When 17 members of the group Last Stand West Kootenay filed into a Nelson courtroom in July 2022, along with supporters, they expected a judge to hear their case and make a decision.
But they were wrong. They left the courtroom an hour later in a legal limbo that still exists to this day.
In April of that year they had set up a camp at a logging road at Salisbury Creek near the small community of Argenta, north of Nelson, to protest timber company Cooper Creek Cedar’s commencement of logging of the area known as the Argenta-Johnsons Landing Face.
The RCMP arrested them on May 17, 2022, for violating a two-year-old civil court injunction that directed them and “persons unknown” not to block the logging road.
In court last summer, the group thought the few who were actually blocking the road would be able to state their case against the logging and what they said were violent RCMP arrest tactics.
Those were not blocking the road but who were arrested anyway would also have an opportunity to state that fact to the judge.
It was not that simple.
As soon as the proceeding opened, the company’s lawyer told the judge that his client intended to apply to the court to have the B.C. prosecution service charge the protesters with criminal contempt of court.
Up to this point, the case was a civil matter between two opposing parties: the protesters and the company. Switching the case to criminal law would mean the Crown prosecutor versus the protesters who would be accused of a criminal offence.
That application to the court would take some time to prepare, the company’s lawyer said, so everyone went home, and the company continued logging the contested area.
Cooper Creek Cedar never followed through on its application for a criminal contempt charge. But theoretically it could still do so.
This means a protester can be arrested but never have their day in court while the logging goes ahead.
Cooper Creek Cedar did not respond to requests for comment on this story.
Veteran civil rights lawyer Leo McGrady of Vancouver told the Nelson Star that to have the Crown take over the conduct of civil contempt proceedings and then treat them as criminal matters has become a common response to environmental protests.
In such situations, McGrady said, “a logging or mining company (seeks to) use its resources to intimidate people who are simply trying to save our environment. In these scenarios even if the company is unsuccessful in obtaining a conviction for criminal contempt, or even civil contempt, they often will have succeeded in intimidating some of the protesters.”
And this was indeed the effect, says Megan Beatty, one of the 17 arrested. She said she was intentionally standing on the road and expected to get arrested. But many others, not standing on the road, had no such expectation and were arrested anyway.
“They had their lives overturned by this, basically,” she said.
Beatty said she was willing to be arrested because of her commitment to protection of old growth and to new logging practices that take climate change into account.
“I have protested and tried to make my voice heard in all the legal ways and the destruction of the environment has actually accelerated,” she says, adding that the Argenta-Johnsons Landing Face has been contentious for decades “and no progress was ever made. It makes the decision for direct action very simple for me.”
Later that summer, the company filed an additional legal proceeding against the group.
It asked the court to order that Last Stand West Kootenay (LSWK) must provide the company with the social media information of its members including contact information provided at time of registration, and IP addresses of the last 300 logins and logouts of several individual Facebook and Instagram accounts. The company also asked for similar information from the domain registry company GoDaddy and the fundraising platform ConnectionPoint.
The company’s stated rationale was that LSWK had set up social media platforms that directed and coached the public to blockade the Salisbury Creek forest road and encouraged the public to support it.
This was a shock to LSWK members.
“It was scary to think that I can be standing up there and protesting, standing up for something that I believe in, and that they’re going to attempt to take all my information,” said Matt Perry, one of the people who were arrested.
The company’s application came before Justice Lindsay Lyster on Sept. 23, 2022, and on March 27 of this year she ruled that “it would not be in the interests of justice” to grant the order because that would “require the third parties to disclose information about LSWK that would have a chilling effect on LSWK and others engaging in expressive and associational activities in support of their political and social aims.”
And it did have a chilling effect, Beatty said.
“It makes you think twice about sharing things on your own personal social media,” she said. “We’ve had to kind of pause and think about what we can put out there. It was possibly the cause of some people needing to step back and take time and sort of assess what they could do going forward.”
Beatty said the uncertainty generated by these two court actions — one of them eventually rejected by a judge and other still hanging in limbo — has been demoralizing.
“It was quite devastating and and it’s definitely set a cloud of uncertainty. A lot of people are going through some pretty tough times right now and struggling with the way the world is, and that definitely hasn’t made things better.”
Lyster’s decision can be found at https://bit.ly/3MsvcGs.
“The mere threat of having one’s social media placed in the hands of a hostile mining or logging company is a frightening prospect for the average person,” McGrady said, adding that there is an extremely low chance a court would agree to it.
“Canadian courts have repeatedly held that the right to protest lies at the very core of the guarantee of freedom of expression,” he said.
Perry says these court actions, which he refers to as “escalations,” have motivated some LSWK supporters and discouraged others.
“It’s defeated a lot of people, and it’s also empowered and made other people want to do more. But there’s confusion there. Confusion about how to make a stand. How do we legally do it and how do we do it so that it actually gets heard? And how do we do this so something actually happens (as a result)?”
The answers to these questions depend partly on how the RCMP responds to protests.
LSWK and other local groups have jointly filed a formal police complaint against the RCMP for their handling of the arrests, which they called “a gratuitous show of RCMP aggression.”
The Civilian Review and Complaints Commission is also conducting an investigation that will focus on police conduct at several resource industry standoffs in B.C. in the past two years, including the Argenta arrests.
McGrady says the RCMP is developing an “increasingly troubled reputation” because the way it enforces junctions is reminiscent of police actions of more than a century ago.
“Mining companies and coal companies and logging companies would often have their own private police force. The RCMP, of course, is publicly paid and has a long tradition of supposedly independent police force. But more and more we’re seeing it intervening, and at times illegally, on behalf of these mining companies and logging companies.”