Trans Mountain Pipeline ULC Plaintiff v. David Mivasair, Bina Salimath, Mia Nissen, Corey Skinner (aka Cory Skinner), Uni Urchin (aka Jean Escueta), Arthur Brociner, 2018 BCSC 1070

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Trans Mountain Pipeline ULC v. Mivasair, 2018 BCSC 1070 Date: 20180618 Docket: S183541 Registry: Vancouver Between: Trans Mountain Pipeline ULC Plaintiff And David Mivasair, Bina Salimath, Mia Nissen, Corey Skinner (aka Cory Skinner), Uni Urchin (aka Jean Escueta), Arthur Brociner (aka Artur Brociner), Karl Perrin, Yvon Raoul, Earle Peach, Sandra Ang, Reuben Garbanzo (aka Robert Arbess), Gordon Cornwall, Thomas Chan, Laurel Dykstra, Rudi Leibik (aka Ruth Leibik), John Doe, Jane Doe, and Persons Unknown Defendants Before: The Honourable Mr.

Justice Affleck Oral Reasons for Judgment In Chambers The Plaintiff: No appearance Counsel for the Ministry of the Attorney General, B.C. Prosecution Service: M.R. Ruttan S.A. Hulko M.L. Crisp Counsel for the Defendant Clayton Thomas Muller: N.M.G. Chantler Counsel for the Defendant Natan Vilner: K.L.

Mirsky The defendant, appearing in person: William Burgess The defendant, appearing in person: Charles Coleman The defendant, appearing in person: Simin Eghali-Tabrizi The defendant, appearing in person: Johanna Hauser The defendant, appearing in person: Errol Povah The defendant, appearing in person: Kathrynn Roivas The defendant, appearing in person: Gareth Rowbotham Place and Date of Trial/Hearing: Vancouver, B.C. June 11-15, 2018 Place and Date of Judgment: Vancouver, B.C. June 18, 2018 [ 1 ] THE COURT: I reserve the right to edit these reasons for grammar, spelling, and syntax.

The result will not change. [ 2 ] I will begin by acknowledging the respect that each of the accused has shown this Court during the course of these trials. [ 3 ] William Burgess, Charles Coleman, Simin Eghali-Tabrizi, Johanna Hauser, Errol Povah, Kathrynn Roivas, Gareth Rowbotham, Clayton Thomas Muller, and Natan Vilner are each alleged to have committed the offence of criminal contempt of court in relation to events on March 17, 2018, at what is known as the Burnaby Terminal of Trans Mountain Pipeline ULC (hereinafter “Trans Mountain”). Each accused has pleaded not guilty and

summary trials have been conducted, relying to a large extent on affidavit evidence introduced by the Crown. [ 4 ] The criminal contempt alleged is the public defiance of an injunction pronounced by this Court on March 15, 2018. [ 5 ] The only provision of the injunction on which the Crown relies to define the nature of the alleged contempt reads: THIS COURT ORDERS THAT: 1. The Defendants, and any other person having notice of this Order, are hereby restrained and enjoined from:

(

a) physically obstructing, impeding or otherwise preventing access by Trans Mountain, its contractors, employees or agents, to, orwork in, any of the sites or work areas as set out below ... [6] And in subparagraph (ii) it reads: (ii) The Burnaby Terminal ... as indicated in the map attached at

Schedule "B" ... [7] The Crown does not rely on para. 2 which provides for a marked five-metre buffer zone. [8] In United Nurses of Alberta v. Alberta (Attorney General), (SCC), [1992] 1 S.C.R. 901, Madam JusticeMcLachlin, later Chief Justice, for the majority of the Supreme Court of Canada at page 932 of her reasons for judgment, wrote thefollowing regarding criminal contempt of court: … The gravamen of the offence is rather the open, continuous and flagrant violation of a court order without regard for the effect thatmay have on the respect accorded to edicts of the court.

And at page 933 wrote: To establish criminal contempt the Crown must prove that the accused defied or disobeyed a court order in a public way (the actus reus),with intent, knowledge or recklessness as to the fact that the public disobedience will tend to depreciate the authority of the court(the mens rea). The Crown must prove these elements beyond a reasonable doubt. As in other criminal offences, however, thenecessary mens rea may be inferred from the circumstances. An open and public defiance of a court order will tend to depreciate theauthority of the court.

