Charges have been dropped against watch house guardian Jim Leyden after the B.C. Appeal Court set aside Justice Shelley Fitzpatrick’s ruling
IndigiNews: A B.C. Supreme Court judge made an error when she convicted an Elder after he held a pipe ceremony outside of a Trans Mountain terminal, according to a ruling from the province’s highest court.
Stehm Mechok Kanim (Jim Leyden) was found guilty in 2020 after conducting the ceremony near a construction site for the Trans Mountain Pipeline Expansion (TMX) project at Lhuḵw’lhuḵw’áyten (Burnaby Mountain) in 2019. An injunction order has been in place since June 1, 2018.
The B.C. Appeal Court ordered a new trial for Leyden, but at a court hearing on August 2, representatives from Trans Mountain Pipeline and the BC Prosecution Service determined there was no longer a substantial likelihood of conviction at trial — marking the first Court of Appeal victory for any of the Trans Mountain Pipeline injunction cases.
Police took part in pipe ceremonies before Elder’s arrest
In June 2021, B.C. Supreme Court Justice Shelley Fitzpatrick found Leyden guilty of criminal contempt, and he was later sentenced to 45 days imprisonment. “I have this idea that it’s only punishment if you make it punishment,” said Leyden in an interview.
Together with his lawyer, Michelle Silongan, they filed for an appeal. On July 25, a three-judge panel unanimously found that Fitzpatrick “erred” (made an error) in her “mens rea” (criminal contempt) determination. To convict Leyden of criminal contempt, the Crown had to prove beyond a reasonable doubt that he physically prevented access of Trans Mountain employees and that he did so knowingly and in a public way.
In her judgment, Fitzpatrick found that because Leyden had notice of the injunction, he was, therefore, in breach of it. She also pointed to video evidence of Leyden with protesters at the injunction site, concluding that Leyden “physically, obstructed, impeded and prevented access by Trans Mountain’s personnel and contractors to gain access to and exit from the Burnaby Terminal.”
Leyden, who is 70-years-old and identifies as Anishinaabe, was invited by Squamish and Tsleil-Waututh Elders to conduct ceremonies and monitor activities from the Kwekwecnewtxw (Coast Salish watch house), built adjacent to the “Burnaby Mountain” tank farm. He’s been monitoring from the Kwekwecnewtxw since it was first built in 2018.
“I was asked to bring my chanupa (ceremonial pipe) and just try to keep the peace,” said Leyden. “We’d invite anyone in who wanted to join, the security guards, the police were constantly showing up.” Leyden said the police participated in his pipe ceremonies more than 30 times during his time at the Kwekwecnewtxw leading up to the arrest.
“Usually, at the end of the day, I’d just kind of wander the crowd,” he said. “If they looked antsy, I might bring [the pipe] in earlier to remind people to be peaceful.”
According to Leyden, there was nothing remarkable about the pipe ceremony he conducted on December 2, 2019. So when his lawyer called him nearly three weeks later with news that a warrant was out for his arrest, he didn’t know why.
Of the twelve people that participated in the pipe ceremony, the only people arrested were the two Indigenous people, Jim Leyden and Stacy Gallagher, also Anishinaabe.
Both Leyden and Gallagher served a separate 28 days in jail for defying the injunction in 2018, along with a third land defender, Tawahum Bige. There have been dozens of arrests of people who have defied the TMX Injunction since it was first implemented.
“Trans Mountain and the Crown are targeting Indigenous land defenders and using us as an example to scare others from confronting the pipeline expansion project,” said Leyden. In December of 2019, Leyden, as usual, was there as a watchman and with his ceremonial pipe to keep the peace. “I was only there for 20 minutes of the hour and a half that [land defenders were potentially in breach of the injunction],” said Leyden, who was situated at the “old Camp Cloud” site, opposite the entrance to the tank farm.
He’d invited the media to learn about “contaminated soil” he’d seen being loaded onto trucks and shipped off the Burnaby Mountain site to the lands of kʷikʷəƛ̓əm (Kwikwetlem Nation). “I stayed until five minutes after the last person from the media left,” said Leyden, “then [Stacy and I] came over to the blockade.”
Leyden said he told the two RCMP officers he was about to conduct a pipe ceremony. “I said to them, ‘We’re going to finish the ceremony, we’ll pass the pipe around four times, and then we’ll pray, shake hands, and we’ll go.’ We did exactly that,” said Leyden. “I wanted to make sure people walked away in a good way.”
