Pipeline protesters including Green leader should face criminal charges: judge

Green Party Leader Elizabeth May is led from the Burnaby, B.C. Kinder Morgan site on Friday, March 23, 2018.

VANCOUVER -- A B.C. Supreme Court judge says the Crown should consider laying criminal contempt of court charges against Green party Leader Elizabeth May and dozens of other demonstrators alleged to have violated a pipeline court injunction.

May, New Democrat MP Kennedy Stewart, and others arrested last month are currently charged with civil contempt of court over allegations that they protested within five metres of two Trans Mountain sites in Burnaby, B.C.

But Justice Kenneth Affleck said the case should not be left to Trans Mountain to pursue as a private litigant and the matter should be taken over by B.C.'s attorney general.

"There is no doubt in my mind that the conduct that is alleged here amounts to criminal contempt of court," he said Monday.

"They are matters of public importance, they ought not to be left in the hands of a private litigant."

May was arrested with several others on March 23 when she joined protesters to rally against the expansion of the pipeline.

The B.C. Prosecution Service's civil disobedience policy manual says whether contempt is a civil or criminal matter is determined by "the character and nature of the conduct."

A dispute of civil contempt would remain between the parties involved, while criminal contempt involves the public interest in administering justice, says a copy of the manual posted to the B.C. government website.

"A criminal contempt often involves a mass disobedience of a court order which tends to bring the administration of justice into disrepute or scorn," it says.

Trevor Shaw, a lawyer for the B.C. Prosecution Service, told the judge it would carefully consider a referral of the case from the court and report back "on what we see as the next steps that are viable and appropriate."

Civil and criminal contempt charges have "substantial overlap," Shaw said.

"The contempt, when it's criminal in nature, is typically reserved for cases where there has been a failure for an effective civil enforcement, there has been particularly egregious conduct, repeat offenders or sentences where there have been violence or damaged property," he said.

Maureen Killoran, counsel for Trans Mountain, said it's the responsibility of the court, not the company, to move forward on prosecuting the 150 people arrested at the site since the injunction was granted.

"The injunction order from the perspective of Trans Mountain is meaningless. It is a circus on site, and the court must take steps to protect the rule of law," she said.

Affleck said the trials, which should be expedited, aren't determining the merit of the pipeline expansion project that faces fierce opposition in B.C.

"This trial is not about the whether the work being done by Trans Mountain or Kinder Morgan is lawful or environmentally wise, none of that," he said. "The only issue is, has there been public defiance of the order?"

May's lawyer, Andi MacKay, said the court's direction to have the charges proceed as criminal rather than civil were clear, and while defendants intend to co-operate, they need more time.

She said only 15 of the 25 people in court on Monday had actually been served, and many people still needed time to find a lawyer.

"Individuals who are alleged to be in contempt of the court order are entitled to the time to retain counsel, to instruct counsel, to consider their options, to receive disclosure and to have proper notice," MacKay said in court.

The judge released the group on a promise to appear in court next week.

May declined comment on the proceedings.