New federal investigation, and possible class action, for RCMP conduct at Fairy Creek

RCMP prepare to clear a blockade at Caycuse camp on May 17, 2021. It would mark the first of many arrests at the Fairy Creek blockades which has seen more than 1,100 arrested, a Canadian record for the number of arrests in a civil disobedience movement. Photo: Michael John Lo / Capital Daily

An official investigation is being launched into an RCMP task force used to enforce injunctions against resource-based project opposition on the Island and elsewhere in BC.

The federal government body that independently reviews the RCMP announced Thursday that it will look into the activities and operations of the RCMP "E" Division Community-Industry Response Group (C-IRG). The C-IRG has, since 2017, been the section of the RCMP that responds specifically to resource industry protests in BC—such as the Fairy Creek blockades and Coastal GasLink occupations—although not all officers in those responses are C-IRG.

The C-IRG has for years been criticized by rights groups and activists for its collaboration with the extraction industry and with private security; for its broad surveillance operations; for concealing officer identities; and for alleged physical violence and alleged violations of civil rights and RCMP policy.

The Civilian Review and Complaints Commission for the RCMP (CRCC) will investigate the task force’s training, policies and practices, as well as its actions during enforcement of the Teal Jones injunction at Fairy Creek, the Cooper Creek Cedar Ltd. injunction near Kootenay Lake, and the Coastal GasLink injunction in Northern BC.

The CRCC will review how the task force engages with the BC and UN Declarations on the Rights of Indigenous Peoples and the calls for justice in the Missing and Murdered Indigenous Women and Girls Inquiry (MMIWG). The CRCC will not investigate specific complaints or individuals.

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C-IRG tactics and secrecy drew controversy during and before Fairy Creek

In 2022, APTN investigated the origins and operations of the C-IRG. APTN found that the force was created internally by the RCMP, rather than by political directive, to respond to the December 2016 Trans Mountain protests. The task force consists of volunteer officers who are paid overtime to carry out a role in the C-IRG in addition to their existing job.

APTN also covered incidents in which, from very early on, C-IRG officers  collaborated with private security firms, and knowingly violated RCMP policy and their own directives. APTN obtained court filings from people seeking a stay of charges due to alleged police mistreatment at Fairy Creek. Those argued, at times with photo evidence, that tactics used to extract Fairy Creek protesters from blockade devices—which do, by design, make safe extraction difficult and time-consuming—were unnecessarily torturous or physically damaging. Capital Daily has also published some of the allegations made about RCMP conduct.

C-IRG officers were also involved in a prominent Fairy Creek incident in which RCMP pepper-sprayed a large crowd and removed masks from protesters to spray them—an incident that Capital Daily reported extensively on, and that the RCMP made verifiably false claims about.

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Freedom-of-information documents showed that in Sept. 2021 a former officer with C-IRG resigned from the task force over concerns about the tactics he had witnessed at Fairy Creek including unnecessary personal property destruction, damage or removal (for example, car windows being smashed). He also cited partiality toward industry workers and against protesters, wearing of “thin blue line” patches and the release of arrestees a long drive away from the injunction zone. The officer said these tactics differed from what would be done at officers’ usual RCMP detachments, and from other C-IRG operations he had been involved in.

RCMP as a whole were also criticized, and at some points legally challenged, for their control of public and media access to injunction zones to document the protests and police enforcement. Capital Daily was part of a coalition of media organizations that won a court case to require RCMP to stop restricting Fairy Creek access without clear operational or safety justifications.

That control of access has also now become the subject of a new class action application.

Two members of the media, Arvin Dang and Kristy Morgan, have applied to file a class action lawsuit against the RCMP’s use of exclusion zones and its “catch and release” policy at Fairy Creek. Dang worked as a freelance photojournalist and videographer while he was at Fairy Creek, and Morgan worked as a documentary producer.

But their claim is wider than the impact on media professionals. Lawyers allege that Dang, Morgan and others were “targeted under the C-IRG unit’s punitive exclusion zone policy where Mounties arbitrarily arrested, and detained peaceful members of the public and the media without just cause or reasonable grounds. In some cases, the excessive force resulted in serious injury.”

The pair is seeking financial compensation for damages to themselves and anyone who was restricted, arrested, had their person or property searched or seized, but for whom the RCMP did not recommend bringing charges.

The court will now decide if the claim, filed at the Supreme Court of BC March 8, will proceed. If allowed, the class could include hundreds of people.

“Our case aims to demonstrate that in its enforcement of an injunction order, the RCMP infringed on the constitutional rights of members of the public at Fairy Creek—rights that are protected under Canada’s Charter of Rights and Freedoms,” said lawyer Halla Ahmed.

Officers block the road, restricting media access, on the first day of the injunction in May 2021. That control of access is now the subject of a proposed class action suit. Photo: Jimmy Thomson / Capital Daily

Specifically, the case application claims RCMP infringed on freedom of the press, freedom of peaceful assembly, and the right to life, liberty and security of the person. Lawyer David Wu expects it will be about a year until the hearing on whether the class action will be certified.

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Latest of several suits around Fairy Creek enforcement

It’s not the first time the RCMP’s enforcement tactics at Fairy Creek have been challenged in court. In August 2021, a judge concluded that the exclusion zones the RCMP was using to control access to Fairy Creek were excessive and unlawful. Later he said RCMP tactics were causing harm to the court’s reputation, and allowed the injunction order to expire without renewal because of it.

The injunction order was later renewed by an appeals court.

A separate class action case asked the court to throw out charges against protestors based on RCMP’s conduct. Lawyers submitted evidence of assault, unnecessary use of force, sexual harassment, intimidation and more.

The class action was denied, and about half of the hundreds of charges have been heard  . Trials are currently paused because the court recently acquitted one person in a decision that could result in acquittals for many of the remaining cases.

The new class action application differs from that prior one in that it is broader and seeks to include people who were either not arrested or not charged.

Fairy Creek enforcement took place mainly in 2021, and included the largest number of civil disobedience arrests in Canadian history. As of July 31, 2022, RCMP had spent nearly $19 million in public money on enforcement.

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By Zoë Ducklow and Cam Welch