Trans Mountain Pipeline ULC v. Mivasair

2023 BCSC 410 Trans Mountain Pipeline ULC v. Mivasair

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Trans Mountain Pipeline ULC v. Mivasair, 2023 BCSC 410 Date: 20230222 Docket: S183541 Registry: Vancouver Between: Trans Mountain Pipeline ULC Plaintiff And David Mivasair, Bina Salimath, Mia Nissen, Corey Skinner (aka Cory Skinner), Uni Urchin (aka Jean Escueta), Arthur Brociner (aka Artur Brociner), Karl Perrin, Yvon Raoul, Earle Peach, Sandra Ang, Reuben Garbanzo (aka Robert Abress), Gordon Cornwall, Thomas Chan, Laurel Dykstra, Rudi Leibik (aka Ruth Leibik), Linda Hutchings, John Doe, Jane Doe, and Persons Unknown Defendants And Attorney General of British Columbia Intervenor Before: The Honourable Justice Fitzpatrick Oral Reasons for Judgment (re Susan Bibbings, Miranda Dick, Heather Lamoureux and Laura Zadorozny Sentencing) Counsel for the Crown: N. Wiberg, K.C. Counsel for the Contemnors, Susan Bibbings, Miranda Dick, Heather Lamoureux and Laura Zadorozny B. Isitt Place and Date of Hearing: Kamloops, B.C. February 21-22, 2023 Place and Date of Judgment: Vancouver, B.C. February 22, 2023

INTRODUCTION [1] On June 1, 2018, Justice Affleck, then of this Court, granted an injunction to restrain persons from obstructing, impeding and interfering with the operations of the plaintiff, Trans Mountain Pipeline ULC ("Trans Mountain"), at its various work locations (the "Injunction"). In fall 2020, Trans Mountain had work locations at or near Kamloops, BC. [2] After trial, on December 16, 2022, I found that the accused, Susan Bibbings, Miranda Dick, Heather Lamoureux and Laura Zadorozny (collectively, the "Contemnors") were guilty of criminal contempt of court in respect of their public disobedience of the Injunction at or near Kamloops on October 17, 2020: Trans Mountain Pipeline ULC v. Mivasair, 2022 BCSC 2388 [Conviction Reasons]. [3] The terms of the Injunction breached by the Contemnors were as follows: 1. The Defendants, and any other person having notice of this Order, are hereby restrained and enjoined from: a) physically obstructing, impeding or otherwise preventing access by Trans Mountain, its contractors, employees or agents, to, or work in, any of the sites or work areas as set out below: . . . (iii) any other project or operations site of Trans Mountain or its affiliates, contractors, or subcontractors that has been reasonably identified as the same (such as through signage, fencing, flagging or boundary markings situated on or around the perimeter of such site) (the "Markings"), (the sites and work areas referenced in this (a) being collectively, the "Trans Mountain Sites"); ...

2. The Defendants, and any other persons having notice of this Order, are hereby restrained and enjoined from coming within five (5) meters of: (c) the Markings, as set out in paragraph 1(a)(iii) of this Order. (collectively, the "Buffer Zones"). [4] The matter before the Court is the sentencing of each of the Contemnors.

CIRCUMSTANCES OF THE OFFENCES [5] The circumstances of the offences are outlined in the Conviction Reasons. [6] To summarize, in the early morning hours of October 17, 2020, a group of protestors gathered at the gate of Trans Mountain's worksite near the Kamloops airport. That group included the Contemnors. There was substantial signage and the Buffer Zone demarcation line had just been re-applied in the area where the protestors were located. The protestors were told of the Injunction and that they could not block the area. They did not leave and many blocked the gate, which prevented Trans Mountain from completing a shift change for some time. [7] As a result, Trans Mountain found it necessary to call the RCMP, and a substantial police presence was required at the scene to deal with the protestors. Officers who arrived attempted to also engage the protestors toward getting them to leave. Some did leave and moved to the side of the gate area. [8] The Contemnors did not leave the area. As a result, the RCMP officers found it necessary to engage in a reading of the "five-step process" outlined in the Injunction, and they began to do so with respect to each of the Contemnors sequentially. Despite this further warning of potential arrest if their breach of the Injunction continued, each of the Contemnors still refused to leave to area, unlike other protestors. [9] Ultimately, Ms. Lamoureux, Ms. Dick, Ms. Zadorozny and Ms. Bibbings were arrested. All walked to the waiting police vehicle with the exception of Ms. Lamoureux who refused to walk and had to be carried. All of them were transported to the RCMP detachment where they were processed and released on their own recognizance. [10] I acknowledge that the Contemnors' actions were peaceful.

CIRCUMSTANCES OF THE OFFENDERS [11] Defence counsel has introduced substantial information about each of the Contemnors. Ms. Lamoureux [12] Ms. Lamoureux is 32 years old and she lives in Vancouver. [13] She received a post-secondary degree from Simon Fraser University in fine arts, dance and business. She also holds a certificate in somatic education, which I am told involves art therapy. [14] Ms. Lamoureux is currently employed as Artistic and Executive Director of the Vines Art Festival in the Vancouver area, an organization that she founded. She is also employed as a somatic educator at various schools and organizations in the Lower Mainland. [15] She provides extensive volunteer time in her community. Finally, she assists numerous individuals in her community in various ways. [16] Ms. Lamoureux provided the Court with both a written statement and some brief oral remarks. It is clear that she is dedicated to her community and passionate about many causes, including those related to climate issues and supporting marginalized communities, including Indigenous ones. This is also evident from the many letters of support from Ms. Lamoureux's work colleagues and those in the Indigenous community, whose lives she has positively affected. [17] Ms. Lamoureux has no prior criminal record. Ms. Dick [18] Ms. Dick is 45 years old and is Indigenous. She is a Secwe̓pemc person and she

