RCMP surveillance, searches breached anti fracking protesters' rights, watchdog says

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.

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 protest activity and despite some progress through negotiations between the RCMP and demonstrators, the Mounties cleared an encampment in a tactical operation 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 complaint and public-interest 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'' in accordance with 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 as to the collection, use, and retention of 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 acknowledged some of the commission's findings. She 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.

“In stating 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.''

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.''

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