Commission’s Interim Report Following a Chairperson-initiated Complaint and Public Interest Investigation into the RCMP’s Response to Anti-shale Gas Protests in Kent County, New Brunswick

Background

[1] The Commission for Public Complaints Against the Royal Canadian Mounted Police ("the Commission")^{Footnote 1} received several complaints related to the confrontations between protesters and members of the RCMP with regard to the anti-shale gas testing/hydraulic fracturing ("fracking") protests in Kent County, New Brunswick, in 2013. Given the significant number of complaints and the issues raised therein, the Chairperson deemed it in the public interest for the Commission to investigate those complaints by way of a Public Interest Investigation ("PII").

[2] On July 30, 2013, he notified the Commissioner of the RCMP and the Minister of Public Safety and Emergency Preparedness that, pursuant to paragraph 45.42(3)(c) of the Royal Canadian Mounted Police Act ("the RCMP Act"), he was initiating a PII into the public complaints received pertaining to the RCMP's response to the Kent County, New Brunswick, shale gas protests in 2013. The Commission received a total of 21 individual complaints.

Chairperson-initiated Complaint and Public Interest Investigation

[3] 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 Chairperson initiated his own complaint into those events. The issues to be examined included: the use of arrest; the use of detention and search powers; the use of force; the adequacy of communication with members of the public; the planning, management and execution of the arrests at the protest camp on October 17, 2013; the handling of spiritual items, and/or interference with the spiritual practices of Indigenous peoples involved in the protests; the role of the RCMP in the policing of protests by Indigenous peoples pertaining to Indigenous land rights; and whether there was differential treatment of Indigenous peoples compared to other protesters.

[4] In December 2014, the Chairperson notified the Commissioner of the RCMP and the Minister of Public Safety and Emergency Preparedness that the Chairperson-Initiated Complaint would be investigated as a PII.

[5] The Commission notes that the material disclosed to it by the RCMP, and generated by the Commission's investigators, was voluminous. More than 130 civilian witnesses and RCMP members were interviewed by Commission investigators. The investigation gathered 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). Some delays were encountered in obtaining relevant material from the RCMP, and the material provided was disorganized. The Commission's report in this matter is based on as thorough a review as possible of the available information. The Commission also reviewed relevant jurisprudence and legislation, including the RCMP Act and the Criminal Code. The Commission thanks complainants and subject members for their patience.

Scope of the Commission's investigation

[6] It is not within the Commission's mandate to determine whether the land on which the exploration was conducted had been ceded to the Crown by the Mi'kmaq, or whether sufficient consultation had been conducted by the Crown before granting the exploration licences. The Commission notes that the required licences were granted to the company by the Government of New Brunswick beginning in 2010.

[7] The role of the RCMP in policing a protest or enforcing an injunction is to apply the law while respecting 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.^{Footnote 2} The RCMP's role does not include determining the legal validity of a licence or an injunction. As the New Brunswick Provincial Court held in R v Colford, a presumption that laws are not validly enacted, licences unlawfully granted, etc., would result in "anarchy and chaos":

Whether or not the Aboriginals of New Brunswick have valid legal arguments, which when declared by a Court of competent authority would have the effect of holding them free from the obligation of paying the Sales Tax to which they object is not in issue here. All laws are presumed to be validly enacted and are binding until declared to be invalid by a Court having jurisdiction so to do. Any other presumption would result in anarchy and chaos.^{Footnote 3}

[8] Given this presumption, the company was therefore legally entitled to conduct the exploration and use the province's highways for that purpose. It is for this reason that a court issued an injunction attesting to the company's right to do so without being impeded by protesters. The protesters' actions may be considered through the lens of the expression of their views through protest. Nevertheless, the protesters' actions may violate the law in certain circumstances. The RCMP's primary role in any demonstration or protest is to preserve the peace, protect life and property, and enforce the law.

A. Introduction

1. Background

[9] Beginning in 2010, the Government of New Brunswick granted SWN Resources Canada ("SWN"), a subsidiary of Southwestern Energy Company, licences to explore the accessibility of shale gas hydraulic fracturing (a controversial method used to extract shale gas) in the vicinity of the town of Rexton and the Elsipogtog First Nation Reserve in Kent County. Due to the location and the potential environmental impact of the exploration, protests were anticipated. In its capacity as the contract police force in the province, the RCMP was required to police these protests.

