Fairy Creek lawyers asking BC court to throw out charges based on RCMP conduct

On Wednesday, the BC Supreme Court will review a request to drop charges against more than 300 Fairy Creek old-growth protesters. The proceeding is an application by the Crown to dismiss a Jan. 5 defence application for a stay of proceedings due to a pattern of misconduct by the RCMP.

Protests to protect old-growth forests at Fairy Creek have led to almost 1,200 arrests since May, 2021, making it the largest act of civil disobedience in Canadian history.

The protests evoke memories of the Clayoquot Sound “War in the Woods” further north on the Island in the early 1990s, which led to the establishment of a United Nations biosphere reserve.

But Fairy Creek is different from Clayoquot Sound. Demonstrations here are Indigenous-led and are fighting for Indigenous rights as well as old-growth trees. Interactions with police, remembered as friendly at Clayoquot, have been fractious.

Many of the arrests at Fairy Creek have been violent and some have involved sexual touching, according to 80 affidavits and 100 video clips, several of which I have viewed.

Karen Mirsky, a lawyer for more than 20 protestors, who is also president of the BC Civil Liberties Association, says harsh RCMP tactics are not a case of one bad apple. She told the BC Supreme Court that “evidence is pointing to police misconduct …on a scale that suggests an Abuse of Process”—tactics her team says are not warranted by protestor behaviour.

Mirsky told the Court that her team of nine will submit evidence of incidents of assault, unnecessary use of force, sexual harassment, seizure/destruction of property and intimidation tactics to get people to abide by a court order obtained by timber company Teal-Jones.

RCMP conduct has already come under scrutiny in the courts as judges have dealt with the injunction against protesters at Fairy Creek. The injunction was originally struck down by BC Supreme Court Justice Thompson based on the RCMP’s impact on the court’s reputation.

That decision was later overturned by the Court of Appeal.

“By focusing on RCMP conduct, the judge effectively turned a private law matter into a public law one, assessing whether there had been an abuse of authority by police rather than focusing on Teal Cedar’s interests as a private litigant,” the appellate judges wrote.

The new case before the court is not about whether the injunction should be allowed—that has been decided and the injunction will be in place until at least September, 2022—it’s about whether the individuals who have been arrested should have their charges thrown out.

But in this case, again, the RCMP’s conduct is front and centre.

Mirsky believes RCMP tactics meet the United Nation’s definition of torture. If so, she says, the Court must ask whether private citizens should be subjected to torture to protect the profits of a company.

A video of arrests on Aug. 22, 2021—the day after a group of protesters was pepper sprayed by RCMP—shows Indigenous teacher Chiyokten and a dozen others singing in memory of missing and murdered Indigenous women. It was almost dusk, and the Indigenous rights and old-growth logging protesters were singing and praying among dozens of red dresses hung on stumps in a remote clear-cut forest. There are no loggers or logging vehicles in sight.

Seven RCMP trucks with at least 16 officers arrive. Many are masked and none of their identification badges are visible. One officer reads a statement telling the group that their presence on the road breaks an injunction by Teal-Jones.

“They had a piece of paper, and they were reading from it, but I could not hear it. I was singing and praying,” Chiyokten says.

The video shows the RCMP leader suddenly pointing at Chiyokten, wearing a traditional Coast Salish cedar hat, and standing on the edge of the group. Within seconds one officer takes his drum and two others knock him down, mere feet from the cliff.

“I started explaining to them that they didn’t have a right to disrupt prayer,” recalls Chiyokten. But “he tackled me to the ground and bumped my head on a rock and another guy…jammed his knee into the side of my thigh.”

Chiyokten, who goes by Paul Wagner on his tax returns, says his Coast Salish people have lived as “founders and protectors” of the region for generations. The graves of his uncles, Alex, Franswa, Simon and Jack Tom are among 160 unmarked ones found on the grounds of the nearby Kuper Island residential school in July, he believes. His mother, Mary Tom, last saw them as frightened and skeletal teenagers on a brief visit to the island with her parents in the 1940s.

Chiyokten says he had a cut and bruise on his head for many weeks and his knee remains painful six months later. He and three other drummers were taken into custody in nearby Cowichan Lake that evening, but not charged.

Mohawk high-school student Ojistoh Hemhawke was charged with assault. Photo: Danielle Burton (Submitted)

Not all protesters have been so lucky. Mohawk high-school student Ojistoh Hemhawke was 16 when was charged with assault for bumping into an RCMP officer, contact she says was unintentional. “I jumped backwards and he was there,” she says. “One of the cops grabbed my shirt and ripped it off my back…Another kneed me in the ribs and called me a ‘stupid bitch’ and then four of them dragged me out topless by the arms in front of a crowd of at least 30 people.” Hemhawke says she kept telling police that she was a minor, but they arrested her anyway.

