The testimony of Royal Canadian Mounted Police heard in a small British Columbia courthouse last month revealed evidence that the Community-Industry Response Group (C-IRG) unit is interpreting injunctions in ways that bend to the will of industry in startling new ways.
The case heard in a Smithers, B.C. court is the first part of an application to determine whether abuses of process by the RCMP will impact a verdict that found three people guilty of violating an injunction on Wet’suwet’en territory.
Sleydo Molly Wickham (Wet’suwet’en), Shay Lynn Sampson (Gitxsan), and Corey “Jayohcee” Jocko (Haudenosaunee) made an application to the court alleging that the RCMP used excessive force in their arrests and subjected them to unfair treatment while in custody following their arrests during a 2021, raid on camps blocking or contesting the Coastal GasLink (CGL) pipeline. The defendants are asking Justice Michael Tammen to stay the charges of contempt or reduce their sentences.
These abuses of process are alleged to constitute violations of the Charter of Rights and Freedoms and common law abuse of process. This court hearing, which continues in June, also highlighted in alarming ways how injunctions issued with overbroad enforcement clauses lead to unlawful and violent infringements of Indigenous rights and civil liberties.
The “private-public partnerships” facilitated by injunctions allow resource companies to direct enforcement, blurring the lines between public institutions and private capital.
During the hearing, disturbing audio evidence was presented by the defence, including recordings of C-IRG unit members using racist and misogynist language during their violent arrests of land defenders. RCMP referred to Indigenous women as “orcs” and “ogres” for painting red hands on their faces as a symbol of Missing and Murdered Indigenous Women and Girls. They also mocked an Indigenous man for expressing pain during a beating they inflicted.
But the relationship and communications between the police and Fasken, TC Energy’s law firm, also raised other instances of troubling police conduct into the operation that saw 19 people arrested during two days of raids in the mountains of northwestern British Columbia. TC Energy owns the Coastal GasLink pipeline. As standard practice for a civil contempt case, Fasken directed bail conditions for those arrested, but they also steered police away from obtaining a warrant to break into structures on Wet’suwet’en territory.
Fasken calls the shots
Fasken, one of Canada’s five largest law firms, represents TC Energy in the controversial pipeline project, which does not have the consent of the Wet’suwet’en hereditary government.
In 2019, Coastal GasLink secured an interlocutory injunction against Wet’suwet’en title holders, despite their assertion of Aboriginal rights and title to the areas where the pipeline crosses their territory.
Justice Marguerite Church, who presided over the injunction hearings, rejected the plaintiff’s defense that their Indigenous law established Wet’suwet’en authority as decision-makers on the territory, accepting instead the argument made by Fasken’s Kevin O’Callaghan that the historic Delgamuukw v. British Columbia (1997) decision had never proven Wet’suwet’en title.
Legal critics argue that the strong evidentiary case for Wet’suwet’en title was unlawfully sidelined in the trial.
Many experts argue that injunctions themselves are a poor vehicle for litigating matters involving Indigenous law and Aboriginal rights. Proof of Aboriginal title in Canada entitles Indigenous people to a higher threshold of consultation and consent.
In the current abuse of process application, this same law firm was consulted by RCMP’s C-IRG unit on the terms of injunction enforcement on the territory.
After four days of hearings, the court heard from RCMP staff sergeant Sasha Baldinger, General Investigations Section, whose role is to act as a repository for collating information on arrests and formatting affidavits. Baldinger is a sub-bronze commander within the C-IRG hierarchy, which follows a gold-silver-bronze emergency command structure.
Baldinger testified that he spoke with Fasken counsel Kevin O’Callaghan on November 17, 2021 to receive instruction on how to format affidavits from police officers. Baldinger said that affidavits had to contain all information related to arrests, including booking and facilitating calls to lawyers. Baldinger’s role was to ensure it had enough information to send to Fasken.
Under cross-examination, defense counsel Frances Mahon confirmed that Fasken was responsible for organizing bail conditions for the arrested. Bail conditions are a source of complaint in the trial.
Sleydo Molly Wickham and Shay Lynn Sampson were not presented with bail conditions until nearly 72 hours after their arrest. They were held from November 19 to November 22 in a cell block at the RCMP Prince George detachment, awaiting court. Mahon noted that many others who were arrested over November 18 and 19 signed bail conditions soon after arrest.
The Criminal Code ensures that, “a peace officer who arrests a person with or without warrant” must be seen by a judge within 24 hours, and if a judge is not available, as soon as possible. Defense counsel Mahon asked Baldinger: “Did you inform Fasken of the requirements of Section 503 of the Criminal Code?” “I did not,” Baldinger replied.
The defense established that Fasken would have known from the affidavits who was being arrested, and then set bail conditions accordingly. Baldinger was asked by defense counsel why the affidavits had to be completed in such a short turnaround time. He responded: “So Fasken had an understanding of who was arrested to ensure court time would be available so they could litigate that matter.”
