Court Process Troubles Protesters’ Lawyer

Decision to seek criminal contempt raises stakes for defendants, expert says

A lawyer for more than a dozen protesters arrested at Kinder Morgan’s Trans Mountain Pipeline project has criticized the court process that has been set up to deal with the case.

On Wednesday, Chilwin Cheng told B.C. Supreme Court Justice Kenneth Affleck that he appreciated the need for case management of such a large file as well as the “unusual circumstances” of the matter.

But, he said, the expedited schedule set for the case, including court appearances for April 23 and April 30, is problematic because he’s not available on those dates, which affects his clients’ constitutional right to a lawyer of their choice.

“My client has chosen me and I’m humbled by that. In that respect, I’m doing the best I can. And this process, this factory cookie-cutter process, is not going to work for my client because I’m not available in the next two weeks.”

The judge said: “That is regrettable. The fact is these matters have to be dealt with expeditiously.”

Voices in the packed Vancouver courtroom, where 140 protesters were making their first appearances in the case, rose up in volume at the judge’s comments.

“It needs to be dealt with justly, my Lord,” said Cheng.

The standing-room only crowd in the Vancouver courtroom clapped loudly at Cheng’s comments.

Crown counsel Trevor Shaw told the court that the prosecution wasn’t going to be engaged in a cookie-cutter process.

“These cases will be evaluated by us and, I’m sure, evaluated by the court in an individual fashion. I want everyone to be assured of that in terms of what’s going on here today.”

The judge told the protesters that, while Cheng had used “some rather harsh language” to describe the court process, it was his intention to move the cases along expeditiously and fairly.

He said that the accused will be entitled to ask questions in their defence, and if they choose to give their own evidence and call witnesses, they will be entitled to do so.

“But I repeat that the issues are narrow, and on issues of whether the pipeline is an environmentally wise structure, I will not hear that evidence.”

The judge heard Monday that the Crown at his request had taken over conduct of the case from the company and that they would be looking at criminal contempt of court proceedings given the public nature of the protesters’ defiance.

The first trial is scheduled for May 7 for 10 protesters arrested on March 17.

Outside court, Diana Hardacker, one of the protesters facing contempt charges, said she was willing to accept the consequences of a possible conviction.

“If we don’t stick up for this beautiful planet that we live on, so that we can continue to live on it, who is going to? I have grandchildren and I want them to have a healthy, sustainable, livable future.”

Another of the protesters questioned whether he and the others had committed any crimes.

“I don’t know anyone who stood in front of that chain link fence who considers themselves a criminal. How is this a criminal act? Did

This factory cookie-cutter process is not going to work for my client because I’m not available in the next two weeks.

we disobey the law? Yes. Are we in civil contempt? Yes. That was fully expected, but that does not make a criminal act.”

Brent Olthuis, a lawyer familiar with issues surrounding contempt of court, said the decision to involve the Crown and seek criminal as opposed to civil contempt of court proceedings raises the stakes for the protesters.

“So, in other words, imprisonment is possible for a civil contempt. It is more likely with a criminal contempt,” said Olthuis, a provincial council representative of the Canadian Bar Association’s B.C. branch.

Similarly, the length of prison time might be greater for criminal as opposed to civil contempt, he added.