RCMP told Ernst they “don’t do surveillance” when she refused them entry into her home without a warrant while trespassing on her land, lying and trying to terrify her silent after she served legal papers on Encana/Ovintiv, AER & Alberta gov’t.

Harper’s anti-terrorist RCMP squad trespassed, without a warrant, on my private property after the Alberta gov’t, Encana/Ovintiv and AER were served with my legal papers. I was in my own home, not attending any protest (contrary to what media and NGOs, claim, I am not an activist). It seems my only crime was warning the public about frac harms and filing a lawsuit against Encana et al, trying to protect the public interest. The squad wanted into my home. I refused, told them I didn’t trust them or their surveillance techniques.

“We don’t do surveillance,” they replied.

I laughed at their absurdity and didn’t let them in (I was terrified, I live alone rurally).

I let them interrogate me outside. It was a cold February day; I gave the lead interrogator a metal chair, I sat in a wooden one; I offered blankets, tissues for their runny noses, hot tea with honey, all declined.

When the officers were done trying to scare me and get me to admit to crimes I had not committed (like AER’s lawyer Rick McKee failed at three years earlier trying to get evidence after the fact to justify the “regulator” violating my Charter rights), they left, shoulders slumped, knowing their mission for Herr Harper and buddy Encana to snare me had failed.

Explosive report reveals RCMP’s toxic culture of racism, misogyny and homophobia by Pam Palmater, December 4, 2020, Rabble.ca

RCMP’s toxic culture

Racism, misogyny and homophobia — these are the characteristics of Royal Canadian Mounted Police (RCMP) toxic culture according to a new report released last month.

The report, “Broken Dreams Broken Lives,” was written by former Supreme Court of Canada justice Michel Bastarache, who had been engaged as an independent assessor to review the more than 3,000 claims of sexual harassment experienced by women who worked for the RCMP. He found that the experiences of these women in the RCMP were nothing short of devastating. In my experience, Encana/Ovintiv illegally frac’ing Rosebud and Redland’s drinking water aquifers, repeatedly, injecting 18 Million litres frac fluid directly into them, is like being repeatedly raped by Christian married pedophiles. When will there be an “independent assessor” reviewing the many frac’d water supplies and frac-harmed Canadians suffering betrayal after betrayal by politicians, regulators, the courts, police/RCMP, and even one’s own lawyers (Cory Wanless and Murray Klippenstein)?

In addition to those women who suffered from violent sexual assaults by their male RCMP colleagues, many women have been left with deep psychological injuries which range from major depressive disorder and post-traumatic stress disorder to substance dependence and even suicide. Bastarache emphasized that “it is impossible to fully convey the depth of the pain that the assessors witnessed” and that “no amount of financial compensation can undo the harm” these women and their families experienced at the hands of the RCMP in all provinces and territories.

RCMP culture eats policy

The real tragedy is that none of this is news — not to the RCMP or the federal and provincial governments. All of them have known about this long-standing, widespread problem of racism, misogyny, homophobia and violence within the RCMP for many decades — through both internal and external reports and litigation.

The RCMP is a male-dominated, paramilitary organization whose powerful, toxic culture has prevailed despite internal policy changes. They are impervious to change because “culture eats policy every time.” The RCMP are invested in the status quo and will not change: In my experiences, it’s the same with “regulators” like AER (100% industry-funded), the legal industry (regulated by lawyers) and judicial industry (regulated by judges).

“Indeed, there are strong reasons to doubt that the RCMP has this capacity or the will to make the changes necessary to address the toxic aspects of its culture.”

Sexualized violence

One of the most disturbing aspects of the report is how male RCMP members and leaders saw women as “fresh meat” to be used and abused as they saw fit. 

The stories told to the assessors “shocked them to their core.” In addition to “serious acts of penetrative sexual assaults,” male RCMP officers from all over Canada engaged in horrific acts of sexual harassment and abuse including:

  • unwelcome sexual touching;
  • men exposing their penises;
  • making degrading comments about women’s bodies;
  • humiliating name-calling;
  • spreading violent and obscene pornography forcing women to watch it;
  • being handcuffed to men’s toilets and locked in cells;
  • leaving dildos and used condoms on their desks;
  • being accused of selling sex;
  • outing their sexual orientation without their consent; and
  • stalking and bullying by male RCMP demanding sexual favours from women.

Compare the above RCMP acts to operating as taxpayer-funded thugs serving multinational corporations like Encana/Ovintiv, abusing and or conning citizens, families, communities that courageously say no to frac’ing and other toxic oil and gas industry harms, or go public trying to warn others of harms already illegally done, with politicians, and regulators unwilling or too cowardly to uphold the “rule of law,” and courts intentionally publishing lies in rulings.

RCMP Targeted Indigenous women

The report details how the RCMP treated Indigenous women even more poorly than other women. 

In addition to the humiliating and degrading behaviours experienced by other women in the RCMP, Indigenous women were also referred to as “squaw” and “smoked meat” and “were, at times, forced to watch RCMP members treat other Indigenous people brutally.”

Their male RCMP colleagues took advantage of the fact that many of these Indigenous women were young and came from small or remote communities and were not accustomed to this type of toxic culture.

“Indigenous women, particularly those who had been abused as children, were preyed upon by their male colleagues for sexual favours.”

“Few bad apples” myth busted

The RCMP has long relied on the “few bad apples” justification to protect their organization’s status quo which has resulted in so much pain and suffering for women in the RCMP.

Despite the fact that RCMP members and leaders have long denied the systemic and cultural nature of their racism, misogyny and homophobia, this report found that sexual harassment in the RCMP exists “at every level of the RCMP and in every geographic area of Canada” and is “embedded in its culture.” Even those members and leaders who are well-intentioned make choices to accept this culture and stay silent on the injustices. Creepily like too many in Canada’s legal and judicial industry.

“The reality is, however, that even honourable members (and well-intentioned leaders) have been required to conform to (or at least accept) the underlying culture, which they have, for the most part, had to adopt in order to succeed in their career. Those who do not accept the culture are excluded.”

RCMP cannot be fixed from within

This report makes it very clear that the RCMP cannot be fixed from within. They simply refuse to acknowledge that there are significant problems that are systemic and deeply rooted within their culture. As long as racist, misogynistic, homophobic, bigoted (and largely rich white) politicians appoint our judges, nothing will change, except the lies will get louder. Carry abusively on, as intended by PM John A MacDonald, to protect the white rich.

Their toxic culture of racism, misogyny and homophobia is “powerful and presents an obstacle to change.”

Furthermore, “Financial settlements of class-action lawsuits will not change this culture.”

The assessors found that the RCMP like judges, the Canadian Judicial Council, law societies and too many lawyers? “are invested in the status quo and will not likely want to make the necessary changes to eradicate this toxic culture.”

In fact, many of the women that had been interviewed felt that there was no chance for reform within the RCMP and some suggested it was time that it be replaced. This is what many Black and Indigenous peoples have been saying for decades and why the calls for the RCMP to be abolished have grown stronger in recent years.

And finally, the report concluded that the RCMP are not able to either investigate or remediate these problems.

“These men were often not held accountable for their actions. Indeed, the assessors were told that one tactic used by the RCMP to resolve complaints of sexual harassment was to promote and transfer these men.”

Copying the “silent shuffle” of pedophile-infested churches, notably catholic, enabled by:

And, as long as lawyers help abusers “settle and gag” and worse, pay off the harmed with the public’s money – never that of the men causing the harms, Canada’s facilitated rape of children, women, immigrants, the poor, marginalized, Indigenous and our environment will only escalate.

What’s next?

It is clear from this report that the RCMP has neither the will nor the ability to address its toxic culture and its widespread sexualized violence within its ranks. 

It must also be kept in mind that this is just one of many class actions against the RCMP. The RCMP’s toxic culture of racism, misogyny and homophobia, together with widespread sexualized violence, represents a major public safety issue for women generally, and especially for Indigenous, Black and marginalized women and girls.

We need Canadians to call on Canada to:

  • Open the books at the RCMP so we can hold those who preyed on women to account;
  • Conduct an independent investigation into the RCMP’s similar actions towards Indigenous peoples; 
  • Make reparations to Indigenous peoples who have suffered from RCMP harassment, over-arrests, racism, brutality, sexualized violence and killings; and 
  • Dismantle the RCMP once and for all.

Pamela D. Palmater is a Mi’kmaw lawyer and member of the Eel River Bar First Nation in New Brunswick. She teaches Indigenous law, politics and governance at Ryerson University and heads Ryerson’s Centre for Indigenous Governance. This article was originally published in Indigenous Nation.

One of the comments:

Mikey

When the Doctor is in the house , you’re gonna hear some strong medicine. Chalk up another horror produced by supposedly centrist politics.

Real democracy and rule of law would not allow this to continue. Only a deceptive extremism can produce such a history.

The RCMP’s X-Men Fixation Is More Sinister than Comic, The force’s ‘Project Wide Awake’ name choice shows a broken police culture that harms Black and Indigenous communities by Daniella Barreto, Dec 9, 2020, TheTyee.ca

The RCMP’s decision to name its Project Wide Awake online surveillance program after mutant trackers in the X-Men comic book series might seem like harmless fun.

But viewed against the scathing revelations of systemic racism and misogyny in police forces nationwide, it’s a troubling glimpse into police culture that unmasks the institution’s casual dehumanization of marginalized groups.

The Tyee first revealed the existence of Project Wide Awake, an operation monitoring individuals’ Facebook, Twitter, Instagram and other social media activity, in 2019.

In the X-Men comic series, Project Wide Awake is a covert government program that employs mutant-hunters, or “sentinels,” to monitor, track down and exterminate human mutants — the X-Men.

In the real world, Project Wide Awake is the RCMP’s large-scale online surveillance program designed to monitor internet users and political protest activity. In the RCMP’s version, Canadian residents are the mutants being targeted by “the hunters.”

But not everyone is an equal target. Due to power dynamics and social discrimination, poor, Black and Indigenous communities are disproportionately policed and surveilled. They’re often cast as the “bad guys.”

The operation’s mutant-hunting eponym is not coincidental or even an isolated incident within the RCMP. Documents obtained by The Tyee exposed references to two projects connected to Project Wide Awake with names plucked directly from the X-Men series: Sentinel (mutant hunting robots in the comic book series) and Cerebro (a powerful device to detect mutants’ locations).

While the RCMP was not forthcoming with Tyee reporter Bryan Carney about these projects’ exact purposes, their names alone and their mention in a covert operations meeting agenda for Tactical Internet Operations Support unit suggest further surveillance operations.

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An RCMP Tactical Internet Operations Support unit agenda from 2018 mentions its programs ‘Cerebro’ and ‘Sentinels’ and ‘Wide Awake’ — all references to programs and technology in the X-Men related to tracking and hunting mutants.

X-Men isn’t the only Marvel comics reference to have popped up in Canadian policing.

Earlier this year, a Toronto officer was photographed wearing a skull emblem for the Punisher, Marvel’s outlaw character who delivers vigilante justice. The Punisher features prominently in pro-police and white supremacist merchandise despite the creator’s efforts to scrub the association.

Society tells us that police exist to bring justice. Like comic book characters, this is fiction. Across the country, Black and Indigenous communities bear the brunt of policing’s impacts and are disproportionately targeted in street checks by police forces. They also experience disproportionate levels of police violence. Drug users, sex workers and people who are homeless are often harmed by the police through active harassment and violence or neglect.

Canada is built on policies that explicitly or implicitly operate to wipe out Indigenous peoples from their lands and suppress Black communities. And help corporations rape aquifers, public health, communities, families and our environment, and give them billions of our tax dollars to do it. Drug and sex work criminalization forces people into isolated situations so they can avoid the police, but they are then exposed to other dangers such as overdoses and client violence.

When some groups are cast as “other,” “different” or “foreign” by dominant society, Or speak out about illegal frac operations or say no to frac’ing to try to protect community drinking water and public health they are perceived as a threat to be watched and managed, subject to prejudice, exclusion and dehumanization. In this context, the language and framing police choose matters.

The RCMP is mythologized in the Canadian imagination as an honourable force on horseback sporting the distinctive red uniform, a symbol of national pride and bravery.

In fact, as demonstrated against the Wet’suwet’en land defenders earlier this year, the RCMP is an increasingly militarized outfit designed to enforce colonial laws and control the population through threat of force, like other police forces in Canada.

Historically, RCMP officers were instrumental to the colonial project in expanding Canada’s rule in the West, dragging Indigenous children away from their families and cultures and dropping them into the arms of priests and nuns where they experienced the unthinkable horrors of residential schools.

The RCMP has consistently operated against the safety of Indigenous peoples from inaction surrounding cases of missing and murdered Indigenous women to killing Indigenous people while performing wellness checks to surveilling and arresting land defenders.

The values that underpin policing in Canada necessarily reflect the values of a colonial state interested in dispossessing Indigenous peoples of their land.

Black people have a different yet similar experience of violence and exclusion in Canada. They are often criminalized, surveilled and policed in public space and have been subject to a long history of enslavement, segregation, discriminatory immigration practices and police violence.

Popular media often portrays Black people as inherently criminal, violent, sexually deviant and possessing superhuman strength. These are widespread tropes that foment fear and justify suspicion and aggression towards Black people, including in Canadian policing. For instance, in 2016, the RCMP categorized a daytime vigil outside the Vancouver Art Gallery to remember the deaths of Alton Sterling and Philando Castile as a “serious crime-unfolding event” in a document related to its social media surveillance of the group.

The same document states that there was no indication of violence. This shows how police assume Black people are criminals, which might have served to justify social media surveillance in the first place.

If officers are institutionally and socially primed to see Black people as a threat, then the stage is set for the surveillance, contact and violence that has resulted in the needless criminalization and deaths of too many in Canada.

Recognizing a problem in the RCMP, the federal government provided the force with $238 million for body cameras this month. However, there is little evidence that body cameras do anything but record police violence. Even when police violence is recorded, impunity is common.

Body cameras are an expensive and unproven way to try to improve police accountability through technology while effectively increasing police surveillance powers. In fact, body cameras can be used as an enhanced way to criminalize subjects by letting police create a massive database of surveillance footage of communities that are already over-policed. This data has the potential to be used by the RCMP’s Tactical Internet Operations Support unit against those protesting social injustice.

Ultimately, something as trite as a comic book name for a spy program simply corroborates the mountains of evidence that policing in Canada is a toxic and harmful institution.

We must interrogate policing as we know it. We must demand our governments support communities with evidence-backed approaches that produce positive outcomes on a broad scale. Investing in the social determinants of health will have a lasting impact. Instead of funding increased surveillance and policing, governments must fund education, mental health and social support programs led by communities themselves, provide housing, and decriminalize drugs and sex work.

Building real community safety demands we move from a mindset of “fighting crime” to one of ending harm.

‘You Have Zero Privacy’ Says an Internal RCMP Presentation. Inside the Force’s Web Spying Program, ‘Project Wide Awake’ files obtained by The Tyee show efforts to secretly buy and use powerful surveillance tools while downplaying capabilities by Bryan Carney, 16 Nov 2020, TheTyee.ca

Excellent visuals at link.

A 3,000-page batch of internal communications from the RCMP obtained by The Tyee provides a window into how the force builds its capabilities to spy on internet users and works to hide its methods from the public.

The emails and documents pertain to the RCMP’s Tactical Internet Operation Support unit based at the national headquarters in Ottawa and its advanced web monitoring program called Project Wide Awake.

The files include an internal RCMP presentation that contradict how the force has characterized Project Wide Awake to Canada’s privacy commissioner and The Tyee in past emails. A slide labels the program’s activities “Social Media Surveillance,” despite the RCMP having denied that description applied.

Communications show one high-level officer blasting the project before leaving the RCMP for Chinese tech firm Huawei.

Other members were jokingly dismissive of public concerns about privacy violations — a training slide for the project says: “You have zero privacy anyway, get over it.”

In seeking contract renewals and wider capabilities, the RCMP claimed its spying produced successful results, including finding online a “direct threat” to Prime Minister Justin Trudeau.

The documents reveal the RCMP:

  • Gained permission to hide sole-source contracts for Project Wide Awake from the public through a “national security exception.”
  • Discussed “tier three” covert operations involving the use of proxies — intermediary computers located elsewhere — to hide RCMP involvement with spying activities.
  • Purchased software with an aim to search “Darknet,” which it defined to include “private communications” and those from “political protests.”
  • Has used a tool to unmask lists of “friends” on Facebook for users that specifically set friends’ information to private on the platform.
  • Was “wasting resources, wasting time, wasting money” on IT projects, according to the then RCMP chief information officer.
  • Took the names for Project Wide Awake and other internet surveillance programs from the X-Men comic book series, in which illegal government programs hunt human “mutants.”

The Tyee shared some excerpts from the files with Brenda McPhail, director of the Privacy, Technology and Surveillance Project at the Canadian Civil Liberties Association, who said they raise alarms.

“This is more evidence that we should be very concerned about this program and the incredibly secretive and unaccountable way that it was developed and run,” she said.

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RCMP referred to its programs as social media surveillance internally while distancing itself from the term in external communications.

The Tyee first revealed in March 2019 the existence of Project Wide Awake which experts said could pose a threat to Canadians’ privacy and charter rights We don’t need to worry about RCMP/CSIS/CSEC threatening our charter rights (in my experience, RCMP violate our rights regularly, judges lie in rulings and piss on the rule of law when it suits them, and lawyers piss on the rules that “regulate” their profession), the Supreme Court of Canada already damaged our civil Charter rights in 2017, with silence from then Attorney General of Canada, Jody Wilson-Raybould, and the same month filed a freedom of information request to the RCMP to find out more. The release of the files took a year and a half, following a complaint to the watchdog federal Office of the Information Commissioner. This is the first of more Tyee articles to come based on what we received.

Hiding software purchases, claiming ‘national security’

After The Tyee exposed Project Wide Awake, the RCMP said the program employed off-the-shelf social media marketing software sold to companies and agencies for uses that merited no public concern or judicial permission.

Internally, however, the force was seeking to extend licenses on more complex monitoring software geared for law enforcement called Babel X and use it ongoing in investigations across the country. The FOI documents show this had been a goal of the force as far back as 2017.

Makers of the Babel software claim it can translate 200 languages. According to a 2017 Vice article, it has “extremely precise” filters for dates, times, data type, language and even feelings and moods expressed in messages. The article quotes a since removed passage on the company’s website boasting “the ability to evaluate sentiment in 19 languages — far exceeding the capacity of any other competitor.”

Several years before applying to secretly procure Babel X for wider purposes, the RCMP already employed it in parts of its operations, the documents released to The Tyee confirm.

The force had been using Babel X since 2016 in its Manitoba division. By 2018, the RCMP also used Babel X at its national headquarters in advance of the G7 meeting in Quebec, records including a contract confirm.

But the 2018 contract was approved for only one year for the G7 and had since expired, the RCMP told The Tyee in an October email.

In February 2019, as the force sought to secretly obtain Babel X or a tool much like it, an officer argued to Public Services and Procurement Canada that “if released into the public domain” knowledge such software was being used by the RCMP could “jeopardize border integrity” and “criminal and national security investigations,” and “provide avenues for adversaries to attempt to defeat these capabilities,” the newly released documents show.

Gilles Michaud, then commissioner of federal policing, made the argument while requesting a “national security exception” which would remove the buy from public procurement procedures.

The documents reveal the RCMP had previously obtained such exemptions for contracts related to Project Wide Awake as well as existing licenses for Babel X.

But it would appear Michaud did not get his way this time.

The force posted a public procurement notice on Nov. 29, 2019 for an unnamed “advanced social media tool,” reported on by The Tyee, and went on to quietly buy Babel X on Sept. 2, 2020.

‘A kind of trick’

Back on Dec. 28, 2016, the RCMP ordered “optional goods” — extra software and features — in a Babel X contract found in the documents, but the list was blanked out. No contract or procurement documents naming Babel X appeared on Public Services and Procurement Canada websites until 2020.

McPhail calls it “a kind of trick” the way RCMP downplayed the power of the Babel X software it was already using in some of its offices, and then sought to hide it from public scrutiny by gaining a national security exemption.

“We have a public crisis around police accountability and their use of surveillance technologies,” said McPhail. “That crisis is fed by this kind of trick — attempting to put procurement into categories that permit greater secrecy.”

Kate Robertson, a criminal defence lawyer and researcher at University of Toronto’s internet security-focused Citizen Lab agrees.

“The methods are either unexpected and therefore must remain secret, or their methods are ordinarily expected by individuals and therefore non-intrusive. The RCMP cannot have it both ways. The constitution draws a bright line: all intrusive surveillance practices by police services must be the subject of prior judicial oversight,” wrote Robertson in an email.

Private messages, political protests named ‘Darknet’ targets

In procurement forms and presentations to RCMP trainees about who it will target with its expanded tools, the RCMP lists “Darknet,” commonly understood to refer to hidden, encrypted parts of the web.

In other documents the Tactical Internet Operations Support unit names “private communications” and “political protests” in its internal definition of Darknet, which the force aimed to target. Also listed as part of Darknet are “illegal information,” “drug trafficking sites,” and “Tor-encrypted sites” which hide user identities by moving data through different servers. But Pornhub, posting videos of raping children is fine? The Children of Pornhub, Why does Canada allow this company to profit off videos of exploitation and assault?

And Law Society of Ontario licencing known convicted pedophiles is fine too – keeps lawyers making plenty of money as the rest of us get raped again and again and again?

But in its communication with the privacy commissioner found in the documents, the RCMP claims the targets of its monitoring are exclusively “open source,” in this case implying the tool’s purpose is to scan communications that are posted with no expectation of privacy.

“The term ‘open source’ is vague, and can obscure a wide range of sophisticated technological interferences including even hacking,” said Citizen Lab’s Robertson.

“For this reason, even open source surveillance techniques are illegal when they impact the privacy interests of individuals in Canada.

“The surveillance technologies that are only now being revealed do not appear to be truly open source methods,” said Robertson.

McPhail added, “Our privacy commissioner has gone on the record as saying not all information in the public domain loses all reasonable expectation of privacy.”

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The RCMP’s Project Wide Awake logo on training materials.

McPhail found troubling the documents reflect an RCMP view that any communication on the internet can be assumed fair game for surveillance because it’s already in a public realm. “It’s one thing to understand that an individual will see your passing communication, and quite another thing to assume that everything you’ve ever written will be subjected to an analysis by the state.

“It changes the relationship between the citizen to the state, and their expectations of privacy in their communications,” said McPhail.

Another RCMP email in 2017 makes reference to a separate “dark web crawler” project being led by Eric Huot, then a member of the force. Huot now runs a private internet intelligence firm, where he claims he “developed, led and managed” the RCMP’s Tactical Internet Operations Support team for over 12 years, as well as the 2018 G7 open source intelligence unit.

Huot is listed as “Operations Lead” at the TIOS team in internal documents from May 2017.

Reached by The Tyee, Huot declined to comment on RCMP projects but stated that the interception and collection of private communications, whether from Darknet or elsewhere are “not synonymous with open source intelligence activities.”

Cracking into Facebook friends

Emails in 2017 reveal the RCMP conducted a cross-province survey of software already in use for advanced social media monitoring in its divisions.

Nova Scotia RCMP responded by saying it uses a tool which can “unlock friends on private friend lists,” apparently referring to Facebook users who have set their list of friends on the platform to be hidden.

The Nova Scotia force had used software on a “covert laptop” in its investigation of organized crime and motorcycle gangs, it noted. The software also enables officers to extract entire timelines of Facebook users into Excel forms.

The force compared the tool favourably to Facebook Visualizer and Loco Citato, which perform similar functions. Loco Citato, which was also marketed to law enforcement, had been issued a cease and desist order from Facebook in 2014 for its extraction of data from the platform, according to a blog entry of its creator.

The Nova Scotia RCMP also said it used a social media scanning software named Navigator, made by Life Raft Inc., for “protest and event monitoring.”

Tiers of secrecy

The documents obtained by The Tyee reveal that the RCMP’s Tactical Internet Operation Support unit codes its internal operations according to how much it wants each hidden from view.

Tier 1 operations can be visible to the public.

Tier 2 operations, described as “low attribution,” are those for which it is considered not a serious problem if they exposed.

Tier 3 operations are considered covert or undercover and involve separate clearance and clear guidelines to ensure the RCMP is not identified.

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Tier 3 operations by the RCMP hide any association with the force; Tier 2 operations are ‘discreet’ but ‘links to RCMP possible.’

RCMP meeting notes show members discussing using technologies to enable its computers and cell phone activity to appear to originate in other countries “instead of bouncing all signals out of Ottawa.”

Heated words and a top officer exits

On Jan. 31, 2017, the RCMP discussed projects of the Tactical Internet Operations Support unit in a strategy meeting. A draft of a briefing note prepared by Tim Evans, officer in charge of Project Wide Awake for the deputy commissioner of the RCMP, suggests high tensions in-house. Pierre Perron, when a top information officer in the RCMP in 2017, blasted the RCMP’s national operations for ‘continually wasting time, wasting resources and wasting money’ and departed the force a month later to work for the Chinese IT giant Huawei.

The then chief information officer of the RCMP, Pierre Perron, entered the meeting late and “unleashed a fury of negative comments” directed at Federal Policing — the national division of the force running TIOS and Wide Awake  — over its internet technology projects, said Evan’s draft, included in an email.

Federal Policing is “continually wasting time, wasting resources and wasting money and [Perron] is left to pick up the pieces,” wrote Evans in an account of Perron’s comments at the meeting dated Feb. 1, 2017. Perron would be speaking to the deputy commissioner, Evans added.

An officer whose identity is unclear commented that the wording in Evans’ draft was “highly personal” and might “inflame tensions” with Perron.

In the briefing, Evans wrote that the objective in TIOS remains to “make sure we follow the processes of the organization in order to not have another incident which caused [Perron] to express the frustration with Federal Policing.”

The unknown second officer said Evans “makes it sound like we do work to placate” Perron. And asked, “Would not the objective be to follow a process that advances Wide Awake in a legal and policy compliant manner?”

Barely a month after the meeting, Perron had departed the force and accepted a job at Huawei, according to his LinkedIn profile. The move was controversial since Perron possessed secrets about Canadian government and RCMP operations. Canada is facing pressure to ban Huawei’s attempt to develop 5G networks because of the company’s close ties to the Chinese Communist Party.

