[1]         THE COURT: The accused, Chief Dsta'hyl, is alleged to have committed criminal contempt of court by wilfully breaching an injunction issued by Justice Church between October 17–26, 2021. The injunction order was made on December 31, 2019 (the “Injunction”). The terms of that Injunction allegedly breached by the accused are these:

[2]         The plaintiff is Coastal Gaslink Pipeline Ltd. (“CGL”), which is constructing a natural gas pipeline between Dawson Creek and Kitimat, BC.

[3]         In its written submissions, counsel for the Attorney General of British Columbia (the “AGBC”) submits that the following actions of Chief Dsta'hyl amounted to criminal contempt.

[4]         There is little dispute concerning the basic facts and defence counsel concedes that the actus reus has been proven to the criminal standard.

[5]         Crown called viva voce evidence and tendered considerable video evidence which captures some of the central events at issue. Chief Dsta'hyl testified and acknowledged the impugned conduct. The defence also tendered video evidence.

[6]         In brief compass, Chief Dsta'hyl, acting as an enforcement officer for the Likhts'amisyu Clan, participated in the decommissioning of a piece of heavy equipment owned by a CGL subcontractor on October 17, 2021. That action consisted of removing the battery from the equipment, an excavator, thus rendering it inoperable.

[7]         On October 24, 2021, Chief Dsta'hyl was part of a group of people who wished to travel a portion of the Shea FSR to visit an area on the Clore River to assess the degradation being caused by the pipeline construction. That group included two wing Chiefs of the Likhts'amisyu Clan, the accused and Chief Tse'besa, whose non‑chiefly name is Lillian Wilson. Chief Tse'besa was a defence witness at trial. She said that the specific region of the Clore River which they were trying to visit is part of the territory, or yintah, for which she is responsible.

[8]         On October 24, 2021, the Likhts'amisyu group was travelling in a small convoy of vehicles led by the accused in his pickup truck. The convoy was joined by Paul Sowers, a security officer working for Forsythe Security, with whom CGL had contracted. Mr. Sowers was in radio communication with his supervisor, who told him that the convoy would not be permitted to continue beyond the 25‑kilometre mark of the Shea FSR. That is where the Shea turns off to the right‑of‑way for the pipeline. Mr. Sowers advised Chief Dsta'hyl of the news from the supervisor, but the group decided to continue to the 25‑kilometre point nonetheless. Once they arrived there, they saw that the road was blocked by both construction tape and a large rock truck parked across the road surface of the right‑of‑way.

[9]         What next occurred is a matter of minor dispute between the parties, but the dispute is legally unimportant. It is clear that the Likhts'amisyu group, under the primary direction of Chief Dsta'hyl, formed their own blockade of the Shea FSR, which impeded the flow of vehicle traffic. The blockade may not have completely prevented all vehicles from passing, but it significantly impeded such traffic.

[10]      On October 25, 2021, the blockade moved some distance westward to an area near the CGL P2 Camp. For the next two days, that blockade, of which Chief Dsta'hyl was a part, completely prevented vehicles from getting into and out of the CGL P2 Camp where several hundred workers were staying. Only foot traffic could access the camp.

[11]      On October 26, 2021, people working under the direction of Chief Dsta'hyl rendered inoperable several pieces of heavy machinery parked near the CGL P2 Camp, by cutting electrical wires and removing batteries. Four of those batteries were placed into Chief Dsta'hyl's truck bed where they remained until October 27, 2021.

[12]      On October 27, 2021, Chief Dsta'hyl was arrested while driving in that truck eastbound away from the CGL P2 Camp.

[13]      The video evidence in this case fell into three main source categories:

[14]      There is also a single video clip, Exhibit 16, which captures a speech made by Chief Kloum Khun in January 2020, during an outdoor meeting of several members of the Wet'suwet'en hereditary leaders, including Chief Dsta'hyl.

[15]      The defence concedes that although Chief Dsta'hyl did not personally post videos to the internet, he consented to that occurring. Indeed, at various times video clips show him narrating his activities and intentions specifically for the viewers' edification. It is equally clear that Chief Dsta'hyl knew that his activities were being audio and video recorded, either by those accompanying him or by Forsythe Security personnel.

[16]      It is formally admitted as a fact that the events captured on video occurred within the geographic area covered by the terms of the Injunction.

[17]      The defence called four witnesses. In addition to the accused and Chief Tse'besa, they were Chief Hanamuxw or Don Ryan, who is a Gitksan Chief, and Chief Kloum Khun or Alphonse Gagnon, the brother of the accused and the head Chief of the Owl House of the Likhts'amisyu Clan.

