TOP TRIAL JUDGE FED UP WITH PROTESTERS
Lawyers lambaste Hinkson's call to hit CRAB demonstrators with criminal charges
Chief Justice Christopher Hinkson has never liked scofflaws — never.
A decade ago, the top judge at the B.C. Supreme Court hammered a scam artist with a rare 21-day jail sentence for civil contempt.
Those who would endorse Indigenous blockades, tent cities and other civil disobedience had better take note — B.C.'S top trial judge is not amused.
In a stern ruling sparked by an application from the Vancouver Fraser Port Authority, Hinkson has asked Attorney General David Eby to consider criminal contempt charges for 11 of the about 45 protesters arrested in June over the CRAB Park encampment beside Burrard Inlet.
Lawyers for those singled out denounced the move, which could mean significantly increased punishment if the B.C. Prosecution Service picks up the gauntlet.
“Here are the most disadvantaged people in society, in the middle of a pandemic, trying to make homes on what was essentially an empty parking lot and that was going to stay an empty parking lot for months,” complained Surrey lawyer Amandeep Singh.
“Why are they being punished more than they should at this point? People coming out in solidarity with people who are really, really disadvantaged and who have fallen through the cracks?”
Hinkson appeared to be reacting to a year of protest, with disruptions from the Wet'suwet'en blockades to the Trans Mountain Pipeline demonstrations.
“This has been a unique year in many different ways and there have been a lot of actions, but again this whole thing about criminal contempt — it's not a law, unfortunately, it's really unfortunately a misnomer,” Singh said.
“It puts the stigma on a generally law-abiding person who takes a civil disobedience action and places the label of criminal on them when ... you don't get criminal charges. You don't get a criminal record.”
Hinkson's decision is a rare one but there have been a handful of similar requests in recent years.
Most significantly, in 2018, the Prosecution Service responded to the court's call and some of those who breached a Trans Mountain Pipeline injunction were cited for criminal contempt. The B.C. Court of Appeal upheld sentences of 14 days in jail for four individuals.
The high bench underscored that members of the public “who may be tempted to pick and choose the court orders that they will obey, either in this situation, or in others, must be deterred from flouting orders of the court.”
Another lawyer for the protesters, Michelle Silongan, said there should be an escalating scale in civil disobedience cases as in Trans Mountain — people arrested at the beginning of that protest were given fines and community service, only those arrested months later were incarcerated.
Hinkson quoted a decision written by Beverley Mclachlin when she was Supreme Court of Canada chief justice: “The rule of law is at the heart of our society; without it there can be neither peace nor order nor good government. The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect.
“A person who simply breaches a court order, for example by failing to abide by visiting hours stipulated in a child custody order, is viewed as having committed civil contempt. However, when the element of public defiance of the court's process in a way calculated to lessen societal respect for the courts is added to the breach, it becomes criminal.”
Hinkson said he hadn't made his mind up about whether the CRAB Park protesters were guilty of criminal contempt, but he sounded like he leaned that way: “I am making no finding as to the nature of the contempt that ought to be found. … I only say that there is evidence here which, if accepted, may support a finding of contempt which is criminal in nature against the defendants on this application.”
He insisted “the court must uphold its dignity and process and the importance of the rule of law in our democratic society.
“It is not for me to say whether or not a criminal prosecution of the defendants is a wise or unwise use of public resources, but I anticipate that the attorney general will weigh that matter against the importance of the rule of law in our democratic society.”
Singh said the dispute was between private parties and could be satisfactorily litigated without the Crown intervening: “If the port wants to proceed, they can proceed privately. There's no need for taxpayers, for us to go and pick up the cost for them.”
Hinkson rejected that: “This submission fails to appreciate the need for orders of this court to be enforced in order to uphold its dignity and the rule of law. That transforms the matter far beyond a dispute between private parties.”
The prosecution service said it will “conduct a detailed review of the available evidence and circumstances put before the Court under our charge assessment and civil disobedience policies.”
Singh said submissions would be made to the attorney general — had the protesters known they were going to be charged with criminal contempt perhaps they would have taken a stand and then moved aside.
“There is a question of fairness here,” he said.