A B.C. Supreme Court judge has asked the attorney general to review the arrests of anti-logging protesters at the Fairy Creek blockades to assess whether criminal contempt charges should be pursued.
In Duncan on Tuesday, Justice Douglas Thompson allowed an application by Surrey-based forest company Teal-Jones and asked the B.C. Prosecution Service to review the arrests of hundreds of people now charged with civil contempt, and to consider criminal contempt charges.
The judge also asked the prosecution service to review the circumstances surrounding the contempt proceedings Teal-Jones has brought against five individuals to assess whether they should be charged criminally.
“The invitation to the attorney general is made on the basis that there is an important public interest in fostering respect for the rule of law, including the ability of the courts to enforce their process and maintain their dignity and respect,” said Thompson.
The judge said he is persuaded that there is evidence involving a significant number of arrestees that could support a finding of criminal contempt.
“To be clear, I am not making a finding that there has been contempt of court by any of the alleged contemptors. My conclusion is that there is evidence, if accepted, that could support a criminal contempt finding,” said Thompson.
Since August 2020, members of the Rainforest Flying Squad and other environmental activists have set up moving blockades in their bid to prevent roadbuilding and logging of old-growth forests. On April 1, Teal-Jones was granted an injunction prohibiting road blockades intended to obstruct logging in Tree Farm Licence 46 near Port Renfrew.
So far, 367 people have been arrested at the blockades. Of those, 277 were arrested for civil contempt for breaching the injunction, 78 for obstruction, seven for mischief, two for breaching their release conditions, two for assaulting a police officer and one for counselling to resist arrest.
Trevor Shaw, a lawyer for the B.C. Prosecution Service, said he would respond to the court on July 19. If the service takes over prosecution from the forestry company, planning will be required, said Shaw, who was involved in the prosecution of dozens of protesters arrested at Kinder Morgan’s Trans Mountain pipeline work site in Burnaby.
During that prosecution, the Crown had arrest dates and trial dates. In an attempt to streamline the process, 10 protesters had trial dates in the same week.
People arrested at the Fairy Creek blockades could be in court in late September and early October. Because of the large number of arrests, Victoria may be a more appropriate location for the trials than Duncan, said Shaw.
Civil contempt is not a criminal offence. A person charged with civil contempt is prosecuted before a judge by the party who obtained the injunction, in this case Teal-Jones. Criminal contempt is a criminal offence, prosecuted by Crown counsel before a judge.
The B.C. Civil Liberties Association says potential penalties for civil and criminal contempt are the same and include fines or jail. Some first-time offenders convicted of criminal contempt during 1993 protests at Clayoquot Sound were sent to jail.
The association warns that being arrested can affect employment prospects and travel plans. Arrests are recorded in police databases and often released when someone applies for a criminal record check for volunteering or employment.
“If you are convicted of a criminal offence, that offence will certainly be shared,” the association says.
Immigration status of non-citizens can also be affected by criminal charges or convictions.
During Tuesday’s hearing, the court heard from people arrested for civil contempt, now faced with the possibility of criminal contempt charges.
Mitchell Steinke, the second person arrested, said his protest was “completely peaceful” and involved singing a song. “I did not participate in a mass public disobedience,” said Steinke, adding that he protested once as a matter of conscience and has not returned.
Emily Kane said she is an upstanding citizen who volunteers for charities and runs a respected local business. “I’ve never been charged with any offences. This is my first time appearing in court. … I strongly believe it’s not in the Crown’s or the public’s best interest to take over prosecution from Teal-Jones. Teal-Jones should not have the government pay for prosecution and I find it wildly inappropriate the amount of expenditure on RCMP enforcing this peaceful action.”
After court, Teal-Jones said its application reflects the seriousness of the illegal activity, which is still happening more than three months after the injunction was granted. “The blockaders have repeatedly stated they have no intention of following the law, even after the province deferred logging in areas including Fairy Creek,” it said.
