A B.C. judge says police breached the charter rights of three people arrested for blocking work on the Coastal GasLink (CGL) pipeline, and they will receive a reduction in their sentences because of that.
The abuse of process application was brought by Sleydo’ (Molly Wickham), a wing chief of the Gidimt’en Clan of the Wet’suwet’en Nation, Shaylynn Sampson, a Gitxsan woman with Wet’suwet’en family ties and Corey Jocko, who is Kanien’kehá:ka (Mohawk) from Akwesasne.
Justice Michael Tammen found the three guilty last year of criminal contempt of court for breaking an injunction against blocking work on the pipeline back in November 2021.
Tammen read his decision in B.C. Supreme Court in Smithers Tuesday after more than a year of court proceedings.
The abuse of process application alleged RCMP used excessive force while arresting the accused in November 2021, and that the group was treated unfairly while in custody. It asked the judge to stay the criminal contempt of court charges or to reduce their sentences based on their treatment by police.
Tammen said it would be inappropriate to stay court proceedings, but found that some of the accused’s Section 7 rights— life, liberty, and security of person — were breached during the police raid.
Tammen said these rights were breached when several police officers on two different audio recordings were captured comparing Sleydo’ and Sampson to orcs and ogres for wearing red hand prints painted over their mouths — a symbol that represents missing and murdered Indigenous women and girls.
“I view the conduct as extremely serious involving racism directed towards Indigenous women, that is a group that has been systemically disadvantaged through all sectors of the criminal justice system for generations,” said Tammen.
Senior RCMP officers who gave evidence in the proceedings apologized for the behaviour of the officers, but Tammen said in his decision that he did not feel like these apologies were sufficient remedies for the prejudice and harm the comments caused.
He said he would consider a reduction in sentence as a capable remedy for this.
“The comments about the red face paint were not made by a single officer and were not a one-off occurrence,” said Tammen.
He said there were multiple offensive and discriminatory comments made by multiple officers on Nov. 18, 2021 and Nov. 19, 2021. RCMP’s Community-Industry Response Group led the enforcement.
“That is potentially a sign of systemic attitudinal issue within the C-IRG,” he said, but Tammen said there was no evidence that this offensive behaviour was encouraged or condoned more broadly within the RCMP.
Police needed warrants: judge
During the accused’s arrest on Nov. 19, Sleydo’ and Sampson were located in a small structure, referred to as the tiny house. When police knocked on the door of the tiny house, Sleydo’ said police needed a warrant to enter, but the RCMP breached the structure using a chainsaw, saying they could enter under the authority of the injunction.
Police also breached a separate structure where Jocko was arrested, referred to as the cabin. During these arrests, the people inside this structure also said that police needed a warrant to enter.
Tammen agreed in his decision that police did need a warrant to enter the structures.
“The breaches that flowed from that failure [to obtain a warrant] were about as minor as could ever occur with warrantless arrests in a dwelling house,” said Tammen.
He said there was no doubt that the occupants of the structure would be arrested and the structures removed, even if the RCMP did obtain a warrant.
Tammen said a stay in proceedings can only be granted in the clearest of cases, which he said this case is not. Tammen said the maximum sentence for criminal contempt is no more than five years imprisonment.
The court will schedule sentencing at a later date.
