British Columbia

Fairy Creek protesters' bid to have charges stayed is 'simply not the way justice is done': Crown lawyer

A lawyer for the Crown says a court application asking for a stay of proceedings against those arrested at old-growth logging protests on Vancouver Island is flawed and has no chance of succeeding.

Logging protest group has claimed RCMP misconduct related to arrests on Vancouver Island

Mounties carry away a protester from a blockade near the Fairy Creek watershed on Aug. 18, 2021. Protesters claim RCMP misconduct during their arrests amounts to an abuse of process, but Crown lawyers say their case is fundamentally flawed. (Kathryn Marlow/CBC News)

A lawyer for the Crown says a court application asking for a stay of proceedings against those arrested at old-growth logging protests on Vancouver Island is flawed and has no chance of succeeding.

Nick Melling told the B.C. Supreme Court that charges were never recommended against most of the clients represented by one of the lawyers who is part of the application. Only one of the six applicants has alleged mistreatment by police, he said Thursday.

The RCMP have arrested over 1,000 people since last May for allegedly violating an injunction against blockades in the Fairy Creek watershed on southern Vancouver Island and about 400 of them were charged with criminal contempt, Melling said.

Neither charged nor uncharged applicants are making any allegations about police, Melling told Justice Douglas Thompson.

"To be clear, not only are the applicants not saying that they suffered mistreatment at the hands of police, but no other third party is alleging that the applicant is providing a factual foundation that any of the applicants suffered police mistreatment," Melling said.

Members of a group called the Rainforest Flying Squad filed an application last month asking for a stay of proceedings against those charged with contempt of court, claiming that alleged RCMP misconduct amounts to an abuse of process.

The injunction was first granted last April against blockades set up over the past 18 months.

People who have declared themselves 'land defenders' listen to Pacheedaht Elder Bill Jones as they guard an area of a logging cut block called 'Heli Camp' in the Fairy Creek logging area near Port Renfrew, B.C., on Oct. 4, 2021. (Jonathan Hayward/The Canadian Press)

Melling told the court that in addition to 11 affidavits in the case that are irrelevant, others are inadmissible, including seven that are based on hearsay involving people who compiled the accounts of others, which doesn't allow them to claim a breach of their own rights.

Lead Crown counsel Lorne Phipps said what lawyers for some of the applicants are proposing would be a "radical break" from any case that's come before the court because they're relying on allegations of police misconduct related to others and trying to apply them to "an entire class of alleged contenders."

"The analogy is if there's a town where police forces are making systemic mistakes in impaired driving allegations, so everyone who was charged with impaired driving in that town and convicted should have their conviction set aside, even if those mistakes weren't present in their case. It's simply not the way justice is done," Phipps said.

The original injunction prohibiting logging blockades expired last September. Thompson denied an application by logging company Teal Cedar Products Ltd. to extend it by one year. That decision was overturned by the B.C. Court of Appeal last month when it extended the injunction until September.

A cut block in the Fairy Creek logging area near Port Renfrew, B.C., pictured on Oct. 5, 2021. (Jonathan Hayward/The Canadian Press)

Lawyer Karen Mirsky, whose clients were arrested, told the court Thursday that the RCMP's "campaign" against people who attended protests in the Fairy Creek area, including those who brought food to support protesters, was aimed at breaking a movement, "and they acted as if they were above the law."

"That, Mr. Justice, is the abuse of process that we are here to argue," she said.

Mirsky said there's a "direct line between this court and the police operation" permitted by the injunction, which led to the arrests of those exercising their fundamental democratic right to free speech.

Lawyers for Teal Cedar Products were also scheduled to make arguments later in the court application.

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