resides in Sk'Emtsin (Neskonlith) which is just outside Chase, BC. [19] Ms. Dick lives with her partner of nine years. She has five children, ages 16-26, and one step-daughter, who is 11 years old. [20] In 1997, Ms. Dick completed high school and has pursued post-secondary education in various fields, including native studies, law and anthropology. [21] Ms. Dick is self-employed as an artist, designer, quilter and businessperson, operating the Red Humming Bird Boutique. She intends to pursue her interest in textiles. [22] Ms. Dick is very involved in her community for the Secwe̓pemc people and volunteers extensively. She describes herself as a cultural worker and leader. [23] At the commencement of this hearing, Ms. Dick waived her right to have a Gladue report before the Court for sentencing purposes. Nevertheless, I have received information about Ms. Dick's Indigenous heritage from her directly that allows me to understand that aspect of her life experience. [24] Ms. Dick says that she was impacted by the residential school system, which of course is a matter that is usually found in Gladue reports. She advises that her father and grandparents went to residential school from the age of five to their teenage years. Ms. Dick notes many of the now known results of residential schools, including a loss of language and culture, that unfortunately, resonates in Indigenous

communities to this day. Ms. Dick says that she remains of the view, which I accept is held by some Indigenous peoples, that Canada's residential school program was "genocide" and "land theft" and that the historical and ongoing impacts of colonization continue now. She says that this was her motivation with respect to her antipathy toward Trans Mountain and her breach of the Injunction in October 2020. [25] Ms. Dick speaks of her efforts to revitalize their Indigenous language and use of the land for food, which gave rise to her concerns about a pipeline spill that might impact our waterways, wildlife and people. [26] Ms. Dick has also provided many letters of support from members of her community. They speak of her good character and good works in that community that have helped many there. [27] Ms. Dick has a previous conviction from 2002. She was convicted of intimidation and mischief arising from certain protest activities at Sun Peaks Resort near Kamloops. She received a six-month conditional sentence and one-year probation. [28] It is clear enough that the 2002 conviction is quite dated, having taken place some 18 years prior to this breach. Since then, Ms. Dick has not been charged or convicted of any offence until her breach of the Injunction in October 2020. In light of those circumstances, I consider that Ms. Dick's previous conviction has little relevance on this

sentencing. I place no weight on this very dated conviction in terms of fashioning a fit sentence for Ms. Dick, and I will therefore approach her circumstances as those akin to a first offender. Ms. Zadorozny [29] Ms. Zadorozny is 61 years old and lives in Vancouver. [30] She graduated from high school and raised two children while operating a home business. In 2015, she completed retraining and currently, she is employed part-time at a retail store in Vancouver. [31] Like the others, Ms. Zadorozny volunteers extensively in her community, including her church. [32] Like many other contemnors who have been brought before the Court, Ms. Zadorozny has many causes, including those related to climate issues and Indigenous issues. [33] Ms. Zadorozny provided a written statement, which I have read. I accept that she, like the others, is passionate in her views concerning climate issues and that she has considerable concerns for the future. [34] Ms. Zadorozny has dietary restrictions given a medical condition. [35] Like the others, Ms. Zadorozny has provided many letters of support from people in her community, including from her employer, the reverend of her church, the president of her condominium's strata corporation and a friend. [36] Prior to October 2020, Ms. Zadorozny had no criminal record. [37] However, after these criminal contempt charges were brought, Ms. Zadorozny pled

guilty to two charges of mischief under the Criminal Code, R.S.C., 1985, c. C-46. The charges related to her protest activities in July and October 2021, which I understand involved blocking highways. In November 2022, Ms. Zadorozny was sentenced by the BC Provincial Court to conditional discharges of six months, two years probation and 75 community work service hours. Ms. Bibbings [38] Ms. Bibbings is 56 years old and lives in West Vancouver. [39] Ms. Bibbings has been married for 25 years and she has four children. [40] She holds a post-secondary degree from the University of British Columbia in Japanese, literature and history. She has been employed in various positions in the past but currently, her activities involve being a director of a non-profit organization, Sequoia Solution, that she founded. Sequoia Solution encourages tree planting. [41] Like the others, Ms. Bibbings volunteers extensively in her community. [42] Ms. Bibbings has various medical conditions, including sleep apnea and hypertension, for which she requires a medical device (CPAP machine) and medication. [43] I have reviewed the letters of support provided by Ms. Bibbings, including from her husband, her father, friends and those involved in Sequoia Solution and her other causes. [44] Ms. Bibbings also addressed the Court directly and expressed her motivations as being toward protection of the

environment. Her statements at the time of her arrest would confirm her motivations at the time. [45] Like Ms. Zadorozny, prior to October 2020, Ms. Bibbings had no criminal record. However, after these criminal contempt charges were brought, Ms. Bibbings pled guilty to two charges of mischief under the Criminal Code. The first offence was part of an Extinction Rebellion blockade of the thoroughfare to the Vancouver airport in October 2021. The second mischief charge related to Ms. Bibbings' participation in a protest organized by Save Old Growth in June 2022. The protestors, including Ms. Bibbings, blocked the Trans Canada Highway and glued themselves to the highway. [46] On September 23, 2022, Ms. Bibbings was sentenced on both charges in R. v. Bibbings (23 September 2022), Richmond 66275 (B.C. Prov. Ct.), and R. v. Bibbings (23 September 2022), North Vancouver 66791 (B.C. Prov. Ct.). Judge Craig imposed a conditional discharge and 12-month probation for the first offence, and she imposed a suspended sentence and placed Ms. Bibbings on probation for 18 months for the second offence. [47] Much of the evidence before Judge Craig as to Ms. Bibbings' personal circumstances was the same as is before this Court now. That evidence included a letter dated July 26, 2022 from a psychiatrist, Dr. Shabehram Lohrasbe. As a result of Dr. Lohrasbe seeing Ms. Bibbings in July 2022, he

diagnosed her with anxiety disorder and depressive disorders, caused at least in part by her concern about climate issues. I am told that Ms. Bibbings continues to see Dr. Lohrasbe for treatment. [48] In fashioning her sentence for Ms. Bibbings, Judge Craig considered at para. 67 that Ms. Bibbings had: [67] taken steps to address the causes of her offending. She engaged Dr. Lohrasbe for an assessment, met with him, and learned some alternative coping mechanisms. Her efforts to address climate change issues continue, but she says she intends to devote herself through legal means in the future. I am hopeful that Ms. Bibbings will continue on this path, since she will face going to jail if she continues to offend. [49] As with Ms. Zadorozny, I will discuss how Ms. Bibbings' previous convictions are to be addressed later in these reasons.

