The fuzzy thinking of Canada’s mainstream political establishment is driving some good citizens to despair.
DAVID DODGE, a former Bank of Canada governor, recently gave a speech in Edmonton in which he predicted “there are some people that are going to die in protesting construction” of the Trans Mountain pipeline. As reported in the Edmonton Journal, he was warning his audience to be prepared, that the deaths would be a test of will for the Canadian government and its people, but certainly not a reason to stop the pipeline. “It’s going to take some fortitude” to face the deaths and continue, he said, but continue we must: “We have to understand this is a resource where the long-term viability isn’t there, not because we’re running out of muck in the ground, but because we actually, collectively, as the globe, are going to have to stop using as much of this stuff.”
Dodge obviously understands the dictates of global climate change. His response is to urge Canadians to continue to exploit the main source of the problem in the closing window of time we’ll be allowed to. Even if it means people die.
Meanwhile sensible, caring people who try to stand in the way of such exploitation are viewed as fanatics and felons.
MURRAY REISS, an award-winning poet who lives on Salt Spring Island, is 72 years of age, just a few years younger than Mr Dodge. Arrested on March 23 for standing in front of the entry gate to Kinder Morgan’s Trans Mountain expansion construction site, he told BC Supreme Court Justice Kenneth Affleck: “nothing less than the impending end of the world gets me to put my body on the line. I wish I was exaggerating. Tripling the Trans Mountain pipeline’s capacity will recklessly escalate tar sands extraction. James Hansen, who knows as much about the science of climate change as anyone, has stated, repeatedly: maximum tar sands exploitation puts civilization at risk.”
“The laws of physics are non-negotiable,” continued Reiss, “the notion of selling more fossil fuels today to pay for climate action tomorrow is sheer delusion. By that ‘tomorrow’…runaway global warming will be locked into the system. Already every year—almost every month—sets a new record for heat, for flooding, for wildfires, drought.”
Lisa Baile of Pender Island, also in her 70s, had a long career as a medical researcher. The long-time mountaineer, wilderness educator, and author of the book, John Clarke, Explorer of the Coast Mountains, told Judge Affleck: “Knowing that climate change is reaching an irreversible tipping point, I cannot stand by and allow this pipeline to be built knowing that it will be contributing to a local and global catastrophe. I have to stand up for my home, the coast of BC and the planet—to do my utmost to leave a better world while there is still a chance—for my three-year-old granddaughter, my two grandsons and for all the youngsters and unborn children in the world. To do nothing would be irresponsible.” She is doing her 25 hours of community service at an alternative transportation organization.
Reiss and Baile are among the 203 people arrested and charged, mostly with criminal contempt of court, for protesting on Kinder Morgan’s construction site after the court granted the company an injunction—an injunction that now covers all BC work sites related to the pipeline. Criminal contempt is a step up from civil contempt. According to BC Civil Liberties Association, criminal contempt is “where a court order is breached, but the nature of the conduct interferes with the public’s interest in the ‘proper administration of justice.’”
Kris Hermes works with Terminal City Legal Collective and Protect the Inlet Coalition, helping to demystify the legal system for the protesters. He’s in court every day taking notes and reporting by email to arrestees what the judge is saying so people are more aware. He feels that from the beginning there seem to have been problems with the administration of justice. For instance, notes Hermes, “Despite being told by the RCMP that they were being charged with civil contempt of court, and signing a PTA [Promise to Appear] to that effect, arrestees were surprised to find out [later] they were being prosecuted for criminal contempt of court.”
He also notes that “people of colour and indigenous land defenders were often treated with a heavier hand, with some being violently arrested by the RCMP.”
Unlike other criminal court cases, arrestees are not being given access to “duty counsel” to make sure they understand the process and what pleading guilty means. As well, the vast majority of those arrested, says Hermes, fall into an income bracket that makes them ineligible for legal aid—which has a high threshold these days—yet unable to afford a lawyer.
Thus many people are representing themselves, which makes for interesting court sessions, says Hermes. They are given a bit of latitude by the judge but “they are often pleading guilty without advice of a lawyer on how to defend themselves.”
