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Thoughts on My Trial

    Governance & Politics    November 7, 2018

This last March 23rd, I was arrested protesting in front of Kinder Morgan’s gate in Burnaby — now Trans Mountain Corporation, bought by all Canadians in August for $4.5-billion. I wrote an Exchange piece, published on March 29th, called  “Thoughts on My Arrest”. Time for an update.

In Vancouver’s B.C. Supreme Court last week, I represented myself, pleading not guilty. My trial ran from Monday to Friday, with more to come, resuming on March 12th. There were three other arrestees pleading not guilty, represented by three lawyers. This graphic shows the layout and seating in the impressive, red-carpeted Courtroom 20, specially built for the Air India trials.

Becoming a criminal-defence lawyer almost overnight has been a lot of work, but I think I’ve done okay. Judge Affleck (who wrote the Injunction Order I’m accused of breaching) is required to help self-represented defendants. People who’ve watched many of these trials from the public gallery told me that he was more attentive and respectful to me than they’d seen before. This has no bearing on my case, but a kindness in itself that I appreciate.

The power and strictness of our legal system was clear, and I like it. I also like the courtly ‘dance’ of proceedings. While the drafting and implementation of laws always need improving, it’s the cornerstone of our freedoms, the price of which is eternal vigilance. Countries lacking such open and firm legal basics are scary messes.

The point of my protest was to make a statement, in solidarity with the First Nations’ organizers, which I did on March 23rd. I spoke to this briefly when testifying, but the point of my trial was to make a legal case.

I was arrested (not charged; that’s for the court to determine) for civil contempt of court, but I’m being tried for criminal contempt. This is good. It’s a Common Law offence, not Criminal. The ‘criminal’ term raises the burden of proof on the court to the Criminal Law level, to prove my guilt beyond reasonable doubt. The test is my “guilty mind”, that I intended to break the law, not just that I acted in such a manner.

My entire protest was predicated on staying off Kinder Morgan’s land. Private property rights are serious, truly criminal offences, and KM is a Texas oil giant run by ex-Enron executives, not known for playing nice. The thought of putting even a foot on their property repels me.

I saw no property line posts anywhere around the main entry gate, and it came clear in court that, although Trans Mountain was required by the Injunction Order to “clear mark and delineate” its property line, it had failed to do so that day and for weeks after. The RCMP used the gate and fence as the property line, some 24 metres into the site, a mistake that the Site Commander confirmed.

This last May, however, the judge had already deemed that this didn’t matter. I’m charged only with obstructing Trans Mountain traffic from accessing the terminal. I had no opportunity to show my intentions to make way for TM traffic to pass, because none showed up that day. In court, I learned that RCMP vehicles blockaded TM vehicles from getting near the site. Thus, everyone by the site was obstructing, whatever their intentions, hence breaching the Injunction Order.

For nearly 3.5 hours, I stood at the street end of the driveway helping to hold up a large banner, led to believe by the RCMP that I was well off TM’s land. I counted 22 officers on duty, all of whom watched us break the law for hours without warning us that they could, as the Site Commander confirmed in court, arrest us wherever we stood, on private land and – unbeknownst to us – also on public roads.

The Injunction Order covers “all roads leading directly and indirectly to Trans Mountain sites”, meaning that any protester can be arrested for obstructing on any public road throughout B.C., regardless of any visible TM traffic being blocked, as long as TM says it was, with no burden of proof but its word. Really.

Had the property line been marked as required, my protest would have been entirely different. I can’t say in what ways, because I would have decided as the day unfolded. Those implementing the Injunction Order failed me, but I was expected to be smarter and more expert, in every detail, than they were. I face all of the consequences of being misled, while the taxpayer picks up the large and growing tab.

Will I be found guilty? We’ll know in March. If so, there may be grounds for appeal. If not, then appeal is ruled out. Regardless of the outcome, Trans Mountain can still take me to court seeking a fine and all costs, operational and legal. They’re doing this right now to Lini Hutchings, whose parents live on Salt Spring. She was arrested in early March by the Trans Mountain gate, before the Injunction Order was in place, then arrested in May for chaining herself to a TM tree. Charges were dropped, but still, this Wednesday, November 7th, she’ll be in court to face charges laid by Trans Mountain, looking for stern punishment and a large fine. “Sunny ways” comes to mind. “Sunny ways, my friend.”

New case-law precedence is being set with all this, which will affect every Canadians’ right to lawful, peaceful, safe protest for long years to come. What to do about it? I have the good fortune, as I see it, of being able to address it through my trial, which continues in March.

In the meantime, thank you, from the fullest of heart, to the many fabulous Salt Springers who have been supportive, in myriad kind ways, on this intense and strange journey.

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