Summaries of Coastal Gaslink Pipeline Ltd. v. Huson, 2025 BCSC 643 and R v Hardenstine 2025 BCSC 889
Coastal Gaslink Pipeline Ltd. v. Huson, 2025 BCSC 643
BACKGROUND
In December 2019, an injunction (the "Injunction") was granted preventing the blockage work sites operated by Coastal Gaslink Pipeline Ltd. ("CGL") on Wet'suwet'en territory.
Despite the injunction, a group of individuals set up a blockage and subsequently fortified it with barricades, preventing pedestrians and vehicles from accessing the work sites. Three accused involved in the protest were arrested in November 2021 and charged with criminal contempt of court for breaching the Injunction.
Two accused, Sledyo' and Ms. Sampson, were among a group of eight people occupying a small wheeled mobile home (the "Tiny Home") that was placed on one of CGL's work sites. The other accused, Mr. Jocko, was among a smaller group of people occupying a small wood structure (the "Cabin") within the right of way being used for pipeline construction.
The accused were all convicted of criminal contempt of court in January 2024. Following the convictions, the accused brought a motion seeking a judicial stay of proceedings on the basis that their Charter rights were violated in the course of the arrests, which took place on the second day of enforcement, on November 19, 2021.
The commanding officer, Superintendent Elliot, was altered to the fact that police may have required a Feeney warrant in order to enter the Tiny Home to effect the arrests. Ultimately, the decision was made to not obtain a Feeney warrant, relying on the Injunction itself as legal authority.
ABSENCE OF A FEENEY WARRANT
A Feeney Warrant refers to the Supreme Court of Canada's decision in R. v. Feeney (1997), 1997 CanLII 342 (SCC), where the Supreme Court of Canada held that warrantless arrests in a dwelling house are generally prohibited and that prior judicial authorization is required except in cases of hot pursuit. The Criminal Code was subsequently amended in response to Feeney to include an 'exigent circumstances' exception in section 529.3.
In this case, it was not disputed that police entered both the Tiny Home and the Cabin without a warrant. The accused argued that the absence of a warrant rendered the arrests unlawful and a breach of their section 8 and 9 rights under the Charter on the basis that both structures were dwelling houses as defined by the Criminal Code:
The Criminal Code defines "dwelling‑house" as follows:
dwelling-house means the whole or any part of a building or structure that is kept or occupied as a permanent or temporary residence, and includes
- a building within the curtilage of a dwelling-house that is connected to it by a doorway or by a covered and enclosed passage-way, and
- a unit that is designed to be mobile and to be used as a permanent or temporary residence and that is being used as such a residence;
The Court distinguished Huson from R v. Picard, 2018 BCPC 344, as the court in Picard was concerned with police powers to search a tent erected on a city sidewalk incidental to lawful arrest. Huson, on the other hand, concerned the scope of police powers to enter a structure to affect an arrest. The Court also noted that, while the unlawful character of the structures and occupation limited their reasonable expectation of privacy, it was not wholly extinguished.
The Court agreed with the accused, finding that "evidence of occupation as a temporary residence is sufficient" to bring a structure within the definition of a dwelling house. Accordingly, the Court found section 8 and 9 breaches, as the Tiny Home and Cabin were both dwelling houses and police required a warrant to effect the arrests.
The rest of the judgment focused on the cumulative effect of several instances of anti-Indigenous racism and offensive comments by multiple officers that was recorded following the arrests, the removal of cultural items while in cells, alleged Charter breaches between their arrests and release, police conduct in other arrests effected as part of the Injunction enforcement, and whether such conduct amounted to an abuse of process in the residual category under section 7 of the Charter.
Ultimately, the Court found a section 7 breach with respect to the offensive comments made about the accused post-arrest, finding that a reduction in sentence was an appropriate remedy. In making this determination, the Court noted that the failure to obtain a Feeney warrant in this case added little to the calculus as the arrests were authorized and inevitable, and the breaches that flowed from the failure to obtain a warrant were "as minor as could ever occur" with a warrantless arrest in a dwelling house.
