Valerie Elliott

Between a rock and a hard place, mother of three accuses RCMP of Charter violations. RCMP officers use grinder to cut through metal Catherine McClarty had used to attach herself to a road barrier. (Photo: Brandon TS) CATHERINE McCLARTY, a stage 4 cancer patient and Fairy Creek land defender, is conflicted about the hearing she’s been waiting for 18 months to attend. On May 1, the Victoria resident will attend a hearing at the Nanaimo courthouse. Her case will either be dropped by the Crown, preventing her from providing evidence against the RCMP, or she will serve jail time and could provide evidence against the RCMP for alleged misconduct. “Usually, it’s good news when a case is dropped,” says Noah Ross, Counsel for McClarty. “In this case, if Ms. McClarty’s charges are dropped, she becomes one of many arrestees who will no longer have the opportunity to challenge the accusations of Charter violations by the RCMP.” On Monday, the BC Prosecution Service may choose to withdraw her charge based on the Henderson decision. The decision found that the RCMP’s Community Industry Response Group’s (CIRG) unit failed to provide adequate notice during arrest. To date approximately 30 arrestees have had their charges withdrawn with another 150 expected by early June. “I am so utterly discouraged and disappointed in the justice system,” says McClarty, who was undergoing chemo treatments when she was arrested. “How will the RCMP be held accountable for these violations if almost 200 charges are dropped? I can’t believe I’m feeling a need to go to jail in order to hold the RCMP accountable.” McClarty was diagnosed with stage 4 cancer after the birth of her third child in 2018 and recently completed her 93rd chemo treatment cycle. She was arrested on June 9, 2021 for locking herself to a gate to prevent logging at Fairy Creek. RCMP used an angle grinder at her neck for 55 minutes to remove the lock. Sparks from the angle grinder burned through her arresting officer’s gloves and several layers of her clothing. During her arrest, RCMP officers refused to wear medical masks although she had told them about her terminal cancer diagnosis and her compromised immune system. She was one of four people arrested that day with two senior women and an Indigenous arrestee already in the police van from another Fairy Creek area known as Eden Camp. McClarty was held unnecessarily for several hours following her arrest. “I was in the back of a police van for six hours on a hot day in direct sun. I felt nauseous and weak and didn’t have food or water. The officers drove the back logging roads and dropped off the Indigenous person on the side of a back road with no phone, no food or water, no support, and said ‘Port Renfrew is that way’ and drove off. I had no idea how long that person would have walked but it must have been a long long way,” says McClarty, who is outraged by the RCMP actions particularly against Indigenous people at Fairy Creek. Fairy Creek is a remote location where McClarty felt an obligation to help keep people safe. Her medical equipment business lent a $1,200 defibrillator to the First Aid tent that was subsequently seized by the RCMP without just cause. It was never returned. “I was afraid someone would die there at the hands of CIRG. They were so violent. They acted like vigilantes,” says McClarty. “We were all there to protect old growth forests that are still at risk today. I’ll defend these forests for all children to my dying day. I just hope I’ll outlive another temporary deferral.”

