Peter Jacobsen is a partner at WeirFoulds LLP and the chair of the Canadian Issues Committee of the Canadian Journalists for Free Expression.
This past Friday, two journalists holding press credentials – Amber Bracken, an award-winning photojournalist on assignment for The Narwhal, and Michael Toledano, a documentary filmmaker – were arrested by the RCMP and had their equipment seized. The police claimed that they violated a civil injunction granted to Coastal GasLink by the B.C. Supreme Court just by being embedded with protesters who opposed the company’s natural gas pipeline construction on Wet’suwet’en territory.
The pair was initially taken to Smithers on Friday and then to Prince George – a trip of more than 370 kilometres. Then, after three days of incarceration just for doing their jobs, the two were released, but only after they promised to obey the injunction order and to appear in court again in February of 2022. Later, we also learned that the RCMP had been collecting information on the journalists for a national database that tracks law enforcement investigations.
The RCMP and the courts got it wrong. The injunction was intended to prevent those opposed to the pipeline from blockading access points. It was not intended to prevent the media from reporting on the blockade.
The role of journalists is to record and report on what occurs. Transparency is of the utmost importance in situations where confrontations between police and protesters occur in remote locations. It’s noteworthy, then, that The Narwhal has asserted that the RCMP’s seizure of Ms. Bracken’s equipment prevented the publication of photos that showed what the police did during other arrests on Nov. 19.
Unfortunately, the arrest and prosecution of journalists covering blockades and protests in Canada is nothing new. Thirty years ago, Shaney Komulainen – the Canadian Press photographer who took the iconic picture of an Oka protester and a Canadian soldier standing nose to nose – was charged, and eventually acquitted, after a harrowing two-week jury trial.
Nevertheless, these outrageous arrests and extended denial of journalists’ liberties run contrary to past decisions of Canadian courts involving journalists covering blockades.
In a 2019 case, the Newfoundland and Labrador Court of Appeal ruled that a civil injunction around protests against the Muskrat Falls hydroelectric project should not have applied to Justin Brake, a reporter who was covering the blockade. The court decided he was fulfilling his journalistic function by serving as the eyes and ears of the public.
The court gave short shrift to the argument that scooping up journalists along with protesters when enforcing an injunction is not a serious infringement of a journalist’s rights because the journalist would have the ability to later challenge a contempt order. According to its ruling, the damage to the reporting function would already have been done by that point, and journalists may be deterred from reporting on location.
Earlier this year, the B.C. Supreme Court issued an injunction order around the Fairy Creek protests on Vancouver Island that specifically instructed the RCMP not to interfere with the media’s access to any part of the injunction area, except where there was a bona fide operational rationale. The court went on to specify that any interference with the media’s access should be as minimal as possible, in recognition of the rights and vital role of the media in Canadian society.
And in its 2018 decision R. v. Vice Media Canada Inc., the Supreme Court of Canada reiterated that “without protection from undue interference in newsgathering, public access to the fruits of the media’s work is diminished, as is the public’s ability to understand, debate and form opinions on the issues of the day, thereby impairing its ability to participate meaningfully in the democratic process.”
Like the Muskrat Falls and Fairy Creek injunctions, the Coastal GasLink injunction was put in place to prevent Indigenous people and supporters from blocking a construction project by a large corporate interest on their territory. The court in the Muskrat Falls case observed that better understanding of these protests, enhanced by on-location reporting, furthers the goal of reconciliation.
And yet, there was still over-reach in the enforcement of the Coastal GasLink injunction.
The blanket inclusion of journalists in these types of injunctions is not only profoundly unwarranted, but also serves to discourage, punish and even prevent journalists reporting on these incendiary events. Furthermore, allowing the police to remove and detain journalists reporting on police behaviour during these disputes will only arouse suspicion, raise tensions and cause disrespect for the administration of justice.
When the police fail to distinguish between protesters and the media, we risk serious injustice. And it’s the job of the courts to ensure the police are alive to this distinction by including wording in injunctions that explicitly deal with access for the media.
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