Groans were heard in the B.C. Supreme Court today, as over two dozen pipeline opponents who were arrested alongside two prominent federal MPs in Burnaby in March learned they were facing possible criminal charges for their civil disobedience.
"I signed a paper I was going to be tried by civil contempt and I thought that was okay," said one of the defendants. "Can they really jump that to criminal? Just like that?”
“If that conduct is proven to fall within the definition of criminal contempt…then I am entitled to make the decision whether that is civil or criminal contempt,” said B.C. Supreme Court Justice Kenneth Affleck, explaining that the decision to pursue criminal charges was a question of law up to him, not a decision for the police to have made.
Green Party Leader Elizabeth May, NDP MP Kennedy Stewart and nearly 200 others have been arrested and charged with civil contempt of court over allegations that they protested within the exclusion zone of two Trans Mountain construction sites in Burnaby, B.C., defying a court injunction prohibiting the action.
Crown counsel is now considering criminal charges instead.
The B.C. Prosecution Service’s civil disobedience policy manual says whether contempt is a civil or criminal matter is determined by “the character and nature of the conduct.”
A dispute of civil contempt would remain between the parties involved, while criminal contempt involves the public interest in administering justice, says a copy of the manual posted to the B.C. government website.
“A criminal contempt often involves a mass disobedience of a court order which tends to bring the administration of justice into disrepute or scorn,” it says.
'An act of conscience'
Amnesty International Canada is watching the case, and released a statement asking the B.C. government to avoid criminalizing protesters.
“The protests against the Kinder Morgan pipeline are clearly an act of conscience, motivated by a concern for our common environment and the rights of others. This, not the defiance of the court injunction, should be the determining factor in deciding upon the appropriate response,” said secretary general Alex Neve.
Meanwhile, Kinder Morgan’s lawyer, Maureen Killoran, has also asked whether the court can help reduce tens of thousands of dollars in expenses it is racking up on paperwork, due to a growing number of arrests. Killoran explained that currently, the RCMP is going through Kinder Morgan before the case gets to the Crown, but would like to see the police deal directly with prosecutors.
Crown lawyer Trevor Shaw said the service is “trying to set up a proceeding which will allow us to assess new and incoming cases.”
Avoiding real or perceived influence
In Ottawa, Natural Resources Minister Jim Carr said that it wasn’t up to him to decide how police should react to protests or efforts to block the pipeline.
“There are law enforcement officials who will determine when someone has broken the law, and as we found out over the last number of weeks, many people have chosen to break the law and someone has called the police and they’ve been arrested, including two Members of Parliament,” Carr told reporters outside the House of Commons.
The court has appointed special prosecutors to determine whether charges will be laid against Elizabeth May and Kennedy Stewart. The prosecution service have said that it is in the public interest “to avoid any significant potential for real or perceived improper influence in the administration of criminal justice.”