Three years after wrongful arrest, RCMP will apologize to Fairy Creek hiker

Brian Smallshaw is still waiting for an apology from RCMP for his wrongful arrest near Fairy Creek logging protests. But the historian from Salt Spring is satisfied with the results of an RCMP Civilian Review and Complaints Commission investigation, released in its entirety this week, that found officers were out of line when they arrested him for ‘obstructing a peace officer’ three years ago.

A copy of this report was shared with Canada’s National Observer on Tuesday, and in an interview Smallshaw recalled his reasons for hiking up to the RCMP-established checkpoint with his three friends. 

The self-described “old folks” had been participating on the periphery of protests against old-growth logging at Fairy Creek since late 2020, bringing supplies like firewood and dry clothing to support those camped on Granite Main Road.

While visiting the campsite for a couple of nights at a time, Smallshaw said, “I saw the RCMP doing things that were patently unsafe and putting the safety of protesters in jeopardy,” like using a backhoe to pull a protester out of their tripod perch. 

“It was like the enforcement of this injunction was punishment…they were doing whatever they could to discourage legal protest,” Smallshaw said.

So, when the RCMP’s Community-Industry Response Group (C-IRG) set up checkpoints to enforce the B.C. Supreme Court injunction against old-growth protesters, Smallshaw decided to contest it by trying to get past the roadblock without presenting his identification or letting police search his bag.

Smallshaw was eventually arrested for “obstructing a peace officer in the execution of their duty,” and driven to Port Renfrew before he was released. Soon after, he filed a complaint with the RCMP’s Civilian Review and Complaints Commission (CRCC) alleging unlawful behaviour by the officers during the arrest. 

“​​What I was arrested for… I thought, was a Charter violation, because this was a checkpoint that was set up by the RCMP to check the ID and the contents of bags of anybody crossing through that checkpoint, regardless of whether or not the RCMP had any actual suspicions that they were doing anything illegal,” Smallshaw said. 

A video of the arrest taken by Smallshaw’s friend was, he believes, “essential” evidence for the CRCC to conclude, three years later, that he was right. 

The commission found that C-IRG officers did not have the grounds to arrest Smallshaw, that his arrest “raises serious questions” about police training and attitudes, and the RCMP’s initial investigation of complaints about the incident was not satisfactory. 

The commission’s full 172-page report released this week reveals that Smallshaw’s case is one of “multiple public complaints” about C-IRG’s conduct at the Fairy Creek blockades in 2020 and 2021 now evaluated by the civilian complaints review body. 

“In every subsequent case where the complainant was affected by an access control point and exclusion zone, the Commission has found that the RCMP C-IRG acted unreasonably in claiming the authority to exercise these invasive police powers,” reads the report. 

“Indeed, the RCMP C-IRG has repeatedly acted in a way that is contrary to the jurisprudence and to the rule of law.”

These public complaints, like Smallshaw’s, are separate from a wider CRCC investigation of C-IRG that began in March 2023 and is still ongoing. The unit was reprimanded by the B.C. Supreme Court for blocking journalists’ access to arrest sites at Fairy Creek. Its officers’ behaviour at Fairy Creek also prompted widespread condemnation, including from an officer who resigned from the unit. 

“I’m hoping that this leads to some kind of real change, I mean that’s why I did it,” Smallshaw said, discussing his decision to contest the impunity with which RCMP acted toward protesters at Fairy Creek. 

“I’m glad that the CRCC are taking a bigger view of this — that it's not just individual cases, that there is some kind of systemic problem here.”

‘You’re not going to win the argument’

While Smallshaw was arrested after refusing to provide his ID and consent to a search, the two officers at the checkpoint — Constables Edwards and Eccleston — had taken off their name tags and refused to identify themselves to Smallshaw and his friends despite being repeatedly asked. 

“Who says that we’re supposed to have them?,” Constable Eccleston said when asked by the hikers about their lack of name tags, according to the video quoted in the commission’s report. “You’re not going to win the argument and we’re not going to debate about it. It’s the end of the story.”

The officers’ “dismissive” and “hostile” tone when questioned about this and a ‘Thin Blue Line’ patch sported by one of them are noted in the report. The report also shares that a body camera worn by one officer was turned off until after Smallshaw’s arrest. 

“They pointed it out in the report [that police] were arresting me for obstruction within their exclusion zone, but where they actually arrested me was outside the exclusion zone because I hadn’t gone through the checkpoint,” Smallshaw said. 

The commission, after examining case law, found that the RCMP had no grounds for arresting Smallshaw for “obstruction of a peace officer,” noting that Smallshaw “did not obstruct the RCMP members” and “was arrested because he would not leave an area that was outside the exclusion zone.” When Smallshaw filed a CRCC complaint about his arrest, he was surprised to find it was first sent to the RCMP themselves. RCMP Chief Superintendent Steven Ing responded to Smallshaw’s complaint after one year and refuted his allegations, finding that the two officers were “acting within their legal authority.” 

This was not uncommon. A CBC report last year found that the RCMP had dismissed 86 per cent of the civilian complaints filed against C-IRG officers at Fairy Creek. 

But Smallshaw pushed back.

“I went through the RCMP report point by point, refuting what they said and adding what information I could. Then, when I sent that to the CRCC, they immediately responded that they would conduct a review of it,” he said.

Also included in the report is the RCMP’s vow to heed the commission’s recommendations: to develop new national guidance for the enforcement of civil injunctions, give the two officers in question additional training about the grounds for arresting someone for obstructing a peace officer, and outline consequences for not wearing a name tag. 

The report also states that “an appropriate member of the RCMP” will apologize to Smallshaw for obstructing his civil liberties. It’s an apology he’s still waiting for.