Indigenous land defender sentenced to 90 days in jail

B.C. Supreme Court Justice Shelley Fitzpatrick sentenced 58-year-old Indigenous land defender Stacy Gallagher on Tuesday to 90 days in jail, one of the harshest sentences imposed for contempt of court in B.C. Fitzpatrick said the sentence was punishment aimed at deterrence to “send a clear message to Gallagher and those who would be influenced by his actions.”

Gallagher’s supporters promptly filed a notice of appeal on his behalf, and on Wednesday, Gallagher was released on bail pending his appeal.

Gallagher was convicted in August on three charges of criminal contempt for defying an injunction while he was engaged in a ceremony outside the Burnaby Terminal facility of Trans Mountain Pipeline ULC (TMX). On three days in November and December 2019, Gallagher was surrounded by other mostly white land defenders, but only Gallagher and Indigenous elder Jim Leyden were charged and prosecuted by the Crown for violating a three-year-old injunction brought by TMX in March 2018.

Leyden, 68, who lives with a number of health conditions, was convicted of criminal contempt in December and is now awaiting his sentence. He is facing 60 days in jail, according to Crown prosecutors.

The Orwellian way in which the Crown charged and prosecuted Gallagher and Leyden — at the behest of TMX, after being filmed by private security and without the presence of police or an order to disperse — sets a new, troubling precedent for how the Crown is handling alleged violations of the injunction.

The Crown has already been accused of targeting Indigenous land defenders, but remarkably, Gallagher’s stiff sentence comes after the adoption of a new Crown policy in January that directs prosecutors to use “principled restraint in all sentencing matters” related to Indigenous defendants, and says “custodial sentences, particularly those under two years in duration, should be seen as a last resort.”

As a foundation for altering the B.C. government’s approach to cases against Indigenous people, the policy encourages Crown prosecutors to consider alternative measures to prosecution. In particular, the policy states: “If there is a reasonable possibility that the public interest could be satisfied by referring an Indigenous accused person for alternative measures, Crown Counsel should do so. This is true even if the Indigenous person has been previously referred for or dealt with by alternative measures or has been previously convicted of a criminal offence and sentenced, including to a sentence of imprisonment. Whenever the public interest could reasonably be satisfied by resorting to alternative measures in relation to an Indigenous accused person, Crown counsel should pursue that option, even if prosecution would be an equally reasonable option.”

A Jan. 15 media statement from the B.C. Prosecution Service indicates a framework for this policy has existed since at least April 2019; nonetheless, eight months later, the Crown began aggressively prosecuting Gallagher and Leyden, and seeking the harshest possible custodial sentences.

During Gallagher’s sentencing hearing, Crown prosecutor Monte Ruttan sidestepped the elephant in the room and claimed the Crown’s new policy is “irrelevant to the court’s task.” Instead, Ruttan argued that denunciation and deterrence are “key objectives” in sentencing for contempt and are strategies used to “protect the rule of law.”

When asked to reconcile the Crown’s decisions in Gallagher’s case with its new policy of “principled restraint” in prosecuting and sentencing Indigenous defendants, Ruttan had no comment.

Adding to the reasons why the actions of Crown prosecutors and the court seem so confounding was a COVID-19 outbreak was reported in January at the North Fraser Pretrial Centre (NFPC). The alternative detention facility suggested by Ruttan — Fraser Regional Correctional Centre in Maple Ridge — also sustained a COVID-19 outbreak, according to the B.C. Ministry of Health.

Even before these latest outbreaks, NFPC was isolating prisoners in what amounted to solitary confinement, a practice condemned by the United Nations and abandoned last year by the Canadian government. Gallagher and Leyden were both held in solitary confinement last fall after being sentenced to 28 days in jail for a previous TMX-related contempt conviction. Leyden was hospitalized after his jail term due to health impacts from multiple spider bites he sustained while at NFPC.

Gallagher and his defence lawyer Sarah Rauch used the new Crown policy, the COVID-19 outbreaks in local jails and several other arguments to object to a custodial sentence for Gallagher, but Justice Fitzpatrick seemed determined to send him to jail.

Gallagher was also sentenced to one year probation, which includes a condition that prohibits him from coming within 500 metres of a TMX facility anywhere in the province. Leyden is also bound by the same “stay away” order, and the two of them are the only ones with such stringent conditions after three years of prosecutions and more than 230 TMX convictions.

Unsure if legal aid will accept his request for appellate legal counsel, Gallagher is being forced to represent himself in his appeal.

“The systemic racism and violence of this court system is shameful,” said Rita Wong, Gallagher’s partner. “We believe the Crown and the court have failed to act in the public interest and are in denial of the real dangers posed by the climate emergency we are in,” continued Wong.

The movement to stop TMX is left wondering how far the Crown and the courts are willing to go in order to undermine Indigenous sovereignty and widespread opposition to the project. Using targeted and draconian punishment against Indigenous land defenders to scare others from resisting the pipeline hits a notable low, but by all accounts, the colonial legal system is doubling down to protect TMX at any cost, a gamble that is likely to come with consequences.

Kris Hermes is a West Coast–based activist who has worked for nearly 30 years on social justice issues.