Four members of a Secwépemc protest group opposed to the Trans Mountain pipeline expansion project have been convicted of criminal contempt and will be sentenced in two months.
Justice Shelly Fitzpatrick heard closing arguments in B.C. Supreme Court in Kamloops this week and rendered her decision on Wednesday (Dec. 7).
Romily Cavanaugh, Henry Sauls (also known as Secwépemc hereditary chief Sawses), April Thomas and Jocelyn Pierre were found guilty of breaching a court-ordered injunction against obstructing access to the company’s worksites on Oct. 15, 2020 during work hours.
The quartet — part of the Secwépemc Unity Camp to Stop the Trans Mountain Pipeline — arrived at at the Mission Flats property, where they tied themselves to objects and work equipment before being arrested by Mounties.
Cavanaugh and Sauls were arrested at a gate to a drill site, while Thomas and Pierre were taken into custody after sitting on bulldozers across the road.
Prosecutor Neil Wiberg said the Crown had proven the protesters both physically committed the crime and intended to do it. He said evidence presented at the trial indicated the four stood near large Trans Mountain signage before splitting up, arguing the presence of bulldozers showed that area was an obvious construction site. He said the protesters were also unco-operative when asked to leave and as police tried to escort them off the property, adding that their use of zap-straps, which had to be cut off by police, showed they didn’t intend to depart.
Cavanaugh made a closing statement on Monday and Pierre was heard on Tuesday. Thomas and Sauls did not make closing arguments as they were not present on either day.
In making her ruling, Fitzpatrick noted the testimony of responding police officers, a security guard for Trans Mountain and video and screenshots of the incident. She said the evidence at trial showed the four had knowledge of the injunction ahead of time as they had come within 10 metres of signage warning of the injunction and there was nothing to suggest they could not understand the warning. She also noted they chose not top leave when given a chance to.
Fitzpatrick found Pierre violated the injunction when she walked into a construction area and zap-strapped herself to a bulldozer, intentionally trying to disrupt work knowing her conduct would be in full view of the public, including her supporters.
Pierre, who was carried down the hillside when she refused to walk with police, said she had no recollection of seeing signage noted by the prosecution. Pierre maintained she did not hear a Trans Mountain employee telling her to leave. Pierre said she was in an “uninterruptible and meditative prayer” and ceremony, which she said she has a right to do on unceded Secwépemc territory for as long as it would have taken to complete. She also said she was in an isolated area.
Noting she is not an expert in Indigenous practices, Justice Fitzpatrick said she found it odd that Pierre deemed it necessary to zap-stap herself to the bulldozer as part of that ceremony.
“Is that part of your Indigenous traditions? To zap-strap yourself?” Fitzpatrick asked.
“To remain uninterrupted, I tied myself to the area I was on,” Pierre replied.
Fitzpatrick rejected that Pierre was there to participate in prayer and ceremony.
“The fact that she zap-strapped herself to the bulldozer suggests she was very much anticipating the authorities were coming to address her actions,” Fitzpatrick said. “These circumstances are indicative of a person who opposes the activities that were going on and [intended] to disrupt the activities as much as possible.”
In court Pierre said she sustained injuries and was groped by police while they carried her down the hillside from the bulldozer, but Fitzpatrick said Pierre had herself to blame because she wasn’t co-operative.
“The difficulties Ms. Pierre experienced with the officers while on the bulldozer and during her transportation to a police vehicle can be entirely be laid at her feet,” Fitzpatrick said.
Fitzpatrick said the way in which Pierre was extracted and transported by police was unfortunate, but was the natural result of the physicality required to extract her as she wasn’t being co-operative.
Cavanaugh referenced a video she said showed her standing off to the side of the gate and not obstructing entry to the drill site, but Fitzpatrick said she couldn’t take that into consideration as Cavanaugh hadn’t given evidence earlier in the trial.
Fitzpatrick also rejected the argument that Cavanaugh wasn’t obstructing the gate because traffic could still get through.
And found that she acted intentionally to block the site, and violated the injunction.
“I have no doubt Ms. Cavanaugh’s actions involved some pre-planning,” Fitzpatrick said. “A person does not ordinarily walk around with zap-straps to a construction site they oppose.”
Cavanaugh and Pierre also claimed they were illegally arrested as not all steps of a five-step process was followed by police during their apprehension.
Wiberg, however, cited case law countering the argument that the protesters couldn’t be arrested unless police completed a five-step process in its entirety, as interpreting the requirement that way would put form over substance.
In the case of Thomas, Fitzpatrick rejected her claim that she was exempt from the injunction because she was a legal observer at the protest, adding her actions went beyond observation. Fitzpatrick said she yelled instructions at workers, did not leave when asked and fiddled with parts on an excavator. She was later arrested in the area with a zap-strap sticking out of her pocket.
Fitzpatrick said that Sauls, by sitting on the ground against the drill site gate, was clearly intent on demonstrating his objections to Trans Mountain and was in full view of teh injunction notice.
Sauls, during trial argued that he was mistreated by police when an officer pushed him, but Fitzpatrick found that this was minor and did not constitute excessive force. She said Sauls initially refused to leave, and attempted to after being told by police he was under arrest, but at that point it was too late.
Pierre argued that Canada has no legal standing to impose its laws on Indigenous individuals, who have never ceded their rights and titles.
Wiberg, in response, referenced case law to refute the notion some of the defendants were exempt from prosecution because of their Indigenous background.
“We’re all subject to laws passed in Canada. We’re all subject to injunctions issued by the court and there is no special class of people that are not subject to Canadian law,” Wiberg said.
Fitzpatrick sided with the Crown, noting in her decision that it is not a defence to criminal contempt charges that the lands on which the offence took place may be unceded Secwepemc territory.
Fitzpatrick said that while protest activity is permitted, including under paragraph 14 of the injunction, it must be done peacefully and in a safe manner.
"That is not what occurred here,” Fitzpatrick said.
Cavanaugh, Pierre and Sauls were present in court on Wednesday for the judge's ruling, but Thomas was not, leading to Fitzpatrick issuing a bench warrant for her arrest.
The four protesters will now be sentenced on Feb. 23, 2023 at 10 a.m. in Kamloops Supreme Court.
Another trial of a group of four others from the same protest group, who were arrested at a Tran Mountain worksite near the Kamloops Airport will have their trial begin Dec. 12 in Kamloops Supreme Court.
Sentencing is scheduled to take place on Feb. 23 and Feb. 24.
—This story was updated on Dec. 9 to include more information from Fitzpatrick's ruling.