“A lot of people are struggling with this process,” says Hermes. “This has been raised numerous times…but the court seems not to care.” One defence lawyer complained in court that defendants were being subjected to a “factory cookie-cutter process” geared to expediting the 203 cases through the courts. Judge Affleck admitted he was aiming for an expeditious, though fair, process and added, “the issues are narrow, and on issues of whether the pipeline is an environmentally wise structure, I will not hear that evidence.”
Instead, the judge has ruled that people’s defence is limited to consideration of the evidence put forth by the Crown—were they standing or sitting at the gate or not? Despite that, says Hermes, there have been attempts to use unorthodox defences—“the necessity defence” for instance. The judge, however, ruled against it as there wasn’t evidence of “imminent peril,” and defendants had not exhausted all of their legal defences. They could, for instance, challenge or appeal the injunction (a costly process, no doubt).
The statement made in court by Barbara Stowe, a writer and movement teacher who lives on Pender Island, illustrates the gulf between the expeditious legal process and a citizen’s moral sense: “Coming to this court with no criminal record, never having been arrested before, I have been overwhelmed by this process and had much need for guidance. I recognize the fortunate position I am in, having legal counsel, and perceive that many have none and are at a disadvantage.” In pleading guilty, Stowe told the judge “if such a plea were allowed, nolo contendere would more accurately reflect what I feel in my heart, which is that I am guilty, but acted solely to oppose a greater crime. When doctors, professors, politicians and faith leaders start committing civil disobedience, it begs the question: who and what is the real danger to our society, to all that we hold dear? Are people sitting in front of a fence, putting their freedom at risk, willing to pay fines and do community work service or go to jail, displaying a greater contempt for the law than those riding roughshod over the rights and safety of tribes, communities, cities, this province, and the environment that sustains us all?”
Stowe’s brother, a physician, also protested and was arrested. He was fined $500, while Barbara will serve 25 hours of community service. She and her probation officer will determine where.
WHILE WE HEAR ALL SORTS OF STORIES that give the impression that our justice system is terribly bogged down and slow, they are moving through the pipeline protesters’ cases quickly.
The efficiency is due in part to a Crown-approved roster of sentences issued on May 23. The document shows how sentencing is being used to deter those charged from pleading not guilty, and to discourage others from further protesting. As time wears on, penalties increase. Those arrested in the early days of the protest (prior to April 16) who pled guilty quickly, received a $500 fine or 25 hours of community service. That escalates to a $4500 fine or, if unable to pay, 225 hours in community service for later arrestees, as long as they plead guilty quickly (usually meaning by the first day of their trial).
That latter proviso meant that the sentence for Victoria resident Gordon Bailey, a retired Capilano College teacher, was ten times that of other protesters arrested on the same day as he was. Says Bailey, “I was sentenced to a $5000 fine or 240 hours community service or jail time. If I hadn’t been sick earlier and had a medical test for which I’d waited three months, I might have had the earlier sentencing. Interesting.” (He is now volunteering 10 hours a week at Our Place in order to meet his November probationary deadline.)
Bailey, who has written books and articles on social theory, ideology, education, and a trilogy of eco-detective fiction, also finds it “interesting” that “the historic concept of civil disobedience carries no power or sway in the hallowed halls of our judicial system. To protest and resist injustice is now seen as not only civil contempt of a court injunction but also as criminal contempt. It’s as though the judge and the Crown prosecutors are historically illiterate. Tolstoy, Gandhi, Thoreau, and such celebrated people as Rosa Parks are deemed irrelevant to the modern intelligent consciousness.”
Those arrested after May 8 who plead guilty face a mandatory seven days in jail—and likely higher if they plead not guilty, go to court, and are found guilty.
The escalating sentencing appears to be giving the Crown what it wants: Few have protested since May 8. On June 19, however, 69-year-old grandmother Laurie Embree from 108 Mile House sat at the Westridge Terminal gate and was arrested. She said she wanted to tell the government: “We have the technology to make the change and to stop using fossil fuels and transition to renewables. We have the people to make these changes and there are jobs in making those changes. The only thing lacking is the political will.” She will likely be going to jail soon.
