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Judge rejects bid by Fairy Creek protesters for hearing on alleged RCMP misconduct

A judge has dismissed a bid by more than 100 Fairy Creek old-growth logging protesters for a joint hearing on alleged RCMP misconduct.
Fairy Creek protesters march on Douglas Street toward the B.C. legislature building in Victoria on Nov. 24, 2021. DARREN STONE, TIMES COLONIST

A judge has dismissed an application by 121 Fairy Creek logging protesters for a joint hearing to seek a stay-of-proceedings on the grounds of alleged systemic RCMP misconduct.

More than 1,200 people protesting old-growth logging have been arrested at the Vancouver Island protest site since about May 2021, with the Crown charging 400 of the protesters with criminal contempt of court for violating a court injunction banning blockades.

To date, about 100 of the people charged with criminal contempt have had their matters dealt with in court, primarily by guilty pleas. Most of those individuals received non-custodial sentences with a small minority getting jail time.

Another 121 of the protesters who have not yet gone to trial applied in court for permission to have a joint hearing at which they would be entitled to argue for a stay-of-proceedings on the grounds that the RCMP engaged in an abuse-of-process when they enforced the injunction.

In September 2021, a judge found that the court’s reputation had been “depreciated” by the manner in which the police carried out the arrests.

B.C. Supreme Court Justice Douglas Thompson referred to disquieting lapses in reasonable crowd control, unnecessary force used to subdue protesters and the establishment of unlawfully expansive exclusion zones and checkpoints. On the basis of his findings, the judge declined to renew or extend the court injunction but, on appeal, the B.C. Court of Appeal overturned the ruling and the injunction was extended. The province’s highest court focused on what it considered to be the concerted, organized, well-funded and aggressively illegal conduct of the protesters and said it was an error of the judge to conclude the court’s reputation could be tarnished by the conduct of police.

In May, the 121 protesters filed the application seeking a stay-of-proceedings, arguing that a joint hearing was necessary to prove their allegation of police misconduct.

The Crown said many if not most of the allegations are vigorously denied, hotly contested and will require evidence from a large demographic of police witnesses. They argued that the only practical and procedurally admissible way to proceed with the charges was to have separate trials for the protesters.

In his ruling on the application, B.C. Supreme Court Justice Robin Baird found that a joint hearing would be “wholly unmanageable” by virtue of its size and complexity, and would inevitably and “ignominiously” collapse.

“What the applicants propose, in effect, is a wide-ranging ad hoc inquiry into the RCMP enforcement operation which is beyond the institutional competence and capacities of an ordinary criminal court,” he said. “In any event, such a vast undertaking is unnecessary, in my view, to create the sort of record that the applicants claim will be necessary to advance their claims of systemic abuse of process.”

In dismissing the application, the judge said it would be open to the 121 protesters to file separate notices of stay applications.