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Witsuwit'en wing chief sentenced for criminal contempt

Adam Gagnon receives 60 days house arrest for breaching Supreme Court injunction, vows to fight on
Adam Gagnon, fifth from left, with supporters outside the courthouse in Smithers July 2 during his B.C. Supreme Court sentencing hearing for criminal contempt of court. (Thom Barker/Black Press Media)

Following his sentencing July 3 for criminal contempt of court, Witsuwit'en Wing Chief Dsta'hyl (Adam Gagnon) told supporters outside the Smithers courthouse the fight is not over.

"This is just beginning because it's gonna be registered with the appeal court and we are going to appeal," he said. "Then that's going to be another long drawn out process that's going to take, you know, could be years, we don't know. But other than that, I just thank all of you for all of your support."

It has been nearly three years since Dsta'hyl was arrested and detained for breaching a B.C. Supreme Court injunction against impeding construction of the Coastal GasLink LNG pipeline.

Following a trial in February of this year, Supreme Court Justice Michael Tammen found Dsta'hyl guilty of criminal contempt of court. The judge rejected the novel defence that Dsta'hyl was acting in accordance with a co-existing Witsuwit'en law.

In finding Dsta'hyl guilty, Tammen said the two laws could not co-exist.

On Wednesday, Dsta'hyl supporters packed the courtroom and adjoining video room at the Smithers Courthouse to witness Tammen's sentencing decision: 60 days house arrest, essentially splitting the difference between the Crown and defence positions.

The decision came after a day and a half of sentencing submissions by prosecutors Kathryn Costain and Monique Dull and defence attorney Rebecca McConchie.

The Crown submitted the gravity of a charge of criminal contempt is inherently serious because it undermines the rule of law and calls the administration of justice into disrepute.

The prosecution argued a custodial sentence was necessary to satisfy the primary sentencing principles of denunciation and deterrence as set out in the Criminal Code of Canada.

Costain cited aggravating circumstances that the offences occurred over a period of four days, that Dsta'hyl is a leader in the community and that he directed others to engage in the specific actions leading to his arrest. Furthermore, she said, Dsta'hyl wilfully breached the court order publicly to knowingly and intentionally depreciate the court's authority and caused significant disruption to Coastal GasLink's construction activity.

The Crown argued Dsta'hyl's firmly held beliefs — that he was compelled and duty-bound to engage in the activities he was convicted of to protect the land in the best interest of his people and future generations — did not constitute a mitigating circumstance for the purpose of sentencing.

They cited B.C. case law, including cases from the Transmountain pipeline and Fairy Creek old growth logging protests to suggest that a prison term of 60 to 90 days, even for a first offender such as Dsta'hyl, was an appropriate sentence.

They said the law was inconclusive on whether a conditional sentence (one served in the community) was available to the court in the current case. Nevertheless, they submitted if Tammen disagreed, the conditional sentence order should include a ban on alcohol and weapons to mirror the conditions of a custodial sentence in a state facility.

They also made a concession for periods of freedom in the community to take care of personal business, particulary Dsta'hyl's ongoing cancer treatments. 

The defence conceded criminal contempt is inherently serious and did not dispute the aggravating circumstances.

McConchie's argument for a lesser sentence hinged on the principle of restraint, which requires the courts to exhaust all other alternatives to incarceration before imposing a prison term, especially when dealing with Indigenous people.

The defence's position was backed up by a Gladue report outlining the systemic and specific circumstances of Dsta'hyl as an Indigenous person, as well as numerous glowing character references from members of the community.

The letters painted Dsta'hyl as a passionate bridge-builder within the broader community.

Later, in delivering his decision, Tammen said it was "as impressive a collection as I have ever seen in my 35 years as a lawyer and officer of the court."

She disputed the Crown's position that the general historical treatment of Indigenous people and Dsta'hyl's personal history and beliefs were not relevant, saying they were inextricably linked to the actions that led to his conviction.

She pointed to five days of testimony by hereditary chiefs at trial that proved while his belief he was acting in accordance with Witsuwit'en law did not excuse his actions, it provided the context under which he carried them out and reduced his moral blameworthiness.

She said a custodial sentence was not only unnecessary, but also inappropriate.

Her ask was for two years probation plus community service hours.

McConchie also disputed the contention that the law is inconclusive on the availability of a conditional sentence, saying that if the court decided to go that way, it should be on the lower end in time and include a condition that Dsta'hyl could continue his almost daily therapeutic visits to the Bulkley Valley Pool.

The judge agreed with the Crown that given the aggravating circumstances a custodial sentence was warranted, but disagreed that the law was inconclusive as to whether a conditional sentence order was available.

He also disagreed with the Crown's analysis that the case law set the range for a custodial sentence for first offenders in similar contempt cases at 60 to 90 days, saying the cited cases rather supported a range 45-60 days.

He also set aside the prosecution's contention that a direct connection between the general background of colonial oppression and Dsta'hyl's personal history and beliefs were not relevant to sentencing.

The judge said that while that background did not constitute a valid trial defence in terms of the conviction, it was relevant to crafting a just sentence.

Dsta'hyl, a wing chief of the Smogelgem (Sun) House of the Likhts’amisyu (Fireweed and Owl) Clan was arrested in October 2021 after he attempted to enforce an eviction order the Witsuwit'en hereditary chiefs had issued to Coastal GasLink in January 2020.

Over a period of several days Dsta'hyl and others impeded Coastal GasLink and its contractors from accessing the pipeline's P2 camp off the Morice Forest Service Road near Houston. Acting as an enforcement officer, Dsta'hyl also disabled heavy equipment belonging to contractors. 

At trial, testimony indicated Dsta'hyl, a chief for 40 years, was given the authority at a meeting at Parrot Lake to act in this capacity in accordance with Witsuwit'en governance and based on the Witsuwit'en Law of Trespass. Essentially, the Law of Trespass is that anyone wishing to engage in activities on the Yintah (land), other than just passing through, must seek and receive permission. It is central to the Witsuwit'en legal framework.

While he vowed to fight on all the way to the Supreme Court of Canada (SCC) if necessary, Dsta'hyl told media outside the courthouse he was overall satisfied with the July 3 result. He said in the long run, it is progress toward establishing the rights and title recognized more than a quarter century ago by the SCC Delgamuukw decision.

Thom Barker

About the Author: Thom Barker

After graduating with a geology degree from Carleton University and taking a detour through the high tech business, Thom started his journalism career as a fact-checker for a magazine in Ottawa in 2002.
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