RCMP has no national policy on policing media at protest sites: FOI

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The RCMP says it has no clear-cut policy on how to handle journalists when Mounties are breaking up protests such as those at remote resource sites, despite court decisions guiding the need to respect the freedom of Canada’s press in these tense situations.

A freedom-of-information request filed after the November, 2021, arrest of photojournalist Amber Bracken at the Wet’suwet’en pipeline standoff in northern B.C., was recently returned by the federal police force with the acknowledgment that it did not have a protocol on this issue.

“Please note that after a careful review of our records, the RCMP does not have any specific policy or documents as it relates to journalists,” the force said in its June response.

When asked if a media policy had since been created, the force did not respond. Instead, RCMP spokespeople sent a statement saying its “protocols and procedures” reflect the latest jurisprudence on press freedom and that it expects media to identify themselves as soon as possible.

Mounties are obligated to ensure journalists “have fair and safe access to observe and report,” said the statement sent by Marie-Eve Breton.

In recent years, the RCMP has sent hundreds of its members to enforce injunctions sought by industry against protesters in several remote corners of the country, from forestry blockades like the one at Fairy Creek on Vancouver Island to fisheries protests on the East Coast.

Earlier this year, the RCMP’s civilian oversight review body responded to hundreds of public complaints by opening a probe into the Mounties’ handling of years of protests against large-scale pipeline and logging projects at B.C. sites, such as those in traditional Wet’suwet’en territory.

At least two court cases and an internal memo from a lawyer advising the B.C. RCMP have laid out the rights of reporters and photojournalists to cover these protests. But, in the absence of a clear policy on how to handle media at protests, front-line Mounties must rely on their discretion in these situations, leading to the inconsistent treatment of journalists, said Michael Boudreau, a criminology professor at St. Thomas University in Fredericton.

“The RCMP is very protective of their image and reputation, which they have spent years finely crafting,” said Dr. Boudreau.

“Whether it was the APEC summit at UBC in 1997, Rexton, N.B., in 2013 over fracking, which involved Indigenous peoples, or the more recent protests in the B.C. Interior over building a gas pipeline or access to natural resources on Indigenous land – all of which involved the use of force – the Mounties appear overly aggressive, which tarnishes their image and reputation.”

Brent Jolly, president of the Canadian Association of Journalists (CAJ), said it is disheartening that the RCMP does not appear to be taking proactive steps to help its front-line officers avoid trampling on the constitutional rights of journalists, which he says has happened numerous times in recent years as reporters are arrested or removed during these crises.

“We keep seeing this stuff happen over and over again,” he said. “It just creates secrecy: Journalists are the eyes and ears of the public.”

The RCMP’s freedom-of-information response was sent in June to Ottawa-based researcher Ken Rubin, who shared it with The Globe and Mail. The documents indicate that the B.C. division of the RCMP received some guidance on the matter at least three years ago based on a landmark 2019 Newfoundland Court of Appeal decision, which vindicated reporter Justin Brake for following protesters as they broke into a multibillion-dollar hydroelectric project in Labrador.

That ruling stated that judges should consider whether a journalist is engaged in good-faith news gathering; actively assisting, participating with or advocating for protesters; aiding or abetting them in their actions or in breaching any court orders; obstructing justice or interfering with law enforcement and whether matters being covered are in the public interest. The ruling noted that “particular consideration should be given to protests involving aboriginal issues.”

The internal guidance was written by the B.C. RCMP’s then in-house legal counsel Kyle Friesen as a Feb. 7, 2020, memo entitled “Exclusion zones: principles for public safety.” The two-page analysis reiterated the criteria from the Newfoundland judgment for Mounties to be circumspect about arresting journalists, whom have Charter rights to “attend, observe and report on events, within reasonable safety limits.”

Mr. Friesen cautioned Mounties overseeing the continuing flare-ups over the pipeline to Kitimat that they must, in certain circumstances, allow journalists to keep reporting within the exclusion zone.

“Each enforcement operation presents unique safety challenges based on crowd responses, geography and weather, to name a few variables,” he wrote. “For media personnel already ahead of the advancing police line, they can continue to observe and report, but without interfering with police enforcement required to implement the order of the British Columbia Supreme Court.”

The memo, which did not result in a clear policy directive, was issued some 18 months before news of Ms. Bracken’s arrest made international headlines and drew condemnation from a number of media outlets, including The Globe.

Mr. Friesen, who had trained RCMP leadership on press-freedom issues for years and is now with the new Surrey Police, said in a recent interview that he shared his guidance with B.C. RCMP commanders, including with the community-industry response group. (That squad enforces corporate injunctions against protesters in B.C. and is the subject of a federal review over its alleged unlawful arrests.)

Mr. Friesen said he doesn’t know who else in the national police force may have read his analysis or what was done with it.

“I can only give a memo here, and then the commanders have to take it from there,” he said. “I’ve always said ‘get the media to the front lines as much as possible, whatever is going on’ – the right to video, to audio, to observe, to take pictures, that’s just a given in the policing world.”

Ms. Bracken was arrested along with Michael Toledano, a filmmaker whom the B.C. government described at the time as a freelance journalist, and 13 other people at the Gidimt’en camp in Wet’suwet’en territory.

Police often question media covering protests to determine whether they are “accredited,” but there is no standard definition in Canada for how a journalist attains this professional distinction. In B.C., many of the journalists working for the shrinking number of mainstream outlets carry laminated cards issued by the provincial court system or identification crafted by their newsrooms attesting to their employment. Journalism organizations, like the CAJ, also issue membership cards.

Ms. Bracken and The Narwhal, the online news outlet that hired her for that reporting trip, filed a lawsuit last February against the RCMP alleging that the Mounties arresting her told her they were unaware of the precedent set by the Brake case in Newfoundland, which she says she cited as the lawful basis for her to avoid an arrest and keep doing her job.

Ms. Bracken and The Narwhal are also alleging in their legal challenge that B.C. Mounties knew she was on assignment for the outlet and yet front-line Mounties did not verify her repeated assertions that she was a journalist.

Ms. Bracken, who has freelanced for The Globe in the past, and The Narwhal declined to comment while their civil trial looms in B.C. Supreme Court for the fall of next year. (On the Christmas Eve after her arrest, Ms. Bracken received official notice that Coastal GasLink pipeline was dropping its civil-contempt lawsuit against her.)

After Ms. Bracken’s arrest, the B.C. RCMP issued a news release defending its actions and stating that Mounties did not arrest anyone for being a journalist or detain anyone for doing their job.

“The RCMP’s relationship with the media is based on mutual respect and professionalism,” then-assistant commissioner Eric Stubbs wrote in a Nov. 22, 2021, news release.

“Our expectation is the media identify themselves as soon as possible and it is our obligation to ensure they have fair and safe access to observe and report.”

With research from Stephanie Chambers in Toronto

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