[10] It is not within the scope of this report to comment on any consultations between the New Brunswick government and Indigenous peoples of the Elsipogtog First Nation. Several of the Indigenous protesters alleged that there was a lack of adequate consultation. The RCMP was given the difficult task of refereeing between two diametrically opposed positions. On the one hand, the exploration company, SWN, had been granted a licence to explore for shale gas by the government of New Brunswick at considerable cost and was legally entitled to conduct the exploration. On the other, Indigenous persons, supported by non-Indigenous protesters, believed any exploration or shale gas fracking would destroy their water and land, which is their lifeblood. A review of the evidence collected by the Commission discloses that, with certain exceptions, the RCMP displayed exceptional forbearance in performing the very difficult task of attempting to guarantee the protesters their constitutional right to peacefully protest and demonstrate and, at the same time, enable SWN to carry out the work for which it had been granted a licence. Despite this forbearance, many of the protesters perceived the role of the RCMP as working for the contractor as private corporate security, and against them. As Pamela Ross put it:

[T]o see an officer stand there and say well, I'm sorry, "I'm just doing my job and I'm only here for public safety," and it's like well, we feel pretty safe, so why don't you leave? "Well, we can't." And then as soon as SWN leaves, the police leave.

2. Positions of Indigenous protesters

[11] Initially, the Indigenous protesters were primarily from the Elsipogtog community located at Bass Point, close to the town of Rexton, New Brunswick. This group of protesters appears to have had no identifiable leader—a fact that created difficulty for RCMP negotiators in their attempts to follow policy guidelines by establishing rapport with protest leaders. Their Chief was often absent and appears to have taken little part in the protests. Several individuals interviewed expressed the belief that he had secretly agreed with the provincial government and SWN to permit the exploration operations.

[12] In June 2013, the Elsipogtog protesters were joined sporadically by a group apparently from Nova Scotia who claimed to be members of the Mi'kmaq Warriors Society. Later, some members of the Mohawk Warriors Society from Akwesasne joined them. The Warriors were considerably more militant and aggressive in their approach and attracted several youthful members of the Elsipogtog community, who adopted their style and behaviour. They had a penchant for wearing camouflage clothing and engaging in aggressive taunting of the front-line RCMP members. The participation of the Warriors group significantly altered the nature of the protests and the RCMP's response.

[13] The 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.

[14] The relationship between the Mi'kmaq and the federal and provincial governments is governed by a series of treaties beginning in 1726. These treaties, often referred to as treaties of peace and friendship, provide for Indigenous hunting and fishing and other traditional activities. Unlike the treaties the federal government signed with western Indigenous people, which involved the surrender of land to the government, the treaties do not focus on land beyond accepting the legality of existing British settlements. The Mi'kmaq also agreed that the British might establish future settlements. Although several court cases over the years dealing with Indigenous hunting, fishing, and logging activities refer to "Crown land," there does not seem to be any legal authority that suggests that the land outside established communities has ever been ceded to the Crown. At least one court judgement acknowledges "the fact that none of the Aboriginals living in New Brunswick have ever made a general release of their lands to the Queen as have the tribes west of the Quebec border."^{Footnote 4}

[15] The Mi'kmaq's position is that the land belongs to them. In a letter to SWN, dated August 29, 2013, the Signigtog' District Migmag Grand Council wrote: "The Original Peoples of the Wabanaki-Migmag District of Signigtog are the legitimate authority over all of the lands and waterways of the territory that you have collaborated to exploit against our interests and in violation of our expressed directives."

3. Positions of non-Indigenous protesters

[16] In addition to Indigenous protesters, several other groups became involved in the protests. These included, among others, the Anti-Shale Gas Group, Our Environment Our Choice, Upriver Watch, Christian Peacemakers, The Council of Canadians, Moncton Anti-Fracking, and the Halifax Coalition Against Fracking. These groups primarily consisted of environmentalists and their interest in protecting the land clearly blended with the interests of the Indigenous protesters.

