A BC Supreme Court judge in Smithers decided Tuesday, Feb. 18 that three Indigenous anti-pipeline protesters he found guilty in January 2024 of contempt of court will face reduced sentences.
Justice Michael Tammen, however, dismissed the application to stay the charges against Wet’suwet'en Nation’s Molly Wickham (aka Sleydo’), Gitxsan member Shaylynn Sampson and Corey Jocko, a Mohawk from Akwesasne.
Lawyers for the trio argued that RCMP officers violated the Charter of Rights and Freedoms and abused their power when they arrested Wickham, Sampson and Jocko in November 2021 to stop them from blocking construction of the Coastal GasLink Pipeline (CGL).
“The offending conduct here was serious,” Tammen said. “It involved a calculated, prolonged and well-organized attack on a court order, the actions of the accused were a clear attack on the rule of law.”
They contravened a December 2019-granted court injunction, but their supporters consider them “land defenders,” allies of Wetʼsuwetʼen hereditary chiefs opposed to a project that is favoured by elected band councillors. The hereditary chiefs’ protest campaign reached a peak in early 2020 with highway and rail blockades across Canada.
During his more than two-hour oral decision, Tammen rejected much of the defence application.
Tammen said there was “nothing arbitrary” about the transfer of the accused from Houston to Smithers to Prince George: Houston was the nearest RCMP detachment where they could speak to their lawyers after being arrested, Smithers was the nearest detachment with cell capacity, and Prince George met the requirements of the injunction with the most-adequate cell capacity for multi-day detention in Northern BC.
Tammen agreed police removal of Sampson and Wickham’s culturally significant personal belongings caused them great stress and the issue would be taken into account for sentencing. However, he did not find their Charter rights breached. On the contrary, he said they received “preferential treatment” in the lockup.
Later, Tammen focused on three areas: Comments made by police directed at Wickham and Sampson; comments about Nov. 18, 2021 arrestees; and failure by police to obtain a warrant to enter the tiny house and cabin in order to arrest the occupants.
Tammen said the Charter breaches that flow from the failure to obtain the warrant “were about as minor as could ever occur with warrantless arrests in a dwelling house.”
“The arrests themselves were both authorized pursuant to the injunction and there was no doubt that the unlawfully erected structures were going to be removed and the occupants arrested,” Tammen said.
However, on the comments to the arrestees, “I view the conduct as extremely serious, involving racism directed towards Indigenous women that is a group who have been systemically disadvantaged throughout virtually all sectors of the criminal justice system.”
At the time of their arrest, Wickham and photographer Amber Bracken wore audio recording devices, which police later seized. The recordings captured conversations between officers who jokingly likened the red handprints on Wickham and Sampson’s faces, symbolizing murdered and missing Indigenous women, to the monstrous orc characters in the Lord of the Rings.
Tammen called the remarks “grossly offensive, racist and dehumanizing” and said they were a breach of the Charter section guaranteeing life, liberty and security of person.
“I conclude that the alternative that is sought by the accused, a reduction in sentence, is appropriate,” Tammen said. “Each of three accused will be convicted of criminal contempt. When I consider the question of fit sentence for each, I will take into account the cumulative misconduct of the police.”
Tammen adjourned the case to April 3 for a hearing to schedule sentencing. He ordered reports to analyze how the trio’s Indigenous heritage influenced their actions.
The protest activity delayed, but did not stop, completion of the 670-kilometre pipeline from Dawson Creek to the LNG Canada plant in Kitimat.
CGL went into commercial service last fall. In November, CGL parent TC Energy estimated final project costs remain at $14.5 billion. TC Energy said it remains on track to deliver first cargoes by mid-2025.
