🚀 go-pugleaf

Due to overwhelming demand, I am posting this article instead of 
e-mailing it.  Posted to can.general & soc.culture.canada for 
those who don't receive bc.general.



Reprinted in whole with permission from the Victoria Times-Colonist,
Friday October 15, 1993.

The following is excerpted from the reasons for sentencing 
presented to Justice John Bouck prior to sentencing 42 defendants 
for contempt of court.

_Contempt of court and the rule of law_

     Before fixing the actual sentences, something must be said 
about the legal concept of contempt of court.  Lawyers and judges 
are reasonably good at explaining what they are doing.  Sometimes, 
they are not so good at explaining why.  I will try to offer that 
explanation in the hope it will lead to a better understanding of 
why we have laws dealing with contempt of court.
     Over the centuries, human beings have tried out different 
forms of political organizations for governing a nation.  On one 
side, it is democracy.  On the other side are various forms of 
autocracy.  They are generally categorized as absolute monarchy, 
fascism and communism.  All of the last three are now discredited.  
Most people realize that the only workable system of government is 
democracy.  It gives its citizens freedoms and rights unknown in 
states where authoritarian forms of government administration 
prevail.  But most of all, democracy allows a society to govern 
itself by the rule of law and not by the rule of the individual.
     Where government by the rule of the individual prevails, the 
small minority who are close to the centre of power enjoy enormous 
privileges.  Those outside this tight inner circle survive in 
misery.
     Some Canadians take democracy for granted.  It is easy to 
forget that democracies have failed.  It can happen to us unless 
we as a people co-exist by the rule of law.  If we do not, Canada 
could collapse into a form of tyrannical rule.  Our country will 
ultimately deteriorate if people feel they are entitled to abuse 
the rights of others when they are unable to convince the majority 
of the rightness of their cause.
     Canadian democracy carries a bounty of rights and freedoms 
that make us the envy of many other people on this planet  
Thousands of them are knocking at our door for entry.  Few seek 
admission to countries that govern their affairs by the rule of 
the individual.
     Hundreds and thousands of Canadian men and women fought and 
died in World War II.  They did so that we could enjoy the 
benefits of the rule of law and escape the tyranny that results 
from the rule of the individual.  Their cause was noble.  Their 
principles sound.  We must not forget the reasons for their 
sacrifice.
     Democratic rights are not absolute.  They are limited by 
responsibilities.  For example, the right to freedom of speech 
imposes upon citizens the responsibility of avoiding breaches of 
the laws on libel and slander.  Similarly, the right to peacefully 
protest brings with it the responsibility of avoiding interfering 
with the rights of others.  These concepts come from an age-old 
biblical commandment: do unto others as you would have them do 
unto you.
     For its survival, democracy asks every individual to behave 
towards others in a mature and thoughtful way.  Individuals caught 
up in the emotion of a particular issue sometimes fail to 
appreciate the significance of their actions because they lose 
sight of their responsibilities.
     Preserving the dignity of the court is only a minor part of 
contempt proceedings.   The fundamental issue is much deeper.  
Underneath it all, contempt proceedings are taken primarily to 
preserve the rule of law.  Without the rule of law democracy will 
collapse.  Individuals will then decide which laws they will obey 
and which ones they won't.  Government by the rule of law will 
disappear.  People will then be controlled by the rule of the 
individual.  The strongest mob will rule over the weak.  Anarchy 
will prevail.
     Most of you have indicated that you prefer to follow the law 
of God.  No doubt encouraged by submissions of your counsel, who 
ought to have known better, some of you have invited me to apply 
the law of God, irrespective of whose interpretation of that law 
is offered for consideration.  This court applies the law as it is 
determined to be by the legislators of this country and by the 
decisions of this court, which have accumulated now for over 700 
years.
     What is very much at issue and before this court is the 
future survival of the rule of law.  It is the rule of law which 
distinguishes civilized society from anarchy.  Everything which we 
have today, and which we cherish in this free and democratic 
state, we have because of the rule of law.  Freedom of religion 
and freedom of expression exist today because of the rule of law.  
Your right to hold the beliefs you do, to espouse those beliefs 
with the fervor which you do, and to attempt to persuade others to 
your point of view, exists only because of the rule of law.  
Without the rule of law, there is only the rule of might.  Without 
the rule of law the Canadian Charter of Rights and Freedoms, which 
some of you sought to invoke, would be nothing but another piece 
of parchment adrift in the timeless evolution of man's history.
     The rule of law exists in this society only because the 
overwhelming majority of citizens, irrespective of their different 
views on religion, morality or science, agree to be bound by the 
law.  That agreement, which cannot be found recorded in any 
conventional sense, has survived the most profound conflicts of 
religion, morality and science.  In that sense it might be thought 
that its strength is overwhelming and its future secure.  But that 
is not the case at all, for the continued existence of that 
agreement is threatened by its own inherent fragility.  That 
fragility was described by former Chief Justice Farris of this 
court in the celebrated case of _Canadian Transport Co. Ltd. v. 
Alsbury_ (1952) 6 W.W.R. (N.S.) 473 (B.C.S.C.), to which counsel 
have referred, I quote from p.478:

          Once our laws are flouted and orders of our courts 
     treated with contempt the whole fabric of our freedom 
     is destroyed.  We can then only revert to conditions of 
     the dark ages when the only law recognized was that of 
     might.  One law broken and the breach thereof ignored, 
     is but an invitation to ignore further laws and this, 
     if continued, can only result in the breakdown of the 
     freedom under the law which we so greatly prize.

