The British Columbia Prosecutor’s Office plans to prosecute 15 protesters for criminal contempt for alleged violations of an order protecting the construction of a disputed pipeline in northern British Columbia.
Crown’s lawyer told British Columbia Supreme Court Justice Marguerite Church on Wednesday that prosecutors need four more weeks to decide whether to charge 10 other protesters with criminal disrespect over blockades and actions last fall against the natural gas pipeline. gas at Coastal GasLink.
Prosecutor Trevor Shaw said the Crown had decided not to press charges against two of the 27 people who were arrested for six days between September and November 2021.
This is the first time the legal conflict between Coastal GasLink and supporters of Wet’suwet’en’s hereditary bosses, who claim the pipeline violates their traditional territory, has escalated into a zone of criminal disrespect – which includes public disobedience to a court order.
Church has twice asked prosecutors to prosecute criminal charges of contempt for protesters accused of violating an order it issued to Coastal Gaslink in 2019 to protect access to the pipeline’s work site.
In both previous cases, the Crown ruled that the prosecution was not in the public interest, but declined to say exactly why.
Shaw told the judge that Crown’s lawyer made the decision this time after applying “tests of both evidence and public interest” found in their police force to assess allegations of civil disobedience.
He said the Crown had worked closely with the RCMP to obtain evidence and reviewed correspondence from the Union of Indian Chiefs of British Columbia, as well as a lawyer representing more than a dozen protesters.
The Coastal GasLink pipeline route crosses about 625 rivers, streams, creeks and lakes on its 670-kilometer route through northern BC (CBC News)
The crown is expected to announce on July 7 whether to accuse 10 more protesters of criminal contempt – including Sli’do, also known as Molly Wickham, who is one of the key leaders in support of Wet’suwet’en’s hereditary leaders.
Shaw said the Crown needed more time to review the evidence and the law before deciding on Sli’do and the others. He said prosecutors had decided not to charge two defendants with contempt for evidentiary reasons.
The prosecutor said one of the key considerations was the way the terms of the order were presented to the protesters, as a previous case in which the RCMP paraphrased the order had led to an acquittal.
Coastal GasLink received an interim injunction in 2019 blocking anyone from “physically preventing, obstructing, restricting or in any way physically obstructing” access to the road leading to the company’s work site.
The Concept of Public Disobedience
The case highlights the difference between civil and criminal disrespect, as well as land ownership issues, which have led to protests against the Coastal GasLink project.
If completed, the pipeline will cover 670 kilometers from near Dawson Creek in the east to Kitimat in the Pacific.
The company has signed benefit agreements with 20 group councils along the project route. But Wet’suwet’en’s hereditary leadership says the gang’s councils have no power over land outside the reserve.
Police removed a person by detaining him during arrests over a ban on the Coastal Gaslink pipeline in 2020. The Crown decided not to prosecute citizens for contempt of the case. (Chantel Belrichard / CBC News)
The distinction between civil and criminal contempt of court order is set out in a 1992 Canadian Supreme Court ruling, which states that the difference lies in the “concept of public disobedience that accompanies criminal contempt.”
“The crown must prove beyond a reasonable doubt that the accused has deviated or disobeyed a court order in a public manner with intent, knowledge or recklessness regarding the fact that public disobedience will belittle the authority of the court,” the ruling said. . concerning a dispute between the United Nurses of Alberta and the Attorney General of Alberta.
Definition of “public interest”
Martin Peters has represented protesters both in the coastal gaslink dispute and in connection with members of the Gitxsan nation arrested for blocking a railway line in solidarity with Wet’suwet’en.
He says he believes the Crown judges any criminal charge of disrespect for its own qualities.
In the case of the Gitxsan railway blockade, prosecutors said the charges against only three of the 12 protesters had a “significant likelihood of conviction” – the standard required by the BC Attorney General’s Office – but decided it was not in the public interest to prosecute them.
“As for what’s in the public interest, I don’t know how to unpack it,” Peters said.
He does not believe the government has an “agenda”, but says many people – including companies that believe “they work effectively on behalf of society” – would like to know what “public interest” means.
Peters says none of his clients wanted to be tried for criminal contempt, but they were all willing to defend themselves.
“In fact, they are ready to raise the stakes and say, ‘Yes, but this is our land. Do not come and do not tell us that you are issuing a court order, that we cannot be on our land. This is something we are ready to judge for a very long time, “he said.
“These main issues are land ownership”
In a study that collected data on orders issued in Canada in 2019, the Yellowhead Institute found that 76% of court orders filed against First Nations were granted, while 81% of First Nations lawsuits filed against corporations were rejected.
Gwich’in lawyer Chris Statnick, a member of the advisory board of the Toronto-based first-nation research center, said the figures spoke of “spreading the order as a tool to remove indigenous people from opposing these projects.”
Statnik says the mystery of what is in the “public interest” bypasses issues such as how BC’s commitment to the UN Declaration on the Rights of Indigenous Peoples could affect the Wet’suwet’en conflict.
“Indeed, these main problems are about land ownership, and this is where the government has a duty,” Statnik said.
“They need to be strengthened, not just stay in the weeds.
In the case of the Gitxsan protesters, the judge concluded that allegations of contempt of citizens could still be considered – despite the Crown’s position – but earlier this year CN Rail said it would not continue the matter.
Peters says the issue of a judge who has brought criminal charges of contempt for protesters, regardless of the crown, remains a “living problem” in the case because it will invariably involve upholding the rule of law.
“And that’s a very big question about what the rule of law involves,” he said.
“Does the rule of law cover people who swear in court? Does it cover people blocking the railway? Does it cover the constitutional rights of Gitxsan and Wet’suwet’en in their own territory?”
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