I’m back from the rabbit hole of court – the B.C. Supreme Court, in downtown Vancouver. Last fall, I spent five days there, self-representing my not guilty plea, after arrest for protesting on March 23rd in front of Texas oil-giant Kinder Morgan’s tank farm in Burnaby, now Trans Mountain Canada, owned by all Canadians. Three others are being tried with me, arrested on different days, represented by lawyers.
We didn’t finish last fall, so resumed on March 12th, taking another day and a half to close my case. On May 1st, the judge will phone me to give his verdict. If guilty, as he’s found to date for nearly all arrestees, nearly 240 total, I’ll return to court for sentencing.
I entered this strange world with such naiveté. The Alice in Wonderland feeling starts with remembering how professionally I thought the RCMP behaved throughout the protest, as if their respectful treatment of protesters would be matched by legal competency. Failing that, I thought they’d bear the consequences, but through my trial, I’ve learned differently.
The nub of my case concerns my actus rea, or guilty actions, and mens rea, or guilty mind, i.e. my intention to break the law. The Crown contends that I engaged in a prohibited action in a prohibited area, and that I intended to do both.
Their job is to prove, beyond a reasonable doubt, that I meant to obstruct Trans Mountain (TM) traffic, and that I recklessly did so. I know, absolutely, that I did neither. To keep my protest lawful, I did my best to stay off TM property and out. the 5-metre injunction zone. I would have let any traffic, of any sort, pass, although there was none, because the police had blocked it, out of sight. I was cautious and careful, taking about 5 hours to get clear on the ground rules.
While Alice in Wonderland grew and shrunk in size, I’ve stayed my same small self throughout all this. What’s gotten larger and smaller around me are key legal tenets I thought existed and had counted on.
The biggest revelation is that the “mistakes in law” made by TM and the RCMP, which misled me to believe I was on public property when I was not, are all on me. They bear no responsibility. The law as written – the Injunction Order, in my case – supercedes their sloppy implementation of it, meaning I needed to be more expert than they were, in every detail and operation.
I also used to think that if I was doing something illegal, in an illegal place, for hours on end, with a large number RCMP officers standing by and watching, they would let me know, in some manner, that I was breaking the law. Uh uh. The police have no obligation to tell protesters where the no-go zones are, to block entry to them, or to warn trespassers that they risk arrest.
If, through RCMP mistakes and oversight, one is misled, as I was, into a prohibited area, to the point that they say, “Move, or we’ll arrest you,” the only way to prove a mind free of guilt and recklessness is to move.
I stayed put, to uphold my right to an allowed action – peaceful, safe, lawful protest, a cornerstone of Canadian democracy – in an allowed area – obviously a public road end with a public pathway crossing it. Through RCMP actions, I was certain where the property line and arrest zone were, which I stayed away from, a certainty confirmed in their written and oral testimony.
The real Wonderland kicker, as I see it, is that refusing to move has become proof of my intention to break the law, because if I hadn’t intended to break the law, then I would have moved. The situation seems like entrapment, cinched with a neat Catch 22.
What was in my mind as a result of TM and the RCMP mistakes in law is irrelevant. What should have been in my mind based on the law as it’s written, not as it was faultily administered, is what matters.. It’s all loopy, and if one loop doesn’t point to a guilty verdict, then another one does.
I hope that the judge can peer well enough into my mind to see a reasonable doubt of guilt. If not, then justice, such as it is, will be built on a nice bit of post hoc ergo propter hoc, meaning, in my case, that, “after this action in this place, therefore because of this intention.”
We’ll see. In the meantime, all of these protests are very old news, lost in yesteryear. When the construction of the Trans Mountain pipeline resumes, however, after P.M. Trudeau’s cabinet approves it in a few months, the public protests will begin again and get more serious, as the stakes escalate. More naive protesters will then fall into the legal rabbit hole. Maybe circulating a heads-up like this will help organizers better inform protesters about how the legal system actually works.