By Matt Simmons, The Narwhal, Local Journalism Initiative reporter
Updated May 9, 2022, at 11:10 a.m. PT: This article was updated to clarify that filmmaker Michael Toledano was restrained with handcuffs after being detained by RCMP on Nov. 19, 2021. He was not initially restrained with zip ties. But he told The Narwhal that police added zip ties to reinforce the restraints after a key broke off in the handcuffs.
As police helicopters moved into unceded Wet’suwet’en territory and dropped off armed tactical officers accompanied by police dogs on Nov. 19, 2021, photojournalist Amber Bracken was reporting live updates.
She was inside a tiny house occupied by Indigenous land defenders and their allies.
Since December 2018, Bracken had taken on multiple assignments covering the unfolding conflict over Indigenous Rights and the 670-kilometre fracked gas Coastal GasLink pipeline proposed by Calgary-based energy giant TC Energy in British Columbia. The B.C. government has authorized construction of the pipeline without the consent of Wet’suwet’en Hereditary Chiefs but with support of elected chiefs from First Nations alongside the project’s route.
On this chilly day in November, Bracken captured images for The Narwhal and posted more than a dozen tweets detailing what was happening before someone cut off power and communications. Moments later, she and documentary filmmaker Michael Toledano would be arrested by the RCMP and restrained — Bracken restrained with zip ties and Toledano restrained with handcuffs — preventing them from being able to fully report on the major incident.
This was not the first time police in Canada arrested journalists covering Indigenous Rights issues in recent years. Journalists Karl Dockstader and Justin Brake were also arrested under similar circumstances in separate incidents.
Canadian courts have described this type of police response targeting journalists as an overreach, interfering with press freedoms and keeping the public in the dark about what really goes on during complex and dangerous police operations. They have also noted that interference with the press should especially be avoided when it relates to coverage regarding Indigenous Rights.
The RCMP has argued that it respects journalists and wants to set boundaries to ensure everyone is safe.
In the case of the November arrests, the RCMP initially alleged that Bracken and Toledano had breached a civil injunction that prohibits people from interfering with construction. One month later, Coastal GasLink said that it would no longer pursue charges against the two, but did not explain why.
Newly released emails obtained by The Narwhal provide fresh insight into how some of the highest ranking members of the RCMP viewed the work of journalists covering the conflict.
They also reveal stunning contradictions between what RCMP officers told their commissioner and members of the public versus what actually happened during the raid.
RCMP ‘package’ about ‘lack of impartiality’ of journalists was never released
Braken and Toledano’s arrests drew international media attention and escalated an ongoing controversy over the RCMP’s efforts to restrict journalists from exercising their right to report from within injunction zones without risking arrest.
One day after the arrests, RCMP Chief Superintendent John Brewer sent off a 430-word email to RCMP Commissioner Brenda Lucki and other high-ranking federal police officials, offering his explanation for the arrests.
Brewer is the gold commander of a special British Columbia unit of the RCMP that works with fossil fuel and other natural resource companies, including TC Energy.
His email alleged that the journalists were activists and his unit, also known as the Community-Industry Response Group, or C-IRG, was about to produce the evidence.
“CIRG is preparing the package for court on Monday which will articulate the reasons for arrest and the background activities of these individuals which bring into question their impartiality and show they have been advocating and assisting the protesters,” Brewer wrote in his email.
Less than three minutes later, according to time stamps on the emails reviewed by The Narwhal, Eric Stubbs, an RCMP assistant commissioner forwarded Brewer’s message to Wayne Rideout, a senior provincial government official.
Stubbs publicly stated, in the wake of the arrests, that he was “willing to work with the media” and that the RCMP followed direction from the courts to not interfere with the work of journalists. But the language used in the emails and other evidence from the scene appear to a different story.
“Give this a read as it helps a bit on the journalist perspective and the approach taken,” Stubbs wrote in an email as he sent Brewer’s note to Rideout, the assistant deputy minister and director of police services for the B.C. Ministry of Public Safety and Solicitor General.
But the package of evidence that would supposedly show how journalists were supporting protesters never materialized.
Comparing RCMP affidavits to their emails
To piece together the sequence of events, The Narwhal reviewed dozens of pages of records, released through provincial and federal access to information legislation, as well as more than an hour of video and audio recordings of the incident and dozens of affidavits filed with the B.C. Supreme Court by the RCMP last November.
Sworn affidavits signed on the same day as the emails from Brewer and Stubbs by another RCMP officer, Constable Benjamin Laurie, did not offer any claims or evidence that either Bracken or Toledano were assisting or advocating for protesters, nor did they mention any of the “background activities” of the journalists alleged by Brewer.
