Many Burnaby Mountain arrests may have been illegitimate, says BCCLA

The Canadian Progressive | Thursday, Nov 27, 2014

RCMP arrest Kinder Morgan protesters on Burnaby Mountain on  Nov 20th, 2014.  (Photo: Mark Klotz / FLICKR)

RCMP arrest Kinder Morgan protesters on Burnaby Mountain on Nov 20th, 2014. (Photo: Mark Klotz / FLICKR)

A new application to expand the zone from which protesters are prohibited by court order on Burnaby Mountain suggests that many of the nearly 90 arrests made by the RCMP over the past week, and civil contempt charges laid against those arrested, could be found illegitimate, says the BC Civil Liberties Association.

The new application says that the RCMP have been arresting people for entering an “exclusion zone” that extends beyond the boundaries of the court’s original injunction, and asks the court to amend the injunction to include that larger exclusion zone. In seeking an injunction for this larger zone, the BCCLA says the application acknowledges what protestors have been reporting to BCCLA all week long – that the boundaries of the injunction area have been unclear to protestors and the RCMP alike, making it difficult to know whether or not one is in compliance with the order.

“The RCMP appear to have arrested dozens of people for breaching an injunction when they may have done no such thing; carting people away for crossing a line they didn’t cross,” said Josh Paterson, Executive Director. “The thing with being charged with breaching a court order is that you need to have actually breached what the court ordered. It’s totally unclear whether that is the case, given the acknowledgment that RCMP have arrested people for crossing a police tape line that was metres from the actual injunction line. The enforcement of this injunction has been a mess from the get-go, with nobody really understanding where they are allowed to stand and demonstrate, and where they have to avoid.”

Given the lack of clarity and the possibility that many arrests may have been illegitimate, the BCCLA questioned whether an expansion of the injunction area could be justified. Paterson added: “It’s bad enough that we may have dozens of unlawful arrests based on the existing, confusing injunction. Any legal restrictions on constitutional rights of freedom of speech and assembly must be absolutely clear and must be as minimal as possible. Now the court is being asked to expand the zone that protestors are forbidden to enter, in the form of a request to “clarify” the order. Clearing up the confusion should not require an expansion of the zone in which people are banned from expressing themselves. We can see no compelling legal justification to further restrict people’s right to demonstrate on Burnaby Mountain.”

The BCCLA acknowledged that there may be reasons for which people have been accused of breaching the injunction other than crossing the police tape line, but it is unclear whether such reasons would apply to individuals who simply walked across the police tape line.

The BCCLA took issue with the apparent excessive use of force against some protesters. Paterson said: “We have been extremely troubled to see video and photos of people being choked, thrown to the ground, and pinned to the ground, and we are looking into whether complaints should be filed against the RCMP and other participating police forces.”