Pipe­line protesters out on bail pend­ing ap­peal

Vancouver Sun - - CITY - KEITH FRASER kfraser@post­media.com twit­ter.com/ kei­thrfraser

Four of the protesters con­victed af­ter block­ing ac­cess to Kin­der Mor­gan’s Trans Moun­tain pipe­line project have been re­leased on bail pend­ing ap­peals of their jail sen­tences.

In Oc­to­ber, Kira McLean, Brenda Mor­rice, Deb­o­rah Ann Wood and Kathryn Cass each pleaded guilty to one count of crim­i­nal contempt of court.

McLean and Mor­rice were ar­rested at the Burn­aby protest site Aug. 20 while Wood and Cass were taken into cus­tody by RCMP on Aug. 24.

B.C. Supreme Court Jus­tice Ken­neth Af­fleck, who is­sued the court in­junc­tion lim­it­ing the protests, sen­tenced each of the four of­fend­ers to 14 days in jail. He took into ac­count a num­ber of fac­tors in­clud­ing that while the protesters be­lieved the pipe­line had to be stopped, they were par­tic­i­pat­ing in an or­ga­nized pub­lic and mass de­fi­ance of the or­der of the court.

Af­fleck noted that the Crown had made a pub­lic state­ment of its in­ten­tion to seek terms of im­pris­on­ment for later ar­rests and guilty pleas.

To date, there have been a to­tal of 231 ar­rests, ac­cord­ing to fig­ures pro­vided by the Crown.

There have been 186 con­vic­tions or guilty pleas. The Crown did not pro­ceed against 17 and one was ac­quit­ted. The re­main­ing 27 have their tri­als sched­uled for later this year or early next year.

The protesters who were dealt with ini­tially got fines or were or­dered to per­form com­mu­nity ser­vice. But as the ar­rests mounted, the judge started to im­pose jail sen­tences.

The ar­rests came to an end af­ter a Fed­eral Court of Canada rul­ing in late Au­gust re­sulted in work on the project be­ing sus­pended.

In a rul­ing on the bail de­ci­sion for the four protesters, B.C. Court of Ap­peal Jus­tice Bar­bara Fisher noted that to suc­ceed in ob­tain­ing re­lease pend­ing a sen­tence ap­peal the ap­pel­lants needed to have an ap­peal with suf­fi­cient merit that it would cause un­nec­es­sary hard­ship if they were de­tained.

The ap­pel­lants also needed to prove that they would even­tu­ally sur­ren­der into cus­tody when the ap­peal was heard and that their de­ten­tion was not nec­es­sary in the pub­lic in­ter­est.

The Crown op­posed both an ap­pli­ca­tion for leave to ap­peal the sen­tences and the re­lease pend­ing the ap­peal.


Pros­e­cu­tors ar­gued that the judge made no er­rors in prin­ci­ple and that the 14-day jail terms were not demon­stra­bly un­fit. The Crown said it con­sid­ered the of­fences to be se­ri­ous ones.

Jus­tice Fisher said she agreed that the of­fences were se­ri­ous be­cause crim­i­nal contempt is a chal­lenge to the rule of law and agreed that the judge was right to em­pha­size that gen­eral de­ter­rence and de­nun­ci­a­tion were para­mount prin­ci­ples.

“How­ever, I am not con­vinced that th­ese ap­peals have in­suf­fi­cient merit to meet the test for leave and for re­lease pend­ing ap­peal.”

Fisher said Af­fleck was right to be con­cerned about con­tin­ued breaches of the court or­der.

“He was also rightly con­cerned about those who came be­fore him know­ing full well that the Crown would be seek­ing es­ca­lat­ing sen­tences,” she said.

“How­ever, the ap­pel­lants raise a valid point as to whether that fact was one that should have been con­sid­ered an ag­gra­vat­ing fac­tor that re­quired proof by the Crown be­yond a rea­son­able doubt.”

The ap­pel­lants were re­leased on an un­der­tak­ing to re­turn to court Jan. 31 next year or the date set for the ap­peal, which­ever is first. The rul­ing was posted on­line Fri­day and given out orally Nov. 1.


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