Closing arguments begin in Wet’suwet’en abuse of process hearing over B.C. pipeline blockade | CBC News

Closing arguments are underway in B.C. Supreme Court for an abuse of process application brought after three people were charged with criminal contempt of court for breaking an injunction on the Coastal GasLink pipeline. 

Justice Michael Tammen is hearing the abuse of process application brought by Sleydo’ (Molly Wickham), a wing chief of Cas Yikh, a house group 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, which straddles the Quebec, Ontario and New York state borders. 

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.

Defence lawyer France Mahon began the closing arguments Monday for the accused by saying that the police conduct in this case was so egregious that if the court were to convict the accused, it would undermine public confidence in the justice system. 

“The police may act as they wish without consequences when enforcing court orders, and secondly that the police can pick and choose between charter rights when enforcing a court order,” said Mahon. 

In particular, Mahon said, if the court does not distance itself from racist jokes made by police heard in court referring to Sleydo’ and Sampson as orcs and ogres, it would show the public that the officers’ attitudes towards Indigenous people are permitted and that there are not consequence for people who hold racist beliefs. 

“This would also reinforce a lack of trust between Indigenous people and policing services and could prevent mediated outcomes in future conflicts,” said Mahon. 

Mahon said that by staying the proceedings, the court would reassure the public that police can not disregard people’s charter rights. 

Charter 15 rights breached, defence argues 

Mahon argued that the accused’s Section 15 charter rights were violated during their arrest on Nov. 19. Section 15 outlines a person’s equality rights, granting individuals equal benefit and protection from the law without discrimination. 

Mahon said this right was breached on several occasions, such as when two separate groups of RCMP officers made racist jokes towards Sleydo’ and Sampson because they were wearing a red handprint symbol over their mouths to represent missing and murdered Indigenous women and girls (MMIWG). 

Further, she argued Sleydo’ and Sampson’s rights were breached when cultural items were forcibly removed from them when being processed at the Prince George RCMP detachment, and that their move to this detachment unjustly took them from their traditional territory. 

Mahon also said the RCMP wrongly interpreted Haudenosaunee symbols present at the blockades, such as the Kanien’kehá:ka (Mohawk) warrior flag, as symbols of violence and used it to justify their use of force. 

Warrants were needed to enter structure 

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. 

Mahon argues that the tiny home and the cabin did, in fact, qualify as a dwelling house under the Criminal Code, and the police unlawfully entered the structure without a warrant. 

She argues this is a breach of Sections 8 and 9 of the Charter of Rights and Freedoms. Section 8 protects a person’s right to be secure against unreasonable search or seizure, and Section 9 protects a person’s right not to be arbitrarily detained or imprisoned.

Mahon referred to many other legal cases where structures that were not typical of a permanent home were ruled to be dwelling houses and that the court should consider that the structures were being used as homes. 

Police searched the tiny house after the occupants were arrested and taken from the structure. Evidence of items found during the search was presented in court. 

Mahon said even if the court rules that the structures do not count as dwelling houses, the occupants had a reasonable expectation of privacy in the structures, and that there was no lawful reason to search the contents of the tiny house. 

Further, Mahon points to testimony made in court where police had discussions about the need for a warrant and inquired about whether they needed one to enter the structures. However, Mahon said no efforts were made in the planning of the police action to acquire warrants. 

Mahon said the injunction does not explicitly or implicitly allow the police to enter or search dwelling houses on the injunction site without a warrant. 

Closing arguments will continue on Tuesday.