Date: 20030213
Docket: T-2160-02
Neutral citation: 2003 FCT 166
BETWEEN:
MARGARET ANDREA EDGAR
Applicant
- and -
KITASOO BAND COUNCIL: PERCY STARR, CHIEF
ARCHIE ROBINSON, COUNCILLOR
ROSS NEASLOSS, COUNCILLOR
BRIAN MASON, COUNCILLOR
Respondents
REASONS FOR ORDER
LEMIEUX J.
Introduction
[1] Margaret Edgar is 35 years-old and a member of the Kitasoo Xaixais Nation (the "First Nation"). Since the age of 13, she has been a resident in the village of Klemtu, British Columbia, a remote place of approximately 400 residents accessible only by air or water (the "Village").
[2] She seeks an interlocutory injunction to stay the effect of a Kitasoo Band Council Resolution (the "Resolution") dated November 21, 2002, which banished her from the Village, prohibited her from returning there for any reason under pain of arrest and being charged as a trespasser.
[3] The Resolution reads:
WHEREAS due to the actions of Margaret Edgar as brought before the Kitasoo Band Council by the Kitasoo-Xaixais Police Board.
WHEREAS on the 9th day of September, 2002 you did traffic marihuana to an undercover police officer, an indictable offence under the Controlled Drug and Substances Act.
WHEREAS as a result of your actions and upon the recommendation of the Kitasoo-Xaixais Police Board you are hereby banished from the village of Klemtu and prohibited from returning to the village of Klemtu for any reason.
WHEREAS if you enter the village of Klemtu in violation of this Band Council Resolution you are subject to arrest and charges as a trespasser.
THAT this Band Council Resolution will be subject to review by the Kitasoo Band Council in October 2004.
[4] On December 23, 2002, Margaret Edgar (the "applicant"), filed an application for judicial review seeking to quash the Resolution on the grounds of: (1) breach of natural justice in that the Resolution was enacted without notice to her and without providing her with any opportunity to make submissions; and (2) breach of sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms (the "Charter").
[5] The parties agree the onus is on the applicant to satisfy, on a balance of probabilities, each of the three elements which must be shown to obtain in interlocutory injunction: (1) serious issue to be tried; (2) irreparable harm; and (3) balance of convenience.
[6] The respondents concede the applicant has raised a serious issue to be tried. They say, however, the applicant has not led any or sufficient evidence to demonstrate irreparable harm and that the balance of convenience, focussing on the aspect of the public interest in ensuring the community is free from illegal drugs, trumps the harm which the applicant may suffer.
Further Background
[7] The Kitasoo Band Council (the "Band Council") and the Police Department of the Village (the "Police Department") have been trying to address concerns related to illegal substance abuse for years. In 1991, the Band Council passed a by-law (No. 1991-01) to restrict the use and abuse of alcohol in the Village.
[8] According to the affidavit of Percy Starr, Chief of the Band Council, it "has been aware of drug trafficking and illegal drug use and abuse in the Village for approximately ten years" and the "possession and trafficking in illegal substances is a criminal offence which can be enforced by the local police authorities", which is why the Band Council did not pass a separate by-law to address "the presence and abuse of illegal substances in the Village."
[9] In 1994, according to Chief Starr, the Band Council created the Kitasoo Xaixais Public Safety Board (the "Safety Board") to address "the concerns of law enforcement, specifically the use and abuse of illegal drugs in the Village...". It was the Safety Board that created the Police Department.
[10] Chief Starr deposes during the past two years the Band Council has "passed seven Band Council Resolutions banishing people from the Village", all of which "were based on allegations relating to the "bootlegging" of intoxicants". Two of the seven resolutions affected Kitasoo Band members and lasted for a one-year period. The other five resolutions affected non-band members from other communities and "they were banished indefinitely".
[11] Chief Starr asserts the Band Council and the Kitasoo Band have been trying, albeit unsuccessfully, to address the use and abuse of illegal drug substances in the Village.
