Protests & Arrests
"Climate activists are sometimes depicted as dangerous radicals. But the truly dangerous radicals are the countries that are increasing the production of fossil fuels." Antonio Guterres (UN Secretary General) on Climate Change, April 4, 2022.
In December, 2013 Texas-based Kinder Morgan applied to Canada's National Energy Board (NEB) to expand the Trans Mountain pipeline. This application was reviewed during closed hearings and approved with 157 conditions. Thousands demonstrated against it but the Trudeau government approved it in spite of the protests. In March 2018, the BC Court Supreme granted an interim injunction to prevent people from obstucting work at the Trans Mountain site in Burnaby. This injunction marked the beginning of the efforts to suppress dissent.
In spite of the injunction people continued to demonstrate against the expansion finally forcing Kinder Morgan to withdraw funding for the project. In 2018, Trudeau purchased the pipeline using $4.5 billion dollars of taxpayers money. Since that time the costs have risen to $21.4 billion and the completion date has been delayed until 2023. See Stop TMX for more details.
The Trans Mountain (TM) Crown Corporation is continuing the construction of the pipeline expansion, in spite of the enormous costs and Canada's commitment under the Paris Climate Agreement to keep global temperatures from rising above 1.5 degree Celsius.
Opposition to the expanded pipeline has remained alive and strong. With people across the province, and particularly in the Lower Mainland, engaging in direct non-violent protests. In Burnaby, ground zero for the termination of the pipeline, peaceful protesters have used creative tactics to slow and even stop construction for significant periods of time.
In September, 2021 a RCMP tactical police squad descended on the Brunette River site, forcing tree-sitters from their "sky-pods" and carrying away others on the ground. The "Brunette River 6" were charged with criminal contempt of court for violating the injunction. On February 14th and 15th, 2022, four of the group were sentenced 14 days in jail and one person was sentenced 21 days in jail. On June 15th, one person was sentenced to 30 days in jail. For standing up for our environment and ultimately our survival, these conscientious and courageous people are being subjected to a court system that is increasingly intent on protecting the rights of the Trans Mountain Corporation over the rights of people committed to protecting our lands and water.
You can find press releases about the arrests as well at an Op Ed published in the Vancouver Sun entitled Ruth Walmsley: Why we face jail time for safeguarding a livable climate, an Op Ed in The Province entitled Dr. Linda Thyer: Physicians' moral actions for public well-being considered criminal, an Op Ed published in The Star entitled Mountain pipeline protester Tim Takaro should not do jail time and an Op Ed published in The Province entitled Dr. Larry Barzelai: Is putting non-violent protesters in jail a reasonable course of action?
What is the cost?
Protestors across the province have encountered a court system designed to protect corporate interests. And the costs have been high, to the individuals. to the court system, to society and to the environment as you can see by the examples below:
Number of people the RCMP have arrested for protesting old tree logging at Fairy Creek: 1,188 (1)
RCMP policing costs for enforcing an injunction granted Teal-Jones Group at Fairy Creek in 2021: $10,060,583 (2)
Number of people the RCMP have arrested for protesting against an injunction allowing contractors to build a pipeline through Wet'suwet'en territory without consent from the hereditary chiefs: 74 (3)
RCMP policing costs for enforcing the Coastal GasLink injunction in Wet'suwet'en territory between January 2019 and March 2020: Just over $13 million (4)
Trans Mountain Contempt Cases as of February 8, 2022
Number of people arrested for contempt while protesting against the Trans Mountain Pipeline Expansion Project: More than 248
Number of defendants who pleaded guilty to criminal contempt: 164
Number of defendants who went to trial: 39
Number of defendants acquitted of criminal contempt at trial: 1
Trans Mountain Custodial Sentences as of February 8, 2022
Number of people sentenced with some form of detention: 48
Number of people sentenced 4 - 14 days in jail: 37
Number of people sentenced to 28 days in jail: 5
Number of people sentence to 60 days in jail: 1
Number of people sentenced to 90 days in jail: 1
Number of people sentenced to 5 months in jail: 1
Number of people sentenced to 7 - 28 days house arrest plus additional conditions: 3
Trans Mountain information compiled by さProtect the Inletざ Legal Support Coordinator Kris Hermes
Arrests, convictions and sentences continue to rise.
