Thursday, July 22, 2021

A state of emergency fuelled by the fires of hypocrisy


BC has declared a state of emergency due to the rapid spreading of provincial wildfires. Because people will be preoccupied with the physical safety of loved ones and animals, this may not be the best time to try to carry on a conversation about why it is that this situation even exists. On the other hand, maybe it is the best time. My basic thesis is one of the biggest reasons is because of gross mismanagement of our public forests. Why can’t this be stopped?

In my last post I talked about the role of The Attorneys General in Canada, their main duty which to make sure that all accused are given equal treatment in the courtroom governed by the Canadian Criminal Code. However, all BC Attorneys General, including our present one, have chosen to ignore this duty. In this post I want to shine a spotlight on the majority of lawyers who flood into the courtrooms when environmental protesters are brought into court.

First off, I do not disdain lawyers in general, just most of the ones I met in the BC courtrooms during my dozen years of being dragged through the system. There was one shinning exception – Cameron Ward. Cameron Ward is kind of a hero to me. He represented me in some of my appearances, always pro bono. Other times I represented myself. The difference between Mr. Ward and the others was that he believed in our mission, those of us who blockaded again and again, desperately trying to break the courts determination to only use injunctions to arrest environmental protesters. Mr. Ward’s arguments were well reasoned, well researched, with many authorities recited against the use of injunctions in environmental disputes. His arguments would have swayed any court who was not hell bent on stopping civil disobedience at any cost. But why did most of the lawyers appearing in cases of civil disobedience cases that I knew of, behave, in my opinion, so poorly?

Let’s consider. First, all lawyers who step into the courtroom for trial instantly become Officers of the Court. This means they must take direction from the judge. Thus, when it is a judge’s order that was broken that is at stake, the judge is by definition prejudiced against the arrestees who are accused of such disobedience. This is a conflict of interest to start with. However, this is never discussed even as everyone knows what the outcome will be. How does everyone except the arrestees know the outcome? Because the judge knows. He or she will find the arrestees guilty of contempt of court regardless of their arguments. The BC justices hold contempt of court to be a higher injury to the judicial system than attempted murder. You think I’m being melodramatic? I’m not. You will be assured of a jury trial if accused of attempted murder because you could be facing more than a year’s imprisonment. Anyone facing a year or more imprisonment is afforded a jury trial. The Criminal Code says so. Yet midway in what became something of an obsession with me to try to stop the use of injunctions for environment disputes, my civil disobedience charges were raised to Criminal Contempt of Court meaning that I faced the possibility of a year or more in prison. I was still denied a jury trial.

As a lawyer, you know the judge is not going to rule on anything except whether the defendant was or was not in the zone covered by the injunction. As a deliberate act of civil disobedience of course your defendant was there. They meant to be there. That’s all the proof the Crown and the judge actually need. The defence lawyer – everybody – knows how it will end, but still, it is a job for which he or she will be paid, so therefor will offer up a few feeble objections to the Crown.

This system, along with the climate crisis, has directly contributed to the wildfires that are turning us into another Haiti...baren mountainsides and flooded valleys. Unless we do something. This is not a democracy of the people, for the people. It is time for us to gather – particularly women – and say NO MORE. Otherwise the only legacy we are leaving for our children and grandchildren is the knowledge that we let the flames of hypocrisy burn on our watch. Nobody is going to put out those fires except us.

More next time.

Wednesday, July 14, 2021

Our legal leader hides behind the law while we burn

I first brushed shoulders with David Eby a dozen or so years ago before he was appointed our BC Attorney General, sometime in 2013.  ‘Brushing shoulders’ is definitely just a figure of speech as Mr. Eby is very tall.  I am not tall and at the time was being dragged in and out of courtrooms over multiple charges of contempt of court. Mr. Eby was there on other matters.  However, in a pause of court shuffling in the outside corridors of the law court we did exchange a few words about the provincial use of injunctions to arrest environmental protesters.

As a lawyer, David Eby seemed rather sympathetic to my complaints about how the use of injunctions in environmental matters might be excessively used by the courts. He was young, fresh faced and personable. I wasn’t surprised to lean a few years later that he’d been appointed to be BC Attorney General. However, I don’t know what to think of him now. 

But first, what is an Attorney General (AG)? According to the BC Government website, “The Attorney General (AG) is responsible for ensuring that public administration is conducted according to the law and as such, he or she is the chief advisor of law to the government, in addition to overseeing the court system and Sheriff Service”. Basically, the AG is there to advise the BC government on matters of law.  AGs are supposed to be the experts on the interpretation of provincial law. And so their word is the last word on the matter provincially.