PRINCIPLES OF SENTENCING [50] 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: Interfor v. Paine and Krawzyk, 2001 BCCA 48 at para.

20. See also R. v. Dhillon, 2015 BCSC 1298 [Dhillon BCSC] at para. 10, rev'd 2021 BCCA 271 for other limited purposes [Dhillon BCCA]; Trans Mountain Pipeline ULC v. Mivasair, 2019 BCCA 156 [Trans Mountain BCCA] at para. 55. [51] I am aware of the purpose and principles of sentencing set out in the Criminal Code, particularly at ss. 718, 718.1 and 718.2. [52] Substantial authority exists that the primary sentencing objectives in relation to criminal contempt are denunciation and deterrence, both general and specific. These authorities include the reasons of Justice Holmes (as she then was) in Dhillon BCSC at paras. 11-14. [53] Further, in Trans Mountain BCCA, the court stated: [56] The objectives of separating offenders from society and providing reparation to victims are generally not applicable to sentencing in contempt cases. Rehabilitation is often important in civil contempt cases, where the Court is primarily concerned with securing compliance with its orders: Larkin v. Glase, 2009 BCCA 321 at para.

49. However in Larkin, Justice Chiasson comments that even in cases of civil contempt deterrence is more important than rehabilitation (at para. 51). [57] Denunciation and deterrence are the principal sentencing objectives in criminal contempt cases. Chief Justice Farris described the underlying rationale in Canadian Transport (U.K.) Ltd. v. Alsbury (1952), 6 W.W.R. (N.S.) 473 at 478 (B.C.S.C.), aff'd [1953] 1 D.L.R. 385 (C.A.), aff'd [1953] 1 S.C.R. 516: One law broken and the breach thereof ignored is but an invitation to ignore further laws and this, if continued, can only result in the breakdown of the freedom under the law which we so greatly prize. [58] General deterrence was the primary objective of sentencing in MacMillan Bloedel, where the focus was likewise on securing respect for the rule of law. A summary of sentencing principles for contempt was set out in Transportaction Lease Systems Inc. v. Virdi, 2009 BCSC 695 at para. 17, citing Health Care Corp. of St. John's v. Newfoundland and Labrador Assn. of Public and Private Employees, [2001] N.J. No. 17 (S.C.T.D.) at para. 2: 1. The inherent jurisdiction of the court, as a superior court, allows for the imposition of a wide range of penalties for civil and criminal contempt; 2. Deterrence, both general and specific, but especially general deterrence, as well as denunciation, are the most important factors to be considered in the imposition of penalties for civil, as well as criminal, contempt; . . .

9. In setting the overall level of penalty, the court may take account of the level of penalty imposed in similar cases in the past and may adjust the penalty upwards or downwards, depending on the court's assessment as to whether previous levels of penalty have had an effective general deterrent effect; . . . [54] There is also considerable BC case authority addressing protest activity in stating that the moral culpability of a contemnor is not reduced by the strength of his or her beliefs in or convictions for the cause that motivated the illegal activities in question: Everywoman's Health Centre Society (1988) Victoria Drive Medical Clinic Ltd. v. Bridges, [1989] B.C.J. No. 456 (S.C.); Peter Kiewit Sons Co. et al. v. Perry et al., 2007 BCSC 305 at para. 16 [Perry]. As this Court noted in Trans Mountain Pipeline ULC v. Mivasair, 2022 BCSC 791 at para. 44: All of the above authorities emphasize the need for the Court to restore, maintain and preserve the rule of law and the administration of justice by this Court 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. [55] Accordingly, as I have stated many times before in this proceeding, 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,

that such behavior will not be tolerated. Deterrence and denunciation are the main sentencing objectives here, although I acknowledge that rehabilitation remains a possibly relevant consideration. [56] Substantial submissions were made by both the Crown and defence on the issue of proportionality and parity. Many cases have addressed these issues in the context of protest activity and sentencing for criminal contempt. [57] In MacMillan Bloedel Ltd. v. Brown, [1994] B.C.J. No. 268 (C.A.) [MacMillan Bloedel], Chief Justice McEachern at para. 4 spoke of sentences being lenient at the beginning to account for initial exuberance. However, McEachern C.J. also confirmed that an increasing severity of sentences may be appropriate toward meeting the objective of sending an ever increasingly stronger message to protestors if they choose to continue openly flaunting and disobeying court orders after months, if not years, it has been in effect. [58] In MacMillan Bloedel, McEachern C.J. spoke of protestors who are beyond what I would describe as the early stages of the protest activity: [45] ... They were persons who, after knowingly and deliberately committing an offence, were nevertheless asked by a peace officer to walk away. They chose instead to stay and be arrested and charged. Notwithstanding their personal beliefs, they do not qualify for the usual leniency that judges generally