Huawei “has had a very aggressive campaign to soften its image,” Chris Parsons of Citizen Lab told the Globe and Mail a month after Perron moved to join the company. “Having a high-level Mountie might be sufficient moral suasion to alleviate some of the concerns,” Parsons added.

“I am well versed on my obligations under the Security of Information Act,” said Perron in the same Globe piece.

Reached by The Tyee via email, Perron asked to see the documents in order to comment but did not reply further after receiving them.

A police culture that draws on comic books

Project Wideawake was the name given in the X-Men comic book series to a secret, illegal government program designed to hunt down mutants — humans with special powers.

A fan website Marvel Database explains Project Wideawake “denied mutants even their most basic civil rights.”

Prior to The Tyee’s reporting on the RCMP’s web spying tools, the only online matches for the words “Project Wideawake” could be found on such X-Men fan pages.

Other covert program names at the RCMP Tactical Internet Operations Support unit borrow X-Men terminology about tracking mutants.

“It’s not uncommon for individuals who deal with dark subject matter to attempt to maintain mental equilibrium through the use of dark humour,” noted the CCLA’s McPhail. “That’s a recognized coping strategy.”

The documents make reference to TIOS aims to track organized crime and biker gangs, witness protection programs and terrorist threats.

However, she added, “It’s odd to me that our national police force would compare themselves to mutant hunters in a comic book universe. Particularly when we understand that one of the uses of this technology was to look for signs of unrest around constitutionally protected protest.

Dark humour may inflect a slide in a presentation meant to orient RCMP members to Project Wide Awake. It declares: “You have zero privacy anyways, get over it.”

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An RCMP slide persuades trainees to put aside concerns about citizens’ privacy.

But in other moments, the force earnestly justifies its secret web surveillance by invoking a sense of overriding public duty.

“If I was to keep my community safe, I had to know who they were,” training materials for Project Wide Awake quote former RCMP commissioner Bob Paulson comparing his early career patrolling Chilliwack, B.C. to monitoring activity on the web.

Claims of serious threats intercepted

“Project Wide Awake uses commercially available software to analyze information posted on public social media platforms, work that requires no search warrant,” the RCMP told The Tyee when it first reported on the program last year.

But an exchange between a covert operations officer acknowledged in an internal RCMP exchange that Project Wide Awake is a “social media application software tool [that] could be considered surveillance by the public.”

In the same document — a form used to determine whether a privacy impact assessment should be required — the covert operations officer checked off that Project Wide Awake would not “use or disclose more personal information than in the past… collect the personal information directly from the subject individual,” or “collect personal information from other programs” from within the RCMP or “from other institutions, from other governments or from the private sector.”

The officer affirmed that Project Wide Awake data “would be used in decision-making processes that directly affect individuals.” But its collection “is specific to intelligence or investigative requirements,” the officer noted.

The internal documents obtained by The Tyee include “success stories” the RCMP cited in its proposal to obtain funding for renewal of its software licenses. Listed:

“February 2018: A request was received from C Division to see if the WideAwake tool could be used to obtain historic Twitter data from the SOC [subject of concern] relating to the Quebec Mosque shooting.”

“March 2018: The tool surfaced a tweet by an individual threatening to shoot up a high school. The TIOS team was able to determine that the individual resided in Florida.”

“March 2018: The tool surfaced a direct threat to the life of Prime Minister Trudeau. This was the Threat Assessment Unit who identified the threat using the tool.”

The RCMP has been in the process of completing a federal privacy impact assessment for over a year.

The Tyee has contacted the RCMP for comment on aspects of the released documents, including privacy protections, secrecy and how its web surveillance fits into investigations, and will include its responses in future pieces.

a few of the comments:

George Pope

I’m really getting sick of ceretain parties on the federal payroll including lying judges! defecating on MY rights, guaranteed in OUR Constitution that is a higher law than even covert RCMP ops!

George Pope John Then get wartrants — have a 3rd party (judge) look at the application & compare it to the Constitution & stated needs. If judge approves — Tier-3 secrecy.

John George Pope Good in theory, but judges often have loose morals and looser tongues, much like senior Police (command) officers who’ve wrecked investigations.

JuHoansi

Great investigative reporting, Bryan. This is very explosive information. I hope this story gets picked up by the national media.

What a scandal the RCMP is brewing. This confirms why I NEVER EVER reveal my real name anywhere on the internet.

***

Harsha Walia@HarshaWalia tweet dec 3, 2020:

Former RCMP analyst who hyped “violent Aboriginal extremists” was administrator of racist Facebook group.

The system is rotten and racist at its core and rcmp are an invading and occupying force on Indigenous lands. No more reforms, abolish the RCMP.

Elispogtog anti-fracking blockade had ‘violent Aboriginal extremists’ according to former RCMP intelligence analyst by Angel Moore, Dec 02, 2020, ATPN News

Tim O’Neil was also the administrator an RCMP Facebook group that contained racist comments.

A former criminal intelligence analyst for the RCMP who reported that an energy project in New Brunswick was up against “violent Aboriginal extremists” was also the administrator of a Facebook group which featured current and former Mounties, at times, making racist and disparaging remarks about Indigenous Peoples.

For six years Tim O’Neil’s duties included putting together reports for the top brass at the RCMP on issues including threats to energy projects in Canada by Indigenous groups or environmental organizations.

One of these reports, Criminal Threats to the Canadian Petroleum Industry, which is available publicly, is a criminal intelligence assessment report about the 2013 anti-fracking protests led by people in Elsipogtog First Nation near Rexton, New Brunswick.

Along with using the phrase “violent Aboriginal extremists,” O’Neil’s 2014 report also uses wording that includes “criminal intentions of the eco-extremists and violent rhetoric.

“Analysis of existing intelligence and open source reporting indicates that violent Aboriginal extremists are using the internet to recruit and incite violence and are actively engaging in direct physical confrontation with private company officials” says the report under the “Aboriginal Opposition” heading.

The peaceful protest at Rexton came to a violent end when heavily armed, militarized police raided the blockade in Kent County, N.B. on Oct. 17, 2013.

Lorraine Clair of Elsipogtog is a land and water protector who was on the ground when the RCMP moved in.

“Criminal threats to the Canadian petroleum industry,” she says reading from the report. “Criminal threats… and we were criminals now because we are defending our land, we’re protecting our water we’re you know defending our children’s and grandchildren’s inherent right, really?”

RCMP analyst
‘This guy is smearing pretty well every Aboriginal movement that has occurred to defend land, water and…treaty rights,’ says Lorraine Clair who was arrested for participating in the anti-fracking protests in New Brunswick. Photo: Angel Moore/APTN.

O’Neil collaborated with other policing agencies such as the Canadian Security Intelligence Service (CSIS), monitoring Indigenous protestors.

“When you end up having this kind of official language that is just so biased… it really demonstrates to how rotten the institution is that it can’t recognize how problematic these things are,” says Jeffrey Monaghan, a criminology professor at Carleton University in Ottawa who has been studying RCMP tactics for more than 10 years.

O’Neil was also the administrator of a Facebook group called RCMP Mates.

As previously reported by APTN News, that site with 12,000 members, hosted racist comments aimed at Indigenous Peoples and other minority groups.

“They are out there procreating faster than smart people,” one comment read on the site says.

When members of the Wetsuwet’en Nation and their supporters in British Columbia pushed back against a pipeline, which prompted other communities to block rail lines in solidarity, the comments once again flared.

“Terrorists should be shot, this goes way beyond reasonable protest,” said one post. “It’s so funny, they still call them protestors, they are domestic terrorists.”

None of these comments are attributed to O’Neil.

But he resigned from the group after APTN contacted him regarding the group and published a story on Aug. 31.

Before resigning, he had a warning for members of the group.

“I want to alert the group that I was contacted by APTN… remove any posts that were even the least bit controversial,” he wrote.

O’Neil also had a message for his followers in the Facebook group.

“Threatening to go to the media will end with your immediate removal.”

RCMP analyst
Former RCMP analyst Tim O’Neil from his Facebook page.

APTN reached out to O’Neil several times for an interview.

He declined, stating that, “as a former RCMP employee I am by law not permitted to discuss my work while employed with the RCMP.”

But that statement to APTN on Nov. 24, 2020 seems to be contradicted by what O’Neil posted on RCMP Mates and his LinkedIn profile.

“Between 2008 and 2014, I was the RCMP’s lead criminal intelligence analyst tasked with identifying and analyzing potential and credible threats to the Canadian energy sector,” he wrote.

The RCMP confirmed in an email to APTN, O’Neil worked on the critical infrastructure team from 2008 to 2012.

Monaghan says reports like O’Neil’s only promote one side of the issues – and it’s not the Indigenous side.

“I think there’s just so much on the ground racism, outright racism where RCMP officers are treating Indigenous people like crap,” he says.

RCMP analyst
Members of the RCMP in camouflage clothing with high powered weapons at Elsipogtog.

Clair remembers being arrested weeks after the RCMP’s takedown of the anti-fracking blockade.

“This guy is smearing pretty well every Aboriginal movement that has occurred to defend land, water and what do you call it, treaty rights they are not even stating this is why we are doing it you know we are defending our rights, if the tables were turned, if we were infringing on their rights, you know, would they not stand up too?”

Monaghan says O’Neil criminalized Indigenous protectors as eco-terrorists. AER did same to me, after I sent them evidence of Encana/Ovintiv breaking the law. First though, in 2005, AER ruled me a criminal (in writing), without any evidence, no hearing or trial, no arrests, no fingerprinting, no charges, all without letting me know I was being judged and given no chance to hire a lawyer during their secret process. Seven years later, they changed their “criminal” ruling to me being an “eco-terrorist” in an official court filing, again without any evidence, no hearing, no trial, no arrest, no fingerprinting, no charges. The Supreme Court of Canada recently ruled even those that harm others have charter rights that must be protected, but RCMP, AER, Alberta courts and the Supreme Court of Canada do not protect Charter rights of civil Canadians that have not caused harm to others and have been harmed by the oil and gas industry.

Above slide from Ernst presentations

“And for policing Indigenous protests in particular it was really kind of sensationalizing the threat in a way that I think was trying to really kind of put Indigenous protests on to the like kind of a higher level of threat to get more resources within the policing bureaucracy.”

Monaghan isn’t the only one raising concerns about reports like the one compiled by O’Neil.

A recent report by former Supreme Court justice Michel Bastarache found the culture at the RCMP “toxic.” And that the force tolerates misogyny, homophobia and racism.

The Civilian Review and Complaints Commission issued a report in November after a seven year long investigation into the RCMP takedown of the Mi’kmaw anti-fracking blockade, that justified the Mounties’ militarized use of force and found the RCMP did not display bias towards Indigenous people.

***

RCMP civilian oversight agency has ‘no teeth’ and is ‘fundamentally flawed’ say lawyers, Review and Complaints Commission has powers of investigation it rarely uses by Thomas Rohner, CBC News, Jul 02, 2020

The agency charged with oversight of the RCMP, including across the North, is not only decades behind the national trend but rarely employs what limited powers it is legislated to use, according to some experts. 

The Civilian Review and Complaints Commission (CRCC) for the RCMP provides oversight of complaints against the Mounties across Canada. But it can also conduct its own investigations and order its own hearings, according to the Royal Canadian Mounted Police Act, which created the commission. 

“They have the power to conduct investigations, they have the power to hold a public inquiry into a complaint, but they don’t do it,” said Tom Engel, a criminal defence lawyer from Edmonton.

“It’s actually a disgraceful process. They keep saying they have independent oversight, which is completely false,” he said. 

Complaints against the RCMP are usually investigated by the RCMP themselves, according to the RCMP act. 

Experts have been saying for years that police investigating police is not best practice because police often protect other police, even from other agencies. 

After the RCMP investigates a complaint, if the complainant is unhappy with that investigation, they can request the complaints commission to review the file. 

The commission can then send the file back to the RCMP and ask for further investigating. 

Over the last three years, the commission received more than 7,000 complaints, commission spokesperson Kate McDerby told CBC. 

Of those complaints, 795 complainants asked for a review, McDerby said. 

Eighteen of those files were sent back to the RCMP for further investigation.

Six Nunavummiut asked for a review of their investigation, but McDerby said none of those were sent back for further investigation.   

Long delays

Engel said he recently received a report from the commission on a complaint for which he requested a review — more three years ago. 

“When you go to the CRCC to review the dismissal of a complaint, you don’t get the investigative file. You don’t get to see how the investigation was conducted,” said Engel.

The report was also sent to the RCMP chief, as per the commission’s process. 

“Then it’ll be the commissioner doing a response in another year or year and a half. And the commissioner can just say, ‘I don’t agree.’ So there’s no teeth in the CRCC,” Engel said. 

The national trend in police oversight is to have civilian-led investigations because police investigating police do not have the public’s confidence, other experts told CBC.

The CRCC’s predecessor, the Commission for Public Complaints Against the RCMP, was created by parliament in 1988. 

In 2013, additional accountability measures were enacted, and the commission changed its name to emphasize civilian involvement in the process. But that involvement is usually limited to the review of investigations done by police — not in the investigation itself. 

Powers rarely used

There are some sections of the RCMP act that give the commission more powers. 

For example, if the commission is not satisfied with the RCMP commissioner’s response to a complaint review, the commission can call a hearing.

That has not been done in the past five years, according to commission spokesperson McDerby. 

The commission can also decide to hold a hearing into a complaint review if it decides it would be in the public’s interest.

That also hasn’t happened in the past five years, said McDerby. 

The commission has conducted 23 public interest investigations over the past five years but none since 2017, McDerby said.

Those investigations are conducted by staff “with a combination of administrative investigations and policing background.” 

The chair of the commission can initiate investigations under a different section of the act.

McDerby said that has occurred four times in the last five years —three times in 2016 and once in 2018. 

Complaints commissioner says RCMP sitting on year-old report into alleged abuses of power

RCMP watchdog’s misconduct reports caught in limbo, stalling their release

‘Fundamentally flawed’ 

The commission does not provide effective civilian oversight of the RCMP, said Benson Cowan, head of Nunavut’s legal aid.

“All it is, is some sort of oversight over internal discipline … It’s fundamentally flawed as a model for civilian oversight,” Cowan said. 

Cowan said he questions whether the commission has the mandate, political will or adequate funding to pursue its own investigations. 

“Their mandate makes it very clear, if there’s any systematic review, it can’t come at the expense of the other operations … so it’s zero sum for them in terms of the envelope of funding,” said Cowan. 

The commission did not respond to a request for comment in response to Engel’s and Cowan’s remarks. 

Cowan has asked the commission to conduct a systematic review of policing across Nunavut. 

He sent two letters over the past year highlighting more than 30 cases that include allegations from Inuit of police violence, racism and misconduct. 

The commission has not yet announced a decision.

RCMP surveillance, searches breached anti-fracking protesters’ rights: watchdog says by Jim Bronskill, The Canadian Press, Nov 12, 2020

OTTAWA — The RCMP watchdog has uncovered shortcomings with the national force’s crowd-control measures, physical searches and collection of social media information while policing anti-fracking protests in New Brunswick.

In a long-awaited report issued today, the Civilian Review and Complaints Commission for the RCMP chastises the Mounties for their reluctance to take action on some of the findings and recommendations.

The commission received 21 public complaints related to the RCMP’s management of protests in 2013 over shale-gas exploration by SWN Resources Canada near the town of Rexton and the Elsipogtog First Nation reserve in Kent County, as well as in various other parts of the province.

Full report into RCMP response [Copied also below to archive it.]

The report notes that a primary motivation for Indigenous protesters opposing the actions of SWN was their dedication to protecting land and water they considered their own, unceded to the Crown through treaty or other agreement.

A court-issued injunction limited protests and despite some progress through negotiations between the RCMP and demonstrators, the Mounties cleared an encampment on Oct. 17, 2013, sparking a melee and numerous arrests.

After reviewing the complaints and materials disclosed by the RCMP, the commission then initiated its own investigation in December 2014 to examine the issues more broadly.

The commission found considerable evidence that RCMP members “understood and applied a measured approach” in planning their operations and while interacting with protesters.

However, it also found some distressing problems.

“Several incidents or practices interfered to varying degrees with the protesters’ rights to freedom of expression, association and peaceful assembly,” the commission concluded.

It stressed that police may only establish “buffer zones” within parameters set by the courts. “As such, decisions to restrict access to public roadways or sites must be specific, reasonable and limited to minimize the impact on people’s rights.”

The commission also found that some of the RCMP’s surveillance practices and physical searches were “inconsistent with protesters’ charter rights to be free from unreasonable search and seizure.”

For example, in conducting “stop checks,” RCMP members randomly stopped vehicles for a purpose other than those set out in provincial highway traffic legislation, the report says.

“Likewise, while unconfirmed reports about the presence of weapons raised a legitimate public safety concern, searching persons entering the protesters’ campsite was inconsistent with the individuals’ charter rights.”

The commission found that RCMP policy did not provide clear guidance on handling personal information obtained from social media or other open sources, particularly in situations where no criminal activity was involved.

The watchdog recommended that RCMP policy describe what personal information from social media sites can be gathered, how it can be used, what steps should be taken to verify its reliability and limits on how long it can be kept.

It urges the RCMP to destroy such material once it is clear there is no criminal or national-security dimension.

Among the commission’s other findings:

– The RCMP’s interactions with SWN Resources were reasonable under the circumstances, and enforcing the law and injunctions did not amount to acting as private security for the company, as some had claimed;

– RCMP members did not differentiate between Indigenous and non-Indigenous protesters when making arrests, nor did they demonstrate bias against Indigenous protesters generally;

– Officers had reasonable grounds to arrest people for offences including mischief and obstruction, and the force used was generally necessary and proportional;

– The Mounties had legal authority to clear the campsite and it was a “reasonable exercise of their discretion” to do so, though it would have been prudent to allow more time for negotiations;

– The decision to leave members of the crisis negotiation team out of the loop about operational planning led to the “unfortunate and regrettable situation” of the tactical operation occurring shortly after RCMP negotiators offered tobacco to campsite protest leaders;

– At the time the policing efforts began, with some notable exceptions, assigned members did not have sufficient training in Indigenous cultural matters.

“Canada’s ongoing reconciliation with Indigenous people includes protecting the rights of those whose voices have been diminished by systemic sources of racism in our society,” commission chairwoman Michelaine Lahaie said in a statement accompanying the report.

In her response to the report, RCMP Commissioner Brenda Lucki agreed to implement recommendations on sensitivity and awareness training related to Indigenous culture and sacred items, better information-sharing with crisis negotiators and refreshers for RCMP members on law and policy for search and seizure.

But while the RCMP indicated support for eight of the commission’s 12 recommendations, it believed three needed no further action.

“This concerns the commission, as these included recommendations concerning roadblocks, exclusion zones and limits to police powers,” the report says.

Lucki also strongly rejected recommendations limiting collection and retention of open-source information, saying the RCMP must have ready access to data about protesters, even if they have no criminal history.

The RCMP’s right to refuse to implement findings or recommendations, and its statutory obligation to explain itself when it does so, is not meant to provide an opportunity for the police force to act as an appeal body with regard to the commission’s findings, the report says.

“Such a process would amount to giving the RCMP carte blanche to come to its own conclusions about its members’ actions.”

Earlier this week, a civil liberties group launched a court action to force the release of a complaints commission report on alleged RCMP

of anti-oil protesters in British Columbia

The B.C. Civil Liberties Association says the Mounties have been sitting on an interim report for more than three years and the group is now asking the Federal Court to order Lucki to finalize her input so the watchdog can release it.

This report by The Canadian Press was first published Nov. 12, 2020.

Mounties may have broken law during N.B. anti-fracking protests, says watchdog, CRCC concerned about RCMP commissioner’s response to recommendations by Catharine Tunney, CBC News, Nov 12, 2020

Some RCMP tactics during the 2013 anti-shale gas protests in New Brunswick may have broken the law, while other practices raise concerns about how Mounties conduct surveillance on protesters, according to an investigation by the force’s watchdog.

The Civilian Review and Complaints Commission released its final report this morning on how the RCMP responded to anti-fracking protests that erupted into a riot in the fall of 2013 near Elsipogtog First Nation in Kent County, N.B.

While the 200-plus-page report notes many officers acted reasonably, it flags deep-seated concerns with the way Mounties gather intelligence, restrict individuals’ movement during protests and approach Indigenous culture. 

“In relation to police roadblocks and stop checks and the collection of open-source intelligence, the commission has expressed concerns about the reasonableness and, at times, the legality of the practices engaged in by the RCMP,” says the commission’s final report, released Thursday morning. 

The protests at the heart of the investigation began after the government of New Brunswick granted a licence to SWN Resources Canada to explore the accessibility of shale gas near the town of Rexton. The protesters — many of them Indigenous and fiercely opposed to the exploration project — retaliated by blocking access to the site and setting up an encampment.

Read the CRCC’s final report

Release report into RCMP conduct during Rexton protests, says anti-shale gas group

Police were in the area to enforce a court-issued injunction. Tensions boiled over after the Mounties ran a tactical operation on Oct. 17 and cleared the site. The clash resulted in what the commission described as a riot, leading to dozens of arrests and multiple RCMP vehicles being torched.

After receiving more than 21 complaints, the commission launched an investigation that looked at the six-month span from June to December 2013. As part of the probe, the CRCC reviewed thousands of files, video and documentary evidence and spoke to more than 100 witnesses. With no authority reviewing Harper’s Supreme Court of Canada intentionally publishing a lie in their ruling in Ernst vs AER (7/9 of the judges were appointed by the Harper Klan), and “justice” and “environmental” lawyers silent on the matter, including my own, after paying them hundreds of thousands of dollars of my life-long savings. My lawyers even refused me ccing them on my letter of concern to the Canadian Judicial Council, which of course rendered my letter useless, except for paper trail.

RCMP didn’t have legal authority: report

That investigation concluded that some of the RCMP’s surveillance practices and physical searches were inconsistent with protesters’ Charter rights. Since Harper appointed many to the board of the CBC, their reporting has mostly gone to shit. Why not state Charter rights were violated by the RCMP? Were my Charter rights violated when Harper’s anti-terrorist squad invaded my private property, and tried to terrify me silent?

“It appears that RCMP members did not have judicial authorization, or other legal authority, for conducting stop checks for the purposes of information gathering in a way that constituted a ‘general inquisition’ into the occupants of the vehicles,” notes the report.

“This practice was inconsistent with the Charter rights of the vehicle occupants.”

The information gathered by RCMP officers included drivers’ names, dates of birth, addresses and licence numbers, and other distinguishing features such as height, weight, facial hair, race and hair colour. One section of the intake form used by RCMP officers to collect the information leaves room to describe where the driver had been “observed” and whether a criminal record or police database check had been conducted on the driver. 

“In conducting ‘stop checks,’ RCMP members randomly stopped vehicles for a purpose other than those set out in provincial highway traffic legislation,” said the report.

“The members were not responding to an emergency, nor did they have judicial authorization to do so.

The commission also concluded that the practice of searching people entering the campsite was not consistent with their right to be secure against unreasonable search and seizure.

Given those findings, the commission said Mounties involved in such public order policing operations should undergo a refresher on the laws and policy on search and seizure, including warrant requirements. Which will do little, if any, good and enable the abusive RCMP law violations, racism, raping and bullying to escalate.

RCMP Commissioner Brenda Lucki disagreed.

Watchdog memos show RCMP was slow in turning over 2013 Mi’kmaw demonstration documents

Civil liberties group takes RCMP to court over delayed response to alleged spying complaint

She argued that, according to her reading of the evidence, there was nothing to conclude that the sole purpose of the stop checks was intelligence gathering and said there weren’t enough facts or context to form those conclusions. She also noted that some of the video evidence showed only snippets and not the entire interactions. 

“In determining whether the search of the vehicles entering the campsite was reasonable, I must consider all the circumstances, specifically in this case the environment in which the searches were conducted,” said Lucki.

“Obviously, the anti-shale gas protests at times created an extremely hostile environment.”

Lucki wrote in her 19-page response, however, that while she disagrees with the recommendation, she offer a review of the relevant laws to RCMP officers “as a best practice going forward.”

Intelligence gathering online questioned

The commission also looked into how the Mounties kept an eye on protesters and how that intelligence was stored.

The report found that RCMP policy did not provide clear guidance on collecting, using and retaining personal information obtained from social media and other open sources — especially in cases where those involved had no criminal involvement or intention. 

“For example, the commission found that any gathering of potentially private electronic communications by the RCMP must be done only within the strictures of the law,” it said. Pffft, as if the RCMP give a damn about Canada’s “rule of law” or those of us harmed by law-violating oil and gas companies or their enabling, law-violating “regulators.” Refer below to tweet by Edmonton lawyer Avnish Nanda.

The commission recommended that the RCMP provide clear policy guidance on collecting and storing personal information from open sources, such as social media, and that steps should be taken to ensure its reliability.

Shale gas protesters react in disbelief to watchdog findings

RCMP watchdog’s misconduct reports caught in limbo, stalling their release

In her response, Lucki acknowledged that when the protests were happening, the RCMP did not have a policy that provided clear guidance on gathering personal information obtained from social media or other open sources. She said the RCMP has since made some changes.

But she disagreed with the recommendation to update the policy on intelligence gathering and storage. Lucki said that the RCMP will use tactical intelligence to obtain information about groups involved in public protests to determine whether they pose any risk to participants.

“The police have a duty to prevent crime and keep the peace, but they also have a general duty to protect life and property that extends beyond crime prevention and peacekeeping functions,” wrote Lucki. 

“The RCMP needs to have the ability to access information on the participants even in situations where there is no reason to believe that the participants were previously involved in criminal activities.”

In its final report, the watchdog wrote that it’s troubled by the RCMP’s response and said it has ramifications for public protests going forward.

“The RCMP’s position on the indiscriminate, long-term retention of personal information about lawful dissent collected from sources like social media is concerning,” said the report.

“This raises at least the potential for a chilling effect regarding the public’s participation in lawful dissent and in online discussions, particularly through social media.”

Indigenous sensitivities

The commission also found that RCMP members assigned to the operation did not have sufficient training in Indigenous cultural matters.

