Land defenders appeal sentences, arguing judge erred during Trans Mountain pipeline trial

Three land defenders who were convicted for opposing the Trans Mountain pipeline expansion (TMX) in Secwépemcúl’ecw are appealing their sentences.

During a hearing in “Vancouver” earlier this month, a lawyer representing the trio asked the B.C. Court of Appeal to re-examine their convictions, arguing their sentencing judge had made a series of unfair errors against them during their trial.

Benjamin Isitt said the appellants — Secwépemc land defender April Thomas, Nlaka’pamux land defender Red Deer Billie Pierre, and settler-ally Romilly Cavanaugh, a former TMX worker — were upholding Indigenous law when they were arrested.

“They believe they had legal duties in these circumstances,” Isitt told a three-judge appeal panel on March 3, “arising from Secwépemc and Nlakaʼpamux laws to protect the sacred waters of the Thompson River — Simpcwétkwe (North Thompson) in Secwépemctsín — and the salmon people who relied on the health of the river to survive.”

If their appeal succeeds, it could lead to a retrial at the B.C. Supreme Court.

Allowing convictions to stand would be unjust, says lawyer

In late 2020, police arrested Thomas, Pierre, Cavanaugh and five other land defenders, who had been holding ceremonies near Secwepemcétkwe (South Thompson) in Sqeq’petsin (Mission Flats area).

The arrestees were later charged with criminal contempt for breaching a TMX construction area protected by an injunction. 

Two years later, B.C. Supreme Court Justice Shelley Fitzpatrick found the three guilty of criminal contempt for breaching an injunction. 

In early 2022, she sentenced Cavanaugh — a professional engineer who once worked for TMX — to 32 days in jail. Three months later, Thomas received the same punishment, while Pierre was sentenced to 40 days of house arrest.

During their sentencing hearings, Thomas and Pierre argued they were upholding Secwépemc and Nlaka’pamux laws and duties to protect the water, salmon and land. 

But Fitzpatrick concluded this did not apply to their opposition of TMX.

“Even accepting that Indigenous people generally have a duty and obligation to protect the land and water,” she said in her 2023 decision, “that does not mean that they have a duty to oppose Trans Mountain’s pipeline.” 

After community supporters raised funds for the defendants, all three appealed Fitzpatrick’s sentences. 

Allowing the land defenders’ convictions to stand, Isitt told the appeal hearing, would be unjust.

Fitzpatrick, he argued, had failed to ensure a fair trial in late 2022, and had erred in four key areas of law.

He argued these include rejecting witnesses, not considering each defendant’s state of mind, not helping them navigate the legal process, and whether the TMX injunction zone was clearly marked.

Rejected witness testimony

On the first issue, Isitt said the land defenders had sought testimony from several elected Secwépemc chiefs whose First Nations granted permits and approvals for TMX development. 

The appellants requested subpoenas — a court order that requires a person to testify — however, Fitzpatrick had them quashed.

If the chiefs had testified, Isitt speculated that the appellants and other accused would’ve contrast that evidence against their own knowledge of Secwépemc rights, title, knowledge and duties within their territory.

One of the subpoenaed leaders was the elected chief of Thomas’s own community, Tsq̓éscen̓ First Nation (Canim Lake Band). 

“The appellants sought to demonstrate their honestly held beliefs regarding these legal obligations,” Isitt said, and that those Secwépemc obligations shaped “their concerns regarding the chiefs’ conduct.”

He read from Thomas’ 2022 trial testimony, in which she criticized Tsq̓éscen̓ First Nation’s deal with TMX.

“There was no real consultation, there was no meeting or anything to get the input,” Thomas testified, alleging the chief of her community “in no way” got “consent from the membership, and more importantly the nation.”

But when Fitzpatrick oversaw the first subpoena hearing in November 2022, Crown prosecutors and the subpoenaed chiefs’ lawyers attended — but “there was no notice, no submissions, and no attendance by the appellants or any of the other accused,” Isitt said.

Isitt said he could only speculate what the appellants’ defence may have looked like, because the chiefs were “never called” for the second hearing, and “they were never examined by the appellants and the other accused.”