The affidavits instead suggested the journalists should face charges since they had not identified themselves or left when RCMP first knocked on the door of the tiny house to inform people inside they were breaching the Coastal GasLink injunction.
“I think it is a telling detail that the supposed ‘package’ that was being prepared for the court proceedings on Monday was, to the best of my knowledge, never tabled,” Brent Jolly, president of the Canadian Association of Journalists, told The Narwhal. “This fact should compel the public to think critically about all the facts presented in any case and urge the public to consider the source of any reports and any potential agendas they are attempting to advance.”
The affidavits also appeared to suggest the RCMP was well aware that Bracken and Toledano were covering unfolding events, noting police officers had tracked interactions in the region with both journalists over the years in an active criminal investigations database — PRIME-BC — even though neither journalist had committed any crime.
Bracken and Toledano were detained for days, along with more than a dozen land defenders, following the arrests. Their detainment delayed the publication of images and video footage showing how heavily armed police used a chainsaw and an axe to break down the door before pointing firearms at people inside the tiny house and arresting them.
“The idea that powerful people are maligning me behind my back is creepy,” Bracken said, when asked to comment on the contents of Brewer’s email.
“The idea that they can do this in secret, without needing to produce any evidence is a chilling comment on the state of press freedoms in Canada. I hold myself to the highest standard of ethical reporting and have not been given an opportunity to respond to these false allegations.”
Bracken has earned international acclaim for her work, which has been published in a range of publications, including The Guardian, the Toronto Star and The Globe and Mail. She recently earned international World Press Photo of the Year honours for an image she captured for The New York Times that shows a roadside commemoration of children who died at the Kamloops Indian Residential School.
Toledano’s 2019 short film, Invasion, which documents Wet’suwet’en resistance to the Coastal GasLink pipeline and the RCMP raids that year, was an official selection at Toronto’s Hot Docs Festival. He is currently working on a feature-length documentary, Yintah, for the CBC.
TC Energy publicly criticized the credibility of Bracken and Toledano, without offering any detailed evidence or explanation. In December, when the company announced it was not pursuing charges against the two journalists, it told CBC News it had “ongoing concerns with respect to the fairness and approach of these individuals.”
TC Energy declined to respond to a question from The Narwhal asking what it meant by ongoing concerns and did not address whether it had shared these views in its communications with Brewer.
The company is under pressure to complete the multibillion dollar pipeline, which has international ownership and financing, but is mired in significant cost overruns and delays that threaten its viability. It has also suffered significant losses in recent years after abandoning its Keystone XL and Energy East oil pipeline projects.
“Police simply don’t want the public to see what their ongoing seizure of Wet’suwet’en lands looks like,” Toledano said.
“Over three years of raids, police have arrested and detained journalists, removed journalists from the territory, set up media exclusion zones to entirely restrict access and even pointed a gun at multiple reporters.”
Brewer, Stubbs and other RCMP officials declined interview requests, choosing instead to respond to written questions from The Narwhal in a series of emails.
In one of those emails, The Narwhal typed up and sent a copy of Brewer’s Nov. 20 message to give them an opportunity to provide an explanation and full context.
But an RCMP spokesperson, Sergeant Chris Manseau, told The Narwhal that it would be “presumptuous” for its B.C. media relations staff and Brewer to comment on the email he sent, since they hadn’t seen the original, just The Narwhal’s reiteration of it.
Manseau said that copying and pasting email contents is not the same as having the email itself, but he declined to elaborate on what additional details they would need to provide a comment about the remarks about the journalists, made in the email.
He also claimed that Brewer himself did not have a copy of his own email.
The email records obtained by The Narwhal also indicate that Brewer sent a copy of the email to himself.
The Narwhal asked the RCMP in a followup email if anyone had verified whether Commissioner Lucki and other high-ranking officers who received the email from Brewer in November had read it or could comment on it. The Narwhal also asked the RCMP whether the email was deleted.
The RCMP did not respond to these questions, explaining in a new email they had “provided everything we can with respect to this request.”
In Justin Brake case, Newfoundland and Labrador Court of Appeal said it was ‘vital’ to protect free press
A free press is protected under Canada’s Constitution. Recent Canadian court rulings confirmed that civil injunctions restricting the movement of people or demonstrations in Canada do not apply to journalists who are covering these types of events — as long as the journalists are not interfering with the work of the police. If there are cases where police need to restrict access to journalists, the courts have said police need to minimize that action and avoid arresting journalists based on an officer’s assumption that charges could later be dropped in court.
At that point, it’s too late, since the damage to press freedom would already be done, according to the recent rulings.
