Judge ends injunction against Fairy Creek protests, citing 'substantial infringement of civil liberties'

A British Columbia Supreme Court judge has denied an application to extend an injunction against old-growth logging blockades on southern Vancouver Island, writing that the actions of RCMP officers have put the court's reputation at risk.

Justice Douglas Thompson handed down his reasons for judgment on Tuesday, writing that "it is not just and equitable in all the circumstances of the case" to grant Teal Cedar Products Ltd.'s request for an extended injunction order against protests blocking the forestry company's access to its tenure in the Fairy Creek watershed area north of Port Renfrew.

Thompson acknowledged that allowing the injunction to expire could cause serious harm to the company's interests and to the rule of law.

"On the other hand, 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," he said.

"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."

Thompson wrote that the factors in favour of extending the injunction are outweighed by "the public interest in protecting the court from the risk of further depreciation of its reputation."

As of Monday evening, police have made more than 1,100 arrests in connection with their enforcement of the six-month interlocutory injunction order. As of Sept. 13, 101 criminal contempt charges have been approved by the B.C. Prosecution Service, according to the court decision.

The order, first granted in April, prohibited protesters from blocking logging routes or interfering with road construction and timber harvest. Teal Cedar had asked for a 12-month extension, but Thompson's decision means the injunction expired on Tuesday at 4 p.m. PT.

In an emailed statement, a Teal Jones representative said the company is reviewing the decision and will be considering its options in the days ahead.

"Our work in Tree Farm Licence 46 is important and responsible, vital to sustaining hundreds of jobs in the province and producing products we all rely on every day," the statement says.

'Disquieting lapses' in use of reasonable force

The judge's decision weighs two competing interests: the risk of irreparable harm to Teal Cedar's business on Vancouver Island and the public interest.

Thompson said that while "a powerful case might be made for the protection of what remains of British Columbia's old-growth temperate rainforests," ruling on that issue would mean stepping outside the court's constitutional role.

He explained that the more legally relevant issue to the public interest is preventing the court system from being "drawn into the fray" on the front lines between Mounties and protesters.

Thompson wrote that interactions between protesters and police have largely been respectful and non-violent.

He described the protesters as "good citizens in the important sense that they care intensely about the common good," exhibiting "disciplined and patient adherents to standards of non-violent disobedience, with only occasional lapses from that standard."

Meanwhile, police have used reasonable force in most cases, Thompson said, but he also pointed to "disquieting lapses" shown in some videos played for the court.

"One series of images shows a police officer repeatedly pulling COVID masks off protesters' faces while pepper spray was about to be employed," the decision says.

"Another shows a police officer grabbing a guitar from a protester and flinging it to the ground, where another officer stomped on it and kicked what was left of it to the side of the road." 

When those images and videos are shared widely, Thompson said he worries the actions of RCMP are being inextricably tied to the orders of his court.

Those worries also extend to orders from RCMP brass that officers should obscure their badge numbers to prevent online harassment.

"Putting aside a visceral reaction against seeing Canadian police officers in a position of anonymity from the perspective of their fellow citizens, there are good reasons for insisting on police being precisely identifiable at least by regimental number," the ruling said.

"Anyone, especially if congregated in a group — even police officers — might be tempted to stray from propriety if there is an increased chance that they might not be accountable for their actions."

'More extreme' tactics by protesters

The judge's decision acknowledges that protesters' tactics have become "more extreme over time" and often include digging deep trenches and attaching people to buried locking devices, or building towering tripods that demonstrators can perch upon.

Some of these actions have led to serious property damage, hurt Teal Cedar's bottom line and created the risk of serious injury, Thompson said.

Despite those concerns, however, he wrote that even without the power of an injunction, police will still be able to patrol the protest area and arrest people committing crimes.

However, protesters are encouraged by the decision.

Luke Wallace, a spokesperson for the Rainforest Flying Squad, said protesters at Fairy Creek were celebrating on Tuesday.

"We've known for a long time that the police actions out of Fairy Creek are illegal and violate the order of the injunction," he said. "This is really vindicating and encouraging to see the court standing with us in acknowledging that."

Wallace said his group will remain in the area to try to protect the old-growth forest.

Thompson touched on a July decision in favour of a coalition of news organizations and press freedom groups objecting to the RCMP's restriction of media access to the protest sites.

In Tuesday's ruling, he pointed to the RCMP's use of checkpoints and exclusion zones, as well as officers' insistence on escorting reporters while they were within the injunction area.

One journalist told the court that police restrictions on journalists' movement were comparable to what he saw working in China, according to the decision.