Therefore when it is clear the accused must have known his or her act of defiance will be public, it may beinferred that he or she was at least reckless as to whether the authority of the court would be brought into contempt. … [9] The deponents of several affidavits offered by the Crown attended the trial for the purpose of cross-examination by theaccused.

I will describe some of the affidavit evidence, which included video and sound recording at the location of the driveway andentry gate located at 899 Shellmont Street in Burnaby, which is the location of the Burnaby Terminal referred to in the injunction. [10] Constable Hwan Lee was present on the afternoon of March 17, 2018, at the entrance to the Burnaby Terminal and had beenassigned the task of recording by video and audio what transpired. He deposes that a CBC News crew was present at that location andtime.

It is apparent from the video that there were many other people with cameras, there were many spectators, and there was a group ofpeople located adjacent to the entry gate to the Trans Mountain property. That property is separated from the surrounding area by achain-link fence, which included the entry gate, which was also chain-link and on rollers which permitted it to open. The gate was aboutseven metres in length.

Signage had been placed on the gate, obviously by protestors, that in large letters said, “Stop Kinder Morgan”,which is the name commonly used to describe the Trans Mountain facility in that location. [11] Constable Lee recorded video footage near the entry gate and the area between it and what the RCMP affidavits described as aprocessing area for those who they anticipated would be arrested that day for alleged disobedience of the injunction. [12] I note that the injunction contains a provision authorizing the police to arrest and remove any person who the police, onreasonable and probable grounds, believed was contravening the injunction. [13] An argument by defence counsel was made, with which all accused associated themselves, that the police did not havereasonable and probable grounds at that location on March 17, 2018, to effect arrests.

I do not agree with that argument. [14] It was the evidence of Constable Andrew McAuley that he was the tactical commander on the site of the arrests on March 17,2018. He had been informed that Trans Mountain had called the RCMP requesting assistance at the entry gate to the Burnaby Terminalas several protestors had strapped themselves to the gate. Constable McAuley went to the entry gate and saw 20 or more people seated orstanding next to the gate, some with their backs to the gate.

He observed that some had strapped themselves to the entry gate using zapstraps. [15] At that time, I find Constable McAuley had a subjective belief that the persons adjacent to the entry gate were violating theinjunction. I conclude that belief was objectively verified by what is seen in the video. It was not necessary for the Crown to satisfy methat the reasonable and probable grounds for arrest were anything more than reasonable and probable. A higher standard of proof is notrequired. It was not necessary for the RCMP to conclude convictions would follow from arrests. [16] I will read from R. v.

Lotfy, 2017 BCCA 418 at paras. 33, 34, and 35, which Ms. Hulko for the Crown brought to my attention: [33] ... “A peace officer exercising the arrest power [under s. 495(1)(b)] [of the Criminal Code] must provide some sensible reasonfor believing an offence was being committed by the person arrested.” [34] A two-part test is applied in determining the validity of a warrantless arrest ... In the context of s. 495(1)(b) [of the CriminalCode] the first stage involves factual determinations: (

a) whether the arresting officer subjectively believed the person arrested wascommitting a criminal offence in the officer’s presence; and (

b) the grounds for such belief, i.e., the factual matrix that informed theofficer’s decision. [35] If the Crown proves the officer held the requisite subjective belief, then the second stage involves determining whether theofficer’s grounds for that belief are objectively reasonable. This is a question of law . . . It involves determining whether, from anobjective perspective, it was reasonable for the officer to believe he or she had come across someone in the very act of committing acriminal offence. ... [17] I am satisfied the necessary grounds for a warrantless arrest were present.

[18] Constable Walker of the RCMP was asked by Constable McAuley to read the injunction to the group of protesters who were onthe driveway leading to the entry gate and to those who were sitting or standing near the entry gate. Constable Walker read theinjunction in a loud voice. [19] During the trial, all of the accused signed a formal admission that Constable Walker read the injunction to the individualspositioned in front of the gate at 8099 Shellmont Street at about 2:40 on the afternoon of March 17, 2018.

Constable Walker startedreading at para. 1 of the injunction and continued through to para. 17, which is the end of the text of the injunction. [20] As Constable Walker began to read the injunction, the protesters were relatively quiet and there is no doubt his voice wasaudible to those near the entry gate. When he had read to about the end of para. 1, the protesters began to chant, sing, and drum in anobvious attempt to drown out the sound of Constable Walker's voice.

