JULY 20, 2021

The decision came in response to an application from a coalition of media groups, including Ricochet, who asked the court to add a media access clause to the Fairy Creek injunction order after months of police restrictions on journalists.

“I exercise my discretion to make the order sought by the media consortium,” explained Justice Douglas Thompson in his oral remarks, after noting that his full written reasons would be released in the weeks to come, “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.”

The ruling, which follows a two-day hearing last week in Nanaimo, is a significant victory for press freedom in Canada. Although it does not compel the RCMP to change their policies, it is a warning from the court that the rights of journalists must be respected. The court has made clear that if the RCMP continue to fail in this duty, it will not hesitate to intervene.

An application from members of the public to reject restrictions on any person who wants to enter the injunction zone, which was heard at the same time as the media application, was not adopted as written because the wording of the proposed addition was unclear, but the judge noted that “there is substantial merit to the public access application” and said he was “not satisfied that geographically extensive exclusion zones, and associated access checkpoints, have been justified as reasonably necessary in order to give the police the space they need.”

Clarity on the court's decision in regards to the public access application is expected when the written reasons come out.

“The RCMP have now been told by courts in two provinces, as well as their own oversight body, that their approach to restricting media access in injunction zones is inadequate and unlawful,” said Brent Jolly, president of the Canadian Association of Journalists, which also joined the court application. “We hope the police force will take this defeat as an opportunity to sit down with media groups and better understand our rights and needs.”

The decision comes on the same day that the Toronto Police Service barred media from the site of an injunction enforcement operation against a tent encampment in a city park, citing safety concerns, and arrested a Canadian Press photojournalist for attempting to cover the event.

That these unconstitutional RCMP restrictions on media access are now being copied by other police forces is gravely concerning, and underlines the national significance of this ruling.

A history of press freedom violations

For several years, the RCMP have been using injunction orders to establish broad exclusion zones around blockades and other protests in remote locations. These exclusion zones have been applied to journalists as well as the public, and have been condemned by most major international press freedom groups as well as human rights and civil liberties associations.

“The tactics the RCMP have been using to control media — including forcing them to be chaperoned at all times by a police officer and taking them on media tours where they are held in pens far from the action and threatened with arrest if they move — are comparable to an authoritarian regime,” said Derrick O’Keefe, an editor with Ricochet Media. “Quite simply, a controlled press is not a free press. The courts have once again made this point clear to the RCMP, and we’ll have to wait and see if they are listening.”

One of the most well-known examples of this police control is the case of journalist Justin Brake, who was charged both criminally and civilly for violating an injunction in 2016 when he followed a group of protesters onto private property. All charges against Brake were eventually dismissed, and the judge in his case set a precedent that injunctions cannot be used to exclude members of the media.

But the tactic was used on Wet’suwet’en territory last year during a conflict over the construction of a new pipeline, when journalists from multiple outlets were detained and obstructed from reporting. The RCMP’s own watchdog, the Civilian Review and Complaints Commission, revealed that they had delivered a report to the force over a year earlier advising that broad exclusion zones were beyond police authority and unlawful, particularly as applied to working journalists.

Despite a clear court precedent and a rebuke from their own watchdog, the RCMP once again established a broad exclusion zone and denied journalists access to the area as they prepared to enforce the Fairy Creek injunction. As happened at Wet’suwet’en, the force only allowed media access under threat of legal action from media outlets, and the access they have provided has consisted of stage-managed media tours and threats of arrest for anyone who steps out of line.

Last week’s hearing

In two days of oral arguments, lawyers for the RCMP and logging company Teal-Jones, which intervened in the case, argued that the media outlets did not have standing to apply to modify the injunction, that the remedy sought was unnecessary because the law already provided for media rights and that the RCMP was providing perfectly adequate access to journalists.

The RCMP lawyer argued that secret arrests from which media were excluded were permissible, and also justified restrictions on media access by referring to potential safety risks if a media vehicle were to get a flat tire.

Despite being supported by hundreds of pages of pleadings and affidavits and a large team of government lawyers, these arguments proved unconvincing.

Sean Hern, QC, the lawyer representing the coalition of press groups, argued that the media organizations had sought to engage in a dialogue with the force about the unacceptable elements of the restrictions, and even offered various solutions, only to be rebuffed by the RCMP in a letter claiming the police were too busy to discuss such matters.

This disregard for the rights and needs of professional journalists had led to dozens of documented incidents where reporters were barred from covering events, or where their ability to cover events was substantially compromised by excessive RCMP restrictions.

What comes next?

This ruling is not an order, and it does not compel the RCMP to take specific actions to remedy their failures. Instead, it is a direction from the court that the police must do a better job of ensuring access for journalists.

The members of the coalition — which include the Canadian Association of Journalists, Ricochet Media, Capital Daily Victoria, The Narwhal, Canada’s National Observer, APTN News, The Discourse, Indiginews and Canadian Journalists for Free Expression — hope that the police force will now sit down to discuss media concerns and make concessions to ensure that media rights are respected.

If they fail to do so, and continue to obstruct and interfere with journalists, then media groups will have to return to court to compel the RCMP to comply.

Nevertheless, this decision represents a major victory for press freedom in Canada. The RCMP can now either remedy their failures or defy the court’s direction and invite a subsequent judgement. In either case, it seems unlikely that these draconian restrictions on the free press will survive.

Other police forces, including the Ontario Provincial Police and now the Toronto Police Service, have already begun to copy the RCMP tactics, using the same nebulous claims about safety to justify their actions.

Without intervention, police forces across this country could simply exclude the media from any enforcement activities they would prefer not be covered. This would have catastrophic implications not only for press freedom, but for the public’s right to know.

This is why today’s ruling is so crucial, and why such a large coalition of press groups invested the time and resources necessary to challenge the police in court.

“We hope that today’s ruling resolves these issues,” said Jolly. “But if it does not, we are prepared to pursue whatever actions are necessary to safeguard media access and press freedom in Canada. This morning a journalist was arrested for doing his job in Toronto. That simply can’t happen in a free and democratic society.”

The full text of the clause that the judge has ordered be added to the injunction is as follows.

“In exercising their enforcement discretion under this Order, the Police will not impede, curtail, delay, or interfere with access to any part of the Injunction Area by members of the media who are attempting to gather information and obtain photographic and video evidence for their respective publications, except where there is a bona fide Police operational rationale that requires it, and in those instances, as minimally as possible in recognition of the rights and vital role of the media in Canadian society.”