Teal Cedar Products Ltd. v. Rainforest Flying Squad

2022 BCSC 2045 Teal Cedar Products Ltd. v. Rainforest Flying Squad IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Teal Cedar Products Ltd. v. Rainforest Flying Squad, 2022 BCSC 2045 Date: 20221004 Docket: S211602 Registry: Vancouver Between: Teal Cedar Products Ltd. Plaintiff And Unknown Persons operating as the "Rainforest Flying Squad", Robert Arbess (also known as Reuben Garbanzo), John Doe, Jane Doe, and Persons Unknown Defendants And British Columbia (Ministry of Forests, Lands, Natural Resource Operations and Rural Development) Third Party Before: The Honourable Justice Thompson Oral Reasons for Judgment re Amalia Buttemer Counsel for the Crown: M. Crisp R. Watmough Counsel for the Alleged Contemnor: D. Lovatt Place and Date of Trial: Nanaimo, B.C. September 16, 2022 Place and Date of Judgment: Nanaimo, B.C. October 4, 2022 [1] THE COURT: Amalia Buttemer faces a charge of criminal contempt of this Court's injunction order pronounced on 1 April 2021. In particular, she is alleged to have defied or disobeyed, in a public way, term 1(a) of the order: [T]he Defendants and anyone having knowledge of the Court's order, are restrained, enjoined and prohibited from: (a) impeding, physically obstructing, or in any way interfering with any person, including any member of the public, from gaining access to or egress from, or otherwise making use of any road situate within the [defined injunction area]. At the time of her arrest on 12 July 2021, Ms. Buttemer was standing on a road in the injunction area with other protestors. She is not a defendant in this action. The Crown's case is that she is a person "having knowledge of the Court's order." [2] The Crown's case consists of a certified copy of the injunction order, a statement of agreed facts, a police video recording, and the evidence of Constable Belhumeur, one of the police officers present at Ms. Buttemer's arrest. At the close of the Crown's case, Ms. Buttemer elected to testify. [3] This case is unlike so many of the other contempt cases arising out of this injunction. The injunction was made necessary principally because of roadblocking activity and the more usual event has the police confronting protestors who are quite obviously intent on interfering with use of a road. Often, they are using devices like "sleeping dragons" to make it more difficult to remove them, and these devices are usually fixed in some way to the roadway. Many cases feature the use of logs or other material as barricades; in some cases the roads have been trenched; in other cases tripods or other elaborate structures have been used, again for the purpose of making extraction difficult and time consuming. In all these more usual cases the blockading purpose of the activity is manifest. [4] This is a very different case because the protestors were not in the injunction area to block the road. They had a different purpose. Ms. Buttemer was a credible witness. She explained that she was with a group protesting the RCMP blocking the road as part of their establishment of an exclusion zone in the injunction area. The group of protestors were at an RCMP access control point and there were initially between six and ten police officers present. (At the time of this 12 July 2021 protest there was an application on foot to argue the legality of these police blockades. The application was heard on 14 and 15 July 2021, and decided on 20 July 2021. I ruled that the injunction order clearly accords the public the right of access to roads in the injunction area and that the broad exclusion zones and associated access control points established by the RCMP as part of their strategy to enforce the injunction are unlawful: Teal Cedar Products Ltd. v. Rainforest Flying Squad, 2021 BCSC 1554.) [5] The protestors in the case at bar walked past the RCMP access control point and some distance into the exclusion zone. The police officers at the access control point were not inclined to discuss the exclusion zone issues with the protestors, and suggested the protestors should speak to liaison officers. About 10 minutes after the protestors moved into the exclusion zone, the liaison officers arrived. The group had a conference on the road with one of the liaison officers and, shortly after this conference, Ms. Buttemer and another protestor were arrested. [6] The police-recorded video evidence begins showing events around the time that the conference with the liaison officer finished. The video shows a group of police officers newly arriving to the scene. Six of these officers formed a line approximately ten metres away from the six or seven protestors who were on the road. Two liaison officers stepped away from the group of protestors and for a few seconds appeared to be in conversation with one or two members of the newly formed police line. (The liaison officers are identified in the video evidence by their gray shirts marked with the words "Police" and "Division Liaison Team.") [7] At this time, Staff Sergeant Charney stepped through the police line and stood facing the protestors at a distance of about six metres. After introducing himself, he immediately began reading from a script: There is a civil injunction order in place issued by the Honourable Mr. Justice Verhoeven of the British Columbia Supreme Court. Be informed by you blockading this road and preventing Teal Cedar and their contractors from conducting