ARRESTS & COURT

Brunette River 6: (left to right) Zain Haq, Janette McIntosh, Catherine Hembling,
Ruth Walmsley, Tim Takaro, Bill Winder. Photo by Cynthia Lee. 

The Brunette River Six are six climate activists who breached the Trans Mountain Pipeline Expansion (TMX) project injunction and were arrested at the Brunette River TMX construction site in the fall and winter of 2021. This document describes our experience with the arrest, the court and custody, and what we learned about the justice system. It also builds on the experience of previous arrestees who kindly shared their experience with us. We hope it will serve those who may be arrested at other climate and environmental protests in BC: Fairy Creek, XR's protests, Indigenous land defenders, and others. See our reasons for risking arrest and jail (PDF).

Ruth Walmsley's Guide to the Alouette Correctional Centre for Women (PDF) collects the experiences of her and her sister inmates, Catherine Hembling and Janette McIntosh, during their stay at Alouette in February 2022. William Offley's Guide to North Fraser Pretrial Centre (PDF) documents his pre-COVID 2019 experience. Bill Winder and Zain Haq annotated William Offley's text with their stay in February 2022. Others have preceded us on the same path of arrest, court and custody:

Although we are speaking almost exclusively about breaches due to the TMX injunction, some of our remarks may apply generally. Obviously, we are not lawyers: You must confirm any legal matter with your lawyer.

It is also important to note that our experiences in custody, and to some extent our court experiences, were affected to different degrees by COVID restrictions.

The Arrest

Getting arrested is a personal choice, but it has effects on those around you as well. Consider what it means to be absent from home for an extended period of time, for you and for those around you. Arrest is one tactic; there are others that may be just as effective in opposing the climate destroying policies of the government.

The Charges

Criminal Contempt of Court is legalese for public (criminal) non-compliance (contempt) with a court order. The Crown will try to prove that your action was both public and knowingly in violation of the order. If the Crown fails in either of these, you will be found not guilty at trial. Some arrests have been dropped because elements of the evidence were not airtight. Only a good lawyer will know how airtight their evidence is in your case. So far, Burnaby RCMP have been very good at collecting airtight evidence.

Criminal Contempt of Court is a civil offence. You will not have a criminal record and Justice Affleck has instructed the court to keep all records at the court. In other words, your record on this matter will not be shared with border or immigration services. (We do not have a reference for that order.)

  • The TMX injunction states: "[6] Any police officer is hereby authorised to arrest and remove any person who the police officer has reasonable and probable grounds to believe is contravening or knowingly has contravened the provisions of this Order. For the sake of clarity, such police officer retains his or her operational discretion as to whether or not to arrest or remove any person pursuant to this Order."
  • All the other indications about how the police are to act are recommendations, not restrictions on their action. The 5-step process is qualified by "Without limiting paragraphs 6 or 10 of this Order", which means that [6] is the only necessary step. (This is an interpretation: Confirm with a lawyer!)

The Undertaking

At the time of your arrest, you will be asked to sign an Undertaking. The Undertaking is your pledge to not reoffend. If you sign the undertaking, you will be released. If you don't sign the undertaking, you will be detained in a local jail. The Undertaking includes a disclosure date, which is the date and time of your first court appearance.

The Court

Addressing the court. When the judge enters the courtroom, the courtroom stands and the judge bows perfunctorily and the Crown bows. Old school RCMP bow on arriving and leaving the courtroom. 

COVID restrictions limited the courtroom audience to about eight masked people. In the past, very large audiences were possible.

Lawyers and Self-Representation

  • If you retain a lawyer, the court will only communicate with your lawyer. You will have to count on your lawyer to keep you informed about how your case is proceeding.
  • Self-representation is a viable option in the case of the TMX injunction charges because there have been so many other cases that can serve as models for your defence.
  • A general recommendation is to at least consult with a lawyer. It is best to find someone who has experience with breaches of an injunction. Injunctions are not the ordinary fare of lawyers.
  • If unrepresented, you have the right to an assistant, (i.e., a "Buddy") in the courtroom. They should not speak. They may or may not be allowed to sit beside you in the prisoner's dock, at the discretion of the judge. (So far, buddy requests have been granted.)

Court Dates

Disclosure date

In court, you will receive the Disclosure. It is the Crown's evidence against you (though the Crown can add other items any time) and the Crown's initial sentencing position - the sentence the Crown will be asking the judge to impose.