However, it said based on the available evidence, it is satisfied that officers did not differentiate between Indigenous and non-Indigenous protesters when making arrests.

The commission made multiple recommendations related to training on Indigenous cultural practices and the handing of sacred items. The RCMP said it will implement those recommendations.

“Since the Kent County anti-shale gas protests, the RCMP has deployed ongoing efforts on training current and new members to keep pace with the diversity, understanding, and compassion required to execute policing duties in a bias-free manner and to provide members with a solid knowledge of cultural elements and history of our Indigenous communities,” wrote Lucki.

The report cleared officers on many fronts, concluding that the RCMP’s use of force was generally necessary and proportional in the circumstances, especially given the risks posed by the protesters’ conduct. In my view of the events, the commission got that backwards. It was the heavily harmed snipers/RCMP conduct that escalated tensions and risks, I expect on orders from Oil-Patch-Harper to feed his rabid racist base and terrify Canadians concerned about and protesting frac’ing into silence.

However, it said it did say the plastic tie handcuffs placed on some protesters’ wrists likely were tighter than necessary.

Issues with review legislation 

The commission released portions of its interim report earlier this year when it was asked to review the RCMP’s conduct on Wet’suwet’en traditional territory in British Columbia.

CRCC chairperson Michelaine Lahaie declined to launch a public interest investigation because she said the same broad issues were raised and previously investigated in New Brunswick.

The Civilian Review and Complaints Commission reviews thousands of complaints every year, though the vast majority are not as high-profile as the Rexton protests.

RCMP civilian oversight agency has ‘no teeth’ and is ‘fundamentally flawed’ say lawyers

Average wait for RCMP response to misconduct reviews is growing: report

While the commission has investigative powers and can make recommendations, the RCMP is under no obligation to implement those findings — and there’s no appeal process to deal with disagreements between the two bodies.

This is something the report called into question multiple times. 

“The RCMP’s own views about the appropriateness of its members’ actions should not be allowed to govern in a case where the independent oversight body, having examined all the evidence as it is mandated to do, has reached a different conclusion, and no further factual information or explanation is being offered by the RCMP,” the report concludes.

“Such a process would amount to giving the RCMP carte blanche to come to its own conclusions about its members’ actions.”

Watchdog reported on RCMP surveillance of Indigenous-led action in 2017. Mounties never responded by Mike De Souza, Global News, July 10, 2020

Jasmine Thomas can provide a simple description of how her community started forming new alliances nearly a decade ago.

“Most of our matriarchs (were) sitting in a home, talking around a kitchen table and planning future community meetings and community engagement,” said Thomas, a councillor of the Saik’uz First Nation.

Members of her First Nation helped organize public rallies and events to raise awareness about issues such as resource development, human rights, climate change and sovereignty over their territory, she explained.

But what they didn’t know at the time was how closely Canada’s national police force was tracking what they were doing in private.

RCMP have yet to respond to 3-year-old watchdog report into Mounties surveillance of Indigenous-led action

The RCMP produced an intelligence report about the activities of the Yinka Dene Alliance, a coalition of six nations, including the Saik’uz, which is located in central British Columbia about 100 kilometres west of Prince George.

In a copy of that report, released through access-to-information legislation, the police force provided a description of a private meeting at a community hall organized by Indigenous leaders. At the time, details of that meeting were not public.

“On Nov. 25th, 2011, a meeting was held at Nadleh Whut’en (Fraser Lake) between the YINKA DENE ALLIANCE (YDA), and various environmental groups,” read the intelligence report. “The purpose of the meeting was to strengthen the alliance between First Nations and environmental groups opposing ENBRIDGE.”

The Enbridge Northern Gateway pipeline project was ultimately rejected by the federal government in November 2016, a few months after the Federal Court of Appeal concluded that the Crown had failed to adequately consult First Nations affected by the project.

But Thomas said the monitoring activity has left scars and a legacy of mental health issues on the targeted Indigenous communities who felt intimidated by the RCMP’s actions.

It’s impossible for me to describe the stresses and terror caused to me (and for my loved ones) after the RCMP invaded my private property to serve aquifer frac’er Encana/Ovintiv and our pathetic regulators. I have not yet recovered, and expect I never will. Cumulatively add the stress of my lawyers directing me not to file an official complaint about the RCMP invasion when I told them I was going to – which made no sense to me at the time, but since they quit, now does, including their misrepresentations, ignoring my correspondence, withholding my website nearly a year and my trust account funds a year, and prejudicing my case by still withholding my case file two and a half years after quitting (all contrary to their “regulator” rules).

Since the RCMP invaded, I struggle to breath because of the stress and my sleep has been disrupted; I do not feel safe anywhere, not even in my home. And, I am white! I cannot begin to imagine the terror, PTSD and health harms done to our Indigenous people by RCMP abuses (enabled by our cowardly complicit politicians, commissions and courts).

At times, they would see police and security agents watching them at public events, Thomas said. Sometimes, she said they were publicly criticized by members of government and industry proponents, including then-Natural Resources Minister Joe Oliver, who described pipeline project opponents as foreign-funded radicals in a 2012 open letter.

When Thomas and other allies first started organizing, Northern Gateway, a major West Coast pipeline proposed by Calgary-based Enbridge, was a contentious industrial project that inspired both fierce support and opposition.

There have long been high political stakes surrounding oil and gas projects like these, with both the future of multibillion-dollar investments and the fate of natural ecosystems up for debate and on the line.

Thomas explained that her own community invited several B.C.-based environmental groups to be their allies and planned strategy in private gatherings as they worked to build political momentum against Northern Gateway.

Jackie Thomas, a Saik’uz councillor who was chief at the time of the meeting in Nadleh Whut’en, said she learned about the RCMP intelligence-gathering efforts after getting a phone call from Martin Lukacs, a freelance journalist. Lukacs and another journalist, Tim Groves, had obtained the document through access-to-information legislation.

“That (meeting) wasn’t on Facebook. That wasn’t on social media. It wasn’t on anything,” said Jackie Thomas, who is also Jasmine’s cousin. “How the hell did they know (about) that?”

Nearly nine years later, the answer to her question still isn’t clear. But new documents are emerging that indicate a federal watchdog put the RCMP on notice three years ago and recommended that it correct or improve how it treats First Nations like the Saik’uz and their allies in the environmental movement.

The latest documents include a heavily censored 88-page interim report released to Global News by the RCMP watchdog, the Civilian Review and Complaints Commission, through access-to-information legislation.

The commission produced the interim report in response to a 2014 complaint by the B.C. Civil Liberties Association (BCCLA). The advocacy group had alleged in its complaint that the RCMP was illegally monitoring and spying on peaceful and democratic activities of community groups and First Nations opposed to the Enbridge Northern Gateway oil pipeline project.

The watchdog’s investigation included an examination of how the RCMP interacted with members of the Idle No More movement that emerged in 2012 to promote Indigenous rights and protest changes to federal laws that it believed would interfere with existing treaties.

The commission also spoke to RCMP officials and reviewed thousands of pages of records released by the police force’s headquarters and regional offices in British Columbia as part of the investigation, according to the report.

The commission delivered the findings to former RCMP commissioner Bob Paulson on June 23, 2017, a few days before he retired from the force. Three years later, Paulson’s successor, Brenda Lucki, has yet to respond.

But in a new letter sent on July 8 to the BCCLA’s lawyer, Paul Champ, the commission offered new details about its findings.

“In that interim report, the commission made 18 findings and seven recommendations to the RCMP concerning the RCMP’s activities with respect to the events, protests, and demonstrations surrounding the National Energy Board joint review panel hearings into the Northern Gateway project, as well as the larger Idle No More movement,” Jason Tree, the commission’s acting director and general counsel, wrote in the letter to Champ.

Tree’s letter was sent in response to a followup note from Champ in June that noted the RCMP had still not responded to the interim report after three years.

Details about those 18 findings and seven recommendations remain a secret since the commission completely censored 77 out of the 88 pages prior to releasing the document.

The commission justified its redactions by citing provisions of the Access to Information Act that allow government organizations to withhold details of matters under investigation.

The commission told Champ in the letter that the RCMP had recently indicated it anticipated providing its response to the report in fall 2020 and that the commission’s chairperson, Michelaine Lahaie, was considering whether to release its interim findings sooner.

“The commission shares your concerns about the delays in receiving the RCMP commissioner’s response in this and other cases,” Tree told Champ in the letter. “The present three-year delay has the potential to undermine public confidence in the public complaints process, serves to frustrate the commission’s role in providing civilian oversight to the RCMP, and may dilute the effectiveness of the associated findings and recommendations.”

In an interview, Champ told Global News that the watchdog’s letter indicates that it is frustrated about not having enough power to provide adequate oversight. That’s how colonial rape & pillage Canada rolls! Same for lawyers, judges, regulators, politicians, etc. – inadequate, tardy oversight, or none at all.

Champ argued that the delay also prevents his clients from speaking out about what the RCMP did since they have not been told about what’s in the report. This is equivalent to an infringement on their constitutional right to freedom of speech, he said.

“It’s a bit of a joke, really,” Champ said. “Here we are, six years later (after the 2014 complaint), and we still don’t know what the findings are of the commission, and the RCMP has been sitting on those findings for three years. I really think it’s a disgrace and it’s showing a lot of disrespect to those Canadian citizens as well as the process itself, in my view.”

Lucki, the RCMP commissioner, wrote to Champ in summer 2019 and indicated that she understood why he wanted the findings made public as soon as possible but did not commit to meeting any deadline.

“Given the volume and complexity of the relevant material, it is difficult to provide a timeline for completion of my response,” Lucki wrote in an Aug. 16, 2019 letter to Champ. “Despite other challenges and pressures, the completion of the analyses of public interest investigation interim reports have been prioritized. I will provide my responses as soon as feasible.” Translates to me: F*ck Off! We do what we want, including rape our own.

When asked by Global News whether it had an update, the RCMP said it was still “difficult to predict” how long it would take it to provide a well-founded response to the watchdog’s report, reiterating Lucki’s statements in her letter about the volume of material as well as the number of outstanding reports it needed to review.

“Any recommendation regarding the operation or administration of the RCMP can have far-reaching and significant impacts to the organization and the public,” the RCMP said in a statement. “As a result, there are many factors that need to be considered in preparing a response. These include existing case law, our legal authorities, our budget, and potential impacts on our service to the public amongst others.”

The new details are coming to light in the wake of a series of serious incidents involving the RCMP and Indigenous people, including confrontations with anti-pipeline activists on Wet’suwet’en territory in B.C. at the beginning of the year, a violent altercation with Athabasca Chipewyan First Nation Chief Allan Adam in Alberta over an expired licence plate in March and the fatal shooting in New Brunswick of Rodney Levi in June.

After initially dismissing suggestions there was systemic racism within the RCMP in a series of media interviews, Lucki later acknowledged that the problem exists within the police force Indeed! and that it is working hard to overcome it.Bullshit! More likely working hard to figure out how to better cover-up RCMP’s crimes and biases.

“There is no one answer, no single solution, no one approach,” Lucki said in a statement released on June 12. “It is the ongoing commitment to work and continue to learn that will help us make real progress, and I am motivated and determined to make change.

“I appreciate the frank discussions that have been taking place and I have encouraged all employees to have the conversations that some may find uncomfortable. But I have been told that struggles and discomfort are one of the hallmarks of addressing racism.” Ya, take a look at our law societies and American neighbours to see how white supremacy and privilege does not want to give an inch.

The police force also told Global News that it is committed to a renewed relationship with Indigenous Peoples based on a recognition of rights, respect, co-operation and partnership. Again I say bullshit. Being committed means nothing and results in little but more talk, lies and broken promises. If the RCMP truly were committed, they would have publicly released their response years ago.

It said it continues to consult on ways to support that commitment and assess its performance, including strengthening cultural awareness training, communications with families, an expansion of its engagement with Indigenous groups and efforts to increase Indigenous representation within its workforce.

This also includes numerous initiatives at local, provincial/territorial and national levels in partnership with Indigenous groups, as well as new exercises for cadet training to enhance cultural awareness and humility using a trauma-informed approach, the RCMP said.

The RCMP also said it was still considering changes to strengthen practices related to the recent national inquiry into missing and murdered Indigenous women and girls.

In terms of protests, the RCMP said it encouraged its officers “to take a measured approach that prioritizes proactive engagement, communication, mitigation and facilitation” in order to maintain or restore the peace.

The RCMP also recently reached an agreement with the commission that will now require the commissioner to provide a response to public interest reports within six months. But this only applies to new complaints, and it’s not retroactive.

The BCCLA complaint about the RCMP was submitted alongside a similar complaint about the Canadian Security Intelligence Service (CSIS), although the latter complaint was dismissed in May 2019 by a separate federal watchdog, the Security Intelligence Review Committee. Of course it was. Corporate profit-rapists wouldn’t stand for anything less.

The CSIS watchdog found that the service had collected some information but that this “was done incidentally, in respect of lawful targeting authorities in place at the time.”

The committee reviewing the CSIS complaint also said in its report that the BCCLA “failed to differentiate the actions of the NEB and of the RCMP and those of CSIS.”

Jackie Thomas, the former Saik’uz First Nation chief, said the whole situation and her own personal experiences with the RCMP make her skeptical about whether there will be change, no matter how many times people complain.

“Usually, nothing has happened,” she said. “Even when you make a formal complaint, nothing comes of it.” True, but, then there’s a vital paper trail to make public – which is why I wanted to file a formal complaint against the RCMP harassing and trying to intimidate me.

She said she has always known that it’s best for her to avoid the RCMP, to hide from them or run, whenever she sees them.

Oh my, that’s horrific, but I understand it, and think the same way now.

The December 2011 RCMP intelligence report that singled out the private Yinka Dene Alliance meeting also noted that Oliver, then the natural resources minister, had recently proposed to expedite the federal review of the Enbridge project and complete it by 2013, one year ahead of schedule.

Jasmine Thomas said she believes this demonstrates a link between political considerations and the RCMP’s monitoring activity, which raises further questions about the police force’s credibility. Alberta and federal politicians betrayed me too, again and again.

“We were dealing also with other crises in our communities, like missing and murdered Indigenous women and girls and other issues at the community level,” she said. “So it was disturbing in the sense of where the priority was in terms of resources.”

She also said there was a bright side to the partnerships that First Nations were inspired to form with other Canadians — including groups such as Friends of Wild Salmon, the Dogwood Initiative and Forest Ethics.

“I believe once we started to put a spotlight on the issue, we were able to make connections with the broad group of Canadians — people First Nations never worked with before — including these environmental organizations… And Idle No More came after we started to build up this momentum,” she said.

“We woke up the country.” Yes, indeed. Brava!

How Industry Has Weaponized BC’s Courts, Wet’suwet’en arrests for defying injunction ended pipeline blockades — but no charges were ever laid by Amanda Follett Hosgood 23 Jun 2020, TheTyee.ca

Four months after 22 people were arrested for blocking a pipeline in Wet’suwet’en territory, the BC Prosecution Service dropped all charges against the Wet’suwet’en and their supporters on June 5.

Those arrested along the Morice West Forest Service Road in northern B.C. were facing criminal contempt charges and possible jail time. For them, it was good news.

But others are questioning whether those arrests should have been made at all and concerned that courts are too quick to “rubber stamp” industry requests for injunctions to stop Indigenous Peoples from exercising their rights.

In B.C., where industrial interests frequently clash with Indigenous title, standoffs are often dealt with by applying to courts for injunctions to quickly eliminate First Nations’ resistance — a practice some say puts too much power in the hands of corporations.

Martin Peters, counsel for the 22 people charged on Wet’suwet’en territory, is one of them.

“In British Columbia, the courts have been very quick to support industry,” As they are across Canada, including our Supreme Court of Canada, intentionally publishing dishonesty in Ernst vs AER and sending it to the media in their ruling summary! says Peters. “The ease by which those orders have been granted, even in the face of an understanding that there are Aboriginal land claim issues at stake, and the further ease by which the RCMP was able to go out and enforce those issues, is troubling.”

Once an injunction is in place, anyone who disobeys the order can be arrested. The Crown has the option to convert a civil contempt case to criminal contempt if prosecutors feel the violation disrespects the courts. What are the options when courts lie and disrespect frac-harmed Canadians? And retained lawyers abruptly quit, lie to their clients and withhold private property? None.

The arrests on Morice Road occurred over five days in early February as RCMP enforced an injunction granted to Coastal GasLink. It barred anyone from blocking work along the remote forestry road that provides access to a portion of the pipeline route south of Smithers. The 670-kilometre pipeline is being built to deliver fracked gas from northeast B.C. to an LNG processing plant in Kitimat and is opposed by Wet’suwet’en hereditary chiefs.

Lawyers for Coastal GasLink referred questions to the company. A company spokesperson did not respond to emails from The Tyee.

Peters also represents 14 supporters who were arrested Feb. 24 while blocking rail lines in Hazelton. The Crown has not made a decision about whether it will go ahead with criminal charges against the group, although CN Rail appears ready to proceed with a civil lawsuit. The case is back before the court this week.

The Wet’suwet’en and supporters had gone through a similar process once already. The B.C. Supreme Court granted an interim, or temporary, injunction to Coastal GasLink on Dec. 14, 2018, that barred anyone from blocking access to the route. On Jan. 7, 2019, RCMP removed barricades and arrested 14 people. Crown prosecutors did not proceed with criminal charges, citing lack of evidence, and the civil case was later abandoned.

In December, one year after the interim injunction was granted, the B.C. Supreme Court approved the pipeline company’s request for permanent access to the area. That led to renewed blockades, the RCMP creation of an “arbitrary” exclusion zone and the 22 arrests.

RCMP said the exclusion zone, which limited access even for members of the Wet’suwet’en, was needed to ensure safety.

But Peters says the result was “a police state that was being created in the Wet’suwet’en territory with no basis in law whatsoever.” Spells Canadian law in action.

The RCMP began enforcing the injunction in the early morning hours of Feb. 6. Over the next four days heavily armed officers in military fatigues dismantled camps and arrested the 22 people.

Eve Saint was one of those arrested on day two of the police action; her father, Frank Alec, is Hereditary Chief Woos of the Gidimt’en clan.

“They came in really aggressively with 100 RCMP, completely armed, and tactical teams and helicopters dropping RCMP behind us, just for four Indigenous, unarmed land defenders,” she says. “I mean, that’s my father’s territory. Just being criminalized for being on your land — it’s big frustration for sure. It’s heartbreaking.”

Watching the shite done to me and my lawsuit by the courts and my own lawyers has broken my heart – again – after it was already broken when I discovered Encana/Ovintiv had intentinoally illegally frac’d my community’s drinking water aquifers, with regulator blessings, fraud and cover-up.

All four were held in custody for four days when they refused to sign a condition that they not return to the territory, unless it was for ceremonial or cultural purposes. Saint says she was outraged. “That’s my dad’s territory. I have a special bond with this land, this territory, and they decide what is cultural, what’s spiritual, what is traditional? Hell no. For Indigenous people, as soon as we step on the land it’s spiritual,” she says.

Peters says the Supreme Court of Canada’s landmark Delgamuukw-Gisday’way decision, which affirmed Wet’suwet’en and Gitxsan land title in 1997, has not found a place in B.C. law, especially when it comes to granting injunctions.

In a Dec. 31 decision granting Coastal GasLink access to the pipeline route, Justice Marguerite Church leaned heavily on economic arguments and, despite the Delgamuukw-Gisday’way decision, said “the Aboriginal title claims of the Wet’suwet’en remain outstanding and have not been resolved either by litigation or negotiation.” Yup, Canadian judges have quite the knack for lying, accepting lies in court and in briefs, and or pissing on the rule of law to suit whatever political trend of the day.

Peters sees it differently.

“I mean, this is their land. The hereditary chiefs did not give Coastal GasLink permission to build that pipeline or even come onto their territory,” Peters says. “The unfortunate position of the Supreme Court of British Columbia is appearing to rubber stamp an injunction order any time an industry feels that they might be losing money because of an Aboriginal protest.”

Injunctions have a long history in fighting protests

Injunctions were used as a tool to shut down protest when nearly 1,000 people were arrested in logging protests at Clayoquot Sound in the early 1990s.

But according to a report released in November by Ryerson University’s Yellowhead Institute, the practice dates back much further.

The study looked at more than 100 injunction cases nationwide involving First Nations going back as far as the 1950s.

It found that injunction applications against industry and government by Indigenous groups had an 18.5 per cent success rate. By comparison, 76 per cent of injunctions filed against First Nations were granted.

The report concludes that “the courts expect First Nations to commit to lengthy, costly litigation to secure protection for their lands and waters. But companies can more or less get injunctions if there is any whiff of economic loss.”

Lawyer and Kwantlen Polytechnic University criminology instructor Irina Cerić says injunctions are used in other provinces.

But there’s a stronger judicial culture of using them in B.C., she says.

Injunction requests are usually filed in conjunction with a civil lawsuit, with companies arguing that the injunctions are needed to protect their interests and prevent damage while a case is before the courts.

But Cerić says it’s become common for lawsuits to be filed simply to justify injunctions.

“For the most part, they’re not real lawsuits. They’re a means to an injunction,” she says. “What that does is speed up this process by which a private corporation can go to court and say ‘Give us a court order’ that then puts them in the driver’s seat of what happens next. It takes what’s really a public conflict and makes it a private form of conflict resolution.”

Cerić says she doesn’t advocate using either criminal law or police to deal with protests.

“When you have a blockade that’s non-violent, it’s a situation that can be approached through non-law-enforcement means,” she says. Negotiation or changes to the permitting process to ensure First Nations accept projects are alternatives.

Injunctions favour the status quo, she said, and are often granted based on which side in the dispute stands to suffer more harm while waiting for a civil lawsuit to be resolved.

In the past Indigenous groups have successfully used injunctions to prevent unwanted activities, like logging, on their territories. They argued the work would do greater damage to their interests, while companies could cope with delay.

But Cerić says that changed in the early 1990s, around the time of the B.C. Supreme Court’s 1991 Delgamuukw decision, which found that most Indigenous title in B.C. had been extinguished when the former colony joined Confederation in 1871.

That decision was later overturned in the groundbreaking Supreme Court of Canada Delgamuukw-Gisday’way decision.

But Cerić says it marked the end of injunctions being granted to First Nations to protect land.

Courts and corporations replacing lawmakers

Andrew Gage, a staff lawyer with West Coast Environmental Law, says these types of injunctions essentially constitute law-making.

“It is not what injunctions were intended for. It’s going beyond the usual role of the court,” he says. “It puts both the companies and the protesters and, really, the courts in a somewhat awkward position of being before the court in an adversarial process where the real beef of the protesters is against the law and the government for having put that law in place.”

In February, the province obtained an injunction against unnamed people protesting the Wet’suwet’en arrests at the B.C. legislature. The order, which gives discretion to police to remove and arrest anyone blocking access to the building, is not limited to the Wet’suwet’en conflict and remains in place for an indefinite period, Gage says.

“That sounds a lot like lawmaking as opposed to a dispute between Wet’suwet’en protesters and the legislature,” he says.

SLAPP suits and injunctions

Civil lawsuits filed against protesters have been compared to SLAPP suits or “strategic lawsuits against public participation” — the controversial practice of corporations silencing opponents by threatening legal action.

In 2014, multinational pipeline company Kinder Morgan brought a multi-million-dollar civil suit against five protesters it said were attempting to intimidate workers at its Burnaby Mountain site. Four defendants settled with the company but Alan Dutton, a retired university professor, called the case a SLAPP suit and attempted to have it thrown out. He was unsuccessful. Of course he failed. Canadian courts, regulators and police, including in my case, have proven the oil and gas industry is above the law. Our taxes pay the courts and police which serve industry, not us or the public interest.

At the time, there was no anti-SLAPP legislation in Canada. A law to prevent the practice was passed by the B.C. legislature in 2001, only to be repealed several months later when the BC Liberals formed government.

B.C. passed the anti-SLAPP Protection of Public Participation Act last year, joining Ontario and Quebec in laws aiming to prevent the use of lawsuits to silence critics or curb protests.

The act has yet to be interpreted or applied in the courts, says Meghan McDermott, staff counsel with the BC Civil Liberties Association.

“SLAPP suits work because it never really gets to court,” she says. “Usually people just shut up and the person suing them, the corporation or government, never has to make the case to the judge. They know that when they file it, so it’s basically just a tactic to silence people and it’s a disingenuous one that we think abuses the court system.”

SLAPP suits differ from injunctions in that one intends to silence while the other moves people out of the way. What they have in common is the ability to quell protest.

According to Peters, CN Rail’s claim for unspecified damages against unnamed protesters blocking rail lines in Hazelton “absolutely” constitutes a SLAPP suit.

On Friday, Canada’s largest rail company will share evidence with Crown council in an effort to persuade it to take over the case with criminal charges.

If the prosecution declines, it will be up to CN whether to proceed with the civil suit it filed in February.

“I don’t think there’s any realistic view that CN thinks that they’re going to claim damages against John Doe and Jane Doe, people they obviously don’t even know who they’re dealing with,” Peters says.

The courts versus the people

Molly Wickham is a Gidimt’en clan member who was among the 14 arrested when RCMP raided the camp in 2019. She was pregnant during this year’s standoff and says concerns about police action kept her away from the territory.

“Because of the history of police violence, I had to be very careful about where I was and not get arrested because I was afraid that if they arrested me that they would harm the baby,” she says.

“It’s a blatant violation and abuse of power. They’re using the RCMP and the courts against a sovereign nation, the Wet’suwet’en, but they’re also using it against the public in a way that’s not constitutional within Canada and a way that’s abusive and violating people’s rights.”

A few of the comments:

Mikey

Reading this article, count the ways systemic corruption is enshrined in state, legal and corporate actions. Hard to list all the examples explicit and implicit.

The beat goes on, with no accountability for state, legal and corporate overlords.
This is the faux centrism Canada operates upon.

JuHoansi

This is part of the corrupt ‘catch and release’ strategy used by the corporate police state. Arrest (i.e. kidnap) people on bogus charges so as to get them out of the way. Then quietly release them later without charge.

JCensored

I think they dropped the charges because of the consequence of a possible court decision in the Wet’suwut’en’s favour.

