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Posted in: Canada (Federal) | British Columbia | Practice & Procedure

Jun 10, 2019

Breach of Court Order Leads to Jail Time

By Cynthia R. C. Sefton

The British Columbia Court of Appeal has dismissed an appeal from an order of the province’s Supreme Court, in which that court sentenced a number of individuals to 14 days imprisonment each. The individuals who appealed pleaded guilty to violating an injunction order which restrained protestors from obstructing access to Trans Mountain Pipeline ULC (Trans Mountain) work sites in Burnaby.

The four individuals who appealed their jail terms were among 196 individuals convicted of criminal contempt of court for the manner of their protests against the pipeline project.

The proceedings started in March 2018 when Trans Mountain filed a claim in which it was alleged that various people were illegally blocking access to its work sites. The company also sought an injunction which prohibited protestors from interfering with the construction of the pipeline. The court issued an injunction which prohibited anyone with notice of the order from physically obstructing, impeding or preventing access to the sites or work areas. Shortly after the injunction was granted, numerous people were arrested by the RCMP for allegedly defying the order. It should be noted that the injunction did not prevent peaceful, lawful and safe protest of the building of the pipeline.

The Attorney General of British Columbia intervened in Trans Mountain’s motion for civil contempt and assumed conduct of the proceedings. Those arrested were advised by the Crown counsel that they would be criminally prosecuted for the common law offence of criminal contempt of court.

In the months that followed, further work sites were added to the injunction order. As well, the Crown filed documents setting out the Crown’s approach to sentencing and outlining various categories of penalties that would be sought, which included varying days of jail terms.

Supreme Court Reasons for Sentence

The sentencing court accepted the range of sentences put forward by the Crown. The judge emphasized that the rule of law, which includes court orders, is a Canadian constitutional value and, further, that the court has the power to uphold the rule of law by the enforcement of orders and ensuring respect for the court’s processes. The court said that specific deterrence of the four individuals before the court was likely only a minor consideration. However, general deterrence of others continued to be a relevant factor. The court stated, “other members of the general 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.” The court did not accept the argument that jail terms would be inappropriate.

The Appeal

On appeal, the individuals argued that they were not given adequate notice of the Crown’s position that there ought to be escalating punishment, including jail time. Primarily they argued that the sentencing court overemphasized the goal of general deterrence to others.

Appellate courts do not lightly interfere with sentencing courts’ decisions. There has to be a “…marked departure from the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

The appeal court found there is no general requirement that the Crown or the police give would-be offenders notice of the Crown’s sentencing position in advance of the commission of an offence, and further that there was no such requirement for the offence of criminal contempt.

As well, there was evidence that the individuals were in fact informed prior to their arrests that if they continued their illegal conduct, they could be arrested and charged and could be sentenced to jail time. Finally, knowledge of the court’s injunction order (which these individuals all had) was enough to establish criminal contempt of court, if the Crown proves beyond a reasonable doubt, that “…the accused defied or disobeyed a court order in a public way… with intent, knowledge or recklessness as to the fact that the public disobedience will tend to depreciate the authority of the court.”

In arguing that the sentencing court’s imposition of jail time for first time offenders overly emphasized general deterrence to others, the individuals said that the sentences failed to consider whether less restrictive punishment would have been sufficient, especially because the individuals had expressed remorse and the protests had stopped at the time of sentencing.

The appeal court noted that contempt of court was the only remaining common law offence in Canada. The principal sentencing goals were “denunciation and deterrence.” The appeal court quoted a 1952 decision: “One law broken and the breach thereof is but an invitation to ignore further laws and this, if continued, can only result in the breakdown of the freedom under the law which we so greatly prize.”

Conclusion

The underlying conduct supporting the injunction and the criminal contempt convictions and sentencing were undoubtedly a long and arduous process for all involved. The sentencing court pointed out that the individuals behaved peacefully at the time of their arrest, held the belief that the pipeline had to be stopped, and that each was a valuable member of their community and society.

However, this was not about beliefs, no matter how sincerely held, or about the fact that fortunately no one was injured during the protests. It was not even about the undoubted delays and costs which may have been caused by the protests.

Rather the decision was about respect for orders of the court and the rule of law.

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