Trans Mountain Pipeline ULC v. Mivasair

2021 BCSC 2658 Trans Mountain Pipeline ULC v. Mivasair

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Trans Mountain Pipeline ULC v. Mivasair, 2021 BCSC 2658 Date: 20211015 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 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 Before: The Honourable Madam Justice Fitzpatrick Oral Reasons for Judgment (William George) Counsel for the Crown: M.R. Ruttan E. Leno The Defendant, William George, appearing in person: W. George Place and Date of Trial: Vancouver, B.C. September 27 and 30, 2021 Place and Date of Judgment: Vancouver, B.C. October 15, 2021

INTRODUCTION [1] On June 1, 2018, Justice Affleck of this Court granted an injunction to restrain persons from obstructing, impeding and interfering with the operations of the plaintiff, Trans Mountain Pipeline ULC ("Trans Mountain"), at its various Lower Mainland locations (the "Injunction"). One of those locations was Trans Mountain's tank farm facility in Burnaby, BC, defined in the Injunction as the "Burnaby Terminal" or "BT". For the purposes of this judgment, I will refer to the facility as the "Burnaby Terminal". [2] In this trial, the Crown alleges that William George is guilty of criminal contempt of court in respect of the Injunction, arising from his presence and activities at the Burnaby Terminal on January 6, 2021. [3] The Crown alleges that Mr. George publicly disobeyed the term of the Injunction that provides: 1. The Defendants, 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, or work in, any of the sites or work areas as set out below: . . . (ii) The Burnaby Terminal (the "BT"), as indicated in the map attached as Schedule "B" [4] Mr. George has pleaded not guilty.

THE EVIDENCE [5] The Crown called four witnesses. Those witnesses were: Cpl. Ron Alleyne, a RCMP officer, and three security personnel who work for Trans Mountain, David Conrod, Randy Marquart and Lawrence Kostiuk. The Crown's evidence also included various video/audio recordings of the relevant events when Mr. George was present at the Burnaby Terminal on January 6, 2021 and, on an earlier date, January 4, 2021. [6] In his defence, Mr. George played a video clip of a further interaction between Mr. Conrod and the protestors at the Burnaby Terminal entrance on January 4, 2021. In addition, Mr. George played two video clips from the Burnaby Terminal entrance on January 6, 2021. These further three video clips were from the Crown's disclosure to Mr. George. [7] Mr. George did not testify. The only witness called by Mr. George was his wife of four years, Roxanne Charles. The Crown's Evidence [8] The Crown relies on video evidence from January 4, 2021 solely to establish that Mr. George had notice of and was aware of the Injunction and its terms on that date. [9] In the early late afternoon and evening hours on January 4, 2021, a group of protestors were present at the main entrance to the Burnaby Terminal. The entrance to the Burnaby Terminal is located at an "L" shaped intersection where Shellmont Street (running east/west) and Underhill Avenue (running north/south) meet (the

"Intersection"). Immediately north of the Intersection is Trans Mountain's driveway or main entrance to the Burnaby Terminal. This driveway and entrance to the Burnaby Terminal is clearly part of the area covered by the Injunction and specifically, Schedule "B". [10] To the east of the driveway and gate area is a large white sign that gives notice of the Injunction. This sign was present on January 4, 2021 and January 6, 2021. The sign reads in part: Trans Mountain Property Any person who obstructs access to this site is in breach of an injunction order and may be subject to immediate arrest and prosecution. A copy of the order is posted at: transmountain.com. [11] On January 4, 2021, the protestors had erected a banner protesting the pipeline across the driveway leading into the Burnaby Terminal, blocking vehicular access into and from the Burnaby Terminal. Trans Mountain personnel called the RCMP to attend and Cpl. Alleyne was one of the officers. [12] After the arrival of the RCMP, the relevant interactions between Cpl. Alleyne and the protestor group, that included Mr. George, were separately video/audio recorded by a RCMP officer and Mr. Conrod. Mr. George is identifiable in the videos as part of the protestor group. In addition, he was identified by both Cpl. Alleyne and Mr. Conrod as present when the videos were taken. Cpl. Alleyne asked the group who was in charge. Both

