RCMP apologizes to Ricochet senior editor and Gitxsan reporter for C-IRG breaching reporter’s Charter rights in 2020
Video still: Turner at 44km on Gidimt’en territory as RCMP helicopter buzzes overhead at the time of the 2020 C-IRG raid on Wet’suwet’en territory.
The CBC reports: “The RCMP [Community-Industry Response Group/C-IRG] seriously interfered with press freedoms, unreasonably blocked media access and arbitrarily detained a reporter during a 2020 raid on Wet’suwet’en-led blockades in northern British Columbia, [the Civilian Review and Complaints Commission/CRCC] says.”
That article continues: “Five years after that operation, the Mounties formally apologized to complainant Ethan Cox, senior editor at independent news outlet Ricochet Media, and Gitxsan reporter Jerome Turner, for breaching Turner’s Charter rights.”
Turner says: “I accept [the apology from the RCMP], with the caveat that they don’t do this to journalists ever again.”
But that is far from certain.
Cox and Turner comment in Ricochet: “There is a certain frustration at the oversight body [the CRCC] that the RCMP’s leadership continues to agree with and accept their rebukes, while ground-level officers continue to commit the same offences.”
Cox and Turner further note: “The one recommendation that the RCMP commissioner did not fully accept, happens to be one on which the media industry largely agrees with the police force, and must disagree with the oversight body.”
They add: “The CRCC recommended that the RCMP establish a method of accrediting journalists for planned and unplanned events. The RCMP considers this logistically unworkable, while the media industry largely agrees with the Supreme Court of Canada that a journalist is defined by their actions, not their affiliations. …In the modern world, as the Supreme Court has noted, anyone can serve a journalistic function by pulling out their phone. …The RCMP should not be put in a position where they are empowered to decide who is and is not a ‘real’ journalist, as that power could easily lead to the type of abuses considered in this report.”
The second-year mark of the CRCC “systemic investigation” is approaching this coming March 8 with no definite date for the conclusion of that report.
We continue to follow this.
Status: Final Report
Background:
In February 2020, the RCMP was enforcing a civil injunction against obstructive protests by members of the Indigenous Wet’suwet’en people opposed to the Coastal GasLink pipeline project in their territories in British Columbia. The Wet’suwet’en have a long-standing claim to these lands and, while the Wet’suwet’en elected band councils supported the pipeline project, the hereditary chiefs of 12 of the 13 Wet’suwet’en houses opposed it.
A media editor assigned a reporter to cover the protests and the police response. The reporter travelled to the injunction area, intending to visit some protest camps to document what he anticipated would be significant police action, but he was stopped at an RCMP access control point on the road.
Although the reporter had previously been granted access to the area, an RCMP member told him that the “rules had changed,” and he was turned away. The reporter was eventually permitted to enter, but over the next two days the restrictions continued as the RCMP threatened to arrest him if he did not leave the area, detained him for hours at a time, and strictly controlled his movements.
Complaint:
The media editor complained that the RCMP’s use of access control points and exclusion zones interfered with the reporter’s access to the area, violating the reporter’s individual constitutional rights as well as the constitutionally protected freedom of the press. The editor also complained that the RCMP arbitrarily detained the reporter, interfering with his ability to cover the story.
RCMP’s investigation and decision:
The RCMP investigated the allegation and determined that the restrictions on journalists were within the authority of the police, and that they did not unreasonably interfere with the reporter’s ability to take photographs or report on the situation. The Commission was asked to review the matter.
Commission’s review:
The Commission’s review determined that the RCMP recognized journalists without a consistent standard. At times the RCMP had accepted a letter of assignment from the media outlet as credentials, but on this occasion the reporter was turned away despite being admitted three times before. He had to drive back down the remote forest service road to where he started, 27 kilometres away. He contacted his editor, who tried to get assurances from the RCMP that the reporter would be admitted.
However, after the editor told the reporter that he could return to the access control point with his letter of assignment and that he would be admitted, the reporter was again refused entry. He was told again that he did not have approved media credentials. It was only after ongoing discussions, a request to speak to a superior, and the reporter giving a list of the news outlets with which he had published stories that the RCMP permitted him through.
The reporter travelled to the first of the Wet’suwet’en protest camps. He walked five more kilometres to the next camp and stayed the night. He was awakened before 5 a.m. by news that the RCMP had moved in and made arrests at the first camp, including two journalists. The editor was alarmed by this news and he wrote to the RCMP for answers, questioning the legal authority of the RCMP to act. He also asked the RCMP if the reporter he had assigned would get the same treatment if he tried to do his job.