This way they can still hold the threat of arrest, jail, and fines over protestors…and it keeps it out of sight and mind from the BC public whom they hope will forget… I won’t.

Kiskatinawkid

On a positive note…everyone with a financial investment in the pipeline and the fracked gas plant are going to lose that investment.

John Merriman to Kiskatinawkid

You are right about that, the Coastal Gas Link pipeline is another financial sinkhole. It is tied to the even bigger financial boondoggle that is BC LNG that is destined to take down billions of dollars from BC taxpayers and especially the billions more of pension investments made by BC Investment Management Corporation. Like Jason Kenney stealing pensions of hard working Albertans to put into mega-money-losing AIMCo to give to bankrupting frac’ers and giving industry 7 billion of our tax dollars for a Trump pipeline to nowhere.

It’s a positive note — but, thanks entirely to John Horgan’s government, it’s going to cost us all. And might destroy BC Hydro, if it hasn’t already.

https://www.focusonvictoria…

https://watershedsentinel.c…

Hugh McNab

The techniques of intimidation and oppression flourish in the Justice System as they were originally designed to do in 18th century England.

Its been very successful so far , and as a ruling party Horgan has adopted this Strategem without question. Same game no matter who is the leader.

Divide, and Conquer between the Hereditary Chiefs, and the Elected Council while the State foregoes any negotiation of the required treaty as asked for by Queen Victoria. Same game we have heard about for hundreds of years.

Its a deep social deceit by a ruling paradym who have no desire or imagination to think of a different future where to be “kind” is a way.

Carry a big stick , and look peaceful is very American in a modern sense.

But nothing new here. This clever social game played out 100 years ago when they assasinated Ginger Goodwin of Cumberland with a rifle shot into his back for being a Labour organizer campaigning to treat people well.

The political class looked so innnocent too of any wrong deed.

No proof could be found of this claim by the Justice System of the day. No surprise there.

Then one notices the “Be KInd ” on the teeshirts of those who work in Superstore.

We are in different times.

Refer also to:

1999: Alberta Energy Corporation, became Encana, CEO Gwyn Morgan defends company conspiring with RCMP for staged bombing of a gas well

2000: RCMP [Royal Canadian Mounted Police] bombed oil site in ‘dirty tricks’ campaign

2007 06 13: Private Investigators hired to collect information on Alberta Landowners in an EUB hearing process

2007 06 18: Landowner lawyers furious that Private Investigators intruded on solicitor client discussions

2008 12 15: RCMP blows pipeline-bomb investigation and Encana workers give press the finger:

2009 02 12: The Intimidation of Ernst: Members of Harper Government’s RCMP Anti-terrorist Squad Intimidate and Harass Ernst after her Legal Papers were Served on Encana, the EUB (now AER) and Alberta Environment

February 12, 2009: Following a CTV W5 National News segment of Ernst’s explosively contaminated well water and the ERCB’s (now AER, previously EUB) treatment of her, “undercover” Royal Canadian Mounted Police with Canada’s anti-terrorist squad arrive warrant-less at Jessica’s home in Rosebud to interrogate. EnCana, Alberta Environment and the ERCB had been served legal papers two months previously.

2012 08 12: Lawyer’s suspicions Canadian spy agency listened to client calls proven right

“I couldn’t believe the degree to which the judicial process had been corrupted,”

2013 01 14: Shale gas: the RCMP and CSIS on high alert; RCMP and CSIS watching citizens concerned about hydraulic fracturing very closely

2013 02 25: Petro-state politics prompts CSIS to spy on citizens at alarming rate, FOIs reveal

2013 05 25: Hey CSIS, farmers are not terrorists, Anti-fracking activists have been labelled a security threat

2013 05 30: We’re Being Watched, How corporations and law enforcement are spying on environmentalists

2013 09 MUST WATCH! Canadian Legal Advice for the frac’d by AER’s outside counsel Glenn Solomon (released to the public December 1, 2014)

2013 10 09: Canadian spies met with energy firms, documents reveal, Government agency that allegedly spied on Brazil had secret meetings with energy companies

2013: Sickened” by Harper government spying

2013 12 29: Canada’s spy agencies chastised for duping courts; CSIS deliberately breached its “duty of candour” to the courts

AER’s outside counsel, lying Glenn Solomon, duped the courts too, slithering all the way up to Supreme Court of Canada, with judges only punishing Ernst!

2013 10 18: 200 RCMP? Snipers descend on Mi’kmaq-led camp, children and Elders on site, Rexton, New Brunswick, Canada

2015 03 25: Did Harper and the oil and gas industry order RCMP/CSIS/Snipers to attack innocent mothers and grandmothers, and set aflame stripped police cars in New Brunswick to discredit all Canadians concerned about frac harms and lay a red carpet for Harper’s Bill C-51?

2014 01 31: Communications Security Establishment Canada (CSEC) illegally spied on Canadians; Harper government insisted CSEC never spied on Canadians; Spy agency’s work with CSIS, RCMP fuels fears of privacy breaches

2014 02 26: Complaint filed over alleged illegal searches of private information on Northern Gateway pipeline opponents by RCMP, CSIS and handing the information over to oil companies and Canada’s national energy regulator

2014 03 17: Probe of Canadian spy agency CSEC found ‘serious breaches’ of ethics code

2014 04 07: Is this Canada? “Up all night with a license to kill” Miles Howe reports on the trial of Germaine ‘Junior’ Breau and Aaron Francis, Mi’kmaq Warriors

2014 07 31: Elsipogtog man says RCMP officers visited home with questions about Facebook comment

2015 05 30: Did Harper’s thugs spy on more than 160 protests, community events, demonstrations May 2014 – Feb 2015? Protests tracked includes vigil, ‘peace demonstration’

2015 07 31: Exclusive by Miles Howe: Military missed opportunity for peaceful end to 2013 New Brunswick fracking protests, Internal documents show repeated Warrior Society requests for negotiating assistance denied

2015 08 29: England: Kent Police slammed for snooping after asking for list of people attending frac debate at Canterbury Christ Church University

2015 10 25: MUST READ! Will Canadian cops become next victims of industry’s water contamination and fraud? A dangerous new police “best practice?” RCMP members “drink the water” while “trying to understand the shale gas industry” and “educate” themselves. No word on if RCMP plan to try to understand, or investigate, the dangerous and rampant fraud associated with oil and gas industry’s widespread frac contamination, or the number to call if families need RCMP “water taster” to come taste their water after it’s been frac’d, as companies, regulators, and research councils try to cover it up, while lying to the public (including the police) that now toxic and explosive water is “common, normal, and safe”

2015 12 27: RCMP pushes for new law to get Canadians’ private information without a warrant. Who’s pushing the RCMP?

2016 05 18: “Corruption … At A Gallop.” Ex-Justice Minister Peter MacKay urges: “Respect the Rule of Law” while the RCMP, Encana, AER, Alberta and Harper governments busily break it?

2016 09 16: RCMP ignore “volley of gunfire” to concerned citizen’s home but warn government and industry: “Environmental extremists pose ‘clear and present criminal threat’ to Canada’s energy sector – more likely to strike at critical infrastructure than religiously inspired terrorists.” Canadian and Australian oil and gas lobby groups warn: Industry operations “impact aquifers” and “contaminate water resources” as pre-determined “bullshit” investigations, cover-ups and court rulings fix everything. No word if “religiously inspired terrorists” plan to retire because of the intense competition

2017 04 20: Welcome to Canadian “justice” in Hell: CSIS officials and Federal Justice Dept lawyers being taught to tell the truth and share information with courts!

2017 08 20: A Room Full of Liars & Fascism in Action in Canada: Ever get frac’d? Listen to Steve Harper? Rebel Media? Read Supreme Court of Canada rulings? Minister Public Safety & Emergency Preparedness Ralph Goodale affirms “The Royal Canadian Mounted Police’s (RCMP) use of the major crime technique.”

2017 09 27: Wow, University of Alberta’s Centre for Constitutional Studies & Legal Education Society of Alberta haven’t yet realized that Canada’s Charter of Rights and Freedoms is a mangled, oil-soaked paper airplane flown out of a 26th storey window in downtown Calgary, fueled by Supreme Court of Canada knowingly publishing lies in their rulings.

Aha, now I understand! The lawyers know the Charter is printed on tissue paper, and have to get together to figure out which part of their anatomy they should wipe with it!

2019 06 08: Who orders a new hearing for a Supreme Court of Canada ruling where 9 justices knowingly published a lie and sent it to the media? Who “slaps” Justice Rosalie Abella for knowingly lying in her ruling and belittling the applicant? Certainly not the Canadian Judicial Council!

2019 07 08: ‘A shocking violation of free expression’: Civil liberties groups release ‘Protest Papers,’ call on CSIS for more transparency. Pfffft! As if oily politicians, RCMP & courts will let that happen!

2019 07 23: Secrets & lies by AER & Alberta govt to cover-up Encana’s secrets, lies & frac crimes; Supreme Court of Canada in the cover-up business too? Top Court signs pact to keep records of deliberations secret for at least 50 years; Reserves right to keep some secret forever

2019 07 24: New National Security & Intelligence Review Agency (NSIRA) members announced: Outgoing NDP MP Murray Rankin, Q.C. (Chair) & U of Ottawa prof Craig Forcese; Multi-hatted watchdog will have full access to virtually all information held by federal govt. Why? To give to Israel and multinational corporations, and abuse innocent Canadians with?

2019 12 20: Oh Racist Colonial Canada: As vile under Trudeau as Harper! Police prepared to shoot Wet’suwet’en land defenders; Documents show Commanders argued “lethal overwatch is req’d” – a term for deploying snipers – like in Elsipotog in 2013. RCMP commanders also instructed officers to “use as much violence toward the gate as you want.” PS Merry Christmas.

2020 02 03: RCMP Mobilizing Officers to Houston, NEBC, Intensifying Harassment of Camps. RCMP are lying, as usual, “saying one thing and doing the exact opposite.” BC Premier John Horgan: “The rule of law needs to prevail.” Whose? White Privileged Rich Man’s Law? Oil & Gas Industry’s Law? Racists’ Law?

***

2020 05 21: Industry’s and misogyny’s loyal Royal Canadian Mounted Police (Terrorists?): “Screw the Rule of Law”

2020 09 17: G20 Class Action Settles. Another lawsuit Murray Klippenstein took on years after he took on Ernst vs Encana and did not abruptly quit like he did on Ernst. Comment by a rural Albertan: “Murray sawed off a deal that protects the status quo. Justice Rosalie Abella should be proud of her boy.”

Apt tweet by Edmonton lawyer, Avnish Nanda, on rule of law being applied in an unequal manner (as it has been since the beginning of humans, especially white male religious):

Media linked to in the above tweets:

67 South Asian protesters ticketed in rally say they’re victims of ‘double standard’ by Sammy Hudes, Dec 18, 2020, Calgary Herald

No additional fines against Calgary church leader who refused to follow COVID-19 rules by Timm Bruch, CTV News Calgary, Jan 10, 2020

Citizens are pissed, a few tweets in response:

Little (Net Zero) General@Lancaster67 Replying to @timquerengesser

What’s left to discuss? I should think AHS has the power to close this church down, as a public health hazard. Chains and padlocks.

Barb@Barbielynn01 Replying to @timquerengesser

WTF? Put him in jail

THE UCP ARE LETTING ALBERTANS DIE@Harleydadd Replying to @timquerengesser and @Barbielynn01

Pathesti, as usual of @AHS_media and @CalgaryPolice . Both are complicit in this. FINES! FINES FINES! Like any social gather would bring. One more gathering, and #TaxTheChurch effective immediately.

Sam Jenkins (he/him)@samjenkins Replying to @timquerengesser

They’re breaking the law, and willfully endangering people. You’re right — no words left.

Ann McRae@AEMcRae Replying to @timquerengesser

The west Edmonton church has a full parking lot today too.

Tina Gillis@morningtroll Replying to @timquerengesser

This makes me angry. I don’t go visit my folks because I am not supposed to. I have left my house MAYBE 20 times since March. For what????

gdh@hoffer_gena Replying to @timquerengesser

Fine them!

notyeg@notyeg Replying to @timquerengesser

Why isn’t every person entering without a mask receiving a $1200 fine? And why aren’t the fines higher?

Charlotte Clarke @paulparrazzilvr Replying to @timquerengesser

Yeah. That’s my neighbourhood and I’m not happy that a bunch of selfish assholes are doing this in the name of God while putting me and all the residents at risk. Praise Jesus though? @Ward9Tweets@jkenney

***

2020 11 12: Commission’s Final Report into the RCMP’s Response to Anti-shale Gas Protests in Kent County, New Brunswick

PDF Format

Chairperson’s Statement
November 12, 2020

Executive Summary
November 12, 2020

Kent County Protest Public Complaint Summaries
November 12, 2020

CRCC Chairperson Initiated Complaint & Terms of Reference
July 30, 2013

CRCC Interim Report
March 13, 2019

RCMP Commissioner’s Response
June 17, 2020

Royal Canadian Mounted Police Act
Section 45.76(3)

Table of Contents

Preface

The Commission’s Findings and Recommendations

The RCMP’s Response to the Commission’s Report

Introduction

Background

Analysis, Findings, and Recommendations

Role of the RCMP
Measured Approach
Surveillance and Searches
Open-Source Intelligence Gathering
Freedom of Expression, Association and Peaceful Assembly
Sensitivity to Indigenous Culture, Ceremonies, and Sacred Items
Alleged Bias Against Indigenous Protesters
Tactical Operation of October 17, 2013
Crisis Negotiation Team
Arrests
Use of Force
Contingency Planning

Commission’s Final Findings and Recommendations

Conclusion

Preface

[1] The Commission has completed its public interest investigation into the RCMP’s response to anti-shale gas protests in Kent County, New Brunswick, and has received the RCMP Commissioner’s response to its Interim Public Interest Investigation Report. This independent review of the RCMP’s actions is intended to hold the RCMP accountable to the public it serves, and to recommend concrete measures to improve policing. That’ll never happen as long as largely foreign-owned oil and gas and frac’ers use our RCMP, police and courts (that we pay for) as their private rights-violating thugs and profit-enhancing agents.

[2] In the course of its investigation, the Commission reviewed an exceptionally large amount of video and documentary evidence, witness statements, police records, and other relevant information. The Commission assessed various RCMP actions that took place over a six-month span from June to December 2013. In addition to its 116-page Interim Public Interest Investigation Report, and this 54-page Final Report, the Commission also completed detailed reports into 21 individual complaints related to the anti-shale gas protests.

[3] Given the breadth of complex issues and evidence examined, it is important that the essence of the case not be lost in its details. For this reason, the Commission offers the present overview of the importance and ongoing significance in today’s context of the Commission’s substantive findings and recommendations. The Commission also comments on the RCMP Commissioner’s response to these findings and recommendations, and what it tells us about the operation of the independent No such thing in corporation-controlled Canada oversight regime in this case.

The Commission’s Findings and Recommendations

[4] The issues considered by the Commission with regard to the Kent County protests remain relevant in today’s context, not only to the interested parties and broader Canadian society, but also to the continued improvement of the RCMP’s public order policing operations and its responses to protests. These include issues surrounding:

arrests;

use of force;

tactical operation planning;

the enforcement of injunctions by police;

the establishment of stop checks, roadblocks, and exclusion zones by police;

negotiation and the measured approach; 200 heavily armed mostly white (racist?) snipers invading an unarmed camp of Indigenous women, children and elders?

the collection of open‑source intelligence about individuals involved in protests; and

police interactions with spiritual practices of Indigenous persons involved in protests.

[5] The Kent County anti-shale gas protests arose from significant concerns about environmental protection and Indigenous rights. The protests and the underlying issues were of great importance to many people, including Indigenous persons in the region and beyond. The RCMP’s response to the protests was also significant in terms of its scope and impact.

[6] Lawful protest is a hallmark of democratic societies and a Charter-protected right in Canada. Pfffft! What Charter? The oil-soaked, further tarred by our lying Supreme Court of Canada, mangled paper airplane flown out of Calgary office towers occupied by multinational profit-raping oil and gas companies? At the same time, police have a crucial role to play in keeping the peace, protecting society, and preventing crime. Tension and conflict often arise between protesters and police. It is here—by determining the facts and making meaningful findings and recommendations—that independent civilian oversight of the police can play an important role. In this case, the Commission has fulfilled this role by assessing the evidence in a neutral fashion, identifying instances where RCMP members acted reasonably and within the limits set by the applicable law, and addressing other instances where there were concerns about police actions. Consequently, areas for improvement were identified.

[7] In its report, the Commission recognized the challenges faced by the RCMP members whose job it was to police these protests, sometimes at risk for their own safety. Really? Like AER getting rid of my valid, reasonable questions and concerns by ruling me to be, without any evidence or due process: 1) in 2005, a dangerous criminal; 2) in 2012 court filing, a terrorist – thus without Charter rights (to defame me and belittle my concerns about Encana/Cenovus/Ovintiv breaking the law, putting an entire community at risk of blowing up in their homes); and 3) in response to me trying to see justice for AER violating my Charter rights, the Supreme Court of Canada ruling in Ernst vs AER that the regulator found me to be a vexatious litigant (two years before I became a litigant)? Hence, despite a perception by many of the protesters and some members of the public that the force used in policing the Kent County protests was excessive, the Commission has made findings that most of the arrests, and use of force incidents, were in fact reasonable and justified This comment indicates to me that the commission is not “independent under the circumstances. There was also significant concern expressed by community members about the overall role played by the RCMP in the context of the protests, but the Commission found that the RCMP members involved exercised their law enforcement role appropriately.

[8] In other areas, for example in relation to police roadblocks and stop checks and the collection of open-source intelligence, the Commission has expressed concerns about the reasonableness and, at times, the legality of the practices engaged in by the RCMP.

[9] As a result, the Commission made findings and recommendations toward the improvement of the RCMP’s handling of protest policing, particularly with regard to Indigenous-led protests. Key findings and recommendations were also made in relation to RCMP members’ knowledge of and sensitivity to Indigenous cultural practices, and the handling of sacred Indigenous items.

The RCMP’s Response to the Commission’s Report

[10] The RCMP’s response to the Commission’s report contains indications that many of the concerns raised by the Commission in its report will in fact be addressed. In my experience, promises/commitments/indications/intentions by police/RCMP are mostly to con the harmed into believing we will be less harmed in future while they (and politicians and other authorities) secretly work to increase the harms against us.

[11] For instance, the RCMP has demonstrated an unequivocal commitment to supporting and implementing the Commission’s recommendations related to sensitivity to Indigenous cultural practices and the handling of sacred items, and has provided detailed information about the steps it has taken and intends to take in this regard. Similarly, the RCMP has provided concrete information about the actions it intends to take to ensure that the role of the Crisis Negotiation Team involved in policing these types of protests is better defined and that the Crisis Negotiation Team is better informed of the overall operational plans.

[12] In another instance, the RCMP has committed to implementing one of the recommendations that it did not support. The RCMP Commissioner indicated that she considered it would be a best practice Voluntary, of course, like the oil and gas industry’s and those pimped by its lobby groups that RCMP members involved in the policing of protests be provided with a review of law and policy related to search and seizure, as recommended by the Commission, although she did not officially support the recommendation due to her disagreement with the Commission’s findings about the stop checks and searches conducted during the Kent County protests.

[13] Despite these encouraging developments, other responses to the Commission’s recommendations raised concerns.

[14] The RCMP strongly rejected the Commission’s recommendations meant to limit the collection and retention of intelligence about protesters from open sources such as social media accounts. The Commission has serious concerns about the RCMP’s approach in such matters.

The RCMP’s response not only failed to alleviate the concerns that the Commission had expressed in its Interim Report, but further heightened many of the concerns.

The Commission has therefore reiterated and further clarified its recommendations in an effort to address those concerns.

[15] In addition, of the eight recommendations the RCMP officially supported in its response, there are three for which the RCMP Commissioner has stated that no further action will be taken, as the RCMP believes its existing practices are already in line with the recommendations. While the Commission is aware that the legislation allows the RCMP to refuse to implement some of its recommendations, the Commission is concerned with the rationale provided in the case of these recommendations that the RCMP has supported, but refused to implement.

These included recommendations on important issues such as roadblocks and exclusion zones, and the need for RCMP members to be cognizant of the limits of their powers, especially in light of the fundamental constitutional rights being exercised by protesters.

[16] The Commission made these recommendations for improvement because the facts in the Kent County case raised concerns about the RCMP’s actions in these areas. However, in indicating that she believed the RCMP’s practices are already in line with the recommendations, the RCMP Commissioner provided no information indicating that practices have been adjusted since the Kent County events, or that the Commission’s concerns have been recognized and efforts have been made to address them. As such, it is difficult to view these responses as true support for the Commission’s recommendations. They also do not provide a satisfactory explanation of the reasons for the RCMP’s decision not to take further action.

[17] With respect to the RCMP’s response to the Commission’s findings about the events in Kent County, the RCMP Commissioner agreed with the findings concluding that the RCMP members’ actions were not unreasonable, and also agreed with a number of the findings that were critical of the RCMP’s actions.Footnote 1

[18] Therefore, in a number of instances, the RCMP has acknowledged the issues identified by the Commission. For example where it agreed with the Commission’s findings about:

the RCMP members’ insufficient training in Indigenous cultural matters;

the unfortunate consequences that resulted from not providing information to the Crisis Negotiation Team about operational planning; and

the fact that the handcuffs that were initially placed on certain protesters were too tight.

[19] In other instances, the RCMP disagreed with the Commission’s findings and appropriately brought to its attention certain evidence and documents that provided a rationale for not accepting some findings. This was to be expected given the exceptionally large volume of evidence in this case. For example, with respect to a finding regarding the arrests made pursuant to the terms of a November 22, 2013, injunction, the RCMP Commissioner provided specific references to police officers’ notes, and specific references to some videos that further explained the arrests. While this raised some concerns regarding RCMP members’ record-keeping and the information provided to the Crown prosecutor, it did cause the Commission to reconsider its initial views regarding the grounds for these arrests. The response to this finding is an example of the oversight regime allowing the RCMP to provide an explanation for its actions functioning as intended.

[20] However, many of the other responses rejecting the Commission’s findings were of a different nature. In those cases, the RCMP did not provide any additional evidence or facts, but instead provided its own assessment of the evidence in support of its conclusion that the conduct of its members was not problematic. In one case, the RCMP even rejected a finding by the Commission that the evidence was insufficient to conclude that the RCMP members’ conduct was unreasonable, instead expressing the view that the evidence demonstrated that the RCMP members’ conduct was reasonable and appropriate.

[21] Those responses, which often included a lengthy, point-by-point rebuttal of the Commission’s findings, without additional factual information being provided Making shit up to suit a predetermined outcome like AER making up that I was a criminal, then changing that to terrorist to avoid dealing with Encana’s law violations; Justice Rosalie Abella making shit up to smear me in Supreme Court of Canada’s ruling in Ernst vs AER; and Encana and Alberta gov’t making shit up in their Statements of Defence in my case?, raise concerns about the operation of the independent oversight regime.

[22] The regime enacted by Parliament to provide oversight for the RCMP provides that the RCMP will have an opportunity to investigate specific incidents in the first instance and make conclusions about its members’ actions. Where the complainant is not satisfied with these conclusions, or where, as in this case, the matter is of public interest, the legislation entrusts this Commission, which is independent from the RCMP, with the mandate to assess the evidence and come to conclusions about the actions of the RCMP members involved.

[23] While the legislation does provide that the RCMP may choose not to act on some of the Commission’s findings and recommendations, the Royal Canadian Mounted Police Act provides a mechanism of accountability through transparency, by imposing an obligation on the RCMP to provide a response to the Commission’s reports indicating what action will be taken about the complaint, and, if no action is to be taken about any of the findings or recommendations, to explain the reasons for not acting.Footnote 2

[24] This requirement for the RCMP to explain itself where it chooses not to implement the Commission’s findings or recommendations constitutes an opportunity for the RCMP to raise important issues that may not have been considered when the Commission prepared its Interim Report. For example, there could be issues that the Commission is not aware of that affect the feasibility of implementing certain recommendations. There could be resource implications, or an impact on other operations of the RCMP. These are all important factors to consider. They may lead the Commission to reconsider or rephrase some recommendations, and they will be relevant in helping the public better assess the RCMP’s response to the events. The Commission welcomes dialogue of this nature with the RCMP, in the spirit of working toward the common goal of improving policing.

[25] It is unfortunate that, in its responses to many of the Commission’s findings on important topics such as the random stopping of vehicles and the “general inquisition”Footnote 3 into vehicle occupants, the RCMP did not take this opportunity to provide additional facts or information justifying or explaining its rejection of the Commission’s conclusions. Instead, the RCMP sought to substitute its own views of the evidence for those of the Commission, and to provide its own conclusions about the reasonableness of its members’ actions.

[26] In the Commission’s view, the RCMP’s right to refuse to implement findings or recommendations, and its statutory obligation to explain itself when it does so, is not meant to provide an opportunity for the RCMP to act as an appeal body with regard to the Commission’s findings. The RCMP’s own views about the appropriateness of its members’ actions should not be allowed to govern in a case where the independent oversight body, having examined all the evidence as it is mandated to do, has reached a different conclusion, and no further factual information or explanation is being offered by the RCMP. Such a process would amount to giving the RCMP carte blanche to come to its own conclusions about its members’ actions.

[27] For these reasons, the Commission found that these types of responses were not helpful to achieve the kind of accountability and transparency contemplated by the oversight regime. The Commission has therefore reiterated many of its original findings on those topics.

[28] Despite these concerns, the Commission is confident that the detailed analysis and lessons learned in these reports can assist the RCMP in improving its response in the policing of protests, particularly Indigenous-led protests, with the delicate balance to be struck between enforcing the law and respecting the rights of all citizens.

Introduction

[29] The Civilian Review and Complaints Commission for the Royal Canadian Mounted Police (“the Commission”) is an agency of the federal government, distinct and independent from the RCMP.Footnote 4 The Commission received several public complaints about the RCMP’s response to protests against shale gas testing/hydraulic fracturing (“fracking”) in Kent County, New Brunswick, in 2013. Given the significant number of complaints and the issues raised therein, on July 30, 2013, the Commission decided that it was in the public interest for it to conduct its own investigation of those complaints. The Commission received a total of 21 complaints.

