Prosecutors asked to consider criminal contempt charges for Coastal GasLink protesters

A B.C. Supreme Court judge has asked prosecutors to consider criminal contempt charges against more than two dozen people accused of defying a court order that prevents them from interfering with the construction of a controversial pipeline.

Justice Marguerite Church invited the B.C. Prosecution Service on Wednesday to bring charges against 27 individuals arrested last fall in a series of blockades and actions opposing the Coastal GasLink pipeline, which would transport natural gas across northern B.C.

The invitation came at the request of the company's lawyer, who argued the protesters wilfully breached an injunction Church issued in 2019, knowing their defiance would receive widespread public attention.

"It is apparent from the evidence before me that the protest actions have escalated since 2019, and there is evidence, which if accepted, may support a finding of criminal contempt," Church said.

"It is clear from the evidence before me that there is an important public interest in fostering a respect for the rule of law. The conduct alleged is defiant of the rule of law, and such conduct depreciates the authority of the court."

'The additional public defiance aspect'

If completed, the 670-kilometre pipeline would run from near Dawson Creek in the east to Kitimat on the Pacific coast.

The project has been the subject of ongoing protest in recent years backing the objections of Wet'suwet'en hereditary chiefs, who say Coastal GasLink does not have consent to cross their territory.

The company has signed benefit agreements with 20 band councils along the route of the project. But the hereditary leadership says band councils do not have authority over land beyond reserve boundaries.

Wednesday's court proceedings mark the third time Church has invited the prosecution service on behalf of B.C.'s Attorney General to consider criminal contempt charges against pipeline protesters.

On both previous occasions — in 2019 and 2020 — prosecutors declined to pursue criminal charges.

The court proceedings highlight the difference between criminal and civil contempt charges. 

Coastal GasLink lawyer Kevin O'Callaghan said both civil and contempt charges require "proof of intentional act or omission in breach of a clear order."

"The distinction is the additional public defiance aspect in criminal contempt,"  O'Callaghan said.

"We say that the acts of these individuals ... are displays of public defiance of an injunction order, and therefore criminal contempt."

'Not making any confessions'

As he argued for prosecutors to get involved, O'Callaghan ran through the allegations against both individuals and groups of people who were arrested last fall.

Protesters are accused of using Coastal GasLink's heavy machinery to damage forest service roads and bridges, preventing contractors from doing their jobs.

O'Callaghan noted that one protester who allegedly used a device known as a "sleeping dragon" to chain himself to the underside of a bus was also arrested in June 2021 for assaulting a police officer at a protest against old-growth logging in the Fairy Creek watershed.

"And so [he] should have been aware of the publicity that goes along with such protests," O'Callaghan said.

The company lawyer also cited the arrests last November of journalists Amber Bracken and Michael Toledano, who were taken into custody by RCMP even as they identified themselves as members of the media.

O'Callaghan said the company decided not to pursue contempt charges against Bracken or Toledano, but said their presence at the protest camp would have signalled to a group of people arrested at the same time that their defiance would receive widespread attention.

Church said the "actions of the protesters and the enforcement action undertaken by the police has attracted considerable local, national and even international attention."

"There has been extensive use of mainstream media and social media to attract attention to the actions of the protesters," Church noted.

Defence lawyer Frances Mahon represents 26 of the 27 protesters. She agreed with O'Callaghan that the evidence — if accepted — would be enough to establish a charge of criminal contempt.

"Although I want to make it clear that we're certainly not making any confessions in that regard, and that we do intend to vigorously defence these allegations," Mahon said.

Crown lawyer Trevor Shaw was also dialled into the virtual proceedings. He told the judge he had nothing more to add at this point in the process.

No date has been set for the B.C. Prosecution Service to announce its decision on criminal contempt charges.