What is the law and who does it serve?
Do people in Canada have the right to protest?
The right to protest and conduct picket activity is legal and protectedby the Canadian Charter of Rights and Freedoms which guarantees freedom of expression and freedom of peaceful assembly.
What is contempt of court?
Contempt of court is a common law offence for knowingly breaching a court order, such as an injunction. The BC Supreme Court claims that breaching a court order "depreciates the authority of the court" and brings us to the brink of a lawless society. The B.C. Supreme Court uses injunctions to legitimize the repression of political resistance. In B.C., when a person violates the terms of an injunction, the offence falls under twelfth-century English common law which is based largely on the discretion of judges, cannot be found in Canada's Criminal Code, and relies only on past decisions.
The Common Law system grants the BC Supreme Court powers to issue legally-binding orders against individuals, corporations, or governments. It also provides the court with the power to enforce those orders by charging parties with either civil or criminal contempt of court. In the case of those arrested for violating injunctions, the court commonly charges them with criminal contempt of court.
"The injunction is the line that TMX has drawn in the sand, so as to stifle any meaningful resistance at the company's worksites throughout the province." Kris Hermes, BriarPatch, January 19, 2021
What is an injunction?
An injunction is a court order intended to prevent one party from interfering with the legal rights and interests of another party. A party to an injunction may include an individual, a corporation, a government, or a First Nation. Most injunctions contain an enforcement clause providing police with the legal authority to arrest people when they have reasonable and probable grounds to believe that the party has breached the terms of the injunction.
Injunctions have long been used in BC to stifle opposition to corporate and government agendas and to suppress resistance to harmful environmental projects like the TMX and the Coastal GasLink pipeline.
Does Trans Mountain have an injunction order in place?
In March, 2018, Trans Mountain applied to the court for an injunction prohibiting protestors from obstructing their work sites. In the case of the injunction granted to Trans Mountain, a breach can occur in three ways:
(1) obstruction of an entrance to a TMX facility, including facilities of TMX contractors and subcontractors,
(2) destroying signage or fencing around TMX sites, or
(3) coming within five metres of TMX property, including along the pipeline route that stretches across the province.
What is the role of the RCMP in enforcing the Trans Mountain injunction?
Trans Mountain can report any unauthorized activity on the site and request the RCMP investigate the situation and if they determine there is reasonable and probable cause, they can arrest the person(s).
Who determines the charge and penalty for a person who breaches the injunction?
Crown Counsel are prosecutors who work for the BC Prosecution Service under the Ministry of Attorney General. Crown Counsel decides whether to charge a person with contempt and recommends the sentence, based on a strategy of deterrence (personal and general). The BC Supreme Court judge makes the decision as to guilt or innocence and, if found guilty, the judge will consider the Crown's recommendations in sentencing a person.
What are the typical sentences?
The severity of sentences for the more than 240 people who have been arrested over the past years for breaching the 2018 injunction has escalated in an attempt to deter others from breaching it. What began as a $500 fine and community service is now typically two to four weeks in jail. For indigenous land defenders, it has risen to as much as 90 days in jail.
In addition to the time in jail, some land defenders have had 500-meter "stay-away" conditions imposed by the court, arguably a violation of their Charter rights to free expression and an unreasonable restriction to their movement near their homes or work. These restrictions are seen to be an overreach by the court.
These increasingly severe punishments doled out by BC judges raise the question of how far the Crown and the courts are willing to go in order to undermine Indigenous sovereignty and squelch widespread opposition to TMX. The use of targeted and draconian punishment against Indigenous land defenders to scare others from resisting the pipeline has hit a notable low as the archaic colonial legal system doubles down to protect TMX at any cost.
A special thanks to Kris Hermes for assisting in the preparation of this material. You can reach him at firstname.lastname@example.org.