RCMP Violated Charter Rights During CGL Arrests, Court Finds

A B.C. Supreme Court decision issued yesterday is “precedent setting,” according to a lawyer for three Indigenous land defenders arrested in 2021 along the Coastal GasLink pipeline route.

“The courts found the conduct of the police officers abused the court’s process. This is an extraordinarily rare finding, and it demonstrates how serious the police officers’ misconduct was,” Frances Mahon said during a press conference following the decision.

“In particular, it was a rebuke to the C-IRG members who thought it was appropriate to say the most egregious, racist things about beautiful Indigenous women when they thought nobody could hear them.”

While B.C. Supreme Court Justice Michael Tammen denied the defence’s request to dismiss the charges based on police conduct during the arrests, he found that Charter rights violations by RCMP officers could signal a “systemic attitudinal issue” within the unit responsible for policing protests in the province, something he said he will consider during sentencing.

C-IRG, the Community-Industry Response Group, is an RCMP policing unit established in 2017 to respond to resource-extraction industry conflicts. The unit, which was renamed the Critical Response Unit-British Columbia, or CRU-BC, and had its mandate expanded last year, faces broad misconduct allegations and a systemic investigation by Canada’s RCMP watchdog, the Civilian Review and Complaints Commission.

The unit has also been used to conduct enforcements related to the Trans Mountain pipeline expansion, Fairy Creek old-growth logging protests and rallies supporting Palestine. It conducted several high-profile police actions against those opposing TC Energy’s Coastal GasLink pipeline and maintained a constant presence on Wet’suwet’en territory until the project completed construction last year.

Land defenders Sleydo’ Molly Wickham, Shaylynn Sampson and Corey Jocko were arrested, along with several others, on Nov. 19, 2021, under a civil injunction first granted to Coastal GasLink several years earlier.

While the pipeline company had opted not to proceed with court actions following previous arrests, the BC Prosecution Service announced in 2022 it would lay criminal contempt of court charges against some of those arrested during the two-day enforcement on Wet’suwet’en territory.

To meet the bar for criminal contempt, the Crown must prove that someone knew about a court order and wilfully defied it in a way that would depreciate the court’s authority.

While the trio were found guilty following a trial in January 2024, Justice Tammen then moved to hear evidence into an application by the defendants to stay the charges based on police conduct during the arrests.

The court heard that RCMP officers had set up snipers in the area prior to the arrest, and had also considered shooting out a security camera and sending a police dog to pull people out of the structures during the arrests.

The defence played recordings of RCMP officers laughing about beating a land defender and making derogatory comments about face paint worn by Sleydo’, who is Wet’suwet’en, and Sampson, who is from the Gitxsan First Nation, meant to symbolize the high instance of missing and murdered Indigenous women and girls in Canada.

Justice Michael Tammen’s decision

In his decision yesterday, Tammen agreed that some police conduct violated the land defenders’ rights under Canada’s Charter of Rights and Freedoms, including the “highly offensive and clearly racist terms” used to describe Sleydo’ and Sampson.

“I view the conduct as extremely serious, involving racism directed towards Indigenous women. That is a group who have been systemically disadvantaged throughout virtually all sectors of the criminal justice system for generations,” Tammen said.

He added that the comments were “not made by a single officer and were not a one-off occurrence” but represented “multiple offensive and discriminatory comments made by multiple officers in the wake of Nov. 18 and 19, 2021, arrests that is potentially a sign of a systemic attitudinal issue within the C-IRG.”

While Tammen had strong words for officers who made derogatory comments against the Indigenous arrestees, he said there was “no evidence” that the behaviour extended into the higher ranks of the C-IRG unit or the RCMP more broadly, noting that senior officers who testified during the trial appeared “genuinely shocked and disgusted” by the comments, which were captured by recording equipment that had been confiscated during the arrests.

He added that there was “nothing inherently flawed” about the RCMP’s plans for enforcement. Both the use of force and the decision to send nearly 100 officers were appropriate under the circumstances, Tammen said.

“Police were faced with a situation which was somewhat urgent, highly fluid and filled with unknowns,” he said. “The number of protesters already present was unknown. Police did not know if firearms were present.”

Tammen said he would take into account the “cumulative misconduct of the police” in coming to a sentencing decision, including the RCMP’s failure to obtain a search warrant to enter the small dwellings as officers made the arrests.

But also serious, Tammen said, was the violation of the court order by the defendants, which he said “poses a threat to the rule of law.”

“It involved a calculated, prolonged and well-organized attack on a court order. The actions of the accused were a clear attack on the rule of law,” Tammen said. “Each of the three accused would be convicted of criminal contempt.”

Tammen considered a number of allegations by the defendants, including that cultural and ceremonial items removed from Sleydo’ and Sampson were disrespected and damaged, something that caused “great emotional distress.” While the decision to remove the items was later reversed, and should not have occurred in the first place, he said their removal did not constitute a Charter breach but would be taken into account in sentencing.

He dismissed allegations by Jocko that police had taken a “stereotypical view” of Mohawks, which are part of the Haudenosaunee Confederacy, during his arrest, saying the allegation was “entirely without merit.”

Tammen also dismissed allegations that the defendants had been subjected to excessive transportation following their arrests. After being taken into custody on the Morice Forest Service Road, the arrestees were first taken to the Houston RCMP detachment and then to Smithers, a distance of about 130 kilometres. They were held overnight at the Smithers detachment and transported the following day to Prince George, four hours away, where they remained in custody several days awaiting bail hearings.

The judge also denied that the defendants’ removal from Wet’suwet’en territory defied the Declaration on the Rights of Indigenous Peoples Act, which B.C. passed into law in 2019, saying DRIPA applies only to the “forced removal or relocation of a collective, not the temporary removal, post arrest, of individuals.”

Following the decision, Sleydo’ expressed appreciation for her lawyers and Wet’suwet’en Hereditary Chiefs, also known as Dinize and Tsako’ze.

“Today, the courts have found that the RCMP have engaged in an abuse of process in the enforcement” of the injunction, Sleydo’ said during a media briefing following the decision. “This is just the tip of the iceberg of what Indigenous people have been experiencing and what we have experienced at the hands of the RCMP.”

Sleydo’ added that she hopes Tammen’s decision will signal to the RCMP that “they can no longer violate their own laws and they can no longer act with impunity.”

A case conference hearing is planned for April, when the court will schedule a date for sentencing.