offer to first offenders. [59] In Trans Mountain BCCA at para. 46, the court applied this principle from MacMillan Bloedel, as above. Further, the court confirmed that escalating sentences can be appropriate: [60] It was also not unprecedented for the judge to use escalating sentences in a criminal contempt sentencing hearing. In MacMillan Bloedel, six out of 44 protestors arrested for violating an injunction order in contempt appealed their custodial sentences. McEachern C.J.B.C. held that escalating sentences were sometimes reasonably necessary to preserve the rule of law in contempt proceedings: [48] . . . [J]udges may have no alternative but to impose increasingly severe sentences for subsequent offences should the sentences imposed in these cases prove insufficient to convey the message that Canada, as its Constitution states, is a country founded upon the rule of law. [60] Also, in MacMillan Bloedel, McEachern C.J. stated: [52] It must also be remembered that custodial sentences were not sprung suddenly upon these Appellants. As I have already mentioned, there were other trials and other unsuspended custodial sentences imposed before these ones, although they were imposed upon persistent offenders. Everyone who deliberately disobeys the law must accept the risk that courts will not continue to impose lenient sentences if they have proved ineffective in preserving the rule

of law. [61] The history of criminal contempt proceedings in relation to the Injunction are well known to the Court and, in that respect, sentences imposed on contemnors have respected and applied the above principles. Indeed, given the regular publication of the Court's sentencing decisions on its website, it can be said that any member of the public had adequate means to determine what sentences were imposed in different circumstances and at different times, as the contempt proceedings have continued over the ensuing four to five years after the Injunction was granted. [62] Between the earlier iteration of the Injunction (March 2018) and August 2018, there were over 200 arrests. Justice Affleck was then the judge hearing all of the matters. During that time, the Crown's recommendation for sentences was toward the lenient side, involving fines and community work hours, which was generally accepted by Affleck J. By any measure, this approach by the Court reflected the response to early exuberance of first-time offenders, such as was described MacMillan Bloedel at para. 45. [63] Unfortunately, from August 2018, arrests and convictions continued. As a result, the sentencing recommendations by the Crown evolved. A jail sentence was not sought by the Crown or granted by this Court until August 2018. [64] The history of the Crown's sentencing recommendations from April 2018 are set out and discussed in Trans Mountain BCCA beginning at para.

9. They set out various "Categories - One to Four" of sentencing recommendations, depending on the date of a guilty plea or conviction. [65] In August 2018, the Crown filed its Third Amended Notice of Motion adding "Category Five" to its sentencing positions for defendants arrested after August 2, 2018. This Category was described in Trans Mountain BCCA at para. 12 as: Early Category Five: 14 days' imprisonment for persons pleading guilty within one month after their first appearance in court; Late Category Five: 20 days' imprisonment for persons pleading guilty no later than the first day of trial. If convictions result for Category Five defendants at the end of a trial, the Crown would consider a general sentencing position of 28 days' imprisonment. [Underline in original.] [66] The Crown also stated it may seek longer jail sentences for Category Five defendants in respect of arrests occurring after August 2, 2018 at any time without further notice: Trans Mountain BCCA at para. 12. [67] There is a long history of sentencings for criminal convictions in this proceeding, both prior to and after the Contemnors' breaches in October 2020. I will summarize them briefly in an attempt to situate the circumstances of the Contemnors' breaches within the overall history of this proceeding by reference to the date of the offending: a) August 2018: first time jail sentences were imposed for Category Five--even after guilty pleas. Sentences ranged from 7-28 days in jail: Trans Mountain Pipeline ULC v. Mivasair, 2020 BCSC 1512 at para.

75. This is consistent with Dhillon BCCA at paras. 33-35 (a 30-day sentence for criminal contempt) and Trans Mountain BCCA (accepting Affleck J.'s sentence of 14 days in jail for first time offenders under Early Category Five). b) August 2018: breaches by Mr. Bige, Mr. Gallagher and Mr. Leyden, who were all Indigenous men. They were convicted in October 2019 after trial: Trans Mountain Pipeline ULC v. Mivasair, 2019 BCSC 2472. In October 2020, each was sentenced to a 28-day jail sentence, consistent with Late Category Five: Trans Mountain Pipeline ULC v. Mivasair, 2020 BCSC 1512. c) November/December 2019: three further breaches by Mr. Gallagher, who was convicted in November 2020: Trans Mountain Pipeline ULC v. Mivasair, 2020 BCSC 2190. In March 2021, Mr. Gallagher was sentenced to 90 days in jail given these further offences: Trans Mountain Pipeline ULC v. Mivasair, 2021 BCSC 369. Mr. Leyden was also convicted of a second breach in December 2019: Trans Mountain Pipeline ULC v. Mivasair, 2020 BCSC 2246. In June 2021, Mr. Leyden was sentenced to 45 days in jail: Trans Mountain Pipeline ULC v. Mivasair, 2021 BCSC 1127. d) October 2020: these Contemnors committed these offences. By this time, the Injunction had been in place over two years. e) January 2021: a breach by Mr. George, an Indigenous man convicted in October 2021 after trial: Trans Mountain Pipeline ULC v. Mivasair,

2021 BCSC 2658. In May 2022, Mr. George was sentenced to a 28-day jail sentence, consistent with Late Category Five: Trans Mountain Pipeline ULC v. Mivasair, 2022 BCSC 791. f) March 2021: a breach by Mr. Peach who pled guilty. In May 2021, Mr. Peach was sentenced to a 14‑day jail term consistent with Early Category Five: Trans Mountain Pipeline ULC v. Mivasair, 2021 BCSC 1749. Also, in March 2021, Mr. Povah breached the Injunction a second time (first conviction occurred in June 2018) and, in February 2022, he was convicted after trial: Trans Mountain Pipeline ULC v. Mivasair, 2022 BCSC 1035. In June 2022, Mr. Povah was sentenced to a 60-day jail sentence: Trans Mountain Pipeline ULC v. Mivasair, 2022 BCSC 1036. g) September 2021: breaches by Ms. McIntosh, Ms. Walmsley, and Ms. Hembling who pled guilty. In February 2022, they were sentenced to 14-day jail terms consistent with Early Category Five: Trans Mountain Pipeline ULC v. Mivasair, 2022 BCSC 323. Also, in September 2021, Mr. Haq and Mr. Winder breached the Injunction and later pled guilty. In February 2022, Mr. Haq was sentenced to 14 days in jail but I expressed in my reasons for judgment that I only did so in light of the Crown's position, and that an increased sentence would have been very much entertained if the Crown had sought one at that time. Mr. Winder was sentenced to 21 days in jail, but there were aggravating

