‘Unlawful’ RCMP actions at Fairy Creek harm court’s reputation, says judge who quashed injunction

B.C. government now in the hot seat, as court withdraws from ‘dispute between citizens and government’
Michael Simkin
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The court injunction that allowed the RCMP to make over 1,100 arrests during the largest act of mass civil disobedience in Canadian history is over.

In a decision issued Tuesday afternoon, Justice Douglas Thompson of the B.C. Supreme Court refused to grant an extension of logging company Teal Cedar’s injunction against road blockades in the Fairy Creek area. He made clear that the RCMP’s approach to enforcing the injunction — and the collateral damage to the court’s reputation — were the reason.

“Methods of enforcement of the Court’s order have led to serious and substantial infringement of civil liberties,” he wrote, “including impairment of the freedom of the press to a marked degree.”

“From the outside, the decision appears to require a whole new approach.”

In the 32-page ruling, Justice Thompson said he does not condone an “escalation in illegality” from protesters who have locked themselves into trenches and tripods to obstruct access and thwart efforts to remove them from the logging road.

However, the conduct of the RCMP has been so deficient, and at times “unlawful,” that it has brought the court into disrepute and represents a significant public interest consideration, he wrote. Further, the RCMP have failed to make the case that the powers available to them under the criminal code are insufficient to address unlawful road blockades, and even if they are insufficient, “there are legislative options.”

In a nutshell, the court has tapped out of what Justice Thompson described as a conflict between citizens and government, and no longer wants its orders to be used as a cudgel to enforce controversial government policy.

No more arrests for breaching injunction

“It is difficult to imagine, in light of these reasons, that there won’t be a pause in police activity, perhaps a lengthy one, while the RCMP discusses with the B.C. Attorney General what conduct may be the subject of prosecution, and the RCMP determines if and how it will proceed to make arrests,” said Sean Hern, a lawyer who represented a coalition of press groups (including Ricochet) in a successful challenge of RCMP restrictions on media access earlier this summer.

“From the outside, the decision appears to require a whole new approach.”

The RCMP did not respond to a request for comment, and the immediate impact of this decision on their enforcement efforts remains to be seen, but the judgement means police can no longer arrest people for breaching the injunction. They also cannot justify their use of tactics such as exclusion zones, warrantless searches and restrictions on journalists by arguing they are authorized by the injunction.

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As Justice Thompson noted in his ruling, the majority of the more than 1,100 arrests made at Fairy Creek have not led to charges. As of September 13, a total of 101 contempt charges had been approved, compared to only three criminal code charges.

“I’m sure that the number of criminal charges will go up now, but the number of new contempt charges from today will be zero,” said Charlotte Chamberlain, a lawyer representing Pacheedaht Elder Bill Jones and others who opposed the injunction in this case.

“I think that the Crown and the Crown prosecution service are going to have to think long and hard about the public interest in pursuing these charges,” said Chamberlain. “I’m sure that, given the decision today, there are going to be some long conversations going on.”

The RCMP were already struggling to remove hundreds of dedicated young people from the area, and had told the court that if new and expanded powers were not approved they might not be able to enforce the injunction.

Now, without the cover of an injunction order, what was a quagmire may have turned into quicksand for the national police force and their bosses in the B.C. government.

‘Thin blue line’ patches a ‘regrettable’ choice

While Justice Thompson found that the police had generally used “reasonable force” to make arrests and remove protesters, he noted that “some of the videos do show disquieting lapses in reasonable crowd control.”

He saved some of his harshest words for “police officers without identifying names or numbers on their uniforms,” and others “wearing ‘thin blue line’ patches in contravention of RCMP policy.”

“I am certain that RCMP commanders know that these ‘thin blue line’ patches are seen as provocative and insensitive by some of the citizens they serve.”

He described the decision to allow the patches to be worn as “regrettable” and noted that “the wearing of this symbol reflects on the Court.”

Justice Thompson found the RCMP’s “infringements of civil liberties to be unjustified, substantial, and serious.”

“All of this has been done in the name of enforcing this Court’s order, adding to the already substantial risk to the Court’s reputation whenever an injunction pulls the Court into this type of dispute between citizens and the government.”

“Expansive exclusion zones and checkpoints are unlawful,” added Justice Thompson, noting that he found the RCMP’s “infringements of civil liberties to be unjustified, substantial, and serious.”