This standard was spelled out in a 2019 ruling by the Newfoundland and Labrador Court of Appeal regarding charges against journalist Justin Brake, who was reporting for The Independent, a publication based in the Atlantic province. Brake was covering opponents of a hydroelectric project at Muskrat Falls, including Innu and Inuit land defenders. The court noted in the ruling that it was “vital” to protect a free press, particularly for coverage of Indigenous land issues since Indigenous people have traditionally been underrepresented in Canadian media.
Last summer, B.C. Supreme Court Justice Douglas Thompson reinforced the standard by directing police to stop interfering with journalists without a valid reason. In his ruling regarding police action at old-growth logging protests, Thompson said there were “substantial and serious” examples of RCMP “interference with liberties of members of the public and members of the media.” He also said there were “unlawful actions” by the Mounties during those protests in the Fairy Creek watershed in Pacheedaht territory and in the neighbouring territory of Ditidaht First Nation. At this location, another private company — Teal Cedar Products Ltd. — has obtained an injunction against opponents seeking to disrupt its commercial activities on Vancouver Island.
At Fairy Creek, the RCMP and Canadian government officials used arguments that are similar to what the RCMP is now saying justifies its arrests of Bracken and Toledano — namely that the presence of the journalists as well as protesters claiming to be journalists was putting others in danger.
Justice Thompson noted the RCMP failed to produce credible evidence to support these claims at Fairy Creek. He also expressed his disappointment that the force submitted an inaccurate example of a journalist allegedly assisting protesters that was proven to be false, thanks to a recording captured by this journalist.
“It is fortunate that the journalist recorded the interaction with police that led to the allegation,” Thompson wrote in the ruling. “It is most unfortunate that the allegation was made.”
The injunction at Fairy Creek was later overturned, before being reinstated a few months later. However, neither ruling affected Thompson’s findings regarding media access.
In audio recordings, RCMP officers said they didn’t know about Justin Brake case
In his Nov. 20 email to Commissioner Lucki and other top RCMP management, Brewer wrote that his unit was following standards to identify journalists, as described in the Newfoundland and Labrador court ruling regarding Justin Brake.
Brewer also claimed, through an email sent to The Narwhal by an RCMP spokesperson, that he could say “with certainty” that “every police officer was briefed on the Brake decision prior to commencing enforcement.”
Audio recordings captured in the moments following Bracken’s arrest suggest otherwise.
One officer told Bracken: “If you are accredited media, we will deal with that. But everybody’s been arrested here for breach of that civil injunction. You had the option to leave and should have left. If you’re any credible media person, they would have left. I’ve dealt with hundreds, thousands of media people in my service, okay?”
Bracken later asked a second officer whether he knew about the case, to which he responded: “Am I aware of the ruling? No. Want to explain it to me?”
Bracken explained how Brake, whose first name she misstated as “Jason,” not Justin, had followed a group of land defenders protesting the hydroelectric project. She told The Narwhal she may have misstated Brake’s first name due to the stress of being arrested.
But she went on to explain to the officer how the court ruled that journalists could be present in such circumstances and not face arrest as long as they were not directly participating.
A third officer then appeared to respond by saying it would be “up to the judge to decide” her fate. Asked whether he was aware of the Brake case, he said. “I’m not aware of that.”
Brewer later said, through an RCMP spokesperson’s email, that he had “no knowledge” of these interactions between Bracken and the officers.
The RCMP told The Narwhal in its written responses that it arrested the journalists for staying inside the tiny house to capture images and video footage after police informed the pipeline opponents they were violating the injunction and asked them to leave. The RCMP declined to provide further details about how the presence of journalists was interfering with the operation.
But their explanations for the arrests also appeared to shift in response to questions from The Narwhal.
Carol Linnitt, The Narwhal’s executive editor, notified the RCMP in advance of Bracken’s reporting trip and that she was assigned to be on site.
The RCMP confirmed they were aware of the assignment but noted they had urged Bracken to identify herself at the first available opportunity.
“Given the dynamic nature of the incident, it would not be appropriate for the officer to debate with arrested persons,” said one response written by RCMP media relations on April 25 in response to a question sent to Brewer.
“I would add that the Brake decision allows a reporter to be there to report however they are required to identify themselves, and cannot participate in the protest. In this instance, there were repeated opportunities for those inside the structure to identify themselves and leave, only upon arrest did they identify themselves as media.”
Contrary to the RCMP’s claims, the Brake decision does not actually specify how or when a journalist is required to identify themselves. Instead, it states that someone performing journalist duties such as taking notes, capturing images, reporting, live-blogging or broadcasting should not be arrested, as long as they aren’t actively participating in a protest or interfering with police operations.
When asked about this, the RCMP offered a new explanation.
“The journalists were not arrested simply because they did not identify themselves, but because they, along with everyone in those structures, were given the option to exit and leave or face arrest,” wrote Sgt. Manseau in an email on April 29.