videos show Mr. George seemingly having undertaken that leadership role for the group in later dealings with the RCMP. [13] Starting at approximately 6:30 p.m., Cpl. Alleyne described to Mr. George that he was about to read the Injunction aloud. Cpl. Alleyne began reading the Injunction to the group of protestors, including Mr. George, who is, for most of the time, standing immediately in front of Cpl. Alleyne. Mr. George was certainly just in front of Cpl. Alleyne when he began reading the Injunction. [14] Many of the protestors were chanting and drumming fairly loudly over the course of the reading of the Injunction. However, I am satisfied that that sound did not entirely detract from the protestors, including Mr. George, hearing what was read or, at least, understanding what Cpl. Alleyne was reading and the import of what was being read. Although Mr. George moved away from Cpl. Alleyne from time to time for a very short period, I am satisfied that he was within hearing distance for the reading of the entirety of the Injunction or, alternatively, he was able to see Cpl. Alleyne continuing to read the document. [15] After about ten minutes, Cpl. Alleyne finished reading the body of the Injunction. He then turned to Mr. George, then again standing directly in front, so as to show him the Schedules of the Injunction. In particular, Cpl. Alleyne showed Schedule "B" to Mr.

George, outlining the Burnaby Terminal location. Cpl. Alleyne specifically offered a copy of the Injunction to Mr. George, which he declined to receive. [16] After Cpl. Alleyne read the Injunction aloud, the protestors moved the banner such that it no longer blocked access to the Burnaby Terminal. Vehicular traffic was then seen moving into the site. [17] I now turn to the events of January 6, 2021 where another protest occurred at the main entrance to the Burnaby Terminal. [18] Mr. Marquardt confirms that the main entrance to the Burnaby Terminal allows ingress and egress for a variety of vehicles involved in Trans Mountain's operations. This includes construction vehicles, employees' vehicles and various other vehicles with equipment that come and go from the site. Mr. Marquardt's evidence was that this main entrance allowed larger construction vehicles to access the site. Mr. Marquardt also confirmed that, although there were other entrances to the Burnaby Terminal, including one on the eastern property line of the Burnaby Terminal, those other entrances could not usually accommodate larger or dual axle vehicles. [19] Some of the events of January 6, 2021 were separately video/audio recorded by Mr. Conrod and Mr. Kostiuk. [20] Around 4:30 p.m., both Mr. Conrod and Mr. Kostiuk approached the entrance to the Burnaby Terminal and observed about 12-15 protestors. They saw that

an old Ford minivan (the "Van") had been parked or placed in the middle of the driveway so as to block vehicular access to and from the Burnaby Terminal. A vehicle known to Mr. Conrod - a white pickup truck - was parked nearby with a U-Haul trailer attached. Mr. Conrod concluded that this truck and trailer were the means by which the Van had been transported to that location. When Mr. Conrod approached, the protestors were removing the wheels of the Van. Mr. Kostiuk observed that Mr. George was actively assisting in removing the left front wheel. The Van had been extensively spray painted with various anti-pipeline messages, some of which faced the Intersection. [21] After about ten minutes, Mr. Conrod recognized and spoke to Mr. George who was participating in the blockade activities. By this time, Mr. George was assisting in removing the left rear wheel on the Van. At 4:40 p.m., Mr. George approached Mr. Conrod and made a rude gesture to him with his middle finger. Mr. George then told Mr. Conrod that this was a message and indicative of their fierce opposition. He then said something to the effect "this is what you are going to get, we are here to protect our lands and waters". [22] At 4:47 p.m., Mr. Conrod advised Mr. George that the RCMP had been called and asked about the group's intentions. Mr. George said they were not sure. After Mr. Conrod said he was "just letting