“It goes without saying that unlawful measures imposed by those given authority to enforce the Court’s order does no credit to the rule of law or the Court’s reputation, especially when those measures trench on civil liberties in a substantial way.”

The RCMP’s request for additional powers amounted to asking the court to insert itself further into a dispute between “good citizens” and the police and government, he wrote. Instead, the courts should extricate themselves from the dispute and allow it to be resolved through criminal charges and, if necessary, legislative action.

The RCMP’s union fired back immediately, with National Police Federation president Brian Sauvé saying in a statement that he was proud of his officers, and their work at Fairy Creek “embodied the thin blue line between order and chaos.”

Implications for Fairy Creek and B.C.’s government

In the short term, the court decision upends the RCMP’s apple cart. The police could choose to ignore the court’s ruling, or attempt to find a way to circumvent it while continuing to operate as they have, but Chamberlain notes that their failure to respect an earlier ruling may have contributed to the harshness of this judgement.

“Following Justice Thompson’s previous decision, about the illegality of some of the exclusion zones and the limits on the media, in the immediate term some of that continued and I think that this decision is a reflection of the Court’s discontent with that, and the fact that they don’t want to be attached to that.”

While that prior ruling provided direction to the RCMP, this one has removed their most potent weapon. They cannot arrest people for breaching an injunction that is no longer in place.

But there is also a broader context to these setbacks for the police force.

Since at least 2011, the RCMP have pioneered a new approach to civil disobedience in Canada, one that prior to Fairy Creek had been used nearly exclusively on Indigenous land defenders in isolated locations.

The restrictions on media in particular have been found to be unlawful by courts in two provinces and the RCMP’s own civilian review board.

This approach consists of sealing off a large area around land defenders or other activists they want to remove — the infamous exclusion zones — and blocking the entry of supplies, supporters and even journalists and legal observers. In response to prior court rulings, they have at times loosened these restrictions in minimal ways, but the goal is clear. They want to starve out those engaged in civil disobedience, and if that doesn’t work they want to be able to move in and arrest and remove them without witnesses to their actions.

This approach doubtless makes their jobs easier. But the reality they’ve been trying to escape, as court judgements and rebukes have accumulated over the years, is that these tactics are not lawful and not authorized by injunction orders.

The restrictions on media in particular have been found to be unlawful by courts in two provinces and the RCMP’s own civilian review board, and have been denounced by dozens of outlets, the Canadian Association of Journalists and international press freedom groups.

The RCMP have no choice but to rethink their approach. But perhaps the more interesting element here is how the B.C. government responds. The RCMP at Fairy Creek are acting as provincial police, so they are accountable to John Horgan’s government — a fact the B.C. NDP has gone to great pains to keep out of the spotlight.

NDP supporters overwhelmingly oppose old-growth logging, but Premier Horgan has been unwilling to accede to the demands of his base for a moratorium on the practice. It’s a tight spot, but one he’s been able to wriggle out of thus far.

The court has now told Eby and Horgan that if they want the mass arrests to continue, they’ll have to put their name on them.

Now, if his government wants the RCMP to continue enforcing the right of Teal Cedar, a subsidiary of multinational forestry giant Teal-Jones, to log old-growth trees in the Fairy Creek area, their prosecution service will be asked to approve dozens, if not hundreds, of criminal charges against non-violent protesters whom Justice Thompson described as “good citizens” with honourable intentions.

And the Attorney General responsible for approving those charges? None other than David Eby, the former head of the B.C. Civil Liberties Association, who has made his reputation and career on his support for civil liberties and the right to protest.

The B.C. government has stood firm thus far in facing down criticism from their own supporters, but they’ve also done their best to keep the focus off their role in all of this. The court has now told Eby and Horgan that if they want the mass arrests to continue, they’ll have to put their name on them.

The next step is almost certainly an appeal by the logging company, in hopes that a more conservative justice will overturn this decision. But even if such an appeal is expedited, it will likely take several months to reach a courtroom, giving the police and the B.C. government some time to reconsider their position.

This story is far from over, but as news of the court decision spread among the isolated camps in the Fairy Creek area, one activist reported in a group chat thread that defenders were “dancing on the bridge, and splashing in the waterfall.”

Young people are desperate to take action in the face of decades of government failure to address climate change, and this saga has empowered them to believe that they can win when they act together.

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