[12] Chief Starr admits the Band Council passed the Resolution affecting the applicant on November 21, 2002, at an in camera meeting to discuss "the significance of information received from the Kitasoo-Xaixais Police Board regarding individuals, including the applicant, facing drug trafficking criminal charges in the Provincial Courts of British Columbia."
[13] Chief Starr says the Resolution will expire in October 2004 "at which time it will be reviewed and reconsidered by the Kitasoo Band Council". He states the Resolution (and the two other resolutions affecting two other individuals passed at the same meeting) is "to remedy what was and continues to be ... [an] ongoing concern about the presence of illegal drugs and drug trafficking in the Village..." and that the Resolution is "intended to protect the community from the activity of drug trafficking and to prevent the applicant from further drug trafficking". Chief Starr is concerned if the applicant is allowed "to return while the Resolution is in effect ... Ms. Edgar will return for the purpose of trafficking in marijuana" and if that happens "I verily believe that it would be difficult to prevent her from ... trafficking" [and] "the community and its members will suffer greatly."
[14] Alan DeJersey, Chief Constable of the Police Department also filed an affidavit opposing the grant of an interlocutory injunction. He deposes that, in September 2002, he coordinated an undercover investigation with the assistance of the RCMP. One of the RCMP constables reported he purchased a gram of marijuana from the applicant on September 8, 2002, and paid $20.00 dollars for it.
[15] He states that on or about November 19, 2002, he was advised by the Federal Crown counsel that informations were approved and charges would be laid against the applicant. Warrants for arrest were issued and were outstanding on November 21, 2002. Those matters were discussed at the in camera Band Council meeting that day.
[16] The Chief Constable states in his affidavit the following:
14. Since the Applicant has been banished from the Village of Klemtu, I have continued to receive confidential source information, which I verily believe to be true, stating the Applicant's ongoing involvement with illegal activities in the Village of Klemtu, including bootlegging as is contrary to the Village of Klemtu By-Laws, and drug trafficking.
15. As recently as this past weekend, January 31 to February 2, 2003, intelligence was received from several sources that a brother of the Applicant, who resides in the community, bootlegged several half-gallon bottles of alcohol for $150.00 each, alcohol that was illegally shipped to the community by the Applicant.
16. I verily believe that if Ms. Edgar is allowed to return to the Village of Klemtu, while the Resolution is in effect, Ms. Edgar will immediately resume her involvement in the drug trade. Intelligence to this effect was received by the police department shortly after her banishment from the community.
[17] The applicant was charged and arrested on one count of trafficking in a controlled substance contrary to Section 5(1) of the Controlled Drugs and Substances Act.
[18] She was released from custody on her undertaking to attend her trial. Her undertaking, before a Justice of the Peace, contained three other conditions: (1) not to attend the Village of Klemtu; (2) not to possess or consume any controlled substance; (3) to submit to a urinalysis or blood test upon demand and any positive reading would be a breach.
[19] On December 9, 2000, Judge Overend of the B.C. Provincial Court deleted the undertaking she not attend at the Village.
[20] Her trial is now scheduled for February 24, 2003.
[21] The applicant was flown out of the Village on November 22, 2002, and has not been back. She is residing with her grandmother in Port Hardy.
[22] At the time of her banishment, the applicant was employed as a teacher's aide at the Kitasoo Community School. She received a good report from her principal on November 27, 2002, but on December 19, 2002, was advised she was suspended without pay and one of the reasons given is that she is prevented by the Resolution from "residing or visiting Klemtu".
[23] Margaret Edgar has been employed for the last six years during the summer months as assistant manager of Tourism in Klemtu.
[24] In her affidavit, Margaret Edgar states her family resides in Klemtu including her partner and children, her parents (although her father is apparently temporarily in Port Hardy awaiting a by-pass operation), her siblings and extended family members.
[25] She states that it was at her behest Judge Overend deleted, on December 9, 2002, the condition she not attend the Village.