  • This is your first appearance in Court and the date is given in the Undertaking (see above).
  • For breaching the TMX injunction, the Disclosure came on a memory stick and included video as well as a PDF. Your public statements can be part of the Disclosure since they indicate how public your breach was, such as to what degree you were encouraging others to offend.
  • The judge will ask "How would you like to proceed?". You will answer: "I would like to consider my options after reading the Disclosure."
  • Go through the documents carefully; there have been corrupt electronic documents in the Disclosure. You can email or phone the Crown and request them to correct anything you find ambiguous.
  • A court date will be set (often months later) for the next stage: pleading.

Pleading date

You can either plead guilty or not guilty.

You can contact the Crown (email, phone or letter) any time before the pleading date. On the pleading date, you will be asked to plead guilty or not guilty. If you plead not guilty, a trial date will be set.

If you decide to plead guilty and let the Crown know before the pleading date, the pleading date will be turned into a sentencing date as well. A guilty plea is final: You cannot reverse a guilty plea.

  • You will be asked to plead before the Crown presents the "agreed statement of facts" about your offence.
  • If you plead guilty, you can still challenge or add to the agreed statement of facts that the Crown will present after your guilty plea. Generally, that statement is a short version of your Disclosure. If you have challenged an item of the Disclosure before the pleading date, the Crown may write up an agreed statement of facts before the pleading date and ask you to sign it. A written statement is an exception, however.
  • The defendant can negotiate with the Crown about the Crown's sentencing recommendations.
  • A guilty plea wraps things up quickly; a not-guilty plea will use the Crown's time. The Crown seeks an early guilty plea. There seems to be nothing that can alter the Crown's sentencing position on the TMX injunction breaches. It closely follows the 2018 sentencing guidelines (PDF).
  • The Court is bound by a single question: "Did you or didn't you violate the injunction?"

Important Note: The Crown will offer a lower sentence for an early guilty plea, and that guilty plea may come at any time within the "early" plea window that extends right up to the moment before the trial begins. (Verify this! It may change.) Lawyers' impression about the court: The court's patience and tolerance for special requests and (privilege to negotiate) is very thin. The court is backlogged due to COVID-19, and now Fairy Creek arrestees. And, this is a long in-effect injunction with no room for broader arguments to be heard.

Sentencing date

The Crown describes the evidence against you and justifies their sentencing recommendations to the judge.

You may reply to the Crown's sentencing position. This is the moment when you can make whatever statement you feel moved to make. The Court does not restrict the subject matter or the length of your presentation. For TMX, the judge appears only to look at what justifies your sentence. The judge will not address the core of your presentation if in his or her opinion it is considered irrelevant to the case.

Can you change the sentencing?

The Court has heard it all, such as arguments based on conscientious objection, defence of necessity, statutory duty, climate crisis, economic injustice etc. These arguments amount to "collateral attack" on the injunction and will not be allowed. In other words, if you are questioning the injunction, you have to challenge the injunction in a separate court case, not by justifying your breach of the injunction.

  • In particular, the necessity defence has been tried all the way to the Appeals Court without success. (See the extensive documentation on Gooderham and Nathan's case.) Charter challenges have not worked either.
  • The Court just wants to find a way to stop the breaches and jail is the main blunt instrument it has.
  • Aggravating circumstances that may increase your sentence: Repeat offences, publicly encouraging breaches of the injunction, complications in the arrest (such as a tree-sit), public comments about other issues than the injunction that the judge finds offensive.
  • TMX sentencing: The judge has added a probation period to the Crown's sentencing for a repeat offender and has indicated in one case was prepared to accept more jail time had the Crown asked for it.
  • The judge will remind you that whatever the Crown or you may say, it is the judge who decides on the sentence.

Courtroom to Custody

A Checklist for on the Way to Court and Custody

  • Sentencing statement (if you have a written one prepared).
  • Clothing: Dress in layers. You won't be able to keep your coat or shoes. Wear two pairs of socks, and a pull-over sweater. You're likely to stay in the holding cell at the courthouse till 4:30pm, and it's cold.
  • If you have food/drink, plan to consume prior to sentencing/custody, as they take away all your possessions once you are taken into custody.
  • Any special items, such as a mouth guard or medications, will require a signed doctor's note. Glasses are allowed without a doctor's note.
  • $100-$150 cash for prison (they will put it into a trust fund you can use for ordering from the 'canteen' or for phone calls)
  • Printed visitors list (include full name, address, date of birth, phone #, relationship)
  • Phone. Turn it off with a start-up password. It's handy to have when you are released. Or leave it at home.
  • Driver's license
  • Leave at home: Jewellery, wallet. They will take everything, such as wedding rings etc., and give it back when you are released.
  • In the court holding cell, check for toilet paper before using the toilet. The sink has water but no soap or towels.

These webpages are compiled in a single document, the Protester's Guide to Arrests, Court and Custody in BC (PDF).  You can also find out more information at Protester's Resource page.