, supra note 41,
at para. 11.
65
Refer to the duty of police to execute warrants discussed at footnote 8, supra, and accompanying text.
19