Fitzpatrick moved to quash the subpoenas after examining evidence that Thomas provided from a testimony she gave earlier that year, Crown lawyer Lesley Ruzicka explained during the appeal hearing.

She said that Thomas’s testimony did not speak to Indigenous law, but rather, “challenged the authority and the authorizations to Trans Mountain,” and also “challenged the jurisdiction of the court to grant the injunction and challenge the application of the injunction to these lands.”

“So by the time Justice Fitzpatrick got to the subpoena hearing, it was very clear what the issues were … (the appellents) challenge the jurisdiction of this court over them,” Ruzicka said. 

Lawyer makes comparison to another TMX case

One of the appellants’ key points relates to whether the original judge properly considered their state of mind when they violated the injunction — a legal concept known as mens rea.

If the chiefs had testified, Isitt said his clients could have used that evidence to support their mens rea, or state-of-mind, defence — that their intentions arose not from “contempt” for the court, but rather from what they saw as their legal duty to uphold Secwépemc and Nlaka’pamux laws.

“To prove mens rea,” Isitt said, “the totality of the evidence must be provided.”

In the case of Cavanaugh, who is not Indigenous, Isitt said he believes that she could’ve used the chiefs’ testimony to build a mens rea defence as well, calling it a missed opportunity that she was unable to argue that she had “an honestly-held belief”  that “she was bound by Secwépemc laws and duties because she was in Secwépemc territory.”

“In terms of where the defence would have gone, what the evidence would have shown, what arguments would have been made,” he said, “we would say that process was circumvented.”

But Fitzpatrick deemed the chiefs’ testimony not relevant to whether the accused breached the injunction, or their state-of-mind while doing so.

“Their arguments of ‘unceded territory,’ Aboriginal laws and title and lack of jurisdiction constitute a defence for them. They do not,” Fitzpatrick wrote. “Such issues, if they exist and have any validity, should be brought in another forum.”

She continued that “it is untenable to suggest” that the court would consider “these very complex issues which are irrelevant to whether the accused acted in breach of the injunction and whether they had the requisite intent to do so.”

Isitt countered that Fitzpatrick had a “mistaken appreciation of the mens rea of contempt,” which “fatally impacted her reasons” in the subpoena decision.

He said that the justice “certainly” failed to consider the entire context, ultimately preventing Thomas and Pierre from calling evidence that might have helped their Indigenous law-based defence. 

“Those defences are valid,” he said. “Whether those defences would have succeeded is necessarily speculative — because the appellants were prevented from calling the witnesses that they deemed were necessary to fully make out those defences.”

He highlighted the parallels to this case and Fitzpatrick’s conviction of Stehm Mechok Kanim (Jim Leyden), which was overturned in 2023. The Elder had been found guilty of contempt for conducting a ceremony near a TMX work site at Lhuḵw’lhuḵw’áyten (Burnaby Mountain) four years earlier. 

As she had stated in her decision for Thomas and Pierre, Fitzpatrick similarly ruled that because Leyden had notice of the injunction, he was, therefore, in breach of it.

“[Fitzpatrick] believed that proof of knowledge of an injunction — and that conduct that would breach the injunction — that was sufficient to make of the mens rea element,” Isitt said. 

“She unilaterally dismissed the availability of the defences that the appellants sought to lead.”

In both cases, Isitt said Fitzpatrick “had closed her mind to conducting the obligatory, individualized mens rea inquiry that the law says she had a duty to conduct.” 

That could have given more weight to their Indigenous values and beliefs in their arguments, he continued — leading to a “failure to consider the evidence and available defences from an Aboriginal perspective.”

Judge used ‘very dismissive tone’: lawyer

Another reason for the land defenders’ new appeal relates to the fact they represented themselves, without a lawyer, in their original trial. Fitzpatrick did not show a “reasonable level of assistance” to the defendants, Isitt argued.

The Canadian Judicial Council requires that all judges “have an obligation to assist a self-represented accused through the criminal trial process so as to help ensure that the trial is fair,” as long as defendants are not “disrespectful, frivolous, unreasonable, vexatious, or abusive.”

