Nine People Convicted Today for Criminal Contempt of Court for Resistance to Kinder Morgan pipeline: A timeline of legal repression

By Kris Hermes

18 June 2018, Unceded Coast Salish Territories (Vancouver BC) After a trial that lasted more than five days, today BC Supreme Court Justice Kenneth Affleck rejected the arguments of the defence and convicted nine people—Bill Burgess, Charles Coleman, Simin Eghbali-Tabrizi, Johanna Hauser, Errol Povah, Kat Roivas, Gareth Rowbotham, Clayton Thomas-Muller, and Natan Vilner—of the charge criminal contempt of court. A sentencing hearing for the nine just convicted will take place on June 28 at 10:00 am.

The charge of contempt is technically not a criminal code offence and should not appear on a defendant’s criminal record. Instead, contempt of court is a “common law” offence and, while Charter protections are still afforded to alleged contemnors, the judge has had tremendous authority to make up the rules as he goes along.

Indeed, there is a strange and winding legal tale that leads to today’s contempt convictions.

Kinder Morgan files SLAPP suit against activists to obtain an injunction

In anticipation of planned civil disobedience on Burnaby Mountain, the Texas-based oil company Kinder Morgan (KM) filed for an injunction in early March on behalf of its Trans Mountain Pipeline Expansion Project.

With less than 24-hours notice, KM went to court seeking to prevent protests from occurring outside of its Burnaby facilities. KM had previously filed what’s called a SLAPP suit (Strategic Lawsuit Against Public Participation), without which the injunction would not have been possible. The SLAPP suit targets 15 activists, ostensibly seeking damages for interrupted work but, most importantly, establishing the foundation to move ahead with Kinder Morgan’s anti-protest injunction.

Justice Affleck, a former tobacco industry lawyer, agreed to an adjournment, but still gave defence counsel less than a week to review Kinder Morgan’s application, and granted an interim injunction with a sweeping 50-metre buffer zone around KM properties that enveloped private property, public parks and major thoroughfares in Burnaby.

The injunction

A week later, on March 16, Justice Affleck issued his interlocutory injunction which stands until the underlying SLAPP lawsuit goes to trial or is dismissed. Justice Affleck’s injunction order reduced the “anti-protest” buffer zone to 5-metres, and carved out an explicit exception for Camp Cloud and the Coast Salish Watch House from the conditions of the order.

The injunction prevents anyone “having notice of this Order” from coming within five metres of the tank farm property line which, according to the injunction, “shall be clearly marked and delineated by Trans Mountain.” The injunction also prevents anyone having notice of the order from “physically obstructing, impeding or otherwise preventing access by Trans Mountain, its contractors, employees or agents to, or work in” any of the Burnaby KM sites.

On Saturday, March 17, a day after the injunction was issued, a new phase of symbolic civil disobedience against KM led by the “Protect the Inlet” coalition began on Burnaby Mountain. With some exception, the people coming to engage in civil disobedience had never been arrested before. Most were local, white and middle-class, but many people came from different parts of the province to express their frustration and outrage with the pipeline project.

Over several weeks time, more than 200 people were arrested, mostly on charges of contempt. Not everyone was treated equally, however. Notably, people of colour and indigenous land defenders were often treated with a heavier hand, with some being violently arrested by the RCMP. A handful of people were also charged with criminal code offences and await trial in provincial court.

Those arrested in March were given “Promise to Appear” (PTA) court dates in June, but in advance of the Easter weekend, KM began serving arrestees with a literal stack of paper with a demand that they appear in court not in June, but on April 9. It was Kinder Morgan’s aim, and the court eagerly acquiesced, to quicken the pace of the prosecution against arrestees.

Despite being told by the RCMP that they were being charged with civil contempt of court, and signing a PTA to that effect, arrestees were surprised to find out they were being prosecuted for criminal contempt of court. The bar had seemingly been lowered from conduct amounting to “public defiance” demonstrating “scorn” and “contempt” for the court and justice system, to simply protesting in public.

