Trans Mountain decision tests mens rea in political arena

By John L. Hill

Law360 Canada (September 19, 2023, 1:41 PM EDT) --
John L. Hill
John L. Hill
Whenever we read a crime novel or watch a television program of this genre, the underlying question to be answered is, “Whodunnit?” The print or visual media rarely focus on a much more important question, “Why did the crime occur?”

Over the centuries, our criminal law has taken the approach that for a crime to exist, there must not only be a wrongful act but also a wrongful intent. The wrongful act, the actus reus, must be linked to the wrongful mental intent, the mens rea, before a suspected perpetrator can be found guilty. This is the bedrock of our criminal law.

Especially where important social issues are involved, such as Indigenous rights or environmental concerns, our focus on discerning mens rea and actus reus may be skewed to infer that a political motivation supersedes the true intention of the person accused of doing wrong.

The discernment of the true mens rea of James Leyden, who supposedly had violated an injunction against protesting a pipeline under construction, was at the heart of the British Columbia Court of Appeal decision in Trans Mountain Pipeline ULC v. Mivasair [2023] B.C.J. No. 1454.

On Dec. 2, 2019, Leyden was arrested at a protest of a pipeline under construction and accused of blocking the main entrance to Trans Mountain’s tank farm. This protest happened after Trans Mountain had successfully applied for an injunction against such demonstrations. The injunction had been in place since June 2018.

Once arrested, he was charged with criminal contempt for violating the injunction. Criminal contempt is a common law offence preserved under s. 9 of the Criminal Code.

Leyden was a 70-year-old Métis from the Anishinaabe and Ojibway 4 Nations who described himself as a “Sundance elder.” He had been asked to attend the protest to assist in keeping the peace and to act as a “watchman.” He was also there to conduct a pipe ceremony that police were prepared to allow.

Most of the time, Leyden’s conduct was observing the event and reporting to his village and the media what Indigenous groups saw as social wrongs, such as removing contaminated soil from Burnaby Mountain to be shipped to the Coquitlam Nation.

Leyden rarely interacted with the protesters except when he was arrested for mingling with the group when a blockade prevented vehicles from entering or exiting the main entrance to the Burnaby terminal. At the time of his arrest, he told police he was not there to participate in the blockage of the entrance in violation of the court order; he was there to calm restless protesters by pulling them into a circle, having them join hands and producing his pipe in a ceremony to keep the peace.

That was his defence at trial, but the court’s indignity of seeing a judicial order violated in a heated political standoff prevented the trial judge from calmly assessing a bedrock principle of criminal law: intention must be proven beyond a reasonable doubt. Seemingly, the trial court was willing to infer mens rea under the assumption people intend the consequences of their actions (Trans Mountain Pipeline ULC v. Mivasair 2020 BCSC 2246).

The trial judge had found that Leyden had actual notice of the injunction and its terms. She also found his transactions with the protesters in the crosswalk impeded access by Trans Mountain’s employees and contractors from gaining access and egress to their property.

Leyden successfully appealed, and a new trial was ordered. The appellant’s testimony about what he was doing and why was relevant to the mens rea determination.

While the trial judge was open to finding Leyden’s dispute about his intentions as incredible, she did not do so. Mens rea was a live issue at trial. By failing to go back to basics in criminal law analysis, the trial judge was swayed by side issues that caused her to accept that Leyden intentionally engaged in conduct that contravened the injunction. This reasoning was not sufficient to ground a conviction for criminal contempt.

The trial judge properly assessed the alleged offences who, what, when and where but failed to explain the why adequately. That may be acceptable for novels and television but cannot be the basis for a criminal conviction.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at

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