[18]      All four defence witnesses testified about the Wet'suwet'en system of governance, which is matrilineal and divided along clan and house group lines. The Likhts'amisyu Clan is one of five clans within the Wet'suwet'en Nation and is itself divided into three houses. Both Chiefs Dsta'hyl and Tse'besa are wing Chiefs of the Sun House. The head Chief of the Sun House is Chief Smolgelgem, also known as Warner Naziel. Chief Smolgelgem is the nephew of Chief Dsta'hyl.

[19]      The Gitksan are closely affiliated with the Wet'suwet'en, share many traditions with them, and occupy much adjacent territory.

[20]      The defence witnesses describe the system of governance outside of Reserve lands revolving around the balhats, or feast hall gatherings. It is within that system that future chiefs are identified by matriarchs and current chiefs and groomed for leadership roles. That is how both Dsta'hyl and Tse'besa became wing Chiefs.

[21]      One of the important duties of all chiefs is preservation and protection of the territory or yintah, a vast area of largely unoccupied land in the north‑central part of the province. The Wet'suwet'en claim approximately 22,000 kilometres as their yintah. That land mass is divided into much smaller parcels of land, each claimed by one of the house head chiefs as their territory. Exhibit 17 is a map reproduced from the trial exhibits in the case of Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, 1997 CanLII 302 (S.C.C.), depicting the territory divided in that fashion.

[22]      Each of the defence witnesses also described in detail the importance of the traditional Wet'suwet'en law of trespass, which requires permission of the house group to be on their territory beyond merely passing through it. Historically, a trespasser who took bounty from a territory was given one warning, then summarily shot and killed for a second transgression. In more recent times, the law of trespass has not been enforced in that manner, but retains great importance nonetheless.

[23]      In January 2020, after the Injunction order of Church J., several Wet'suwet'en hereditary chiefs signed and delivered an eviction notice to CGL based on Wet'suwet'en laws of trespass. The meeting depicted in Exhibit 16 was the same day as the execution of the eviction notice, which is Exhibit 14. Both Chiefs Smolgelgem and Dsta'hyl are among the signatories of the eviction notice, although Chief Kloum Khun is not. He said that was because the pipeline did not pass through his territory.

[24]      The meeting in January 2020 occurred on Chief Woos's territory, and he signed the eviction notice. There is little evidence as to what occurred between January 2020 and October 2021, when the central events took place. Chief Dsta'hyl said that CGL removed some of its equipment after the eviction notice was served, but they later returned with the RCMP to commence construction of the pipeline.

[25]      Exhibit 15 is a memorandum of understanding between Canada, BC, and the Wet'suwet'en (the “MOU”). It was agreed on February 29, 2020, after several days of negotiations, and signed on May 14, 2020. It is signed on behalf of Canada by the Minister for Crown‑Indigenous Relations, and on behalf of BC by the Minister of Indigenous Relations and Reconciliation. Nine of the 12 head chiefs of the Wet'suwet'en house groups are also signatories, including Chiefs Kloum Khun, Woos, and Smolgelgem. Chief Dsta'hyl participated in the first part of the meetings in February, but could not attend the latter part, which he said were held in camera.

[26]      Both Chiefs Dsta'hyl and Kloum Khun agreed that the MOU sets out a framework for negotiations between the Wet'suwet'en and government. Importantly, the MOU recognizes that Wet'suwet'en rights and title are held by Wet'suwet'en houses under "their system of governance".

[27]      I heard no evidence as to what, if anything, occurred with respect to the negotiations contemplated by the MOU. There was a suggestion that the COVID‑19 pandemic forestalled those negotiations.

[28]      There was another meeting in the late summer or early autumn of 2021 near Parrot Lake on Chief Smolgelgem's territory to discuss taking steps to enforce the eviction notice. Among those in attendance were all of the defence witnesses. A collective decision was made to appoint Chiefs Dsta'hyl and Tse'besa as enforcement officers to attempt to take action which would get CGL’s attention. Seizing or disabling heavy equipment was thought by all to be a proportionate means of enforcing the law of trespass.

[29]      Chief Dsta'hyl said that he was, during the events of October 17–26, 2021, enforcing the Wet'suwet'en law of trespass. He knew his actions ran afoul of the Injunction, but believed he was upholding Wet'suwet'en law at all times. He said he had the “green light” from the head chiefs to proceed as he did, specifically to seize CGL’s assets. The enforcement action was aimed at forcing CGL to engage in dialogue about its ongoing trespass on Wet'suwet'en territory.

[30]      At the conclusion of his examination in chief, Chief Dsta'hyl said he believed his conduct complied 100% with Wet'suwet'en law. Chief Dsta'hyl said his intention was not to generate disrespect for the rule of law, but rather to uphold the law. He also said he did not believe his conduct would generate disrespect for the rule of law, because he was completely forthright with both the RCMP and CGL security people concerning his actions. He told them what his intentions were and he followed through with those intentions.