The RCMP spokesperson then appeared to question the relevance of the court decision’s definition of a journalist, and contradict previous statements that its officers were following the court’s standard.
“Your question about whether we consider the journalists to be assisting or advocating for other people on site is irrelevant to their arrest,” Manseau wrote.
The RCMP also said that it would have allowed Bracken and Toledano to continue documenting the arrests if they had left the tiny house at the first opportunity, although it was not clear whether the journalists would have been allowed to stay close enough to observe and record the interactions.
Bracken has covered other arrests of Coastal GasLink opponents, and said the RCMP did not allow journalists to get close enough to adequately observe the operations. She said that in previous years, the RCMP set up exclusion zones that prevented media from accessing locations where arrests were taking place.
Bracken said that she didn’t speak up during communications between RCMP outside the structure and land defenders inside, in order to avoid influencing the events, as per ethical standards and guidelines that require journalists to avoid interfering.
She added the tiny house was surrounded by heavily armed police — opening the door was not an option and climbing out the window did not feel safe.
In addition to The Narwhal giving prior notice about Bracken’s assignment, the photojournalist was wearing identification badges to identify herself as a member of the press.
Brewer, who used quotation marks when referring to Bracken and Toledano as “journalists” in his email, also summarized the incident using language that was similar to a federal government briefing note about the arrests of journalists, prepared for Public Safety Minister Marco Mendicino a few days later and dated Nov. 25, 2021. Both his email and the briefing note mentioned derogatory comments in response to police.
Video footage released by Toledano shows that neither he nor Bracken interfered with or insulted police officers in any way. The footage also shows that pipeline opponents asked police if they had search or arrest warrants and were told RCMP would be seeking those.
When asked why Brewer included the statement about derogatory comments in an email that described the arrests of journalists, the RCMP declined to say, suggesting they had not made “any assumptions” about who made the remarks.
RCMP access to information analyst couldn’t reach John Brewer for two months
Brewer’s unit and other federal surveillance projects monitoring the activities of Indigenous groups have prompted numerous public complaints and investigations over the years. Critics of the force have alleged that the RCMP is too cozy with energy companies and is being used as a private security force for the industry.
The RCMP told The Narwhal that it engages with all stakeholders when needing to discuss issues, and does so in-person, over the phone or virtually, depending on availability.
But questions remain about whether the RCMP is transparent about all of these interactions.
Through Canada’s Access to Information Act, The Narwhal requested all correspondence between Brewer’s unit and TC Energy/Coastal GasLink from November. But the RCMP failed to locate a letter dated Nov. 2 that was sent by TC Energy to Brewer and Commissioner Lucki. Instead, The Narwhal obtained uncensored versions of the internal emails about the journalists and the correspondence with the pipeline company through a separate freedom of information request filed under provincial legislation to the B.C. ministry responsible for public safety.
The private correspondence revealed how TC Energy pressured Brewer and the RCMP commissioner in early November to crack down on opponents seeking to thwart construction of the Coastal GasLink project. The pipeline company also criticized the RCMP in the letter for not doing enough to enforce an injunction and stop “blockaders.”
In another email released to The Narwhal, Brewer told RCMP colleagues in November that someone from Coastal GasLink had told him that the “mood” at a work camp was deteriorating due to the actions of pipeline opponents.
An analyst working on the request told The Narwhal she asked Brewer about it in an email in February and a few times after that about whether he had additional records of his correspondence with TC Energy. But two months later, the access to information office of the RCMP said Brewer had still not responded to their requests to locate any files.
In addition, the RCMP censored another email sent by Brewer that described his communications with TC Energy and the unfolding situation on Wet’suwet’en territory, prior to releasing it through access to information legislation.
The B.C. government released an uncensored version of this email under the provincial freedom of information legislation.
The federal transparency law states that federal officials must release their records upon request to any Canadian who pays a $5 fee, unless there is a valid reason to refuse. Anyone who intentionally obstructs someone’s right of access to government records can face up to two years in prison and fines of up to $10,000, but police rarely investigate alleged violations.
Federal information commissioners have twice called out the RCMP over the past decade for failing to respect access to information legislation.
Most recently, the RCMP acknowledged that it was having “challenges” fulfilling its obligations under the legislation, Global News reported after the latest investigation by the information watchdog in November 2020.
When asked about its heavy censorship of correspondence related to the November arrests that were released without redactions by the B.C. government, and its failure to locate the TC Energy letter, the RCMP said it prioritized access to information requests and was complying with the law. An RCMP spokesperson also sent a written response on behalf of Brewer, stating that he was respecting the transparency law.
Top image credit: Screenshot from Michael Toledano’s film ‘Invasion’
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