RCMP insist photojournalist arrested at pipeline protest was defying injunction

The RCMP say a photojournalist who is suing the force was not exempt from complying with a court injunction while reporting on protests over the Coastal GasLink pipeline that's nearing completion in northern British Columbia.

In a response to a lawsuit filed by Amber Bracken and news organization The Narwhal, the Mounties say Bracken's status as a journalist would not place her outside the scope of the injunction that prohibits interference with the pipeline.

"There is no general exception in law that exempts a member of the media from complying with valid court orders," says the response filed in B.C. Supreme Court.

The response, filed Oct. 5, alleges Bracken was "not engaged in apparent good faith newsgathering activities" and was instead "aiding or abetting" protesters ahead of her arrest during an injunction enforcement operation in November 2021.

It says Bracken "knew or ought to have known" that she was breaching the terms of the injunction by remaining inside a "tiny house" alongside members of the Gidimt'en Clan — part of the Wet'suwet'en Nation — who oppose the pipeline.

Bracken has said she was already behind the boundary of a police "exclusion zone" and she had chosen the tiny house as the best vantage point for taking photos.

"I knew that if I stepped outside I would almost certainly be removed from the area by RCMP and unable to document the impending arrests," she told a news conference after the lawsuit against the RCMP was filed last February.

Officers arrived by helicopter and emerged from the woods to surround the structure, breaking down the door with an axe and then a chainsaw, she said then.

Bracken's lawsuit says she was wrongfully detained after identifying herself as a journalist with media credentials that were visibly attached to her camera gear.

The Mounties' response to the claim says Bracken identified herself as a member of the media immediately after her arrest, not before.

A subsequent court filing from Bracken and The Narwhal on Wednesday says police were "recklessly indifferent" to Bracken's status as a journalist.

"The officers had a duty to know and committed wilful misconduct in failing to assess … (Bracken's) presence in the tiny house in light of all of the evidence that she was in fact a member of the media acting as such," the reply says.

The RCMP response to the lawsuit says another Narwhal journalist had written to notify police of Bracken's presence in the area on the day before her arrest.

It says an RCMP media relations officer, Staff Sgt. Janelle Shoihet, replied saying, "As long as (Bracken) is clear with the members on the ground there shouldn't be any issues. I will pass along the information to the officers out there."

Shoihet's email was sent just over four hours before Bracken was arrested.

Bracken's actions "went beyond her role as a journalist," the RCMP response to the lawsuit says.

In their filing on Wednesday, Bracken and The Narwhal say the Mounties' response "inaccurately collapses the distinction" between the journalistic purposes of her presence with the intentions of those protesting the pipeline.

The reply also says the RCMP did not permit any other journalists to be near the location where arrests took place that day.

"Several journalists attempted to report on the arrests but were denied access and were kept some 40 kilometres away," it says.

A statement from The Narwhal on Thursday says the Mounties' response to the lawsuit "indicates freedom of the press is severely endangered in Canada."

"If police officers are allowed to be the arbiters of who is considered a journalist, the health of our democracy hangs in the balance. The right to a free press is one held not just by the media, but by every person in this country," it says.

The RCMP response appears to reference a 2019 ruling from the Newfoundland and Labrador Court of Appeal, which found that an injunction had been improperly applied to journalist Justin Brake while he was covering a protest against a hydroelectric project.

In the decision, Justice Derek Green outlined considerations for the court and other parties to determine whether the presence of a journalist at a protest is a "material fact" when deciding on injunction orders and enforcement.

Those considerations included that "the person is engaged in an apparent good faith in a news-gathering activity of a journalistic nature" and that "he or she does no act that could reasonably be considered as aiding or abetting the protesters … or in breaching any order that has been already made."

Bracken has worked on a freelance basis for The Canadian Press.

She and a documentary filmmaker were initially charged with civil contempt of court and conditionally released by a judge three days after their arrests, but the next month court documents showed the charges would not be pursued.

Opposition among Wet'suwet'en hereditary chiefs to the 670-kilometre pipeline sparked rallies and rail blockades across Canada in 2020, while the elected council of the Wet'suwet'en First Nation and others nearby have agreed to the project.

An update posted by Coastal GasLink in late September said construction was nearly 95 per cent complete on the pipeline that's set to transport natural gas from Dawson Creek in northeastern B.C. to a processing facility on the northern coast.

This report by The Canadian Press was first published Oct. 12, 2023.