them know" about the impending arrival of the RCMP, Mr. George answered "yeah, yeah". [23] About an hour later, Mr. Conrod further observed Mr. George at the blockade. [24] At 5:42 p.m., Mr. Marquardt arrived. He immediately identified Mr. George in the protestor group and recognized that Mr. George was acting as the leader or liaison for the group. Mr. Marquardt told Mr. George that he had video evidence from January 4, 2021 recording the reading of the Injunction to him; Mr. Marquardt offered to give Mr. George a copy of the Injunction. Mr. George replied that he didn't need a copy since he had known about "it" (presumably meaning the Injunction) for four years. One of the protestors standing next to Mr. George referred to their right to protest. Understandably, Mr. Marquardt did not dispute that statement; however, Mr. Marquardt told Mr. George that the blockading of the entrance and driveway was not permissible. He advised the protestors that the police had been called. [25] Mr. George then enquired of Mr. Marquardt whether there were people in the Burnaby Terminal that wanted to leave. Mr. George then said he would agree to let workers leave the site to return to their families. Mr. George was then specifically asked by Mr. Marquardt about whether he would allow people to come into the Burnaby Terminal. In reply, Mr. George told Mr. Marquardt that the protestors would not

allow anyone to enter the Burnaby Terminal through that entrance, citing the need to send a "strong message" to Trans Mountain. He again referred to people being allowed to leave and return home, but as to anything else, he replied "we'll see". [26] Mr. Marquardt confirms that, on January 6, 2021, Trans Mountain was conducting its regular construction and other operations at the Burnaby Terminal. He also confirmed that, while construction activities usually end around 5:00 p.m., the overall operations continue on a 24/7 basis. Mr. Marquardt said that a variety of vehicles were waiting to leave the Burnaby Terminal at the time of the blockade, including those carrying various workers, and a large "Vac" truck with a dual axle. [27] Despite Mr. George's offer to let workers leave, Mr. Marquardt's discussion with the RCMP led him to conclude that it was too dangerous to try to maneuver smaller vehicles around the Van. In addition, larger vehicles, such as the "Vac" truck, could not proceed through the entrance in any event with the Van blocking the way. [28] Mr. Marquardt could not say precisely what vehicular traffic was blocked from entering the Burnaby Terminal as a result of the Van. He referred to Trans Mountain's normal practice in dealing with blockades of this entrance: drivers would be contacted to use alternate entrances if they could; and, if they could not, others were

redirected to staging areas away from the site, since it is too dangerous to remain parked on the narrow streets leading to the main entrance until the blockades were removed. Mr. Kostiuk did, however, identify that a Trans Mountain school bus with workers that was headed toward the Burnaby Terminal was parked on the side of Underhill Avenue, presumably waiting for the blockade to be cleared. [29] Eventually, the RCMP attended at the main gate of the Burnaby Terminal. Mr. George and the other protestors then put the wheels back on the Van so as to remove it from the driveway. The protestors had some difficulty doing that given equipment issues. The Van was finally moved sometime between 7:30-8:00 p.m. so as to clear the driveway and allow Trans Mountain to open the gate to the Burnaby Terminal and allow vehicles to exit and enter as they originally intended. Defence Evidence [30] Ms. Charles was not present at the Burnaby Terminal protests on either January 4 or 6, 2021. She therefore has no personal knowledge that could explain, add to or detract from the video evidence and the evidence of the Crown witnesses on either of those dates. [31] Ms. Charles spoke to the fact that both she and Mr. George are Indigenous persons from the Coast Salish. She described Mr. George's nature as peaceful and respectful and that he has typically played a mediation role in his life. She also

spoke of Mr. George's liaison role in relation to Trans Mountain protestors and other organizations, such as the RCMP and the police liaison team (known as the Division Liaison Team, or DLT). [32] Mr. George referred to his January 4, 2021 video clip as portraying what he describes as objectionable comments by Mr. Conrod to the protestors. In addition, Mr. George refers to the two video clips of January 6, 2021 as portraying protest activities at the Burnaby Terminal when he was not present. He describes these other encounters between the protestors, Trans Mountain personnel and the RCMP as at a heightened level of conflict and examples of how his presence as a peacekeeper is of assistance in maintaining calm during these events. [33] In my view, the video clips played by Mr. George in his defence do not add to the factual enquiry as to the events of January 4 and 6, 2021 when Mr. George was present and his role in those events as relevant here. The Crown's video clip of January 6, 2021 is clear enough as to Mr. George's participation in the blockade events that date. [34] Finally, Mr. George referred to what he described as a "stop work order" in relation to Trans Mountain's activity at the Burnaby Terminal during the relevant time, which I will discuss below.

