"Does a criminal contempt of court mean I now have a criminal record?" the woman asked B.C. Supreme Court Justice Kenneth Affleck. "So, when I go to volunteer at my granddaughter's school, I have to say I have a criminal record?"
"I'm not in a position to give you legal advice," Judge Affleck answered.
Some similar cases in the past did not create criminal records for those found guilty, he added.
Had his answer clarified things for her, he asked. She was still confused, she said.
The woman was one of dozens arrested for crossing a court-imposed exclusion zone around Kinder Morgan's Burnaby pipeline terminal called to appear at the Supreme Court of B.C today. Although many of the nearly two hundred people who crossed the line decided not to appear in court today, others did.
Irina Ceric, a lawyer with Terminal City Legal Collective, a volunteer organization offering support to defendants, explained to National Observer what Affleck's remarks meant, "because contempt of court is not a Criminal Code offence (it is a common law - or judge-made offence), those convicted should not have a formal or official criminal record". However, "their arrest and conviction will be included in other police databases, and may impact people's employment, travel, etc" she explained.
B.C. Prosecution Service lawyer Trevor Shaw told the court that a $500 fine should be applied to protesters found guilty of criminal contempt of court. He referenced the precedent set by the 1993 Clayoquot Sound and Eagle Bluff Ridge protests, which saw penalties from $250 to $5,000 and "significant jail time" depending on the protester's involvement.
Shaw suggested that 25 hours of community service under the direction of a probation officer would suffice, if a defendant couldn't afford the fine. Shaw's statement was met with laughter by the court's audience.
Natasha Sanders-Kay, one of the defendants in court told National Observer why she found Shaw's statement laughable, "I was amused by the irony: community service as a penalty for serving the community". As a person financially dependent on disability assistance, she expects she'll fall into the community service category, as she cannot afford to pay the $500 fine, "It's funny to wrap my head around doing community service when that's what I did in blocking the gate, that's what I do as an activist, that's what our Indigenous leaders are doing up at the Watch House and on Camp Cloud".
Shaw explained that there will be a pleading hearing, tentatively scheduled for May 7, when the court expects to hear guilty pleas, after defendants have seen RCMP evidence proving they crossed the injunction line. However, there will also be an earlier date when people can plead guilty before having seen the evidence against them.
Had his answer clarified things for her, he asked. She was still confused, she said. #bcpoli #KinderMorgan
"I'm not in a position to stop people from [pleading guilty] if they knew what they did on that particular day," Shaw said.
One defendant complained during the hearing that the court system was creating a "natural incentive built into this process to plead guilty before seeing the video footage."
Justice Affleck repeatedly confirmed that he "will not accept a guilty plea from anybody who is not adequately informed" about the evidence against them. However, defendants appeared confused that they were still being told about the option to plead guilty before any of the evidence against them had been presented.
Hearings are scheduled to continue through the summer and into mid-October due to the large number of accused individuals.
If built, Kinder Morgan's new project would triple the current volume of fuel shipped on the existing Trans Mountain system, increasing the total to up to 890,000 barrels of heavy oil from Alberta’s oilsands every day. This would result in a seven-fold increase of oil tanker traffic off the coast of Burnaby, in Metro Vancouver, which lies in the unceded territory of the Tsleil-Waututh and other nations, whose land was taken by Canada without any treaty or agreement.
Opposition to Kinder Morgan's pipeline expansion project has intensified in the past month, with public figures such Green Party MP Elizabeth May, Burnaby South MP Kennedy Stewart getting arrested in March while protesting the project. Kinder Morgan's CEO Steve Kean has threatened to abandon the pipeline project if stakeholders cannot resolve the threat of B.C.'s opposition by May 31.
Editor's Note: This piece was updated at 11:45am PST Tuesday April 24th with comments from Natasha Sanders-Kay.