Canada Judgment

Supreme Court of British Columbia

Coastal GasLink Pipeline Ltd. v. Huson

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Source document

01

Holding and result

The court held that release on undertakings with an exclusion zone condition was reasonable and necessary to maintain confidence in the administration of justice under the tertiary ground; conditions must be proportionate and accommodate legitimate Indigenous rights by tailoring exceptions (e.g. Wet'suwet'en members may exercise rights subject to distance limits from worksites), and limited one-time access with a peace officer to retrieve belongings is permitted.

Court disposition

Alleged contemnors released on undertakings with conditions

Orders

  • Release of Kristina Heidt, Beyon Moor, Taylor Bai-Woo, Corey Jocko on undertakings to attend court February 14, 2022 at 9:00 am (Prince George) or by videoconference, to engage only in lawful peaceful protest, to strictly comply with the December 31, 2019 interlocutory injunction, and not to be within the exclusion zone defined as the Morice West Forest Service Road or areas accessed by the Morice Forest Service Road; Mr. Jocko may later apply to vary conditions if further information is provided
  • Release of Jocelyn Alec on the same undertaking except she may enter the exclusion zone for hunting, trapping, fishing or cultural purposes as a member of the Wet'suwet'en Nation so long as activities do not occur within 10 metres of a Coastal GasLink facility or active worksite and do not obstruct or impede access; she may attend February 14, 2022 by videoconference
  • Release of Molly Wickham on undertaking to attend February 14, 2022 (by videoconference), to engage only in lawful peaceful protest, to strictly comply with the December 31, 2019 injunction, and not to be within the exclusion zone except for (i) Wet'suwet'en hunting/trapping/fishing/cultural purposes provided such activities do not take place within 75 metres of any Coastal GasLink facility or active worksite and do not obstruct access, and (ii) travelling to/from her residence at 401 Lamprey Forest Service Road
  • Release of Hannah Hall and Ian Wessell on undertakings to attend February 14, 2022 (by videoconference), to engage only in lawful peaceful protest, to strictly comply with the December 31, 2019 injunction, and not to be within the exclusion zone
  • Release of Victor Labreche and Daphne Deschenes on undertakings to attend February 14, 2022 (by videoconference), to engage only in lawful peaceful protest, to strictly comply with the December 31, 2019 injunction, and not to be within the exclusion zone
  • All applicable undertakings include the limited exception permitting one attendance, in the company of a peace officer, to retrieve personal belongings from the exclusion zone

02

Material facts

Parties

Coastal GasLink Pipeline Ltd.

Plaintiff Counsel: K. O'Callaghan, N. Rand, D. Bryant, P. Mueller

Freda Huson

Defendant Counsel: F. Mahon, N. Ross

Kristina Heidt

Defendant Counsel: F. Mahon, N. Ross

Corey Jocko

Defendant Counsel: F. Mahon, N. Ross

Jocelyn Alec

Defendant Counsel: F. Mahon, N. Ross

Beyon Moor

Defendant Counsel: F. Mahon, N. Ross

Taylor Bai-Woo

Defendant Counsel: F. Mahon, N. Ross

Molly Wickham

Defendant Counsel: F. Mahon, H. Khosa

Hannah Hall

Defendant Counsel: F. Mahon, H. Khosa

Ian Wessell

Defendant Counsel: F. Mahon, H. Khosa

Victor Labreche

Defendant Counsel: F. Mahon, H. Khosa

Daphne Deschenes

Defendant Counsel: F. Mahon, H. Khosa

Amounts and remedies

  • People Arrested in Wooden Structures on November 19, 2021: 11
  • Employees Cut Off From Camp P2 Due to Blockades: 500

03

Procedural history

  1. Posture

    Civil Contempt Proceeding Arising From Interlocutory Injunction / Judicial Interim Release / Release on Undertakings Hearing (conditions of Release)

04

Questions and positions

Legal issues

Party arguments

Applicant
Plaintiff submitted that the alleged contemnors should be released on undertakings that include strict conditions: attend court, engage only in lawful peaceful protest, strictly obey the December 31, 2019 interlocutory injunction, and not be within the exclusion zone (Morice West Forest Service Road and areas accessed by the Morice Forest Service Road). Plaintiff argued notice had been given and the conduct impeded operations and public safety, justifying the exclusion to maintain confidence in the administration of justice.
Respondent
Respondents argued criminal interim release principles (R. v. Zora) apply and that exclusion is not minimal or necessary. They challenged adequacy of notice and RCMP entry into wooden structures (no warrant) and contended blanket exclusion would disproportionately impair Indigenous rights; some respondents sought exceptions for Wet'suwet'en rights.