DISCUSSION AND FINDINGS [35] I will address the issues below, and in doing so, address the Crown and defence submissions. Criminal Contempt [36] The law of criminal contempt was set out by the Supreme Court of Canada in United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R.

901. Justice McLachlin, later Chief Justice of Canada, wrote for the majority at 931-933 as follows: It is my view that a clear distinction exists between civil and criminal contempt and that the law of criminal contempt is sufficiently certain to meet the requirements of fundamental justice. The distinction between civil and criminal contempt rests in the concept of public defiance that accompanies criminal contempt. Both civil and criminal contempt of court rest on the power of the court to uphold its dignity and process. The rule of law is at the heart of our society; without it there can be neither peace, nor order nor good government. The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect. To maintain their process and respect, courts since the 12th century have exercised the power to punish for contempt of court. These same courts found it necessary to distinguish between civil and criminal contempt. A person who simply breaches a court order, for example by failing to abide by visiting hours stipulated in a child custody order, is viewed as having committed civil contempt. However, when the element of public defiance of the court's process in a way calculated to lessen societal respect for the courts is added to the breach, it becomes criminal. This distinction emerges from Poje v. Attorney

General for British Columbia, [1953] 1 S.C.R. 516 at p. 527, per Kellock J.: The context in which these incidents occurred, the large numbers of men involved and the public nature of the defiance of the order of the court transfer the conduct here in question from the realm of a mere civil contempt, such as an ordinary breach of injunction with respect to private rights in a patent or a trade‑mark, for example, into the realm of a public depreciation of the authority of the court tending to bring the administration of justice into scorn. [Emphasis added.] What the courts have fastened on in this and other cases where criminal contempt has been found is the concept of public defiance that "transcends the limits of any dispute between particular litigants and constitutes an affront to the administration of justice as a whole" The gravamen of the offence is not actual or threatened injury to persons or property; other offences deal with those evils. The gravamen of the offence is the open, continuous and flagrant violation of a court order without regard for the effect that may have on the respect accorded to edicts of the court. [Underline emphasis in original.] [37] At 933, the Court in United Nurses set out the elements of criminal contempt: 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, the necessary mens rea may be inferred from the circumstances. An open and public defiance of a court order will tend to depreciate the authority of the court. Therefore when it is clear the accused must have known his or her act of defiance will be public, it may be inferred that he or she was at least reckless as to whether the authority of the court would be brought into contempt. On the other hand, if the circumstances leave a reasonable doubt as to whether the breach was or should be expected to have this public quality, then the necessary mens rea would not be present and the accused would be acquitted, even if the matter in fact became public. While publicity is required for the offence, a civil contempt is not converted to a criminal contempt merely because it attracts publicity, as the union contends, but rather because it constitutes a public act of defiance of the court in circumstances where the accused knew, intended or was reckless as to the fact that the act would publicly bring the court into contempt. [38] United Nurses was recently accepted by the British Columbia Court of Appeal in this proceeding as the

leading authority on the law of contempt: Trans Mountain Pipeline ULC v. Mivasair, 2019 BCCA 267 [Trans Mountain BCCA 2019] at paras. 22-24. Notice of the Injunction [39] In Carey v. Laiken, 2015 SCC 17, the Court stated that a party must be shown to have actual or inferred knowledge of the order: [34] The second element is that the party alleged to have breached the order must have had actual knowledge of it: Bhatnager, at p. 226; College of Optometrists, at para.