This means that the Office of the Attorney General is very much implicated in the how the court system operates, and how the law is interpreted.  And yet the BC Government website also tells us, in numerous places, that the AG is also in charge of protection and promotion of human rights.

I think there is a contradiction here. When the method of using the courts is inappropriate and unjust from a human rights perspective to deprive environmental protesters of access to the law that is afforded to all other classes of criminals, then something is rotten, not in Denmark, but in BC.  And that something has much to do with the forest fires now sweeping BC.

First Nations people have known for a long time how to burn the brush in the woods to prevent wildfires from taking hold and burning great swaths of the forests in the fire season. Logging companies didn’t, and still don’t, like controlled bush burning. Why? Because they have no respect for the ancient knowledge of First Nations people, and secondly, it would require thoughtfulness and the logging corporations don’t care – its not in their interest of short-term maximizing profits at the expense of future generations. But the way our system works it is not their business to care. Their business is... well, business. Not only are the forests completely demolished by this use, but the soil that holds forests together is degraded, turning many mountain sides into mud slides in the rainy season, no longer able to hold little trees or even brush.

When a BC judge issues an injunction to stop an environmental blockade, he or she is doing one sure thing.  Arrest under the injunction makes known that the court is announcing that they are transferring the public property in question, belonging to the citizens of BC and First Nations, to that of the domain of private property of a logging company. 

Where is our Attorney General in all of this? Where is David Eby?  He knew way back that arrest by injunction was not the best way to practice law in environmental disputes.  He said to me that afternoon leading into the courtroom that there were problems with the injunctions in relation to environment disputes. In retrospect I don’t think he meant what he was saying then.  Or he has changed his mind since.  I mostly think he was just trying to sooth an agitated little old lady who seemed from her actions to probably be off her rocker.

But he knew – and he knows now.  That it is wrong to transfer public property into private property without the consent of the legal owners of the public property.  How is that not illegal? Made even more nefarious because of the deliberate turning away from the duty to protect the legal rights to protest without the interference of the court to intrude on these rights by going outside the law.

David Eby is turning aside from his duty to protect human and legal rights, which has led and will continue to lead to more clear cutting, more forest fires, more loss of human and animal life.  Where are you now? Are you going to hide behind the law as the rest of us left here to witness the burning? Or are you going to act as a true leader? The choice is yours.

Sunday, July 11, 2021

British Columbia Police Chiefs and dereliction of duty



What do BC Police Chiefs have to do with the wildfires which are currently burning with a vengeance? Why am I so angry at them as I evidenced in my last post?  And why do I say they are not doing their job where protests are occurring in our forests?  Because BC Police Chiefs are not doing their jobs. They allow the BC Court System to do their jobs for them to the point dereliction of duty. 

What exactly am I talking about?  Most people by now know that when there are environmental protests in the woods blocking logging actions, an injunction sooner or later comes down from BC Courts and the police go in and arrest the protesters. Isn’t that what they are supposed to do? 

No, it is not. The police are supposed to take any lawbreaker into custody as soon as they find someone breaking the law. When the first protesters appear and physically impede or seek to impede the work of a licensed company, they are breaking the law and should immediately be arrested and taken into custody as any other lawbreaker would be. That’s the law.  And when the police do not arrest lawbreakers immediately, but instead are ordered by their Chiefs to stand down and wait sometimes days, weeks, or even months for a court injunction, the Police Chiefs are acting outside the law. The law is the Canadian Criminal Code.

People sometimes ask if what I am proposing (immediate arrest) would make things worse for environmental protesters in court. No. It would make the protestors’ court appearances profoundly better.   When one stands before the court to answer to a ‘coded crime’ one is under the protections of the Criminal Code. 

The Criminal Code says that any person arrested in Canada for breaking the law must appear before a judge and try to explain what the person’s motive was for breaking the law. Under the Criminal Code the protester’s motive for breaking the law is important an important part of the judicial process.

When arrested by injunction, discussion of these motives are neither allowed nor recognized by the Court. The only focus is on whether the defendant ‘broke’ the judge’s order (the injunction). Nothing else. The environmental arrestees are left standing naked before the court, unclothed by the rights of the Canadian Criminal Code which should be due every Canadian. Arrest by injunction takes the onus off the forests, logging companies, clear cutting, and the trashing of the forests to a single judge’s order that was broken. But there are possible alternatives to being a helpless blob.

