Three days in jail for the crime of doing journalism.

Two journalists who were arrested by the RCMP in northern B.C. have been released on conditions after three days in jail. Award-winning photojournalist Amber Bracken and documentary filmmaker Michael Toledano were attempting to cover police raids against Wet’suwet’en land defenders when they were arrested alongside at least two dozen Wet’suwet’en elders and supporters. They will return to court in February to face charges for doing their jobs.

“Whether through open defiance, or downright ignorance, the RCMP continues to act with outright impunity in defying these legal orders.”

Although it is part of a longstanding pattern of RCMP interference with media, this week’s arrests represent a dangerous new escalation by the national police force. The fate of Indigenous Peoples removed from their land is a key part of this issue as well — but without journalists we won’t know their stories. Arresting journalists isn’t only bad for the public’s right to know. It is dangerous for the land protectors who are standing up to a paramilitary police force.

And, tragically, our elected politicians would rather avoid the issue than exercise their duty of oversight.

Where in the world is B.C. solicitor general Mike Farnworth? Where is federal minister of public safety Marco Mendicino?

Government oversight

Both ministers share the duty of oversight when the federal police force acts under the authority of the B.C. government. They both have the authority to direct the RCMP to stop arresting journalists and to comply with prior court directions not to interfere with media in injunction zones.

And yet, under their watch, the RCMP have acted with impunity as every press freedom, civil liberties and journalism association in Canada and internationally releases outraged statements denouncing their actions.

During an unrelated press conference on Saturday, Farnworth was pressed on the issue and incorrectly claimed the two journalists had been released. After two days of media requests for comment directed to his office, Mendocino tweeted a thread expressing “concern” over the arrests but declined to take any action to ensure the journalists’ release.

“I do not direct the police,” Farnworth said during his press conference. “You do not want politicians directing the police. For people who feel their rights have been infringed, there are complaint processes, legislated complaint processes that can be accessed by people, and I can tell you that they are and those complaints are investigated and there are bodies that do that.”

These actions have been found to be unlawful by courts in two provinces and the RCMP’s own oversight body.

The complaint process he’s referring to is the Civilian Review and Complaints Commission, which has already found the RCMP’s actions to be unlawful in a report that the force has ignored. Last year, the CRCC declined to open a new investigation into police conduct towards journalists at Wet’suwet’en, explaining that they’d already investigated the RCMP’s tactics and determined they were unacceptable and a new investigation would simply give the RCMP an excuse to further delay changes to their practices.

The CRCC is a dead end. And the solicitor general knows as much. But it sounds reasonable to direct complaints to such a body if you don’t know the context. He’s also misleading the public by suggesting that he is powerless to correct RCMP misconduct.

“The minister may establish priorities, goals and objectives for policing and law enforcement in British Columbia,” reads Section 2.1 of the BC Police Act.

He has the authority to tell the RCMP to follow the law. He’s choosing not to use it. Reporting by the Georgia Straight showed that Farnworth personally authorized the internal redeployment of resources and approved the costs associated with it during raids on Wet’suwet’en territory in 2020. He almost certainly authorized the same redeployment and excess costs to support this week’s raids, which took place during unprecedented flooding that had blocked or wiped out critical transportation infrastructure through much of southern B.C.

Likewise, if Mendicino is concerned, as he tweeted, he has the authority to order the RCMP to comply with the direction of the courts and stop arresting journalists. He has chosen not to do so.

“On multiple occasions courts and quasi-judicial bodies have been clear that restrictions on media are unjustified in a free and democratic society,” wrote Brent Jolly, president of the Canadian Association of Journalists, in a release. “Whether through open defiance, or downright ignorance, the RCMP continues to act with outright impunity in defying these legal orders. This audacious subversion of Canadian law cannot — and will not — be tolerated.”

In an open letter, 41 media outlets and press groups — including independent outlets like The Narwhal and Ricochet as well as major legacy outlets and wire services like the Globe and Mail, Torstar, Postmedia and the Canadian Press — called on Mendicino to immediately intervene to secure the journalists’ release and put a stop to RCMP abuses of press freedom.

Unlawful tactics for Indigenous resistance

The story shouldn’t be about journalists. It should be about the Wet’suwet’en who are seeking to evict Coastal GasLink pipeline workers from their unceded territory.

No lesser body than the Supreme Court of Canada found that the hereditary leadership of the Wet’suwet’en and the neighbouring Gitxsan hold title over their lands in the landmark Delgamuukw ruling in 1997. But the pipeline company has gone around them, signing resource benefit agreements with band councils that do not have authority over the territory in question according to both Wet’suwet’en and Canadian law.

For the better part of a decade now, those hereditary leaders have sought to prevent the construction of a pipeline across their territories without their consent. They’ve been met with violent raids by heavily armed police tactical units.

The outrage in this case should be directed at the arrests of Wet’suwet’en on their own territory as much as those of journalists, pointed out Sonya Fatah, an assistant professor at X University (formerly Ryerson) and a co-lead on the Canada Press Freedom Project, to the Toronto Star.

“The thing to remember is the press is not exceptional under the Charter. It includes the press under the right of freedom of expression and the right to capture these moments. But that right is also bestowed on all residents of the country,” she said.

The RCMP treat Indigenous land defenders differently than they do settler activists engaged in comparable acts of non-violent civil disobedience.

Journalists shouldn’t be arrested for doing their job. But it is also true that members of an Indigenous Nation shouldn’t be forcibly removed from their territory by a paramilitary police force for attempting to exercise rights that have been affirmed by the Supreme Court of Canada.

This is a story that touches on what reconciliation and Indigenous sovereignty look like in practice, the role of the police in putting down Indigenous resistance to resource extraction projects and the contradictions inherent in a government that claims to take reconciliation and climate change seriously while pushing to build as many pieces of long-term fossil fuel infrastructure as possible.

It’s a story we should all be paying close attention to. But that’s tough when the police arrest the journalists who are there to tell us what’s happening.

For at least the past ten years, the RCMP has consistently tried to prevent the media from covering police actions in remote Indigenous communities through the use of tactics like broad exclusion zones.

These actions have been found to be unlawful by courts in two provinces and the RCMP’s own oversight body. But the RCMP simply ignore the courts, and their oversight body is purely advisory, so they’re free to ignore it too.

The list of journalists who have been detained, arrested or interfered with while attempting to cover RCMP enforcement against Indigenous Peoples in isolated areas over the past decade is long: Justin Brake, Karl Dockstadter, Jerome Turner, Amber Bracken, Jesse Winter and Brandi Morin, to name just a few. Many of these journalists are Indigenous, and it’s no coincidence that these tactics, like the use of heavily armed tactical units, are reserved for Indigenous communities.

The RCMP treat Indigenous land defenders differently than they do settler activists engaged in comparable acts of non-violent civil disobedience, and they will seemingly go to any lengths to prevent journalists from being able to witness that often violent treatment.

All of this raises the troubling question of what recourse is available to the public when our national police force acts unlawfully. The CRCC has made clear that it lacks the authority to compel the RCMP to change their practices, and both levels of government responsible for oversight of the force are avoiding the issue and refusing to intervene.

There’s an old question about policing: Who watches the watchers?

In Canada, the answer appears to be no one. The national police force can apparently ignore the constitution and the clear direction of the courts, and the politicians whose job it is to oversee their conduct will, at best, send some concerned tweets.

What a mess.