circumstances that applied: Trans Mountain Pipeline ULC v. Mivasair, 2022 BCSC 338. Mr. Winder's sentencing was the first time that the Crown sought an increased jail sentence beyond the Early Category Five with respect to a first offender. h) November 2021: Dr. Takaro breached the Injunction and pled guilty. In June 2022, he was sentenced to a 30‑day jail term: Trans Mountain Pipeline ULC v. Mivasair, 2022 BCSC 1034. i) May 2022: Ms. Everett and Ms. Kelsall breached the Injunction and pled guilty. In January 2023, Crown sought 21-day jail sentences, an escalation from Early Category Five which was accepted by the Court with additional jail time (one week) for Ms. Kelsall for further contempt, which justified a departure from the joint submission: Trans Mountain Pipeline ULC v. Mivasair, 2023 BCSC 366. [68] In any event, it will be apparent that the Crown is continuing to depart from the Category Five sentence recommendations in seeking escalated jail sentences even for first offenders, given what it says is the need for further general deterrence. [69] From my summary above, it will be noted that many of the escalated sentences beyond the Crown's Category Five recommendations were for: a) repeat offenders (such as Mr. Gallagher, Mr. Leyden and Mr. Povah); b) where there were aggravating circumstances surrounding the offence (tree sits, such as by Mr. Winder and Dr. Takaro) and

devices such as sleeping dragons (Mr. Povah); c) where the passage of time called for escalating sentences (such as for Mr. Winder, Ms. Everett and Ms. Kelsall); or d) some combination of the above factors. [70] Finally, the defence relies on R. v. Sidhu, 2011 BCCA 246 in support of the parity principle. At para. 20, the court refers to its earlier comment that "fine distinctions are inappropriate when assessing the conduct of parties to a crime for purposes of sentencing, but that when there is clear distinction in culpability, differing sentences may well be in order" (emphasis in original). CROWN / DEFENCE POSITIONS [71] The Crown and defence counsel advance the following positions on sentencing. The Crown [72] The Crown seeks a jail sentence for each of the Contemnors ranging between one to three months in jail. [73] The Crown does not assert any mitigating circumstances. [74] With respect to each Contemnor, the Crown submits that a fit sentence is as follows: a) Ms. Lamoureux - one month plus some extra jail time for the circumstances where Ms. Lamoureux was required to be carried to the police vehicle; b) Ms. Dick - one month, which is at the lower end of the range, as I am placing no weight on her previous record; c) Ms. Zadorozny - 2-3 months, which is at the higher end of the range, given the later mischief convictions, in relation to specific deterrence; and d) Ms.

Bibbings - 2-3 months, which is at the higher end of the range, given the later mischief convictions, in relation to specific deterrence. Defence Counsel [75] The defence seeks the following sentences: a) Ms. Lamoureux - 28 days in jail; b) Ms. Dick - 28 days in jail; c) Ms. Zadorozny - 28 days in jail. Alternatively, if weight is to be given to the later 2021 convictions, 35 days in jail; and d) Ms. Bibbings - 60-day conditional sentence order (CSO); alternatively, if weight is to be given to the later 2022 convictions, a 75-day CSO. Alternatively, if there is jail time, 28 days in jail; alternatively, if weight is to be given to the later 2022 convictions, 35 days in jail. At the conclusion of the reading of these reasons, Ms. Bibbings' counsel sought to complete any jail sentence on an intermittent basis arising from her personal commitments in relation to Sequoia Solution.

DISCUSSION [76] There are some common circumstances which apply to all of the Contemnors that I agree should be considered. [77] All of them breached the Injunction in a peaceful manner. I agree that the circumstances of their arrests did not involve some of the aggravating circumstances surrounding breaches by other contemnors, such as the use of a sleeping dragon or tree sits. [78] I also acknowledge the many accomplishments of each of the Contemnors in their endeavors, both in their personal lives and in their communities. I acknowledge that each of them were driven by what their counsel describe as "altruistic motives". However, I would add that however noble the causes are that motivated their actions, it is extremely unfortunate that these intelligent and adult women chose to disregard the law and seek to impose their own sense of justice on other Canadians, in breach of the democratic principles existing in our society in terms of how we seek to change policy in our country. [79] I will repeat what I said to Ms. McIntosh, Ms. Walmsley and Ms. Hembling in Trans Mountain Pipeline ULC v. Mivasair, 2022 BCSC 323 at para. 48, quoting the BC Court of Appeal's recent comments in Teal Cedar Products Ltd. v. Rainforest Flying Squad, 2022 BCCA 26, in relation to protestors who were also passionate about environmental causes: [76] It is not tenable in a democracy for a group to

abandon the democratic process and impose their will on others by force. In a complex, pluralistic society, the democratically-elected government makes laws, and the courts interpret and uphold them. Barring constitutional overreach, the laws and decisions flowing from them are to be respected and enforced. [77] Protests are part of a healthy democracy; criminal conduct is not. In the circumstances of this case, the injunction is all that stands between Teal Cedar and a highly-organized group of individuals who are intent on breaking the law to get their way. . . . [80] All of the Contemnors stand in the same situation. They all came to protest Trans Mountain's activities and decided to do so in an illegal manner. They meant to disrupt Trans Mountain and its operations to send their messages. Even when they were asked multiple times to leave to avoid being arrested, they ignored those warnings. In doing so, they have accepted that they will be punished for taking the law into their own hands. [81] None of the Contemnors expressed any remorse that might have been considered as mitigating factors. [82] I will now turn to each of the Contemnors separately. Ms. Lamoureux [83] I agree with both the Crown and defence submissions that a jail sentence is appropriate. I say this even though Ms. Lamoureux is a first-time offender. [84] However, I accept the defence submission that Ms.