While crown attorneys in B.C. often take over the prosecution of contempt of court charges arising from alleged injunction violations, the initial proceedings are conducted by lawyers for the injunction holder (in this case, CGL). Setting aside the fairness concerns raised by this approach generally, the level of cooperation between Fasken and C-IRG and the targeted denial of timely release from custody seen here is disquieting.
The enforcement clause of the injunction authorizes arrestees to be detained until the judge who issued the injunction is ready to hear their bail hearing, rather than when any judge is available, as required by the Criminal Code.
Fasken knew that Madame Church, who had granted the injunction, would deny Indigenous law as a valid defense. In the end, Church granted Fasken’s request for draconian exclusion zones to vast areas of Wet’suwet’en territory against Sleydo, and other abuse of process applicants. No considerations were made for Aboriginal rights to use the territory for cultural purposes, as protected by law.
To Feeney or not to Feeney
But this was not the only time when the influence of Fasken was felt in the police operations of November 18 and 19. Another major issue concerned whether a Feeney Warrant was needed for police to break into cabins where defendants were staying at the time of arrest. According to testimony, Fasken provided advice to the RCMP that a warrant was not required.
C-IRG officers interviewed on the stand testified that a warrant was not necessary to break into the cabin at Coyote Camp where Sleydo Molly Wickham and Shay Lynn Sampson were arrested on November 19. The cabin was located on a drill pad staged to dig beneath the Wedzin Kwa River, or the Morice River, a pristine body of water that flows through Wet’suwet’en territory.
This conclusion was reached through consultation with Niall Rand of Fasken.
Defense counsel Mahon asked Baldinger: “You’ve reviewed the injunction several times. Is there anywhere in the injunction that says that arrests can happen within structures?” Baldinger replied: “I made a phone call to Niall Rand, at Fasken Law, to understand whether or not I am interpreting the injunction correctly, whether they agree with the interpretation.”
“What was your interpretation?” asked Mahon.
The Sergeant explained that while CGL was empowered to remove structures, RCMP were empowered to remove people from them.
Baldinger testified that the Feeney Warrant was not required because “two bleeds into three” in the injunction order. Paragraph two concerns the removal of obstructions to the CGL worksite and surrounding access points. Paragraph three reads, “If such obstructions described in paragraph two of this Order, including but not limited to any gates or cabins, are not removed within 72 hours … the Plaintiff is at liberty to remove those obstructions.”
But did paragraphs two and three “bleed into” paragraph eight?
Baldinger testified that the authority to arrest people came from paragraph eight, which authorized the RCMP to “arrest or remove any person who has knowledge of this Order” and is contravening the injunction.
He said, “It allowed us to enter structures to ensure that there is no one in it and to ensure that they are safely removed in order for CGL to continue their project, as per the enforcement clause in the injunction.”
CGL did not comply with the injunction instructions
The structures had already been there for some time, since September 2021, and CGL had never posted a notice on the structures, as required by the injunction.
When this issue was raised in the contempt trial the previous week at the British Columbia Superior Court in Smithers, Justice Tammen reviewed the injunction order and concluded that CGL did not comply with the injunction instructions. CGL had never posted a notice on either of the obstructions – two tiny cabins – therefore, CGL should not have called the RCMP to enforce the injunction at that time.
Justice Tammen said that despite the fact the tiny houses should not have been built in those locations in the first place, it seemed that the police and CGL did not comply with the instructions concerning remedies of breach of the injunction.
CGL is not the RCMP’s lawyer
On November 17, Fasken allegedly greenlit the RCMP’s interpretation of the injunction. According to Badlinger, he called Fasken to confirm his reading that the RCMP were authorized to remove people from the cabins without a Feeney warrant. Baldinger believed the enforcement clause in the injunction gave the RCMP authority to arrest people in the tiny homes that day.
But why would Baldinger, under the supervision of Silver Commander John Elliot, call the industry lawyer and not the RCMP’s own legal counsel for guidance and direction?
Baldinger also said that he relayed his interpretation of the injunction to Silver Commander Elliot, who decided that they did not need to seek a Feeney Warrant.
The Defense asked, “Is there anywhere in this injunction that permits police to arrest people inside structures or dwelling houses without a warrant?” Baldinger replied, “I don't believe it says it in those words.”
This testimony raises significant questions about the role of the energy industry’s law firm in shaping the interpretation of the injunction.
Why is the C-IRG unit of the RCMP seeking and taking instruction about how to act from Bay Street industry lawyers? And who is paying their bill?
Why is RCMP taking advice from industry on legal matters related to civil liberties, such as whether a warrant is needed? Why didn't they call their own legal counsel?
The hearing underscores significant concerns about the role of private industry in public enforcement operations. When the case continues in June, hope springs eternal that justice will be done.
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