     Many of you, while assuring me of your respect for the law, 
have characterized your contemptuous conduct as an act of last 
resort stemming from frustration brought on by the failure of 
government to act upon your views and to change the law 
accordingly.  The fragility of the rule of law is such that none 
of us who seek to enjoy its benefits can be permitted the 
occasional anarchical holiday from its mandate, no matter how 
compelling or how persuasive may be the cause that such anarchy 
seeks to advance.  Furthermore it is only through the rule of law 
that any meaningful, lasting or effective change can be wrought in 
the law.  Thus it is that by seeking to change the law by 
deliberately disobeying it you threaten the continued existence of 
the very instrument, indeed the only instrument through which you 
may eventually achieve the end you seek.  Such conduct is not only 
illegal, it is completely self-defeating.
     Mr. Justice Wood expressed the idea far more eloquently than 
me in: _R. v. Bridges_ (1989) 48 C.C.C. (3d) 545; app. dis. 54 
B.C.L.R. (2d) 273 (B.C.C.A.).  That was a case where individuals 
refused to obey an injunction restraining them from blocking 
access to an abortion clinic.  They were convicted of criminal 
contempt of court.  At page 547 he said:

          Most of you have indicated . . . it is completely 
     self defeating.

     Unless courts act decisively to preserve the rule of law, 
Canada will not exist as a democracy.  There will be no freedom of 
speech, no right to protest, let alone a Charter of Rights and 
Freedoms administered by an independent judiciary.  That is the 
fundamental issue.

_So-called civil disobedience_

     Some contend the defendants are following a time-honoured 
path of so-called civil disobedience.  They use the non-violent 
behaviour of Mahatma Gandhi as one of their models.  It is not an 
apt comparison.  In the first place, Mr. Gandhi lived in a 
colonial state.  He had no opportunity to change the laws 
democratically.  Disobedience of colonial-made laws was the last 
and only resort for Mr. Gandhi and his followers.
     But here, the elected representatives of the people of this 
province made the law allowing MacMillan Bloedel Ltd. to log the 
timber in Clayoquot Sound.  Unlike Mr. Gandhi, the defendants have 
the right to be involved in the political process.  In Canada, the 
people control the levers of power.  Democracy allows anyone to 
try and persuade others as to the rightness of their cause.  If 
they succeed, the law can be changed.
     There is another distinction between the conduct of the 
defendants and that of Mr. Gandhi.  At the time of his first trial 
on 18 March 1922, he admitted disobeying the law.  He asked the 
court to impose upon him the highest penalty.  In his statement to 
the British judge he said in part:

          I do not ask for mercy.  I do not plead any 
     extenuating act.  I am here therefore, to invite and 
     cheerfully submit to the highest penalty that can be 
     inflicted on me...

_Gandhi - Portrayal of a Friend_ by E. Stanley Jones, Abingdon 
Press, Nashville, at page 91.

     In these proceedings, these defendants pleaded not guilty.  
They advanced a variety of excuses for their behaviour.  If they 
have to pay for their illegal behaviour, all but one seeks the 
lowest possible penalty.  They are mistaken if they believe they 
are following in the footsteps of Mr. Gandhi.
     Others compare the defendants to Martin Luther King and his 
admirable struggle to obtain the vote for black people in the 
southern United States.  Again, there is little similarity.  Black 
Americans in many southern states did not have the right to vote.  
Thus, they were unable to influence change.  Mr. King and his 
followers did not try to take away the rights of other citizens in 
order to get a right for themselves.  They simply wanted equal 
rights to those possessed by the white population.  It is true 
that Mr. King dramatized his plight by defying various segregation 
laws, but that was for the purpose of getting the right to vote so 
the laws could be changed.
     Similar protests occurred this century when women were denied 
the right to vote.  They took to the streets.  Yet, they did not 
infringe upon their rights of others.  Nor did they ask that 
society deny men the vote.  They simply wanted that right extended 
to themselves.
     Had Mr. Gandhi, Mr. King and the suffragettes been given the 
right to vote in the first place, their protests would never have 
occurred.
     Except for the out-of-province defendants, the others have 
the right to vote.  They were simply unable to persuade the 
elected representative of the people to adopt their point of view.  
Unlike Mr. Gandhi, Mr. King and the suffragettes, they could 
attempt to change the law through their vote and the votes of 
others whom they could persuade.  Unlike Mr. Gandhi, Mr. King and 
the suffragettes, they infringed a legal right: the right of 
MacMillan Bloedel Ltd. to cut timber in Clayoquot Sound.  Their 
behaviour in no way follows the noble ideals of Mr. Gandhi, Mr. 
King or the suffragette movement.
     Another excuse is advanced for the defendant's behaviour.  
Just as many courageous people stood up to the likes of Hitler and 
Stalin, it is argued that these defendants are doing much the same 
thing.  But, the laws enacted by Hitler and Stalin were made by 
decree and not by the freely elected representatives of the 
people.  They were then administered by a controlled judiciary and 
not by an independent judiciary.  Usually, there was no right of 
appeal.  Hence, that comparison must also fail.  The defendants 
are not citizens of an autocratic state, they are citizens of a 
democratic state.
     The words "civil disobedience" are tossed around by the 
defendants and others as if they amount to some sort of legal 
right.  No one is sure what they mean.  They are certainly not 
part of any legal principle or legal rule.  Disobedience of the 
law invites a penalty no matter how it is performed.
     The word civil means polite.  In the context of the phrase 
civil disobedience, it may mean polite or non-violent behaviour.  
The word disobey means to defy or resist.  Hence, civil 
disobedience may mean polite or non-violent defiance of the law.  
Usually, polite or non-violent disobedience of the law will lead 
to a lesser penalty than if the disobedience were violent.
     Nevertheless, those who break the law and try to classify 
their actions as civil disobedience will suffer penalties and the 
distinct possibility of acquiring a criminal record.  Only in 
exceptional circumstances, such as those that can arise from the 
defence of necessity, can a person disobey the law without a 
penalty.

