Judge asks Crown to take over Kinder Morgan protester contempt hearings

April 9, 2018

A judge is asking B.C.’s Attorney-General Ministry to take over the case of Kinder Morgan protesters who have been arrested for allegedly violating a court injunction.

Last month, B.C. Supreme Court Justice Kenneth Affleck issued the injunction restricting protests at Kinder Morgan’s controversial Trans Mountain Pipeline Expansion Project in Burnaby. Since then nearly 150 people have been arrested.

On Monday, the judge told the protesters and their lawyers that he believes the accused are facing the more serious criminal rather than civil-contempt-of-court proceedings and should be dealt with by the B.C. Prosecution Service rather than by the company.

“These matters … ought to be taken over by the Attorney-General of B.C.,” the judge told the packed Vancouver courtroom. “They are matters of public importance. They ought not to be left in the hands of a private litigant, no matter how large that private litigant is. They ought not to be left in the hands of Kinder Morgan or Trans Mountain.”

A lawyer for the B.C. Prosecution Service told the judge that he understood the position the court was articulating, but added that there was some overlap between civil- and criminal-contempt proceedings, and that it was possible to prosecute civilly for contempt of an injunction.

Maureen Killoran, a lawyer for Trans Mountain, said that the company had so far filed motions against 25 people and added that it was not the job of the firm to determine whether it was a civil- or criminal-contempt proceeding.

She said that there was a “circus” at the work site and that the court must take steps to defend the rule of law.

Andi MacKay, a lawyer representing Elizabeth May, the leader of the Green Party of Canada and one of the people arrested at the site, told the judge that of the 25 people who are currently being proceeded with, only 15 of them have been properly served. She said that the people who have been arrested are entitled to retain a lawyer and have proper notice of what they are alleged to have done.

The judge told the parties that he was hoping that trials of the accused would not be a “long, drawn-out process” and that the prosecution case would go in through affidavits, with the accused having the right to conduct cross-examinations, to testify and call their own witnesses.

He said he hoped that the defendants could be tried in groups of 10 by date of arrest and emphasized that the trials would be limited to the issue of whether there has been a criminal contempt of court.

“This trial is not about whether the work being done by Trans Mountain or Kinder Morgan is lawful or environmentally wise. None of that is before me. The only issue is, has there been public defiance of the order.”

The judge then adjourned the case until April 16. Apart from the contempt proceedings, the Crown has already laid several criminal charges against protesters involved in incidents at the work site.

Outside court, May, the MP for Saanich-Gulf Islands, declined to comment on what had happened in court.

Dan McLaughlin of the B.C. Prosecution Service (BCPS) said in an email that counsel were in court to assist in addressing any concerns the court might have as to the course of proceedings.

“The BCPS will be back before the court on these matters on April 16, 2018.  As the matters remain before the court the BCPS will have no further comment.”