Potential consequences of civil disobedience on Cortes Island
This article is based on interviews of three lawyers, the Protesters’ Guide to the Law of Civil Disobedience in British Columbia, and Civil Disobedience: a legal handbook for activists (1999). Some of the sources provided conflicting information. Nothing in this article should be construed as legal advice. Persons considering peaceful civil disobedience need to speak directly with a lawyer.
On Cortes Island, after last week’s blockade,Island Timberlands informed the protesters that it would not seek an injunction this week as expected, and would meet with Cortes representatives.
Cec Robinson of Cortes Island told the VO, “We hope that the meeting Island Timberlands asked for this week will result in resolution of the conflict. If we fail to achieve agreement, we expect that Island Timberlands will seek a civil injunction. If an injunction is ordered, we want people who choose peaceful civil disobedience to fully understand the implications of their choice. We also want everyone to know that their presence at the protest is very important, whether or not they choose to risk arrest.”
If a solution to the conflict on Cortes is not found, people who are considering violating a civil injunction against blocking Island Timberland’s access should inform their choice with knowledge of: 1) all the possible consequences; and 2) consequences that have commonly occurred in the past. In addition, they should retain a lawyer.
According to lawyers with experience in this area of practice, a corporation can obtain a civil injunction on an ex parte basis, with no representation of the persons against whom the injunction is sought. If the persons committing peaceful civil disobedience have already retained a lawyer, they have a right to be represented and have arguments presented on their behalf regarding their constitutional rights.
Once a civil injunction is issued, it is presented to the persons committing peaceful civil disobedience. If the blockaders persist with knowledge of the injunction, the corporation will return to court for an order holding them in contempt of court. The RCMP may enforce that order and take the blockaders into custody. The RCMP commonly gives the blockaders time to disperse and arrests only those who choose to remain. The blockaders will be held at the closest possible processing center (there is one on Quadra Island) before being brought before a judge. The hearing before a judge usually occurs within 24 hours. The charge is usually criminal contempt of court. A sentencing date is set.
According to two lawyers, common penalties include a fine of a few hundred dollars and/or community service. Jail time is possible but less likely. According to a third lawyer, jail time should be expected. During the Clayquot blockades, jail sentences ranged from several days to over a week for the first time violation of a court order. (One Clayquot veteran recalls at least one six month sentence.) Two of the lawyers noted that during Clayquot, the courts issued sentences of increasing severity to send a message to a large numbers of people and to persons who repeatedly violated court orders.
All three lawyers noted that courts view the violation of an Order of Contempt as disrespect for the rule of law and not a comment on logging practices. It can be important to establish one’s respect for the court and the rule of law, distinguishing this from one’s view of industrial logging practices.
Blockaders might be released if they are willing to sign an undertaking that they: 1) will return to court for sentencing at the scheduled date; 2) will not return to the site of the blockade; and 3) will not engage in other illegal activities. The length of time until sentencing can depend on the number of people involved and whether they choose to plead guilty or contest the charges.
If persons violate the undertaking, the stakes get higher and jail time is a near certainty. In the past, jail terms have ranged from seven to fourteen days for persons with no prior record. Betty Krawczyk,[iii] who repeatedly blockaded in violation of court orders, spent 10 months in jail at one time.
Repeated violation of an injunction may increase the likelihood of a civil suit by the corporation that obtained the injunction. According to one lawyer, civil suits for damages are not common but have been brought against key individuals for the purpose of compelling a public apology. It is more common for a corporation to enforce an injunction and then let it drop.
While courts do not generally invoke the maximum possible penalties, it is always possible that they will do so. The Protesters’ Guide to the Law of Civil Disobedience in British Columbia explains the maximum consequences and is necessary reading for persons contemplating arrest for peaceful civil disobedience.
The RCMP have the discretion to arrest persons committing peaceful civil disobedience under criminal statutes, although this is less common than a conviction for criminal contempt of court. According to the Protesters’ Guide to the Law of Civil Disobedience in British Columbia, mischief is the most common criminal charge. The offense of mischief is broad in scope and includes destroying, damaging or rendering inoperative property or preventing and interfering with its lawful use. It includes creating a human barricade so that no person can pass. When thirteen climate activists blocked a coal train In White Rock last spring, the RCMP exercised its on-the-ground discretion to charge them under Railway Act although the Burlington Northern Santa Fe Railway had obtained a court injunction that would have been grounds for arrest.
Consequences of having a criminal record, either for criminal contempt of a court order or for a crime such as mischief, can include limitation of job prospects, deportation from Canada for visitors or landed immigrants and difficulty entering foreign countries. Under the US Immigration and Nationality Act it is illegal to enter the US unless you have a waiver, which can take months and are valid for one year.
Once a person is arrested for blocking the activities of a logging company, they can be sued for the cost of their actions to the logging company. Claims for compensation can include: court costs; the pay of the crew that wasn’t able to do its work; the cost of leased machinery that stands unused; or loss of profits for interference in contractual relations, such as contracts for the export of logs. The logging company can decide whether to sue a single individual for all its claims, or sue everyone involved. If it receives judgment in its favour, it can enforce that judgment against only one person or against all who are named in it.
Have people lost their houses?
To the knowledge of the lawyers I spoke with, this has never happened in the past. Civil suits have been brought but more often a corporation will drop a case once an injunction is enforced. One lawyer mentioned a modest claim for loss of wages in an action brought by union members against blockaders. Another was sued for $10,000 and the claim was dropped following a public apology.
Have people been barred from entering the US?
None of the lawyers were aware of a case in which a person had been denied access to the US on the sole basis of a conviction for criminal contempt of court.
In one instance, a person with repeated convictions for criminal contempt of court was turned away due to more complicated circumstances. Both the US and Canadian governments are growing more strict over time. Canadian citizens with criminal convictions from the Clayquot blockade in general have travelled to and from the US without difficulty. Contempt of court may be treated differently than other kinds of criminal record. One lawyer thought a person would be more likely to be denied entry if they were going to the US for purposes of joining a protest.
None of the lawyers had heard anecdotally of difficulty entering other countries.
If I have been ordered to not return to the blockade site, can I return for purposes of support if I do not commit civil disobedience a second time?
That will depend on the breadth of undertaking, the specifics of injunction and the decisions of the RCMP.
What is jail like?
A Clayquot veteran who was incarcerated three times in Nanaimo stated that he did not fear for his personal safety. The food was the worst part of his experience. The opening chapter of Betty Krawczyk’s book This Dangerous Place (available in ebook form from amazon.ca) describes her experience in a women’s correctional centre.
If I don’t want to get arrested, can I still come to Cortes to legally protest Island Timberlands’ planned logging activities?
Community organizers told the VO that supporters of the Cortes forests will play a valuable role by showing up at the site of the protests, whether or not they plan to risk arrest by physically blocking Island Timberlands’ access.