Dubious tactics employed by police against reporters and the public at old-growth logging protests on Vancouver Island may land the Mounties in front of a judge. A CLASS ACTION LAWSUIT was filed March 8th, 2023 against the RCMP by two media professionals. They’re seeking to hold the RCMP accountable for breaching their Charter rights, and the constitutional rights of hundreds of other individuals at Fairy Creek. The suit names the federal government and notes the Crown’s liability for wrongful conduct by Members or Officers of the RCMP. “Our case aims to demonstrate that in its enforcement of an injunction order, the RCMP infringed on the constitutional rights of members of the public at Fairy Creek—rights that are protected under Canada’s Charter of Rights and Freedoms,” says Halla Ahmed, an attorney at Branch MacMaster LLP. The Notice of Civil Claim asserts that the RCMP exceeded its legal authority infringing on Sections 2, 7, 8 and 9 of the Charter. The plaintiffs are represented by Branch MacMaster LLP and Arvay Finlay LLP, law firms known for their work in class actions, constitutional, and public law. Representative plaintiffs, Arvin Singh Dang, a professional photographer and teacher, and Kristy Morgan, a film producer, were asked to document at Fairy Creek when they and hundreds of others were subjected to unlawful tactics by the RCMP’s Community-Industry Response Group (C-IRG). The claim alleges that fundamental rights were breached, including freedom of the press, freedom of peaceful assembly, and the right to life, liberty and security of the person. Mr. Dang, Ms. Morgan and others were targeted under the C-IRG unit’s punitive exclusion zone policy where Mounties arbitrarily arrested, and detained peaceful members of the public and the media without just cause or reasonable grounds. In some cases, the excessive force resulted in serious injury. Photo ©ArvinSinghDang The 26-page claim describes RCMP officers’ use of a “catch-and-release” policy where hundreds of individuals who had not breached the injunction order were detained or arrested. Often, law-abiding citizens were held for extended and unreasonable lengths of time without charges being laid. Mounties did so in unsafe situations, or in areas far removed from Fairy Creek. It’s believed that of the almost 1,200 arrests at Fairy Creek, most were released without charge. The injunction order still in place prohibits certain actions within a designated area in Fairy Creek, but does not prohibit access to the entire area. Exclusion zones described as “large, militarized areas” were set up that denied the public access to areas within Fairy Creek. The RCMP is said to have arbitrarily and spontaneously expanded and moved exclusion zones resulting in people being forced, sometimes permanently, to abandon personal belongings, equipment and vehicles. On July 20, 2021, in response to RCMP’s restriction of media access, Supreme Court Justice Thompson said, “In short, these RCMP blockades are unlawful.” “We believe the BC Supreme Court Injunction intends to balance the interests of logging company, Teal Cedar, with the public’s right to freely access roads and trails in Fairy Creek as they can in other areas of British Columbia. The public still maintains the right to assemble and engage in lawful protest, and the media has the right in Canada to document such events.” says David Wu, an attorney at Arvay Finlay LLP. The lawsuit will introduce evidence to support allegations that there were extensive infringements by the RCMP upon the rights of media and members of the public. Evidence will be introduced that attests to the police directing and authorizing the use of excessive force or violence, herding individuals into exclusion zones in the practice of “kettling,” blocking access to forest services roads, preventing medical treatment, and indiscriminately using pepper spray on bystanders including removing COVID face masks to do so. It is expected that many individuals who were impacted by RCMP conduct will be part of the proposed class action lawsuit. More information about the lawsuit is available here. “The RCMP has an opportunity to correct its course to ensure that its conduct aligns with the Canadian Charter and that unconstitutional policies are not used in the future,” says Wu. Valerie Elliott leads iD2, a Victoria-based communications firm that works with clients who are taking action to change the world.

