Judge hands down decision in first anti-pipeline protester trial

June 18th 2018

Nine anti-pipeline protesters who were trying to blockade the Kinder Morgan tank farm on Burnaby Mountain will be sentenced on June 28 after a B.C. Supreme Court judge found that they were all guilty of criminal contempt of court for violating an injunction on March 17.

Justice Kenneth Afflect said Monday that the BC Prosecution Service proved beyond a reasonable doubt that “the accused disobeyed a court order in a public way, with intent, knowledge or recklessness that the act will tend to depreciate the authority of the court.”

B.C. Supreme Court finds 9 anti-pipeline protesters guilty of criminal contempt of court for breaching an injunction at Kinder Morgan property. 70 of 202 arrested people have pleaded guilty. A summer of trials to come.via @NatObserver @dylansunshinew

He also said he was satisfied that the protesters "openly, flagrantly, and continuously" acted in a way that undermined the court's authority.

The Crown has recommended fines of up to $3,000, or 150 hours of community service.

More than 200 arrested for violating injunction

The verdicts follow a week of testimony and cross-examination for the defendants who opted to stand trial, unlike 70 others, among more than 200 people arrested, who opted to plead guilty to avoid a hearing. Federal MPs Elizabeth May and Kennedy Stewart were among the 70 who pleaded guilty and were sentenced to pay fines for violating the injunction.

The trial was the first of many scheduled throughout the summer and into late fall, triggered by four months of steady rallies and blockades. The court injunction established a five-metre exclusion zone around Kinder Morgan's Burnaby Mountain tank farm and Westridge Marine Terminal.

The charge is not a Criminal Code offence in Canada, and, therefore, defendants found guilty will not get criminal records.

Federal MPs Kennedy Stewart and Elizabeth May appear at a rally against Kinder Morgan's Trans Mountain expansion project on March 23, 2018. Both MPs were later arrested after violating a court injunction issued to prevent disruption of construction. File photo by Dylan S. Waisman

The Trans Mountain pipeline expansion from Alberta to Burnaby has sparked strong opposition in B.C., in part because it would bring up to a seven-fold increase in oil tanker traffic along the Burrard Inlet in metro Vancouver. Protests have been held across Canada since the federal government announced it would purchase an existing pipeline and expansion assets with $4.5 billion taxpayer money. While proponents say the project will boost jobs and tax revenue, critics argue it would push Canada's climate goals out of reach.

Many of those who pleaded guilty were persuaded by the court’s practice of awarding lower fines for earlier pleadings. Penalties for early guilty pleas have been as low as $500, with fines for unsuccessful trials as high as $5000, with the option of a corresponding amount of community service hours (ranging 25-240 hours) as an alternative. The court reasons that early guilty pleas take up less court time and resources, and therefore warrant lower fines.

Seven out of the nine defendants were representing themselves in court, although the lawyers for the two others argued in favour of all of them.

The Crown presented video evidence for each defendant as well as testimony from RCMP and Kinder Morgan security agents. By contrast, self-representing defendants employed both humour, and ethical and environmental considerations to argue their cases, while using friends and each other as witnesses.

Some also chose to put forward largely unconventional legal arguments, cross-examining each other, and telling personal anecdotes in an attempt to sway the court.

Kat Roivas, a defendant who is also on trial for breaking the injunction on two other occasions, advanced several arguments to prove her innocence. Roivas said she had no prior knowledge of the injunction, and explained that due to dyslexia, she was not able to read it when RCMP handed copies out, nor was she able to hear it being read, due to the loud singing and drumming of the other protesters.

Roivas also told the court that she was stationed in front of the gate for spiritual reasons, to support other arrestees.

While she was on the stand during the trial, Monte Ruttan of the Crown Prosecution, was skeptical, referencing RCMP footage and asking “when I see you in the video I don’t see you outwardly doing that [prayer].”

This provoked some laughter from the gallery.

Errol Pova, a friend of Roivas and fellow defendant, cross-examined her afterwards, in an attempt to use humour to “lighten things up,” he told National Observer. He questioned her about an eagle that was in the sky that day, and asked her to provide proof. The stunt was short, but was also met by more laughter in the courtroom.

Affleck ultimately rejected the defence offered by Roivas, agreeing with Ruttan's arguments that the law does not protect someone who chooses "to remain willfully blind and willfully ignorant” of a court order, despite knowing of its existence.

William Burgess, another defendant without a lawyer, brought his friend, a sailor with strong navigational skills, to testify on the stand in an attempt to show that people were confused about which specific area was covered by the injunction. Burgess argued that the “Burnaby terminal” as the tank farm is named in the injunction, could also indicate a heliport in Burnaby, or an oil refinery located nearby, since the injunction didn't indicate the exact address.

Justice Affleck rejected this argument, noting that the banner attached to the front gates of the construction, which read “Stop Kinder Morgan” was enough to show what the defendants were trying to do at the terminal.

'Grey feathery hair' confirms his identity

The Crown's case was extensive, including video-footage of each of the accused, along with testimony from RCMP and Trans Mountain security agents, to paint a detailed picture of the appearance and actions of each defendant.

For example, when describing Burgess, the Crown said, his “grey feathery hair is in the same style, the style and colour of his facial features are are all the same, and confirm his identity beyond reasonable doubt.”

Most of these details went unchallenged by the defence, which focused instead on the ambiguity of the wording of the injunction.

Defence lawyers Neil Chantler and Karen Mirsky also questioned whether there was enough proof that their clients were actually blocking Trans Mountain vehicles and staff attempting to enter the gate. In the absence of such evidence, the lawyers argued that the court couldn't assume that the defendants were "physically obstructing, impeding or otherwise preventing access by Trans Mountain," as stated in the injunction.

Chantler also argued that the affidavit presented by Trans Mountain’s private security, gave “bald, unsupported statements that on that date regular pipeline construction was scheduled to continue.”

He also argued, “someone can tie themselves to the gate at 1 a.m. without anyone being there, and cannot be deemed to appreciate the consequence of her conduct.”

Not the first defendant to be disappointed, judge says

Chantler also argued that RCMP arrived at the Burnaby terminal already “expecting, and prepared to make arrests.” He added that RCMP had one to two days’ notice of a planned protest in which people would be intending to be arrested, and the RCMP “seemed to accept Trans Mountain’s conclusion that the injunction was being breached, without putting his mind to it," referencing an affidavit from a RCMP chief constable, Andrew McCauley.

Justice Affleck was not persuaded by either argument, saying that “a higher standard of proof is not required.” He said it was enough that Contable McCauley “had a subjective believe that people were breaking the injunction, I conclude that that belief was objectively justified."

Following the verdicts, Errol Pova, one of the defendants in the trial, stood up to address Justice Affleck.

“To say that I am disappointed is a major major understatement.”

Affleck replied, “You’re not the first person to be disappointed in the outcome of a trial.”

[Photo: Protest outside the B.C. Supreme Court June 18, 2018. Photo by Dylan Sunshine Waisman]