RCMP Conduct in Fairy Creek Does Not Tarnish Court’s Reputation
Case in Brief: Teal Cedar Products Ltd v Rainforest Flying Squad, 2022 BCCA 26
The injunction against protestors at Fairy Creek has been extended until September 2022. In a unanimous decision made January 26th, the BC Court of Appeal (“BCCA”) overturned the BC Supreme Court’s (“BCSC”) refusal to extend an interlocutory civil injunction that protected logging operations from interference by old-growth logging protestors in parts of southern Vancouver Island, including the Fairy Creek watershed.
In September 2021, the BCSC found that the RCMP’s methods of enforcing the Court’s injunction order resulted in the serious and substantial infringement of civil liberties, including freedom of the press. The BCSC held that the RCMP’s conduct led to the depreciation of the Court’s reputation and that the factors weighing in favour of extending the injunction did not outweigh the public interest in protecting the Court from risk of further reputational harm.
However, this moment of triumph for the old-growth protectors was short-lived. In its recent decision, the BCCA made it clear that the “conduct of police does not tarnish the reputation of the court; the court and police are constitutionally independent.” The court’s reputation is not depreciated by the grant and enforcement of an injunction stopping the protestors’ unlawful conduct, nor is the court “taking a side” in upholding the rule of law; rather, it is fulfilling its constitutional obligation. The case demonstrates that the dominant public interest in cases involving civil disobedience against a private entity is in upholding the rule of law.
Teal Cedar Products Ltd. (“Teal Cedar”) holds an area-based forest tenure comprising of nearly 60,000 hectares in Vancouver Island, an area that includes old-growth forest and overlaps with the traditional territories of the Pacheedaht First Nation and the Ditidaht First Nation. The tenure (Tree Farm License 46) permits Teal Cedar to cut timber and build roads within the license area. In August of 2020, old-growth logging protestors blocked roads at various locations and Teal Cedar commenced an action for, amongst other things, trespass, nuisance, and unlawful interference with economic relations and contractual relations, and sought injunctive relief pending the outcome of the action.
On April 1, 2021, the BCSC granted Teal Cedar a six-month interlocutory injunction that protected its logging operations from interference by protestors, stating that the protestors’ conduct was illegal and undermined the rule of law, and that the protection of old growth forests is a government public policy decision that cannot be considered in the Court’s decision to grant or refuse the injunction. The injunction authorized the RCMP to arrest and remove contravening individuals. The RCMP subsequently began enforcement of the injunction and hundreds of protestors have since been arrested for allegedly violating the injunction order (para. 13).
On September 14, 2021, Teal Cedar appeared again before the BCSC, seeking to have the injunction extended for a longer term. Justice Thompson refused to extend the injunction on the basis that granting the injunction was not just and equitable in all of the circumstances. Among the public interest factors that contributed to Justice Thompson’s decision was the strong public interest in maintaining the court’s reputation by keeping it away from the front lines of the dispute and protecting it from being tarnished by police conduct.
Justice Thompson concluded that the best way to balance the conflicting public and private interests in this case is to ask whether there is another means of stopping the unlawful conduct. Finding that the enforcement of the Criminal Code could stop the alleged unlawful conduct, Justice Thompson concluded that the factors weighing in favour of extending the injunction did not outweigh the public’s interest in protecting the Court’s reputation.
In its recent decision, the BCCA found that the BCSC’s decision erred in principle and law and allowed the appeal to extend the injunction on three grounds.
First, Justice Thompson erred in in law by requiring Teal Cedar demonstrate an “enforcement gap” as a precondition to obtaining a civil injunction. The BCCA stated that courts cannot consider the availability of charges and prosecution for Criminal Codeoffences as a factor weighing against the granting of an injunction to a private applicant, as private entities cannot exert any control over the enforcement of criminal law nor do they have authority to use provincial laws to fine protestors or legislate more effective remedies (para. 40). Thus, the availability of other means to prevent unlawful conduct may be relevant when it is government seeking to obtain an injunction, but not in the case of private entities (para. 40). Further, the BCCA found that Justice Thompson erred in finding that the criminal law would be employed to address ongoing unlawful conduct.
Second, Justice Thompson erred in finding that the BCSC’s reputation was being damaged by virtue of the BCSC being pulled into the middle of the dispute between “citizens on one side and a logging company and the government on the other” (para. 43); and by the manner in which the police were enforcing the injunction. The BCCA held that the court’s role is not to take a side, but to uphold the rule of law (para. 57) and the court’s reputation rests with its legitimacy and effectiveness, not with public opinion. Further, the court’s reputation cannot be tarnished by the conduct of police officers enforcing court orders (even if the administration of justice is brought into disrepute by that police conduct) because the court is constitutionally independent from the RCMP (para. 63).
Third, Justice Thompson did not give sufficient weight to the public interest in having the court uphold the rule of law. The BCCA explained that it is the responsibility of courts to interpret and uphold the laws made by democratically-elected governments, and found that the public interest in upholding the rule of law should be the dominant consideration in all cases regarding “significant and persistent acts of civil obedience”, as was the case here where “the injunction is all that stands between Teal Cedar and a highly-organized group of individuals who are intent on breaking the law to get their way” (para. 77).
With this decision, the BCCA has firmly reiterated the judiciary’s well-established views on interlocutory injunctions in the context of blockades and civil disobedience: the rule of law must be protected and enforced by the courts, no matter how commendable the root of the protest may be.
If you have any questions or comments relating to what we discussed above, feel free to reach out to Erin Reimer from our Litigation Group.