Lamoureux's sentence should be consistent with those sentences that had been imposed on other Trans Mountain contemnors for their arrests before, and just after her own breach in October 2020 (the offences of Mr. Bige and Mr. George, and the first offences of Mr. Gallagher and Mr. Leyden). [85] I acknowledge the Crown's submission that Ms. Lamoureux had to be carried to the police vehicle such that her peaceful protest had an element of passive aggressiveness. This no doubt entailed some physicality on the part of the arresting officers to place her in the vehicle, which heightened the risk to the officers, albeit slightly. [86] The objectives of denunciation and deterrence remain with respect to Ms. Lamoureux. As for deterrence, I consider that general deterrence remains a factor notwithstanding some decrease in matters relating to the Injunction before the Court. I also remain concerned about specific deterrence in respect of Ms. Lamoureux. Ms. Dick [87] As I stated before, I will treat Ms. Dick as a first offender. [88] Like Ms. Lamoureux, Ms. Dick's breach was peaceful and non-violent. She voluntarily walked to the police vehicle. [89] I have also considered the Gladue factors relevant to Ms. Dick, consistent with s. 718.2(e) of the Criminal Code which requires that I consider: . . . all available sanctions, other than imprisonment, that are reasonable in the circumstances

and consistent with the harm done to victims or to the community should be considered with particular attention to the circumstances of Aboriginal offenders. [90] Defence counsel have referred me to the well-known authorities that apply, including R. v. Gladue, [1999] 1 S.C.R. 688, R. v. Ipeelee, 2012 SCC 13 and R. v. Wells, 2000 SCC 10. In summarizing the principles from Gladue, the Court in Ipeelee stated: [59] The Court held, therefore, that s. 718.2(e) of the Code is a remedial provision designed to ameliorate the serious problem of overrepresentation of Aboriginal people in Canadian prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing (Gladue, at para. 93). It does more than affirm existing principles of sentencing; it calls upon judges to use a different method of analysis in determining a fit sentence for Aboriginal offenders. Section 718.2 (e) directs sentencing judges to pay particular attention to the circumstances of Aboriginal offenders because those circumstances are unique and different from those of non-Aboriginal offenders (Gladue, at para. 37). When sentencing an Aboriginal offender, a judge must consider: (a) the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and (b) the types of sentencing procedures and sanctions which may be

appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection (Gladue, at para. 66). Judges may take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but additional case-specific information will have to come from counsel and from the pre-sentence report (Gladue, at paras. 83-84). [91] However, such considerations do not mandate that the principle of restorative justice will have primacy in any given case. [92] In Wells at paras. 40-42, the Court emphasized that within the scope of s. 718.2(e), the court must still consider the matter on a case-by-case basis, considering the offence, the offender, the victim and the community. The fact that an offender is Indigenous does not dictate that a restorative approach is appropriate toward rehabilitation. [93] In Wells, the Court stated: [44] Let me emphasize that s. 718.2(e) requires a different methodology for assessing a fit sentence for an aboriginal offender; it does not mandate, necessarily, a different result. Section 718.2(e) does not alter the fundamental duty of the sentencing judge to impose a sentence that is fit for the offence and the offender. Furthermore, in Gladue, as mentioned the Court stressed that the application of s. 718.2(e) does not mean that aboriginal offenders must always be sentenced in a manner which

gives greatest weight to the principles of restorative justice and less weight to goals such as deterrence, denunciation, and separation (at para. 78). As a result, it will generally be the case, as a practical matter, that particularly violent and serious offences will result in imprisonment for aboriginal offenders as often as for non-aboriginal offenders (Gladue, at para. 33). Accordingly, I conclude that it was open to the trial judge to give primacy to the principles of denunciation and deterrence in this case on the basis that the crime involved was a serious one [Emphasis in original.] [94] I agree with the Crown that, in this case, where denunciation and deterrence are the primary sentencing objectives for this serious offence, an appropriate sentence for an Indigenous offender may not necessarily differ from what may be imposed on a non-Indigenous offender. [95] The Court in Ipeelee discussed how systemic factors and an Indigenous offender's heritage, background and circumstances relate to an offence, providing context to determine an appropriate sentence: [83] As the Ontario Court of Appeal goes on to note in Collins, it would be extremely difficult for an Aboriginal offender to ever establish a direct causal link between his circumstances and his offending. The interconnections are simply too complex. ... Furthermore, the operation of s. 718.2(e) does not logically

require such a connection. Systemic and background factors do not operate as an excuse or justification for the criminal conduct. Rather, they provide the necessary context to enable a judge to determine an appropriate sentence. This is not to say that those factors need not be tied in some way to the particular offender and offence. Unless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence. [Emphasis added.] [96] I have also reviewed the comments of Justice Marchand in R. v. Kehoe, 2023 BCCA 2 as to the proper application of Gladue factors. In that decision, Marchand J.A. stated: [40] Accordingly, Gladue and Ipeelee transformed the approach to sentencing Indigenous offenders. As with all offenders, a judge sentencing an Indigenous offender must take a holistic approach to imposing a fit sentence that is proportionate to the seriousness of the offence and the moral blameworthiness of the offender: Ipeelee at para.