71. It may be possible to infer knowledge in the circumstances, or an alleged contemnor may attract liability on the basis of the wilful blindness doctrine (ibid.). [40] Paragraphs 9-10 of the Injunction address how notice of it is to be given. Paragraph 10(c) provides that notice of the Injunction may be given by the reading of the order. Paragraph 11(a) provides that a person is deemed to have knowledge and notice of the order if a copy of the Injunction is shown or read to them and they are provided a brief opportunity to comply with the order. [41] The Crown alleges that Mr. George was well aware of the Injunction and its terms arising from his presence at the Burnaby Terminal entrance on January 4, 2021, when Cpl. Alleyne read the Injunction in his presence and offered a copy to him. [42] Based on the video evidence of January 4, 2021, and the Crown witnesses who testified as to Mr. George's attendance that day, I am satisfied beyond a reasonable doubt that Mr. George had actual notice of the Injunction and its terms. Further, even accepting Mr. George's statement (and that of Mr. Conrod) that it was difficult to hear Cpl. Alleyne's reading of the Injunction from time to time, reckless indifference - or willful blindness - is no defence to these allegations: MacMillan Bloedel Ltd. v. Simpson [1993] B.C.J. No. 2869 (S.C.) at paras. 20-22. I find that Mr. George was clearly

aware that Cpl. Alleyne was reading the Injunction to the protestors, including him, to confirm to them that their protest activities - in blocking the entrance - were in breach of that court order. [43] In addition, Mr. George's statements to Mr. Marquardt on January 6, 2021 stand as further confirmation that Mr. George was well aware of the Injunction and its terms at the time of the blockade that date. He specifically advised Mr. Marquart that he knew of the Injunction and had been so aware for four years. Actus Reus [44] The Crown must establish, beyond a reasonable doubt, that Mr. George disobeyed the Injunction in a public way (United Nurses at 933). The Injunction prohibits persons from: . . . physically obstructing, impeding or otherwise preventing access by Trans Mountain, its contractors, employees or agents, to, or work in, . . . [t]he Burnaby Terminal . . . [45] The Crown alleges that, on January 6, 2021, Mr. George physically obstructed, impeded and prevented access to the Burnaby Terminal by his participation in parking and disabling the Van in the middle of the entrance to the Burnaby Terminal and by his continuing physical presence on the driveway throughout those protest activities until later that evening. [46] The video evidence conclusively shows Mr. George's presence at the entrance to the Burnaby Terminal. Although Mr. George's actions in relation to the

actual placement of the Van in the middle of the driveway are not known, the videos clearly show his participation in then disabling it - removing the wheels - so that it could not be moved. [47] In addition, Mr. Marquardt's uncontradicted evidence, which I accept, is that Mr. George's presence and the placement of and disabling of the Van physically obstructed, impeded and prevented access by Trans Mountain's personnel and contractors to gain access to and exit from the Burnaby Terminal. This blockading included preventing specific vehicles from doing so, including the "Vac" truck that was waiting at the exit. [48] Finally, it is clear that Mr. George's actions in the face of and in breach of the Injunction were done "in a public way". His actions could be seen by Trans Mountain personnel and contractors. His actions could also clearly be seen by the public, including persons driving by the Intersection throughout the entire time of the blockade. [49] Mr. George argues that it was his understanding that Trans Mountain was not working on the day of the blockade due to what he described as a "stop work order". He refers to a January 4, 2021 press release issued by the Canada Energy Regulator ("CER") reporting that the CER had been notified that Trans Mountain had decided to suspend all construction on the expansion project. While the press release refers to the suspension

lasting until January 4, 2021, Mr. George was under the impression that it was continuing on January 6, 2021. [50] Even accepting that Trans Mountain had suspended its expansion construction operations at the time of the blockade, there are considerable difficulties accepting this as a defence to Mr. George's actions: a) the Injunction does not automatically cease to be effective even assuming the absence of some or all of Trans Mountain's construction activities or operations at the Burnaby Terminal; b) the suspension refers only the "expansion project" and not all of Trans Mountain's operations. Mr. Marquardt confirmed that operations are underway on a 24/7 basis at the Burnaby Terminal leaving aside any expansion work; c) there is evidence that, indeed, the blockade did have the effect of blocking vehicles from both entering and exiting the Burnaby Terminal. Mr. Marquardt spoke of the workers and the "Vac" truck waiting to leave. Mr. Kostiuk pointed to the Trans Mountain school bus with workers that was parked on the side of Underhill Avenue. The presence of these vehicles confirms that activities were occurring at the Burnaby Terminal that required the persons in those vehicles to use the Burnaby Terminal gate and driveway; d) Mr. George argues that his "we'll see" response to Mr. Marquardt did not amount to his refusal to let vehicles into the site. However, Mr. George had no authority to require that Trans Mountain seek and be granted his permission to allow traffic to proceed in and out of the Burnaby Terminal; and e) in any event, the breach occurs when the obstruction is created, regardless whether there are persons seeking access who are blocked from doing so: Trans Mountain Pipeline ULC v. Mivasair, 2020 BCCA 385 [Trans Mountain BCCA 2020] at para.