05

Court’s reasoning

  1. 01

    Criminal Code (Canada) s.515(10) cited in judgment

    Court must consider primary, secondary and tertiary grounds for release; tertiary ground requires consideration of factors listed in s.515(10)(c) (apparent strength of case, gravity, circumstances, potential imprisonment)

  2. 02

    R. v. Zora, 2020 SCC 14 cited in judgment

    Any condition to maintain public confidence must be based on combined effect of relevant circumstances from perspective of a reasonable member of the public and consider Zora factors

  3. 03

    Order of Supreme Court of British Columbia dated December 31, 2019 (2019 BCSC 664)

    Interlocutory injunction restrains physical interference with plaintiff's access and worksites; compliance and notice provisions govern removal of obstructions

  4. 04

    R. v. Gladue (referenced in judgment)

    Sentencing and release considerations must account for Indigenous status and Gladue-type proportionality considerations when rights may be affected

06

Ratio, limits and disposition

Ratio decidendi

The court held that release on undertakings with an exclusion zone condition was reasonable and necessary to maintain confidence in the administration of justice under the tertiary ground; conditions must be proportionate and accommodate legitimate Indigenous rights by tailoring exceptions (e.g. Wet'suwet'en members may exercise rights subject to distance limits from worksites), and limited one-time access with a peace officer to retrieve belongings is permitted.

Obiter and limits

  • Whether the plaintiff complied with the specific notice posting provisions of paragraphs 2 and 3 of the interlocutory injunction and the lawfulness of RCMP entry into structures are disputed matters reserved for trial
  • The judge noted that a blanket exclusion preventing Indigenous persons from accessing territory could be disproportionate and referenced Gladue principles when limiting rights
  • The court indicated Mr. Jocko may apply to vary conditions if evidence of entitlement to Indigenous rights is later forthcoming
  • Court observed that were respondents to breach these undertakings, broader exclusions might be imposed in future

Court disposition

Alleged contemnors released on undertakings with conditions

  • Release of Kristina Heidt, Beyon Moor, Taylor Bai-Woo, Corey Jocko on undertakings to attend court February 14, 2022 at 9:00 am (Prince George) or by videoconference, to engage only in lawful peaceful protest, to strictly comply with the December 31, 2019 interlocutory injunction, and not to be within the exclusion zone defined as the Morice West Forest Service Road or areas accessed by the Morice Forest Service Road; Mr. Jocko may later apply to vary conditions if further information is provided
  • Release of Jocelyn Alec on the same undertaking except she may enter the exclusion zone for hunting, trapping, fishing or cultural purposes as a member of the Wet'suwet'en Nation so long as activities do not occur within 10 metres of a Coastal GasLink facility or active worksite and do not obstruct or impede access; she may attend February 14, 2022 by videoconference
  • Release of Molly Wickham on undertaking to attend February 14, 2022 (by videoconference), to engage only in lawful peaceful protest, to strictly comply with the December 31, 2019 injunction, and not to be within the exclusion zone except for (i) Wet'suwet'en hunting/trapping/fishing/cultural purposes provided such activities do not take place within 75 metres of any Coastal GasLink facility or active worksite and do not obstruct access, and (ii) travelling to/from her residence at 401 Lamprey Forest Service Road
  • Release of Hannah Hall and Ian Wessell on undertakings to attend February 14, 2022 (by videoconference), to engage only in lawful peaceful protest, to strictly comply with the December 31, 2019 injunction, and not to be within the exclusion zone
  • Release of Victor Labreche and Daphne Deschenes on undertakings to attend February 14, 2022 (by videoconference), to engage only in lawful peaceful protest, to strictly comply with the December 31, 2019 injunction, and not to be within the exclusion zone
  • All applicable undertakings include the limited exception permitting one attendance, in the company of a peace officer, to retrieve personal belongings from the exclusion zone

Source and reliance status

Supreme Court of British Columbia · 23 November 2021

This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.

Judgment reading view

Judgment text

The complete available source text.

