One acquittal could affect dozens more accused at Fairy Creek

The BC Court of Appeal is about halfway through hearing the roughly 400 cases of criminal contempt that came out of the 2021 Fairy Creek protests. Dozens of people have pleaded guilty and been sentenced to a few days in jail or community service hours. Some have gone to trial after pleading not guilty, and a handful have been acquitted.

But one acquittal may have just set a precedent for almost all of the remaining cases.

Ryan Henderson was facing up to 15 days in jail, but was acquitted on Feb. 8 when Justice Douglas Thompson ruled that the RCMP had failed to adequately inform Henderson of the terms of the injunction at the time of the arrest.

Instead of handing Henderson a copy, or reading the injunction’s terms in full, officers read from a script that, in Justice Thompson’s conclusion, did not accurately reflect the court’s order. Henderson’s lawyer argued that without proof the accused knew they were in violation of a court order, they can’t be convicted of contempt. The judge agreed.

The RCMP used that same script on hundreds of other people they arrested. If it didn’t pass the legal test for Henderson, the Crown may be facing another several dozen acquittals.

Sleeping dragon at dawn

The story at the heart of Henderson’s trial starts just before dawn on Oct. 20, 2021, after they ascended a hard block made of two tripods on a logging road near the Fairy Creek watershed. Balanced across the tops of the rudimentary tripods was a crossbeam where Henderson settled into a sleeping dragon—a tactic developed by the Fairy Creek protestors where a person is physically locked into a structure. They can release themselves at any time, but cannot easily be forcibly removed.

In this case Henderson had locked one hand inside a black cemented PVC pipe. Perched about 20 feet off the ground, they waited.

More than 1,000 people had been arrested for civil disobedience in the six months police had been enforcing Teal Cedar’s injunction order. Camps that had been established for over a year had been raided, and police were starting to destroy and remove supplies instead of just arresting and removing people.

Henderson is a 20-year-old Anishinaabe person living in Vernon, who uses the gender-neutral pronoun, they. It was Henderson’s first time at Fairy Creek, though they’d been following the news all year and was eager to support the land defenders.

Early that morning, Henderson waited for the RCMP to arrive, knowing they’d be removed from the hard block and arrested.

“The day before, I had woken up to the RCMP really, really hurting this one girl that they were taking out of a block. I woke up to screams and cries for help because they were literally like dislocating her wrist trying to pull her out of the ground. It was very hard to actually see the force that the police were using against these people. They weren't nice at all. They had absolutely no sympathy or anything for the protesters that were there,” Henderson said.

“So I was really scared when I was getting extracted that something like that was going to happen to me too, that I was going to get hurt by the police.”

This allegation of violence was not tried in court. Several incidents of alleged violence by police have been reported on, including this story of an officer who resigned from the task force over its tactics, and Capital Daily’s analysis of a pepper spray incident. Throughout the enforcement, several protesters claim to have been injured by police.

It took the rescue crew two hours to remove Henderson from the sleeping dragon and hard block. One officer picked away at the cement while another one tied Henderson into a harness to be lowered to the ground. Two hours of tugging and pulling, and variations of good cop bad cop, but Henderson said the worst part was when one officer threatened to cut the inner threads of their traditional drum.

“I was so upset by that, because I am protesting to preserve the Indigenous land, and at that very moment somebody else threatened my heritage even more,” Henderson recalled, more than a year later.

“I have never felt so threatened in my life. And all I was trying to do was stand up for the things that I love. Same with the thousands of other people that were there doing the exact same thing. And all [the RCMP] were doing was threatening us and harming us for trying to fight for the things that we believe in.”

Officers loaded Henderson into a vehicle and took them to Lake Cowichan, where another Fairy Creek volunteer was waiting to drive the arrestees back to camp. Henderson stayed another night at a camp on the roadside, but by then so much of the established camps had been destroyed and so many protesters had been arrested and told not to return, that efforts to physically prevent logging were fizzling out. By December, hardly anyone was left in the backwoods.

The fight, they said, was transferring to the cities and courts. That’s where Henderson had their next round with the RCMP, and won.

RCMP’s paragraph was not enough to prove that the accused knew about the core terms of the injunction

Henderson’s wasn’t the first case defence lawyers had argued against the RCMP’s script. The group of 15 lawyers have been sharing notes and strategizing on their defence since trials began last summer. A silver lining to so many similar cases is that they’ve been able to refine the argument from one case to the next.

This time, it worked.

Lawyers Ben Isitt and Noah Ross were able to articulate that “if the RCMP doesn't personally serve someone with a copy of the injunction, they need to read them the material terms of the injunction, not just notify them that they're committing an offence,” Ross said.

(Isitt’s name might sound familiar because he was a Victoria city councillor until losing a reelection bid this fall, shortly after being called to the bar.)

They also pointed out problems with the script itself. The script read to the vast majority of protesters included this sentence: ”Be informed, by you blockading this roadway and preventing Teal Cedar and their contractors from conducting their operations, you are in breach of that injunction order.”

But the injunction order actually prohibits “impeding, physically obstructing, or in any way interfering,” which defence lawyers argued was not the same thing as blockading and preventing.

Justice Thompson agreed, and wrote in his decision that, “Every road blockade impedes, obstructs, or interferes with use of the road, but not every act of impeding, obstructing, or interference is necessarily ‘blockading.’”

“Ryan made admissions about being present on the road, and made admissions that were necessary to satisfy the other elements of the offence, so the trial was run on the issue of whether the injunction script was sufficient,” Isitt said. “Even though they admitted being on the road, since the crown couldn't prove that they had proper knowledge of the court order, there was no way to convict.”

The vast majority of the 190 outstanding cases in the Fairy Creek contempt proceedings relied on the same injunction script, the lawyers said.

The potential precedent is so significant that even when an accused tried to plead guilty the day after Henderson’s trial concluded, the judge would not accept the plea.

According to Isitt, the judge wouldn’t accept a guilty plea that relied on the same injunction script while Justice Thompson’s decision was pending.

“At that point, we knew we had really gotten traction in the trial.”

Since then, no other Fairy Creek contempt cases have been heard, and Crown counsel is adjourning its cases to April to “further review the court’s recent ruling in this proceeding while next steps are being considered,” the BC Prosecution Service said in an emailed statement.

According to Ross, Crown counsel is considering appealing the decision, but that will be a high bar to reach, because there is no right to appeal to the Court of Appeal on acquittals for contempt charges. Crown would have to appeal to the Supreme Court of Canada, where he said appeals are often refused.

Justice Thompson is the main judge assigned to the Fairy Creek contempt cases. So without an appeal to his finding in Henderson’s case, he will need to make similar conclusions for the other similar cases, Ross said.

They stopped logging for one day, but could have a far greater impact at court

Henderson was prepared to be sentenced, just as they were prepared to be arrested. They knew they were risking jail time by pleading not guilty and going to trial.

Crown counsel had asked for 15 days, more than the 10 it would have asked for if Henderson had pleaded guilty. But it was important to the Indigenous activist to do what they could to help the rest. They knew this argument had been tried before, and believed there was a chance it could work this time.

From their home in Vernon shortly after being acquitted, Henderson talked about using their voice for good. ”I want to use my voice as much as I can to impact as many people as I can because that's the most important thing that I can do,” they said.

Henderson’s day in the sleeping dragon only managed to stop logging for one day; logging resumed up Granite Main not long after their arrest. But in court, Henderson’s voice has the potential to acquit the majority of 190 outstanding contempt cases.