I am satisfied that they heard at least the portion of the injunction Ihave earlier read as part of these reasons. [21] The RCMP, in anticipation of the need to make arrests, had assembled a team of nine officers to process those who were likelyto be arrested. As is seen in the video, as each person was arrested, he or she was cut free from the straps that many had used to attachthemselves to the entry gate, and then each was led away to a processing area which was about 60 metres from the entry gate. At thatlocation, tables and chairs had been set up for those who were arrested.

Each member of the processing team had a booking sheet,otherwise referred to as an arrest script, a promise to appear, an undertaking to appear, a copy of the injunction, and a statement ofservice. [22] This was the second time each of those arrested was given a copy of the injunction.

The first occasion was at the entry gatewhen each person was handed a copy of the injunction and given time, well in excess of the ten minutes provided in the injunction, toconsider the injunction and leave the area of the entry gate if he or she chose to do so and thereby avoid arrest. [23] A copy of the booking sheet, the arrest sheet, the promise to appear, the undertaking to appear and the statement of service wasgiven to each person arrested. Each read the promise to appear and the undertaking to appear and each signed them.

Each person whohad been arrested and processed was photographed while holding the booking sheet, on which was written their name and their date ofbirth. Copies of each of those documents became evidence at the trial. [24] All of the accused before me were processed in the manner I have described and their photographs made them readilyidentifiable in the courtroom throughout the trial. [25] None of the evidence I have described in these reasons was significantly challenged at the trial.

I have no doubt that each of theaccused was adjacent to or strapped to the entry gate on March 17, 2018, and was arrested and processed as I have described. Thedefences put forward for them do not challenge those facts. They rest on other grounds. The first is that the RCMP did not havereasonable and probable grounds to make the arrests. I have already rejected that ground. [26] The second ground is that in contempt proceedings, the principle of strictissimi juris applies. In English, that expression, for thepurposes of these trials, means that strict

interpretation of the injunction must prevail to the benefit of the accused. I accept that ascorrect. [27] The strictest

interpretation is said by the accused, all of whom adopted the submissions of Ms. Mirsky and Mr.

Chantler, to bethat there must have been an actual physical obstruction, impedance, or prevention of access by the accused of Trans Mountain, itscontractors, employees, or agents of access to the Burnaby Terminal on March 17, 2018. [28] It is submitted that the accused cannot be found guilty of criminal contempt of court for defiance of the injunction unless avehicle or person who can properly be described as Trans Mountain or one of its contractors, employees, or agents, attempted on theafternoon of March 17, 2018, to gain access to the Burnaby Terminal through the entry gate and was physically obstructed, impeded, orprevented from doing so. [29] The accused did not submit the use of the phrase “physically obstructed, impeding, or otherwise preventing access” in theinjunction is vague or uncertain.

On the contrary, they submit it is crystal clear and means, for the purposes of these trials, that theCrown must prove beyond a reasonable doubt that there was actual obstruction, impedance, or prevention of access through the entrygate. [30] In argument, the accused did not offer authorities to support that proposition, but relied upon the doctrine of strictissimi juris. [31] The Crown submits the argument of the accused is wrong in law.

The Crown relies on Newfoundland (Attorney General) v.N.A.P.E., (SCC), [1988] 2 S.C.R. 204, where at page 212, Chief Justice Dickson for the court wrote the following: Counsel for the appellant stressed that in their ex parte application for injunctive relief and at the later contested court hearing, theAttorney General for the Province of Newfoundland and William Chafe did not enter any evidence establishing that the picketing of thecourt-house had interfered with persons entering or leaving the court-house or that the picketing had interrupted or affected any of thecourt proceedings.

It was said that there was no evidence of intimidation, coercion, or violence to establish actual or probableinterference with the administration of justice. In the B.C.G.E.U. case the picketing was peaceful; there was no violence or threats ofviolence. The argument presented in the case at bar was presented in that case, and rejected [as] ... The very purpose and intent of the picket line in a labour dispute is to discourage and dissuade individuals from entering the premiseswhich are being picketed ... A picket line ipso facto impedes public access to justice.

It interferes with such access and is intended to do so. A picket line has greatpowers of influence as a form of coercion. … [32] That case was of course decided in the context of picketing in a labour dispute, where the presence alone of a picket line will

dissuade many people from entering premises which are the subject of the picket line. But, as held in Alumicor Limited. v.