Source document

Supreme Court of British Columbia

Judgment· 23 November 2021

2021 BCSC 2735

2021 BCSC 2735 Coastal GasLink Pipeline Ltd. v. Huson

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Coastal GasLink Pipeline Ltd. v. Huson, 2021 BCSC 2735 Date: 20211123 Docket: S1854871 Registry: Prince George Between: Coastal GasLink Pipeline Ltd. Plaintiff And Freda Huson, Warner Naziel, John Doe, Jane Doe and all other persons unknown to the Plaintiff occupying, obstructing, blocking, physically impeding or delaying access, at or in the vicinity of the area in and around the Morice River Bridge or the area accessed by the Morice West Forest Service Road Defendants Before: The Honourable Madam Justice Church Oral Reasons for Judgment Re: Judicial Interim Release In Chambers Counsel for the Plaintiff appearing via videoconference: K. O'Callaghan N. Rand D. Bryant P. Mueller, Articled Student Counsel for Attendees Molly Wickham, Hannah Hall, Ian Wessell, Victor Labreche, Daphne Deschenes appearing via videoconference: Counsel for Attendees Corey Jocko, Jocelyn Alec, Taylor Bai-Woo, Beyon Moor, Kristina Heidt appearing via videoconference: F. Mahon H. Khosa N. Ross Place and Date of Trial/Hearing: Prince George, B.C. November 19, 22 & 23, 2021 Place and Date of Judgment: Prince George, B.C. November 23, 2021 [1] THE COURT: Kristina Heidt, Jocelyn Alec, Corey Jocko, and Beyon Moor and Taylor Bai-Woo appeared before me yesterday on an allegation of civil contempt. They were all arrested on November 19, 2021, at locations on or

near the Morice West Forest Service Road. Ms. Heidt, Ms. Alec and Mr. Jocko, were arrested at or near kilometre 63.5 marker, having barricaded themselves in one of two small wooden structures erected on an active worksite near the Martin Forest Service Road. Ms. Moor and Taylor Bai-Woo were arrested at the kilometre 44 location after RCMP officers returned to the area following enforcement action and encountered protestors throwing debris at industry vehicles. [2] By way of background, on December 14, 2018, I granted an interim injunction enjoining the defendants from blockading the Morice West Forest Service Road and to preventing access to the area accessed by that road. After the interim injunction was granted, a group of individuals set up the kilometre 44 blockade of the Morice West Forest Service Road, referred to by them as the Gidimt'en access point. Despite the interim injunction order, the kilometre 44 blockade remained in place and was subsequently fortified with barricades and pedestrians and vehicles were prevented from accessing the road beyond the barricade. [3] On January 7, 2019, the RCMP attended the kilometre 44 blockade to enforce the interim injunction and, despite efforts to engage in dialogue, the individuals behind the kilometre 44 blockade refused to voluntarily remove the blockade. RCMP members eventually began enforcement action, after which a large

fire was ignited by protestors behind a bus and trees were felled across the road, which further impeded access to the area west of the kilometre 44 blockade. The RCMP eventually established control over the area of the kilometre 44 blockade and 14 individuals were arrested by the RCMP while enforcing the interim injunction. Those individuals arrested were subsequently released on undertakings to comply with the interim injunction. Contempt proceedings against those 14 individuals were later vacated. [4] Following a hearing in June of 2019, an interlocutory injunction order was granted by me on December 31, 2019. The injunction order, amongst other things, restrained and enjoined the named defendants and anyone having notice of the order from physically preventing, impeding, restricting, or in any way physically interfering with, counselling others to prevent, impede, restrict or physically interfere with any person travelling to or accessing various areas along and leading off the Morice Forest Service Road and the Morice West Forest Service Road. The reasons for and the background to that order are set out in my reasons for judgment filed under 2019 BCSC 664. [5] The RCMP undertook enforcement action with respect to the interlocutory injunction on or about February 10, 2020, and once again several persons were arrested for contempt. Again, contempt proceedings against those

individuals were later vacated. [6] There have been more recent interactions between protestors and the RCMP at those locations, starting in September 2021, when the plaintiff was engaged in final clearing and preparation for the pipeline to cross the Morice River. On September 25, 2021, protestors occupied a pipeline drill site of the plaintiff, causing obstructions to the worksite and equipment, aimed at preventing the plaintiff from undertaking drilling operations. RCMP attended and encountered protestors, obstructions and road damage at various locations, including along the Morice West Forest Service Road. The RCMP took steps to read the injunction to protestors, but took no enforcement action at that time due to lack of resources. [7] At times in October of 2021, RCMP returned to the area and found blockades on the roads, trenches dug in the roads, structures built that obstructed areas covered by my injunction order and equipment either moved or vandalized. Once again, the RCMP read the instruction order to protestors and once again no enforcement action was undertaken at that time due to a lack of resources. [8] On November 14, 2021, the situation further escalated when protestors once again blockaded the Morice West Forest Service Road at the kilometre 44 marker and at other locations, which resulted in approximately 500 employees of the plaintiff located at Camp P2

