On a cold February afternoon Amber Bracken is fixing herself a latte in the comfort of her Edmonton home. The award-winning photojournalist then plops down at her office desk to catch up on edits and outstanding work assignments. Nothing about this routine, apart from the journalist sitting at her table to document it, appears out of the ordinary.
But Bracken has just returned from Vancouver after filing a civil lawsuit against one of the most powerful institutions in the country — the Royal Canadian Mounted Police (RCMP).
Bracken, alongside environmental outlet The Narwhal, are suing the RCMP for violating their Charter rights when Bracken was arrested and detained while on assignment for the Narwhal in November of 2021. Bracken had been embedded with Wet’suwet’en land defenders at a Coastal GasLink pipeline resistance camp in so-called Northern B.C. She was arrested alongside filmmaker Michael Toledano — on assignment for the CBC — and Wet’suwet’en land defenders, then driven hundreds of kilometers away and jailed for almost five days.
“You would be naive to not realize that you're the David in a David and Goliath situation,” she muses between sips of coffee.
“They (RCMP) have all the force of the government and all their lawyers and effectively bottomless pockets on their side. But I think we have the truth on our side.”
It's a strange feeling, she says, because she’s not used to the international attention her arrest and subsequent lawsuit has garnered. She prefers to do what she does best, staying behind the camera shooting award-winning photographs for some of the biggest media organizations in the world.
“I’m not a very public person. I'm not given to putting myself (out there), even on social media. I'm uncomfortable with it,” she laughs nervously, before acknowledging that she has a stubborn streak. Suing was what she felt she had to do.
“The Narwhal and I thought long and hard about this. None of us want to be distracted from the work of journalism, none of us want to be dragged into a multi-year, expensive legal battle with the RCMP. But we came to the realization that if this isn’t furthered in the courts, it’s not going to change. And so, (suing) became the only choice.”
A pipeline runs through it
The lawsuit is fundamentally about upholding press freedom, something Bracken says she’s noticed diminish in recent years. The essence of democracy is threatened when the media is prevented from reporting on issues of public interest and holding governments and political institutions to account, she says.
Bracken has been covering the pipeline conflict, in which Wet’suwet’en hereditary leadership and land defenders are asserting their opposition to the CGL pipeline’s construction, since 2015. She has worked to develop relationships with Indigenous stakeholders in an intense, front line environment where suspicion of outsiders is high. Her photos have illustrated stories in major international outlets like the New York Times and Guardian, as well as national outlets like The Narwhal and Ricochet.
Bracken has photographed every major police raid on Wet’suwet’en camps along the Morice Forest Service Road, even arriving on the territory about a week before the November 2021 raid to ensure she didn’t miss it.
At first, she hesitated to go. Her younger brother had suddenly passed away at the end of August and she was heavily grieving his loss.
“I was super depressed; it was really hard to get out of bed,” she said. “So, when the Coyote camp was first being set up in September, I just didn’t have the emotional bandwidth to go out and face the whole police thing. So, I stayed home and watched it progress over the next couple of months. Then I was like, ‘You’re missing out on the story. You’re fucking up, Bracken. This is important.’”
She managed to gather the momentum to get out of bed and make the 1,200 kilometer drive west when the situation escalated.
Since at least 2013 the RCMP have employed a policy of establishing “exclusion zones” that make vast areas around Indigenous land defence actions into no-go zones. In many cases media are denied access entirely, in others corralled into designated media areas that are often out of sight of the police actions journalists are there to report on.
“In a perfect world, we wouldn't need to have embeds if we had free and open media access and open relationships with police. It would be pretty simple to keep a hotel room in Smithers or Houston and drive up in the morning and bear witness, but it's the exclusion zones that make it necessary to situate yourself there because it is not porous. There's no guarantee that they're (RCMP) gonna let us in to document the events.”
Bracken felt adrenaline start coursing through her body
On the morning of November 19, 2021, Bracken was inside a tiny house with Sleydo’ (Molly Wickham), a wing chief in the Cas Yikh house of the Gidimt’en clan; Shaylynn Sampson, a Gitxsan supporter; three other land defenders, and filmmaker Michael Toledano.
RCMP tactical units surrounded the structure with attack dogs and assault weapons. They stated they were enforcing a December 2019 injunction obtained by CGL against opponents of the pipeline. When Sleydo’ refused them access and demanded a warrant, the RCMP axed through the wooden door. Bracken felt adrenaline start coursing through her body, but remained steady and determined to do her job.
