Trans Mountain Pipeline ULC v. Mivasair

2021 BCCA 109 Trans Mountain Pipeline ULC v. Mivasair

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Trans Mountain Pipeline ULC v. Mivasair, 2021 BCCA 109 Date: 20210303 Docket: CA47302 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 Abress), Gordon Cornwall, Thomas Chan, Laurel Dykstra, Rudi Leibik (aka Ruth Leibik), Linda Hutchings, John Doe, Jane Doe, and Persons Unknown (Defendants) And Attorney General of British Columbia (Intervenor) - and - Between: Regina Respondent And Stacy Gallagher Appellant Before: The Honourable Mr. Justice Hunter (In Chambers) On appeal from: Orders of the Supreme Court of British Columbia, dated November 13, 2020 (conviction) (Trans Mountain Pipeline ULC v. Mivasair, 2020 BCSC 2190, Vancouver Docket S183541) and March 2, 2021 (sentence) (Trans Mountain Pipeline ULC v. Mivasair, 2021 BCSC 369, Vancouver Docket S183541). Oral Reasons for Judgment On behalf of the Appellant, via teleconference: R. Wong Counsel for the Respondent, appearing via teleconference: C. Lusk Place and Date of Hearing: Vancouver, British Columbia March 3, 2021 Place and Date of Judgment: Vancouver, British Columbia March 3, 2021 Summary: The appellant was convicted of contempt of court and sentenced

to 90 days imprisonment for failure to obey an injunction prohibiting interference with access to Trans Mountain Pipeline work areas. The appellant appeals his conviction and seeks leave to appeal sentence. On this application the appellant applies for judicial interim release pending appeal. The Crown does not object to interim release on terms. Held: Leave to appeal sentence granted and interim release pending appeal granted on terms mirroring the undertaking given by the appellant in January 2020. [1] HUNTER J.A.: The appellant was convicted of criminal contempt of court on November 13, 2020, and sentenced yesterday to incarceration for 90 days. He has appealed his conviction and has applied for leave to appeal his sentence. He brings this application on short notice for judicial interim release pending his appeal. [2] The Crown has quite fairly consented to the short notice, subject to concerns about certain factual allegations made by the appellant, allegations which I conclude are not necessary to be determined in order to decide this application. [3] Mr. Gallagher is one of the individuals who was arrested for criminal contempt for violating an order of the Supreme Court of British Columbia prohibiting interference with access by Trans Mountain Pipeline ULC to its work areas at the Westridge Marine Terminal and the Burnaby Terminal. He was previously convicted for

criminal contempt in relation to defiance of the order that took place on August 21, 2018, was sentenced to 28 days and has served his sentence. His appeal of that conviction is currently pending before this Court. Subsequently, Mr. Gallagher was charged with three more instances of contempt of court, leading to the current conviction and sentence, and the current appeal. [4] The basis for this application is s. 679 of the Criminal Code, R.S.C. 1985, c. C‑46. Section 679 requires that to obtain release pending appeal, an appellant must establish three things on a balance of probabilities: (a) he will surrender himself into custody in accordance with the terms of the order; (b) his detention is not necessary in the public interest; and (c) his appeal meets a minimal merits test. In the case of an appeal from conviction, the appellant must show that the appeal is not frivolous. In the case of an appeal from sentence, the appellant must show that the appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship if he were detained in custody. [5] Mr. Gallagher is 58 years old. Apart from these convictions for contempt of court, he has no criminal record. [6] The Crown does not object to an order for judicial interim release in these circumstances. Although the appellant has now been convicted of four separate offences, he has been on an undertaking

since January 9, 2020 and has not been charged with or convicted of any new offences since then. There does not appear to be any issue concerning the likelihood that he will surrender himself into custody when the appeal is heard. The Crown considers the merits of these appeals to be very weak, but points out that the applicant raises an issue with respect to the application of Gladue principles in the context of a sentencing for criminal contempt, which is an issue that this Court has not yet specifically addressed. [7] The Crown does take exception to certain statements made by Mr. Gallagher concerning his prior incarceration and various health concerns that he has articulated, but I do not find it necessary to comment on these statements, or to rely on them in any way. In my view, the most significant aspects of this application are the fact that this was a non-violent offence committed by an individual who does not have a criminal record apart from these actions, and the reality that if interim release is not granted, Mr. Gallagher will have completed his sentence before the appeal can realistically be heard and decided. [8] I agree with the Crown that the merits of these appeals appear very weak, but the merits bar is a low one, and I am not prepared to conclude that it cannot be met in this case. I will grant Mr. Gallagher leave to appeal his sentence. [9] I am satisfied

that Mr. Gallagher will surrender himself into custody in accordance with the terms of the order. Given the nature of the offence and the fact that Mr. Gallagher has abided by his undertaking since January 2020, I conclude that his detention is not necessary in the public interest. Enforceability is an important public interest in this serious type of case, involving a lack of respect for the rule of law. However, in this case, I consider that reviewability of the judgment should be given greater weight. [10] I will grant Mr. Gallagher interim release on the following terms, which are substantially the conditions proposed by the appellant and augmented by the Crown: (a) The appellant will keep the peace and be of good behaviour; (b) The appellant will report to a bail supervisor at 275 East Cordova Street by telephone at 604-660-3700 or toll-free 1-833-660-3777 within 72 hours of his release from custody and thereafter as and when directed by his supervisor; (c) The appellant will obey the Injunction pronounced on June 1, 2018, which is attached to the release order; (d) The appellant will not be within 500 metres of: The Westridge Marine Terminal at 7065 Bayview Drive, Burnaby, B.C., The Burnaby Terminal at 8099 Shellmont Street, Burnaby B.C., and any other project or operation site of Trans Mountain Pipeline ULC or its affiliates, contractors or subcontractors that have been

reasonably identified as the same by signage or boundary markings situated on or around such sites; (e) The appellant will diligently pursue his appeal from conviction; (f) The appellant will remain within the province of British Columbia; and (g) The appellant will surrender himself into custody at the Sheriff's Office, the Law Courts, 800 Smithe Street at 9:00 a.m. on October 29, 2021 or the date of release of judgment in this conviction appeal, whichever first occurs. [11] Mr. Gallagher requested that an exception be made to the 500 metre zone to permit him to attend at the structure known as the Coast Salish watch house. No exception was made for the watch house in the undertaking that Mr. Gallagher signed in January 2020. I am advised that the sentencing judge considered and rejected making an exception for the watch house in the sentencing order she made. Mr. Gallagher's compliance with his undertaking is a significant factor in his release pending appeal. In my view, it is preferable that the terms of release mirror as closely as possible the terms of the undertaking he has met. [12] In lieu of a surety (and I agree that the proposed surety is not suitable in these circumstances), the appellant will be required to promise to pay $5,000 if he fails to comply with any of these conditions as a condition of his release. [13] I also direct that this appeal be directed to case management at 9:00 a.m. on March 18, 2021. "The Honourable Mr. Justice Hunter"