The federal police watchdog says B.C. Mounties acted unreasonably when they arrested a man for refusing to submit to a warrantless search onn the frontlines of one of the largest environmental protests in B.C. history.
The Civilian Review and Complaints Commission for the RCMP released its summary of its final report Wednesday (Sept. 11) into the September 2021 incident. The commission found that the "broad exclusion zones and checkpoints" used by members of the RCMP's Community-Industry Response Group in the Fairy Creek exclusion zone were unreasonable and inconsistent with the B.C. Supreme Court's injunction.
It was part of an investigation into a September 2021 incident after a man filed a complaint that RCMP officers violated his charter rights when officers told a group of hikers they had to provide identification and have their bags searched.
The review also found that an officer unreasonably wore a 'Thin Blue Line' patch – an image of the Canadian flag in black and white with a blue line horizontally through the centre to represent police – on their uniform.
Background on the injunction and exclusion zone
In 2020, Teal Cedar Products Ltd. obtained permits to build forest service roads for logging on the southwest of Vancouver Island. The permits included 12 hectares of old growth in an area known as the Fairy Creek watershed, but it faced opposition because some of the trees were up to 1,000 years old and irreplaceable. An organized group of protesters set up camps to prevent any old-growth logging in the area.
On April 1, 2021, the Supreme Court of B.C. granted a civil injunction to Teal Cedar that prohibited anyone from obstructing access to the forest service roads, but it allowed people to participate in lawful, peaceful and safe protest if they complied with the injunction.
The injunction allowed RCMP "to arrest and remove anyone" who knew of the order, but police had "reasonable and probable grounds" to believe were contravening the order.
When RCMP began enforcing the injunction they used "temporary exclusion zones," which were areas with tightly controlled access. Officers also set up "access control points" outside of the exclusion zones to "restrict entry to people who met certain conditions."
RCMP investigation into the complaint
In September 2021, a man was hiking along a forest service road in the Fairy Creek area with a group of friends. When they came up to an access control point, two RCMP officers told the group they had to search their backpacks and provide identification before going further. The group refused and the man and one other person were arrested.
An RCMP investigation into the man's complaint found that the officers were acting within their legal authority when they blocked his way and demanded the search. RCMP also said that officers didn't have to wear name tags, but the one officer was in breach of police by wearing the patch.
The man then asked the commission to review his complaint.
The commission reviewed a video – recorded by a friend of the man – of the interaction. It showed the RCMP officers telling the group they needed to provide photo ID and agree to searches of their bags before going further. The man asked if it was legal and for the officers to identify themselves. They "quickly" read out their badge numbers but wouldn't repeat them when asked. The officers refused to tell the group their names.
He told the officers he wouldn't allow them to search his bag, adding "I think you're going to have to arrest me." The officers told him he could just leave, but he said his constitutional rights were at stake. Mounties gave him a final chance to leave, he refused and the officers told him he was under arrest.
Unreasonable access control points, exclusion zones and searches
The RCMP's practice was to search all bags and backpacks of anyone trying to enter the area, as well as require everyone to provide identification.
RCMP explained the access control points were necessary to "prevent protesters from parking vehicles on the road as obstructions, and from bringing materials and equipment into the injunction area to construct obstacles." The ID checks were to ensure protesters who had been previously arrested for breaching the injunction didn't return.
The man had never tried to cross through the access control point, and the commission found the access control point and the exclusion zone violated several of his rights, including the common law right to move freely.
Police can conduct warrantless searches, but only under specific circumstances. The commission found that none of those exceptions applied in this case and there was "no evidence there was a serious risk of violence or even that weapons were being brought into the exclusion zone."
The B.C. Supreme Court, in August 2021, applied a Supreme Court of Canada decision that said "intrusions on liberty should be a last resort, not a first option, and that anything else 'is a recipe for a police state, not a free and democratic society.'"
RCMP argued the exclusion zones, access control points and media restrictions were necessary because of the logistical challenges of operating in a "remote, vast environment."
But the B.C. Supreme Court said the goal of the injunction was to ensure access to the area, not just for Teal Cedar but for the public who had the right to use the forest service roads and could hike and camp in the area. The court said the injunction was already "very clear" that the public had access to the area, but the court altered the injunction to make it clearer.
Arrest was unreasonable
The commission said people cannot obstruct a police officer by refusing to answer questions or to identify themselves unless a specific law requires them to.
"Even though the man asked to be arrested as part of his protest about the RCMP’s unreasonable restrictions, the RCMP members had no reasonable grounds to arrest him."
The commission recommend the RCMP give Mounties written "guidance, monitoring or training regarding the grounds to arrest for the offence of obstructing a peace officer." It also recommended that an "appropriate member" of the RCMP apologize to the man for the officers' failure to acknowledge his constitutional rights and civil liberties.
Removal of name tags
Through the review, the commission found the RCMP ground commanders had allowed the officers to remove name tags in an effort to prevent doxing. Doxing refers to the threats and harassment against someone or their families after their name is made public, usually through social media.
The RCMP's investigation said the Uniform and Dress Manual gave officers flexibility with uniforms that included the freedom to remove their name tags.
However, the commission said it wasn't satisfied with that level of flexibility. It said that by allowing the removal of name tags, without a reasonable way to identify the members, "effectively shielded them from accountability or reasonable public scrutiny."
A separate systemic investigation
The commission is also completing a separate systemic investigation of the activities and operations of the Community-Industry Response Group in B.C.
The systemic investigation will review and determine whether policies, procedures, guidelines and training: clearly define the RCMP's and the Community-Industry Response Group's authorities, roles and requirements; are consistent case law of the Canadian Charter of Rights and Freedoms; and reflect previous relevant recommendations from the commission.