The RCMP replied, “Currently your reporter is within the exclusion zone and subject to all the same restrictions as anyone else within the zone. Your reporter will be given the opportunity to leave on his own accord and return to the Access Control . . . or be subject to arrest . . . .” The British Columbia Civil Liberties Association and the Canadian Association of Journalists condemned the police actions as unlawful.
Amidst this criticism, the RCMP released a statement, explaining that the RCMP “respected the fundamental freedom of the press under the [Canadian Charter of Rights and Freedoms (Charter)], as detailed in recent decisions by courts across Canada” and that the RCMP would “make every reasonable effort to allow media personnel to get as close as possible to the enforcement area, while ensuring no interference with police operations” and subject to “reasonable limitations for public safety and police officer safety.”
Nevertheless, the Commission’s review determined that RCMP interference with the media continued. As RCMP members moved in to make arrests at the Wet’suwet’en protest camp, police officers stopped the reporter and other members of the media before they could approach a blockade within which were several protesters.
The Commission found that the media members were detained under threat of arrest for approximately four hours. They were kept approximately 60 feet from the area, so they could not see or hear everything. RCMP members told the press members that if they tried to move freely or failed to follow any instructions, they would be arrested.
After the arrests were completed, police drove the reporter to the camp where his car was parked. He and a small group of others learned that other protesters had blocked the way back by parking vehicles across the forest road. RCMP members had to clear the obstructions.
The small group was detained there by another RCMP member. The RCMP member later explained that he had been told to wait with the group until the way was clear and the industry convoy got through. Although the journalists had self‑identified as media, they did not seem to have legitimate credentials. The RCMP members were concerned that the reporter might use his car to block the road. After several hours, the reporter was permitted to drive out. The reporter stated that, in all, his two detentions lasted eight hours.
The RCMP’s use of access control points and exclusion zones to restrict the access and movements of the media was unreasonable, as were the threats to arrest the reporter and the reporter’s detention
The Commission analyzed the authority claimed by the RCMP to stop people from entering areas otherwise open to the public unless the people met certain conditions, or to keep them out altogether. In these circumstances, such a power could only come from what is called an “ancillary power” under the common law.
The RCMP believed that the exclusion zones and access control points were necessary because the remoteness, size, and terrain of the injunction area created special challenges, and there were concerns about protesters potentially setting traps or using violence. The RCMP also wanted to prevent the escalation of the blockades.
The Commission’s review determined that the RCMP had set up an access control point on the forest service road. At that time, the RCMP stopped all vehicles at the checkpoint, and the police only permitted passage if the occupants provided their identification, stated their purpose, and got approval from the RCMP Operational Commander or their delegate. In general, the people permitted included hereditary and elected chiefs, elected and government officials, accredited journalists, and people providing food, medical care, or other supplies or services necessary for the well-being of the people at the blockades.
The RCMP also believed that it was reasonable to suspect that anyone leaving the injunction area had been committing offences within, and that anyone entering the area intended to commit offences, meaning that they had grounds to detain them. Anyone entering the area was given a copy of the civil injunction because it informed them that certain activities would put them in breach of the court order and liable to arrest. The RCMP also detained anyone leaving the area to get their identification and to give them a copy of the court order before sending them on their way.
With the enforcement about to begin, the RCMP restricted almost all access to the area. The media exclusion was relaxed in the days that followed because of public criticism, but the RCMP continued to impose many restrictions. The following day, RCMP liaison team members were instructed to keep the reporter and other media members “on [the] far side out of [the] way.”
Even without specific statutory authority, police do have the power to restrict access to certain areas that are normally open to the public, but this is not a general power. Rather, it is “confined to proper circumstances, such as fires, floods, car crash sites, and the like.” The law also recognizes that the police have the power to cordon off an area in certain circumstances to carry out their duties. To be justified under the ancillary powers doctrine, the action must be “reasonably necessary for the fulfillment of the duty.” While the common law police duties of preserving the peace, preventing crime, and protecting life and property can lead to the ability to act preventatively where appropriate, actions that interfere with individual liberty will be especially hard to justify when a person is not suspected of any wrongdoing.
The Commission found that the RCMP’s use of the checkpoint and exclusion zone to restrict the access and movements of journalists on the dates in question were unreasonable. The Commission also found that the RCMP’s threat to arrest the reporter if he did not leave the exclusion zone was unreasonable.
The Commission further concluded that the reporter’s detention was not authorized under the ancillary powers doctrine.
The Commission found that the RCMP did not fulfill the Charter obligation to inform the reporter of the reasons for his detention or of his right to legal counsel. The Commission also found that the RCMP’s conduct caused serious interference with the freedom of the press.