[31]      As earlier noted, counsel for the accused concede that the actus reus of criminal contempt has been proven beyond a reasonable doubt. Defence counsel submits that the mental element required for criminal contempt has not been proven. Further, the accused submit that, even if I am satisfied beyond a reasonable doubt that criminal contempt has been proven, I should nonetheless acquit pursuant to s. 8(3) of the Criminal Code, R.S.C. 1985, c. C-46 because the accused acted pursuant to a co‑existing Indigenous legal order, specifically the Wet'suwet'en law of trespass.

[32]      Before addressing those submissions, I should address the essential elements of the offence of criminal contempt. The first three are identical to the elements of civil contempt, namely:

[33]      In all contempt proceedings, the moving party must prove the foregoing beyond a reasonable doubt. Here, I am satisfied that counsel for the AGBC has done so. Indeed, the evidence of Chief Dsta'hyl confirms his knowledge of the order and wilful disobedience of its terms.

[34]      The additional element that must be proven beyond a reasonable doubt in criminal contempt proceedings is that the disobedience of the court order occurred in a public way, in a manner calculated to depreciate the authority of the court. The public disobedience, which is not at issue here, is part of the actus reus of criminal contempt. Knowledge or recklessness that the public act of disobedience will tend to depreciate the Court's authority is the additional mental element of criminal contempt.

[35]      In assessing the question of proof of the mental element, the Court must assess all the evidence, including that of the accused, to determine what was in his mind at the relevant time. Here counsel for Chief Dsta'hyl submits that the requisite intent is not proven. In particular, counsel relies on the unchallenged evidence of Chief Dsta'hyl at the end of examination in chief about his intentions. In written submissions, the accused submits at paras. 26–27 the following:

[36]      The fatal problem with those submissions is that they mischaracterize the substance of Chief Dsta'hyl's evidence, which was wholly silent on the critical issue of his appreciation of the impact of his conduct on public respect for the authority of the court. He was clear that he was attempting to uphold the law, and implicit in that is Wet'suwet'en law. He said his actions were consistent with Wet'suwet'en laws, and by that I take him to be referring to their laws of trespass. He also said he was not intending to generate disrespect for the rule of law. I accept the sincerity of that evidence and Chief Dsta'hyl's underlying beliefs. However, that evidence does not address the central issue: whether he knew that his actions would tend to depreciate the authority of the court.

[37]      In my view, the evidence that he knew, indeed intended, that his actions and accompanying words would tend to depreciate the court's authority is overwhelming. The most compelling evidence on this score is the commentary of Chief Dsta'hyl at the various times he was engaged in the contemptuous conduct. These comments included the following:

[38]      It is difficult to conceive of a clearer case of knowledge that one's conduct would depreciate the authority of the Court than this. Chief Dsta'hyl's words showed his personal disdain, or contempt, for the Court and its order. He described the order as "invalid" and "bogus", and the issuing judge as "dishonourable". The submission that there is a reasonable doubt on intent is untenable.

[39]      Chief Dsta'hyl’s testimony that he thought he was upholding Wet'suwet'en law and that, because he was forthright about what he was doing, his actions would not foster disrespect for the rule of law, is largely irrelevant to the central question. That is so in part because of Chief Dsta'hyl's misconception of the rule of law and actions which might imperil it. It is axiomatic that conduct which diminishes the authority of the Court, broadly speaking, will have the additional effect of eroding the rule of law as that concept is properly understood in Canada. There is no grey area or room for debate about that proposition.

[40]      As noted by Justice McLachlin in United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901, 1992 CanLII 99 (S.C.C.) at para. 50:

[41]      Based on all the evidence, in particular the above‑quoted words of Chief Dsta'hyl uttered at the time he breached the order, I am satisfied beyond a reasonable doubt that the accused knew that his conduct would tend to depreciate the authority of the Court. The Crown has proved the allegation of criminal contempt beyond a reasonable doubt, subject to the application of the novel defence advanced under s. 8(3) of the Criminal Code.

[42]      The accused submits that it is open to the Court, by application of s. 8(3) of the Criminal Code, to expand the common law to recognize the proposed defence. Section 8(3) reads:

[43]      Because criminal contempt is a common law offence, the constraint noted by the closing portion of s. 8(3) has no application, submits the accused, a proposition with which I agree. I also accept that a line of authority from Kirzner v. The Queen, [1978] 2 S.C.R. 487, 1977 CanLII 38 (S.C.C.), through Amato v. The Queen, [1982] 2 S.C.R. 418, 1982 CanLII 31 (S.C.C.), and beyond, permits judges of this Court to expand the common law to recognize and develop new defences that are not inconsistent with the Criminal Code.

