In July, media organizations are heading to BC Supreme Court to challenge RCMP micromanagement and restrictions.
June 18, 2021
“I’VE NEVER REPORTED FROM BOSNIA, but I would think that’s what it would’ve been like: Police threatening to arrest journalists just for standing in a road and videotaping what was going on.”
What Canadian Association of Journalists (CAJ) President Brent Jolly is referring to is a video of a Global News reporter being denied access and threatened with arrest while covering the Fairy Creek blockades, now in their eleventh month.
Protestors have been blocking logging roads to protect the last vestiges of old growth on the west coast of Vancouver Island, forests vital to the culture and spirituality of the Indigenous peoples of the area, stewards of the ḥahahuułi. Old growth forests are also an important bulwark against climate change and declining biodiversity, and the forest defence has captured the attention of environmentalists across the world.
Teal Cedar Products, with logging rights in TFL46, won an injunction against the blockades in April. RCMP began enforcing the injunction on May 17, and by mid-June had made over 230 arrests.
Since the enforcement began, RCMP have impinged on journalists’ abilities to cover the protests and the actions of law enforcement, citing “safety concerns” and “common law rights” as a justification for their actions. Journalists from all outlets, including FOCUS Magazine, have been micromanaged by police, who seem to have wide-ranging discretionary powers to enforce the injunction for Teal-Cedar.
Media stopped at an exclusion zone (photo by Michael John Lo)
Jolly is now part of a larger coalition of news organizations and press freedom groups that is going to court over what they see as RCMP overreach in media management in the ongoing police operations within the First Nation territories of the Pacheedaht and the Ditidaht. Reporters on the ground are frustrated by arbitrary and inconsistent restrictions placed on them by the RCMP, who have established their own blockades to restrict access to enforce the injunction. As seen at Caycuse and Waterfall camps, these exclusion zones can range across many acres and up to 10 kilometres along logging roads.
Sean Hern, legal counsel to the coalition that’s bringing the case to the BC Supreme Court, explained that this legal action isn’t a new lawsuit. It’s an application to the court, asking the Justices to “vary” the April 1 injunction to add terms they hope will cause the police to reassess their protocols and prioritize media access in the injunction enforcement area.
Sean Hern, legal counsel to the media coalition asking for greater direction to RCMP to allow unhindered press coverage
“There’s a tension that’s been building over a number of years,” said Hern. The RCMP has used blanket exclusion zones within injunction areas as a tool to limit media access, said Hern, citing the Unist’ot’en raid in 2020 as an example. Recently, these terms have meant that press only has one or two hours of notice for the meeting place for that day’s chaperoned access.
Reporters would have to be stationed in either Port Renfrew or Lake Cowichan by 6 am to catch the convoy in time—opposite ends of the RCMP blockades. Independent press and student media with limited resources are especially affected by this policy.
“There’s a lot of frustration up there,” said Hern. “In many instances, [notice] has changed on short notice, [or has] been significantly delayed. Media show up at a meeting point pre-arranged by the RCMP and have to wait there for sometimes hours. Sometimes it simply never happens.”
Tarps used to hide police tactics for removing protesters (photo by Dawna Mueller)
Meanwhile, enforcement action takes place away from journalists. When access is granted, police sometimes hold up tarps to prevent media from documenting arrests, claiming a need to protect “proprietary” policing methods. Sometimes, police do not inform the press of arrests at all. Such behaviour can discourage media attendance.
Photojournalist Jen Osborne, who has been consistently covering the Fairy Creek blockades, has been denied access or obstructed numerous times when photographing police enforcement actions for Canadian Press, Reuters and independently. “If I get arrested out here [while not on contract], I don’t really have any support. If I become a little more pushy about getting more pictures….” Osborne trailed off, reminded of potential consequences. She’s thinking of leaving soon.
Level of access seems to have varied from week to week, creating a difficult working environment. The latest incident, where Osborne was not allowed to witness arrests where police allegedly assaulted forest defenders at Waterfall camp, happened on June 14.
The RCMP media handler didn’t show up, and Osborne was stuck at a parking lot for hours, waiting for access that never came that day. “The officers on the ground were saying, ‘oh we can’t use the radios, it’s not working today,’” said Osborne. “That’s the first time I’ve encountered that out there. The radio always works.”