CONCLUSION
While the overall effect of the section 8 and 9 breaches in Huson was minor, and despite the unlawful nature of the occupation, the Court nevertheless found that the warrantless entry of the Tiny Home and Cabin to effect arrests was a breach of the Charter. Huson is a reminder for officers to obtain a warrant before entering any permanent or temporary structure that could fit within the Criminal Code definition of a "dwelling house" absent an exception (i.e, hot pursuit or exigent circumstances as prescribed by section 529.3 of the Criminal Code).
R v Hardenstine 2025 BCSC 889
BACKGROUND
In April 2024, police received a tip from a caller advising that the accused, Mr. Hardenstine, contacted him about the sale of two firearms. The accused had outstanding warrants, was known to flee from police and was considered armed and dangerous. The caller purported to know his whereabouts.
Police tried to verify the veracity of the tip but ultimately were unable to do so. The caller initially provided a false name, changed the location of the alleged sale numerous times, and displayed strong hostility toward the accused.
The police believed the caller was initially lying about the tip and had multiple conversations to get information from the caller. The caller never provided a precise time of the sale, the make or model of the vehicle the accused would arrive in, or any information about how many people would be at the sale.
Nevertheless, four officers travelled to the location of the purported sale at around 1:30 am and one vehicle, a Chevy sedan, drove past one of the officers and turned onto a road towards the town of Oliver. Police observed a large figure in the passenger seat but still did not know if it was the right vehicle.
Ultimately, a traffic stop was conducted, with an officer advising the driver that he was stopping her for safety and possible sobriety issues. The accused was arrested after he was positively identified. During the arrest, a struggle ensued, during which the accused was punched, kneed, and tasered ten times by the officers.
Emergency Health Services arrived on scene, transported the accused to the hospital, and sent him back to police custody after he was discharged the next day. The accused was not formally arrested on any specific charges or given a Charter warning until he was loaded into the ambulance.
Mr. Hardenstine was charged with several offences relating to the illegal possession of two firearms. He was also charged with offences related to his alleged assault and obstruction of a police officer during the roadside arrest.
At trial, Mr. Hardenstine alleged the police violated his s. 7 and s. 12 Charter rights by using excessive force and tasering him during the arrest. He alleged he was arbitrarily detained and unlawfully searched, violating ss. 9 and 8 of the Charter and that his ss. 10(a) and 10(b) rights were also violated. He sought to have the firearms seized from him during the arrest excluded from evidence pursuant to s. 24(2) of the Charter.
ANALYSIS
The Court found that there were insufficient grounds to stop the Chevy, given the ambiguous location, time and tipster whose reliability was unknown. The Court determined that other than the time of day and location, nothing about the Chevy gave rise to safety or sobriety concerns and the traffic stop was mere pretext to investigate the tip and determine if the accused was in the vehicle.
The Court also rejected the Crown's argument that police had reasonable grounds to detain the accused in relation to the tip, finding that the accused was unlawfully detained as he was not free to exit the vehicle and leave the scene after the traffic stop was conducted.
The Court had "no issue" finding that elevated force was used, engaging the accused's s.7 rights. Although the Court accepted that the officers each believed that the accused posed a serious threat, both physically and on account of the firearm, the Court found that "what [tipped] the scales" on unreasonable use of force was the use of the taser. The Court found that the initial taser deployment was necessary, but there was a "lack of any clear efforts" to pause and re-assess the necessity of further deployment. The Court accepted a s.7 breach for excessive use of force, finding that the decision to deploy the taser 10 times was not objectively necessary.
The Court ruled that, on balance, all items that were seized from the vehicle and from the scene of the arrest were to be excluded from evidence. Importantly, the Court noted that even if the arrest itself had been lawful, the use of force was still excessive.
CONCLUSION
The Court described Hardenstine, "at its most basic", as a case where the police got a tip of unknown reliability and pulled over the Chevy on a hunch that this might be the car that they were looking for. The fact that the police theory was correct did not render it lawful. This case is a reminder for officers to assess the need for further investigation and the reliability of tips received before moving to arrest without reasonable grounds. In addition, officers confronted with a dangerous situation that choose to deploy tasers have a positive obligation to continue to re-assess the necessity of such force, unless it is practically impossible to do so, or risk exclusion of evidence.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