United Steel,Paper and Forestry, 2011 ONSC 1707, if a picket line which otherwise would be lawful operates as a physical obstruction of lawfulentry to a business, that would become unlawful. [33] The Crown invites me to take a similar approach to that in the Newfoundland case in these prosecutions by finding that thepurpose of the injunction of March 15, 2018, was to facilitate free access by Trans Mountain and its contractors, employees, and agentsto its private property at any time of their choosing, that it was the clear intent of the accused to prevent free access, and it matters not,submits the Crown, whether Trans Mountain, its contractors, employees, or agents attempted to go through the entry gate on March 17,2018 and were prevented by the accused from doing so. [34] The Crown also relies on MacMillan Bloedel Ltd. v.

British Columbia (Attorney General) (1996), (BC CA),22 B.C.L.R. (3d) 137, where one of the accused advanced the defence that he did not actually interfere with or impede logging activity inviolation of the injunction in place in that instance.

The BC Court of appeal in agreeing with the reasoning of Chief Justice McEachern,concurred that that the accused, by his presence alone in the work area, interfered with and impeded logging operations, even thoughthey were not actually being carried out at that time. [35] The Crown submits that the offence of criminal contempt of court was complete when the accused before me stood or sat nextto the entry gate and, in some instances, used plastic zap straps to attach themselves to the entry gate, which was the actus reus of theoffence which took place on a public occasion.

This occurred, the Crown alleges, with the intent or knowledge of the accused and that todo so was defiance of the injunction or there was a reckless disregard as to whether it was a defiance of the injunction and thereforewould tend to depreciate the authority of this Court. [36] The Crown adds that there is a compelling policy reason behind the legal principle that there need not be evidence of an actualphysical obstruction, impedance, or prevention of access to support a conviction for contempt of a court order which prohibits suchobstruction.

Experience has shown, argues the Crown, that in situations such as that at the Burnaby Terminal on March 17, 2018,emotions on the part of protesters and, in all likelihood, employees who cannot go to work, run high. To require Trans Mountain toattempt to gain access to the terminal in the face of protesters who were blocking the entry gate with several strapped to it would havecreated a risk of violence. [37] I agree with the submissions of the Crown.

I find the protesters who placed themselves adjacent to the entry gate with somestrapped to it were thereby physically obstructing, impeding, or otherwise preventing access by Trans Mountain, its contractors,employees, or agents to the Burnaby Terminal. [38] The law does not require that Trans Mountain, its contractors, employees, or agents were obliged to approach the entry gate andto be actually physically obstructed, impeded, or otherwise prevented from gaining access to the terminal. [39] I will comment on an argument advanced by Ms. Mirsky. As I understand Ms.

Mirsky’s submission, it was to the effect that theCrown could have offered evidence explaining why there was no attempt by Trans Mountain, its contractors, employees, or agents togain access to the Burnaby Terminal through the entry gate on March 17, 2018, but failed to do so when it offered Mr. Haring’saffidavit, which Ms. Mirsky says is defective. [40] Ms. Mirsky submitted the affidavit deposes to matters not within Mr. Haring’s knowledge, that hearsay is not permitted in acriminal contempt trial, and that the affidavit lacks the detail that ought to have been provided. I will read the affidavit of Mr.

Haring: I, Peter HARING, of Clearwater, British Columbia, MAKE OATH AND SAY AS FOLLOWS: 1. I am the Regional Site Security Manager of Trans Mountain Pipeline ULC ... 2. I have personal knowledge of the facts and matters hereinafter deposed to, except where stated to be upon information and beliefand, where so stated, I verily believe the same to be true. 3. As Regional Site Security Manager for Trans Mountain [Pipeline], I am responsible for monitoring protest activity at TransMountain's Burnaby terminal, located at 8099 Shellmont Street (the "Burnaby Terminal") and contacting the RCMP for assistance. 4.

The main entry to the Burnaby Terminal is through a gate that spans the Burnaby Terminal's driveway (the "Entry Gate"). 5. I am aware of the Injunction Order granted on March 15, 2018 by the Honourable Justice Affleck of the Supreme Court of BritishColumbia ... and the provisions therein. After the Injunction Order was granted, I ensured that copies of the Injunction Order were postedat regular intervals on the fence surrounding the Burnaby Terminal and on the Entry Gate. 6. I was working at the Burnaby Terminal on March 17, 2018. On that date regular terminal operations were to continue. 7.