their operations, you have breached that injunction order. Either you step aside and remove the blockade or you will be arrested for civil contempt of court. By not stepping aside, you confirm you understand your jeopardy. Are you willing to leave? I will return to the manner in which S/Sgt. Charney read this script later in these reasons. [8] After the script was read, the next 15 seconds are taken up with some of the protestors arguing with S/Sgt. Charney about the terms of the injunction. There were then two arrests at his direction. The first was 15 seconds after S/Sgt. Charney finished reading his script, and the second, the arrest of Ms. Buttemer, five seconds later. Just before her arrest, she said, "But the injunction says if you " and about five seconds after she was taken into custody, she said, "I just ". These words around the time of her arrest, and her demeanour in the video - including the look on her face after her arrest - corroborate the gist of her evidence that she was in a state of some confusion when arrested. Immediately after the arrest, the police herded the remaining group of approximately 12 to 15 protestors down the road a distance and behind the RCMP access control point. [9] The injunction prohibits impeding, physically obstructing or interfering with any member of the public's use of a road in the injunction area. The injunction does not prohibit public use of the roads; in fact, the injunction is designed to protect the public's right to use the roads and protect the right to peaceful, lawful, and safe protest. I agree with Mr. Lovatt that Ms. Buttemer and the other members of this group were entitled to be on this road. They were there for a legitimate purpose: to exercise their right to protest the establishment of exclusion zones by the police. In furtherance of their lawful interests, they were attempting to speak on this issue to members of the police at an access control point. They were told by those officers to speak to liaison officers. They waited for liaison officers to arrive, and were in the midst of this conversation when the group of approximately 20 officers under S/Sgt. Charney's direction arrived in about ten police vehicles. [10] After viewing the entire video, I conclude that the police convoy of vehicles parked a considerable distance up the road from where the arrests occurred. They were evidently parked somewhere before the access control point that the protestors were later herded behind. My impression from the video is that the access control point was perhaps 100 or 200 metres up the road from where the arrests were made. The evidence does not disclose whether the access control point and the area beyond it where the police convoy parked was visible from where the arrests were made. [11] Cst. Belhumeur testified that she was a passenger in the midst of the police vehicle convoy. The police orders for the day were to continue enforcing the injunction. She had been told that their destination was a command post beyond where the convoy came to a stop. (This narrative evidence is, of course, not admissible for the purpose of establishing the convoy's intended destination.) She testified that the arrest happened about five minutes after her vehicle was stopped. She and others were ordered to form a line, "then S/Sgt. Charney enforced the injunction." She was not the officer that arrested Ms. Buttemer, but was given the task of escorting her to a police vehicle and fulfilling s. 10 Charter requirements. [12] Ms. Buttemer testified that she thought she was being arrested for being inside the exclusion zone. I believe her, notwithstanding the content of the script that S/Sgt. Charney read. Ms. Buttemer was there to protest the exclusion zone. She crossed the police access control point and was a fair distance inside the exclusion zone. She was engaged in discussions with a liaison officer who had been summoned by police for this conversation. I accept her evidence that she was engaged in listening to the liaison officer. So, even if the convoy of police vehicles was visible from where she was - and the evidence does not establish that it was - she did not notice its arrival. [13] In this context, if the police wished to interrupt Ms. Buttemer's lawful use of the road, it was incumbent on them to let her know that her presence on the road was interfering with others' intended use. Ms. Buttemer was not attached to a sleeping dragon or in a trench or atop a tripod or even part of a line of persons manifestly trying to block access. In those circumstances, it is sufficient to bring the relevant terms of the injunction to the attention of a blockader and, having fixed them with knowledge of the injunction, put them to a prompt decision whether to comply with its terms. [14] The circumstances of this case are entirely different. A group of people were engaged in a lawful, peaceful, and safe protest of a questionable police blockade of a road in the injunction area. They were engaged in respectful discussions with police representatives on this issue. These discussions took place on the roadway, but, as Ms. Buttemer testified, if the liaison officers decided to speak with them off to the side of the road instead of on the road, she and the others would not have been on the road. [15] This is the situation into which S/Sgt. Charney inserted his newly arrived group of officers. Without any discussion with the group of protestors, which