In a spate of recent decisions, the Alberta Courts have made it very clear that organized civil protesters charged with criminal offences will not benefit from the sort of leniency usually afforded to non-violent, first-time offenders.
The Criminal Code of Canada states that “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
The purpose of sentencing is “… to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society…” This involves, among other things, striking a balance between the best interests of the public, and the best interests of the offender.
The Court’s recent decisions emphasize an intention to deter like-minded individuals from participating in similar campaigns in the future, citing the potential danger protesters can cause to themselves and others, and the subsequent preoccupation and expense of allocating private and public emergency resources to mitigate said dangers.
Individuals who consciously and deliberately commit unlawful acts for the purposes of promoting or communicating an ideological message will not be excused from the legal ramifications, particularly where protesters’ unlawful activities pose a risk to themselves or others. Civil protesters convicted of trespass, mischief or related offences can expect to receive the maximum fine (up to $2,000) with little opportunity to avoid a criminal record. Consider the following three cases.
In 2010, seven protesters were charged with mischief for rappelling down the Calgary Tower to display a Greenpeace banner in 2010. The protesters took precautions and no one was hurt, but the building was shut down and officials diverted traffic on the busy streets below. In his written decision, Judge Fradsham acknowledged the altruistic intentions behind the protesters’ activities, but nonetheless denied the offenders discharges and fined them $2,000 each. He cited concerns over the civil and commercial disruption caused by the protesters’ activities and the potential for risk to the public as aggravating factors at sentencing.
In the case of the 2009 Shell Scottford occupation, 12 Greenpeace activists triggered an emergency shutdown of the complex that lasted for 24 hours and resulted in the attendance of 57 police officers, many of whom had to undergo safety training before they were allowed to enter the site. Although protesters were relatively well-equipped and had received at least some training, several required assistance climbing down from their posts due to extreme cold. Judge Maher inferred that the shutdown of the plant caused an economic loss for Shell, and for each of the neighbouring municipalities that dispatched emergency services to the site. He imposed a fine of $2,000 on each offender, even though the Crown had only asked for fines of $1,000.
Twenty-one police officers responded to the call when 11 Greenpeace activists caused operations to be suspended for several hours at the Suncor mine site near Fort McMurray in 2009. Individuals involved were charged with causing a disturbance and other offences under the Petty Trespass Act. Each of them pled guilty. Again, Suncor’s economic losses were inferred, and the judge accepted the Crown’s evidence that the protesters’ activities endangered themselves, and the 75 employees working on site that day. He refused discharges and imposed a $2,000 fine on each of the accused.
Generally speaking, Courts have the discretion to afford a certain degree of clemency to persons alleged to have committed relatively minor, non-violent offences, particularly where the offender does not already have a criminal record, is cooperative with police, and accepts responsibility for their actions.
The Court’s discretion extends as far as the granting of conditional or absolute discharges which relieve an otherwise sympathetic offender of the impact of a criminal record. An offender is less likely to be granted a discharge where the crime is calculated, is of a serious nature, involves a breach of trust, is motivated by self-interest, or results in damage to property of value, among other factors.
None of the offenders in the aforementioned cases had previous criminal records. Each pled guilty. There was evidence before the Courts that some apologized to individuals inconvenienced by their actions.
The protests in the above-noted cases were clearly calculated, planned efforts, but were neither violent, nor threatening in nature and none involved the participants breaching a relationship of trust. Some would argue that participants were motivated by a self-interest to communicate their personal beliefs, but if that is so, it is necessary to differentiate between the kind of self-interest involved in, say, the theft of money from an employer, and the kind of self-interest that desires to mitigate the effects of climate change for future generations. Damage to physical property was minimal, if at all, but in each case the Courts inferred a loss of profits for the occupied facility. Given the circumstances, and the (generally) sympathetic reputation of the offenders, a discharge would seem appropriate.
Yet the Courts have clearly set their sights on general and specific deterrence, imposing unusually stern sentences on all those involved, irrespective of their idealism, youth, character, or reputation as active members of their communities.
Usually, the importance of personal and general deterrence involves consideration of the frequency with which the offence occurs in the community, public attitude towards the offence, and public confidence in the effective enforcement of criminal law.
The sorts of offences involved in these cases are relatively infrequent and the communities in which they occurred are geographically distant from one another. Civil disobedience is viewed with approval by at least some degree of the general public, as a time-honored tradition for effecting positive change. So why the pressing need to deter?
The perceived need for deterrence may be attributable to the Courts’ broader interpretation of “frequency in the community,” to include the ideological communities created by organizations like Greenpeace, that have a demonstrated capacity to continuously recruit protesters prepared to engage in this sort of activity. There appears to be a general concern that one protester will simply be replaced by another, and another after that. These decisions reflect an apparent intention of the Courts to terminate the cycle of illegal, albeit well-intentioned, ideological stunting that puts members of the public at risk, disrupts local commerce and often requires considerable public resources to diffuse.