Three Indigenous men were each sentenced to 28 days in prison for criminal contempt after breaching an injunction prohibiting interference with Trans Mountain Pipeline operations. While Gladue factors were relevant, deterrence and denunciation needed to be given primary consideration. They could not invoke Indigenous law at the sentencing stage when they failed to challenge the injunction’s validity.
Stacy Gallagher, Justin Bige and James Leyden [“Contemnors”] are to be sentenced in this matter for breaching an order [“Injunction”] (Trans Mountain Pipeline ULC v Mivasair, 2019 BCSC 2472 [the “Conviction Reasons”]). The Injunction prohibited interference with the operations of the plaintiff, Trans Mountain Pipeline ULC [“Trans Mountain”]. In 2018, this Court granted the Injunction to address protest activity against Trans Mountain and its pipeline expansion project. In broad terms, the Injunction prohibited obstruction of access to and from various Trans Mountain work sites.
Trans Mountain’s project attracted considerable controversy at the time, which continues today. Protests and arrests of protestors began almost immediately after the granting of the Injunction. The police arrested in excess of 200 people for breaching the Injunction.
The Court’s main focus in this sentencing process is to send a clear signal to the Contemnors, and others who may be influenced by them and their actions, that such behavior will not be tolerated. Deterrence is the main sentencing objective. Although contempt of court is a common law offence, and therefore prosecuted under the common law, courts have frequently stated that guidance in respect of sentencing for criminal contempt may be sought from the Criminal Code (International Forest Products Ltd v Kern, 2001 BCCA 48; R v Dhillon, 2015 BCSC 1298; Trans Mountain Pipeline ULC v Mivasair, 2019 BCCA 156).
There is a need for the Court to restore, maintain and preserve the rule of law and the administration of justice by punishing those people who would choose to threaten its existence by taking matters into their own hands and in doing so, encourage others to do the same. It could not be reasonably assumed that “public defiance of lawful orders of the court would continue indefinitely to be visited with only nominal fines and non-custodial sentences” (MacMillan Bloedel Ltd v Brown (1994), 88 CCC (3d) 148 (BCCA)).
All of the Contemnors are Aboriginal through their mothers lineage. Their home Indigenous territories are not in BC or even in the local area, being the traditional territories of the Coast Salish peoples. None of these men have criminal records. Section 718.2(e) of the Code mandates that the Contemnors’ Aboriginal heritage be considered in determining a fit sentence in the circumstances, including the Gladue principles (R v Gladue,  1 SCR 688; R v Ipeelee, 2012 SCC 13). The fact that an offender is Aboriginal, however, does not dictate that a restorative approach is appropriate toward rehabilitation (R v Wells, 2000 SCC 10 [“Wells”]). Unlike the facts in Wells, of course the convictions here did not arise from any violent offence. The offences here were, however, serious, consistent with the need for this Court to denounce and deter such behavior, both generally and specifically.
The Contemnors repeatedly submitted that they never meant any disrespect for the Court through their actions. However, such words are meaningless when juxtaposed against their actual actions. This Court has already found that the Contemnors, knowing what the Injunction required them not to do, purposefully did just that. Their actions belie any real sense of respect for the Court’s authority. The true substance of the Contemnors’ position in relation to their Aboriginal heritage is founded on their view that they were entitled to disobey the Court’s order because of their heritage and what they perceive as being their obligations to their own Indigenous rule of law. In essence, such an argument is a backdoor collateral attack on the validity of the order and this Court’s jurisdiction to enforce its order in the sentencing process (British Columbia (AG) v Mount Currie Indian Band,  BCJ No 616 (SC); R v Ignace,  BCJ No 243 (CA)).
The Contemnors’ Aboriginal heritage, background and circumstances, while relevant, do not move the needle in terms of the Court’s need to give primacy to the sentencing principles of denunciation and deterrence in this case. Each of them were well aware of what they were doing at the time. The Contemnors knew that they were going to be arrested if they violated the Injunction.