Hern noted, “Whether it’s a product of poor administration, or a product of poor administration with the intent to frustrate access, or a product of policy of giving access only when they want to give access, it’s a long way from free access for the press.”
The qualification that CAJ and company are proposing to add to the injunction—addressed to law enforcers—is as follows: “to not interfere, impede, or curtail media access rights except as where a bonafide police rational that requires it, and in those instances, to do so as minimally as possible, in recognition of the rights and the role of the media.”
Hern suspects that the RCMP may resist this by arguing that their restrictions are authorized by their general or common law policing rights. Whether that stance is justified will be determined in court in July.
“It’s really difficult to see what it is that could be so operationally secret or risky that would require the exclusion of the media,” said Hern. “In an urban protest, police officers are making arrests on a regular basis and there’s tons of people around witnessing the event. It’s not clear at all why they want to make these arrests in isolation.”
A careful balance should be struck between actual policing needs and media access, said Hern, who stresses that this isn’t happening at Fairy Creek.
“In fact, the police are disregarding the need for that balance and don’t have a sufficient appreciation of the importance of free press access to enforcement activities,” said Hern.
It’s now up to the courts to make sure that happens.
Controlling the narrative
Two weeks before RCMP began obstructing journalists in their work at Fairy Creek, Jolly wrote an op-ed in the National Observer. Its title nicely sums up the point that he’s making there: “Canada’s press freedom is in more danger than you think.”
“I wish I could say I knew it was going to happen,” said Jolly, who laughed at the almost prescient timing of his piece.
Brent Jolly, journalist and president of the Canadian Association of Journalists
“We’ve made the point of going around and hosting international summits, telling emerging democracies and international organizations on how things should operate in regards to media freedom, and yet we still don’t accomplish some of the most basic things here at home,” said Jolly.
Indeed, the RCMP appear to be taking a page from police forces operating in emerging democracies. Michelle Bonner, a political scientist at the University of Victoria who studies the intersection of policing, protest, and media in Latin America, says that the RCMP is likely employing a time-tested police tactic known as stage managing.
Michelle Bonner, PhD, political scientist at the University of Victoria, studies the intersection of policing, protest, and media
Bonner said that there are academic studies that detail how RCMP have previously not only stage managed where journalists could go during protests to ensure positive coverage, but also instances where RCMP have attempted to preemptively paint protestors in a criminal light ahead of time to influence coverage. There isn’t any indication that the RCMP has done this here, but Bonner believes there’s evidence that stage management is happening at the Fairy Creek blockades.
She’s also struck by the lax oversight for the RCMP’s discretionary powers given by the injunction. Bonner is concerned about the term “recognized media outlets,” a poorly explained requirement of the RCMP for journalists looking to join the media convoy. A recent (and standard) email from RCMP to media stated: “Reminder—identification may include ID, business card, or photo ID from your media agency, a letter from your Editor/News Director confirming employment or other proof of media employment. As always there is limited cell reception at the access control areas, so please print out any letters or proof of employment prior to traveling to the check point.”
In a statement to FOCUS, the RCMP claimed to have taken a “liberal approach” to media identification: “We have worked with a number of individuals who are freelancers or belong to non-traditional media outlets, such as internet publications.”
But Bonner said, “There should not be limitations on what media is acceptable and what is not acceptable. If anyone wants to act as a citizen journalist, they can do so. Qualifications should not come into that.” Such authority gives the RCMP the power to silence some voices over other voices, noted Bonner.
RCMP acknowledged “instances of miscommunication or delays” during their early days of enforcement, but say that these have “generally been worked out” after consultation with stakeholders.
RCMP also told FOCUS that police escorts are needed to “guide media in through the forest service network safely,” and to coordinate with onsite RCMP commanders to determine the level of access that is given to media on that day.
“Police often use the safety of journalists as a reason to keep journalists behind police lines or in places away from where the protests are happening,” said Bonner. “For freedom of the press, ideally what you want is journalists making that decision for themselves as to what is safe and what is not safe rather than the police making that decision.”
This sentiment is echoed by Hern: “Safety in the abstract is unhelpful. Is it the safety of the officers or is it the safety of the media personnel? If the safety is the safety of the officers, the question that arises is: how are the officers’ safety affected by members of the media being present?”
