MPs Elizabeth May and Kennedy Stewart could face prosecution for criminal contempt

Even if convicted and jailed, they likely won't be forced to vacate their seats

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      Two B.C. members of Parliament might go to jail for disobeying a court order.

      Today, the B.C. Prosecution Service announced that criminal contempt charges are warranted for those arrested for protesting within five metres of Kinder Morgan's Burnaby tank farm.

      B.C. Supreme Court Justice Kenneth Affleck stated earlier this month that he felt that criminal rather than civil proceedings were justified in connection with the demonstrations.

      Green Party of Canada Leader Elizabeth May and Burnaby South NDP MP Kennedy Stewart were among those taken into custody for refusing to adhere to a B.C. Supreme Court injunction ordering protesters to stay five metres away from the gates.

      Vancouver lawyer Michael Klein has been appointed special prosecutor to deal with the charge against Stewart.

      Another Vancouver lawyer, Greg DelBigio, will be the special prosecutor overseeing the case against May.

      "Both Special Prosecutors have been given mandates to conduct an independent review of the evidence to determine whether the actions amount to criminal contempt of court," the B.C. Prosecution Service stated in a news release. "And, if they determine that prosecution for criminal contempt is warranted, [they will] conduct the prosecution and any subsequent appeal."

      Under the Criminal Code of Canada, prosecutors have two options for charging a person who, "without lawful excuse, disobeys a lawful order made by a court of justice".

      It can be classified as an indictable offence liable to imprisonment for no more than two years. Or it can be an offence punishable on summary conviction, which carries lighter penalties.

      Under section 750 of the Criminal Code of Canada, an MP must vacate their seat if convicted of an indictable offence "for which the person is sentenced to imprisonment for two years or more".

      A report by James R. Robertson for the Parliamentary Research Branch's law and government division stated that an MP or senator can remain in office if the prison sentence is less than two years.

      "Notwithstanding the legal provisions, however, by virtue of parliamentary privilege, the Senate and the House of Commons have the right to expel their members," Robertson wrote. "This is a power that has seldom been exercised, partly because it is so extreme. On two occasions in the 1870s Louis Riel was expelled from the House of Commons and in 1891 Thomas McGreevy was expelled after being judged to be guilty of a contempt of the House." 

      The only MP in history who lost his seat after being convicted was Fred Rose. The Labour-Progressive Party politician from Cartier, Quebec, was found guilty of treason in 1946 and sentenced to six years in jail. One of those he defeated in the 1943 election was future NDP leader David Lewis.

      Rose was found guilty of spying for the Soviet Union and was released from jail in 1951. He later moved to Poland, was stripped of his Canadian citizenship, and the act was later changed to prevent anyone's citizenship from ever being taken away in the future.

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