Rather than disputing Leyden’s actions, the RCMP joined the circle and passed the pipe around with the rest of the group. During the trial, a Trans Mountain security manager and video evidence confirmed the RCMP’s willing participation. “Mr. Leyden then performed a ceremony involving a pipe and a prayer. The security manager said that when the police attended in response to the blockade, they ‘were offered the pipe and they passed it on,’” the July 25 appeal ruling states, in part. “At the end of the pipe ceremony, the group locked hands in a circle. One of the officers joined in the circle. Mr. Leyden testified that this officer is ‘part Cree.’”
Their compliance, along with previous conversations he’d had with police, led Leyden to believe he had permission to conduct the pipe ceremony. But despite the evidence, Fitzpatrick found that both Leyden and Gallagher “intentionally put themselves in a position where they obstructed access,” which she says was a clear breach of the injunction. However, Fitzpatrick’s assertions were found by all three appeal justices to be “not enough to ground a conviction for criminal contempt.” The appeal ruling states Fitzpatrick: “failed to consider the whole of the uncontradicted evidence of Mr. Leyden’s state of mind when she applied the mens rea requirement.”
Further, it states she “did not ask herself whether this state of mind raised a reasonable doubt about whether Mr. Leyden intended, knew or was reckless as to whether his public conduct would tend to lower the authority of the court.”
This isn’t the first time Fitzpatrick has criminalized Indigenous land defenders. In May, Fitzpatrick was presented with evidence from Secwépemc knowledge keepers about their ancestral laws and ceremonies when charged with criminal contempt for disrupting the Trans Mountain development in Secwepemcúl’ecw. Fitzpatrick dismissed the evidence as a personal choice that aligns with “Canadian” environmentalism. In October 2021, Fitzpatrick sentenced Tsleil-Waututh watchman Will George to 28 days in jail for breaching the “Burnaby Mountain” injunction.
Peacekeeping should be recognized by the courts: lawyer
Leyden’s appeal lawyer Silongan said she’d like to see “the true peacekeeping nature of ceremony better recognized and appreciated by the courts for what it does.”
In 2018, Justice Kenneth Affleck found land defender Kat Roivas, also known as “Lady Chainsaw,” not guilty of criminal contempt for smudging while standing in front of a truck at the entrance of the Burnaby tank farm. “She may have been motivated by her desire to perform a ceremony important to her and others she believed she was benefitting,” wrote Affleck in his judgement.
In 2022, Vincent Giampalma was found not guilty of criminal contempt for drumming while walking back and forth between the police and the arrest line at Fairy Creek. He wasn’t given notice that what he was doing constituted a breach of the injunction.
And now there’s Leyden. “I hope that recognition of the role of ceremony, and Elders conducting ceremony continues to be recognized by the court, and that distinctions can and should be made, depending on what the person who was accused of breaching the injunction actually intended,” said Silongan.
Leyden’s greatest hope is that the court listens to the broader issues. “We weren’t allowed to discuss global warming in the courtroom. They call it an outside issue,” said Leyden, who cited the lives lost in the Nova Scotia floods and western Canada wildfires. “
What do I want out of this? I want Justin Trudeau and the premier of British Columbia to both stand up and say pipelines are wrong. We want them to acknowledge that you can’t fight global warming by selling oil.”The TMX project, bought by the federal government in 2019, is slated to be “mechanically completed” by October 2023.
“It has a long history of oil spills, conflicts with Canada’s commitment under the Paris Climate Agreement to keep global temperatures from rising above 1.5 degrees Celsius, and violates the self-determination of Tseil-Waututh, Sḵwx̱wú7mesh, Secwépemc and many more First Nations.
According to a 2012 study, a medium-sized oil spill on the “British Columbia” coast would cost the regional economy up to $189 million and require $2.4 billion for cleanup costs. “The land has never been surrendered as sovereign land. We should have a right to practice (ceremonies),” said Leyden. Leyden said Indigenous people have a spiritual responsibility to protect the land and water.
“We don’t own,” he said, “we oversee.”
Author
Amy Romer is an award-winning visual journalist based in North Vancouver. Her work focuses primarily on human rights and the environment. She is a National Geographic Explorer and Global Reporting Centre grantee.