Bonner suggested the control of media is more about image management: “[At protests] there’s always a possibility that it will end up making the police look bad. Police are concerned about their image and want to have public support in their actions.”
At peaceful protests, there is simply no need for police management, said Bonner. Restrictions on media, she noted, limit the ability of the public to have a well-rounded understanding of what’s happening.
It’s important that journalists resist police pressure to control the narrative when they can, said Bonner. She gave an example of how news could become complicit: during the 2019 Chile protests, clever police stage management funnelled news coverage into being a mouthpiece for the police. Protestors were portrayed as criminals, looters, vandals, and eventually drug traffickers, even though the majority of people on the streets were peaceful protestors with legitimate grievances. “When these discourses are heard and are dominant in the media… then political leaders can say that public opinion is in support of these actions against the criminal threat of protestors.”
In Chile, that has led to the deaths of 36 people and thousands of injured protestors. More than 400 people had eye injuries from police firing rubber bullets, with 29 completely blinded.
Egregious violations of media access around indigenous land issues
As the president of the CAJ, Jolly gets a national view of the state of press access in Canada. What he sees may not be as dire as the situation in Chile, but it isn’t encouraging either: Jolly’s seen “dumbfounding” examples of obstruction and obfuscation at nearly all levels of the government.
During our interview, he rattled off a list of names and places where RCMP have prevented journalists from doing their work in recent years.
The most egregious violations seem to happen when Indigenous peoples begin asserting their rights contrary to the wishes and interests of property developers, pipeline companies, and government.
For example, the 2020 raid on Unist’ot’en camp in Northern BC, where the Wet’suwet’en have been resisting oil pipelines on their territory, saw guns drawn and journalists detained during a paramilitary raid. There, RCMP utilized an exclusion zone, functionally similar to Fairy Creek’s access and control areas, as the justification for denying press access. An investigation by the Civilian Review and Complaints Commission for the RCMP into RCMP conduct at Unist’ot’en remains unresolved, stuck in administrative limbo.
Later that year, Canada would also see the arrests of journalists Karl Dockstader and Courtney Skye in Caledonia, Ontario, where the Haudenosaunee are resisting property developers who are violating a 1784 land treaty.
There is also the case of Justin Brake, who was arrested in 2016 covering a protest where the Innu and Inuit protested against the Muskrat Falls megadam project in Central Labrador. He is perhaps the only journalist in Canadian history to have faced dual criminal and civil charges while doing his job. That case would last for almost four years, until charges against Brake were dismissed in the highest court in Newfoundland and Labrador.
That court ruling by Justice J. Derek Green repeats a Canadian Supreme Court ruling that frames journalism as the sustainer of the public exchange of information, vital to modern Canadian society.
Justice Green then goes further to note: “That makes freedom of the press to cover stories involving indigenous land issues even more vital.”
As Canada grapples with its identity as a country built on cultural genocide of Indigenous peoples, conflicts around Indigenous rights will only gain heightened attention.
“You would think that the RCMP would take the time to develop a strategy around this [after Wet’suwet’en],” said Jolly. It’s unacceptable when journalists are obstructed and threatened while reporting on matters of the public interest,” he added. “By the virtue of their very restrictions, they’re creating mistrust.”
Jolly says that the Fairy Creek application ruling could have a long-term impact on journalism and the public interest.
“The Supreme Court of Canada has described the role of the media in Canadian society as vital, special, essential, and emphasized it in many cases as to how fundamentally important a free press is to democratic society,” said Hern. “That’s what’s at stake.”
The case will be heard in the third week of July before Justice Douglas Thompson in Nanaimo, with virtual proceedings.
“I’m a bit concerned that it’s taking a little bit longer [than usual]. But this is the process—we just have to go along with it,” said Jolly.
Meanwhile, the Rainforest Flying Squad say that blockaders are facing an increasingly aggressive RCMP, who are now conducting overnight raids when there are no media present.
Michael John Lo was recently senior staff writer for the Martlet and has joined FOCUS Magazine. He recalls needing a police escort of two during a 40-minute walk to retrieve his lunch from his vehicle parked just outside the exclusion zone during his trip to Caycuse. See his report on that visit and the first week of arrests at Fairy Creek here.
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