B.C. judge won't extend Fairy Creek injunction because RCMP conduct sullies the reputation of the court

Mounties enforcing a court order continued to wear thin-blue line patches in defiance of their bosses' instructions

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      B.C. Supreme Court Justice Douglas Thompson has refused to extend Teal Cedar Products Ltd.'s injunction in the Fairy Creek watershed on southwestern Vancouver Island.

      That was because the "balance of convenience" for the forest company does not outweigh the public interest in protecting the court from "further depreciation of its reputation".

      Thompson concluded that Teal Cedar Products had suffered "irreparable harm" from the protests, which is another test for extending the injunction.

      But the judge noted that one of the considerations to be addressed was "the dangers of depreciation of the legitimacy and effectiveness of the Court".

      This needed to be taken into account "when a dispute between citizens on one side and the government and a logging company on the other is converted into a dispute between citizens and the Court".

      "I think this reputational concern about the Court’s legitimacy and effectiveness being compromised by being pressed to the front line of this dispute fits into the legal framework as a public interest to be weighed, with all other relevant circumstances, when deciding whether an injunction is just and equitable," Thompson wrote in his ruling.

      RCMP management's actions played a key role in the judge arriving at his conclusion.

      He acknowledged in his ruling that most of the interactions between RCMP officers and protesters have been "respectful" and nearly all have been nonviolent.

      Moreover, he added, police have "generally used reasonable force to effect arrests and control crowds, and reasonable means to remove protesters from tents and devices".

      However, Thompson stated in his decision that videos "show disquieting lapses in reasonable crowd control".

      "One series of images shows a police officer repeatedly pulling COVID masks off protesters’ faces while pepper spray was about to be employed," the judge wrote. "Another shows a police officer grabbing a guitar from a protester and flinging it to the ground, where another officer stomped on it and kicked what was left of it to the side of the road.

      "There is some force to the argument that occasional police excess is to be expected in the circumstances of a case like this. As one counsel put it, the execution of arrests and removals 'was never going to be pretty.' The problem, of course, is that these incidents of excess are widely broadcast, and they are seen as the methods by which this Court’s order is being enforced."

      Thompson added that this "problem" was exacerbated by repeated RCMP news releases, which emphasized that the Mounties were enforcing the court order.

      According to the judge, the RCMP "continued to enforce exclusion zones that were more expansive than the law permits".

      That resulted in a CBC camera crew having to hike seven kilometres in and out with their equipment to cover the actions of the Mounties.

      Video: An RCMP officer answers questions from Shaena Lambert about why officers are not wearing badge numbers.

      Police maintained anonymity

      Then there was the issue of individual Mounties wearing controversial "thin-blue line" patches on their uniforms despite orders not to do so.

      "There are other command decisions made by the RCMP that impact adversely on the Court’s reputation," Thompson continued. "The front-line RCMP members have been ordered to remove any individual identification, and these orders have been followed. Moreover, the decision was made against enforcing an RCMP directive to its members not to wear 'thin blue line' patches on their uniforms.

      "The evidence establishes that the result of this combination of decisions is that the enforcement of this Court’s order has in recent months been done by police officers without identifying names or numbers on their uniforms, and by some police officers wearing 'thin blue line' patches in contravention of RCMP policy," the judge wrote. "The justifications for the orders to remove identification and for not enforcing the directive against wearing 'thin blue line' patches are not persuasive."

      Moreover, Thompson stated in his ruling that video footage shows even the most militant protesters are "good citizens in the important sense that they care intensely about the common good".

      "The videos and other evidence show them to be disciplined and patient adherents to standards of non-violent disobedience," he wrote. "There have only been occasional lapses from that standard."

      In an earlier ruling in August, Thompson condemned the RCMP's decision to block public vehicle access and search pedestrians' backpacks as a condition of access.

      That's because the injunction order preserved public access to roads in tree-farm licence 46. Moreover, provincial legislation states that these roads are on public land and may be used by the public.

      Despite this, the Mounties asked Teal Cedar to apply to the province to place gates at six locations in TFL 46 as part of the RCMP's containment strategy.

      Thompson noted that members of the public and a consortium of media organizations filed applications earlier this year in response to the "RCMP’s policy of restricting access to the injunction area by means of expansive exclusion zones, checkpoints, and searches".

      "The media applicants also complained about the RCMP policy of shepherding their journalists while they were in these exclusion zones," Thompson noted. "One journalist who has reported on all manner of police events in Canada and elsewhere, in both rural and urban settings, including civil disobedience events, deposed that the level of police restriction on journalist movement in TFL 46 was familiar to him from his work in China where he was accompanied by police who decided what he was allowed to see.

      "In every other democratic society this journalist has worked in, he has been allowed to do his job without police escorts and exclusion zones."

      Thompson concluded in an August 9 decision that even though the injunction's purpose was to maintain public access to roads, the RCMP blocked vehicles, which was "directly at odds" with the earlier court order.

      "I also held that the RCMP’s expansive exclusion zones, and associated checkpoints and searches, were unlawful because it had not been established that these measures were reasonable and necessary to carry out their duties," Thompson wrote. "And, I granted the media consortium’s application for a variation of the injunction order to add a direction intended to control interference by police with the work of journalists."

      This video shows RCMP officers pepper-sprayng protesters trying to protect old-growth forests on Vancouver Island.

      Mounties are frustrated

      Four days after the August 9 ruling, the Ministry of Forests granted a permit to erect a security gate in the Granite Mainline area.

      There's only one way in and out of the area behind the security gate, the judgment noted.

      The Mounties then advanced 6.5 kilometres up Granite Mainline, "removing obstructions and making arrests on a near daily basis", Thompson wrote.

      "The methods used by those obstructing the roads have become more extreme over time," the judge stated. "Recently, many trenches have been dug into the road, some up to eight feet deep, in which persons are locked into devices known as 'sleeping dragons.' These trenches have appeared on important roads in TFL 46, including the Reid Mainline and the Granite Mainline.

      "And, the devices which protesters attach themselves to in order to make it difficult to extract them are now sometimes encased in concrete, or covered in logs," the judge continued. "One contraption even used an old stove. Tripods on roads with protesters perched on top have been an ongoing feature since the injunction order, but these tripods are now being built higher—they were once about eight feet tall, but recently reach 30 foot heights."

      Thompson wrote that "it is beyond question that Teal Cedar is not disentitled to an injunction by the fact that the road blockages and road destruction in the case at bar would appear to be criminal offences".

      However, he added that all circumstances must be considered in "the context-specific determination of whether to grant the order".

      "As I understand the method of analysis, there are no trump cards when taking account of all relevant circumstances—this applies to the strong public interest in maintaining the Court’s reputation, and even to the important public interest in standing against interference with private rights by unilateral and unlawful actions," Thompson noted. "The presence of either of these considerations does not necessarily end the analysis."

      He acknowledged in his ruling that police officers in TFL 46 are frustrated.

      "It has been a hot summer and they have spent it in a stand off with persistent and committed protesters. I doubt that autumn rains will improve the mood," Thompson wrote. "I have been given a large amount of affidavit and video evidence that bears on many aspects of the behaviour of the protesters, the police, and Teal Cedar. The affidavits and submissions occasionally descended into hyperbole. I accept the submission that I should be careful about drawing firm conclusions about particular events and confrontations."

      However, he refused to accept the attorney general of Canada's submission that he should await the outcome of police-complaint procedures before making any determination.

      "Similarly, on the other side, I cannot await the outcome of proceedings that have been taken against alleged contemnors before coming to grips with the facts," he added.