Forest defenders allege systemic RCMP misconduct and seek widespread stay of criminal contempt charges. Snuneymuxw, Snawnawas & Stz’uminus Territories, Nanaimo, BC DEFENCE LAWYERS for Fairy Creek forest defenders are in the BC Supreme Court today and tomorrow to formally add 121 people to an Abuse of Process application. Forest defender “applicants” argue the RCMP engaged in systemic violence and abuse last year, during the enforcement of an injunction in the Fairy Creek watershed on southwest Vancouver Island. The applicants will assert that this conduct deprived them of their fundamental freedoms, including their right to peaceful assembly, freedom of conscience and expression. The Abuse of Process applicants are seeking a stay of their criminal contempt charges in one of the largest abuse of process applications in Canadian history. A hearing on the application has not been scheduled yet. After an injunction was granted to Teal Cedar Products Ltd. on April 1, 2021, allowing the company to log and clear-cut large areas of old growth in the Fairy Creek watershed, the RCMP and its Community-Industry Response Group began enforcement actions in May 2021. Those enforcement actions continued through the end of 2021, resulting in approximately 1200 arrests, considered the largest act of civil disobedience in Canadian history. The Crown filed charges of criminal contempt against more than 400 people, many of whom face jail time for their nonviolent actions. Roughly 85 people have been found guilty of contempt thus far. The Crown has sought fines as high as $3000, up to 100 hours of community work service, and custodial sentences ranging from 3 to 10 days in jail for at least 12 forest defenders. Many more yet to be tried are facing even longer jail sentences. All Abuse of Process applicants experienced some form of police misconduct during the arrest or detention process, and all are facing contempt charges. Forest defenders claim that the Charter and common law violations, which deprived them of their fundamental freedoms, were “an objective of the RCMP’s enforcement operation,” according to the Notice of Application filed earlier this year. Examples of abuse include pepper spraying, punching, kicking, dragging, and “pain compliance” techniques. Assaults were also carried out by police in a widespread manner against people who were never arrested or detained. RCMP members pepper-spraying forest defenders at Fairy Creek in 2021 Applicants claim that police imposed arbitrary and unlawful “exclusion zones” to curtail civilian, legal, and media oversight while engaging in enforcement that, at times, relied on excessive force and coercion. The forest defenders claim that the RCMP raided their camps, and carried out systemic destruction and seizure of property, including necessities for survival in the back country, such as vehicles, food, shelter, communications devices, medications, fuel and other items, some of which were turned over to Teal Cedar. Applicants will argue that police denied them food, water, medication, medical assistance, and access to legal counsel. In a February preliminary hearing, BC Supreme Court Justice Douglas W. Thompson granted permission for the applicants to advance their claims. The application will be heard by Justice Robin Baird at the courthouse in Nanaimo. “The importance of this case cannot be understated,” said Karen Mirsky, co-counsel for the applicants and president of the BC Civil Liberties Association. “Are the police permitted to engage in tactics, including what we say is misconduct, to curtail peoples’ right to assemble and to express their thoughts and beliefs, when they are not actively breaching a court injunction?” asked Mirsky. “We will argue that the RCMP’s interpretation of the injunction in this manner is a very clear case of abuse of process, and convicting those who actively breached the injunction would amount to the court’s approval of this type of overall enforcement.” Mirsky and her co-counsel Noah Ross state in the Notice of Application that there is “no alternative remedy capable of redressing the prejudice,” and a stay of charges is “the only remedy which will adequately dissociate this Court from the misconduct of the RCMP.” While lawyers are seeking a stay of charges against the applicants themselves, they recognize that “the court has the ability to stay charges against all contemnors if it feels this is necessary to preserve the integrity of the justice system.” “The RCMP is acting as a cudgel for industry by engaging in violence against forest defenders on behalf of Teal Cedar and its voracious appetite for logging Old Growth forests,” said Rani Earnhart of the Rainforest Flying Squad. “The police cannot be allowed to use excessive force and other tactics in order to suppress our movement to end Old Growth logging without legal and serious consequences.” Less than three percent of BC’s original productive old growth forests remain standing. The “Old Growth Strategic Review Panel” for the province urged an end to old growth logging in 2020, yet the government has thus far failed to implement its recommendations. Two recent polls show that 85 percent of BC residents are “highly concerned” about Old Growth logging, and 92 percent support a moratorium on old growth clear cutting. Forest defenders began blockading roads on the western ridge of Fairy Creek on Pacheedaht territory in August 2020, but only experienced police abuse after the Teal Jones injunction was imposed in April 2021. The Rainforest Flying Squad and Last Stand for Forests is a volunteer-driven, grassroots, non-violent direct action movement committed to protecting the last stands of globally significant ancient temperate rainforest in British Columbia. They stand in solidarity with Elder Bill Jones and other members of the Pacheedaht Nation in the protection of the ancient forest of their ancestral territory. For additional info: www.laststandforforests.com.