Protesters may not have violated court order

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Dozens of protesters charged with breaching an injunction protecting Kinder Morgan pipeline testing work on Burnaby Mountain may never have violated the court order.

In an application to change the original Nov. 14 injunction issued by B.C. Supreme Court Associate Chief Justice Austin Cullen, Kinder Morgan subsidiary Trans Mountain Pipeline ULC says the RCMP have been arresting people for entering an “exclusion zone” that extends beyond the boundaries of the injunction.

Documents filed for Thursday’s hearing to expand the zone from which protesters are prohibited suggests that many of the nearly 90 arrests made by Mounties over the past week, and civil contempt charges laid against those arrested, could be found illegitimate.

Carey Johannesson, who is described as project lead on the Trans Mountain Expansion Project, says in an affidavit that he filed the incorrect GPS co-ordinates that resulted in the confusion.

“It is now apparent to me that the approximate GPS boundaries for borehole no. 1 and borehole no. 2 are not accurate,” he states, adding it has “become apparent that the GPS locations described in the order are not accurate.”

Lawyers who have been critical of the process by which Trans Mountain obtained the injunction and the use of the court’s civil contempt law to deal with protesters were appalled.

“The RCMP appear to have arrested dozens of people for breaching an injunction when they may have done no such thing; carting people away for crossing a line they didn’t cross,” said Josh Paterson, executive director of the B.C. Civil Liberties Association.

“The thing with being charged with breaching a court order is that you need to have breached a court order. It’s totally unclear whether that is the case, given the acknowledgment that RCMP have arrested people for crossing a police tape line that was metres from the actual injunction line.”

Vancouver lawyer Jason Gratl, who represents some of the protesters, said the situation has been a mess since the get-go — with no one understanding where they were allowed to demonstrate.

“Now they are going to bring the contempt to the protesters rather than wait for the protesters to get to the contempt,” he said wryly.

Gratl pointed out that the Mounties could charge protesters under the Criminal Code.

“It’s obstruction of justice to cross a police line when directed not to, but that’s a criminal charge,” he explained.

“Now it is more stark than ever police don’t want to do their job, they want to only arrest for contempt rather than criminal process. It has never been more stark that the RCMP refuse to do their job under the Criminal Code — they want to arrest people under the contempt power.”

Given the lack of clarity and the possibility that many arrests may have been illegitimate, the BCCLA questioned whether an expansion of the injunction area could be justified.

“It’s bad enough that we may have dozens of unlawful arrests based on the existing, confusing injunction,” Paterson said.

“Any legal restrictions on constitutional rights of freedom of speech and assembly must be absolutely clear and must be as minimal as possible. Now the court is being asked to expand the zone that protesters are forbidden to enter, in the form of a request to ‘clarify’ the order. We can see no compelling legal justification to further restrict people’s right to demonstrate on Burnaby Mountain.”

Johannesson says the company also needs an extension to Dec. 12 to complete all of its work and remove its equipment, after which it will perform any remedial work with the City of Burnaby.