CBC
Tue, September 24, 2024
Brian Smallshaw speaks with officers before his arrest at Fairy Creek in 2021. (Tom Mitchell - image credit)
A British Columbia man is speaking out after the RCMP watchdog chastised a controversial unit for its "frequent unreasonable actions" at Fairy Creek in 2021.
Brian Smallshaw, a web developer and historian from Salt Spring Island, said he suspected the force was breaking the law and breaching rights when arresting activists during protests against old-growth logging on Vancouver Island.
But now that the Civilian Review and Complaints Commission has upheld his allegations, he knows it.
In a scathing report completed last month, the commission found the Mounties wrongfully arrested Smallshaw while he was hiking three years ago when he wouldn't submit to a search he considered unconstitutional.
The company that owns the logging rights in the contested area, Teal-Jones Group, was granted an injunction in B.C. Supreme Court prohibiting protesters from blocking access to roads and company activity.
The report harshly criticizes the RCMP's Community-Industry Response Group (C-IRG) for using legally unjustified, "disproportionately intrusive" methods when enforcing that injunction.
"The commission is concerned about similarly broad and intrusive strategies being implemented during future protests, leading to similarly unreasonable searches and arrests," says the report.
Smallshaw is led away in cuffs on September 7, 2021.
Smallshaw is led away in cuffs on September 7, 2021. (Tom Mitchell)
The report, which Smallshaw agreed to share in full with CBC Indigenous, says the complaints commission made similar findings about C-IRG in three subsequent reviews, which are not yet public.
"Indeed, the RCMP C-IRG has repeatedly acted in a way that is contrary to the jurisprudence and to the rule of law," reads the report.
C-IRG was established in 2017 to deal with anticipated Indigenous-led protests against resource extraction projects, namely the Trans Mountain pipeline expansion and Coastal GasLink pipeline, its founding documents show.
The same unit faces abuse of process proceedings launched by First Nations activists who allege the unit violated their Charter rights during the Coastal GasLink pipeline dispute in northern B.C.
The evidence there includes recordings of Mounties mocking activists arrested at Wet'suwet'en-led blockades as "orcs" and "ogre" and laughing while discussing beating a man and twisting his genitals during one arrest.
Smallshaw said he became determined to challenge C-IRG's exclusion zone practices after observing what he considered disturbing and heavy-handed police tactics.
His historical research has examined the internment and dispossession of Japanese Canadians during the Second World War and looked at the ways governments have used the law against different groups of people, Smallshaw said.
"I think we really have to be vigilant with governments and police agencies to know what they're doing, watch what they're doing, and be concerned when they start to overstep their bounds," he said.
'A recipe for a police state'
The review found two Mounties tried to subject Smallshaw to an intrusive search to enter an exclusion zone that was overly broad, then groundlessly arrested him and released him without charges.
The watchdog agency cites leading court decisions that warn it "is a recipe for a police state, not a free and democratic society" when police use intrusive powers as a first resort to prevent rather than investigate crime.
The arresting officers were "perfunctory, grudging, and dismissive" when asked why they removed their name tags, which they were ordered to do at Fairy Creek, a policy the commission says hinders police accountability.
"The public might fear that police officers who cannot be identified will act with impunity," the review says.
The commission concluded this policy was unreasonable and also found one officer acted unreasonably when wearing a "Thin Blue Line" patch on his uniform, contrary to RCMP policy.
"The arrest raises serious questions about the quality of the training given to RCMP members acting to enforce the injunction, and about the attitudes of the individual police officers on the ground towards the rule of law and civil liberties," says the report.
In a statement, the RCMP said it values independent reviews and welcomes commission findings and recommendations at the conclusion of its investigations. The RCMP agreed with the recommendations, including that someone should apologize to Smallshaw.
'Carte blanche'
David Milward, a law professor at the University of Victoria and member of the Beardy's and Okemasis Cree Nation in Saskatchewan, said the commission's concerns are justified.
When you have exclusion zones of enormous size and infinite duration, strategically designed to cut off access by as many protesters as possible, "that starts to raise problems for the rule of law, when you just give the RCMP that kind of carte blanche," Milward said.
He suggested the Smallshaw report should serve as a reminder that limits on police powers are necessary to preserve democracy.
"If you're too condoning towards police conduct that runs roughshod over civil liberties and everything else, you run the risk of losing what you took for granted," he said.
The law professor previously reviewed C-IRG's founding documents, which CBC Indigenous obtained under access to information law.
At that time, Milward called the unit's focus on information collection and monitoring of Indigenous activism "a pretty scary dive off the slope to preventative repression, but it's targeted specifically towards Indigenous peoples."
The commission's latest review reinforces his initial view, he said.
For his part, Smallshaw said he is mostly satisfied with the commission's findings but saw a shortcoming in the lack of criticism for senior officers who greenlit the operation and drew up the policies.
The commission is doing a systemic investigation of C-IRG's operations that may cover those issues.
The unit was rebranded as the Critical Response Unit (CRU-BC) in April
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