Justice Affleck believed the evidence clearly showed the elements of criminal contempt, and on April 9 asked the Attorney General of BC (or, more accurately, the BC Prosecution Services) to take “carriage” of the cases.

Prosecution for criminal contempt and the scramble to find available lawyers

On April 16, the Attorney General (also referred to as “the Crown”) took over prosecution of the alleged contemnors and the following week proposed a rigid trial schedule without consulting the defence. The Crown proposed trying people according to their arrest date in groups of varying sizes, starting in June and continuing through the fall. The Crown also applied to hold periodic “guilty plea” dates with initial sentencing recommendations for those who accepted the Crown’s plea offer.

At this point, nearly 200 defendants scrambled to find legal counsel. Legal support efforts had mobilized a significant group of pro bono and low bono lawyers, but there were still far more defendants than available lawyers. The body of defendants included a small margin who qualified for legal aid and a small margin with sufficient financial resources to retain their own lawyers, but the bulk of defendants fell into the gap between the margins like so many others who are routinely caught up in the legal system without any kind of legal support. As a result, dozens of defendants chose or were forced to represent themselves without a lawyer.

Defence counsel urged the court to assign duty counsel to advise self-representing defendants, especially before they plead guilty, but the request fell on deaf ears.

In advance of the trials, local legal support group Terminal City Legal Collective (TCLC) in collaboration with Protect the Inlet, held multiple informational sessions for defendants, especially self-representing defendants, and posted regular court updates in defendant forums. In addition to demystifying the legal system for arrestees, many of whom are going through this process for the first time, TCLC has facilitated defendants working collectively together to fight their charges.

Pretrial applications

On May 9, the first pre-trial application was heard. Self-representing defendant Tom Sandborn argued that he should be entitled to a jury trial and a defence of necessity. The necessity defence hinges on the argument that a defendant acted out of necessity in violation of the law in order to avert a much greater violation or harm to society. This defence has had some success in US courts, but is not seen as favorably by the Canadian courts.

Justice Affleck issued his ruling the next day, denying Sandborn’s demand for a jury trial and denying his attempt to use a necessity defence at trial. Justice Affleck denied Sandborn’s necessity defence application because he said it failed to satisfy two tests. Sanborn did not exhaust all of his legal remedies before violating the injunction, nor did he provide evidence of imminent peril.

Two additional applications were argued by defence counsel the week of May 28. One application sought to eliminate the distinction between civil and criminal contempt, and another application sought clarification from the court on the 5-metre buffer zone boundary and whether “obstruction,” as it’s used in the injunction order, requires evidence of someone or something being obstructed in order for the injunction to be breached.

Both applications were denied by Justice Affleck, but not before the Crown conceded that, since the property line was not demarcated by KM until May, it would not be alleging a violation of the injunction based on the buffer zone. This concession should apply to all defendants arrested at the KM tank farm before the property line was demarcated. Defence lawyer Chilwin Cheng is appealing Justice Affleck’s decision not to eliminate the distinction between civil and criminal contempt. In order to file the appeal, twelve of Cheng’s defendants were summarily convicted.

Escalated sentencing recommendations

The Crown also officially amended its sentencing recommendations on May 28, establishing a precipitous escalation of punishment for those arrested after April 16 in order to deter further protest at the KM sites. Those arrested between April 16 and May 8 would now receive a recommended sentence three times that of the sentence recommended for those arrested before April 16. “For those arrested between May 8 and May 28, the Crown will now recommend a sentence of up to ten times that of the sentence recommended for those arrested before April 16. While someone arrested before April 16 received a recommended sentence of a $500 fine, someone arrested after May 8 would receive a recommended sentence of $5,000. Notably, people arrested after April 16 were not made aware of the Crown’s escalated sentencing position before getting arrested. To further bolster its deterrence approach, the Crown announced in open court on May 28 that anyone arrested after that date would receive a recommended sentence of 7 days in jail if they plead guilty early.

