CN Rail will be able to privately pursue criminal charges against three unnamed individuals involved in a February 2020 blockade of the company’s tracks in New Hazelton.
In a B.C. Supreme Court (BCSC) decision earlier this month, Justice Ward Branch ruled that “failing to maintain the possibility of a finding of criminal contempt may undermine the administration of justice.”
In the court proceeding, CN sought to win the right to pursue criminal contempt of an injunction against rail blockades for all 12 of the original arrestees, who obstructed the tracks in solidarity with arrestees who blocked Coastal GasLink’s (CGL) access to its Houston worksite in January 2020.
The B.C. Prosecution Service (BCPS) declined to pursue any criminal charges against the New Hazelton blockaders in April 2021. For the first nine individuals, prosecutors said they could not establish the protesters had prior knowledge of the terms of the injunction.
For the other three, while sufficient evidence existed they had prior knowledge, the BCPS concluded it was “not in the public interest” to prosecute criminally on the basis there was no violence or property damage; that they were otherwise cooperative; that the injunction had been successfully enforced and had not been breached since; and that prosecution in the midst of a COVID-19 outbreak would present health challenges.
In its arguments, CN invoked the precedent of an earlier BCSC ruling that allowed the Vancouver Fraser Port Authority the right to privately bring criminal charges against blockaders of the port associated with the same solidarity movement with CGL opponents.
The prosecution service and defendants argued that the court should allow the civil contempt proceeding to move forward rather than a criminal one.
Justice Branch disagreed, citing respect for the court and administration of justice as paramount and referencing the port authority decision.
“I find that the potential for a criminal contempt finding cannot and should not be negated simply because civil contempt remains available,” Justice Branch wrote. “As Justice Tammen emphasized in VFPA, criminal contempt is a separate tool available to the Court to ensure that its orders are not flagrantly disrespected.”
That being said, Branch did not clear the way for criminal prosecution of all 12 of the accused.
For the first nine arrestees, Branch concluded the BCPS’s original assessment there was not sufficient evidence the defendants had prior knowledge of the injunction was sound and ruled criminal contempt should not be on the table.
For the final three, however, the judge ruled criminal prosecution was reasonable saying the BCPS’s reasoning of lack of violence or property damage, cooperativeness of the individuals and no subsequent blockades did not mitigate the wrongfulness of the original actions.
The prosecution service did not name which arrestees fell into which category prompting the judge to say he expects the BCPS to voluntarily turn over the information to the court and parties (CN) or the parties “may appear back before me for further direction.”
CN has not yet said whether it will proceed with criminal charges.
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