Trans Mountain Pipeline lawyers were in B.C. Supreme Court Thursday morning trying to shut down an injunction loophole anti-pipeline protesters have allegedly been using to avoid arrest while still slowing down work on the project.
The company had planned to present affidavits from two private investigators who infiltrated a protest on May 25 and another affidavit from a Burnaby Mountie raising concerns about a drain on police resources after a change in protester tactics.
But defence lawyers argued Trans Mountain hadn't given defendants adequate notice of the application, and the matter was scheduled for a hearing Friday at 9:15 a.m.
Since March 15, a court injunction has banned protesters from getting within five metres of Kinder Morgan’s two terminals in Burnaby.
On April 9, Justice Kenneth Affleck, who issued the injunction, said protesters arrested for breaking it should be prosecuted for criminal rather than civil contempt.
Soon after that decision, Burnaby RCMP Const. Scott LaFreniere said protesters changed tactics to avoid arrest.
The RCMP’s interpretation of the injunction, he explained in a May 30 affidavit, is that police shouldn’t arrest people violating the injunction unless they’ve been read the order and given 10 minutes to comply.
Since April 20, he said protest groups have exploited that 10-minute window by working in waves.
“The RCMP has, for several weeks, been concerned that protest groups would take advantage of, and are taking advantage of, the 10-minute waiting period after the injunction order is read as it offers the opportunity for them to move small groups into place, wait for the reading of the injunction (8-10 minutes per reading on average), wait during the 10-minute waiting period, and then leave,” LaFreniere stated.
As a result, only a fraction of the people blocking work at the site have been arrested, but the RCMP is still spending about eight or nine hours attending each protest, he said.
“This change in protester tactics results in no repercussions for those persons breaching the injunction order (including those blocking access), but has a significant impact on RCMP resources,” LaFreniere said.
Trans Mountain’s application also includes affidavits from two private investigators who infiltrated protests on May 25.
Warren Forsythe and Terry Shendruk joined protesters at the Westridge Marine Terminal and later at the Burnaby Mountain tank farm, according to investigation notes submitted with their May 30 affidavits.
The pair mingled with protesters and took photos on their phones, according to the notes.
When asked by protest organizers, Forsythe provided a fake name, phone number and email address.
Both private investigators report being told by protest organizers how people could avoid arrest by leaving the injunction zone before the end of the 10-minute period with help from an organizer timing the process.
In its application to have that loophole closed, Trans Mountain argues protesters are “structuring their tactics to avoid the spirit and intent of the injunction order.”
“The amendment to the injunction order Trans Mountain seeks are necessary to prevent blockade participants from engaging in further unlawful activity that contravenes the injunction order and interferes with Trans Mountain’s work, operations and legal rights,” states the application.
Under its proposed amendments to the injunction order, Trans Mountain is calling on the court to give protesters a “brief opportunity” to comply with the order instead of the current 10 minutes.
The company also wants the injunction order changed to allow for warning signs and loud speakers to be used to give protesters notice of the injunction and of the risk of “immediate arrest” if they break it.
Trans Mountain argued the application was urgent because of protests planned Friday.
With files from Kelvin Gawley.