4. Overview of anti-shale gas protests and RCMP response

[17] The protests began in early June 2013 with the arrival of the SWN equipment. They continued intermittently until SWN packed up and left in early December 2013. Although the protests were ongoing, there were specific incidents in which protesters came into conflict with RCMP members. A brief timeline of the protest activities in 2013 follows:

Routes 126 and 116

• June 5: Eighty people conducted a peaceful protest walking along Route 126 near Gallagher Ridge, New Brunswick. Ten protesters refused to obey police direction to move to allow SWN vehicles to pass. Five individuals were arrested.
• June 9: Protesters on Route 126 impeded SWN operations. Six people were arrested.
• June 14: The RCMP responded to a protest on Route 126 in Harcourt, New Brunswick. At least two individuals were arrested. They were blocking the Geokinetics (SWN sub-contractor) trucks on the road and were asked to move out of the way, but failed to comply.
• June 21: A group of protesters on Route 126 south of Rogersville, New Brunswick, suddenly walked in front of SWN Vibroseis trucks and interrupted SWN operations. Two RCMP Quick Response Teams ("QRT") were dispatched. Eleven protesters were arrested.
• June 25: Warriors from Nova Scotia arrived.
• July 27–28: Overnight protest, beginning at 3:13 p.m., at a location known as the "Ski-Doo Shack" near Route 116. The Emergency Response Team ("ERT") was deployed, and the "H" Division tactical troop was requested to provide additional support. By suppertime, 50 to 60 people were present and they advised the RCMP members that they wanted to perform a ceremonial dance in the middle of the road. The group was allowed to perform the ceremonial dance. More militant protest factions (Warriors) arrived at the Ski-Doo Shack site and SWN postponed its activities as a result.

Route 134 and Hannay Road

• September 27: The SWN and Industrial Security Limited ("ISL") staging area was moved to a fenced compound in Rexton, New Brunswick. SWN logistical and security plans for this site were shared with the RCMP. The RCMP voiced its concerns about site security to SWN.
• September 29: A group of protesters overran the entrance to the SWN/ISL compound on Route 134 (east of Rexton). By doing so, they gained a foothold at the entrance of the compound, preventing SWN from beginning their work as scheduled. A van was parked in front of the entrance to the compound and protesters prevented a tow truck from removing it. (This was the beginning of a blockade of the compound.) Warriors moved to the site. A camp was set up.
• October 3: SWN obtained an ex parte interim injunction to prevent the protesters from interfering with their operations.
• October 11: The injunction order was extended to October 18, allowing protesters to contest it.
• October 13: The final draft of a Tactical Operational Plan to clear the protest site and secure the release of SWN and ISL equipment and personnel from camp on Route 134 was completed.
• October 16: SWN wanted to send two process servers to the site to serve the injunction. Inspector John Warr put SWN off until the morning of October 17. SWN was advised of the positive ground gained through negotiations thus far.
• October 16: Superintendent Gilles Maillet updated the Commanding Officer and the Criminal Operations Officer on the arrival of the "H" Division and "C" Division tactical troops. The team was expected to go through a tabletop exercise this date in the afternoon. The Tactical Operational Plan was reviewed; RCMP tactics were not expected to change. The first goal was to extract ISL staff if things did not improve with the camouflaged protesters (Warriors).
• October 16: The Crisis Negotiation Team ("CNT"), unaware of the Tactical Operational Plan, succeeded in negotiating the release of the barricaded ISL employees and having them replaced with RCMP members. Negotiations concluded with CNT members offering tobacco to members of the Warriors Society, variously seen as a "show of respect" or a "peace offering."
• October 17: The RCMP tactical operation began at 7:27 a.m. A firearm was observed during police deployment. Molotov cocktails were thrown on roadway near the compound's west gate. The RCMP fired several less lethal "sock" rounds. Police engaged in standoff with one male with a rifle. Over 200 RCMP resources were on the scene. Arrests of the core group of protesters were completed by 10 a.m. There were a total of 40 arrests as of 1:30 p.m. Five RCMP police cars were set on fire at 1:45 p.m. At 4:29 p.m., there were reports of rocks being thrown by protesters. Emergency Response Team (ERT) members fired sock rounds. By 6:39 p.m., RCMP members began to retire from the site using a controlled exfiltration plan.
• October 18: At 2 a.m., the Elsipogtog RCMP Detachment building was damaged from a thrown Molotov cocktail. Windows were also damaged.

Route 11

• November 12: SWN resumed its work.
• November 13: Protesters claimed as First Nations land an area located 1.5 kilometres north of Laketon, New Brunswick, which was being used by SWN the previous day. About 40 protesters were at this site carrying placards and moving around on the shoulder of the roadway.
• November 14: SWN resumed exploration activities along Route 11. Protest groups interfered with SWN activities. At least two persons were arrested. Protesters were seen carrying sticks, spray cans, and hunting knives. The RCMP saw this as indicative of an increased threat of violence.
• November 15: The RCMP noted that a "change in dynamics indicates a change of strategy. It paints a very volatile and dangerous situation for our staff (RCMP) and SWN."
• November 22: The Court of Queen's Bench granted a further injunction in effect until December 2.
• November 27: Three protesters were arrested for violating the injunction conditions. They were released on conditions.
• November 29: The RCMP expected SWN to move north towards the Richibucto River, but SWN brought its Vibroseis trucks to Route 134. Many protesters had rocks and sticks. Rocks were thrown at SWN trucks. RCMP members were deployed to clear the overpass. Five male protesters were arrested for violating the injunction.
• December 2: Protesters threw snowballs at RCMP members. Protester actions caused SWN to end work early this date. Seven protesters were arrested.
• December 6: SWN completed its work.