However, Isitt argued that Fitzpatrick did not properly support the defendants and used a “very dismissive tone” towards them at times. He argued that she treated others involved in the case more fairly and that it “sharply contrasted in tone” compared to her treatment of the self-represented land defenders. 

He referred to one instance when defendant Cavanaugh asked why the unpublished decision document in the subpoena hearing was provided to other lawyers present, but he said was not in defendants’ book of authorities, a binder containing all the relevant legal documents and legislation each side plans to refer to in a case.

He said this was just one example contributing to the appearance of “imbalance” and “unequal treatment” in the judge’s attitude and approach to the two parties.

Fitzpatrick acknowledged the defendants were representing themselves without lawyers, but said the court had helped them.

“They have struggled to understand the procedures, despite the court assisting them throughout the matter,” she wrote in 2022. “However, the accused were well aware of the irrelevance of their arguments.”

In other examples of error that Isitt said resulted in failure of a fair trial, he said that the appellents didn’t receive adequate disclosure about their arraignments — court hearings when accused are told their criminal charges, and can plead guilty or not guilty — and whether adjournments were properly granted.

Isitt argued the defendant’s arraignment in April 2022 clearly “was an afterthought.” He said the accused were not aware they were going to be arraigned that day, depriving them of the ability to seek legal advice on how to plead. 

“At the time, the Crown had not shared its initial sentencing position with the accused,” Isitt said. “This was a year-and-a-half into the proceeding.”

The Crown counsel at the time acknowledged the accused had not received a formal arraignment, after Thomas brought up the matter in court.

When Fitzpatrick proposed to proceed with a formal arraignment then and there, Thomas objected, Isitt said.

“I have concerns with that, because — like I said from the get go — this court has never been straight-up with us about what proceedings and rules we will fall under,” Thomas had said in her submissions.

Isitt also argued court records show the Crown’s disclosure of evidence to the appellants “was late and incomplete.”

On the issue of adjournments being properly granted, Isitt noted Fitzpatrick dismissed Thomas’ application to adjourn hearings so she could oversee funeral arrangements for her late sister. 

Isitt contrasted that decision to Fitzpatrick granting an adjournment so the Crown prosecutor could attend a friend’s funeral.

Accused made ‘collateral attack’ on court’s authority: Crown

In his conclusion, Isitt said that based on these errors, the court should grant the appeals — and give the three land defenders a retrial.

Responding to the appeal application, Ruzicka argued Thomas and Pierre’s Indigenous law defence lacked clarity.

The prosecutor said it wasn’t explicitly clear what specific Indigenous law — whether Secwépemc or Nlaka’pamux — was being applied.

“There was no evidence before the court to establish that any of the subpoenaed witnesses could have given evidence with respect to Indigenous law,” Ruzicka said.

Ruzicka read evidence from Thomas’s trial testimony, in which the accused challenged both “the authority and the authorizations to Trans Mountain,” and also the court’s own authority “to grant the injunction and challenge the application of the injunction to these lands.” 

Ruzicka called such arguments “collateral attacks” on both TMX’s right to operate, and on the court’s jurisdiction. 

Ruzicka said that it was unlikely the subpoenaed witnesses would have provided any “relevant evidence” if the appellants’ arguments on Indigenous law were not available.

“What was really being challenged,” the Crown lawyer said, “was the court’s jurisdiction to grant an injunction, the application of what is often referred to as colonial law on unceded territory, and the authorization granted to Trans Mountain.”

The Crown also took issue with the appellants’ trial argument that they were holding ceremony and prayer the day they were arrested, and were there merely to observe.

“It’s not enough for an accused to assert that they are in prayer, or ceremony, or simply present as a legal observer,” Ruzicka said. The Crown lawyer defended Fitzpatrick’s interpretation of the appellants’ state of mind when they were arrested.

She also said Fitzpatrick had informed the defendants of their charges and sought their pleas at an appropriate time in the proceedings.

“There was never an indication at any point in the proceedings that the appellants intended to plead guilty,” Ruzicka said. “They never did plead guilty, and in fact, they’re now appealing their convictions.”

After the appeal hearing ended, Isitt told IndigiNews the Court of Appeal could decide the matter within the next year, with three days’ notice being given to the parties beforehand.