“There’s a bit of a psychological buffer when operating a camera in those moments. It’s like there's a part of you that knows the seriousness of what's going on and there's a part of your brain that's consumed with the business of making pictures, and that takes up a certain amount of bandwidth,” she said.
“So you don't have as much room to kind of freak out. But my body knew that the situation was really scary because I had uncontrollable trembling, my entire body — like every joint — even my finger joints were quaking.”
Bracken and The Narwhal had notified the RCMP that she was reporting on scene beforehand. She had diligently labeled her two equipment bags as “PRESS” and carried a letter of assignment from The Narwhal in her pants pocket. Before the RCMP grabbed her arm to arrest her (as shown in footage captured by Toledano) Bracken verbally identified herself as a member of the media. Nevertheless, she was immediately taken into police custody.
“I should never have been arrested. I should never have been detained,” she grips her cup and lets out a sigh before going on to cite the case of Justin Brake, a journalist who was charged with civil and criminal contempt for disobeying an injunction as well as criminal mischief over $5,000 for alleged financial losses while covering a 2016 Indigenous protest at the Muskrat Falls site in Labrador for The Independent.
After a four-year legal battle, the Supreme Court of Newfoundland and Labrador released a landmark, 29-page decision dismissing all charges against Brake.
Justice Derek Green wrote in the March 2019 court of appeal decision that "to achieve the goal of reconciliation, better understanding of Aboriginal peoples and Aboriginal issues is needed… This places a heightened importance on ensuring that independently reported information about Aboriginal issues, including Aboriginal protests, is available to the extent possible.”
As a journalist with fifteen years of experience, Bracken is no stranger to covering contentious issues. Her work often focuses on the experiences of Indigenous people in Canada and their struggles for sovereignty, justice, and recognition. She has also documented social justice issues such as poverty, homelessness, and environmental degradation.
Among other things, Bracken is known for her coverage of Standing Rock in North Dakota in 2016 and 2017. Her photographs documented the protests against the construction of the Dakota Access Pipeline and the resulting clashes between protesters and law enforcement. Her work was widely shared on social media and helped to raise awareness of the issues at stake.
It’s safe to assume she’s well versed in how to interact with police on the frontlines of rallies, protests, and Indigenous occupations.
“I know my rights as a journalist, and I also know that I'm not interfering with their (police) ability to do their work. A big part of working with police is being considerate of the mutual professions and that they have a job to do. And I would never, never get in their way if someone's making an active arrest,” says Bracken.
Her signature long, blonde hair is pulled into a low bun while her blue jeans and t-shirt match her unconventional personality — witty, practical, classic. Bracken has a way of putting people at ease. Her voice is soft spoken; she’s discerning, patient, and artistically gifted. All traits that go hand-in-hand with her line of work. And for a girl who was raised by a single mother in rural Alberta, she has met remarkable success.
Her work has been published in a variety of national and international publications, including National Geographic and The Globe and Mail. She has also received numerous awards for her photography, including one of the most prestigious on the planet — the 2022 World Press Photo of the year award for her photo in the New York TImes of red dresses hanging on wooden crosses under a rainbow sunset near the former Tk'emlúps te Secwépemc Indian residential school.
Stunningly, Bracken was charged with civil contempt of court and held in jail for four days and three nights following her arrest. She was detained for an additional day and night after being accused of assaulting a guard, an incident in which, according to the statement of claim, she poked the arm of a male sheriff after being told she would have to walk to another police station in cold weather wearing only her long underwear to retrieve her coat and pants.
It wasn’t until six days after the events at the cabin that the Narwhal would be able to publish her photos.
In a tiny prison cell with two other women
After a harrowing ride from Houston to Prince George packed into the back of a police van, during which Bracken felt as if she was in a “high speed chase,” she shared a tiny prison cell with two other women. They huddled on a concrete bench with a standard suicide-proof blanket and ate meager rations of microwaved food. Bracken dug deep to hold her emotions in check, she says. She did yoga and listened to other prisoners singing through a crack under the steel doors for hours on end.
Her only communication with the outside world was through a few brief telephone calls with a lawyer.
Meanwhile, Emma Gilchrist, editor-in-chief and executive director of The Narwhal describes the aftermath of Bracken’s arrest as “pandemonium.”
“It was one of the most stressful events in my career that I've lived through for sure,” said Gilchrist during a telephone interview.
“The Friday night I got a message that Amber had been arrested, and then it kind of turned into a little bit of a blur from there.”
The news of Bracken and Toledano’s arrests quickly made headlines around the world. Gilchrist and her editorial team fielded media requests and scrambled to secure Bracken’s release.