[18] The protests along Route 126 began peacefully. Although several arrests took place in June,^{Footnote 5} they were generally a result of practicing a form of civil disobedience—people positioning themselves in the middle of the road to prevent SWN trucks from passing and refusing to move when requested to do so by the RCMP. Some of this took the form of sacred ceremonies conducted in the roadway, which the participants insisted on completing before moving. Several of the individuals who were eventually arrested continued passive resistance and had to be physically removed.

[19] Around the end of June, a group of individuals from Nova Scotia who claimed to be leaders in the Mi'kmaq Warriors Society arrived. They left briefly at the request of some protesters from Elsipogtog, but returned in July. According to RCMP members involved in policing the protests, the Warriors espoused a more confrontational or aggressive form of protest. It is not clear to what extent they were welcomed by Elsipogtog protesters. Clearly, some did not appreciate their intervention, while others began to emulate their aggressive approach.

[20] The impact of the Warriors was first apparent during the standoff at the Ski-Doo Shack on July 27–28, 2013. Shortly after that incident, SWN ceased operations and left the area. The Warriors also left.

[21] SWN returned in late September. So did the Warriors. This led to one of the main issues to be addressed in this report: the RCMP operation carried out on October 17, 2013. The lead-up began when SWN decided to use a fenced-in compound on Route 134 outside Rexton as a staging area for their vehicles, despite security concerns on the part of the RCMP. Almost immediately, the protesters parked a van blocking the exit gate and subsequently prevented a tow truck from removing the van. The protestors also cut down trees to partially block the highway and set up a camp across the road from the compound on private property, apparently with the consent of the owner.

[22] Over the next two and a half weeks, RCMP negotiators from the CNT attempted to resolve the impasse. In the meantime, operational plans were being drawn up and additional tactical troops from other divisions were being assembled for a large-scale operation to clear out the protesters, rescue the ISL personnel who had been blockaded in the compound, and allow the removal of SWN equipment. The CNT negotiators were not made aware of these plans; they continued to negotiate with the protesters, unaware of the operation scheduled for October 17, 2013.

[23] On the night of October 16, 2013, CNT members successfully negotiated the release of the ISL staff members. The negotiations ended with RCMP negotiators offering tobacco to the protest leaders, an act variously viewed as a peace offering, a show of respect, or a symbol of honourable intent. It was only at the nightly briefing with the Incident Commander that same night that the negotiators were briefed on the planned operation that was to occur the next morning. They unsuccessfully pleaded with the Incident Commander to delay the operation, as they believed that they had made a significant breakthrough and could now secure the release of the equipment. Despite these pleas, the operation went ahead the next morning. It lasted all day and could be described as a large-scale show of force against what became rioting protesters. It is noted that the interim injunction obtained by SWN on October 3, 2013, was scheduled to be addressed in court on October 18, 2013, and the protesters planned on opposing it. Not surprisingly, all of this led to a great deal of bitterness on the part of the protesters. Among other examples of this, the Elsipogtog RCMP Detachment was fire-bombed. But SWN withdrew for several weeks.

[24] In mid-November, SWN returned and this time used a facility in Moncton as a staging area. The focus of their explorations was in the area adjacent to Route 11 running north of Rexton. The Warriors seem to have left after October 17, 2013, but the fallout from the operation had created a level of mistrust among the protesters that resulted in a more confrontational relationship between them and RCMP members. By this time, a second injunction was in place and the RCMP was enforcing it. Numerous arrests occurred over the three weeks that SWN worked to complete its exploration. Most arrests were for violations of the injunction; some of these arrests were based on an apparent misreading of the terms of the injunction. On December 6, 2013, SWN finished its explorations and left the area. The remaining fallout involved a number of court proceedings for those charged, although Crown prosecutors withdrew many of the original charges.

[25] The terms of reference of the Chairperson-Initiated Complaint list a number of issues to be considered. The balance of this report will address those issues and, where appropriate, make findings and recommendations.