[26] She deposes she does not have a criminal record nor has she been arrested before and recites the Resolution "has prevented me from being able to access community support and to make arrangements concerning my employment and financial affairs". She is concerned the Resolution has caused "additional problems for her family and negative psychological and emotional consequences."
[27] Her motion record includes a letter from her father about the impact this banishment has had on him in terms of stress and depression and a requirement he be close to a doctor and hospital because he could have a heart attack. He states his daughter looked after the grandchildren and they are suffering for it.
[28] Her motion record also includes a letter from her grandmother and the President of the Friendship Centre describing the psychological impact the banishment is having on her.
[29] Her same sex partner writes that the applicant is an integral part of the family. She talks about quitting her job and leaving Klemtu to be with the applicant.
Analysis
(a) Serious Issue
[30] As noted, the respondents concede serious issue and I think it wise they did. The applicant in my view has a very strong case that a breach of fairness invalidates the Resolution. She was banned from her community without being able to address the decision-maker (the Band Council). One simply has to refer to the decisions of the Supreme Court of Canada in [1979] 1 S.C.R. 311">Nicholson v. Haldimand-Norfolk Regional Police Commissioners, [1979] 1 S.C.R. 311 and [1980] 1 S.C.R. 602">Martineau v. Matsqui Institution, [1980] 1 S.C.R. 602.
[31] Justice Sharpe in his book Injunctions and Specific Performance, 3rd Edition (Canada Law Book, 2000) at page 2-10 indicates "[i]f the plaintiff does demonstrate a strong prima facie case, the likelihood of the ultimate success will weigh heavily in favour of an injunction".
(b) Irreparable Harm
[32] Justices Sopinka and Cory in RJR - MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 at paragraph 59 state "'[i]rreparable' refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other."
[33] At paragraph 58 of that decision they state:
At this stage the only issue to be decided is whether a refusal to grant relief could so adversely affect the applicant's own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application.
[34] In other words, if she is denied the injunction and wins at trial, can the harm she suffers be repaired?
[35] The evidence, in my view, clearly establishes irreparable harm. The forced separation from her loved ones and the exclusion from her community, with the attendant psychological and emotional stress, are the types of harm which cannot be remedied if she is successful at trial.
(c) Balance of Convenience
[36] In RJR - MacDonald Inc., supra, Justices Sopinka and Cory wrote at paragraph 62 that this test involves a determination "of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction pending a decision on the merits." It is the consideration of this test which made me pause for some time because one of the factors to be considered in this test is the public interest.
[37] I cannot and will not second guess the judgment of the First Nation and its Band Council as to the scope and extent of the problems caused by substance abuse in the Village and the difficulties they have encountered in addressing what is considered by them a substantive and pressing problem.
[38] However, it is my duty to balance the harm to the respondents and the harm to the applicant. I have already determined the harm which the applicant is suffering as a result of the banishment.
[39] The respondents say if she is let back in the community she will traffick again. There is, in my view, an element of speculation here. If she has any sense she will not.
[40] If, as the Chief Constable asserts, there is evidence she is trafficking now, the way to eliminate the harm the applicant may cause the Village is to lay a charge. She will have broken her undertaking, will be arrested and likely incarcerated pending trial and will, by her own actions, have removed herself from the community.
Conclusion
[41] For all of these reasons, an injunction is issued staying the Band Council Resolution until trial. Costs to the applicant in any event of the cause.
(Sgd.) "F. Lemieux"
Judge
Vancouver, B.C.
February 13, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2160-02
STYLE OF CAUSE: MARGARET ANDREA EDGAR v. KITASOO BAND COUNCIL et al
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: February 10, 2003
REASONS FOR ORDER: LEMIEUX J.
DATED: February 13, 2003
APPEARANCES:
Ms. Sarah Rauch For Applicant
Mr. Michael Galambos For Respondents
Ms. Darlene Dort
SOLICITORS OF RECORD:
Conroy & Company For Applicant
Abbotsford, B.C.
Galambos & Company For Respondents
Port Coquitlam, B.C.
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