“It was really never a question as to whether we were going to stand by her and do everything that we could to get her out of jail, but there didn't seem to be much we could do from a legal standpoint over the weekend,” Gilchrist said. “So we felt kind of helpless, because once she was absorbed into that police system there was very little we seemed to be able to do to get her out of it.”
By late Monday afternoon, after cutting through endless layers of red tape, Bracken was released.
“We were so relieved,” explains Gilchrist. “But we knew that that was really just the beginning of what was going to be a very long battle for justice. [To ensure that] that police were held accountable for what happened to her.”
When Bracken was freed, the first thing she did was race to edit the images she had taken before she was arrested. Sitting in a lawyer’s office across from the Prince George court house that afternoon she scoured through hundreds of photos, checking that her work was intact. She’d been concerned the police may have tampered with equipment they confiscated during her arrest. And Bracken was annoyed the public was made to wait several days to get an inside look at the raids.
After she transferred the files to The Narwhal and arrived back home a few days later, Bracken says a profound fatigue settled upon her.
“I crashed when I got home. I mean, in a really specific way — I missed assignments because I had been in jail and unable to respond to the inquiries. I probably lost some work because people assumed I was just busy doing other things and didn't call me. And then I just had an emotional collapse.”
Just over a month after her arrest, all the charges against Bracken and Toledano were dropped.
Fighting for press freedom
In the Spring of 2022, Bracken was recognized with a Pen Canada/Ken Filkow prize for her work covering the Wet'suwet'en crisis, and advancing freedom of expression in Canada.
“Amber's an incredible, widely-respected, talented photojournalist and has a huge amount of integrity and courage to take this on,” says Gilchrist, who adds The Narwhal is confident they’ll win their case against the RCMP.
Nevertheless, a civil suit like this isn’t cheap and the process can be tedious. The Narwhal has set up a legal defense fund to help cover their court costs. But regardless of how much they raise, they’re in it for the long haul. After all, the fate of journalism could be on the line.
“There have been these issues between RCMP and journalists for a while. We tend to think the police are supposed to be abiding by the laws of the land. But sometimes they don't, and in this case they didn't. I think a lot of Canadians would be really surprised and horrified to learn that we are in this situation where police are removing journalists from documenting for the public record and in this case arresting them and detaining them.”
Sean Hern KC is one of the lawyers representing Bracken and The Narwhal. Hern previously represented the Canadian Association of Journalists and a coalition of news organizations (including Ricochet) in a case at the B.C. Supreme Court in 2021. The coalition won that case, securing an order directing the RCMP to grant media full access to the blockades at Fairy Creek on Vancouver Island.
Hern says this type of lawsuit is usually unattainable for freelance journalists.
“I think the way the case is structured is significant in the sense that it’s the journalists who are normally procedurally and financially barred from being able to pursue this in the ordinary course,” he explained in a telephone interview.
“It will be a full-blown trial procedure that will allow us to present before the court a really complete record of exactly what happened and why, and allow the court to make some findings around that and whether the police conducted themselves properly or not,”
And, he adds, the case could establish a much needed precedent for holding police accountable when they interfere with the work of journalists.
“This may have some significance in terms of strengthening the analysis of Section 2(b) of the Charter as it applies to journalists. And so that could be significant within the legal community and within the legal rights of journalists. But we won't know how all that unfolds until we see the outcome of the lawsuit,” he said.
The Narwhal and Bracken are suing for damages related to the RCMP's unconstitutional arrest and detention. The lawsuit is also seeking acknowledgment that The Narwhal and Bracken's press freedom rights, pursuant to Section 2(b) of the Charter, were breached.
Press freedom hasn’t yet been recognized by the courts as a distinct constitutional right in Canada, although it is articulated in section 2(b). The Narwhal hopes this case will present an opportunity for the courts to decide whether that constitutional recognition is now appropriate.
Although taking on the challenge of a major lawsuit is daunting, Bracken is encouraged by the outpouring of support from news organizations, journalists, and press groups in Canada and abroad. And she advises other journalists to understand their rights while covering police actions.
Ultimately, Bracken envisions a Canada where journalists are able to report without fear of persecution or censorship.
“I always wanted to serve the world through helping democracy, having difficult conversations and getting good information out there. And also make beautiful things in the process, like photographs,” she smiles, then reaches down to pet her dog Booker sleeping near her feet.
“If we don't do something about this in this particular moment, it's only going to get worse. And we can't let it get worse. I certainly can't stand by and let it become normalized. Because that becomes the new normal. And that's not okay.”