B. Detention Practices and Conditions

[26] Throughout the anti-shale gas protests, RCMP members appear to have acted consistently with the requirements of section 10 of the Charterand the RCMP's national Operational Manual. There were designated arrest teams within the tactical troops, and the members of those teams routinely immediately advised the arrested persons of the reason for the arrest and provided them with their rights to counsel and the primary police warning. Once arrested, persons complaining of injuries were treated by medical teams or transported to hospital. Otherwise, they were turned over to other members responsible for the transportation of prisoners to one of the local detachments, where they were provided with an opportunity to contact counsel. They were then placed in a cell and shortly afterward were interviewed by a member of the investigative team. Before beginning the interviews, the interviewer confirmed that the persons had been provided with their section 10 Charterrights and provided them with the secondary police caution. Most persons arrested were released within a few hours of their arrest. The exceptions were persons who had outstanding charges or significant criminal records. The entire process was in line with normal police practices.

[27] An addendum to the Tactical Operational Plan detailing specific procedures for handling arrested persons was put in place for the October 17, 2013 operation. Several prisoner transport buses from the Springhill and Renous federal correctional institutions were used to transport arrested persons to one of four local detachments. The addendum included a detailed checklist to be followed for arrests. This list included sections for a person's name, date of birth, rights to counsel, primary warning, as well as any injuries to be photographed and location noted. It also provided a complete action plan that detailed:

Protesters that will be arrested at the site by QRT members will be brought on foot to the buses location near check point Est at exit 53 which is about 200 feet away after the Incident commander would have given the "green light" that the site is under control. The arresting QRT member will then provide the member responsible for each bus with the arrest form that contained information on the prisoner such as name, raison for the arrest, RTC, PW, before the subject can be placed inside of the bus. ERMT members will be at the bus location to quickly provide medical assistance to prisoners if needed.

Once the bus arrives at the detachment the member responsible of the transportation of the prisoners will provide member[s] of the Investigative team with all documentation in regards to the arrest and then will be process by a member of street crime unit. The subject will then be decontaminated (if required) photograph[ed], fingerprint[ed], and interview will be conducted to gather evidence for further prosecution.

Those prisoners that can be released will be under condition (to be determined) and those held for court will be dealt. [sic throughout]

[28] Over 40 protesters were arrested on October 17, 2013, and despite some overcrowding in the cells, the processing of detainees appears to have been reasonable.

[29] Persons did, however, submit complaints and express concerns. Susan Hopkins McQuarrie claimed:

The other women with me had much thinner clothes on than I. I was shivering with cold, even with the thick sweater, and my companions were also shivering with cold. One of the women with me asked for us to be given blankets. We were told by the officer that the woman at the desk would not give them to us. After perhaps an hour or an hour and a half, we were given thin, cotton blankets which were quite inadequate to keeping us from shaking with cold.

[30] However, cell videos show that these women were provided with blankets in accordance with the national Operational Manual.

[31] Ms. Hopkins McQuarrie's husband, Dallas McQuarrie, said that when he was arrested he was concerned about the length of time he would be held, as he is diabetic. He said that he was told he would not be held very long, but wound up being detained from before 8 a.m. until around 1 p.m. or 2 p.m. However, the Prisoner Report document shows that he was arrested at 7:21 a.m., booked into cells at 8:39 a.m., and released on promise to appear at 10:30 a.m.

[32] Mr. McQuarrie also complained about not being fed; however, he acknowledged that he had breakfast before he was arrested and, as noted above, he was released at 10:30 a.m.

[33] Several arrested protesters complained of being denied a phone call to family members. There is, however, no requirement for police to allow a detained adult to contact anyone except their legal counsel. In some cases examined by the Commission, members did, at the request of arrested persons, nonetheless ensure that family members were contacted.

[34] An online media report alleged that a protester named Gilogoetj Dedam was violently shoved, denied water and bathroom access, and was refused the adjustment of her zip tie cuffs to the point of bruising. This media report was refuted through video files that depicted that the cell that housed Ms. Dedam, like the other cells depicted in the referenced video files, had bathroom and water facilities available to the detained persons. There was no information available to the Commission to support the claims that Ms. Dedam was shoved or that members refused to adjust her handcuffs.