Justice Affleck grants Kinder Morgan sweeping expansion of the injunction

In similar fashion to Kinder Morgan’s so-called “emergency” filing in advance of the injunction hearing, KM was back in court with another emergency filing. This time, KM was seeking to expand the breadth of the injunction to include any “project or operations site of Trans Mountain or its affiliates, contractors, or subcontractors.” KM also sought to establish a new de-facto 10-metre buffer zone around “warning signs” at any Trans Mountain-designated sites throughout the province. Kinder Morgan’s rationale for this sweeping change was a singular event in the lower mainland during which a giant bore drill was “occupied” for a few hours.

Defence lawyers had less than 24 hours notice to respond to the proposed amendments. Justice Affleck granted a one-day adjournment and despite solid arguments from defence counsel that the expansion was unsubstantiated, vague and overbroad, he granted the amendments from the bench. Within a couple of days after Justice Affleck issued his order, pipeline workers were erecting “warning signs” in Secwepmec territory, deep in the interior of the province.

The first trial

By the time the first trial commenced on June 11, sixty-two defendants had pleaded guilty to criminal contempt and were sentenced to either fines ranging from $500-$1,500 or community service ranging from 25-75 hours.

The first trial included nine defendants, two of whom had legal counsel and seven who represented themselves without a lawyer. The trial also included two indigenous activists.

The Crown called several RCMP officers as witnesses and showed video footage as evidence of defendants’ injunction breach and subsequent arrest. Once the Crown rested, only a couple of self-representing defendants put on a case. Most defendants, including the defendants represented by the only two lawyers, chose not to put on a defence, claiming that the Crown failed to submit evidence proving their guilt beyond a reasonable doubt.

In closing submissions, defence counsel argued that it’s not a breach of the injunction to block the gate, driveway or access roads unless someone is “physically obstructing, impeding or otherwise preventing access by Trans Mountain, its contractors, employees or agents.” Defence counsel further argued that the Crown provided no records of anyone trying to gain access to or depart from the KM facility, no one who specifically was obstructed or impeded, or terminal operation logs and schedules. Without this information, defence counsel argued, the court has no way of knowing who was obstructed and whether they met the injunction’s requirement of “Trans Mountain, its contractors, employees or agents.”

In his ruling today, Justice Affleck rejected the argument that trucks need to blocked in order for physical obstruction of “Trans Mountain, its contractors, employees or agents” to occur.

SLAPP lawsuits and injunctions

It’s important to look beyond these contempt trials, however, in order to not lose sight of the broader implications to confrontational resistance. The suppression of dissent, illustrated by the routine imposition of injunctions at the behest of corporations, has long reached problematic proportions in BC. Whether used to evict a tent city on Vancouver’s downtown eastside or stop opposition to logging in Clayoquot Sound, corporations and government have all but ignored the democratic principle of free expression, run roughshod over indigenous land rights, and typically resorted to injunctions to address so-called problems industry and government say cannot be solved with normal law enforcement methods.

The legal mechanism to impose injunctions—the SLAPP lawsuit—has been around for decades in BC. The last time policy changed in this arena, the Liberal government overturned an anti-SLAPP bill adopted by the NDP in 2001 just before the party lost to the Liberals. However, after growing discontent by those in the legal world, including two retired Supreme Court of Canada justices and two former BC attorneys general, the new NDP government introduced anti-SLAPP legislation. The SLAPP lawsuit filed by Kinder Morgan and its resulting injunction should stand starkly as the most recent example of how this legal mechanism can be abused and how free expression can be so easily extinguished.

The second trial

The second trial also began today and will continue through the week. Out of 18 people arrested on March 19, there are four defendants in that group proceeding to trial—Jim Leuba, Nancy McLean, Kat Roivas and Tom Sandborn—one of whom is an indigenous elder, and all of whom are representing themselves without a lawyer. Other defendants who were arrested on March 19 have either pleaded guilty already or adjourned their trial to a date in the fall.

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Kris Hermes is a paid legal support coordinator for the “Protect the Inlet” coalition and a member of the Terminal City Legal Collective.

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