[30] During the course of the Commission’s investigation into the individual complaints, additional questions surfaced about the RCMP’s response to the protests. In December 2014, the Commission’s then Chairperson initiated his own complaint and investigation into the following issues:

  1. the use of arrest;
  2. the use of detention and search powers;
  3. the use of force;
  4. the adequacy of communication with members of the public;
  5. the planning, management and execution of the arrests at the protest camp on October 17, 2013;
  6. the handling of spiritual items, and/or interference with the spiritual practices of Indigenous peoples involved in the protests;
  7. the role of the RCMP in the policing of protests by Indigenous peoples pertaining to Indigenous land rights; and
  8. whether there was differential treatment of Indigenous peoples compared to other protesters.

[31] The materials disclosed by the RCMP, and generated by the Commission’s investigators, were voluminous and took a great deal of time to organize and review. More than 130 civilian witnesses and RCMP members were interviewed by Commission investigators. The investigation unearthed more than two terabytes of documentation (including extensive written documentation—approximately 50,000 files, including duplicates—and thousands of video files from the RCMP and civilian witnesses). The Commission encountered delays in obtaining relevant materials from the RCMP, and much of the materials were provided to it in a disorganized fashion. The Commission’s reports in this matter are based on as thorough a review as possible of the available information. The Commission thanks complainants and the RCMP members who were the subjects of the complaints for their patience.

[32] After reviewing the voluminous evidence collected during its investigation, the Commission made findings about the issues raised. With so many different perspectives, it was not always possible to achieve certainty about the unfolding of the events. When faced with conflicting versions or evidence, the Commission sought to determine what was more likely than not to have happened. This well-known legal standard is referred to as the “balance of probabilities” standard. This was the test applied by the Commission to reach all of its conclusions in this case.

[33] The Commission completed a 116-page Interim Report Following a Public Interest Investigation (“Interim PII Report”), dated March 13, 2019, making 38 findings and 12 recommendations. The Commission also completed reports in relation to each of the 21 individual public complaints.

[34] In accordance with the Royal Canadian Mounted Police Act (“RCMP Act”), the Commission sent the Interim PII Report to the RCMP Commissioner. On June 17, 2020, the Commission received a response from Commissioner Brenda Lucki, in accordance with section 45.76(2) of the RCMP Act.

[35] After considering the RCMP Commissioner’s response, the Commission has prepared this Final Report, according to section 45.76(3) of the RCMP Act. In this report, the Commission provides an overview of the analysis completed in its Interim PII Report about the issues raised, and sets out the interim findings and recommendations that it made. The Commission then provides an overview of the response provided by the RCMP Commissioner to each of its interim findings and recommendations, as well as its own analysis of the RCMP Commissioner’s response.

[36] In cases where the Commission has reconsidered or rephrased any of its findings or recommendations in light of the RCMP Commissioner’s response, this is indicated in the text. In all other cases, the Commission is reiterating the findings and recommendations made in its Interim PII Report. For ease of reference, a table of the Commission’s final findings and recommendations is included at the end of this report.

[37] The Commission notes that, given the breadth of issues to be addressed in the present report, only a general overview is provided of the analysis and conclusions set out in the 116-page Interim PII Report. For a complete understanding of the interim findings and recommendations, and the evidence they were based on, the entire Interim PII Report should be reviewed. Similarly, while the Commission sought to provide an overview of the RCMP Commissioner’s response to its report, it was not feasible to reproduce all the information provided. For a complete review of the RCMP Commissioner’s response and the details of the actions she has stated will be taken, the response itself should be reviewed in its entirety.

Background

[38] In 2012, the Government of New Brunswick granted a licence to SWN Resources Canada (“SWN”) to explore the accessibility of shale gas in the vicinity of the town of Rexton and the Elsipogtog First Nation Reserve in Kent County and various other parts of the province. Exploration began in June 2013, as did protests. As the provincial contracting police agency in New Brunswick, the RCMP’s “J” Division was engaged in policing the protests.

[39] Protesters were vehemently opposed to the shale gas project and expressed their views in various ways over the course of six months. Many of the protesters were Indigenous persons from the Elsipogtog First Nation and elsewhere. Much of the protest activity took a form of civil disobedience—for example, people positioning themselves in the middle of the road to prevent trucks from passing and refusing to move when requested by the RCMP. Indigenous persons would occasionally conduct sacred ceremonies in the roadway, which the participants insisted on completing before moving. Numerous arrests occurred. Over time, the dynamics of the protests changed with the arrival of more confrontational protesters, the Warriors.

[40] Protesters eventually set up an encampment, which blocked the exploration company’s compound. Private security guards (Industrial Security Limited or “ISL”) hired by the company were prevented from leaving the building by the protesters’ blockade. A court issued an injunction restricting the activities of the protesters. Negotiations were conducted between RCMP members and protesters to resolve numerous issues. Some progress was made but the RCMP conducted a tactical operation on October 17, 2013, in which the encampment was cleared. What ensued was effectively a riot and numerous people were arrested. Relations between the RCMP and local people, especially Indigenous persons, were damaged. Protests continued, as did arrests, until the company left the area in December 2013.

[41] For Indigenous protesters, a primary motivation for opposing the actions of SWN was similar to that which has driven many Indigenous peoples’ protests throughout Canada in the past and present—their dedication to protecting the land and water. Their justification was based on the view that the land belonged to the First Nations, as it had never been ceded to the Crown by any treaties or agreements. They were joined by non-Indigenous protesters, including environmentalists, whose interest in protecting the land blended with the interests of the Indigenous protesters.

Analysis, Findings, and Recommendations

Role of the RCMP

[42] The RCMP’s primary role in any demonstration or protest is to preserve the peace, protect life and property, and enforce the law in a manner that is consistent with the rights enshrined in the Canadian Charter of Rights and Freedoms (“Charter”), and the rights of the Aboriginal Peoples of Canada, as set out in section 35 of the Constitution Act, 1982. The RCMP’s role does not include determining the legal validity of a licence or an injunction.

[43] Despite the RCMP’s attempts to balance the rights of all groups and individuals involved, many of the protesters accused the RCMP of acting as SWN’s private security. Just like in NEBC, it’s obvious who the RCMP were/are serving, and it’s not Indigenous Canadians (too many racist cops in Canada, to do that), it’s corporate profit, much of it foreign, just like the RCMP operating as goons for AER/Alberta govt and Encana/Cenovus/Ovintiv when they trespassed on my private property and others.

The Commission found that the RCMP’s interactions with SWN were reasonable in the circumstances. It was necessary for the RCMP to engage with SWN to know what plans the company had—for example, where and when they planned to operate—to plan their own operations. The perception of the RCMP working to facilitate SWN’s work may have arisen because actions taken to enforce the law, including court‑ordered injunctions, had the effect of allowing SWN to carry out its work. This paragraph indicates to me the commission is just another colonial corporate profit-raping enabler like our courts and the RCMP, and not worthy of respect or trust.

Commission’s Interim Finding #17 The commission lost all crediblity with this finding.

The RCMP did not act as private security for SWN. Its role was to keep the peace and ensure public safety while respecting the protesters’ right to protest. Police brutality enabling hogwash. Based on the available information, the RCMP’s interactions with SWN Resources Canada were reasonable in the circumstances.

RCMP Commissioner’s Response

[44] The RCMP Commissioner agreed with Interim Finding 17.

Measured Approach

[45] The RCMP’s Operational Plan for Shale Gas Exploration, developed in April 2012 and revised in April 2013, addressed the probable operational conditions and included references to the “measured approach,” as did other relevant policies. Some complainants alleged that, in various ways, the RCMP failed to follow this approach. The Commission closely examined the RCMP’s compliance with policy in this area.

[46] The “measured approach” is a crisis management philosophy that relies on communication, relationship building, problem solving, and the development of creative and unique measures as the crisis unfolds. Under this approach, the role of the police is to bring the involved parties together to work on achieving a resolution to the conflict.

[47] Throughout the protests, there were numerous examples of the RCMP employing the measured approach. Overall, the Commission found that RCMP members understood and applied a measured approach in their dealings with protesters.

Commission’s Interim Finding #2

In general terms, RCMP members understood and applied a measured approach in their dealings with protesters.

RCMP Commissioner’s Response

[48] The RCMP Commissioner agreed with Interim Finding 2.

Surveillance and Searches

[49] The RCMP engaged in surveillance practices and physical searches, some of which may have been inconsistent with protesters’ Charter rights to be free from unreasonable search and seizure. For example, in conducting “stop checks,” RCMP members randomly stopped vehicles for a purpose other than those set out in provincial highway traffic legislation. They did not have judicial authorization and were not conducting an emergency investigation of a serious crime. The Commission found that these actions were inconsistent with the Charter rights of vehicle occupants. Why such fluffy wording? Why not state outright that the RCMP violated Charter rights of vehicle occupants?

[50] Likewise, although there was a legitimate concern for public safety given unconfirmed information that had been circulating about weapons, the Commission found that, in the circumstances, the practice of searching persons entering the protesters’ campsite appeared to be inconsistent with the individuals’ right to be secure against unreasonable search and seizure.

Commission’s Interim Finding #8

It appears that RCMP members did not have judicial authorization, or other legal authority, for conducting stop checks for the purposes of information gathering in a way that constituted a “general inquisition” into the occupants of the vehicles. This practice was inconsistent with the Charter rights of the vehicle occupants.

Commission’s Interim Finding #9

Randomly stopping vehicles for a purpose other than those set out in provincial highway traffic legislation, without judicial authorization and in the absence of the emergency investigation of a serious crime, was on the balance of probabilities inconsistent with the Charter rights of vehicle occupants.

Commission’s Interim Finding #10

On the balance of probabilities, it appears that the practice of searching persons entering the campsite was, in the circumstances, inconsistent with the individuals’ right to be secure against unreasonable search and seizure.

Commission’s Interim Recommendation #4

That members involved in public order policing operations be provided with a review of law and policy related to search and seizure, including the warrant requirement and the legal grounds establishing exceptions for warrantless searches. What good will that do? When oil-soaked courts/politicians and or companies order RCMP to harass frac-harmed citizens or citizens concerned with the endless harms caused by frac’ing, do you think those RCMP give a shit about our health, drinking water, communities, rights or the Charter? They know investigations into their unlawful behaviours will nearly always rule them innocent (while blaming the victims), or if by miracle one does find them guilty, there will be no punishment for Charter-violations – the Supreme Court of Canada set a lovely precedent pissing on Canada’s Charter by letting AER get away with violating my Charter rights. RCMP/police get away with murder in Canada and in the USA. Is any authority going to punish Charter-violating police? Not a one, I expect.

RCMP Commissioner’s Response

[51] The RCMP Commissioner disagreed with Interim Finding 8. She stated that whether requesting identification from an individual engages the Charter depends on the facts and especially whether or not the individual was detained at the time. She concluded that, from her review of the evidence, she could not conclude that the sole purpose of the stops was intelligence gathering, or that RCMP members acted improperly or in a manner that was inconsistent with the Charter. The RCMP Chief sums up (especially for us frac-harmed) why the revictimizing, unlawful, lying, Charter rights-violating RCMP are so reviled.She stated that the video evidence was incomplete, and that there were not enough facts or context upon which to derive conclusions.

[52] The RCMP Commissioner also stated that she could not conclude that the passengers were detained at the time the information was solicited from them. The RCMP Commissioner put forward the case of R v Harris, in which the Ontario Court of Appeal found that a vehicle passenger who was asked for identification had been lawfully detained for a purpose under the Highway Traffic Act (the driver’s failure to signal a turn); thus, the detention was not arbitrary.

[53] The RCMP Commissioner also disagreed with Interim Finding 9. She expressed the view that there was insufficient evidence in the Commission’s Interim PII Report detailing specific instances where a roadblock was unlawfully erected, and she challenged the applicability of some of the jurisprudence relied on by the Commission. Specifically, the RCMP Commissioner stated that the relevant materials did not reveal that roadblocks or exclusion zones were arbitrarily established, or that individuals were detained at them. She also pointed to specific circumstances where closing roads was legally justified.

[54] The RCMP Commissioner similarly disagreed with Interim Finding 10. She stated that she found the Commission’s finding and associated analysis to be somewhat vague as to whether the Commission was referring to searches only of persons or of persons and vehicles.

[55] The RCMP Commissioner also explained that an agreement had been reached with the protesters to allow the search of a trailer that was being brought into the campsite for the comfort of the elders. In addition, the Commissioner stated that a small number of other vehicles, including a van that brought in food from time to time, and a vehicle that brought “Porta Potties” in and out, were searched. She stated that this was justified given the at times “extremely hostile environment.” The Commissioner detailed numerous reasons for concern about safety and the possible importation of weapons into the campsite. She expressed that, in the circumstances, the RCMP could have been viewed as negligent if they did not search these few vehicles, and weapons were indeed brought in that were then used to harm police or protesters.

[56] The RCMP Commissioner also concluded that the available evidence did not support the conclusion that there was a practice of routinely searching or “patting down” persons entering the campsite on foot.

[57] The RCMP Commissioner indicated that she did not support Interim Recommendation 4 concerning the above three findings. She nevertheless agreed that it would serve “as a best practice going forward” to provide RCMP members involved in public order policing operations with a review of law and policy related to search and seizure, including the warrant requirement and the legal grounds establishing exceptions for warrantless searches. The RCMP Commissioner indicated that she would therefore direct that this recommendation be shared through the public order command structure.

Commission’s Analysis of the RCMP’s Response

[58] With respect to Interim Finding 8, the Commission notes that this is an example of an instance where the RCMP Commissioner is proposing a different interpretation and assessment of the evidence, without pointing to new or different facts or evidence. On the whole, the Commission reiterates its original assessment of the matter. Having reviewed the evidence and case law specifically discussed in the RCMP Commissioner’s response, the Commission found no new facts or law that would cause it to change its original finding.

[59] The Commission acknowledges that the specific video discussed in the relevant section of its Interim PII Report did not show the beginning of the interaction. While seeing the entirety of an interaction can provide more context and may alter the impressions of what occurred, the fact remains that what is seen in the available portion of the video is a minor who was a passenger in the vehicle being asked for his name and date of birth, which were then recorded in writing by an RCMP member.

[60] Although the quality of several videos was poor, the Commission did observe instances of vehicle stops where the first question asked by RCMP members was a request for identification, as opposed to a demand for a driver’s licence, vehicle registration, and insurance. Although the RCMP Commissioner provided her view that the evidence did not show that the sole purpose of the stops was information gathering, she did not offer any information as to what other purposes were being pursued by the RCMP members.

[61] The content of check sheets reviewed by the Commission supports the conclusion that these stops more likely than not consisted of a “general inquisition” of vehicle occupants. The documents included information such as a driver’s name, date of birth, address, driver’s licence number, height, weight, glasses, facial hair, race, hair colour, other distinguishing features, and vehicle information. There was a section to describe where the person had been “observed.” There was also a section to list whether or not a criminal record check, and/or a police database check, had been conducted on the driver. Additionally, there was a section for information about passengers in the vehicle. Creepy! When the RCMP invaded to intimidate and interrogate me and frighten me, they refused to tell me who sent them or gave them my private information. I caught the lead interrogator lying. When I asked them if they had interrogated the law violators I was suing, they stared and did not answer. When they finally left, sheepish, the officer who did not do the interrogating apologized to me six times. Pathetic for the RCMP to come hound me, a frac-harmed Canadian, while not harassing Encana/Ovintiv law-violating regulators.

[62] With respect to the RCMP Commissioner’s argument that the passengers were not detained when they were questioned by the RCMP members, the Commission notes that in the case relied on by the RCMP Commissioner in support of this position, R v Harris,Footnote 5 the majority of the Court also found that the police officer’s request for identification from the passenger infringed his rights under section 8 of the Charter. The judges concluded that the accused’s identifying himself in response to the officer’s questions constituted a seizure and attracted section 8 protection. That seizure was unreasonable. The officer had no reason to suspect the accused of anything when he questioned him and requested his identification. The purpose of the stop did not justify an at-large inquiry into the accused’s background or his status in the criminal justice system.Footnote 6 [Emphasis addedMy emphasis]

[63] The Court in Harris reiterated the well-established principles that physical and psychological restraint by police constitutes detention, and that “[a] person who complies with a police direction or command reasonably believing that he or she has no choice is detained for the purposes of sections 9 and 10 of the Charter.”Footnote 7 The Court in Harris also discussed two of the other cases (R v GrafeFootnote 8 and R v HallFootnote 9) put forward by the RCMP Commissioner to support the principle that police may in the course of their duties properly request identification from individuals in circumstances where the police have no reason to suspect that individual of any misconduct. The Court stated that those cases “turn largely on the finding that the person who was asked for identification was not under police detention or any other form of compulsion to answer the request for identification.”Footnote 10

[64] Another case referred to by the RCMP Commissioner, R v Frank, found that not all traffic stops involving asking a question of a passenger amount to a detention of the passenger, and that a fact-specific inquiry must be carried out in each case.Footnote 11 In that case, the accused was “not concerned” about giving his name to police when asked.Footnote 12

[65] In the Kent County matter, passengers were in stopped vehicles, being asked questions by RCMP members. The Supreme Court in Mellenthin said of stop checks, “[the lawfulness of the stop] does not make a check stop any less a manifestation of police authority. For even the most experienced and sophisticated driver it will create an atmosphere of some oppression.”Footnote 13 As stated in the Commission’s report, it is far from clear that vehicle occupants were fully aware of their rights to not answer the questions posed by the police in the circumstances; this is especially true when information was being elicited from minors. It is likely that vehicle occupants felt that they had no option but to answer questions from the RCMP members if they wished to continue their journey. The RCMP Commissioner has not provided any additional facts or pointed to any evidence that would cause the Commission to reconsider its finding in this respect.

[66] For these reasons, the Commission reiterates Finding 8.

[67] With respect to Interim Finding 9, it is established that, during the Kent County matter, stop checks occurred and check sheets were completed. The RCMP Commissioner points to certain specific instances that justified closing roads, including when roadways and highways were rendered inoperable or unsafe by felled trees, when serious property damage and arson occurred, and when “certain circumstances” at times created a hazard to public safety. The Commission agrees that such instances did occur and that in some of these cases, closing roadways may have been necessary, reasonable, and legally justifiable. However, this does not explain or justify many of the roadblocks and stops conducted. Hence, while the Commission will adjust its finding to reflect the existence of certain circumstances that justified some roadblocks, the essence of the finding remains unchanged.

[68] The rationales invoked in the RCMP Commissioner’s response do not explain or justify the kind of “general inquisitions” that appeared to have taken place, as described above. If a roadway was closed due to fallen trees or for the investigation of a serious crime such as arson, then presumably the RCMP member would simply tell the driver of the vehicle to turn around, not ask them and their passengers for identification or other personal information.

[69] The RCMP Commissioner stated that jurisprudence referred to by the Commission involved cases where roadblocks were erected and vehicles and their occupants were searched. As stated in Harris, however, the obtaining of information from a detained person can amount to a seizure under section 8 of the Charter.Footnote 14

[70] While challenging the Commission’s assessment of the evidence, the RCMP Commissioner has not put forward any rationale for the information gathering that was carried out during some stop checks. The content of the check sheets suggests an intent by the RCMP to gather information. The Commission again highlights that there did not appear to be any particularized concern regarding the occupants of the vehicles being stopped, nor has any other justification been put forward.

[71] For these reasons, the Commission reiterates Finding 9, with the caveat that some of the roadblocks were likely justified in the specific circumstances.

Commission’s Final Finding #9

Although some of the roadblocks were likely justified in the specific circumstances, randomly stopping vehicles for a purpose other than those set out in provincial highway traffic legislation, without judicial authorization and in the absence of the emergency investigation of a serious crime, was on the balance of probabilities inconsistent with the Charter rights of vehicle occupants.

[72] With respect to Interim Finding 10, the Commission recognizes that the text of its Interim PII Report referred to searches of both vehicles and individuals entering the protesters’ campsite, while its finding referred only to “persons” being searched. The Commission acknowledges that its language could have been clearer in this regard. The Commission also acknowledges that some searches based on consent, such as the search of the trailer brought in for the elders, would have been lawful and reasonable in the circumstances.

[73] For the other searches, however, the Commission can only reiterate its conclusion that the circumstances were insufficient to justify a routine search of vehicles and individuals entering the campsite, particularly given that the threshold for exigent circumstances or an apprehended breach of the peace did not appear to exist. One example of this was provided by Allan Marsh, who explained to the Commission’s investigator that he had been given permission in advance by the RCMP to bring water into the campsite, but that he took issue with what he described as multiple searches of his vehicle. Items such as a hammer and knife were temporarily confiscated, and he had to leave his canoe on the side of the road. Yup, those damned canoes are just too dangerous to allow in public.

[74] The Commission detailed many of the same circumstances in its report that the RCMP’s response relies on as the concerns that would have justified the searches. The Commission had considered these circumstances in reaching its original conclusion. As noted in the Commission’s report, chapter 21.4. of the RCMP’s national Operational Manual, which addresses warrantless searches, correctly explains the concept of exigent circumstances as existing where the delay in obtaining a search warrant would result in danger to human life or safety, or loss or destruction of the item to be seized.

[75] The Commission acknowledged the legitimate concerns about weapons potentially being brought into the campsite, but if sufficient grounds existed, the RCMP could have sought and obtained a general warrant to search vehicles and individuals entering the site. This was not done and no rationale has been provided for why it was not done.

[76] However, the Commission recognizes that the information brought forward to it regarding searches related primarily to searches of vehicles and their contents. For this reason, the Commission has decided to amend its Finding 10 to focus on vehicle searches.

Commission’s Final Finding #10

On the balance of probabilities, the practice of searching vehicles entering the campsite may, in the circumstances, have been inconsistent with the individuals’ right to be secure against unreasonable search and seizure. It would have been preferable for the RCMP to seek a general search warrant, if sufficient grounds existed. I expect the RCMP didn’t seek a warrant for the same reason they didn’t seek a warrant to harass me – they knew their requests would have been denied.

[77] With respect to Interim Recommendation 4, the Commission notes that the RCMP has effectively agreed to implement it, despite not supporting it due to its disagreement with the associated findings.

Open-Source Intelligence Gathering

[78] With regard to open-source dossiers and certain undercover operations, the Commission found that RCMP conduct was generally reasonable. The Commission nevertheless conducted a detailed analysis and made several findings and recommendations about the parameters of such practices. For example, the Commission found that any gathering of potentially private electronic communications by the RCMP must be done only within the strictures of the law. In 2012, my home was broken into with nothing taken, not even my laptop sitting on my kitchen table and two piles of cash (one American, the other Canadian – I was packing for a speaking tour in the USA). Was it the RCMP? I didn’t call them to report the crime for obvious reasons. The Commission also recommended that RCMP policy should describe what personal information from social media sites can be collected; the uses that can be made of it; and what steps should be taken to ensure its reliability. Also, the Commission recommended that RCMP policy should require the destruction of personal information, including records obtained from social media sources, once it is determined that there is no criminal nexus regarding the information.

Commission’s Interim Finding #4

The information available to the Commission does not establish, on the balance of probabilities, that persons had an objectively reasonable expectation of privacy with regard to their communications through Facebook groups, or that the RCMP Undercover Operator “intercepted” those communications as outlined in the relevant jurisprudence.

Commission’s Interim Finding #5

Any gathering of potentially “private” electronic communications by the RCMP must be done only within the strictures of the Criminal Code, Charter, and related jurisprudence. Did RCMP violate solicitor-client privilege to help Encana and the other defendants in my lawsuit?

Commission’s Interim Finding #6

On the balance of probabilities, the Commission finds that the open-source information gathering in the cases of Protester B, Protester D, and Protester E was not unreasonable in the circumstances.

Commission’s Interim Finding #7

RCMP policy on the use of open sources did not provide clear guidance as to the collection, use, and retention of personal information obtained from social media or other open sources, particularly in situations where no criminal nexus was determined.

Commission’s Interim Recommendation #1

That the RCMP provide clear policy guidance describing what personal information from social media sites can be collected; the uses that can be made of it; and what steps should be taken to ensure its reliability.

Commission’s Interim Recommendation #2

That RCMP policy require the destruction of records obtained from social media sources containing personal information (such as screen captures of social media sites) once it is determined that there is no criminal nexus regarding the information.

Commission’s Interim Recommendation #3

That the RCMP develop a policy providing that, where the RCMP obtains personal information that is determined to have no nexus to criminal activity, the information should not be retained.

RCMP Commissioner’s Response

[79] The RCMP Commissioner agreed with Interim Findings 4, 5, and 6.

[80] The RCMP Commissioner stated that she agreed generally with Interim Finding 7, acknowledging that, at the time of the protests, the RCMP did not have a policy that provided clear guidance on the collection, use, and retention of personal information obtained from social media or other open sources. She stated that, since that time, the RCMP has adopted chapter 26.5. of its national Operational Manual, called (as of 2019) “Using the Internet for Open Source Intelligence and Criminal Investigations.” The policy emphasizes that the public’s reasonable expectation of privacy is paramount. Additionally, all open-source intelligence-gathering activities must be directly related to the operating program’s mandate and official law enforcement activities.

[81] The RCMP Commissioner wrote that she is satisfied that the combined operation of the Privacy Act, Operational Manual chapter 26.5., and the RCMP’s policies on information management provide sufficient guidance on the collection, use and retention of personal information obtained from social media. The RCMP Commissioner also wrote that she is satisfied that the RCMP’s collection, use and retention of open-source intelligence are in accordance with the current state of the law concerning informational privacy.

[82] In light of this, the RCMP Commissioner did not support Interim Recommendation 1. She indicated that, when it is unclear if open-source intelligence activities would violate law or policy, the policy directs practitioners to consult the unit commander or certain other authorities, and/or RCMP Legal Services for guidance. All members conducting intelligence-gathering activities must also have completed training that varies by specialization tier. Additionally, the Commissioner wrote that the RCMP is creating a SharePoint environmentFootnote 15 in which Tier 2 and Tier 3 practitioners will be kept up to date on the latest changes in law and techniques concerning the collection, use and retention of open-source intelligence. Furthermore, the RCMP is developing an internal course covering the acceptable use of open-source intelligence that will be available to all employees through the RCMP’s intranet. The course will provide employees with an understanding of the law, policy, and privacy impacts of the use of open-source intelligence.