_Fixing the sentences_

     I turn now to fix the sentence for each of the defendants 
found guilty of contempt of the court orders made 20 July 1992 and 
16 July 1993.  It is not a pleasant duty.  I take no joy in the 
task.
     Many of these defendants are intentionally or carelessly 
indifferent to the reason why they should obey court orders.  Many 
seemed proud of the fact that they did not read newspapers or 
watch the news on television.  While allegedly educated in 
environmental matters many choose to remain uninformed about the 
world at large except where they believed a particular concept 
fitted within their set of beliefs.  While choosing to remain 
ignorant of the system they so despise, they insisted on receiving 
all the benefits that it has to offer.
     When they decided to blockade the road, they were either 
uneducated, naive, or badly informed of the consequences.  They 
seemed to feel that they only needed to sign an undertaking after 
their arrest and they would be released.  Later on, they might 
appear in a court room, make a speech about their cause, receive a 
lecture from a judge, get a suspended sentence and go on about 
their way.  They appeared to think that they could try the issue 
of provincial government forestry policies if they wished.  They 
were astounded when this did not happen and found they were being 
tried for their illegal actions.
     Throughout this trial, the defendants testified and argued as 
to the peaceful nature of their demonstration.  For the most part,
that appears to be true.  But that conduct only goes to the issue 
of sentencing.  It has nothing to do with the issue of guilt.
     Sentencing principles for criminal contempt of court include 
the concepts of rehabilitation, denunciation for unlawful 
behaviour, deterrence to a particular defendant and general 
deterrence to others who may consider committing a similar 
offence.
     When sentencing for criminal contempt of court, a judge 
should always consider any apology that is made.  That is often 
referred to as "purging the contempt."  Similarly, remorse is a
factor in reducing a sentence for contempt.  Many of the 
defendants continued to argue that their actions were justified.  
They made no apology nor showed any remorse.  They were defiant in 
support of their cause.
     Others said they did not intend to bring the court into 
disrepute, or words to that effect.  However, the attitude of the 
defendants who made such apologetic remarks does not square with 
their courtroom behaviour when they obviously encouraged or at 
least tolerated the comments of those who were the most militant.
     Over the last 4 to 5 years, an increasing number of criminal 
contempt of court cases has come before this court relating to 
logging and forestry practices on Vancouver Island.  I have been 
referred to one of my earlier judgments and 10 judgments of my 
colleagues on the same subject.  They cover a period from 1988 to 
1993.  Despite repeated comments by various judges concerning the 
necessity of working within the democratic system, and despite 
relatively modest sentences, disobedience of court orders 
continue.  Many people do not seem to get the message.
     These previous decisions contain phrases to the effect that a 
particular judge is being lenient on sentence but if it happens 
again the next judge will come down hard on them.  Few of these 
offenders appear to be repeaters, so the lecture did them some 
good.  However, other people did not pay much attention as this 
trial now proves.  I can only come to one conclusion: many 
individuals believe they can continue to disobey court orders 
because judges will not impose severe penalties for first time 
offenders.
     The only way the law can deal with continuous breaches of 
court orders is to increase the penalty in the hope it will 
dissuade others from committing the same kinds of acts.
     The sentences I am about to impose should reflect a degree of 
penalty for their unlawful behaviour.  Mostly, it should serve as 
a deterrent to others who contemplate undermining the rule of law.

     [Bouck then sentenced the 42 defendants to terms ranging from 
60 to 45 days in jail, and fines of $3 000 to $1 000.]