Sentence appeal denied for convicted anti-TMX protestor

A man convicted of breaching a court injunction barring protests at Trans Mountain worksites in Burnaby has had an appeal to reduce his sentence dismissed.

William George said the sentencing judge failed to properly take into account the circumstances of his Indigenous heritage while handing down a 28-day sentence for criminal contempt—something judges are required to do under the Criminal Code.

George (Swaysan), who is a member of the Tsleil-Waututh Nation and also has ancestry in and ties to the Squamish Nation, was convicted after he blockaded the entrance to Trans Mountain’s Burnaby Terminal on Jan. 6, 2021.

He and a group of fellow protestors had put a vehicle in the middle of the terminal entrance and removed its wheels, along with spray-painting anti-pipeline messages on it.

The blockade prevented normal operations at the worksite for about three-and-a-half hours and was removed when RCMP attended the scene.

BC Court of Appeal documents show George pleaded not guilty in court proceedings and later appealed both his conviction and the 28-day jail sentence—although he later withdrew his conviction appeal.

George had sought three months probation rather than a jail sentence—and on appeal, he asked for six to 12 months of probation with conditions.

At the time, sentencing judge Shelley Fitzpatrick said that she took George's Gladue report (a document that lays out the unique circumstances of Aboriginal people accused of a crime or of Aboriginal offenders) into account while considering his sentence.

However, she wrote that she also agreed with Crown counsel that in cases “where denunciation and deterrence are the primary sentencing objectives, an appropriate sentence for an Aboriginal offender may not necessarily differ from what may be imposed on a non-Aboriginal offender.”

She said while George’s Aboriginal heritage and circumstances were relevant, he had made great strides in becoming a valued member of his community and addressing his past traumas without breaching the law or court orders. She wrote that George’s actions at the Jan 6 protest did not arise from the systemic factors that informed his past circumstances.

George noted in his appeal that Gladue principles suggest that imprisonment be avoided if possible for Indigenous offenders, except in serious cases involving violence, and said the question before the appeals court was whether a criminal contempt conviction rose to that level of seriousness requiring imprisonment.

The appeal panel found that Fitzpatrick referred to and took into account George’s Indigenous heritage, along with the fact that he experienced physical and mental abuse, poverty, violence, and substance use disorders throughout his life. She also acknowledged that many of his older relatives attended residential schools.

“She agreed with the Crown that ‘in this case’, where denunciation and deterrence were the primary sentencing objectives, an ‘appropriate sentence for an Aboriginal offender may not necessarily differ from what may be imposed on a non-Aboriginal offender’,” the appeal panel wrote.

“She accepted that the appellant’s offence was not a violent one. Nevertheless, she considered the offence ‘serious, [and] consistent with the need for this Court to denounce and deter such behaviour, both generally and specifically’.”