13. In that decision, the court described the reasons for this approach: [14] That is so, in my view, for two reasons. First, the presence of the obstruction or impediment may have the effect of dissuading individuals from seeking access. Second, as this Court pointed out in MacMillan Bloedel, and the trial judge pointed out in related proceedings (Trans Mountain Pipeline ULC v. Mivasair, 2018 BCSC 1070, at paras. 31-38), an order enjoining obstruction may be breached without physical conflict. The law does not impose an obligation on one who obtains an injunction for the purpose of protecting access to property to attempt to force a way through persons disobeying the injunction before the obstructers can be found in contempt of court. Justice Affleck properly observed in the case at bar (at para. 100): "To impose that obligation on Trans Mountain would be to create a risk of a confrontation or violence". [51] The clear terms of the Injunction provide notice to persons as to what they are not entitled to do. Mr. George was clearly aware of the prohibition. [52] I am satisfied beyond a reasonable doubt that Mr. George acted in violation of paragraph 1(a)(ii) of the Injunction on January 6, 2021 when he was physically present on the Trans Mountain driveway at the main gate of the Burnaby Terminal and by his participation in placing and disabling the Van in the middle of the

driveway so as to block access to and from the site. I am also satisfied beyond a reasonable doubt that Mr. George's breach of the Injunction was done "in a public way". [53] I conclude that the Crown has proven the actus reus of criminal contempt beyond a reasonable doubt on Mr. George's part in these circumstances. Mens Rea [54] The Crown must establish, beyond a reasonable doubt, that Mr. George disobeyed the Injunction 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. [55] The decision in Trans Mountain Pipeline ULC v. Mivasair, 2019 BCSC 1247; aff'd Trans Mountain BCCA 2020, is helpful on this issue. In this Court, at para. 89, Justice Affleck cited Carey (para. 38) for the required "intent" to establish civil contempt: It is well settled in Canadian common law that all that is required to establish civil contempt is proof beyond a reasonable doubt of an intentional act or omission that is in fact in breach of a clear order of which the alleged contemnor has notice . . . At para. 90, Affleck J. added that the "distinguishing feature of criminal contempt is knowledge or recklessness that public disobedience will tend to lower the authority of the court". [56] In Trans Mountain BCCA 2019, the court discussed the concept of recklessness and stated at para. 41 that: the

gravamen of criminal contempt is the continuous and flagrant violation of a court order without regard for the effect that conduct may have on the respect accorded the courts. [57] Mr. George submits that it was never his intention to disobey the Injunction because he expressly timed his participation in the January 6, 2021 blockade to coincide with when he understood the "stop work order" to be in effect. I have already discussed this matter to some extent under the "Actus Reus" section above. [58] In relation to what effect, if any, this submission has on the issue of mens rea, again there are considerable and, in my view, insurmountable, difficulties in Mr. George advancing any defence, even accepting that Trans Mountain had suspended its expansion construction operations at the time of the blockade: a) Mr. George has not given any evidence that he believed he had the right to block the entrance of the Burnaby Terminal in light of this "stop work order; b) Upon the attendance of Mr. Conrod, a Trans Mountain representative, at the driveway, Mr. George could only have reasonably concluded that Mr. Conrod was there for a reason, namely to document the blockade activities since Trans Mountain personnel considered it was in breach of the Injunction. Mr. Conrod advised that the RCMP had been called. In addition, Mr. Marquardt's later attendance and interactions with Mr. George