being cut off from essential services and supplies. [9] On November 18, 2021, RCMP attended to enforce the interlocutory injunction order. The injunction order was read twice to individuals located at the kilometre 44 blockade and, when they refused or failed to leave, several people were arrested for allegedly breaching the injunction order. [10] RCMP enforcement action continued on November 19, 2021, when officers moved to kilometre 63.5 to remove obstacles and protestors who had barricaded themselves in two small wooden structures that had been erected on the plaintiff's active worksite near the Martin Forest Service Road in contravention of the interlocutory injunction. The injunction order was again read to the occupants in each of the structures and attempts to engage in dialogue to have protestors exit the structure peacefully and voluntarily were unsuccessful. Members of the RCMP Emergency Response Team breached the wooden structures and arrested the occupants for civil contempt. A total of 11 people were arrested in those structures, including Ms. Heidt, Mr. Jocko and Ms. Alec. Later in the day, when police were leaving the area, they encountered further protestors at the kilometre 44 camp who were throwing debris at industry vehicles. Beyon Moor and Taylor Bai-Woo were arrested at that location. [11] All five of these alleged contemnors are going to be released. The

only question for determination is the conditions of their release. [12] The plaintiff has, from the outset, proposed conditions of release that require the alleged contemnors to attend court on a date in February; to only engage in lawful, peaceful and safe protests, should they choose to do so; obey strictly the December 31, 2019, injunction order and not be within the exclusion zone defined as the Morice West Forest Service Road and areas accessed by the Morice Forest Service Road, unless, if they are members of the Wet'suwet'en Nation, for the purposes of hunting, fishing, trapping or cultural purposes, provided they do not do so within 10 metres of an active worksite of the plaintiff or in any way that obstructs or impedes access. [13] All five of the alleged contemnors agree to conditions that they attend court, conduct only peaceful and lawful protest, and obey strictly the injunction order. However, they are opposed to any condition that restricts their ability to be present in the exclusion zone. [14] Counsel on their behalf submits that the principles of judicial interim release in criminal matters apply, and he relies on the decision of the Supreme Court of Canada in R. v. Zora, 2020 SCC 14, and submits that such a condition is not appropriate or minimal or necessary in these circumstances. [15] Counsel on behalf of the alleged contemnors took issue with the

circumstances outlined in the material filed by the plaintiff. He submitted that all five individuals take the position that they were not given an opportunity to leave peacefully and that the RCMP action in entering the wooden structures was unlawful because they did not have a warrant to do so. [16] Counsel for the defendants also asserts that the plaintiff failed to provide notice as required by paragraphs 2 and 3 of the interlocutory injunction for the removal of the structures. Paragraphs 2 and 3 read as follows: 2. Within 72 hours of this Order and until judgment is rendered after the trial of the Action, the Defendants and anyone having notice of this Order are ordered to remove any obstructions, including but not limited to gates and cabins, they have caused or created on the Morice River Bridge, any of the roads or bridges in the Blockaded Area, or on the worksites that the Plaintiff is authorized to use within the Blockaded Area.

3. If such obstructions described in paragraph 2 of this Order, including but not limited to any gates or cabins, are not removed within 72 hours (or are later placed) and are located: (a) on roads or bridges, the Plaintiff is at liberty to move those obstructions; (b) on the Worksites, then if the Plaintiff posts a notice of this Order on or near the obstructions setting out that the obstruction is impeding or preventing access to the Worksites, and if the obstructions are not removed from the Worksites within 72 hours of the posting of the notice, then the Plaintiff is at liberty to remove those obstructions; [17] The wooden structures that were breached were not in fact removed by the plaintiff, so it is not clear to me that the notice provisions of paragraph 3 were engaged by the RCMP action. [18] The plaintiff disputes the allegation that it failed to provide adequate notice and submitted that the reading of the terms of the injunction in September and October was sufficient to provide notice to the occupants of those locations with respect to the terms of the injunction, and thus the notice provisions of the injunction order have been complied with. This argument, as well as other arguments raised by counsel, will be for trial, not for this release hearing. As I have noted, the only question for determination today is the conditions of release for these individuals. [19]