might have shed light on whether the group was intent on interfering with others' use of the road, S/Sgt. Charney blurted out the police's short injunction script. I use the word "blurted" advisedly. S/Sgt. Charney was speaking very quickly as if carrying out a purely pro forma exercise, as opposed to making a good-faith effort to transmit knowledge of the terms of the Court's order. [16] Within 20 seconds after S/Sgt. Charney finished his pressured delivery of this short speech, Ms. Buttemer was arrested. She testified that she was not blocking the road: she was there to object to the police blocking the road. She conceded that she knew that if she did not stand aside she would be arrested, but the gist of her evidence, which I accept, is that she was not given time to process what she had just been told by S/Sgt. Charney. And, it makes sense that she would want to understand what had just been relayed to her in rapid-fire manner, and then consider whether what she was doing amounted to a contravention of the court order. This was especially so in the context of why Ms. Buttemer was there: i.e., not to block the road but to protest the blocking of the road by the police. [17] I conclude that there was nothing in the evidence that indicates that Ms. Buttemer should have concluded that she was interfering with others' use of the road up until S/Sgt. Charney read the script. Taking account of the time it would reasonably take for Ms. Buttemer to come to grips with what S/Sgt. Charney said, given the manner of its delivery, and in the context of the facts of this case, I find that if Ms. Buttemer was in fact blocking the road, it was at most for a few seconds, and if she was in fact blocking the road it was not out of defiance or disobedience. [18] Recall that just before and during her arrest, she expressed some uncertainty over the terms of the injunction: "But the injunction says if you ". This is consistent with her trying to process what she had been told and being in the process of deciding what to do. In the seconds after arrest, she says, "I just " - again, this is consistent with her evidence that she was arrested before being given a chance to make a decision. This is clearly not a case where it can fairly be said that she made a deliberate decision to interfere with others' use of the road. Ms. Buttemer was arrested nearly instantaneously after learning that her lawful protest was interfering with the use of the road. At the time of her arrest, I find that she had not yet digested what she had been told about the material term of the court order, and had not at that point either defied or disobeyed it. [19] Proof is required of defiance or disobedience of term 1(a) of the injunction order. The additional elements of the offence of criminal contempt require proof that the alleged contemnor's defiance or disobedience was carried out in a public way, and with the intent, knowledge, or recklessness as to the fact that the public disobedience would tend to depreciate the authority of the Court: United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901 at 933. Of course, the Crown is required to prove each element of the offence beyond reasonable doubt, and the burden of proof remains on the Crown throughout. [20] I agree with the Crown's submission that despite dicta in United Nurses that the gravamen of this species of criminal contempt includes "continuous" violation of a court order, actions of short duration - even if they last a few minutes or less, or can be characterized as token or symbolic - are capable of grounding a contempt of court finding: MacMillan Bloedel Limited v. Simpson (1993), 21 W.C.B. (2d) 412 at para. 16 (B.C.S.C.); MacMillan Bloedel Limited v. Simpson, 1994 CanLII 2149 (B.C.S.C.). The Crown cites this passage from MacMillan Bloedel Limited v. Simpson, [1994] B.C.J. No. 580 at para. 39, a decision of Mr. Justice R.R. Holmes: The accused all argue their conduct was not continuous. They say it occurred on only one day, was of short duration, lasting only a few minutes before they were arrested and removed. They overlook, however, the basic effect of their conduct. They clearly would not have given up the blockage of the roadway without arrest. They intended a continuing blockage of the roadway to use by the plaintiff, risked arrest by doing so, and only by arrest was the intended continuity broken. [Emphasis added.] [21] Another Clayoquot case provides an example of what has been found to be defiance or disobedience of this type of court order, MacMillan Bloedel Limited v. Simpson, 1994 CanLII 2974, Mr. Justice Lowry (then of this court) described the contemnors' conduct: In my view, there is no doubt that the defendants knew they were physically obstructing the access leading to the plaintiff's operating areas. They intended to do so. They were asked to move so the plaintiff could go to work and they refused. It matters not whether there were trees to be cut on any one of the three days in any of the watersheds. There is no doubt about the conduct that was enjoined and no doubt that the defendants knew they were breaching a court order. Indeed, they were told they were breaching a court order before it was read to them. They were told again when they were arrested and could, even then, have avoided the arrest being carried to completion if they had moved off the road. But, without asking any questions, they chose to maintain their defiance. The