[83] The RCMP Commissioner also did not support Interim Recommendations 2 and 3. The RCMP Commissioner stated that while the police have a duty to prevent crime and keep the peace, they also have a duty to protect life and property. During public protests, the RCMP will use tactical intelligence to obtain information about the groups involved and to determine whether there will be any risk to participants, bystanders, and police. According to the RCMP Commissioner, the police need to be able to access information about the participants even where there is no reason to believe that they were involved in criminal activities. Although the information that is collected may not always appear to have a criminal nexus, it may be necessary to “create a baseline” for the activities of a group of protesters.

[84] The RCMP Commissioner stated that commanders rely on the results of intelligence processes to make informed decisions about the overall risk posed by a specific group in order to develop an appropriate plan and response to protests. It is, the RCMP Commissioner wrote, “therefore justified that information related to protesters be found in the operational file, even if some of those individuals are not associated with criminal activities.” The Commissioner stated that such information is no different from information being obtained during an investigation and retained in the operational file despite having no criminal nexus. The information is “part of the fruits of the investigation” and supports the actions taken and the decisions made.

[85] The RCMP Commissioner also stated that once an intelligence report has been prepared that contains personal information and/or open-source intelligence, the RCMP considers it Operational Information Resources of Business Value and its policies require that such information be incorporated or linked into the operational file. The Commissioner stated that RCMP employees are obligated to ensure that all information of business value is incorporated into the RCMP Records Management Program. All open-source intelligence materials are included as supporting documents. They have the same retention period as the occurrence file itself.

[86] In addition, the RCMP Commissioner wrote that the Privacy Act requires that the collection of any personal information must be related to a specific operating file or program. As such, all personal information collected from social media posts are incorporated into the police operational file, “like any other piece of information collected during an investigation.” The retention period of such personal information is based on the retention period for that occurrence file, in keeping with RCMP policies on information management.

Commission’s Analysis of the RCMP’s Response

[87] The Commission’s analysis and recommendations on this topic were first made in the context of the Report Following a Public Interest Investigation Regarding Allegations that the RCMP Improperly Monitored and Disclosed Information of Persons and Groups Seeking to Participate in National Energy Board Hearings.Footnote 16 That report discussed the RCMP’s monitoring of individuals generally engaged in lawful advocacy, protest, and dissent about issues that concerned critical infrastructure (touching on the RCMP’s national security mandate) where there was ultimately no criminal or national security nexus. Of note, the RCMP’s national security mandate expressly excludes lawful advocacy, protest or dissent except where such advocacy, protest or dissent is in conjunction with an act defined as a threat to the security of Canada under the Canadian Security Intelligence Service Act. The personal information of Canadians who are engaged in such lawful activities is therefore excluded from the national security operations of the RCMP.

[88] As stated in the National Energy Board PII Report, the Commission has ongoing concerns about the collection, use and retention of that information under the Privacy Act. Some of these concerns were reiterated in the Kent County Interim PII Report, in light of the information gathering practices observed there. The RCMP Commissioner’s response fails to alleviate the Commission’s concerns.

[89] The Commission’s analysis and recommendations from the National Energy Board PII Report were adopted in the present complaint, which concerned a more confrontational and tense situation involving injunctions, civil disobedience, and some acts of violence. The objective of Interim Recommendation 1 in the present case was to address the Commission’s concerns about the RCMP’s collection of personal information regarding individuals who sought to participate in protests and demonstrations related to environmental causes or had done so in the past. Many of these people had no criminal involvement or intention. The Commission was concerned about the long-term retention of that information, and it believed that clear guidance was needed about the collection, use and retention of personal information obtained from open sources.

[90] The Commission acknowledges that the RCMP has since adopted Operational Manual chapter 26.5. The Commission also acknowledges that the Privacy ActFootnote 17 and the RCMP’s information management policies do provide some basic guidance. Furthermore, the Commission acknowledges the training materials and resources that the RCMP is developing. Finally, the Commission acknowledges the RCMP’s Audit on Open Source Information, which the Commissioner stated will be tabled at the Departmental Audit Committee “in the near future.” The Commission looks forward to reviewing the results of that audit.

[91] The measures described by the RCMP Commissioner meet many of the Commission’s objectives in making Interim Recommendation 1. However, the Commission remains concerned that the RCMP’s policy is vague. An effective policy should provide clear guidance to personnel and emphasize the important elements of the topics discussed. Of course, no policy can address all situations, and policies do not operate in isolation, but other RCMP policies do refer to relevant law and to the expected standards or procedures. The Commission sees no reason why this policy would not include similar references.

Privacy and freedom of expression are essential to Canadians, and vague policies set poor guidance.

[92] As an example of where policy guidance would be appropriate, the current high‑profile protest movements, ranging from anti-petroleum development to anti-racism and police reform, are worth considering. These movements, linked to numerous protests and demonstrations, engage the RCMP’s common-law and statutory duties to keep the peace, prevent crime, protect life and property, and enforce the law. As such, the Privacy Act would arguably permit the RCMP to monitor the social media posts of all individuals who are concerned with these causes and who indicate on social media that they support and/or plan to attend a given protest, no matter how large the event. Arguably, the RCMP would also be allowed to build dossiers about all such individuals even if an event included hundreds or thousands of supporters and participants. Although this information touches on the “biographical core” of information of an individual, under the current RCMP policies, the only clear limits to the collection of “open-source” information in this context would be the RCMP’s own decisions and resources. RCMP policy should provide clearly defined and reasonably constrained intelligence and law enforcement parameters with respect to the collection of such information.

[93] In light of the information provided about the current RCMP policy, the Commission reiterates its Recommendation 1 and has decided to modify it to further clarify its intent.

Commission’s Final Recommendation #1

That, in addition to the Privacy Act and the RCMP’s existing policy and training, the RCMP provide clear policy guidance setting out defined and reasonably constrained intelligence and law enforcement parameters with respect to the collection of personal information from open sources such as social media sites, the uses that can be made of it, and what steps should be taken to ensure its reliability.

[94] With respect to Interim Recommendations 2 and 3, the Commission acknowledges that the police have a legitimate need to develop meaningful intelligence about public order events like protests and demonstrations. The Commission has already found that it is reasonable to make use of “open-source” materials like social media to generate intelligence and plan appropriate responses. Nevertheless, the RCMP’s position on the indiscriminate, long-term retention of personal information about lawful dissent collected from sources like social media is concerning. This raises at least the potential for a chilling effect regarding the public’s participation in lawful dissent and in online discussions, particularly through social media.

[95] In the National Energy Board PII Report, the Commission noted its concerns on the retention of information obtained concerning individuals who were not suspected of any criminal activity but who had been identified as organizers or participants in an upcoming protest or demonstration or other public order event. Although in the National Energy Board PII Report the Commission was not prepared to find that the checks conducted were unreasonable per se, these checks appear to have been of limited value, and the use and retention of personal information obtained about these individuals is problematic and potentially unreasonable where there is no criminal nexus.

[96] Based on the response provided, the RCMP Commissioner appears to have understood the Commission’s recommendation as requiring it to destroy all personal information the moment that it is determined not to have a criminal nexus. As made clear in the analysis within the National Energy Board PII Report, this is not what the Commission is recommending. The Commission acknowledged in the National Energy Board PII Report that it could be helpful and appropriate to obtain and refer to personal information during public order events. The Commission also stated, in the recommendation it made in its National Energy Board PII Report, that RCMP policy should direct that personal information “be destroyed as soon as is practicable and in accordance with applicable law once it is determined that there is no criminal nexus or that the information is otherwise no longer necessary for the purposes for which it was collected.” For clarity, the Commission will add this to Recommendation 3 in the present case.

[97] The Commission does not accept the RCMP Commissioner’s argument that it “might not be lawful” to require the deletion of personal information obtained from social media sources. The Commissioner referred to the Privacy Act in support of this argument. Section 6(1) of the Privacy Act states that personal information must be retained for a minimum period of at least two yearsFootnote 18 where it has been used for an “administrative purpose.” The Privacy Act states that an administrative purpose, “in relation to the use of personal information about an individual, means the use of that information in a decision making process that directly affects that individual.” This is to allow the affected individual reasonable time to obtain access to that information.

[98] The Commission doubts that the use of personal information for generating intelligence products would qualify as an administrative purpose within the meaning of section 6(1) of the Privacy Act. In reality, the individual targeted by the intelligence assessment will almost certainly never know that any assessments were made involving their personal information, let alone be in a position to make a Privacy Act request about it. Furthermore, the overall purpose of the Privacy Act must be kept in mind in this discussion. This legislation was enacted to protect the privacy rights of individuals and to permit them to access and challenge the accuracy of the personal information that government agencies collect about them. Of course, the Privacy Act does not necessarily require the knowledge or consent of the individual whose personal information is collected,Footnote 19 nor does an individual always have a right of access in the case of law enforcement investigations.Footnote 20 Nevertheless, it appears contrary to the Privacy Act‘s purpose to invoke this same legislation to justify the secret retention of information collected when the very individuals the legislation was meant to protect are left unaware.

[99] The intelligence practice of gathering personal information from social media posts is not analogous to obtaining information through investigations. It is true that, for example, in a situation where a person is a witness to an incident, their personal information such as their name, birthdate, and address may be included in an operational file. In many such cases, however, the person is voluntarily co-operating with the police and presumably understands that their information is being recorded for a particular purpose. Even where the police obtain personal information before a witness decides to co-operate, or where the witness declines to co-operate, the information has a direct connection to the occurrence file and it is reasonable that it would be retained for the relevant period, including to fulfil eventual disclosure obligations in the judicial process. Personal information about an individual may also be provided to police by a third party during an investigation and, if pertinent, documented in an operational file. In all these cases, while the individuals in question may not be suspected of wrongdoing, there is a clear and direct connection with an identifiable purpose for collecting and retaining the information.

[100] In the case of open-source intelligence gathering, however, the police may profile individuals for intelligence purposes without so much as a suspicion that the persons targeted intend to engage in criminal activity, or even that they have relevant information about a potential offence. They may only come to the police’s attention because they have voluntarily posted about their intention to engage in lawful dissent; that is, by exercising their rights to freedom of expression and freedom of association, individuals may be caught in a wide net.

The collection of this type of information involves the obvious risk that individuals will be targeted based on their political convictions or beliefs in certain causes, while not having a clear connection with an identifiable, immediate purpose (unlike an investigation).

[101] Although Canadians have a significantly reduced expectation of privacy in social media, they have not abandoned their privacy interests altogether. As such, where the RCMP obtains personal information in relation to public order events such as protests and demonstrations that has no nexus to criminal activity or threats to national security, this information should not be retained longer than is strictly necessary for the intelligence purpose for which it was collected. The Commission acknowledges that such a purpose can include an indication of whether a given event could be disruptive or pose a risk of property damage or personal harm.

[102] The response provided to the Commission’s recommendation makes it clear that the RCMP has made a policy choice to indiscriminately include and archive personal information about individuals engaged in lawful dissent, including by retaining copies of the social media posts in question as supporting documents. The RCMP is deciding on its own that all such information forms “business value” records. The Commission finds that the RCMP has cast an unreasonably wide net, and that clearer limits must be placed on the information being retained.

[103] For these reasons, the Commission has decided to reiterate Recommendation 2 and supplement it by adding a recommendation that the RCMP treat personal information obtained from open-source intelligence as a separate category of information. Such a category would include “supporting documents” like screen shots of social media sites. Where the personal information in question has no criminal nexus or national security dimension, it should be kept for no longer than necessary to provide intelligence for the event or purpose for which it was collected. The Commission suggests a general six-month retention period for such personal information. This period could be extended if the original intelligence purpose continued, but the RCMP should not treat such information like another “business value” record. Of course, where the personal information has a criminal or national security nexus, it might be appropriate to treat this information as a “business value” record to be included in the operational file.

[104] The Commission further adds the recommendation that, wherever possible, the RCMP should anonymize any information in an intelligence assessment or other product generated from personal information from open sources that the RCMP reasonably believes is necessary to understand a group or movement but which has no connection to criminal activity (or otherwise to the RCMP’s national security mandate). Anonymized information could be included in an operational file where necessary to provide context or to support an assessment.

[105] In addition, the Commission will send a copy of its Interim PII Report, the Commissioner’s Response, and this Final Report to the Privacy Commissioner so that he may take whatever actions he deems appropriate.

Commission’s Final Recommendation #2

That RCMP policy treat personal information and supporting documents obtained from social media sources containing personal information (such as screen captures of social media sites) as a separate category of records. This category of records should be kept for no longer than strictly necessary to provide intelligence for the event or purpose for which it was collected where it is established that there is no criminal nexus or national security dimension.

Additionally, where an intelligence assessment or other product generated from open sources is to be retained, RCMP policy should require the anonymization or destruction of any personal information within that assessment where there is no connection to criminal activity or to the RCMP’s national security mandate (such as where the personal information relates to lawful dissent).

Commission’s Final Recommendation #3

That the RCMP develop policies providing that personal information obtained with respect to public order events like protests and demonstrations should be destroyed as soon as practicable and in accordance with applicable law once it is determined that there is no criminal nexus or that the information is otherwise no longer necessary for the purposes for which it was collected.

Freedom of Expression, Association and Peaceful Assembly

[106] Several incidents or practices interfered to varying degrees with the protesters’ rights to freedom of expression, association, and peaceful assembly. An apparent misinterpretation Intentional? Ordered by American big oil and Herr Harper? of an injunction, dated November 22, 2013, led to several arrests of protesters without RCMP members having reasonable grounds, from an objective point of view, to believe they had committed an offence. The Commission recommended that the RCMP provide RCMP members engaged in the policing of protests with detailed, accurate interpretations of the conditions of any injunction they are expected to enforce, obtaining legal advice as necessary.

[107] The Commission emphasized that police may only establish “buffer zones” in accordance with the parameters detailed by the courts. Anything outside of these bounds is impermissible. The Commission further emphasized that, particularly when policing a public protest, RCMP members must be cognizant of the limits of their powers, specifically in relation to curtailing protesters’ ability to assemble and express themselves in a lawful manner.

[108] As such, decisions to restrict access to public roadways or other public sites must be made only with specific, objectively reasonable rationales for doing so, and should be done in a way that interferes with the rights of persons in as minimal a fashion as possible, for example, a buffer zone that is as limited in size as possible and an exclusion that is as short in duration as possible.

Commission’s Interim Finding #11

On the balance of probabilities, the Commission finds that RCMP members made several arrests of protesters pursuant to the November 22, 2013, injunction without having reasonable grounds, from an objective point of view, to believe they had committed an offence. This was apparently based on a misinterpretation intentional? of the conditions of the injunction.

Commission’s Interim Finding #12

Given the lack of particularized information in the allegations, there was insufficient information available to the Commission to conclude in general terms that road closures and the rerouting of traffic during the anti-shale gas protests was unreasonable. Likewise, there was insufficient information to support the allegation that media were unreasonably denied access to protest sites.

Commission’s Interim Finding #13

In its report regarding Protester F’s complaint, the Commission found, on the balance of probabilities, that the decision to restrict the complainant’s access to the protest site to prevent crime and ensure public safety was not unreasonable in those circumstances.

Commission’s Interim Recommendation #5

That the RCMP provide members who are engaged in the policing of public protests/public order policing with detailed, accurate interpretations of the conditions of any injunction or unique legal provisions that they are expected to enforce, obtaining legal advice as necessary.

Commission’s Interim Recommendation #6

That decisions to restrict access to public roadways or other public sites be made only with specific, objectively reasonable rationales for doing so, and if legally permissible, be done in a way that interferes with the rights of persons in as minimal a fashion as possible, for example, a buffer zone that is as limited in size as possible and an exclusion that is as short in duration as possible.

Commission’s Interim Recommendation #7

That, particularly when policing a public protest, members be cognizant of the limits of their powers, specifically in relation to curtailing protesters’ ability to assemble and express themselves in a lawful manner.

RCMP Commissioner’s Response

[109] The RCMP Commissioner disagreed with Interim Finding 11. Seems the RCMP Commissioner wants unlimited powers for police to harass and bully innocent Canadians however unlawfully they please. I am not an activist, do not attend protests, am not on social media and have never been, I had not announced anywhere I was engaging in any protest or dissent (because I had no plans to do so), I was not on public property, yet the RCMP still invaded my private property. She stated that there was no evidence to support that arrests had been made based on a misinterpretation of the November 22, 2013, injunction. In particular, she indicated that the videos referred to in the Commission’s Interim PII Report did not depict illegal arrests or clearly demonstrate a lack of understanding of the injunction. The RCMP Commissioner added that notes from RCMP members explained the grounds for the two arrests described by the Commission in its Interim PII Report, although she noted that there was a “disconnect” between those notes and what was submitted to the Crown prosecutor. The RCMP Commissioner further stated that the Crown prosecutor’s decision not to approve charges was immaterial to the reasons for arrest.

[110] Although she did not support Interim Finding 11, the RCMP Commissioner nonetheless supported the related recommendation, Interim Recommendation 5. The Commissioner indicated that the Incident Commander or Critical Incident Commander should be responsible for disseminating to RCMP members engaged in policing public protests the accurate information concerning the enforcement of any injunctions. To that end, she stated that she will direct that national Operational Manual 55.2., “Aboriginal Demonstrations or Protests,” as well as any other RCMP policy requiring that members enforce injunctions, such as 37.7., “Labour Disputes,” be amended to provide that the Incident Commander and/or Critical Incident Commander ensure that members under their command are briefed on the conditions and interpretations of any injunction that they are expected to enforce and are provided with all the nuances and unique background information regarding the specific protest or public order event.

[111] The RCMP Commissioner additionally informed the Commission that the RCMP is currently seeking to provide national oversight regarding RCMP employees engaged in public protest/public order activities in general by developing a policy on public assemblies, which will provide for all protests, not only protests involving Indigenous matters specifically. Consequently, she will further direct that a section similar to the one mentioned above be included in the new policy on public assemblies.

[112] The RCMP Commissioner agreed partially with Interim Finding 12. She stated that, in her view, there was enough information in the relevant materials to support a finding on the balance of probabilities that the instances of traffic rerouting or road closures were brief, necessary, and responsive to the circumstances, and therefore, were reasonable. She also stated that the evidence suggested that the media had “unfettered access to the protest sites.”

[113] The RCMP Commissioner agreed with Interim Finding 13.

[114] With respect to Interim Recommendations 6 and 7, the RCMP Commissioner stated that she supports them, but that she would not direct that any action be taken to implement them, as she is satisfied that RCMP operations are already in line with the terms of the recommendations.

Commission’s Analysis of the RCMP’s Response

[115] As a result of the statements made in the RCMP Commissioner’s response, the Commission undertook another review of the videos it referred to in this section of the report (regarding the arrests pursuant to the November 22, 2013, injunction).

[116] Video 6315 shows a line of RCMP members getting protesters who were standing on the side of the roadway to move back. This was apparently shortly after other protesters had been arrested; these arrests were not shown on the recording. The protesters repeatedly ask the RCMP member in charge why they have to move, given that they are farther than 20 metres from the vehicles. No vehicles or equipment can be seen on the video. The RCMP member does not directly answer these questions but repeatedly tells them that their protests must be lawful and peaceful. At one point the member says that he is not a lawyer and he is not going to debate the issue. He also tells the protesters that, as the vehicles get closer, they will have to move farther down the road. The RCMP member is calm and attempts to de-escalate the situation; the protesters comply as the police line moves forward.

[117] In video 7451, a protester asks an RCMP member, “How do I get to 20 metres on the side of them [the Vibroseis trucks] if you don’t let us go by? We have got to fly in or what?” The conversation continues and the RCMP member states that, had the protesters stayed where they were, they would have been within 20 metres of the vehicles when they started moving, so the police stopped the protesters from violating the injunction.

[118] While these videos (6315 and 7451) do tend to indicate that protesters were moved when they were not within the prohibited distance of the vehicles, they may also suggest that police were moving protesters away in anticipation that they would violate the injunction as vehicles moved forward.

[119] In video 7364, one RCMP member tells another that a protester wants to be arrested. The RCMP member calmly tells the protester that he must move because he is within 250 metres of the vehicles and that he is in violation of the injunction. The protester says that he is not going to move, and he is arrested. In its Interim PII Report, the Commission had stated that this protester was arrested for standing within 20 metres of the vehicles. Upon review of the video, it is clear that this was not accurate and that the protester was arrested for being within 250 metres of the vehicles.

[120] In video 6397, protesters are questioning an RCMP member about the terms of the injunction. The member states, [Translation] “As far as I know, it is 20 metres on the side of the vehicles, 250 [metres] in front.” He further says that he is not going to weigh in on the underlying issues behind the protest and that he knows the protesters he is speaking with are good guys; the RCMP member reiterates that all he can impart are the details of the injunction.

[121] In its Interim PII Report, the Commission described two arrests conducted pursuant to the November 22, 2013, injunction, which were considered to be representative of the other arrests made. In these cases, the Crown prosecutor had indicated that the arrests were not legal. He described the arrest of Protester Z as “unlawful” and said that this arrest had the “same problems” as the arrest of Protester Y. Protester Z was arrested for being less than 20 metres from equipment, but that act was not contrary to the terms of the injunction. The Prosecutor’s Information Sheet, prepared by an RCMP member and presented to the Crown, misstated that people could not be within 250 metres of the front or back of the equipment (the injunction actually referred to the vehicles).

[122] Likewise with regard to the arrest of Protester Y, the Prosecutor’s Information Sheet stated that Protester Y had been within 20 metres of “employees or equipment,” neither of which is necessarily in violation of the injunction. The document stated that the protester was “observed by ????????? [sic].” Crown counsel analyzed the situation and concluded that none of the injunction’s conditions had been breached. He also noted that, to secure a conviction, he would have to prove that the protesters had knowledge of the order, which means knowledge of its specific contents. There was also insufficient evidence that the protesters were committing a nuisance, as they were only “at the tree line on the side of the highway gesturing towards the police.” Crown counsel stated that the reason for the arrest of Protester Y could not stand. File information indicates that a total of five individuals were arrested at that time.

[123] In its Interim PII Report, the Commission noted that the standards for pursuing a prosecution and obtaining a conviction are different than for a lawful arrest. Nonetheless, the Crown’s opinions about the arrests and the Prosecutor’s Information Sheets were compelling information suggesting that several “unlawful” arrests had been made, apparently based on a misinterpretation of the injunction.

[124] However, in its response, the RCMP Commissioner drew to the Commission’s attention the notes of Constable Marco Johnson and Constable Frédéric Langlois. Constable Langlois’ notes do indeed state that the four or five individuals had been observed [Translation] “within 250 metres of the gas trucks.” Constable Johnson’s notes appear to state with regard to Protester Y, “Advised of breach, [Protester Y] didn’t think he was less than 20 metres or 250. Advised less than 250 [illegible word(s)].”

[125] It appears that the RCMP member who completed the Prosecutor’s Information Sheets (who did not conduct the arrests himself) may have erred in describing the terms of the injunction and the grounds for arrest. It is unclear whether Crown counsel was in possession of the arresting members’ notes, or whether the notes factored into his analysis, but the fact that he concluded that the arrests were unlawful based on the Prosecutor’s Information Sheets raises doubts as to whether the notes were provided to him. It is also unclear whether the RCMP attempted to clarify this issue with Crown counsel after his decision.

[126] Due to the voluminous documentary record in this case, the Commission had not initially identified the notes of the arresting RCMP members. Under the circumstances, the Commission had assumed that proper procedures were followed and that all relevant documents and information had been provided to the Crown prosecutor, such that his opinion that the arrests were unlawful took into account all the pertinent information. In light of the information now provided to the Commission about the notes, the Commission concludes that it is possible that the arrests themselves were reasonable, but errors by the RCMP member in submissions to the Crown contributed to charges not being approved and the arrests being deemed unlawful.

[127] What remains clear from reviewing the videos and documentary evidence is that there was confusion among some protesters and some RCMP members as to the terms of the November 22, 2013, injunction; specifically, how close people were allowed to stand in relation to the vehicles and equipment. Although protesters, like all citizens, must inform themselves about the laws as they relate to their actions, the police enforcing the laws must also be fully informed about them and communicate them to the public as clearly as possible. What about when RCMP intentionally lie while trying to entrap frac-harmed Canadians working inside their own homes? The first business day after W5 aired a short segment on my dangerously explosive contaminated frac water and AER and Alberta gov’t enabling Encana/Ovintiv’s crimes, Harper’s RCMP anti-terrorist squad called me up, lied, told me they needed me to train their officers (because landowners harmed by the oil and gas industry trusted me). I caught them lying about their lie in less than an hour of chatting. This is especially pertinent when it comes to injunctions and the offence of disobeying a court order, which requires proof of intent to violate the order.

[128] Therefore, the Commission has decided to modify its Finding 11 to reflect the possibility that the arrests may not have been illegal, but that its concerns remain as to the confusion about, and possible misunderstanding of, the terms of the injunction.

Commission’s Final Finding #11

There was confusion among some protesters and some RCMP members as to the terms of the November 22, 2013, injunction. There is insufficient information to conclude on the balance of probabilities that the arrests made pursuant to this injunction were unlawful or unreasonable. Although protesters, like all citizens, must inform themselves about the laws as they relate to their actions, the police enforcing the laws must also be fully informed about them and communicate them to the public as clearly as possible. Ya, sure, nice Christmas wish maybe. The RCMP are petro thugs, sent by companies (many not even Canadian), politicians and regulators to harass and intimidate and silence citizens 1) harmed by the oil and gas industry’s relentless toxic unmitigated impacts, and 2) wanting to keep bad companies and frac’ing out of their communities to protect local health, families, other businesses, drinking water, air, land, food, etc. The RCMP are regularly caught lying, even in court, to families and communities, and are too often caught breaking the law or pissing on the rule of law, even murdering people.

[129] With respect to Interim Finding 12, the Commission maintains that it cannot conclude that the road closures and rerouting of traffic were unreasonable. The allegations were too general for the Commission to make specific findings to that end, with the exception of the finding and extensive legal analysis made regarding Protester F’s specific circumstances (Interim Finding 13).