I have considered the provisions of the Criminal Code related to judicial interim release and the proposed conditions set out in the undertakings, in my view, do address the primary and secondary concerns set out in s. 515(10) of the Criminal Code; namely, the attendance of the alleged contemnors in court as required and the protection and safety of the public, including any substantial likelihood that the alleged contemnors might, if released, either commit a criminal offence or interfere with the administration of justice. [20] None of the individuals has a criminal record and I am not aware of any of them having been previously arrested for allegedly breaching this court order, although I understand that Mr. Jocko may have some outstanding matters in Ontario related to breach of court orders. [21] As I indicated in the related hearing yesterday, the proposed condition 1(d) of the undertaking relates in my view to the tertiary ground and the need to maintain confidence in the administration of justice. The Supreme Court in Zora said that any condition imposed to maintain confidence in the administration of justice must be based on a consideration of the combined effect of all the relevant circumstances from the perspective of a reasonable member of the public, especially the four factors set out in s. 515(10)(c); namely, the apparent strength of the prosecution's case, the

gravity of the offence, the circumstances surrounding the commission of the offence, and whether the accused is liable for a potentially lengthy term of imprisonment. [22] Keeping in mind that direction, I have considered all of the relevant circumstances, including the apparent strength of the plaintiff's claim that the alleged contemnors breached the injunction order and the circumstances surrounding the alleged actions. The other factors that are statutorily listed in subsection 515(10)(c), namely the gravity of the offence and the liability to a potentially lengthy term of imprisonment, have limited application in this case. [23] I do not agree with the submission of defence counsel that the plaintiff's case is not strong, and thus the condition ought not to be imposed. Each of these individuals was aware or should have been aware of the order when they undertook their activities, including obstructing the road, harassing individuals and occupying the plaintiff's worksite. There has been considerable notice since 2019 to the alleged contemnors that the plaintiff was taking the position that their actions constituted breach of the injunction order. The RCMP attended and read the injunction order to the protestors several times between September and November 2019, including at least twice on November 19, 2021, immediately prior to their arrest. [24] It appears that these

individuals occupying the wooden structures that were erected on the plaintiff's worksite did so knowing they were participating in a protest that was in direct violation of this court. There is evidence before me that they have protested in defiance of that order. [25] I have considered the questions referred to by the court in Zora, including whether the condition is necessary, if the condition was not imposed would that create a risk of harm to the public protection or safety or loss of confidence in the administration of justice and prevent the court from releasing an accused on an undertaking without conditions. [26] In all of the circumstances, I have determined that the exclusion zone condition is reasonable and necessary in order to maintain confidence in the administration of justice. The proposed condition addresses and is proportionate to the tertiary ground concerns that are present in this case. While they face outstanding allegations of civil contempt, there is no reason for any of the individuals to return to the area except where the individuals are Wet'suwet'en and are exercising their Indigenous rights. [27] Accordingly, I will order the release of Kristina Heidt, Beyon Moor, and Taylor Bai-Woo on the following undertaking: That you will promise to attend before a judge of the Supreme Court on February 14, 2022, at 9:00 am at Prince George, British Columbia,

and will attend at all other times required by the court to be dealt with according to law. You will be permitted to attend this hearing via videoconference. You promise that if you engage in protest or activism it will be lawful, peaceful and safe. You promise that you will strictly comply with the terms of the attached order of the Supreme Court dated December 31, 2019, and otherwise keep the peace, and that you promise not to be within the exclusion zone defined as the Morice West Forest Service Road or any other areas accessed by the Morice Forest Service Road. [28] With respect to Corey Jocko, counsel submits that Mr. Jocko is Mohawk through his birth family but he identifies as Wet'suwet'en. He is the fiancé of Jocelyn Alec and he was welcomed onto the territory by Chief Woos, who is Ms. Alec's father. Despite those factors, there is nothing before me to indicate that Mr. Jocko's self-identification or his position as the fiancé of Jocelyn Alec engage any entitlement to exercise any rights to hunting, fishing, trapping, or other cultural activities as a member of the Wet'suwet'en Nation, and accordingly he will be released on the same undertaking as Ms. Heidt, Ms. Moor and Ms. Bai-Woo. It will be open, though, to Mr. Jocko to apply to vary the conditions of his undertaking at a later date if further information is forthcoming. [29] With respect to Jocelyn Alec, Ms. Alec

