Defence counsel has recommended time served as an appropriate sentence for three Coastal GasLink pipeline opponents convicted of criminal contempt for blockading a worksite in Northwest B.C., near Houston.
Frances Mahon, defence counsel for Sleydo' (Molly Wickham), Shaylynn Sampson, and Corey Jocko, argued this morning (Oct. 16) that time already spent in police custody following their Nov. 19, 2021 arrests should constitute a fit sentence.
Mahon disputed the Crown’s argument that further jail time is necessary because contempt undermines the judicial process. She also said that a sentence of time served is needed to help repair the reputation of the justice system, citing what she described as abhorrent conduct by RCMP officers during the arrests.
In a ruling delivered during an abuse of process hearing in February, Justice Michael Tammen found that the RCMP infringed on the Charter rights of Sleydo', Sampson, and Jocko by failing to obtain a Feeney warrant before entering their homes and by making racist comments. While Tammen concluded the breaches did not warrant a stay of proceedings, he said he would consider a reduction in sentence.
In its submissions yesterday (Oct. 15), the Crown characterized the Charter breaches as low in severity, acknowledging that while the actions of police were inappropriate, they did not justify a significant sentence reduction. Prosecutors recommended a two- to five-day reduction for each defendant, proposing 30 days for Sleydo', 25 days for Jocko, and 20 days for Sampson.
Mahon agreed that the failure to obtain a warrant may be a minor breach on its own, but emphasized that Justice Tammen had described the police actions as "racist", "grossly offensive", and damaging to the integrity of the judicial process.
She described how two separate groups of officers were recorded mocking Sleydo' and Sampson for wearing red-painted handprints on their faces, a gesture made in solidarity with Missing and Murdered Indigenous Women, Girls, and two-spirit (MMIWG) persons.
On the tapes, which were played during the abuse of process hearing, officers are heard referring to them as “Orks,” a reference to the monstrous characters in the Lord of the Rings series.
Mahon said this was not only insulting to the individuals involved but also to the broader MMIWG movement.
She asked what message it would send to Canadians, international observers, and Indigenous people if individuals who had been treated in this manner were to receive further jail time.
"Further jail time will further degrade the reputation of the court," she said.
The Crown also argued that, based on four Court of Appeal decisions issued in the past 18 months, a defendant’s belief that their cause is just does not factor into sentencing unless a direct link can be shown between those beliefs and the contemptuous actions.
Today, Mahon said those decisions differ significantly from the current case. She cited the Supreme Court of Canada’s Delgamuukw decision, which recognized Wet’suwet’en rights and title to traditional territory, and referred to a memorandum of understanding (MOU) signed in 2020 between Wet’suwet’en hereditary chiefs and the governments of Canada and British Columbia.
She argued that the failure to meaningfully implement either Delgamuukw or the MOU constitutes the causal link missing from the previous cases referenced by the Crown.
Mahon also pointed to the lack of subsequent offences by any of the three defendants as evidence that justice has already been served. She said the high-profile nature of this and other criminal contempt proceedings has made it clear that breaching injunctions is taken seriously by the courts.
She concluded that the primary sentencing objectives of deterrence and denunciation—both for the individuals and the broader public—have already been met.
Mahon said that if the court does not accept her recommendation of time served, the remaining time should be served under house arrest.
