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  • BC Supreme Court hears Fairy Creek lawyers on adding more than 120 forest defenders to historic Abuse of Process application

    Valerie Elliott

    Forest defenders allege systemic RCMP misconduct and seek widespread stay of criminal contempt charges.

    Snuneymuxw, Snawnawas & Stz’uminus Territories, Nanaimo, BC

    DEFENCE LAWYERS for Fairy Creek forest defenders are in the BC Supreme Court August 16th and 17th to formally add 121 people to an Abuse of Process application. Forest defender “applicants” argue the RCMP engaged in systemic violence and abuse last year, during the enforcement of an injunction in the Fairy Creek watershed on southwest Vancouver Island.

    The applicants will assert that this conduct deprived them of their fundamental freedoms, including their right to peaceful assembly, freedom of conscience and expression. The Abuse of Process applicants are seeking a stay of their criminal contempt charges in one of the largest abuse of process applications in Canadian history. A hearing on the application has not been scheduled yet.

    After an injunction was granted to Teal Cedar Products Ltd. on April 1, 2021, allowing the company to log and clear-cut large areas of old growth in the Fairy Creek watershed, the RCMP and its Community-Industry Response Group began enforcement actions in May 2021. Those enforcement actions continued through the end of 2021, resulting in approximately 1200 arrests, considered the largest act of civil disobedience in Canadian history.

    The Crown filed charges of criminal contempt against more than 400 people, many of whom face jail time for their nonviolent actions. Roughly 85 people have been found guilty of contempt thus far. The Crown has sought fines as high as $3000, up to 100 hours of community work service, and custodial sentences ranging from 3 to 10 days in jail for at least 12 forest defenders. Many more yet to be tried are facing even longer jail sentences.

    All Abuse of Process applicants experienced some form of police misconduct during the arrest or detention process, and all are facing contempt charges. Forest defenders claim that the Charter and common law violations, which deprived them of their fundamental freedoms, were “an objective of the RCMP’s enforcement operation,” according to the Notice of Application filed earlier this year. Examples of abuse include pepper spraying, punching, kicking, dragging, and “pain compliance” techniques. Assaults were also carried out by police in a widespread manner against people who were never arrested or detained.



    RCMP members pepper-spraying forest defenders at Fairy Creek in 2021

    Applicants claim that police imposed arbitrary and unlawful “exclusion zones” to curtail civilian, legal, and media oversight while engaging in enforcement that, at times, relied on excessive force and coercion. The forest defenders claim that the RCMP raided their camps, and carried out systemic destruction and seizure of property, including necessities for survival in the back country, such as vehicles, food, shelter, communications devices, medications, fuel and other items, some of which were turned over to Teal Cedar. Applicants will argue that police denied them food, water, medication, medical assistance, and access to legal counsel.

    In a February preliminary hearing, BC Supreme Court Justice Douglas W. Thompson granted permission for the applicants to advance their claims. The application will be heard by Justice Robin Baird at the courthouse in Nanaimo. “The importance of this case cannot be understated,” said Karen Mirsky, co-counsel for the applicants and president of the BC Civil Liberties Association. “Are the police permitted to engage in tactics, including what we say is misconduct, to curtail peoples’ right to assemble and to express their thoughts and beliefs, when they are not actively breaching a court injunction?” asked Mirsky. “We will argue that the RCMP’s interpretation of the 
    injunction in this manner is a very clear case of abuse of process, and convicting those who actively breached the injunction would amount to the court’s approval of this type of overall enforcement.”

    Mirsky and her co-counsel Noah Ross state in the Notice of Application that there is “no alternative remedy capable of redressing the prejudice,” and a stay of charges is “the only remedy which will adequately dissociate this Court from the misconduct of the RCMP.” While lawyers are seeking a stay of charges against the applicants themselves, they recognize that “the court has the ability to stay charges against all contemnors if it feels this is necessary to preserve the integrity of the justice system.”

    “The RCMP is acting as a cudgel for industry by engaging in violence against forest defenders on behalf of Teal Cedar and its voracious appetite for logging Old Growth forests,” said Rani Earnhart of the Rainforest Flying Squad. “The police cannot be allowed to use excessive force and other tactics in order to suppress our movement to end Old Growth logging without legal and serious consequences.”

    Less than three percent of BC’s original productive old growth forests remain standing. The “Old Growth Strategic Review Panel” for the province urged an end to old growth logging in 2020, yet the government has thus far failed to implement its recommendations. Two recent polls show that 85 percent of BC residents are “highly concerned” about Old Growth logging, and 92 percent support a moratorium on old growth clear cutting.

    Forest defenders began blockading roads on the western ridge of Fairy Creek on Pacheedaht territory in August 2020, but only experienced police abuse after the Teal Jones injunction was imposed in April 2021.

    Valerie Elliott is with the Rainforest Flying Squad and Last Stand for Forests, a volunteer-driven, grassroots, non-violent direct action movement committed to protecting the last stands of globally significant ancient temperate rainforest in British Columbia. They stand in solidarity with Elder Bill Jones and other members of the Pacheedaht Nation in the protection of the ancient forest of their ancestral territory. For additional info: www.laststandforforests.com.

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