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British Columbia Judge Ends Protest Injunction at Fairy Creek

todayOctober 1, 2021

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This week, the Supreme Court of British Columbia refused to extend an injunction against old growth forest protests in and around Fairy Creek on Vancouver Island. But the rejection had nothing to do with logging or the actions of the protesters.

Instead, Justice Douglas W. Thompson turned down the logging company’s request because of how the Royal Canadian Mounted Police have behaved while enforcing the injunction, offering a stinging rebuke of the national police force.

“I have never heard of anything like it,” Kent Roach, a law professor at the University of Toronto, told me in an email. “I am not aware of any case where police misconduct has been cited as a reason to stop such an injunction.”

While Justice Thompson found that the logging company that was looking to have the injunction extended was suffering “irreparable harm” from the protests, he wrote that the actions of the Mounties in enforcing it “have led to serious and substantial infringement of civil liberties.”

The mounted police did not immediately comment. The office of Bill Blair, the public safety minister, declined to comment.

Fairy Creek became a center of protests after the New Democratic Party of Premier John Horgan, in the view of the protesters, backtracked on a promise he made to protect old growth forests during last year’s provincial election.

While old growth logging was suspended in some areas of the province, it was continued in and around Fairy Creek until June by the lumber company Teal-Jones. The company was logging in partnership with the three First Nations whose territories include the Fairy Creek forests.

The Mounties came to the protests in large numbers and arrests began growing after the logging company, which declared this week that “it is a myth that old growth in the area is at risk,” was given an injunction in April against efforts by protesters to stop its work.

In his decision, Justice Thompson described some actions by protesters, like digging deep trenches in roads or dangling from wooden tripods up to 30 feet high, as “examples of the escalation in illegality.” But he also concluded they were not the norm.

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

By contrast, Justice Thompson found that the Mounties repeatedly eroded “the court’s reputational capital” as they went about enforcing the injunction.

In particular, he strongly criticized the Mounties’ leadership for ordering officers to remove their names and all other identification from their uniforms. The police told the judge it was a necessary move to spare them and their families from potential online harassment.

Noting that anonymity makes it effectively impossible for citizens to successfully file complaints about police misconduct, Justice Thomson wrote that the move was inappropriate for anyone in a position of authority, including judges.

“We identify ourselves,” he wrote. “Accountability requires it.”

As of Sept. 24, the Civilian Review and Complaints Commission for the R.C.M.P. has received 230 complaints about police actions at Fairy Creek. It is investigating 93 of them.

Most of the officers at the protest also wore “thin blue line” patches on their uniforms despite a national directive banning the practice. Justice Thompson said that an Indigenous woman said in an affidavit that people in her community saw the patches, which usually overlay the line on a Canadian flag, as “symbolic of the history of R.C.M.P. involvement in enforcing policies that brought about the genocide of Indigenous peoples.” In the United States, similar patches and flags have evolved from being a symbol of support for police into a symbol of opposition to the Black Lives Matter movement.

Justice Thompson also found that despite an earlier court directive, the police continued to interfere with journalists reporting on the protests.

The decision of Justice Thompson is not the first rebuke of the Mounties in recent years, including the force’s handling of other protests. And Robert Gordon, a professor of criminology at Simon Fraser University in Burnaby, British Columbia, said it is unlikely to be the last. Nor is he confident that the embarrassment it brings to the force will lead to any significant change.

“For almost 20 years ago, there’s been a series of incidents and reports and boxes full of recommendations about changing the R.C.M.P.,” Professor Gordon, who was a police officer in Britain, told me. “The bottom line is that the R.C.M.P. sees itself as the last word in policing in Canada, and is reluctant and highly resistant to engage in any kind of change other than superficial band-aiding.”

A native of Windsor, Ontario, Ian Austen was educated in Toronto, lives in Ottawa and has reported about Canada for The New York Times for the past 16 years. Follow him on Twitter at @ianrausten.

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todayOctober 1, 2021