The Wet'suwet'en, Gitxsan, and Haudenosaunee Nations are celebrating in Smithers this afternoon (Oct. 17) after a B.C. Supreme Court justice suspended the sentences of three Coastal GasLink pipeline opponents this morning.
In passing sentences of 30 days for Sleydo' (Molly Wickham), 25 days for Corey Jocko, and 20 days for Shaylynn Sampson, Justice Michael Tammen sided with the Crown that a significant sentence should be imposed.
In suspending those sentences, the judge agreed with the defence that further jail time would further deteriorate respect for the justice system.
The ruling hinged on the "serious misconduct" of RCMP officers during and after the trio's arrests on Nov. 19, 2021, and on the historical context that led to Sleydo', Jocko, and Sampson breaching a 2019 court injunction by blockading access to a worksite near Houston.
In January 2024, Tammen found the three guilty of criminal contempt for those actions.
Later, he presided over an abuse of process hearing in which the defence sought a stay of proceedings. He found that the RCMP had breached the defendants' Charter rights by failing to obtain a Feeney warrant to enter their residences and for making comments the judge called "racist, grossly offensive and dehumanizing."
He did not, however, feel the breaches rose to the level of a stay of proceedings, but did say he would consider a reduction in sentence.
In asking for jail time on the first day of the sentencing hearing on Oct. 15, prosecutors said police misconduct warranted a sentence reduction of two to five days.
The judge agreed and reduced the sentences by three days for the failure to obtain a warrant only.
The prosecution had also noted the defendants were entitled to a credit of 1.5 days for each day they spent in custody post-arrest, but argued against enhanced credit, citing the Criminal Code.
During the sentencing, though, Tammen said he did not feel constrained by the criminal code because criminal contempt was a common law conviction.
He noted that after their arrests, the trio were subjected to the "harshest possible conditions of confinement, arduous transportation, irregular meals and no amenities."
This included initially being housed in the Houston detachment, then moved to Smithers overnight and transported to the Prince George detachment the following day.
He credited all three defendants two days for each day incarcerated. That amounted to 10 days for Sleydo' and Jocko and eight days for Sampson, making the net sentences 17 days, 12 days and 9 days respectively.
Having ruled on those issues, the judge turned to his reasons for suspending the sentences.
During its submissions, the Crown relied heavily on four recent B.C. Court of Appeals decisions related to the Transmountain Pipeline and Fairy Creek old-growth logging protests.
In these cases, the Court decided the defendants' indigeneity and firmly-held beliefs were not mitigating circumstances in sentencing because there was no direct causal link between those background factors and the specific acts of criminal contempt by breaching court injunctions.
On the second day of the hearing (Oct. 16), defence attorney Frances Mahon argued the direct causal link was the historical legal circumstances of the Wet'suwet'en and Gitxsan Nations. Specifically, she invoked the 1997 Supreme Court of Canada decision in Delgamuukw/Gisday'wa, and a 2020 memorandum of understanding (MOU) between the Wet'suwet'en hereditary chiefs and Canadian and B.C. governments.
The judge said the failure to implement Delgamuukw and the MOU served as the backdrop for the offending behaviour of the defendants, something he had to consider in crafting a fit sentence. He said the moral blameworthiness of the defendants has to be assessed in this context.
That, coupled with RCMP misconduct, which he said was not only disrespectful to the individuals but to the entire MMIWG movement, led him to suspend the sentences.
He said he felt the sentences struck a balance between being punitive and restorative and hoped, in some small way, they advanced reconciliation and would preserve respect for the Court.
He also imposed 150 hours of community service work, which the defence had suggested as an alternative to further incarceration. Sleydo', Sampson and Jocko proposed they would use these hours to lead a traditional governance program for youth, which the judge accepted.
"It sounds like it should be a very enriching project for everyone involved," he said.
The trio will also be subject to a recognizance for one year. Provided they do not re-offend in that time, their sentences will be considered served.
Tammen concluded by praising the professionalism of the officers of the court, and the conduct and decorum of the defendants and all their supporters who showed up through all the proceedings.
He also particularly singled out Sampson, who, in exercising her right to address the Court, had called upon their Peoples' ancestors and sang a mourning song.
The judge called it "very moving."
"I am grateful for having had that experience," he said.
After the judge rose following the hearing, the packed courtroom erupted in applause and cheering, which carried over to the front of the courthouse as Sleydo', Sampson and Jocko emerged.
"I just want to thank everybody for coming, and also just to thank our niwhts'ide'ni, our ancestors, for all the work that we could be here today, and the words and the teachings and the laws that they fought to hand down to us, so that we had something to stand on during all of this," Sleydo' said.
"And that was the most empowering thing. And the most important thing to me was that no matter what they said, no matter what they did, they couldn't touch us, because we're standing on what our ancestors fought and died for."
She also thanked all their supporters for showing up and expressed great relief that she wasn't going to jail, which garnered more raucous applause.
Sampson was also grateful for all the support and vowed to fight on.
"Since the beginning, I feel like we've always known that justice wouldn't flow from these halls," she said. "Justice comes from being on our land and occupying our territory and living and breathing life into our cultures, the Gitxsand and and the Wet'suwet'en and the Haudenosaunee are strong people, some of the first and the last people to be colonized on these lands, and we stand here today stronger than ever to continue this fight for our people, for the future generations."
Jocko said he was honoured to stand beside the Wet'suwet'en and Gitxsan in their struggles.
Mahon said the ruling was the best possible outcome they could have hoped for.
"In the circumstances, the judge did an excellent job pulling together all of the points that we've been making for the past three years," she said.
"He learned from us about Wet'suwet'en, Gitxsan and Haudenosaunee law and history and the fight of those three nations since colonization. He took that in and he learned from it, he was humbled by it, and that's why we got the decision that we got today."