is registered with the Lake Babine First Nation, but she is the daughter of Chief Woos and is also Wet'suwet'en. She will be released on the following undertaking: a) That she promise to attend before a judge of the Supreme Court on February 14, 2022, at 9:00 am at Prince George, British Columbia, and will attend at the other times required by the court to be dealt with according to the law; b) that she promises that if she engages in protest or activism it will be lawful, peaceful and safe; that she promises that she will strictly comply with the terms of the attached order of the Supreme Court dated December 31, 2019, and otherwise keep the peace; and c) that she promises not to be within the exclusion zone defined as the Morice West Forest Service Road or any other areas accessed by the Morice Forest Service Road, except for the purposes of hunting, trapping, fishing or cultural purposes as a member of the Wet'suwet'en Nation, and only to the extent these activities do not take place within 10 metres of a Coastal GasLink facility or active worksite and do not physically obstruct, impede or otherwise prevent access by Coastal GasLink, its contractors, employees or agents to any such site. [30] I think I omitted, Mr. O'Callaghan, in paragraph (a) of that undertaking, I will permit Ms. Alec to also appear by way of videoconference for the hearing February 14. [31] CNSL K.

O'CALLAGHAN: Thank you. [32] THE COURT: All right. So, Ms. Alec, Ms. Heidt, Mr. Jocko, Ms. Moor, Ms. Bai-Woo, you will now have some documents to sign if you consent to give that undertaking and be released. Thank you. [33] CNSL N. ROSS: Madam Justice, just quickly, will you be comfortable adding the clause that respective individuals can access the property for a 24-hour period to get belongings? [34] THE COURT: I am not going to do that. I will put this ‑- I am prepared to put the other exception that I put in the other undertakings, Mr. Ross, which is that I think except for one attendance in the company of a peace officer in order to retrieve personal belongings. [35] CNSL K. O'CALLAGHAN: Okay. [36] THE COURT: -- I am prepared to add that exception. Would that be in relation to which of the alleged contemnors? [37] CNSL N. ROSS: All of them, except I don't believe that Ms. Alec requires that. [38] THE COURT: All right. So with respect to that undertaking then, Mr. O'Callaghan, I will add that exception to the undertaking with respect to Ms. Heidt, Mr. Jocko, Ms. Moor and Ms. Bai-Woo, that there will be an exception to condition 1(d) permitting them to attend: "except for one attendance in the company of a peace officer to retrieve personal belongings." [39] CNSL K. O'CALLAGHAN: Thank you. [40] CNSL N. ROSS: Thank you. [41] THE COURT: All right, anything else with respect to

those five individuals, Mr. Ross, Mr. O'Callaghan? [42] CNSL N. ROSS: Nothing further and I would like to talk to you all if ‑- if you can advise the sheriff of that. [43] THE COURT: All right. All right, thank you, Mr. Jocko, Ms. Alec, Ms. Bai-Woo, Ms. Moor, Ms. Heidt. You can knock on the door and let them know you are done. [44] UNIDENTIFIED ATTENDEE: Thank you. (PROCEEDINGS IN CHAMBERS, CONTINUING) [45] THE COURT: So, Mr. Labreche, Ms. Deschenes, I will release you from custody upon giving the following undertaking to the court: That you promise to attend before a judge of the Supreme Court on February 14, 2022, at 9:00 am at Prince George, British Columbia, and will attend at all other times required by the court to be dealt with according to the law, you may attend this hearing by videoconference; that you promise that if you engage in protest or activism it will be lawful, peaceful and safe; that you promise that you will strictly comply with the terms of the attached order of the Supreme Court, dated December 31, 2019, and otherwise keep the peace and that you promise not to be within the exclusion zone defined as the Morice West Forest Service Road or any other areas accessed by the Morice Forest Service Road. [46] So, Ms. Deschenes, Mr. Labreche, if you wish, you can leave the booth now or stay. It is entirely up to you. Hopefully the documentation will be ready for

you to sign fairly shortly so you can be released. [47] CNSL F. MAHON: Madam Justice Church, if we could also add the same condition that we had for others, that they be permitted to return one time to collect their personal belongings? [48] THE COURT: Right. So, sorry, condition 1(d) will have the following exception. Except for one attendance in the company of a peace officer for the purpose of retrieving your personal belongings. (PROCEEDINGS IN CHAMBERS, CONTINUING) [49] THE COURT: Molly Wickham, Hannah Hall and Ian Wessell, appeared before me today on an allegation of civil contempt. They were all arrested on November 19, 2021, at locations on or near the Morice West Forest Service Road. I understand that they were arrested at or near kilometre 63.5 marker, having been barricaded in two small wooden structures erected on an active worksite of the plaintiff near Martin Forest Service Road. A hearing was held today with respect to the conditions of their release. [50] I am going to adopt my comments regarding the background to this matter as I described earlier today in relation to the other contemnors. I also adopt my earlier reasons and reasoning with respect to the applicable legal principles. I do not propose to repeat it again this afternoon in the interests of addressing the release conditions for these individuals as quickly as possible. [51] Dealing first with Ms.