[130] Therefore, the Commission reiterates Interim Finding 12. The Commission notes that, although the RCMP Commissioner presented her own interpretation of the evidence supporting her conclusion that the road closures and traffic rerouting were reasonable, she did not present any additional facts or evidence in support of this conclusion. The Commission—whose mandate as the RCMP’s independent oversight body was to analyze the evidence and come to conclusions —did not consider that the evidence warranted a conclusion that the road closures and traffic rerouting were reasonable. On the contrary, the Commission had concerns about the potentially overbroad use of roadblocks and traffic rerouting, and their potential impact on the rights of the protesters. For these reasons, while it was not in a position to conclude on the evidence presented that the RCMP’s actions were unreasonable in this case, the Commission made interim recommendations 6 and 7 to ensure that the risks of infringing upon protesters’ rights was minimized in the future.

[131] In this regard, the Commission has concerns about the RCMP’s response to interim recommendations 6 and 7. While the response officially supports the recommendations, the RCMP Commissioner also indicates that no action will be taken to implement them, as she believes the RCMP’s current practices are already in line with the recommendations. However, the RCMP Commissioner did not present any information indicating that RCMP practices or procedures have changed since the events in Kent County. As such, the concerns the Commission had about these events remain, and the Commission can only reiterate the recommendations.

Sensitivity to Indigenous Culture, Ceremonies, and Sacred Items

[132] The Commission found that, with some notable exceptions, the RCMP members assigned to the protest policing operation did not have sufficient training in Indigenous cultural matters. The Commission recommended that the RCMP require all members to review the RCMP’s Native Spirituality Guide, and that all members involved in Indigenous policing, including members of public order units involved in policing protests by Indigenous persons, be required to attend a training program that is specifically aimed at understanding Indigenous cultural issues. What good will that do? RCMP seek racists and misogynists in their hiring practices. Training will never undo that. Worse, training will enable RCMP abusing Indidenous people, communities, and land – look to NEBC for examples of that.

[133] Video evidence showed that RCMP members working at the protest sites generally appeared to be aware of the need to respect sacred ceremonies and items. In spite of this, conflicts occurred. Indigenous protesters sometimes held ceremonies in the middle of the roads, effectively blocking the SWN trucks, and insisted they not be interrupted until the ceremonies were finished. Sometimes they went on for hours and eventually the participants were forcibly removed. The available information suggests that RCMP members did not, either deliberately or unwittingly, unnecessarily interfere with Indigenous ceremonies or sacred items.

[134] However, there did not seem to be a formal procedure in place detailing how and when sacred objects should be seized and how they should be handled. Without question, the handling of sacred items is a complex issue given the competing rights and interests at stake. The Commission stated that reflection on the part of the RCMP was required with a view to adopting a policy providing practical guidance to RCMP members dealing with the seizure and handling of sacred items. The Commission noted that this policy should enable RCMP members to make prompt decisions regarding the seizure and handling of sacred items, while refraining from unnecessarily curtailing the arrested person’s Charter rights. The Commission concluded that the RCMP should develop a procedure for the handling of sacred items following an arrest, especially in a protest environment. It may be that in some cases, security concerns will be such that the item will be forcibly removed from the protester. In other cases, more flexible approaches may be acceptable.

Commission’s Interim Finding #14

At the time the anti-shale gas protests policing operation began, with some notable exceptions, the members assigned to the operation did not have sufficient training in Indigenous cultural matters.

Commission’s Interim Finding #15

The available information suggests that RCMP members did not, either deliberately or unwittingly, unnecessarily interfere with Indigenous ceremonies or sacred items.

Commission’s Interim Recommendation #8

That the RCMP require all members to review the RCMP’s Native Spirituality Guide, and that all members involved in Indigenous policing, including members of tactical troop/public order units involved in policing protests by Indigenous persons, be required to attend a training program that is specifically aimed at understanding Indigenous cultural issues.

Commission’s Interim Recommendation #9

That the RCMP initiate collaboration with various Indigenous stakeholders with a view to developing a context-specific, practical procedure providing guidance to members with regard to the handling of sacred items in various contexts.

RCMP Commissioner’s Response

[135] The RCMP Commissioner agreed with Interim Findings 14 and 15, and supported Interim Recommendations 8 and 9.

[136] With regard to Recommendation 8, the RCMP Commissioner informed the Commission that the RCMP has deployed ongoing efforts on training current and new RCMP members to keep pace with the diversity, understanding, and compassion required to execute policing duties in a bias-free manner and to provide members with a solid knowledge of cultural elements and history of Indigenous communities. The RCMP Commissioner explained that the RCMP offers 29 learning programs that include Indigenous culture as part of its curriculum; 24 of those programs or courses were created for and are presented directly to RCMP members with the intent of increasing Indigenous cultural knowledge and 26 of those courses contain material on Indigenous culture with a focus on regional traditions or geographic differences. If violent racists and or pro pollution police are intentionally hired to protect white supremacy and protect oil and gas industry and the rich, what good will boasting about training programs and a “new guide” do other than con Canadians into believing something is changing for the better in the raping RCMP?

[137] The RCMP Commissioner also informed the Commission that the RCMP is presently developing a new Indigenous Awareness Guide that will highlight the distinct and unique cultures, languages, and political and spiritual traditions of Canada’s First Nations, Métis, and Inuit peoples. This guide is intended to educate and increase the RCMP employees’ cultural awareness and understanding of matters related to the delivery of Indigenous policing services and interactions with Indigenous peoples.

[138] The RCMP Commissioner indicated that she was satisfied that the new guide will expand on the information provided to members with regard to Indigenous cultural issues. Therefore, to implement the first part of the Commission’s recommendation, she will direct that, once the new Indigenous Awareness Guide is completed, a national communique will be sent to all employees requesting that they review both the current Native Spirituality Guide and the newly developed Indigenous Awareness Guide.

[139] With regard to the recommendation that all RCMP members involved in Indigenous policing, including members of tactical troops/public order units involved in policing protests by Indigenous persons, be required to attend a training program specifically aimed at understanding Indigenous cultural issues, the RCMP Commissioner stated that she will direct that the Commanding Officer of each division identify training specifically aimed at understanding the cultural issues of the Indigenous communities found in their division, and ensure that members take that training. The results will be recorded on the members’ training record.

[140] In relation to Recommendation 9, the RCMP Commissioner stated that she understands and acknowledges the concern that, at times, due to what appeared to have been a lack of appropriate communication or guidance, the handling of sacred objects during certain specific arrests could reasonably have led one to perceive an interference with those sacred objects. She also agreed that there was no formal RCMP procedure in place at the time detailing how and when, in practice, sacred objects should be seized and how they should be handled.

[141] The RCMP Commissioner stated that, considering the country’s demographics and the varied traditions, beliefs, and practices of its Indigenous communities, she determined that the implementation of the Commission’s recommendation should be done at the divisional level. She agreed to direct the commanding officers of each division to ensure that collaboration is initiated with their local Indigenous stakeholders to develop appropriate and culturally sensitive procedures, as referenced in the Commission’s recommendation.

Alleged Bias Against Indigenous Protesters

[142] A number of protesters claimed that the RCMP treated the Indigenous protesters more harshly than non-Indigenous protesters. In particular, they perceived that more Indigenous protesters were arrested and charged than were non-Indigenous protesters.

[143] Several factors may have contributed to the allegations of bias. On the available evidence, the Commission concluded that it was satisfied that the RCMP members did not differentiate between Indigenous and non-Indigenous protesters when making arrests, nor did they demonstrate bias against Indigenous protesters generally.

Commission’s Interim Finding #16

On the available evidence, the Commission is satisfied that RCMP members did not differentiate between Indigenous and non-Indigenous protesters when making arrests, nor did they demonstrate bias against Indigenous protesters generally.

RCMP Commissioner’s Response

[144] The RCMP Commissioner agreed with Interim Finding 16.

Tactical Operation of October 17, 2013

[145] Commission determined that the RCMP had the legal authority to conduct the tactical operation of October 17, 2013, and that it was a reasonable exercise of their discretion to do so in all the circumstances. However, the Commission found that it would have been prudent to allow more time for negotiations and a review of the injunction in court before proceeding with the operation.

[146] With regard to the lead-up to the operation, an “H” Division Tactical Troop Commander said that he and the other tactical troop leaders were working on the final plans commencing on October 15, 2013. He explained that the factors supporting the need to take action were as follows:

Intimidation, threats, and violence against security company personnel inside the compound;

The threat of firearms being present;

The fact that SWN equipment had been damaged at a previous worksite by Molotov cocktails;

The fact that SWN equipment had been blockaded in the compound for almost three weeks; there were no signs of it ending and indicators suggested that it was not going to get resolved.

[147] Intelligence available to the Incident Commander and the Criminal Operations Officer clearly presented concerns that prompted serious consideration of the implementation of the Tactical Operational Plan. The following factors were significant:

The apparent takeover of the protest site by the Warriors group;

The presence of outlaw biker gang members;

Threats to ISL employees and the use of a knife;

The menacing behaviour of the “young Warriors”;

Information that the Warriors would not leave until SWN left the province;

Numerous unconfirmed reports that protesters had access to firearms.

[48] There was sufficient reliable information available to justify the decision to implement the Tactical Operational Plan at some point in the near future.

[149] Senior RCMP officers were faced with a difficult decision. Tension had been escalating. Numerous threats had been made, both to ISL employees and RCMP members. A blockade had been imposed. Rumours regarding the presence of guns and explosives had been circulating. Ensuring the safety of all parties had to be the RCMP’s primary objective. It’s clear the RCMP’s primary objective was/is to protect the oil and gas industry’s rights, profits and assets, and not the rights, savings, safety, other businesses, homes and assets of the citizenry.

Although there had been no confirmed evidence of firearms at the campsite, there was reportedly a significant amount of information to that effect.Typical RCMP. They lie, a lot, even in court. CSIS, CSEC, Alberta’s own spy agency lie too.

[150] Intelligence had indicated that tensions were rising within the camp. The confrontational Warriors had evidently taken over leadership of the campsite. The presence of outlaw biker gang members understandably exacerbated the RCMP’s concerns, as did word that protesters were seeking assistance from all possible sources. The situation took a significant turn for the worse when ISL personnel were prevented from leaving their facility. This doubtless represented an escalation in the protesters’ tactics. Allowing the situation to potentially deteriorate further was not a desirable outcome.

[151] It is true that the immediate crisis was alleviated, to an extent, through negotiation between the RCMP and protesters, leading to the release of ISL employees, who were replaced in the compound by RCMP members. The situation was, however, still unstable and the issues giving rise to significant, legitimate concerns remained. Given the increasing tensions, not proceeding with the operation could potentially have led to a more explosive and dangerous confrontation at a later date. Given the terms of the injunction Handed out to a foreign corporation that was going to wreck havoc on the environment, drinking water, families and communities, by a racist colonial court., the RCMP had the legal authority to conduct the operation, and it was a reasonable exercise of their discretion to do so in all the circumstances.

[152] However, the Commission found that it was also true that it would have been prudent to allow more time for negotiations and a review of the injunction in court before proceeding with the operation. The decision to go ahead with the Tactical Operational Plan had significant consequences, including numerous arrests, use of force incidents, and a loss of trust in the RCMP on the part of local communities. It was apparent that the mobilization of troops from “C” Division (Quebec) and “H” Division (Nova Scotia) (who required, and had already been given, 48 hours’ notice to mobilize) was a key consideration in the timing of the operation, but this should not have been a deciding factor. The Commission concluded that allowing more time for negotiation, particularly after the Crisis Negotiation Team (“CNT”)’s negotiations had already borne fruit, would have been reasonable and desirable in the circumstances.

Commission’s Interim Finding #19

Given the terms of the injunction, the RCMP had the legal authority to conduct the operation and, on the balance of probabilities, it was a reasonable exercise of their discretion to do so in all the circumstances.

Commission’s Interim Finding #20

It would have been prudent to allow more time for negotiations and a review of the injunction in court before proceeding with the operation. Allowing more time for negotiation, particularly after the Crisis Negotiation Team’s negotiations had already borne fruit, would have been reasonable and desirable in the circumstances.

Commission’s Interim Finding #31

The evidence before the Commission does not support the allegation that, on October 17, 2013, RCMP members were “ill-equipped so that some might suffer physical harm which would result in the vilification of protesters.”

Commission’s Interim Finding #33

In the circumstances, and in keeping with the measured approach, it was not unreasonable for the tactical troops to initially be directed to wear Level 2 gear.

Commission’s Interim Finding #36

The decision not to inform the schools about the imminent operation was reasonable, although it would have been prudent for the Tactical Operational Plan to have been modified to ensure that children were able to get to school prior to the operation commencing.

Commission’s Interim Finding #37

There is no evidence to support the claim that agents provocateurs were used by the RCMP on October 17, 2013. The commission has the same intent: enable the status quo and white privilege via raping Canada’s environment and commumnities. I highly doubt the commission would admit to provocateurs used by the RCMP, industry and our govt’s, no matter how loud and colourful the evidence. It’s easy not to see “evidence” and make up “facts.” Even Canada’s supreme court intentionally publishes lies o protect the status quo and eat our Charter.

Commission’s Interim Finding #38

The Commission found no evidence that non-RCMP members were used during the operation on October 17, 2013. That would be too dreadful to admit to – how dark money American greed has infiltrated our country.

RCMP Commissioner’s Response

[153] The RCMP Commissioner agreed with Interim Finding 19.

[154] The RCMP Commissioner disagreed with Interim Finding 20. She stated that several reasons were provided by the Incident Commander for refusing to delay the tactical operation in favour of further negotiation, as requested by RCMP negotiators. She further explained that there was nothing in the relevant materials about how much additional time the RCMP negotiators required, which she believed would have been a key consideration in the decision. The RCMP Commissioner noted that the Commission’s investigators did not pose this question during their interviews with RCMP members.

[155] Overall, the RCMP Commissioner found that the decision to proceed with the tactical operation as planned on October 17, 2013, was prudent and was a reasonable consequence of the Incident Commander’s risk analysis based on the information known to him at the relevant time.

[156] The RCMP Commissioner agreed with Interim Findings 31 and 33.

[157] The RCMP Commissioner agreed only in part with Interim Finding 36. She stated that there was insufficient evidence to conclude that the Operational Plan could have been modified in such a way that students could be allowed to attend school without preventing word of the operation from reaching the protesters, and she noted that the Commission’s investigators did not ask the relevant RCMP member about modifying the plan. The RCMP Commissioner stated that public and police safety (which required secrecy about the timing of the operation) took precedence over any inconvenience to the school children, teachers, and staff.

[158] The RCMP Commissioner agreed with Interim Findings 37 and 38.

Commission’s Analysis of the RCMP’s Response

[159] With respect to Interim Finding 20, the Commission notes that, in its Interim PII Report, it had acknowledged, in detail, the factors supporting the imminent implementation of the tactical operation. The Commission found clearly that the operation was legally justifiable and that it was reasonable in the circumstances for the RCMP to conduct the operation.

[160] Nevertheless, the Commission remains of the view that it would have been prudent to allow more time for negotiations and the upcoming review of the injunction in court before proceeding with the operation.

[161] The considerations raised by the RCMP Commissioner about the lack of knowledge of how much more time the RCMP negotiators requested are inconsequential to the Commission’s finding. The Commission found that allowing for more time would have been advisable. How much time was required was something the Incident Commander would have had to discuss with the negotiators, had he decided to allow for this possibility. As it was, the RCMP negotiators asked for more time to negotiate, and none was given.

[162] The Commission continues to acknowledge that senior RCMP officers were faced with a difficult decision. Tensions had been escalating and, even after the negotiation breakthrough, significant issues remained outstanding. Some important progress had been made, however, and further efforts could have been undertaken to that end, as requested by the RCMP negotiators. The decision to go ahead with the tactical operation had significant consequences. Allowing more time for negotiation, particularly after the CNT’s negotiations had already borne fruit, would have been a reasonable and desirable course of action in the circumstances.

[163] Accordingly, the Commission reiterates Interim Finding 20.

[164] With respect to Interim Finding 36 about the impact on children who were not able to get to school before the operation started, the Commission notes that RCMP plans had initially called for the Superintendent of Schools to be notified before 6 a.m. on the day of the tactical operation; this would include the high school and possibly the middle school and elementary school “if applicable.” A contact person had been identified. An official school closure announcement would be made shortly thereafter, and then a telephone advisory would go out to residents in the immediate area.

[165] This plan was not implemented and the schools received no prior notice of the operation. In its Interim PII Report, the Commission found that the decision not to inform the schools was reasonable. It was logical to conclude that providing advance notice to the schools may have the effect of telegraphing the RCMP’s plans and effectively “tipping off” protesters that an operation was imminent. The concern for children being exposed to the tactical operation was also valid.

[166] However, the Commission remains of the view that it would have been prudent for the Tactical Operational Plan to have been modified to ensure that children were able to get to school prior to the operation commencing.

[167] The decision to shut down certain parts of the surrounding roadways did lead to the unfortunate situation of some children being stuck on buses for relatively long periods of time. Who cares about Canadian children! An American company wanted to frac. There was no time to waste. The RCMP Commissioner referred to “the inconvenience to children and school staff” in this situation, but the Superintendent of Schools stated the following to the Commission’s investigator, “We were told that kids were traumatized, that it was a very frightening situation.” She recounted, “I called a bus driver just to see how they were doing. At that point he was talking to me [and] a young child was throwing up because he was scared.” There were kindergarten students on the buses, “They’re five years old and they’re seeing people running around and helicopters buzzing around and police cars with sirens flashing and ambulances going by.” The Superintendent explained that the high school went into full lockdown and the other schools went into a modified lockdown (the doors were locked but the children were not in hiding).

[168] For these reasons, the Commission continues to be of the view that more should have been done to avoid the consequences suffered by the school children. The RCMP initially had an elaborate plan for notifying and closing the schools, which appropriately recognized the importance of doing so. When that plan was abandoned, the lack of a modified plan seeking to ensure the well-being of students was apparent.

[169] Therefore, the Commission reiterates Finding 36.

Crisis Negotiation Team

[170] Throughout the blockade, the RCMP’s CNT negotiated with the protesters. They made reasonable and even outstanding efforts to implement a measured approach in communicating and negotiating with the protesters in an attempt to ensure peaceful and lawful protests, and to resolve any conflicts up to the events of October 17, 2013.

[171] The CNT had successfully resolved a key issue and, the night before the tactical operation occurred, negotiators presented tobacco to one of the main Indigenous spokespeople, which was variously seen as a show of respect or a peace offering. When the Indigenous protesters at the campsite woke the next morning to find tactical troops about to “invade” their camp, it was seen by them as a serious act of betrayal.

[172] For various reasons, the CNT had been “walled off” from information about operational planning. Although the Commission found that there were reasonable rationales for maintaining separation between negotiators and operational planners, the Commission recommended that the RCMP give consideration to more fully informing CNT members of the overall strategy being pursued, to avoid regrettable misunderstandings that can damage relationships between the RCMP and members of the public. Is the commission kidding? It was way too late then, and much more too late now. The Commission also recommended that the RCMP consider drafting a policy that is specifically tailored to the CNT’s role in public order policing operations.

Commission’s Interim Finding #3

Throughout the protests up to October 17, 2013, the RCMP command team and the Crisis Negotiation Team made every effort to bring stakeholders together to achieve a resolution to the conflict. These efforts were frustrated, in part, by the intractable nature of the dispute and by the absence of clear leadership on the part of the protesters. Oooo la la, Commission! Nasty stab in the back! Blame the harmed is always Canada’s way.

Commission’s Interim Finding #18

The decision to isolate members of the Crisis Negotiation Team from information about operational planning, however well-intentioned, indirectly led to the unfortunate and regrettable situation of the tactical operation occurring shortly after RCMP negotiators offered tobacco to campsite protest leaders.

Commission’s Interim Recommendation #10

Although there are reasonable rationales for maintaining separation between negotiators and operational planners, the RCMP should give consideration to more fully informing Crisis Negotiation Team members of the overall strategy being pursued, to avoid regrettable misunderstandings, which can damage relationships between the RCMP and members of the public.

Commission’s Interim Recommendation #11

The RCMP should consider drafting a policy that is specifically tailored to the Crisis Negotiation Team’s role in the circumstances of public order policing.

RCMP Commissioner’s Response

[173] The RCMP Commissioner agreed with Interim Findings 3 and 18. The RCMP Commissioner also supported Interim Recommendations 10 and 11.

[174] Specifically, in supporting Recommendation 10, the RCMP Commissioner acknowledged the consequences that the decision to isolate members of the CNT from information about the Operational Plan had in this case. She informed the Commission that consideration has been given to the present recommendation, and it was found that the Tactical Operations Manual, Part 3, “Crisis Negotiations Team,” should be modified to provide that the CNT Team Leader be made privy to the overall operational strategy being pursued by the command team. This modification should also specify that it would be the responsibility of the CNT Team Leader to share with the other members of the team only the information necessary to fulfil the CNT’s role. She indicated that she will direct that this be done. With “wink wink” instructions that it can be ignored, as usual?

[175] With regard to Recommendation 11, the RCMP Commissioner stated that this recommendation has been considered and it was determined that Tactical Operations Manual chapter 3.1., “Crisis Negotiation Responsibilities,” could better reflect the different roles played by the CNT. She indicated that she will direct that this be done. Also with “wink wink” instructions that it can be ignored, as usual?

Arrests

[176] With regard to the arrests that occurred during the spring and summer of 2013, the available information suggested that RCMP members generally attempted to implement a measured approach to policing the protests, and often showed considerable forbearance in permitting the protests to continue for a lengthy amount of time, despite the fact that protesters were sometimes acting in violation of the law. The events of October 17, 2013, were far more dynamic and confrontational in nature and thus involved more “hard” arrests. Having examined the evidence, the Commission concluded that this was generally justified given the assaultive, resistive, and inciting conduct of some protesters.

[177] The Commission reviewed an extensive amount of RCMP records, video recordings, and witness statements documenting numerous arrests that took place over the course of the months-long protests. In general terms, and with certain exceptions, the Commission found that RCMP members had reasonable grounds to believe that persons had committed or were committing various offences including mischief and/or obstruction; that it was, therefore, reasonable to arrest those persons; and that the force used in conducting the arrests was necessary and proportional in the circumstances. The Commission also found that detention practices were generally planned and implemented in a reasonable manner.

[178] With regard to the arrests of persons at the campsite, the Commission found that it was reasonable to conclude that the persons maintaining the blockade were committing mischief, in that they were interfering with SWN’s ability to use its equipment. Others at the campsite, if not necessarily active participants in the blockade, were parties to the offence of mischief. Importantly, the injunction order Canadian court served an American frac’er invading unceded lands, and Canadian communities, health, air and water.specifically prohibited persons from, among other things, impeding, hindering, or attempting to impede SWN’s work at the compound, or obstructing access to equipment; and authorized police to arrest persons that they believed on reasonable grounds were violating the terms of the injunction. Thus, the Commission concluded that the arrests of persons at the campsite were reasonable in the circumstances. Canadian “Commisssion” (paid for by the citizenry) enabling frac harms to serve rich Americans?

[179] The Commission reviewed the arrest of the Chief of the Elsipogtog First Nation and council members; they were placed in police vehicles and then released. The Commission determined that RCMP members accommodated the Chief and council members by allowing them to enter the campsite after it had been cleared. It was reasonable for RCMP members to arrest the Chief and council members for the offence of mischief when they subsequently sat down in front of the SWN compound and refused to leave.

[180] The Commission also found that the plastic tie wrap handcuffs that were placed on some protesters were likely tighter than was necessary to restrain them. The Commission recommended that, in situations such as public order policing when RCMP members may be required to arrest persons using plastic tie wrap handcuffs, the restraints only be applied with as much force as is necessary to safely restrain the arrested person.

Commission’s Interim Finding #1

Overall, RCMP members handled post-arrest and detention procedures in a reasonable manner and in compliance with policy.

Commission’s Interim Finding #21

In general terms, and with certain exceptions (arrests conducted pursuant to the November 22, 2013, injunction), the Commission finds that, during the anti‑shale gas protests, RCMP members had reasonable grounds to arrest persons for various offences including mischief and/or obstruction, and that, in general terms, the force used in conducting arrests was necessary and proportional in the circumstances.

Commission’s Interim Finding #22

The handcuffs that were initially placed on Protester C and Protester D were likely tighter than was necessary to restrain them.

Commission’s Interim Finding #23

It is reasonable to conclude that the persons maintaining the blockade were committing mischief, in that they were interfering with SWN’s ability to use its equipment, and others at the campsite, if not necessarily active participants in the blockade, were parties to the offence of mischief. In addition, the injunction order specifically prohibited persons from impeding SWN’s work at the compound, and authorized police to arrest persons violating the terms of the injunction. Thus, arrests of persons at the campsite were reasonable in the circumstances.

Commission’s Interim Finding #24

It was reasonable for RCMP members to arrest Chief Sock and the council members for the offence of mischief when they sat down in front of the SWN compound and refused to leave.

Commission’s Interim Recommendation #12

That, in situations such as public order policing when RCMP members may be required to arrest persons using plastic tie wrap handcuffs, the restraints only be applied with as much force as is necessary to safely restrain the arrested person.

RCMP Commissioner’s Response

[181] The RCMP Commissioner agreed with Interim Finding 1.

[182] The RCMP Commissioner agreed in part with Interim Finding 21. She reiterated her view that she is satisfied that RCMP members had reasonable grounds when they arrested several protesters pursuant to the November 22, 2013, injunction.

[183] The RCMP Commissioner agreed with Interim Findings 22, 23, and 24.

[184] The RCMP Commissioner stated that she supported Interim Recommendation 12, but that she would not direct that any action be taken to implement it, as she is satisfied that RCMP operational practices are already in line with the recommendation.

Commission’s Analysis of the RCMP’s Response

[185] Given its modification of Interim Finding 11, as described above, the Commission has also decided to modify Interim Finding 21 along the same lines.

Commission’s Final Finding #21

In general terms, the Commission finds that, during the anti‑shale gas protests, RCMP members had reasonable grounds to arrest persons for various offences, including mischief and/or obstruction, and that, in general terms, the force used in conducting arrests was necessary and proportional in the circumstances.

