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Kinder Morgan pipeline protesters who have been arrested for civil contempt at the company’s Burnaby Mountain facilities will learn on Monday whether they will face criminal prosecution.

More than 170 people have been arrested since mid-March in Burnaby for violating a civil injunction obtained by Kinder Morgan, and the majority have been charged with civil contempt of court.

However, B.C. Supreme Court Justice Kenneth Affleck has called on the province to take over the prosecution, saying a private litigant should not shoulder the responsibility for the prosecution.

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Justice Affleck has told the defendants in his court that if the allegations are proved, they should expect to be tried for criminal contempt of court, because they have defied a court order in a public manner. A criminal conviction can result in more severe penalties including jails, fines, or both.

Among those arrested are the federal Green Party Leader Elizabeth May and New Democrat MP Kennedy Stewart.

Alex Neve, secretary-general of Amnesty International Canada, urged the province to be cautious about elevating the charges from civil to criminal.

“The right to peaceful protest is essential and fundamental,” he said in an interview.

“We would want government to send the signal that regard for the essential rights at the heart of peaceful protest do matter,” he said. “There shouldn’t be a rush to assume criminal sanctions are the preferred or appropriate response.”

The B.C. NDP government opposes the company’s Trans Mountain pipeline expansion project, saying it poses too great a risk to the marine environment owing to increased oil-tanker traffic. The government has been in the Federal Court of Appeal seeking to overturn the federal environmental certificate that permits Kinder Morgan to build the $7.4-billion project.

Read more: What if the Trans Mountain pipeline is never built? (for subscribers)

However, the decision to intervene – or not – rests with an independent branch of the Ministry of the Attorney-General: BC Prosecution Services (BCPS). Lawyers for the branch will be in court on Monday with a response to Justice Affleck’s request.

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Government policy states that Crown counsel has the authority to take over private prosecutions if it is deemed to be in the public interest.

A spokesman for Prosecution Services, Dan McLaughlin, said in an e-mailed statement that the branch is reviewing the facts of the cases in response to the request of the court. “The BCPS will consider whether an allegation of contempt of court meets its charge approval standard and, if so, will assume conduct of the prosecution,” he wrote.

According to the current charge approval standards, “This will usually occur where the conduct disobeying the court order tends to bring the administration of justice into public ridicule or scorn or otherwise interferes with the proper administration of justice.”

The largest act of civil disobedience in B.C. occurred 25 years ago over logging in Clayoquot Sound on Vancouver Island, resulting in more than 800 arrests.

Valerie Langer, a lead organizer of those logging blockades, said she expects those who were arrested at the pipeline protests this spring will face criminal charges – a pattern that was set in 1993 in the Clayoquot trials.

That means that defendants will face more serious consequences with fewer options to defend their actions. “There will be only one question asked, ‘Did you know about the injunction.’ Your reasons for defying the injunction are irrelevant,” she said.

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Ms. Langer said she is hopeful that Crown counsel will seek only minimal sentences if they do take over the prosecution.

“We are talking about climate change, and the risk of an oil spill. Is that a criminal insult to the courts? Or is this our society, in the throes of a social evolution?”

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