37. However, since the circumstances of Indigenous offenders are "significantly different" from those of non-Indigenous offenders, the judge must pay particular attention to two factors: 1. The unique systemic or background factors that may have played a part in bringing the particular Indigenous offender before the courts; and 2. The types of sentencing procedures and sanctions that may be appropriate for the offender in the circumstances given their particular Indigenous heritage or connection. See Gladue at para. 66; Ipeelee at para. 59. [97] It is apparent that what brought Ms. Dick before the Court is her breach of the Injunction when she purposefully obstructed Trans Mountain's operations to voice her opposition to the pipeline project. She made a conscious decision to do so despite having knowledge of the Injunction and its effect. She ignored repeated warnings to leave when she could easily have done so to avoid the consequences she now faces. [98] I accept that Ms. Dick felt motivated to do so in the face of her significant objection to the treatment of Indigenous peoples in Canada, a point that historically, and even arguably presently, is beyond dispute. Like the others, she is motivated by her concern for the environment, particularly as it may affect her community. While Ms. Dick has motivations that are personal to her in terms of her Indigenous heritage, they are

not unlike the motivations of the other contemnors in the sense of cares and concerns that are, frankly, shared by many Canadians. [99] I conclude that Ms. Dick's conduct in this matter did not arise from the systemic factors or background that inform her past circumstances, although such a connection is not strictly necessary in applying Gladue principles and s. 718.2(e) of the Criminal Code. Ms. Dick's family has clearly faced challenges that are not uncommon with Indigenous peoples in Canada. Despite their effect on her, Ms. Dick has proven to be an accomplished person and is clearly a significant contributor to her family and her community and I have no doubt that she will continue to make those contributions. [100] Throughout this prosecution, and at this sentencing, Ms. Dick continues to voice frustration over land claims with respect to Secwe̓pemc traditional territory. In previous related decisions, I have repeatedly said that those are not relevant to this prosecution and I do not intend to address this issue within the context of her sentencing. [101] Ms. Dick argues that she was at the site for ceremony. Ms. Dick also refers to the importance of ceremony and I accept without hesitation that ceremony is an important aspect of Indigenous culture and life. She refers to a hair cutting ceremony at the time of the protest and it appears to have occurred prior to the

arrests. In any event, this argument is without merit. If Ms. Dick wished to engage in ceremony, she need only have moved to the side of Trans Mountain's gate area to do so where she would not have been arrested. She did not do so and the only reasonable inference that arises is that she intended to engage in ceremony in a place that would disrupt Trans Mountain's operations. Similar arguments by Mr. Gallagher were rejected for the same reason: Trans Mountain Pipeline ULC v. Mivasair, 2021 BCSC 369 at paras. 66 and 69. [102] As with the other convictions in this proceeding, including those for other Indigenous offenders, Ms. Dick's offence was serious and calls for the Court to denounce and deter her behavior, both generally and specifically. [103] Although Ms. Dick's Indigenous heritage, background and circumstances are relevant, I find that these factors do not shift the primary objectives from denunciation and deterrence in this case. [104] In these circumstances, I have no hesitation sentencing Ms. Dick in a way that addresses the need for both general deterrence and denunciation. The Injunction has remained in place for a reason. The need for general deterrence remains at this time. I also consider that specific deterrence is a relevant objective in relation to Ms. Dick. She, like the others, must fully comprehend that she cannot ignore orders of this Court and expect that

little or no consequences will ensue. [105] I have no difficulty concluding that a period of incarceration is an appropriate and fit sentence, again with reference to the parity principle in relation to similar offenders around the same time period and with respect to Gladue principles in relation to the length of that sentence. Ms. Zadorozny [106] My analysis with respect to Ms. Zadorozny is similar to that of Ms. Lamoureux with certain exceptions and added comments. [107] Firstly, Ms. Zadorozny walked to the police vehicle after arrest so the Crown does not allege any aggravating factor as a result. [108] Secondly, I must address the Crown's submissions regarding Ms. Zadorozny's later convictions for mischief. The Crown agrees that this is not an aggravating factor but can be considered by the Court for certain purposes. It is these later convictions that Crown counsel submits supports a jail sentence at the higher end of the range (2-3 months). [109] I have reviewed various authorities on the issue of how to address later convictions while a prosecution is extant. [110] The Crown has referred to R. v. Khosravi, 2019 BCSC 509, where the accused committed further crimes while on bail. In Khosravi at paras. 19-20, Justice Branch referred to R. v. Johnston, [1989] B.C.W.L.D. 2228 (C.A.) and stated that a later conviction is not an aggravating factor, but could be relevant to

sentencing with respect to the character of the accused, particularly with regard to the prospects of rehabilitation and specific deterrence. [111] A more recent statement of the relevant principle and approach is found in R. v. Pete, 2019 BCCA 244. In that case, the court confirmed that accused persons who are convicted of other subsequent offences by the time of their sentence must be considered a first-time offender for the purposes of sentencing. However, while still being considered as a first offender, subsequent convictions can be used for certain purposes. Subsequent convictions can be used to assess the character of the accused, the extent of rehabilitation, the prospects for rehabilitation and the extent of deterrence by conviction, all in relation to fashioning a fit sentence: Pete at paras. 39-40. See also R. v. D.W.L., 2020 BCSC 213 at para. 47. [112] I have considered the matter and concluded that Ms. Zadorozny's later convictions do not support the jail sentence urged upon me by Crown counsel. As I said earlier, the primary sentencing objectives here are denunciation and deterrence, and rehabilitation to a lesser extent. [113] As for specific deterrence of Ms. Zadorozny, I consider that a lesser jail term will be sufficient in that regard. She is clearly a dedicated activist given her later crimes following this prosecution. However, for those later crimes, she

