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Monday, September 09, 2019 @ 9:38 AM  

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Appeal by the defendants from convictions for criminal contempt for having defied an injunction restraining protestors from blocking access to a pipeline expansion project. The appellants were part of many anti-pipeline protestors who allegedly breached the injunction by physically obstructing, impeding, or otherwise preventing access by Trans Mountain, its contractors, employees, or agents to the site. The police gave protestors time to read the injunction and voluntarily leave the area to avoid arrest. The appellants argued the trial judge erred in law by conflating the test of criminal contempt of court and allowing the Crown to prove mens rea solely on proof of publicity rather than on proof of a specific intent to depreciate the authority of the court, or a recklessness in relation to such. The trial judge also erred by inferentially making a finding that each of the appellants possessed the specific intent of depreciating the authority of the court solely on the circumstantial evidence of publicity.

HELD: Appeal dismissed. There was nothing in the present case that would permit this Court to reconsider the mens rea element of criminal contempt. The law regarding criminal contempt was as set out in the 1992 Supreme Court of Canada decision in United Nurses. When the appellants invited the judge to convict them based on the facts they admitted, they accepted that the facts they admitted proved both the actus reus and mens rea of criminal contempt, as those elements were defined in United Nurses. The admitted facts supported the inference that the appellants were, at the very least, reckless as to whether the authority of the court would be brought into disrepute. The gravamen of criminal contempt was the continuous and flagrant violation of a court order without regard for the effect that conduct might have on the respect accorded the courts. That was precisely what the appellants admitting doing.

Trans Mountain Pipeline ULC v. Mivasair, [2019] B.C.J. No. 1354, British Columbia Court of Appeal, S.D. Frankel, N.J. Garson and G. Dickson JJ.A., July 23, 2019. Digest No. TLD-September92019001