RCMP Error Delays Court Hearing for Pipeline Protesters

About 30 people arrested last year for blocking access to Coastal GasLink’s pipeline route will have to wait at least another month to learn whether they face criminal charges.

Kevin O’Callaghan, lawyer for Coastal GasLink, said during a virtual court appearance Monday that the delays were required because the RCMP improperly disclosed privileged information to the pipeline company.

Coastal GasLink is pursuing civil contempt charges against people arrested in the fall, alleging they violated the terms of an injunction requiring protesters not to interfere with work on the 670-kilometre gas pipeline across northern B.C. The company is also considering seeking criminal contempt prosecutions, which can bring more serious punishments.

“With respect to most of the individuals you have before you, we’ve received a package of disclosure from the RCMP some weeks ago,” O’Callaghan said. “However, in our review of those disclosure packages, there was evidence of a privileged communication that was repeated through each of the disclosure packages.”

Privileged communication refers to information that is protected by law from disclosure and can include communications between lawyers and clients.

The RCMP confirmed it had inadvertently added privileged communication to its disclosure and requested that the package be returned, O’Callaghan said.

The force has since reviewed the package, removed the privileged information and sent it back to Coastal GasLink, he added.

“But we only received that disclosure last Thursday,” O’Callaghan told the court.

As a result, the information hasn’t been disclosed to defence lawyer Frances Mahon, representing members of the Wet’suwet’en Nation and their supporters.

The long-running dispute has resulted in the arrests of about 75 people on Wet’suwet’en territory.

Most of the recent arrests took place over two days in mid-November. Two people were also arrested in September.

“On behalf of my clients, I can say that we do want the proceedings to happen as expeditiously as possible,” Mahon told the court. “The RCMP has had since Nov. 19, largely, to provide these materials, so it’s been several months now.”

Injunction violations fall under civil law and would require Coastal GasLink to pursue a lawsuit against the land defenders independently.

But the company could ask B.C.’s attorney general to press criminal charges, which would transfer responsibility to the BC Prosecution Service.

O’Callaghan said the company is still deciding whether to seek criminal prosecution.

The bulk of the half-hour appearance was spent haggling over dates for proceedings, with Mahon potentially tied up with a five-week murder trial in April and O’Callaghan and Justice Marguerite Church taking vacation in March.

When it was suggested that proceedings be put over until May, Mahon pressed for an earlier appearance.

“The bottom line is I don’t want this to linger until May for this next very important stage of proceedings, which is going to dictate everything else that follows, including the advice I give my own clients and instructions I can receive from them,” Mahon said.

O’Callaghan proposed that Coastal GasLink review the disclosure information and get it to Mahon by March 7, and have a decision about whether it would request criminal charges by March 11.

Last month, CN Rail announced that it would not pursue civil contempt cases against a dozen people who blocked rail lines in violation of its injunction in February 2020 in support of the Wet’suwet’en. In that case, the BC Prosecution Service had declined to approve criminal charges, citing a lack of public interest.

A brief court appearance is scheduled for March 14 to determine the date for a subsequent hearing once it’s known if Coastal GasLink will request people be charged criminally. That would require a hearing before Justice Church, who issued the injunction to Coastal GasLink on Dec. 31, 2019.

Coastal GasLink announced in December that it would not pursue a case against two journalists who were arrested Nov. 19 while covering the arrests and held in custody for several days.