A 小蓝视频 judge has turned down a proposed class-action lawsuit filed on behalf of a group of people allegedly subjected to unlawful police conduct while protesting old-growth logging on Vancouver Island.
The case stems from 2020, when the 小蓝视频 government granted Teal Cedar Products Ltd. permits to log timber in the Fairy Creek watershed, part of Tree Farm Licence 46.
“Sophisticated and organized protests” sprung up in early August, and under the name Rainforest Flying Squad, protestors set up eight blockades in an attempt to restrict access to the timber supply area and an access road, 小蓝视频 Supreme Court Justice Christopher Giaschi wrote in a recent ruling.
In response, the logging company filed and was granted an injunction on April 1, 2021, prompting the RCMP’s Community Industry Response Group (C-IRGC) to step in and enforce the court order.
The judge who approved the injunction ultimately found the logging company’s activities were lawful and that the conduct of the protesters was illegal and undermined the rule of law. The injunction gave C-IRGC and any other RCMP officer the discretion on how and when it chose to enforce the court order, including how it detained or released people without arrest.
Police would eventually arrest more than a thousand people in what would become the largest act of civil disobedience in Canadian history.
RCMP engaged in 'systemic and unlawful conduct,' claim plaintiffs
The plaintiffs in the proposed class action, Arvin Singh Dang and Kristy Morgan, sought to certify the lawsuit on behalf of everyone who was arrested, detained, had their movement impeded, or had their property searched or seized by RCMP officers in connection with the Fairy Creek injunction.
They alleged that by enforcing the injunction through exclusion zones and a “catch and release” policy, the RCMP “engaged in systemic and unlawful conduct” in breach of Charter rights.
In June 2021, several media organizations applied to the court to vary the injunction order so they would not have their access impeded. The judge in the case concluded that the manner of implementation of checkpoints and exclusion zones by the RCMP was unlawful and impeded the journalists’ “special role in a free and democratic society.”
In September 2021, the same judge also found the RCMP’s continued enforcement of exclusion zones was more expansive than originally permitted by the courts and continued to improperly constrain the media. He refused to extend the injunction.
That decision was overturned by the Court of Appeal in 2022 but failed to “directly address whether any aspect of RCMP conduct was, in fact, illegal or unlawful,” Justice Giaschi wrote in his latest ruling.
Instead, the appeals court found any questions of misconduct by the RCMP should be raised through civil claims and complaints to the Independent Civilian Review and Complaints Commission and the Independent Investigations Office.
RCMP and plaintiffs present duelling narratives
RCMP Assistant Commissioner John Brewer, who commanded the C-IRGC unit at Fairy Creek for about a year and a half, told the court that police arrested 1,014 people and made 443 charge recommendations and led to 222 convictions.
From May to October 2021, he said about 390 RCMP officers took part in the Fairy Creek operation. Brewer said some of the protesters engaged in “aggressive and dangerous” activities, including placing themselves in hammocks suspended as much as nine metres in the air, anchoring themselves in deep trenches, and using violence to force their way past police checkpoints.
In a lawsuit amended June 5, 2023, the lead plaintiffs in the proposed class action alleged the RCMP’s exclusion zone policy constrained the public from participating in peaceful protest, denied journalists the ability to document and report on the events, and prevented “free access” to public roads and areas to hike, camp and study wildlife in Fairy Creek.
An owner of a media company, Morgan first arrived in Fairy Creek on April 3, 2021, according to submissions. She said she was repeatedly denied access to the injunction area.
When she did gain access, Morgan said she observed protesters and members of the media being “physically assaulted and threatened with arrest.” Morgan also said she witnessed RCMP use excessive force and violence, and on one occasion, police roughly pushed and threatened her with arrest.
In pleadings, Dang told the court he first arrived at the protests in September 2020 as a professional freelance photographer and videographer for several news outlets, including C小蓝视频, B小蓝视频 and Outside magazine.
In May 2021, Dang said RCMP officers arrested him for contempt and placed him in a Lake Cowichan RCMP cell for the day without charges.
“He was told that if he signed a document agreeing not to return to the injunction area, he would be free to go without charges,” the pleadings say. “He refused telling the officer he was on assignment for PBS and had to return to Fairy Creek. He was released later that evening with no charges and no explanation.”
That summer, Dang plead that RCMP officers seized and damaged his drone, and when he complained, they seized him and said he was under arrest before releasing without charges.
RCMP officers presented Justice Giaschi with different narrative, claiming Dang blurred the line between observer and protester.
“Although he deposes he was essentially arrested without just cause, the records of the RCMP indicate he was arrested for breaching the injunction and for obstruction, more particularly, for engaging in a roadblock,” the judged wrote in his ruling.
Judge agrees proposed lawsuit 'overbroad' and doomed to collapse
While not ruling on whose story was more credible, Giaschi said the circumstances of Dang’s arrest illustrate how the proposed class action “will inevitably collapse into individual trials.”
In court, lawyers with the federal and 小蓝视频 government argued the proposed litigation should not proceed because the group of people it sought to cover was “overbroad” and includes individuals who didn’t have their Charter rights infringed.
Giaschi agreed with the government lawyers, ruling the proposed lawsuit includes people who were lawfully arrested, charged and convicted of breaching the injunction order. Such individuals, he wrote, can have no claim connected with their detention and arrest.
“Some attended [Fairy] Creek to peacefully and lawfully protest. Some were members of the media who attended to simply view and report on the protests,” wrote Giaschi in his ruling.
“However, others clearly attended at [Fairy] Creek to deliberately breach the injunction order or to obstruct and interfere with the lawful enforcement operations of the RCMP.”
Giaschi dismissed the proposed class-action lawsuit and recommended any future complaints be submitted to the court independently or taken up with a police oversight body.
