VANCOUVER — Anti-pipeline protesters have made a calculated effort to blockade two Trans Mountain work sites in Burnaby, says a British Columbia Supreme Court judge who scrapped a 10-minute pre-arrest warning and expanded an injunction to include other facilities used by the company.
Justice Kenneth Affleck said Friday he would have some sympathy for people opposed to Trans Mountain's application to vary his March 15 order prohibiting protests within a five-metre buffer zone, but an abundance of evidence indicates people have found ways to get around it.
"In my view, the clear attempt to frustrate the injunction is not acceptable and there needs to be a means by this court to determine that its orders are respected," Affleck said.
"They have a right to make their views known in a way that captures the attention of the world, if they wish to do so, but they are not entitled to block what is lawful activity."
In eliminating the 10-minute warning, Affleck amended the written injunction order to add what police would say before arresting people, including informing them they will be arrested if they continue breaking the law and that they may face charges.
Trans Mountain lawyer Maureen Killoran told Affleck that protesters have used a "workaround" to flout the injunction, which applied to the Burnaby Terminal and the Westridge Marine Terminal.
Killoran said affidavits from two investigators working for the company indicate protesters have been bent on maximizing disruption at the two construction sites by "tag teaming" to avoid arrest after police read them the injunction order and gave them a 10-minute warning.
She read Facebook posts of a group called the Justin Trudeau Brigade, which urges protesters to leave a blockade just before the warning time is up as they are replaced by another group and police have to read the injunction order again as the process is repeated.
Killoran said an RCMP officer's affidavit outlines how protesters at the Burnaby work sites have taken advantage of the 10-minute warning period and slowed down the enforcement process, resulting in fewer arrests, more work for police, and no repercussions for protesters.
"This is the mischief we are here to address," Killoran said, adding protest organizers are committed to stopping Trans Mountain trucks from entering construction sites and have climbed on top of a tunnel boring machine at a storage facility in Delta, B.C.
She said activists aim to blockade other locations where the company might store equipment or have contractors working on the project, prompting Affleck to grant a request to extend the five-metre limit beyond Burnaby, in areas where the company's contractors and subcontractors may work. He also allowed the company to post warning signs 10 metres from work sites.
Dozens of protesters have been arrested since protests escalated last November. Many of them have appeared before Affleck this week to plead guilty to criminal contempt of court for violating the injunction and to pay fines or commit to community service. Others have yet to make court appearances.
Neil Chantler, a lawyer for one of 15 defendants named in a notice of civil claim, called Trans Mountain's request to expand the injunction too broad and said the company was being hypothetical in assuming people would protest beyond Burnaby but had evidence only on the incident at the Delta facility.
"Trans Mountain is trying to get a carte blanche order that it may wield in the future wherever it chooses, much to the detriment and uncertainty of the general public," Chantler said.
However, Killoran said there is nothing hypothetical about Trans Mountain's intention to protect its work sites while continuing a project that the federal government has approved.
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