Nanaimo lawyer Elisabeth Strain, who represents several of the Fairy Creek protesters, says the RCMP’s Civilian Review and Complaints Commission has started an investigation into complaints of police tactics at the site. The commission’s role is to “ensure that public complaints made about the conduct of RCMP members are examined fairly and impartially,” according to its website. Although the commission says complaints should be acknowledged within 30 days, Strain’s email correspondence shows that two complaints she filed took more than 120 days to be registered. The commission has up to five months to compile a report on allegations.

But most of the time victims don’t file complaints, Strain says. “It is difficult to file RCMP complaints as officers don’t wear badges identifying them.” Videos of dozens of arrests confirm the almost complete absence of RCMP identity badges. Instead, some officers assigned to the blockade wear a thin blue line patch on their uniforms.

The thin blue line insignia represents the “line between order and chaos” that officers protect according to the National Police Federation. The RCMP instructed its members in October 2020 not to wear the patch because it creates an “us” versus “them” mentality offensive to BIPOC communities. But the National Police Federation, the union representing the RCMP rank and file, has pushed back on the directive.

Speaking for the RCMP, Sgt. Chris Manseau says the police don’t wear badges to avoid becoming targets of online harassment. Fairy Creek arrests are hard on officers too, he says, because the protesters “want conflict.”

One officer at the blockade, who asked not to be identified, says that many officers are flown in from other parts of the country to work at the blockade for just one or two weeks. Officers from Vancouver Island face a particular concern that they or their family would be persecuted by environmentalists if identified, he says.

The protesters also say RCMP officers target Indigenous people and women, despite larger numbers of white male protesters at Fairy Creek. “They fear Indigenous matriarchal leadership,” says Rose Henry, a 63-year-old activist from the Tia’amin Nation and a leader of the protests since August 2020.

Revered by her Fairy Creek followers, Grandma Losah, as Henry is known, says she was labelled “mentally retarded” as a child and denied a mainstream primary education. She eventually attended college and is now an educator and community support worker.

Henry explains her distrust of the RCMP: “They’ve humiliated the white people. But the Indigenous people, they break their bones first,” she says. “They hurt so many of our people.”

Rose Henry, a 63-year-old activist from the Tia’amin Nation. Photo: Danielle Burton (Submitted)

Shy-Anne Gunnville is one who has been hurt—physically and emotionally—on the front lines of the protests. The Afro-Indigenous 36-year-old describes how police punched her in the face, threw her to the ground and dragged her 500 metres with her hands tied behind her back.

Gunnville, who goes by Strawberry for her “honey sweetness”, is five feet tall, weighs 120 pounds and walks with crutches due to a neurological condition. Video footage shows an instance of her being tackled to the ground by RCMP officers in camouflage gear. Her crutches are not in view. “The zip ties were so tight, I have lost feeling in my pinky and my thumb,” she says. “I had shooting electric tingling up my arms.”

Another video shows Strawberry’s arrest on a rainy night at a remote camp, called Sleepy Hollow. She is tackled to the ground and roughly handcuffed before being taken away in a police van. Her white fellow protesters are left behind, untouched. They are unable to see officer badges or the license plate of the truck that carries Strawberry into the night.

Taking a break at her home in Pemberton, BC from four and a half months at Fairy Creek, Strawberry she says suffers from lasting trauma including night terrors and anxiety. “I have been crying a lot, going through the emotions, feeling the heaviness and acknowledging that these things have happened.”

Strawberry says she cannot trust police and has hesitated to file an RCMP complaint. “It’s really hard for me to step into my trauma, write out my trauma, and hope that some sort of justice is going to come from an institution that is ingrained in systemic racism,” she says. “I don’t have any hope in that system.”

Speaking for the RCMP Sgt. Manseau denies that systemic racism is at play at Fairy Creek. He says he is not permitted to discuss specific incidents or arrests.

Susan Bibbings, a 55-year-old mother of four from West Vancouver, swore in an affidavit that her shoulder was dislocated, and she was left untreated for almost two hours in an RCMP van without air conditioning or water on a 39 degree Celsius summer day.

Parked at the Cowichan Lake station, she says she “tapped on our closed windows … to get the attention of the many officers milling around in the shade outside, gesturing for them to please open the windows, to which they snickered, and some resumed their conversations.”

Denied Tylenol, toilet paper and soap, despite severe shoulder pain and heat exhaustion, Bibbings says she was put in a cell designed for two people with nine other women, although it was the middle of the pandemic. One of the women was suffering with severe diarrhea and had to defecate in front of the others on the shared toilet. Bibbings says she has ongoing shoulder pain and difficulty sleeping.

There are many cases of Fairy Creek arrests where RCMP have denied the necessities of life or put lives in danger, Minsky says. “Should activists be expected to put their lives at risk to stand up for causes they believe in?” Minsky asks. “This is the kind of thing that happens in other countries, not in Canada.”

Chiyokten wishes it were different but is prepared to fight until the end. “It is our responsibility to be the voice for the voiceless, to stand up for those who cannot stand up and to care for all living beings,” he says.

“That is the way of our people.”