A non-profit online news magazine announced today that it is pushing back against a “troubling lack of regard” for press freedom by Canadian police by filing a lawsuit over the RCMP’s 2021 arrest of one of its journalists.
In an announcement Monday at the B.C. Supreme Court, editors for the Narwhal and photojournalist Amber Bracken said they have filed a lawsuit against the RCMP for damages, wrongful arrest, wrongful detention and violation of Charter rights. Bracken was taken into custody and held for three days while covering the Coastal GasLink pipeline conflict in November 2021.
The Coastal GasLink pipeline, which will stretch 670 kilometres from northeast B.C. to the LNG Canada export facility in Kitimat, began construction in 2019 despite opposition from the Wet’suwet’en Nation’s traditional leadership. The dispute has led to several high-profile police actions, the first in early January 2019.
At the time of her arrest, Bracken had been covering the pipeline conflict on Wet’suwet’en territory for three years, since tensions boiled over after B.C. Supreme Court issued an injunction to the pipeline company in late 2018, prohibiting anyone from blocking pipeline access roads or worksites. Bracken covered three police actions, which took place in 2019, 2020 and 2021.
“I felt kidnapped,” Bracken recalled at Monday’s announcement. “I’d never been arrested before and it's the best word I can think of to describe being taken so abruptly from my life and from my work and in violation of my Charter rights.”
In addition to the Narwhal, Bracken’s photos from that day would be published in the Globe and Mail, the Toronto Star and the Winnipeg Free Press.
Her work has also appeared in the New York Times, National Geographic and other high-profile news outlets. The Edmonton-based photojournalist is a two-time World Press Photo award winner. In 2020, she was given the Canadian Association of Journalists’ Charles Bury Award for her work covering the ongoing dispute on Wet’suwet’en territory.
The BC RCMP told The Tyee via email that the force is aware of the claim but said it would be inappropriate to comment at this time. Senior media relations officer Kris Clark added that Canada’s Department of Justice will review the claim and issue a statement of defence through the courts.
It was during the most recent standoff, in November 2021, that she was taken into custody along with documentary filmmaker Michael Toledano and about a dozen others on Nov. 19, 2021, while covering arrests at a remote camp near the Morice Forest Service Road.
Previous court rulings have found that journalists must be allowed to report from within injunction zones in order to inform the public. That is especially true in the case of Indigenous land disputes, according to a 2019 Supreme Court of Canada decision.
At Monday’s announcement, lawyer Sean Hern said Bracken’s presence in the tiny house where the arrests took place was not a breach of Coastal GasLink’s injunction.
“[Bracken] wasn't there to interfere with any of the CGL work on the pipeline,” he said. “She was there to document events and that intentionality was known to the police. We believe that the injunction had no application to a journalist in that circumstance.”
On Nov. 14, 2021, Wet’suwet’en Hereditary Chiefs enacted an eviction notice initially issued to the pipeline builder in January 2020, closing the Morice Forest Service Road and blocking access to two work camps in a remote area approximately 70 kilometres southwest of Houston, B.C. The company said that work camps housing about 500 people had been cut off from services and supplies.
After the road closed, RCMP responded by sending dozens of officers to the region to remove protesters and open the resource road to traffic. The enforcement began the morning of Nov. 18, with RCMP calling it a rescue mission.
“We’ve got 500 people without food, sanitation and water,” said Staff Sgt. Aaron Sproule, with RCMP’s Division Liaison Team, as the arrests were underway. “Our objective is to get the road clear to get those goods into that camp.”
About 15 people were arrested that day, including filmmaker Melissa Cox, who was released the same day. In a video of Cox’s arrest, she could be heard telling police officers, “I’m media.”
The following day, with supplies flowing into work camps, police moved to arrest about a dozen people who were in two small dwellings at an encampment called Coyote Camp, which wasn't blocking access for traffic or camps. Bracken was also at the site where protesters had barricaded themselves inside a tiny house.
At Monday’s announcement, she described retreating as far as possible from the doorway in an effort to document the arrests that were about to take place. Helicopters dropped RCMP officers, some of them in green “militarized” uniforms, around the small building. After about an hour, police broke through the door using an axe and a chainsaw.
“What happened next was a moment I’ll never forget,” Bracken said. “In that moment, I was both trembling and absolutely rooted in place. I was determined not to let this moment go unreported. Soon, they would put me in handcuffs and take my cameras from me.”
