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Editorial: Defence dismissed

Justice
A recent court decision involving protesters at Muskrat Falls hinged on a chicken-and-egg argument.

It is a simple chicken and egg argument, but one that will interest people watching how the courts handle protesters — and at least one journalist — who entered Nalcor Energy sites in Labrador despite a court injunction banning access.

Eldred Davis was charged with civil contempt for entering the North Spur portion of the Muskrat Falls site. His defence was that the injunction was improper, and should never have been issued.

It didn’t matter, Murphy pointed out, that Davis “firmly and sincerely believes that the injunction ought never have been granted and that it is invalid and should be set aside,” nor that Davis believed his actions morally justified.

That’s where the chicken and egg comes in — because, as Judge George Murphy ruled on Jan. 26, the question was not whether the injunction was improper, but whether or not it was in effect.

And it was in effect.

Judge Murphy said that raised the question of whether the validity of a court order could even be used as a defence, once someone had knowingly broken that order.

“The answer to this question in my view is that a court should not do so. This principle of law is very well established in this country. The rationale for this principle is that in a society governed by the rule of law, court orders are to be obeyed as long as they are in effect,” Judge Murphy wrote. “The remedy for a person who believes an order to be invalid is not to violate the order and then claim in defence to a court proceeding, such as a contempt proceeding arising from the violation, that the order is invalid. Instead, the proper approach for a person who believes a court order is invalid is to seek a further order from the court declaring the earlier order to be invalid. Otherwise people would pick and choose which court orders they are going to follow depending on their view of such orders. It does not take much thought to see what the result would be. It would be anarchy and the end of the rule of law as the basis upon which our society is governed.”

It didn’t matter, Murphy pointed out, that Davis “firmly and sincerely believes that the injunction ought never have been granted and that it is invalid and should be set aside,” nor that Davis believed his actions morally justified.

“All individuals, including Mr. Davis, are required by law to obey the injunction as long as it is in force. It is not a valid defence to a contempt proceeding arising from a failure to obey the injunction to argue and attempt to establish that the injunction is invalid and should be set aside. Even if this court or a higher court were at some point to declare the injunction invalid and set it aside, this would not constitute a defence to a contempt proceeding arising out of a breach prior to the declaration of invalidity and dissolution of the injunction.”

In this case, the injunction came first and Davis was convicted – and that’s the end of that argument for now.

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