B.C. Prosecution Service asked to consider criminal charges in northern B.C. rail blockade case

The B.C. Prosecution Service has been invited to review arrests in a CN Rail injunction case in northern B.C. and consider possibly laying criminal charges.

Thirteen people, including three Gitxsan hereditary chiefs, were arrested Feb. 24 when the RCMP moved in to enforce an injunction at a CN Rail line in New Hazelton, B.C., at the height of nationwide protests and demonstrations in support of the Wet'suwet'en hereditary chiefs in the conflict over the Coastal GasLink pipeline. 

Hours earlier on Feb. 24, the Ontario Provincial Police arrested 10 people near Tyendinaga Mohawk Territory in the enforcement of a separate CN Rail injunction. 

At the time of the arrests in northern B.C., Gitxsan hereditary chief Spookw said his nation was taking a stand in support of the Wet'suwet'en hereditary chiefs, in part because, "the underlying issue to this whole thing is the title and rights, title to the land, the ownership of the land that Canada is refusing to deal with. Canada and British Columbia." 

The Gitxsan and Wet'suwet'en nations have a long shared history and worked side-by-side on the landmark Delgamuukw/Gisday'way Supreme Court case that ruled Aboriginal title in the region had not been extinguished. 

Chief's position is CN Rail was trespassing, says lawyer

CN Rail asked the B.C. Supreme Court to invite the B.C. Prosecution Service to review the evidence and circumstances of the arrests and to consider the possibility of criminal contempt charges, during a hearing via teleconference on Friday. 

In applying for the injunction, CN stated the blockade on the BC North Line was causing severe impacts and disruptions to its rail network. It also said the company moves about $135 million in commodities along the line between the Alberta border and Prince Rupert every day. 

Counsel for the railway allege the arrestees knowingly violated the injunction, in which the court ordered against trespassing on the CN rail line or doing anything to interfere with the movement of trains or rail operations. 

"It is the plaintiff's position that the allegations against the protesters are in the nature of criminal contempt," CN Rail wrote in its submission to the court. 

Twelve of the 13 arrestees were represented by defence lawyer Martin Peters.

Speaking on behalf of his client Spookw, Peters said "Chief Spookw's position is that CN was trespassing on Gitxsan land."

"There is very much a Gitxsan interest here and a Gitxsan right that was asserted to be where they are and I can just flag for everyone that if this matter goes forward, that issue of land claim and trespass will become much more salient," he said. 

In making his argument against getting the prosecution service involved, Peters cited the recent decision in the Coastal GasLink injunction case where Crown said it wouldn't be going ahead with criminal contempt charges. 

Filmmaker's arrest set apart from others

A 13th person who was arrested in February, filmmaker Melissa Cox, was represented by her own legal counsel. During the hearing it was decided that her case would be set apart and she will have a separate court hearing in August. 

After reviewing submissions from CN Rail and defence counsel, Justice Ward Branch sided with CN and agreed to ask the prosecution service to get involved in 12 of the arrest files.  

"Either a decision to intervene or to not intervene, either will assist the court in its evaluation of the public interest in the further pursuit of this matter," said Branch in explaining his decision. 

Absent the prosecution service's involvement, the injunction case is a civil matter rooted in the court injunction granted to CN in February.