The Narwhal, the Canadian Association of Journalists and other journalism organizations have won a key court challenge at the Supreme Court of B.C. that resolves a conflict with the RCMP.
The conflict arose after the police force began limiting access for journalists reporting on the enforcement of an injunction prohibiting the blocking of logging roads in the Fairy Creek watershed, where hundreds of people have been arrested in recent weeks. The area, which sits on the territory of the Pacheedaht First Nation and Ditidaht First Nation, is considered to be the last intact valleys of old-growth forest on southern Vancouver Island and protesters say they are defending it.
The Narwhal and other partners, including The Discourse, IndigiNews, Ricochet, Capital Daily, Canada’s National Observer, the Aboriginal Peoples Television Network (APTN) and Canadian Journalists for Free Expression (CJFE), asked the court to modify the injunction order so that it directs the RCMP to allow media access if there is no operational reason to restrict journalists.
The media coalition alleged the RCMP has “intentionally excluded” journalists from the area as it conducts arrests in secret. The RCMP said it has been addressing media needs while also trying to ensure public safety. This has resulted in a system where the RCMP asked journalists to “check in” at a designated place and time. The system also requires journalists to be escorted by an RCMP representative at all times.
Justice Douglas Thompson told the court that he agreed with the media coalition’s position, explaining that the RCMP failed to justify the need for having “extensive” exclusion zones for police to do their jobs.
“I exercise my discretion to make the order sought by the media consortium, on the basis that in making operational decisions and exercising its discretion surrounding the removal and arrest of persons violating the order, the RCMP will be reminded by the presence of this additional language to keep in mind the media’s special role in a free and democratic society, and the necessity of avoiding undue and unnecessary interference with the journalistic function,” Thompson said.
For journalists and members of the public, the case has significant implications about whether the RCMP has the power to engage in a major enforcement action, while preventing journalists or members of the public from seeing all that unfolds.
The court heard arguments from the media partners that managers at some news outlets were being forced to make tough choices about whether to assign reporters to cover the Fairy Creek conflict, without knowing if the RCMP would prevent journalists from being able to do their jobs and report on what was happening on the scene.
The ruling instructs the RCMP not to interfere with media access unless it has a valid operational reason for doing so.
“It’s been quite frankly a day to remember,” Brent Jolly, president of the Canadian Association of Journalists, said at a news conference. “In my humble opinion, it’s sort of a strong affirmation [of] what we’ve been saying all along amongst this [media] group that the public’s right to know is worth fighting for and that democracy demands freedom of the press.”
Here are four key things we learned about the case.
The attorney general of Canada told the court in the federal government’s submission on June 25: “The relief sought by the applicants is a bare declaration of law, with which Canada does not disagree. However, such declarations are meaningless and should not be granted by courts. A declaration of law will only be granted if it will have practical utility by settling a live controversy between the parties, and not where it is merely restating law.”
At times, the RCMP has been unable to provide accurate information to journalists about what is going on at Fairy Creek. For example, on May 21, the RCMP told journalists that no enforcement was planned and didn’t arrange any meet up. “However, there was later a last-minute decision to remove protesters from tree stands,” wrote the attorney general in the submission.
The RCMP then sent media relations officers to meet journalists at an access point, but did not escort journalists into the enforcement area due to claims that “sensitive police tactics were being used.”
“Since that time, it has been clarified that the information was incorrect and that the methods are not sensitive,” the attorney general admitted. “As a result, policy changed to allow for media access during such operations.”
In a sworn affidavit, RCMP Sgt. Elenore Sturko made a series of false statements regarding journalist Brandi Morin, who was on assignment for Ricochet on June 2. Sturko alleged that Morin informed her that two people travelling with her should be allowed inside the enforcement area since they were members of the media.
Morin subsequently submitted her own affidavit, backed up by recordings, that show she stated that the two women were “not members of the media” and that she was profiling them as part of her coverage.
“I can advise that Sgt. Sturko noted the mistake and raised it with our [federal Justice Department] representatives counsel before the hearing,” RCMP spokesperson Dawn Roberts told The Narwhal in an email. “During the hearing the mistake was acknowledged in court. So to be clear, Sgt. Sturko was quick to identify the mistake and ensure same was raised and corrected during the hearing before the Judge.”
The RCMP and the federal government argued in court that they believed their approach was reasonable due to security and safety concerns. They say the area where officers are conducting arrests is hazardous, with dense vegetation and limited area for police to clear obstacles and enforce the injunction. They also said that a lack of cell phone coverage in a large part of the area makes it difficult to communicate.
The government also asked the court to consider other factors that could restrict access, such as whether journalists are acting in good faith in a news-gathering activity, whether they are not actively assisting or advocating for protesters and whether they are not obstructing or interfering with police.
There did not appear to be any evidence that any journalist covering the conflict or seeking to cover the conflict was not acting in good faith.
Updated July 20, 2021, at 09:46 a.m. PT with new information revealing ruling by Supreme Court of B.C. in favour of the media applicants.
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