[44]      In the present case, the accused submits that I should excuse the conduct and decline to convict Chief Dsta'hyl of criminal contempt because he was acting pursuant to a coexisting Indigenous legal order.

[45]      In written submissions at paras. 51 and 56, the defence submits the following:

[46]      I will address the primary issue which leads me to conclude that I cannot accede to the position advanced by the defence shortly. However, the defence fails for a more fundamental reason. I agree with the Crown's submission that, at its core, the proposed defence is a thinly disguised collateral attack on the Injunction order of Church J.

[47]      The rule barring collateral attack of a court order was summarized this way by the Supreme Court of Canada in R. v. Bird, 2019 SCC 7 at para. 1:

[48]      The rule barring collateral attacks on court orders is fundamental to preserving the rule of law and maintaining the authority of the court: Hayes Forest Services Limited v. Krawczyk, 2006 BCCA 156 at para. 69. In that case, the Court of Appeal quoted with approval the decision of this Court in British Columbia Attorney General v. Mount Currie Indian Band, 54 B.C.L.R. (2d) 129, 1991 CanLII 892 (B.C.S.C.), wherein Justice Macdonald characterized as a collateral attack a claim by Indigenous contemnors that the Court lacked jurisdiction over unceded Indigenous territory. Justice Macdonald held that:

[49]      In the present case, it is abundantly clear that the eviction notice delivered by the hereditary chiefs in early January 2020 was a direct response to the Injunction. As noted, Chief Dsta'hyl is among the signatories and he was present at the meeting which occurred the same day the eviction notice was signed. At that meeting, as seen in Exhibit 16, Chief Kloum Khun made direct reference to the fact that the prior interim Injunction had become permanent. Chief Kloum Khun also expressed an intention to have Wet'suwet'en laws respected and recognized.

[50]      Then, approximately two months prior to the events at issue here, various members of the Likhts'amisyu Clan decided to commence enforcement action in relation to the eviction notice. At that meeting, Chief Dsta'hyl became the main enforcement officer. His subsequent enforcement actions are the conduct with which we are here concerned.

[51]      Chief Smolgelgem, also known as Warner Naziel, is the head chief of the Sun House or Sa Yikh, of which the accused is a wing chief. Warner Naziel was one of the defendants who directly participated in the proceedings before Church J. Chief Dsta'hyl swore an affidavit intended to be filed in those proceedings. Chief Dsta'hyl familiarized himself with the reasons given by Church J. at the time she made the Injunction. In his testimony, Chief Dsta'hyl said that Church J. either did not know about the Delgamuukw decision or she wilfully ignored it.

[52]      In fact, Church J. referred to Delgamuukw several times in her judgment (indexed at 2019 BCSC 2264) and noted correctly that the Supreme Court of Canada’s decision left unresolved the Aboriginal title claims of the Wet'suwet'en. Importantly, Church J. considered some of the very same claims now made at this criminal trial concerning trespass and Wet'suwet'en law. For example, in summarizing the position of the defendants, Church J. said this at para. 51:

[53]      Then at paras. 127–159, Church J. dealt with the headings, "Indigenous Law as a Defence", "Indigenous Legal Perspective", and "Self‑Help Remedies". She concluded at para. 159:

[54]      Justice Church then considered the legal test for an Injunction and made the order in favour of the plaintiffs.

[55]      The self‑help remedies there under consideration were blockades, said to be preventing the plaintiffs from violating Wet'suwet'en law. Here the conduct is blockades and seizure or decommissioning of equipment as part of what Chief Dsta'hyl says is enforcement action to uphold the Wet'suwet'en law of trespass. There is no legal distinction between the conduct considered by Justice Church and the stated rationale for it, and the actions of Chief Dsta'hyl and his stated motivation. If the Likhts'amisyu Clan and its hereditary chiefs were unhappy with the decision of Church J. and believed it was wrongly decided, the potential recourse was an appeal or an application to vary. Further resort to self‑help remedies was not a legally‑viable option.

[56]      The only way to properly characterize the novel excusatory defence advanced on behalf of Chief Dsta'hyl is as a collateral attack on the Injunction order of Church J. For that reason, the defence fails.

[57]      With respect to the merits of the claim that permitting the novel excusatory defence would be an appropriate means of harmonizing Indigenous law and colonial law, I make two comments:

[58]      In conclusion, I decline to give legal effect to the proposed novel excusatory defence. The Crown has proved the case of criminal contempt against Chief Dsta'hyl beyond a reasonable doubt and I find him guilty of criminal contempt of court.