would have reinforced that Trans Mountain wanted its driveway cleared as being in breach of the Injunction; c) Even if Mr. George didn't notice the vehicles waiting to leave the site or the school bus parked on Underhill Avenue, Mr. Marquardt clearly advised him of the vehicles waiting to leave during their interactions in the driveway. This fact would have clearly signalled activity by Trans Mountain at the Burnaby Terminal. Even so, this news did not deter Mr. George and the other protestors, who continued their blockade activities; and d) Mr. George's supposed belief that no activities were going on that day at the Burnaby Terminal does sit logically with the substance of the blockade activity. This is in the sense that the protestors purposefully transported the Van to the site and placed it in the middle of the driveway where it was disabled so that it could not be easily removed from the driveway. Why go to these extreme measures to only broadcast the protestors' objection to the Trans Mountain pipeline at a "silent" work site without traffic entering and exiting the site? The only logical inference arising from the moving of and disabling of the Van in the middle of the driveway was that it was intended to disrupt traffic moving in and out of that Burnaby Terminal gate so as to cause maximum disruption to Trans Mountain's activities at the site. [59] Mr. George's conduct

supports the finding that he knew that his public disobedience would tend to lower the authority of the court. He essentially admits as much, asserting that he was trying to "raise awareness". [60] In the alternative, I find that Mr. George was reckless in that regard. Mr. George knew that his actions were public. While standing in the driveway, and beside the disabled Van, Mr. George stood with other protestors while in full view of Trans Mountain personnel and the people streaming past in the continuous traffic at the Intersection. The protestors had painted parts of the Van facing the Intersection with markings indicating their opposition to the pipeline. Mr. George acknowledges that the Van was put there to get "public attention". [61] An open and public defiance of a court order will tend to depreciate the authority of the court. It can therefore be inferred that Mr. George was at least reckless as to whether the authority of the court would be brought into contempt: United Nurses at 933. [62] Although Mr. George has attempted to portray his role at the blockade as a peacekeeper, the video evidence clearly shows that he played a leadership role of sorts and actively participated in the blockade activities on January 6, 2021. I acknowledge that Mr. George's overall actions at the blockade were peaceful and without violence. All three Trans Mountain witnesses described Mr.

George as polite, respectful and/or peaceful. The only actions of Mr. George that departed slightly from that description of his nature arose from Mr. George's rude and aggressive hand gesture to Mr. Conrod on January 6, 2021. [63] I find beyond a reasonable doubt that Mr. George had the intention to stand on Trans Mountain's property and to assist in placing the disabled Van in the driveway so as to obstruct, impede and block access to the Burnaby Terminal. He did this with knowledge that his public defiance would tend to diminish the authority of the court and its orders; I find in the alternative that he was reckless in that respect. [64] The Crown has satisfied the mens rea element of the offence beyond a reasonable doubt.

CONCLUSION [65] Mr. George would you please stand. [66] In his final argument, Mr. George made a genuine heartfelt plea to the Court asking me to "borrow my heart and borrow my mind" so as not to convict him. I accept that Mr. George holds strong views about the protection of the environment and that his position is that the pipeline threatens the environment for the Canadian public, including our Indigenous peoples. I also accept that Mr. George is generally a polite, peaceful and respectful person. His demeanour and conduct during this trial has been further evidence of his nature. [67] Mr. George, just as with other members of the public, are more than able to express their views, including to the public, as long as they do so legally. Paragraph 14 of the Injunction expressly recognizes that right. Government policies that allow commercial activity to be conducted can be changed, but only through the democratic process that is the means by which our country, Canada, is governed. [68] To endorse unlawful behavior without consequences is to invite anarchy in our society, as many prior criminal contempt decisions have discussed. Such lawlessness negatively affects us all, no matter where a person's views may lie. [69] It gives me no pleasure to address the consequences of Mr. George's actions here. While I am well aware of his pleas to the Court, I am not in a position to neglect my duty to uphold the law and the authority of this Court that applies that law. [70] The Crown has met its burden in proving its case against Mr. George beyond a reasonable doubt. I find Mr. George guilty of criminal contempt of court arising from his actions on January 6, 2021 at the Burnaby Terminal. "Fitzpatrick J."