In terms of the reporter’s second detention while waiting for the road to be cleared, the jurisprudence grants more leeway to the police in controlling traffic than it does for interfering with other rights and liberties. Driving is a heavily regulated activity, and the Commission was satisfied that the RCMP had the general authority to direct and restrict traffic on the narrow forest service road until the way was cleared of the new obstructions.
Nevertheless, the restraint on the reporter’s freedom was greater than being told that the way was blocked. While the RCMP members permitted the reporter and the others to examine and photograph the area, they were not allowed to leave, and they could not walk away from the police. The Commission found that the group was detained.
The Commission wondered why the RCMP member did not ask for the reporter’s cooperation in remaining where he was until the way was cleared. The explanation appeared to be the RCMP members’ distrust of the media members, and the concern that the reporter could have blocked the road with his car if he had been allowed to move sooner. The RCMP members’ skepticism about the reporter’s legitimacy as a reporter, and about his intentions regarding the injunction, were not objectively reasonable. Journalists in Canada have no accreditation regime, but this does not mean that anyone claiming to be a reporter is suspect. If the RCMP members had a reasonable suspicion that the reporter was connected to a recent or ongoing crime, they could have detained him under the law for investigative purposes, but they did not do so.
The unreasonableness of the detention was compounded by its length and by the fact that the reporter and the others were not advised about their Charter rights or even the full reason for their detention. The Commission found that the detention was inconsistent with section 10 of the Charter and RCMP policy.
Recommendations
In a recent report, the Commission recommended that the RCMP develop national guidance for the enforcement of civil injunctions that is consistent with the prevailing jurisprudence about the limited size and duration of exclusion zones and the courts’ cautions about claiming invasive ancillary police powers that are preventative in nature and are not exercised in responding to or investigating a past or ongoing crime. The Commission reiterated that recommendation.
The Commission concluded that new national policy was needed about how to treat the media during RCMP enforcement of civil injunctions and at other public order events. The Commission recommended that the RCMP develop standardized national policy for accrediting media for access to areas where the RCMP is conducting enforcement or otherwise has authority over a scene. The Commission recommended the following general parameters:
The accreditation policy should favour inclusion rather than exclusion of a reporter, reflecting the trend within Canada’s media landscape of smaller, online-only news outlets as well as independents like freelancers and independent filmmakers who may not have a letter of assignment. Accredited media should be issued a badge or other pass that entitles them to be present for protests and other public order events where the RCMP is conducting enforcement, or for other RCMP press events (subject to constraints like space and demand).
The Commission recommended that RCMP members maintain only a very modest buffer zone during injunction enforcement and other public order events that is no larger than necessary to permit the RCMP members carrying out arrests to work safely. The Commission stated that the RCMP should also grant freedom of movement to the press within the enforcement area so long as they remain outside the modest buffer and do not interfere.
The Commission also recommended that, although RCMP media liaisons and/or escorts may be necessary in certain circumstances, such escorts should not otherwise interfere with the media’s freedom of movement except where there is a demonstrated and objectively reasonable operational necessity, and then only to the minimum extent possible.
Lastly, the Commission recommended that an appropriate member of the RCMP apologize to the editor and the reporter for the RCMP’s unreasonable interference with the reporter’s work as a reporter by turning him away from the checkpoint, threatening to arrest him for being within an exclusion zone, and detaining him and controlling his movements.
Commissioner’s response:
The RCMP Commissioner agreed with all the Commission’s findings, and he fully supported almost all the Commission’s recommendations.
However, the RCMP Commissioner wrote that he could not fully support the Commission’s recommendation about a standardized national policy for accrediting media access, although he supported the intention behind the recommendation. The RCMP Commissioner did not believe that this would be feasible for unplanned events. He acknowledged that there was little clarity or consistency in how the reporter was treated in this case. He stated that, as a result, he would direct RCMP policy centres to study the creation a standard method of accrediting journalists that would be useful for both planned and unplanned events.
Commission’s final report:
The Commission welcomed the RCMP Commissioner’s response. The Commission noted that the RCMP Commissioner’s reservations about devising a suitable policy are understandable. The Commission stated that, whatever the standard to be used by the RCMP to accredit media, it should be permissive and include not only journalists who are employed by a media outlet, but also those who are freelancers or who are otherwise independent. The Commission also stated that any RCMP media standard be liberally interpreted and subject to only limited discretion on the ground. Police officers should not normally decide who is or is not a journalist, nor should they react as though a journalist has breached an injunction or obstructed the police merely by doing their job.
The Commission wrote that the RCMP Commissioner’s reservations might be addressed by a simpler policy that incorporated a practice eventually used by the RCMP in 2021 at Fairy Creek, British Columbia, after a court ordered greater media access. The practice was to check identification and ask the reporter their media affiliation before admitting them.
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