[186] With respect to Interim Recommendation 12, the Commission reiterates its concerns about a response that supports the recommendation, but states that no action will be taken to implement it. In particular, in this case, the RCMP Commissioner has not explained how it was, if RCMP practices are already in line with the recommendation, that the handcuffs placed on certain protesters were likely tighter than necessary, as found in Interim Finding 22. The RCMP Commissioner has also not provided any information indicating that practices have been modified since these events. As such, the Commission can only reiterate its recommendation.

Use of Force

[187] Several protesters submitted public complaints contesting their arrests and the force used against them. The Commission completed individual reports and described select examples of arrests and the use of force in its Interim PII Report in this case. The Commission also received numerous complaints of a general nature regarding the RCMP’s use of force during the anti-shale gas protests, particularly during the tactical operation. Complainants asserted among other things that RCMP members used unnecessary and excessive force against protesters during peaceful protests; improperly used firearms to deal with protesters; and unnecessarily fired sock (bean bag) rounds at protesters.

[188] When carrying out their duties, police officers may be required to use a reasonable amount of force, as prescribed by the Criminal Code and RCMP policy. Given the considerable amount of resistance encountered by the RCMP members on the morning of October 17, 2013, including the throwing of Molotov cocktails and an encounter with a protester who was armed with a rifle, the Commission found that the drawing and/or pointing of firearms, as well as the firing of sock rounds, did not amount to excessive force in the circumstances. The use of force was necessary and proportional to the conduct that the RCMP members encountered.

[189] Likewise, video evidence confirmed that the crowd was physically trying to push through the police line. Some protesters were kicking and punching the members forming the line. Others were throwing projectiles. The police responded to the rioting crowd by pushing and striking, as well as deploying pepper spray and sock rounds. The Commission concluded that, given the risks posed by the protesters’ conduct, and reasonable concerns for the safety of RCMP members and the public, in general terms this use of force was necessary in the circumstances and was proportional to the conduct encountered by the members.

Commission’s Interim Finding #25

Physical force such as pushing, striking, or using pepper spray to control the protesters was used after the protesters physically tried to break through the police line and were effectively participating in a riot. Given the risks posed by the protesters and the concerns regarding the safety of RCMP members and the public, the use of force including pushing, striking, or deploying pepper spray was necessary in the circumstances and was proportional to the conduct encountered by the members.

Commission’s Interim Finding #26

In the context of the standoff, it was necessary for members to use force (including sock rounds and the drawing and/or pointing of firearms), and the type and amount of force used was proportional to the conduct that the members encountered.

Commission’s Interim Finding #27

Emergency Response Team members had reasonable grounds to suspect that protesters in the woods might be carrying firearms or explosive devices because of the standoff with an armed protester that had occurred earlier that day, and because Molotov cocktails had been thrown from the woods by unidentified protesters earlier that day.

Commission’s Interim Finding #28

Given that Emergency Response Team members had reasonable grounds to suspect that protesters in the woods might be carrying firearms or explosive devices, from the evidence available to it, the Commission finds that the pointing of a firearm did not constitute an unreasonable use of force in the circumstances.

Commission’s Interim Finding #29

Pointing/firing firearms loaded with sock round ammunitions amounted to a measured response to the behaviour of individuals whose actions posed a threat to themselves, police officers, or the general public, in a context where other methods of intervention would have been inappropriate.

Commission’s Interim Finding #30

The Commission did not find any evidence of direct physical contact between police service dogs and protesters. The evidence shows that police service dogs were used as a psychological deterrent only. Consequently, the use of police service dogs complied with RCMP policy and the IM/IM. The Commission notes, however, that it was unable to locate the relevant C-227B Case Report documents, which must be completed according to RCMP policy.

RCMP Commissioner’s Response

[190] The RCMP Commissioner agreed with Interim Findings 25, 26, 27, 28, 29, and 30.

Contingency Planning

[191] The Commission noted that no plan can anticipate every eventuality, and allowing for discretion and flexibility in decision-making is essential in any dynamic operation. That said, although there had been no reliable information about firearms at the campsite, there had been several rumours to that effect. Therefore, the Commission found that it would have been reasonable for the Tactical Operational Plan to have provided for the possibility of there being firearms and explosives at the campsite. In addition, for several reasons, the situation during the tactical operation deteriorated to the point where six police vehicles were left unguarded and were set on fire by protesters. The Commission found that, in the totality of the circumstances, it would have been reasonable for the RCMP to have had a contingency plan providing for the possibility of a large number of belligerent protesters gathering on Route 134.

Commission’s Interim Finding #32

Although there had been no reliable information about firearms at the campsite, there had been several rumours to that effect. It would, therefore, have been reasonable for the Tactical Operational Plan to have provided for the possibility of there being firearms and explosives at the campsite.

Commission’s Interim Finding #34

It was reasonable for the RCMP to have decided to use police vehicles as a “movable” barricade. Once the situation had deteriorated, it was reasonable for RCMP members to prioritize the safety of all parties and the maintenance of order over attempting to preserve the police vehicles. In the end, the burning of the vehicles was the responsibility of the person(s) who illegally set them ablaze.

Commission’s Interim Finding #35

In the totality of the circumstances, it would have been reasonable for the RCMP to have had a contingency plan providing for the possibility of a large number of belligerent protesters on Route 134.

RCMP Commissioner’s Response

[192] The RCMP Commissioner disagreed with Interim Finding 32. She stated that, while there was not a formalized process contained within the Operational Plan to deal with the possibility of firearms and/or explosives being present in the camp, it was clear in the relevant materials that this concept was addressed in the plan. She added that the relevant materials were replete with references by RCMP members to the possibility of weapons being present there. The RCMP Commissioner stated that “it was preferable to allow members to address the discovery of firearms or explosives by using their training and experience rather than to require them to follow a process that may or may not be workable given the highly volatile and stressful nature of the protests.”

[193] The RCMP Commissioner agreed with Interim Finding 34.

[194] The RCMP Commissioner agreed in part with Interim Finding 35, stating that the Incident Commander was very much alive to the possibility of a large number of belligerent protesters on Route 134, and that, with the resources at his disposal, he did not feel the need to make specific provisions for that eventuality in the Operational Plan. The RCMP Commissioner stated that the Incident Commander “did not need more resources” given that he had 200 RCMP members at his disposal for the operation, including a number of Quick Response Teams.

[195] The RCMP Commissioner added that the Incident Commander and “presumably most other members” were well aware of the possibility of an increase in the number of belligerent protesters in that area once the operation began, but that the absence of this scenario in the Operational Plan was not unreasonable and likely would not have changed how the RCMP members handled the situation.

Commission’s Analysis of the RCMP’s Response

[196] With respect to Interim Finding 32 about providing for the possibility of firearms, the Commission notes that its Interim PII Report had already addressed many of the points raised in the RCMP Commissioner’s response. For example, the Interim PII Report specifically recognized that the possibility of the presence of firearms was mentioned in the Operational Plan. A section of the plan had been quoted to that effect. The Interim PII Report also found that “[a]llowing for discretion and flexibility in decision-making is essential in any dynamic operation.”

[197] Hence, as its Interim PII Report indicates, the Commission agrees that this risk was better addressed through training and experience than through a pre-determined process. Indeed, this is exactly what was done when a person pointed a rifle at police, and RCMP members defused a tense and dangerous situation with no injuries or loss of life.

[198] Nevertheless, the Commission continues to be of the view that the Operational Plan could have made more explicit reference to the possibility of firearms being present and had stronger emphasis on this point, without necessarily providing for a specific contingency plan. This is especially pertinent given the considerable danger posed by this threat, as well as the significant consequential effects on the entire operation when a firearm was in fact brandished (lengthy delays in the operation, the redirection of resources, and so on).

[199] For these reasons, the Commission reiterates Finding 32.

[200] With respect to Interim Finding 35, the Commission reiterates that the checkpoint on the western “flank” was initially staffed with what was believed to be an adequate number of RCMP members given the available resources, but that events took over and the situation changed for the worse. Resources were redirected and operations at the blockade and the encampment took longer than expected. As time progressed, the western flank was subject to a growing number of belligerent protesters. RCMP members did their best in responding to an ever-evolving situation, but the western checkpoint area essentially devolved into a riot scene and numerous police vehicles were set ablaze.By police?

[201] The Commission further notes that, if the possibility of an increase in the number of belligerent protesters in the area in question was widely anticipated, as stated in the RCMP Commissioner’s response, then it is all the more reason for more thorough provisions to have been made in the Operational Plan in order to respond to it. Although RCMP members sought to do the best they could in a volatile situation, the riotous melee and resultant criminal damage that ensued was a low point in the RCMP operation in Kent County.

[202] With respect to the comment in the RCMP Commissioner’s response indicating that the Incident Commander did not need more resources, the Commission notes that it did not make any finding in its Interim PII Report regarding the sufficiency of the RCMP resources deployed to respond to the protests. Therefore, the Commission will not comment on the RCMP Commissioner’s statement in this report.

[203] The Commission reiterates Finding 35.

Commission’s Final Findings and Recommendations

Final Findings

  1. Overall, RCMP members handled post-arrest and detention procedures in a reasonable manner and in compliance with policy.
  2. In general terms, RCMP members understood and applied a measured approach in their dealings with protesters.
  3. Throughout the protests up to October 17, 2013, the RCMP command team and the Crisis Negotiation Team made every effort to bring stakeholders together to achieve a resolution to the conflict. These efforts were frustrated, in part, by the intractable nature of the dispute and by the absence of clear leadership on the part of the protesters.
  4. The information available to the Commission does not establish, on the balance of probabilities, that persons had an objectively reasonable expectation of privacy with regard to their communications through Facebook groups, or that the RCMP Undercover Operator “intercepted” those communications as outlined in the relevant jurisprudence.
  5. Any gathering of potentially “private” electronic communications by the RCMP must be done only within the strictures of the Criminal Code, Charter, and related jurisprudence.
  6. On the balance of probabilities, the Commission finds that the open-source information gathering in the cases of Protester B, Protester D, and Protester E was not unreasonable in the circumstances. 
  7. RCMP policy on the use of open sources did not provide clear guidance as to the collection, use, and retention of personal information obtained from social media or other open sources, particularly in situations where no criminal nexus was determined.
  8. It appears that RCMP members did not have judicial authorization, or other legal authority, for conducting stop checks for the purposes of information gathering in a way that constituted a “general inquisition” into the occupants of the vehicles. This practice was inconsistent with the Charter rights of the vehicle occupants.
  9. Although some of the roadblocks were likely justified in the specific circumstances, randomly stopping vehicles for a purpose other than those set out in provincial highway traffic legislation, without judicial authorization and in the absence of the emergency investigation of a serious crime, was on the balance of probabilities inconsistent with the Charter rights of vehicle occupants. 
  10. On the balance of probabilities, the practice of searching vehicles entering the campsite may, in the circumstances, have been inconsistent with the individuals’ right to be secure against unreasonable search and seizure. It would have been preferable for the RCMP to seek a general search warrant, if sufficient grounds existed.
  11. There was confusion among some protesters and some RCMP members as to the terms of the November 22, 2013, injunction. There is insufficient information to conclude on the balance of probabilities that the arrests made pursuant to this injunction, were unlawful or unreasonable. Although protesters, like all citizens, must inform themselves about the laws as they relate to their actions, the police enforcing the laws must also be fully informed about them and communicate them to the public as clearly as possible.
  12. Given the lack of particularized information in the allegations, there was insufficient information available to the Commission to conclude in general terms that road closures and the rerouting of traffic during the anti-shale gas protests was unreasonable. Likewise, there was insufficient information to support the allegation that media were unreasonably denied access to protest sites.
  13. In its report regarding Protester F’s complaint, the Commission found, on the balance of probabilities, that the decision to restrict the complainant’s access to the protest site to prevent crime and ensure public safety was not unreasonable in those circumstances.
  14. At the time the anti-shale gas protests policing operation began, with some notable exceptions, the members assigned to the operation did not have sufficient training in Indigenous cultural matters.
  15. The available information suggests that RCMP members did not, either deliberately or unwittingly, unnecessarily interfere with Indigenous ceremonies or sacred items.
  16. On the available evidence, the Commission is satisfied that RCMP members did not differentiate between Indigenous and non-Indigenous protesters when making arrests, nor did they demonstrate bias against Indigenous protesters generally.
  17. The RCMP did not act as private security for SWN. Its role was to keep the peace and ensure public safety while respecting the protesters’ right to protest. Based on the available information, the RCMP’s interactions with SWN Resources Canada were reasonable in the circumstances.
  18. The decision to isolate members of the Crisis Negotiation Team from information about operational planning, however well-intentioned, indirectly led to the unfortunate and regrettable situation of the tactical operation occurring shortly after RCMP negotiators offered tobacco to campsite protest leaders.
  19. Given the terms of the injunction, the RCMP had the legal authority to conduct the operation and, on the balance of probabilities, it was a reasonable exercise of their discretion to do so in all the circumstances.
  20. It would have been prudent to allow more time for negotiations and a review of the injunction in court before proceeding with the operation. Allowing more time for negotiation, particularly after the Crisis Negotiation Team’s negotiations had already borne fruit, would have been reasonable and desirable in the circumstances.
  21. In general terms, the Commission finds that, during the anti‑shale gas protests, RCMP members had reasonable grounds to arrest persons for various offences, including mischief and/or obstruction, and that, in general terms, the force used in conducting arrests was necessary and proportional in the circumstances.
  22. The handcuffs that were initially placed on Protester C and Protester D were likely tighter than was necessary to restrain them.
  23. It is reasonable to conclude that the persons maintaining the blockade were committing mischief, in that they were interfering with SWN’s ability to use its equipment, and others at the campsite, if not necessarily active participants in the blockade, were parties to the offence of mischief. In addition, the injunction order specifically prohibited persons from impeding SWN’s work at the compound, and authorized police to arrest persons violating the terms of the injunction. Thus, arrests of persons at the campsite were reasonable in the circumstances.
  24. It was reasonable for RCMP members to arrest Chief Sock and the council members for the offence of mischief when they sat down in front of the SWN compound and refused to leave.
  25. Physical force such as pushing, striking, or using pepper spray to control the protesters was used after the protesters physically tried to break through the police line and were effectively participating in a riot. Given the risks posed by the protesters and the concerns regarding the safety of RCMP members and the public, the use of force including pushing, striking, or deploying pepper spray was necessary in the circumstances and was proportional to the conduct encountered by the members.
  26. In the context of the standoff, it was necessary for members to use force (including sock rounds and the drawing and/or pointing of firearms), and the type and amount of force used was proportional to the conduct that the members encountered.
  27. Emergency Response Team members had reasonable grounds to suspect that protesters in the woods might be carrying firearms or explosive devices because of the standoff with an armed protester that had occurred earlier that day, and because Molotov cocktails had been thrown from the woods by unidentified protesters earlier that day.
  28. Given that Emergency Response Team members had reasonable grounds to suspect that protesters in the woods might be carrying firearms or explosive devices, from the evidence available to it, the Commission finds that the pointing of a firearm did not constitute an unreasonable use of force in the circumstances.
  29. Pointing/firing firearms loaded with sock round ammunitions amounted to a measured response to the behaviour of individuals whose actions posed a threat to themselves, police officers, or the general public, in a context where other methods of intervention would have been inappropriate.
  30. The Commission did not find any evidence of direct physical contact between police service dogs and protesters. The evidence shows that police service dogs were used as a psychological deterrent only. Consequently, the use of police service dogs complied with RCMP policy and the IM/IM. The Commission notes, however, that it was unable to locate the relevant C-227B Case Report documents, which must be completed according to RCMP policy.
  31. The evidence before the Commission does not support the allegation that, on October 17, 2013, RCMP members were “ill-equipped so that some might suffer physical harm which would result in the vilification of protesters.”
  32. Although there had been no reliable information about firearms at the campsite, there had been several rumours to that effect. It would, therefore, have been reasonable for the Tactical Operational Plan to have provided for the possibility of there being firearms and explosives at the campsite.
  33. In the circumstances, and in keeping with the measured approach, it was not unreasonable for the tactical troops to initially be directed to wear Level 2 gear.
  34. It was reasonable for the RCMP to have decided to use police vehicles as a “movable” barricade. Once the situation had deteriorated, it was reasonable for RCMP members to prioritize the safety of all parties and the maintenance of order over attempting to preserve the police vehicles. In the end, the burning of the vehicles was the responsibility of the person(s) who illegally set them ablaze.
  35. In the totality of the circumstances, it would have been reasonable for the RCMP to have had a contingency plan providing for the possibility of a large number of belligerent protesters on Route 134.
  36. The decision not to inform the schools about the imminent operation was reasonable, although it would have been prudent for the Tactical Operational Plan to have been modified to ensure that children were able to get to school prior to the operation commencing.
  37. There is no evidence to support the claim that agents provocateurs were used by the RCMP on October 17, 2013.
  38. The Commission found no evidence that non-RCMP members were used during the operation on October 17, 2013. 

Final Recommendations

  1. That, in addition to the Privacy Act and the RCMP’s existing policy and training, the RCMP provide clear policy guidance setting out defined and reasonably constrained intelligence and law enforcement parameters with respect to the collection of personal information from open sources such as social media sites, the uses that can be made of it, and what steps should be taken to ensure its reliability.
  2. That RCMP policy treat personal information and supporting documents obtained from social media sources containing personal information (such as screen captures of social media sites) as a separate category of records. This category of records should be kept for no longer than strictly necessary to provide intelligence for the event or purpose for which it was collected where it is established that there is no criminal nexus or national security dimension. Additionally, where an intelligence assessment or other product generated from open sources is to be retained, RCMP policy should require the anonymization or destruction of any personal information within that assessment where there is no connection to criminal activity or to the RCMP’s national security mandate (such as where the personal information relates to lawful dissent).
  3. That the RCMP develop policies providing that personal information obtained with respect to public order events like protests and demonstrations should be destroyed as soon as practicable and in accordance with applicable law once it is determined that there is no criminal nexus or that the information is otherwise no longer necessary for the purposes for which it was collected.
  4. That members involved in public order policing operations be provided with a review of law and policy related to search and seizure, including the warrant requirement and the legal grounds establishing exceptions for warrantless searches.
  5. That the RCMP provide members who are engaged in the policing of public protests/public order policing with detailed, accurate interpretations of the conditions of any injunction or unique legal provisions that they are expected to enforce, obtaining legal advice as necessary.
  6. That decisions to restrict access to public roadways or other public sites be made only with specific, objectively reasonable rationales for doing so, and if legally permissible, be done in a way that interferes with the rights of persons in as minimal a fashion as possible, for example, a buffer zone that is as limited in size as possible and an exclusion that is as short in duration as possible.
  7. That, particularly when policing a public protest, members be cognizant of the limits of their powers, specifically in relation to curtailing protesters’ ability to assemble and express themselves in a lawful manner.
  8. That the RCMP require all members to review the RCMP’s Native Spirituality Guide, and that all members involved in Indigenous policing, including members of tactical troop/public order units involved in policing protests by Indigenous persons, be required to attend a training program that is specifically aimed at understanding Indigenous cultural issues.
  9. That the RCMP initiate collaboration with various Indigenous stakeholders with a view to developing a context-specific, practical procedure providing guidance to members with regard to the handling of sacred items in various contexts.
  10. Although there are reasonable rationales for maintaining separation between negotiators and operational planners, the RCMP should give consideration to more fully informing Crisis Negotiation Team members of the overall strategy being pursued, to avoid regrettable misunderstandings, which can damage relationships between the RCMP and members of the public.
  11. The RCMP should consider drafting a policy that is specifically tailored to the Crisis Negotiation Team’s role in the circumstances of public order policing.
  12. That, in situations such as public order policing when RCMP members may be required to arrest persons using plastic tie wrap handcuffs, the restraints only be applied with as much force as is necessary to safely restrain the arrested person.

Conclusion

[204] Pursuant to subsection 45.76(3) of the RCMP Act, the Commission respectfully submits its Final Report, and accordingly the Commission’s mandate in this matter is ended.

Michelaine Lahaie
Chairperson

Footnotes

Footnote 1

The RCMP agreed with five out of thirteen such findings: Findings 5, 7, 14, 18, and 22. In other cases, the RCMP fully disagreed with the findings, or disagreed in part and challenged the aspects of the findings that were critical of the RCMP’s actions.

Return to footnote 1 referrer Footnote 2

Royal Canadian Mounted Police Act, RSC, 1985 c. R-10, s. 45.76(2).

Return to footnote 2 referrer Footnote 3

The Commission used the expression employed by the Supreme Court of Canada in Mellenthin v The Queen (1992), 76 CCC (3d) 481, 1992 CanLII 50 (SCC) [Mellenthin], where the Court stated that “[r]andom stop programs must not be turned into a means of conducting either an unfounded general inquisition or an unreasonable search.”

Return to footnote 3 referrer Footnote 4

The Commission receives public complaints about RCMP members, which are usually investigated by the RCMP in the first instance, with a possibility for the complainant to then ask the Commission to conduct a review if the complainant is not satisfied with the RCMP’s report. The Commission’s Chairperson may also initiate her own complaint, and/or commence a public interest investigation, in which the Commission conducts an independent investigation if the Chairperson believes that doing so would be in the public interest.

Return to footnote 4 referrer Footnote 5

R v Harris, 87 OR (3d) 214, 2007 ONCA 574 (CanLII) [Harris].

Return to footnote 5 referrer Footnote 6

Ibid. at p 215.

Return to footnote 6 referrer Footnote 7

Ibid. at para 17.

Return to footnote 7 referrer Footnote 8

R v Grafe, 36 CCC (3d) 267, 1987 CanLII 170 (ONCA).

Return to footnote 8 referrer Footnote 9

R v Hall, 22 OR (3d) 289, 1995 CanLII 647 (ONCA).

Return to footnote 9 referrer Footnote 10

Harris, supra note 5 at para 42.

Return to footnote 10 referrer Footnote 11

R v Frank, 2012 ONSC 6274 (CanLII).

Return to footnote 11 referrer Footnote 12

Ibid. at para 13.

Return to footnote 12 referrer Footnote 13

Mellenthin, supra note 3 at para 10.

Return to footnote 13 referrer Footnote 14

Harris, supra note 5 at paras 42–44.

Return to footnote 14 referrer Footnote 15

SharePoint is a collaborative electronic working environment from Microsoft.

Return to footnote 15 referrer Footnote 16

Subsequently referred to as the “National Energy Board PII Report” (Commission file number PC-2014-0380). The Commission forwarded its interim report in this matter to the RCMP Commissioner in June 2017. It is awaiting the Commissioner’s response, after which the Commission will prepare its final report in the matter.

Return to footnote 16 referrer Footnote 17

The Privacy Act, RSC 1985, c P-21, prohibits the collection of personal information by a government institution unless it relates directly to an operating program or activity of that institution. The Privacy Act generally prohibits the disclosure of personal information without the consent of the individual to whom the information relates, subject to certain exceptions. The Privacy Act also has some rules for the retention and disposal of personal information.

Return to footnote 17 referrer Footnote 18

At least two years, per section 4(1)(a) of the Privacy Regulations. If an individual makes a request for their personal information, section 4(1)(b) also requires the institution to retain that information “until such time as the individual has had the opportunity to exercise all his rights under the Act.” There is a further retention period of at least two years where personal information has been disclosed to an investigative body following a request for personal information under section 8(2)(e) of the Privacy Act. This section concerns disclosure of personal information to an investigative body for the purpose of enforcing any law of Canada or carrying out a lawful investigation. See Schedule II of the Privacy Regulations for the designated investigative bodies.

Return to footnote 18 referrer Footnote 19

See, for example, sections 5(1), 5(2), and 5(3) of the Privacy Act.

Return to footnote 19 referrer Footnote 20

See section 22 of the Privacy Act.

Refer also to:

2020: Oil giants help fund powerful police groups in top US cities: “Many powerful companies that drive environmental injustice are also backers of the same police departments that tyrannize the very communities these corporate actors pollute”

2020: Oil & gas friendly spy agency, CSIS, that for years, “relied on legal doctrine of Crown immunity as defence against criminal liability,” chastised in court yet again, for pissing on the rule of law. Better tell our lying Supreme Court of Canada judges; murdering illegally spying police; RCMP illegally operating as mobsters for Encana & AER trying to scare frac-harmed plaintiffs into silence and violently arresting innocents to enable oil & gas profits; too many criminal, lying politicians (that appoint our judges or become judges); lying “justice” lawyers; lying, rule-violating public interest lawyers; etc etc etc.

2020: “This is totally wild.” Coastal GasLink’s final Technical Data Report for their pipeline being rammed through Wet’suwet’en territory rejected by B.C. Environmental Assessment Office due to omission of significant economic, environmental, social and health impacts. Where cumulative impacts evaluated? What will Trudeau, Horgan, Scheer, Kenney, CGL and RCMP do now? Apologize on their knees? Kanenhariyo Seth LaFort: “When you ask for the rule of law, then you have to follow it yourself. You cannot remove people from their own lands at the end of a gun. A crime has been committed, and the RCMP are the criminals.”

2020: “Papal Bull” continues to piss on Reconciliation in Canada! Yet another white privileged court ruling unanimously pissing on Indigenous Rights. I am horrified to be Canadian.

2020: RCMP Mobilizing Officers to Houston, NEBC, Intensifying Harassment of Camps. RCMP are lying, as usual, “saying one thing and doing the exact opposite.” BC Premier John Horgan: “The rule of law needs to prevail.” Whose? White Privileged Rich Man’s Law? Oil & Gas Industry’s Law? Racists’ Law?

2019: Oh Racist Colonial Canada: As vile under Trudeau as Harper! Police prepared to shoot Wet’suwet’en land defenders; Documents show Commanders argued “lethal overwatch is req’d” – a term for deploying snipers – like in Elsipotog in 2013. RCMP commanders also instructed officers to “use as much violence toward the gate as you want.” PS Merry Christmas.

2017: A Room Full of Liars & Fascism in Action in Canada: Ever get frac’d? Listen to Steve Harper? Rebel Media? Read Supreme Court of Canada rulings? Minister Public Safety & Emergency Preparedness Ralph Goodale affirms “The Royal Canadian Mounted Police’s (RCMP) use of the major crime technique.”

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