absence of any direct evidence that they knew the names of the watersheds is of no consequence. Their conduct was simply not that of people who did not know they were doing what they had been ordered not to do. Without more, I consider that the breach of the order has been proven. [Emphasis removed from original text.] [22] In MacMillan Bloedel Ltd. v. Simpson (1994), 90 B.C.L.R. (2d) 24 (C.A.) at para. 25, there is an indication that the "deliberate decision" to continue an action contrary to court order demonstrated the recklessness necessary in that case to prove the mens rea component of the offence: Mr. Orris contended that the purpose of the Defendants in this case was not to depreciate the authority of the court, but rather to make an important environmental statement. With respect, that is indeed what happened, but it was the deliberate decision to do that after the order was read, and after a policeman asked them to move off the road, that demonstrates recklessness about all other interests including the court. With respect, Mr. Orris asks us to delete "recklessness" from the test, and to treat the case as one where the Defendants must be shown to have known that their disobedience would depreciate the authority of the court. [Emphasis in original text.] Further along in the Court of Appeal's reasons, at paras. 31-32, Chief Justice McEachern quotes and upholds the findings of the trial judge on the subject of whether the actions were "continuous": The trial judge made specific findings on these elements of criminal contempt. He said: I take it that the word "continuous" is equivalent to something more than a momentary or trivial act of disobedience. Similarly, the word flagrant means an act done in an inflammatory way. Hence, criminal contempt involves conduct that is more than momentary or trivial and amounts to inflammatory behaviour designed to lessen the public's respect for the court. There was ample evidence to support these findings. Having regard to all the circumstances, particularly the deliberateness of the conduct of the Defendants and the opportunities they were given to avoid arrest, I have no hesitation agreeing with the trial judge that there was open, continuous and flagrant violations of the orders of the court by the Defendants. [Emphasis added.] [23] The case at bar stands in marked contrast to these Clayoquot cases where protestors made deliberate decisions to continue defiant actions. I repeat what I said earlier in these reasons: Ms. Buttemer was entitled to be on the road, and entitled to continue her lawful protest on the road, up until a point when she ought to have understood that she was interfering with other traffic. Returning to some of the phrases in the Clayoquot cases that I have just referred to, Ms. Buttemer is not a person who "clearly would not have given up the blockage of the roadway without arrest" or "intended a continuing blockage of the roadway," or that "there was no doubt [she] knew [she was] breaching a court order" or was "maintaining her defiance" or is a person who had made a "deliberate decision." [24] As I have said, the facts in this case are not only very different from these Clayoquot cases but also very different than the many apparent contraventions of the April 2021 injunction order, i.e. those cases where police came across persons clearly intent on blocking a road in the injunction area. I appreciate that there is no need for other traffic to be present to establish interference with use of the road in such circumstances. Specifically, the authorities make it clear that workers being present is not a condition for a contempt finding in a roadblocking case: see, for example, Trans Mountain Pipeline ULC v. Mivasair, 2020 BCCA 385 at para. 14. In the case at bar, if the convoy of police vehicles or any other vehicle had come up to where these protestors were standing on the road and Ms. Buttemer did not stand aside to let others use the road, this would be an entirely different case. This is not what happened. This group of people, including Ms. Buttemer, were lawfully using the road. [25] S/Sgt. Charney, or a superior officer instructing him, may have assumed that the Buttemer group were intent on interfering with use of the road by others, but I very much doubt that they were. After all, the group was there to protest the fact that the police were blocking the road. Alternatively, perhaps S/Sgt. Charney, or a superior officer instructing him, was under the mistaken impression that protestors were not allowed to be on roads in the injunction area. In any event, rather than telling the Buttemer group that they would have to interrupt their protest to allow the police vehicles to pass (if indeed the convoy's destination was down the road as opposed to the location of this protest), S/Sgt. Charney jumped the gun, embarked on a rapid-fire reading of a summary of the injunction, and almost immediately began directing arrests. [26] Returning to the elements of the offence of criminal contempt, I conclude the Crown has not proven that Ms. Buttemer's actions constituted interference with use of the roadway or were defiant or disobedient of the court order. [27] I am grateful to counsel for their able submissions on all issues, some of which I have found unnecessary to address given my conclusions. [28] CNSL M. CRISP: Thank you. [29] THE COURT: You are free to go, Ms. Buttemer. [30] AMALIA BUTTEMER: Thank you. "Thompson J."