Line 9 protesters beat bad rap

Lawyers contend charges laid in the case and eventually dropped are part of growing trend of intimidation aimed at activists

It was the first time anyone in Ontario activist circles could remember a charge of mischief endangering life, which carries a maximum sentence of life in prison, being laid against protesters.

But on January 13 in a Sarnia courtroom, all charges against Vanessa Gray of the Aamjiwnaang First Nation, Stone Stewart and Sarah Scanlon were dropped. They had played a part in shutting down a section of Enbridge’s Line 9 pipeline outside Sarnia on December 21, 2015. That was shortly after an intense fight over the retrofitting of the pipeline and reversal of its flow to carry crude from Alberta and other deposits to refineries near Montreal.

The reason the Crown, Nila Mulpuru, gave in court for withdrawing charges was that there was no reasonable chance of a conviction on the more serious charge or two other charges of mischief over $5,000 that carry a maximum sentence of 10 years’ imprisonment. 

She said it would not be worth the time and cost – in other words, it was not in the public interest – for the Crown to pursue these charges. Mulpuru noted in court that “Enbridge has been thoroughly consulted” throughout the case, though an Enbridge spokesperson later commented that the company was “disappointed” with the outcome.

Outside the courthouse, Nick Cake, one of two lawyers acting for the defendants, gave his take on the decision. 

“In order to convict someone of mischief endangering life, you have to prove that there was an actual danger to life,” he said. In this case, Gray, et al., called Enbridge to ask that the line be shut down (documents read by Mulpuru in court say the company shut the line as a precaution) before using bicycle locks to attach themselves to an emergency shutoff valve on the pipeline.

Cake contends the case was part of a trend of increasing intimidation of protesters.

“Look at all the different actions that are going on now across Turtle Island, across North America.”

Gray, who went on a speaking tour to raise money for her legal defence, calls the charges “a little bit overdramatic. They almost made us seem more interesting than we are and… bigger and more dangerous than it actually was.”

In a separate case in Toronto, a charge of disguise with intent, which carries a maximum 10-year prison term, was dropped December 27 against six individuals after a theatrical protest at Queen’s Park on June 23 drawing attention to the province’s decades-long mishandling of mercury poisoning on the Grassy Narrows reserve.

The protesters dumped barrels of liquid labelled with a poison symbol and the words “Mercury Kills” in front of Queen’s Park. 

Hazmat teams showed up within minutes.

Karl Gardner, one of the six, believes intimidation played a role in the charges in the case “because the Ontario government wants to make this go away.” 

Situating these events in the long history of protest, York University sociology professor Lesley Wood sees the recent verdicts as interesting, she writes in an emali to NOW, because they involve movements “that are gaining traction” and “both protests were direct actions perceived as threats to ‘critical infrastructure.'”

Critical infrastructure is defined by Public Safety Canada as “processes, systems, facilities, technologies, networks, assets and services essential to the health, safety, security or economic well-being of Canadians and the effective functioning of government.” As related to these activist movements, Wood writes, “In particular, there are serious worries about the disruption of pipelines, highways and railways.”

Wood notes that “since 9/11 there has been an integration of national security, policing and private security infrastructures. This has meant that these protests aren’t seen through the lens of protest alone, but in the same category as terrorism and threats to national security.”

As to whether it is a piece of “critical infrastructure,” the legitimacy of Enbridge’s Line 9 is currently being weighed by the Supreme Court of Canada. The Chippewa of the Thames First Nation near London claims it was not adequately consulted on the project, so reversal of the flow of Line 9 should not have been approved. 

How will Enbridge – and our governments – respond to dissent over the project, and others like it, in the future? 

Lawyer Phillip Millar speculates that charges against protesters will continue to escalate. 

“We can anticipate that they’re going to try to deter this, and they need to figure out a way to do it. I don’t know how they’re going to do it – with different charges or civil actions (i.e, suing for damages).” 

Gray argues that the withdrawal of charges in her case “makes a path for other Indigenous land defenders to stand up and to push the extra little bit further [when] coming face to face with police and oil companies.” | @nowtoronto

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