Bracken was transported to the RCMP detachment in Houston, B.C., before being transferred the same day to Smithers, an hour to the west, where she would spend the night. The following day she was taken four hours in the other direction, to Prince George, where she would spend another two days in custody before being released at a bail hearing on Nov. 22, 2021.
The Narwhal’s co-founder and executive editor, Carol Linnitt, said Monday that the events surrounding Bracken’s arrest were “seared” into her memory.
“The Narwhal took every reasonable step to ensure the RCMP were made aware of Amber's presence on Wet’suwet’en territory,” Linnitt said. “Amber took every reasonable step to identify herself as a journalist before, during and after her arrest.”
Linnitt said editors at the non-profit online news magazine had written to the RCMP the day before Bracken’s arrest, letting them know she was in the area. Bracken also carried an assignment letter from the publication and had press tags attached to her camera equipment. She had two professional-grade cameras around her neck, Linnitt said.
“Upon arrest, she immediately informed the RCMP officers who had custody of her that she was a member of the media,” she said. “The arrest and detainment of Amber Bracken should never have happened.”
But Linnitt said RCMP’s treatment of Bracken was just one in a string that shows a “troubling lack of regard for freedom of the press by Canadian police.” She cited incidents like Muskrat Falls, where APTN journalist Justin Brake was arrested in an injunction zone. The Supreme Court of Canada would later rule in Brake’s favour, saying that applying the injunction order too broadly “unnecessarily risks impeding the media function for no good reason with the result that the public would be deprived of access to information of public interest.”
A year later, in September 2021, B.C. Supreme Court Justice Douglas Thompson ruled that RCMP actions at the Fairy Creek old-growth logging protests on Vancouver Island had infringed on press freedoms, causing the logging company to temporarily lose its injunction against the protesters.
“We would really rather not be here today,” the Narwhal’s co-founder and editor-in-chief, Emma Gilchrist, said during Monday’s announcement. “As a small non-profit news organization, the Narwhal certainly did not want to have to bring a lengthy, expensive lawsuit against one of the most powerful organizations in the country.
“But ultimately, we realized we had no other choice. To not move forward with this case would be to turn our backs on what's right and to turn our backs on all of the important stories that happen in remote places without the watchful eyes of journalists due to the chilling effect of arrests like these.”
She said the lawsuit aims to establish “meaningful consequences” when police interfere with the constitutional rights of journalists.
“We are not filing this lawsuit simply for ourselves, but to clear a path for all journalists in Canada to do their work without risk of police interference,” Gilchrist said. “Ultimately, infringement on press freedom by police impacts the public's right to know.”
All too often, she added, these incidents happen when journalists are reporting on Indigenous land rights and involve the arrests of Indigenous peoples on their land, something she added “concerns every single person in this country and should be a matter of public record, not hidden behind police lines.”
In a statement issued days after Bracken’s arrest, RCMP said the photojournalist had “later” identified herself as media.
“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,” RCMP assistant commissioner Eric Stubbs said. “When police forced open the door and began to arrest those inside, the individuals then identified themselves as journalists.”
Stubbs added that the force “did not arrest anyone for being a journalist or detain anyone for performing their job.”
During Bracken’s bail hearing on Nov. 22, 2021, Coastal GasLink lawyer Kevin O’Callaghan repeated RCMP statements that Bracken did not immediately identify herself. A month later, when the company announced it would not pursue legal action against Bracken and Toledano, it told CBC it had "ongoing concerns with respect to the fairness and approach” of their coverage.
In a statement issued following the announcement, Canadian Association of Journalists called the news a “huge day for press freedoms in Canada.”
Journalists in Canada are afforded special protections while engaged in the process of gathering news, it said, and practices and protocols should have been in place to ensure that officers enforcing injunctions are briefed prior to being sent out into the field.
"Canada is a land of laws and rules," CAJ president Brent Jolly said. "There are important legal precedents, as well as principles grounded in our Charter of Rights and Freedoms, that serve as the foundation for a free press in Canada. Efforts to feign ignorance and to turn a blissfully blind eye to this entire reality is disillusioning and not a justifiable excuse for ever breaching a journalist's constitutional rights."
While the journalism advocacy group isn’t formally part of the lawsuit, it said it “strongly supports” Bracken and the Narwhal’s efforts to seek justice.