Wickham, there is no question that she will be released. The only question is whether she should be subject to a condition that she not be in the exclusion zone, except for the purposes of travelling to and from her residence and for the purposes of hunting, fishing, trapping and cultural purposes as a member of the Wet'suwet'en Nation, only to the extent that these activities do not take place within 10 metres of a Coastal GasLink facility or active worksite and do not obstruct, impede, or otherwise prevent access by the plaintiff and its contractors, employees, and agents to any such site. [52] Through her counsel, Ms. Wickham has advised that she is prepared to consent to being released on such a condition, as well as other proposed conditions with respect to attendance at court, peaceful and lawful protest and strictly obeying the injunction order of December 31, 2019. [53] The plaintiff, however, takes the position that Ms. Wickham is not a first time alleged contemnor and seeks to have her released on a condition that she not be within the exclusion zone except when travelling to and from her residence, and thus without the exception for her to exercise her rights to hunt, fish, trap and engage in cultural purposes as a member of the Wet'suwet'en Nation. [54] The plaintiff submits that while Ms. Wickham was not convicted of contempt following her arrest in January 2019,

she is undoubtedly the leader and spokesperson for this protest group and has made numerous public statements with respect to her opposition to the plaintiff's pipeline construction in Wet'suwet'en territory. She has rallied supporters to the area and purported to evict Coastal GasLink and the RCMP from Gidimt'en territory. There is an allegation that she has also attached herself to equipment in order to obstruct the plaintiff from undertaking any of its activities related to the pipeline construction. [55] While she may not technically be a repeat contemnor, all of those circumstances give me pause with respect to the conditions of her release, as they are highly suggestive of deliberate and repeated defiance of this court's orders and raise some concern as to whether Ms. Wickham will in fact comply with the conditions of her release. Nevertheless, I am aware that Ms. Wickham is a Wet'suwet'en woman and she lives in an area accessed through the Morice West Forest Service Road and the exclusion zone. The blanket exclusion suggested by the plaintiff would effectively prevent her from exercising her constitutionally protected aboriginal rights in that area for so long as these allegations remain outstanding. I tend to agree that such a blanket exclusion would not be proportional in the circumstances and is not consistent with the principles set out by the Supreme Court in either

Zora or in R. v. Gladue. [56] In light of the particular circumstances in this case, however, the concerns expressed by the plaintiff, namely the need to maintain confidence in the administration of justice, can in my view be addressed by some amendment to condition 1(d). I am going to expand the area around Coastal GasLink's worksites that Ms. Wickham may not be in, which, in the particular circumstances of Ms. Wickham, is sufficient to address the concerns of Coastal GasLink regarding the potential for future breaches of the injunction. In my view, a condition that prevents Ms. Wickham from being within 75 metres of any Coastal GasLink worksite, rather than 10 metres, is a more appropriate and proportional restriction. Such an extension seeks to strike a balance between the rights of the plaintiff with respect to minimizing any obstruction and interference with their activities as required by the interlocutory injunction order and Ms. Wickham's exercise of her constitutionally protected rights as an Indigenous person. [57] Should Ms. Wickham choose not to comply with the conditions of this undertaking, I might well be persuaded to consider a much broader exclusion, but I am not convinced that it is appropriate to do so today. [58] Accordingly, Ms. Wickham will be released upon her undertaking with the following conditions: a) that she promises to attend before a judge of the

Supreme Court on February 14, 2022, at 9:00 am at Prince George, British Columbia, and will attend at the other times required by the court to be dealt with according to the law, she may attend court via videoconference; b) that she promises that if she engages in protest or activism that it will be lawful, peaceful and safe; c) that she promises that she will strictly comply with the terms of the attached order of the Supreme Court dated December 31, 2019, and will otherwise keep the peace; and d) that she promises not to be within the exclusion zone defined as the Morice West Forest Service Road or any other areas accessed by the Morice Forest Service Road, except: i. for the purposes of hunting, trapping, fishing or cultural purposes as a member of the Wet'suwet'en Nation and only to the extent that these activities do not take place within 75 metres of a Coastal GasLink facility or active worksite and do not physically obstruct, impede or otherwise prevent access by Coastal GasLink, its contractors, employees or agents to any such site; and ii. for the purpose of travelling to or from her residence at 401 Lamprey Forest Service Road. [59] With respect to Ms. Hall and Mr. Wessell, I am not persuaded that they should not be subject to condition 1(d) for the same reasons that I gave earlier with respect to the other alleged contemnors who appeared before me this morning.

