Injunction against Fairy Creek protesters expires without extension, due to RCMP conduct

Hours before the injunction against protesters at Fairy Creek was set to expire, a BC Supreme Court judge declined to extend it.

The expiring injunction does not necessarily mean an end to the blockade or to enforcement of laws that would otherwise be enforceable by RCMP—like blocking roads or digging trenches to prevent access. But it does grant a reprieve to the blockaders, who just hours before the decision was released had been pleading with supporters to show up.

In a decision released Tuesday afternoon, Justice Douglas Thompson said reputational damage to the court was the deciding factor in the case. The judge also cited the police's repeated denial of access to media.

“Methods of enforcement of the Court’s order have led to serious and substantial infringement of civil liberties, including impairment of the freedom of the press to a marked degree,” the judge wrote. “And, enforcement has been carried out by police officers rendered anonymous to the protesters, many of those police officers wearing ‘thin blue line’ badges. 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.”

While broadcasting in daily press releases that they are enforcing the court’s order, RCMP officers have been photographed repeatedly wearing patches that show the Canadian flag with a blue line running through it—a symbol of police solidarity that has also been linked to police violence, colonialism, or impunity.

“It might be argued that this is ‘just a patch, just a symbol,’” the judge wrote. “But we all know the impact that symbols can have.”

In response to questions from Capital Daily in August, RCMP Sergeant Chris Manseau said while the RCMP have been directed by senior leaders not to wear the patches, “It was not a rule, it was not something that the members had to follow. It was a recommendation.” The union representing them has said it will defend officers who face disciplinary action for wearing them.

In the written decision, the judge addressed the issue of whether illegal actions by protesters could be enforced by the RCMP without the help of an injunction, and determined that they could. That means the RCMP aren’t necessarily being ordered out of the Fairy Creek area, but their enforcement may have to be limited to specifically responding to illegal activity rather than applying broad exclusion zones to anyone looking to enter the area.

More than 1,100 people have been arrested to date, making it the largest civil disobedience action in Canadian history. The vast majority of those arrests have been under the injunction, and not because of other criminal activity—meaning that without the injunction, most of those arrests will not be legal going forward. Anyone breaking the law will still be liable to face criminal charges, but others who are in the area and not breaking the law can no longer be removed or searched, or have their property seized by police.

The RCMP did not immediately respond to a request for comment.

Public interest

Lawyer Matthew Nefstead had argued for a declaration that the RCMP were behaving unlawfully by their enforcement of the exclusion zone. Thompson declined to rule on that application, saying it was unnecessary since the injunction is over. Nefstead was disappointed, but pointed to a line in Thompson’s written argument that encapsulates what he wanted the declaration to say anyway:

“The evidence before me indicates that the RCMP have now stopped searching pedestrians, but they continue to enforce exclusion zones that are more expansive than the law permits. Moreover, the media’s right of access continues to be improperly constrained,” Thompson wrote.

The RCMP had argued that without expanded powers, they would have to reassess their ability to enforce the rule of law.

Until now police have been reluctant to bring criminal code charges (for example, property damage), saying they didn’t think the charges would be prosecuted. But in this case, the court said there’s no reason for that hesitation and they need to start bringing those charges.

“I will be very interested to see how the RCMP responds and what their enforcement activities look like going forward, and will be actively monitoring that to make sure they are complying with the legal limits of their authority, and whether we need to take legal action to compel that,” Nefstead said.

Thompson declined to consider the protection of old-growth forests as a public interest matter, which lawyers for the Rainforest Flying Squad had argued should be included in the balance of convenience test. The judge said such an argument was “not on the table.”

“While a powerful case might be made for the protection of what remains of British Columbia’s old growth temperate rainforests, and this issue is of considerable public interest and importance, the evidence marshaled to support this argument cannot be considered.

Green Party leader Sonia Furstenau said she has received an outpouring of responses from constituents, mostly positive, since the decision was announced. She says it places the ball squarely in the NDP’s court.

“This government has remained on the sidelines in this enormous conflict when what they needed was to put solutions on the table, and hold themselves to their word to find solutions to old growth,” Furstenau said.

The BC government’s self-imposed end-of-summer deadline to strengthen old growth protections has come and gone without an announcement of any new action. The government has not released a statement and a Ministry of Forests spokesperson did not answer a phone call Tuesday afternoon.

Teal Cedar has 30 days to appeal the decision.