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Lawrie McFarlane: Will Elizabeth May get her day in court for pipeline protest?

Elizabeth May, leader of Canada’s Green Party, stands on the brink of criminal charges, and it’s not at all clear she’ll escape. May and several dozen others were arrested last month after they violated a court injunction.
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Federal Green Party Leader Elizabeth May, centre, is arrested by RCMP officers after joining protesters outside Kinder Morgan's facility in Burnaby on March 23.

Elizabeth May, leader of Canada’s Green Party, stands on the brink of criminal charges, and it’s not at all clear she’ll escape.

May and several dozen others were arrested last month after they violated a court injunction. They were protesting within five metres of two Trans Mountain pipeline sites in Burnaby, defying a judicial order.

Now the judge overseeing the case has advised the Ministry of Attorney General that criminal charges should be laid. The ministry has responded by hiring two special prosecutors who will decide if May should indeed be charged.

The alternative is to leave it up to Trans Mountain to seek civil damages against May and the others. But as Judge Kenneth Affleck noted: “[These] are matters of public importance; they ought not to be left in the hands of a private litigant.”

And this is where it gets tricky — in several respects. Prosecutors have considerable leeway in deciding whether to press criminal charges. Among the considerations are whether the behaviour in question was particularly egregious and whether property was damaged.

The latter question is easily answered. Of course property was damaged, namely the survival of the pipeline, on which $1 billion has already been spent.

The parent company, Kinder Morgan, says the project is on hold and might be abandoned. (The B.C. government played a leading role in that.)

But was May’s behaviour “particularly egregious”? If we’re talking about some 20-year-old university student waving a hand-scrawled placard, I’d say no.

But May knew what she was doing, and deliberately courted arrest. This was, for her, a statement of defiance. One suspects she intended to make political capital out of the spectacle.

May wouldn’t be the first politician to benefit from a run-in with the law. History is full of political leaders who were jailed early in their careers and went on to conquer (there is no question of May being jailed).

Mohandas Gandhi, Nelson Mandela, Fidel Castro, Emmeline Pankhurst (the British suffragette who led the campaign for women’s voting rights) and countless others made capital out of their spells behind bars.

To crib from a Yes Minister episode, the letters JB — jailed by the British — were once a badge of honour in the colonial empire.

There are, of course, certain downsides in acquiring a criminal record, such as being barred entry to foreign countries. If that’s where this ends up, May could come to regret it.

But will it come to that? There was a time when I thought Crown prosecutors in B.C. were overzealous in their pursuit of political leaders.

A succession of premiers, including Bill Bennett, Bill Vander Zalm and Glen Clark, all faced criminal charges. Bennett was convicted (of insider trading), but Vander Zalm and Clark were acquitted. The charges against Clark, in particular, were a clear case of frivolous prosecution.

The appointment of two special prosecutors is intended, in part, to ensure impartiality.

Will May have her day in court then? I doubt it.

One of the additional considerations prosecutors must take into account is whether criminal charges would be in the public interest. Trials cost money, and May is unlikely to repeat her offence, since serious consequences would follow.

Moreover, while she is a sitting MP and leader of her party, she’s the smallest of small fry. Yes, she dishonoured her oath of office to uphold the country’s laws. And yes, if she and the others aren’t prosecuted, it’s open season on dams, mines, forestry operations, indeed any form of resource extraction — a.k.a. the B.C. economy.

But realistically, this is a storm in a teacup. Sometimes the best way to deal with petty nuisances is to ignore them.