Ian Mulgrew: BC Civil Disobedience Triumphs Over Fairy Creek Law Enforcement

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Mohandas Gandhi would be proud: Civil disobedience won another round in the British Columbia Supreme Court, and the rule of law was defined as much more than simple law enforcement.

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Judge Douglas Thompson’s refusal to extend a year-long injunction restricting anti-logging protests in the Fairy Creek watershed emphasized the impartial status of the courts and civil rights are equally important social values.

Steven Kelliher, a prominent attorney involved in the case, said the order raised serious concerns and should never have been issued:

“Courts are drawn into an enforcement role, straying from their adjudicatory role that we hope they will have, and they run the risk of being tainted by the politics of the day, which is significant when there is a great deal of public disagreement and disobedience. civil, and will also be tainted by the way the court order was enforced. “

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In his decision Tuesday, Judge Thompson cited damage to the court’s reputation as a major concern.

It shouldn’t have been a surprise.

Precautionary measures have long and often made the courts a tool for big business and bad government.

They have been used to suppress dissent and tackle protests since the 1990s, after the penal code proved too expensive, cumbersome and ineffective.

In 1989, 70 people were prosecuted for crimes related to protests against resource extraction in Strathcona Park. Despite the disruption and damage they caused, 67 were acquitted, only three were convicted and received lesser sentences.

However, the trials lasted over a period of 18 months, exhausting official and private resources and drawing attention to the issue.

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In Clayoquot Sound in 1993, instead, a court order was obtained and more than 700 people were prosecuted for criminal contempt.

The trials concluded in eight months and almost all were convicted. The average jail sentence was three weeks.

The injunctions are like papal bulls. There is no maximum sentence for contempt or time off for good behavior.

Not surprisingly, after Clayoquot, from one level of government or another, some resource company or Big Business used the technique to transform civil disobedience into contempt of court.

It gave the rule of law a black eye.

In 1994, a labor dispute at a construction site in Port Alberni resulted in the conviction of more than 90 people for contempt. On average, their tests lasted a day or two. The sentences ranged from 10 to 14 days in jail.

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The late Judge of the Court of Appeals, Josiah Wood, complained that “the courts have been forced to play a role that they were never intended to play and for which they are not suitable.”

Retired British Columbia Supreme Court Justice Ian Pitfield similarly denounced the policy as fraud: The true nature of the debate is a contest between members of the public on the one hand, and policy makers on the other ”.

Judge Mark McEwan stridently called it “a kind of officially induced abuse of process.”

These cases do not involve a legal question, but a social policy issue.

Still, numerous logging, environmental and First Nations conflicts have been handled in this way.

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The Fairy Creek dispute brought all historical concerns to the fore.

“Tensions, as the judge mentioned, were increasing; physical encounters became more severe; there was an escalation in the use of pepper spray, ”Kelliher explained.

“There was an old woman and her mature daughter; We saw this video where a police officer ripped off their face masks, COVID masks, and the attorney for the Attorney General of Canada explained it, justified it, that it was to ensure the pepper spray inflicted maximum pain. I tell you it was a chilling moment to hear, that things had gotten to the point where legal protesters were being treated that way in Canada. Shocking. “

Generally, law enforcement prevails; this time, other securities triumphed, as they have in other decisions involving search, seizure or cheating issues.

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“What Judge Thompson did was look at the public interest in a much broader way,” Kelliher said.

“Of course, law enforcement is important. But there are other social values ​​that are also important … and here, number one, was the impact on the perception of the administration of justice regarding how that court order was being carried out … he said that the application of the law is not everything. As the courts have always said: if law enforcement prevails at all times, you have a police state. “

The effect of Thompson’s trial on other disputes remains to be seen in a province beset by rail stoppages, road blocks, pipeline protests, indigenous demonstrations …

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The police can file criminal charges when warranted.

Kelliher believes that the specific facts in each case will be paramount, as judges making such decisions must evaluate a number of factors that cannot be precisely weighed or measured, all on the basis of incomplete or partial evidence that is generally not proven by a cross-examination:

“The Fairy Creek biosphere, the 500-800-year-old trees, its proximity to Victoria, and the tenacity and courage of the people who have reached out and clung to it to avoid it, all of this is unique, so it is very difficult to say how that will relate to other circumstances. But I think the court has broadened the notion of public interest beyond simply applying the law and that will have an impact in the future. “

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