The escalating sentences, along with the sweeping expansion of the injunction to cover all BC worksites, says Hermes, mean that “Essentially the company is using the courts to stifle meaningful protest.” (After the sale of Trans Mountain is finalized in late summer, it will be the Canadian government.)
IN ALL THE STATEMENTS I READ, people alluded to their concern for First Nations. Sentenced on May 29 (the day the federal government announced it was buying the pipeline), Nan Gregory, a retired storyteller, children’s writer and lay chaplain of the Unitarian Church, told Judge Affleck: “I’ve never before been an activist…I’m here to stand up for a just and honourable reconciliation with Indigenous peoples.”
Murray Reiss, mentioned earlier, asked, “How could I not oppose this pipeline, whose sole purpose is to gouge ever more bitumen from the ancestral lands of Lubicon, Mikisew and Beaver Lake Cree, Athabasca and Prairie Chipewyan First Nations? Whose existence would make a mockery of Canada’s pledges of climate action in the Paris Agreement and decolonization in the United Nations Declaration of the Rights of Indigenous Peoples. Whose construction would mean turning our back on negotiating free, prior and informed consent with First Nations, with whom we must learn to share this land.”
George Rammell, a sculptor (who assisted Haida artist Bill Reid for 10 years) and retired art teacher, told the judge, “We were there because we saw a multitude of injustices perpetuated by our prime minister and Kinder Morgan to push this reckless pipeline expansion forward at the expense of Aboriginal nations, animal species and the environment. Our actions at Kinder Morgan’s gates were necessary to help press the pause button until real justice is restored.”
He noted, “It was under [the] Canadian apartheid system that the first pipeline was built from the Alberta tar sands to Burrard Inlet in the early 1950s. The Tseil-Wauthuth were vehemently opposed to it then as they are to Kinder Morgan’s current proposed expansion. Many Aboriginal Nations in BC were not adequately consulted or warned of the dangers of the proposed massive increase in dangerous diluted bitumen moving through their territorial lands and waters. These people’s rights are being violated by our own Federal government that espouses to be championing reconciliation, yet we’re expected to stand idly by in complicity.”
FOCUS CHOSE TO GIVE THESE CITIZENS a little space here, not just because of the strength and eloquence of their words, but because of the resounding lack of coverage in the mainstream media of what’s happening to them in the courts. With the exception of the arrest and court appearance of Members of Parliament Elizabeth May and Kennedy Stewart, Victoria’s local daily hasn’t covered the protesters’ court cases at all. In fact, the Times-Colonist’s editorials have been consistently in favour of the pipeline. On May 30 it wrote: “We don’t believe [MP Elizabeth] May should lose her seat…but she should perhaps consider what would happen if everyone decided to be selective about the laws they obeyed.” This is over-simplifying things in a way that would rule out any cases of civil disobedience ever.
An earlier T-C editorial, shortly after Kinder Morgan threatened to pull out, urged the federal government to “fight for the pipeline.” In June, the paper ran a highly partisan op-ed on the subject by Gwyn Morgan (retired founding CEO of Encana Corp) in which he stated, “the battle has been zealously joined by [MLA Andrew Weaver’s] many local ground troops and international NGO professional protesters who share his fantasy that the end of fossil fuel era is nigh.”
I think the protesters would protest: it’s not a fantasy; it’s a moral imperative if we want to prevent death and destruction from climate breakdown.
Gordon Bailey wrote an op-ed, as yet unpublished, in which he cited H.L. Mencken’s observation on the subject of civil disobedience: “The notion that a radical is one who hates his country is naïve and usually idiotic. He is, more likely, one who likes his country more than the rest of us, and is thus more disturbed than the rest of us when he sees it debauched. He is not a bad citizen turning to crime: he is a good citizen driven to despair.”
Leslie Campbell is the editor of Focus.