has been convicted and sentenced and has borne her sentence. I consider that adding a harsher sentence at this point for those later convictions would effectively result in an increase of those later sentences, which I consider inappropriate. [114] I am not aware that Ms. Zadorozny has breached any other order or committed any other crime after her sentences in 2022. Having said that, I accept that specific deterrence in relation to her remains an open question. This was also the same situation with respect to Mr. Gallagher and his first conviction, which still supported a 28-day jail sentence: Trans Mountain Pipeline ULC v. Mivasair, 2020 BCSC 1512 at paras. 142-147 and 154. [115] Finally, there is the matter of Ms. Zadorozny's medical condition that I have outlined above. I am not aware of any facts that would support this as a reason to avoid incarceration. Ms. Zadorozny's counsel does not suggest otherwise. Ms. Bibbings [116] My analysis with respect to Ms. Lamoureux and Ms. Zadorozny is equally applicable to Ms. Bibbings. [117] Again, the Crown does not assert any mitigating factors or aggravating factors, such as a failure to walk to the police vehicle after arrest. [118] The most significant difference in Ms. Bibbings' submissions is that she seeks a CSO. In that respect, she relies on her medical conditions and on the principles of parity and proportionality. [119] I accept that the imposition of a CSO is available to me in these circumstances: Wells at para.

35. As noted in R. v. Proulx, 2000 SCC 5 at para. 105, a CSO can be seen as punitive and onerous and can be designed to meet the sentencing objectives of deterrence and denunciation (see also Wells at paras. 32-33). [120] Whether Ms. Bibbings' medical conditions justify such a sentence requires a consideration of what conditions she faces in jail. [121] BC Corrections has experience with inmates having medical conditions and I expect that they will deal with the issues as necessary and appropriate, under its statutory mandate to ensure that any inmate has access to health care: Correction Act Regulation, B.C. Reg. 58/2005, s. 2(1)(h). [122] Ms. Bibbings' medical conditions are not what I would describe as unusual. I am sure that other inmates also suffer from hypertension and require blood pressure medication, and that her medications can be provided in jail. In addition, I am advised by Crown counsel that Ms. Bibbings can bring her own CPAP machine for her sleep apnea and, if she does do so, one will be provided for her. [123] In that vein, Ms. Bibbings' evidence as to her medical issues does not support that incarceration will put her at significant risk. [124] Ms. Bibbings also refers to the issues of parity and proportionality as supporting a CSO and I have considered a CSO as a possible sentence for her. However, I cannot conclude that a CSO is an appropriate or reasonable response to this offence and Ms. Bibbings, even after having considered the mandatory provisions of s. 718.2(e): Wells at para.

30. I do not find that a CSO would adequately address the principles of denunciation and general deterrence. A similar submission was made by earlier contemnors and rejected as inappropriate and not supported in the circumstances given the primary sentencing objectives: relating to Mr. Gallagher, Mr. Leyden and Mr. Bige (Trans Mountain Pipeline ULC v. Mivasair, 2020 BCSC 1512 at para. 161), Mr. Gallagher (Trans Mountain Pipeline ULC v. Mivasair, 2021 BCSC 369 at para. 100) and Dr. Takaro (Trans Mountain Pipeline ULC v. Mivasair, 2022 BCSC 1034 at paras. 92-94). [125] There is also the matter of specific deterrence. I am of course aware that, in September 2022, Judge Craig accepted that Ms. Bibbings had made efforts to seek psychiatric help toward curbing her desire to break the law. I also acknowledge Ms. Bibbings' statement that she continues to receive that assistance from Dr. Lohrasbe. I would note, however, that Ms. Bibbings sought out that help only just before her sentencing before Judge Craig and after her crimes in October 2020, October 2021 and June 2022. [126] In any event, I propose fashioning Ms. Bibbings' sentence in the same manner as I concluded with respect to Ms. Zadorozny. I note in particular that Ms. Bibbings has not breached any other order or committed any other crime after her sentences in September 2022, which is not a long time. Like the others, I conclude that specific deterrence in relation to Ms. Bibbings remains an open question and does call for some regard in the sentencing process.

CONCLUSION [127] Defence counsel submits that some or all of the Contemnors now perhaps regret not having pled guilty at an earlier time to take advantage of that as a mitigating factor. Nevertheless, I would stress that all of the Contemnors were clearly aware of that option, including early in the proceedings. That they decided to oppose the prosecution over these last two years was the result of their decisions, with my added acknowledgement that it was certainly their constitutional right to defend the prosecution. That such regret has arisen now is unfortunate but was certainly avoidable if the Contemnors had chosen to pursue that option. [128] In addition, all of the Contemnors, particularly arising from their letters of support and character references, speak of the negative effects that might be visited upon their families and their communities in the event of their incarceration. I agree that potential negative effects may be felt by others and that is unfortunate. However, this is not an unusual situation for offenders who receive jail sentences, and such circumstances do not generally support a lesser sentence. [129] In that regard, I would emphasize that the possibility of jail time for these breaches would have, or at least, should have been known to the Contemnors when they breached the Injunction in October 2020. In that respect, any negative results felt by

their families and communities by reason of their incarceration can only be laid at their own feet and perhaps will inform their thinking in respect of any thoughts of future breaches. These circumstances include the late application by Ms. Bibbings to serve her jail sentence on an intermittent basis, which I rejected as not justified in the circumstances. [130] I would ask that all of the Contemnors stand. [131] Ms. Lamoureux, you are sentenced to 29-days incarceration. [132] Ms. Dick, you are sentenced to 28-days incarceration. [133] Ms. Zadorozny, you are sentenced to 28-days incarceration. [134] Ms. Bibbings, you are sentenced to 28-days incarceration. [135] I commend you all for your concerns for the environment and Indigenous issues that have largely motivated you to do what you did. However, you were seriously misguided in the means by which you sought to express them. In the future, I sincerely hope that these sentences will bring home to you that such illegal actions will not be tolerated and that it behooves you to resort to legal means of expressing your views and disseminating your messages to drive the societal, political or social change that you seek. [136] I wish you all well and good luck in your future endeavors. "Fitzpatrick J."