Defence counsel says the court’s need to condemn the behaviour of the police far outweighs the public’s interest in punishing the accused, as closing arguments continued in an abuse of process hearing for three people arrested for blocking work on the Coastal GasLink (CGL) pipeline.
Justice Michael Tammen is hearing the abuse of process application 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, in B.C. Supreme Court in Smithers.
Tammen found the three guilty in January of criminal contempt of court for breaking an injunction against blocking work on the pipeline.
The abuse of process application alleges RCMP used excessive force while arresting the accused in November 2021, and the group was treated unfairly while in custody. It asks the judge to stay the criminal contempt of court charges or to reduce their sentences based on their treatment by police.
In closing arguments, Frances Mahon and Quinn Candler, lawyers for the accused, argued the three had several of their Charter rights breached during arrests, and the police action was disproportional to what was necessary to enforce the injunction.
“The police misconduct was egregious and was not isolated to a single event but followed from a flawed enforcement plan which manifested in predictable and serious consequences, which are likely to continue into the future unless addressed by this court,” said Mahon.
They argued the rights of the accused were breached by the amount of time they spent in custody before they saw a judge, as well as the suffering they continue to experience from PTSD, stress and anxiety caused by their arrests.
The defence also argued the RCMP created an environment where misconduct could thrive by officers not wearing badge numbers or name tags during enforcement, and minimizing the public record of the enforcement by not taking police notes and arresting people who identified as journalists.
Defence said the enforcement, which was carried out by the RCMP’s Community-Industry Response Group (C-IRG), now known as the Critical Response Unit (CRU-BC), deliberately picked which Charter rights to comply with.
It would shock the community “to know that this court condoned deliberate Charter breaches and severe anti-Indigenous racism,” said Mahon.
Crown begins closing arguments
In closing arguments, Crown lawyer Paul Battin said this abuse of process application fails to meet the bar for a stay of proceedings, and that the defence falls short of proving that Charter rights were breached.
“Police actions are not measured with the benefit of hindsight, or against the yard stick of perfection,” said Battin.
Battin argued the RCMP’s use of force was proportional and justified given the information the police had at the time of the enforcement and that they were responding to an emergency, as workers were trapped by the blockades.
Blockades prevented CGL from accessing camps where more than 500 people working on the pipeline were being housed, preventing workers from getting food, water and medical supplies, and preventing sewage removal.
“The applicants were in fact goading the police into arresting them,” said Battin.
However, Battin said the comments made by police about red hand prints over Sleydo’ and Sampson’s mouths — a symbol for missing and murdered Indigenous women and girls — were “clearly inappropriate, and represent an unawareness of the history of that symbol.”
Battin said the defence argument is overreaching; that the evidence brought forward does not support the level of misconduct the defence alleges.
Battin said there was no evidence of police direction about concealing their badge numbers, or name tags. Battin also said the defence argument relies on the experiences of several people not called as witnesses.
Further, Battin said testimony by Sleydo’, Sampson, and Jocko had flaws such as bias toward police, catastrophizing of situations, as well as a tendency to exaggerate.
The Crown will continue its closing arguments Thursday.