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Hot potato

Rob Shaw: ‘After six months of raging protests in the woods, the court tossed it all back at Premier John Horgan.’
Premier John Horgan (BC Government Flickr)

BC’s Supreme Court has washed its hands of months of old growth logging protests at Fairy Creek on Vancouver Island, and in the process sent the entire steaming mess directly onto the desk of Premier John Horgan.

Supreme Court Justice Douglas Thompson on Tuesday refused logging company Teal Jones’s request for a one-year extension to an injunction at Fairy Creek, ending the court order that, over the last six months, resulted in the arrest of more than 1,100 old growth protesters at the remote site near Port Renfrew.

“Having been in the midst of the case at bar for some months, I respectfully agree with... other judges who have remarked on the dangers of depreciation of the legitimacy and effectiveness of the court when a dispute between citizens on one side and the government and a logging company on the other is converted into a dispute between citizens and the court,” he wrote.

Basically, the court felt it was stuck in the middle of what is actually a dispute between citizens upset at government forest policies that allow Teal Jones to lawfully cut down old growth trees.

After six months of raging protests in the woods, the justice threw his hands up in the air and tossed it all back at Horgan.

“Another available choice is to get the court out from the middle of this dispute, and let the government and police do what they will with the tools at their disposal — patrolling the roads and other lawful preventive policing measures, mobilization of the criminal law, and use of provincial laws such as the Forest and Range Practices Act,” wrote Justice Thompson.

“And, if the available means of ensuring that rights lawfully bestowed by the Legislature can be exercised are not adequate, there are legislative options.”

That’s exactly what the court ended up doing.

All of which leads back to the Horgan government’s forestry policies, and the fact old growth logging continues throughout the province, despite small-scale deferrals in some areas.

Horgan showed his frustration at the protests on Tuesday even before the judicial ruling. The arrests mark one of the largest acts of civil disobedience in Canadian history, and they are occurring in his own backyard, in his riding.

“That has not dissuaded the individuals who believe it's their right to defy the law, it’s their right to disregard the five requests by the Pacheedaht (First Nation) to leave their territory, and they remain,” said Horgan.

“Is this an intractable problem? Yes it is. Does it frustrate me? Every single day. But I think the majority of British Colubians understand if we are going to make progress on difficult issues we have to do it together.”

Fairy Creek protesters celebrated the court ruling as a victory, and posted a video of themselves dancing at a blockade at the site.

But had they bothered to read the ruling, they would not have been so self-congratulatory.

The justice repeatedly mentioned that the protesters’ actions - digging trenches in public logging roads, locking their arms in concrete within the dirt, chaining themselves to equipment, and other tactics - were dangerous and likely unlawful.

But he also noted that police don’t require an extended court injunction to arrest those protesters, because the existing criminal code already allows Crown prosecutors to charge the protesters criminally with offences if they choose.

“I acknowledge the risk that the police may not seek criminal code charges or the Crown may exercise its discretion against charge approval,” he wrote. “However, having regard to recent escalation of tension and obstructive behaviour, I think there is every chance that criminal law remedies will be employed.”

Basically, the RCMP can stay there and continue to make arrests if government prosecutors think it’s in the public interest to actually lay criminal charges - which remains an open question.

Again, the justice tossed this decision back to the government, citing previous rulings that remind us the Attorney General’s office is responsible for ensuring criminal law is enforced in BC, not the courts.

But Justice Thompson reserved his harshest criticism in his injunction ruling for the RCMP.

He cited the Mounties for “disquieting lapses in reasonable crowd control” for how they manhandled protesters, pulling COVID masks off their faces at one point to douse them with pepper spray.

He also blasted the RCMP for their “expansive interpretation” of exclusion zones to keep the media away from the arrests and unable to document what police were doing to protesters, which he previously ruled was an unacceptable tactic.

“I considered the infringements of civil liberties to be unjustified, substantial, and serious,” he wrote.

“It goes without saying that unlawful measures imposed by those given authority to enforce the court’s order does no credit to the rule of law or the court’s reputation, especially when those measures trench on civil liberties in a substantial way.”

The justice took aim at his “visceral reaction” to seeing how RCMP officers removed their name plates from their uniforms so protesters could not identify who was arresting them if they wanted to lodge a complaint for excessive force, in a clear attempt by the Mounties to avoid accountability for their actions.

That was compounded by some officers wearing “thin blue line” patches on their uniforms, which senior RCMP leaders know offend some citizens and especially some Indigenous peoples. Yet despite the justice’s suggestions, the RCMP refused to remove the patches.

In short, the way the police enforced the court order, and the more than 100 press releases they issued reminding people they were only there because of a court injunction, made the court look bad. And Justice Thompson had had enough of the reputational damage he and the court were taking.

“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 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.”

It was scathing.

True, the justice admitted at one point, that clearing the protests at Fairy Creek was never going to be pretty.

But the sheer ugliness of six months of police action and more than 1,100 arrests appears to have sapped the court’s energy to be involved any further at all.

You could argue this is a bit cowardly of the BC Supreme Court, to simply step away because it happens to look bad. And there may be some truth to that.

But at the end of the day, the protests are occurring because the BC government gave Teal Jones the licenses and permits to cut down old growth trees in a sensitive area. It has been scrambling to defer, limit, and mitigate that damage ever since.

Horgan said Tuesday his government will table more old growth deferrals and a larger old growth plan in the next several weeks, that hits on issues like the socioeconomic impact to workers and industry when deferrals are allowed.

It’s unlikely to satisfy the protesters at Fairy Creek.

The protest, and the larger issue of old growth logging, is far from over for the Horgan government.

Rob Shaw has spent more than 13 years covering BC politics, now reporting for CHEK News and writing for The Orca. He is the co-author of the national best-selling book A Matter of Confidence, and a regular guest on CBC Radio.

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