If protestors are arrested under the Criminal Code, they can build a case around the rules of justice by using the argument logging companies are renters (paying very little at that). This is not the same thing as owning the forests and doing what they choose. It is not the same thing as being given the rights of private property as they, and the courts, seem to interpret tree farm licences. I think there is a very reasonable argument to be made that clear-cutting destroys the forests and no judge should allow a renter to completely destroy the property of the landlord and put an entire neighbourhood in danger. 

We need to be protesting not only the cutting of the forests, but also how protestors are arrested.

Individual policemen are not responsible for this muddled and horrific state of affairs. They do what they are ordered by their Chiefs. We the public, along with First Nations, are the landlords of the forests that are described as “public” forests, with the acknowledgement of First Nations original and still unceded ownership. This means that we also have the responsibility to identify those who are culpable in this destruction of public property. Those who willingly hold up the perversion of law in the name of law, are in dereliction of duty, ironically in the name of duty. And this dereliction includes not only the BC Police Chiefs but also the BC Attorney General. Next time.


Thursday, July 01, 2021

There's a monster in the Fairy Creek Woods


Monster in the Woods by Elisa Gianola Fornari

As breaking heat waves wash over us in real time, it is wonderful to see the passion being expressed by the protesters and blockaders at Fairy Creek near Port Renfrew. Most of us know by now, or intuit, that mature forests moderate climate and indeed, even create climate. As our rain forests rapidly diminish to mere memories of themselves, there is also the ever-present threat of wildfire. But even worse, there is another destructive threat looming over the blockades at Fairy Creek - the monstrous use of court ordered injunctions that has already stolen most of our public forests. The continuing use of these inappropriate and unjust never-ending environmental court injunctions let loose by British Columbia courts anytime civil disobedience starts gaining traction is the unspoken monster in the woods.

Why do I compare court ordered environmental injunctions to monsters?  Because in my opinion, these injunctions are, in a very real sense dangerous and lawless. Why do I think this? Because the rules and regulations that govern the charge of disobeying an injunction, which usually results in Contempt of Court charges, stand outside the Criminal Code. I fear that at least some of the people who have been arrested will be surprised at what awaits them in the courtroom when they stand before a judge to try to explain themselves and their actions. They will find (unless things have changed enormously my time in front of the judges) that their assigned judge legally does not listen to, or care one continental damn about professions of sincere love of nature by the arrestees, or their climate change anxieties, our utter dismay at the callous nature of the logging companies who are or destroying our public property.

Every crime imaginable to the human race is described in the Criminal Code with remedies that can and perhaps should be applied for the offence described. Except for the charge of Contempt of Court. Contempt of Court seems to be left solely to the purview of individual judges. This means that the protester who just by appearing in the courtroom under the charge of disobeying an injunction in a logging dispute, has just been stripped of his or her legal right to equality of due process of the law, i.e., to be treated or punished as all other law breakers are treated and punished or declared innocent, as defined by the Criminal Code. 

The logging companies claim the provincial government has given them the right to consider the appointed logging area at Fairy Creek as their private property for the length of their tenure. The public in large part says no, the logging companies are at best renters, bad ones at that. The matter is settled when an individual judge decides to sign an injunction that protects the company and locks out the public and First Nations that are affected. The protesters who use civil disobedience will be arrested and in due course, charged with Contempt of Court. When brought before the court they will stand there, already condemned, because they stand unprotected by the law of the land – The Criminal Code. 

So it is futile to blame the logging companies. Logging companies do what any business does to survive and grow; they take advantage of opportunities such as the current incredible price rise for lumber in the world. Private property is what capitalism is founded on and the logging companies have found a sure-fire way to make public property into their own private property. The tree farm license they have received from the governments makes this bargain. The companies will pay a few cents on the trees cut and then they can do what they like (pretty much) with their newly negotiated private property. The logging companies know very well that they are protected by the Justices of British Columbia. The judges. The ones who give out the injunctions that will tell the public they are trespassing on private property when they seek to preserve public property by civil disobedience.

This knowledge has been gleaned from my own experience of weeks, months, years of dealing with trying to convince BC judges that their use of injunction in in environmental disputes is unjust, unequal, immoral, with disgustingly predicable outcomes that degrades public trust. But I have been thinking there are other ways to consider the problem. The Fairy Creek arrestees are already pinpointing provincial politicians for their part in ignoring the issue. I hope they don’t forget to also look at the provincial police chiefs and the BC Attorney General. These two agencies also have serious responsibility to stop the looting of the last of our forests.  How do these two agencies factor in the unleashing the brooding monsters of court injunctions?  Next time.