I was aware of the potential of a large protest that may result in a blockage of our Entry Gate. As a result of this information I madealternate arrangements to ensure employees could enter. This was accomplished by modifying shift start times and rerouting personalvehicles through the Regional Gate. Due to the configuration of the Regional Gate large trucks and large Fire Response Vehicles cannotenter. The Entry Gate is required for all normal and emergency operations of the Burnaby Terminal. 8. At 10:53 a.m., the Entry Gate was blocked by protestors, preventing regular terminal operations. 9.

At 1:48 p.m., protestors secured themselves to the Entry Gate with plastic straps. This action rendered the gate inoperable. Anymovement of the gate could result in serious injury to any person secured to the gate. 10. I contacted the RCMP to request assistance. RCMP attended and at 6:10 p.m. the Entry Gate was clear and regular terminaloperations resumed.

[ 41 ] I note that although Mr. Haring deposes that he has personal knowledge of the facts in his affidavit, except where he relies on information from others, I find that his affidavit does not contain hearsay evidence. In particular, the paragraph that begins, “I was aware of the potential of a large protest that may result in a blockage of our entry gate” is not hearsay. Mr. Haring was explaining his reasons for making alternate arrangements to permit access by personal vehicles of employees of Trans Mountain to the Burnaby Terminal; namely through what he called a regional gate.

I accept his evidence that he made those arrangements. [ 42 ] Mr. Haring was offered for cross-examination at the trial. There was none. [ 43 ] I do not agree Mr. Haring’s affidavit is defective. The accused cannot take advantage of their anticipated blockage of the entry gate, which was their intention, which anticipated blockage caused Mr. Haring to divert traffic to a regional gate, to argue with any plausibility that, because no traffic actually came to the entry gate while they blocked it, they cannot be found to have defied the injunction. [ 44 ] I reject the arguments of Ms. Mirsky and Mr.

Chantler which were adopted by the accused. [ 45 ] I wish to comment in particular on the case against Kathrynn Roivas. Ms. Roivas testified in her evidence in chief that she was not aware of the injunction when she attended at the entry gate next to the Burnaby Terminal on March 17, 2018, where she is seen in the video in front of the entry gate or adjacent to it and next to the guard house. Ms. Roivas is clearly a woman of strongly-held convictions and manifest sincerity. Nevertheless, I cannot accept her evidence that she was not aware of the injunction.

She was certainly aware of it when it was read to the protesters by Constable Walker and she has admitted that fact. I believe she was aware of the injunction throughout March 17, 2018. [ 46 ] In cross-examination, the following exchange took place between Crown counsel and Ms. Roivas: Q You were acting as guardian for the group that was in front of the gate? A Yes, to ensure no harm came to them. Q You wanted to stay and be part of the group as long as possible? A Yes.

Q And so you knew that staying was breaching the injunction, but you chose to provide support to your group as your primary decision, your objective? A Yes, that is correct. Q And so you stayed on the pavement or beside the pavement, knowing that you were breaching the injunction but deciding it was worth the risk, so that you could continue to provide your spiritual or ceremonial support? A Yes. Q You were trying to add your support to the group that was occupying the driveway? A You're not suggesting I was leading the group? Q No, but you were joining the group. A At that moment in time, that could be an

interpretation. [ 47 ] I view that evidence and Ms.

Roivas’ admission as inconsistent with her argument that she was not aware of the injunction. [ 48 ] I am persuaded beyond a reasonable doubt that William Burgess, Charles Coleman, Simin Eghali-Tabrizi, Johanna Hauser, Errol Povah, Kathrynn Roivas, Gareth Rowbotham, Clayton Thomas Muller, and Natan Vilner are each guilty of criminal contempt of court by participation in the public defiance on March 17, 2018, of the injunction which was pronounced on March 15, 2018, by physically obstructing, impeding, or otherwise preventing access by Trans Mountain, its contractors, employees, or agents, to the Burnaby Terminal. [ 49 ] I want to remind everyone in this courtroom that the injunction which prohibits blockage of access to the Burnaby Terminal expressly provides that the defendants and others are at liberty to engage in peaceful, lawful, and safe protest of the building of the pipeline. “The Honourable Mr.

Justice Affleck”