Neither Ms. Hall nor Mr. Wessell are Wet'suwet'en. Each of them was aware or should have been aware of the order when they undertook their activities, including obstructing the road, harassing individuals and occupying the plaintiff's worksite. Ms. Hall has been previously arrested in February 2020 with respect to an alleged breach of the injunction order and there has been considerable notice to all of the alleged contemnors that the plaintiff was taking the position that their actions constituted a breach of the injunction order. [60] Ms. Hall and Mr. Wessell were found occupying the wooden structures that were erected on the plaintiff's worksite. They knew that they were participating in a protest that was likely in direct violation of the order of this court. There is evidence before me that suggests that they have protested in this way in defiance of that court order. Despite the submissions of counsel, there are virtually no details regarding any employment arrangement or the specific community and location to which the employment relates. I am not persuaded that Ms. Hall or Mr. Wessell have any reason to be in the exclusion zone other than to continue protesting. [61] In all of the circumstances I have determined that the exclusion zone condition is reasonable and necessary in order to maintain confidence in the administration of justice. The proposed condition addresses

and is proportionate to the tertiary ground concerns that are present in this case with respect to Ms. Hall and Mr. Wessell. While they continue to face outstanding allegations of civil contempt, there is no reason for them to return to the area. [62] Accordingly, Ms. Hall and Mr. Wessell will be released upon their giving the following undertaking to the court: a) That they promise to appear before a judge of the Supreme Court on February 14, 2022, at 9:00 am at Prince George, British Columbia, and will attend at other times required by the court to be dealt with according to the law, they may attend the court hearing via videoconference; b) that they promise that if they engage in protest or activism it will be lawful, peaceful and safe; c) that they promise that they will strictly comply with the terms of the attached order of the Supreme Court dated December 31, 2019, and will otherwise keep the peace; and d) that they promise not to be within the exclusion zone defined as the Morice West Forest Service Road or any other areas accessed by the Morice Forest Service Road. [63] Those release orders will be prepared and provided to you for signature and upon signature of the undertakings you can be released. [64] So with respect to those matters, Ms. Wickham, Ms. Hall, Mr. Wessell, you can knock on the door and let them know you are done. [65] CNSL F. MAHON: Madam Justice

Church, my apologies to interrupt, but they will each require the one time exception to return and gather their personal belongings as well. [66] THE COURT: I do not know that Ms. Wickham will, will she? [67] CNSL F. MAHON: Ms. Wickham, can you answer that? [68] MOLLY WICKHAM: No, because I am allowed to go to my home. [69] CNSL F. MAHON: Okay, that is correct. Thank you very much. [70] MOLLY WICKHAM: Unless there ‑- unless there are ‑- there is an active worksite where I need to go and retrieve any belongings that are ‑- continue ‑- I don't know what's where, so I ‑- [71] CNSL F. MAHON: Okay. I think what we will do is we will make other arrangements if Ms. Wickham needs to return, either through counsel or through other persons. Thank you. [72] THE COURT: All right. So with respect to condition 1(d) in relation to Ms. Hall and Mr. Wessell, I will provide the same exception that I have provided to other contemnors. Condition 1(d) will have the following exception, except for one attendance in the company of a peace officer for the purposes of retrieving your personal belongings. [73] All right, anything else with respect to these three individuals, Ms. Mahon? [74] CNSL F. MAHON: No, thank you. [75] THE COURT: All right, thank you, Ms. Wickham, Ms. Hall, Mr. Wessell, you can knock on the door and let them know you are done. "The Honourable Madam Justice Church"

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R. v. Zora, 2020 SCC 14

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R. v. Gladue (referenced)

Case cited

Coastal GasLink Pipeline Ltd. v. Huson, 2019 BCSC 664

Case cited

Coastal GasLink Pipeline Ltd. v. Huson, 2021 BCSC 2735

Case cited

Criminal Code (Canada) s.515(10)

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