[35] In most instances during the anti-shale gas protests, several persons were arrested at approximately the same time. In fact, on October 17, 2013, the number of persons arrested surpassed 40. RCMP members involved in arrest and detention procedures were therefore dealing with multiple arrested persons concurrently. Based on the Commission's review of the available information, to the extent reasonably possible, the RCMP members charged with arrest and detention complied with the provisions of the RCMP's national Operational Manual in the treatment and handling of prisoners after arrest.^{Footnote 6}

C. Communication with Protesters and Mediation

1. Measured approach

Facts

[36] 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. The role of the police is to bring stakeholders together to work on achieving a resolution to the conflict.^{Footnote 7}

[37] The RCMP's Operational Plan for Shale Gas Exploration, developed in April 2012 and revised in April 2013, addresses the probable operational conditions and includes the following:

All plans/responses are in keeping with National Policy and J Div Policy. As well, they concentrate on a Measured Approach/Non-Confrontational Model as it applies to:

1. acts of civil disobedience which are dynamic and require a flexible police response;
2. the premise that all persons have the right to lawful dissent;
3. a public assembly, whether for lawful or unlawful activities, may require a police presence response;
4. not all crowd situations involve civil disobedience; and
5. the Incident Commander or delegate will be able to objectively decide at what juncture a demonstration or other act of civil disobedience requires an appropriate Level of Response/Intervention.

[38] The national Operational Manual, chapter 38.9., addresses the policy for policing Aboriginal demonstrations and protests. The policy describes the considerations and approaches to be taken. It states that the RCMP's primary role in any demonstration or protest is to preserve the peace, protect life and property, and enforce the law. It specifically notes that the rights of the Aboriginal peoples of Canada are recognized in Part II, section 35 of the Constitution Act, 1982 and that peaceful protests, peaceful assembly, and freedom of expression are all fundamental rights as defined under the Charter.

[39] Section 2.3. of chapter 38.9. dictates that a measured response based on accurate and timely intelligence must form the basis for the management of Aboriginal demonstrations or protests. The policy also addresses restriction of access to a disputed area. It states that public access may be restricted if the disputed area is on a reserve or private property. Access may be restricted on Crown or public property if the provincial or federal government obtains an injunction on behalf of the public.

[40] Specifically, the policy directs members to "[e]nsure every enforcement action is measured, incremental and as non-confrontational as possible . . . [and to] [a]ttempt to negotiate the conflict before taking enforcement action."

[41] In the Tactical Operations Manual, the underlying policy contained in chapter 2. is the use of an integrated, measured response in accordance with the Incident Management/Intervention Model ("IM/IM"). Chapter 1.1. describes the role of the Incident Commander. The Incident Commander is defined as a commissioned officer or senior non-commissioned officer responsible for coordinating, managing and responding to a critical incident. A critical incident is one that requires a specialized and coordinated response.

[42] Chapter 3.1. contains the crisis negotiating responsibilities. This part again emphasizes the commitment to resolving potentially violent situations using the least amount of force necessary. It sets out the primary objective of the CNT as the negotiation of the safe release of victims and the peaceful surrender of offenders. It should be noted that the description of the role of the CNT in chapter 3.1. of the Tactical Operations Manual involves hostage-taking situations, which are quite different from the scenario faced by the CNT at the anti-shale gas protests.

[43] Chapter 5.4. addresses the handling and arrest of demonstrators. It adopts the directions in Chapter 19 of the Operational Manual and directs the establishment of a prisoner processing team, which must be alert to the health and safety of prisoners.

[44] Chief Superintendent Wayne Gallant, "J" Division Criminal Operations Officer, indicated that the protest policing operation "can't be a police story." He said that it was a protest involving legitimate concerns, the kind that happens in democracies all the time. The interest of the RCMP is always to be neutral and impartial, and be prepared to ensure public safety for everybody involved in the protests. The goal was to act professionally, maintain public safety at all times, respect peaceful protests, and minimize active interventions by the police. He said that these were "oft repeated themes on . . . the teleconferences that I chaired."

[45] Assistant Commissioner Roger Brown, Commanding Officer, explained:

The . . . goal was always to . . . stay within your lines. In other words, the police lines are this, the political lines are there, First Nation lines are there. Stay in your lane. My overall strategy was stay in your lane, not to allow us to veer into the political world, not to veer into the industrial (inaudible), and be able to do what I'm doing here, explain that in a way where my role is X and that's what I did.

[46] Staff Sergeant Jean-Marc Collin, who had responsibility for liaising with the provincial government, indicated that he explained to his government contact that the RCMP mandate did not include prohibiting peaceful protest, and the RCMP would not prevent people from engaging in peaceful protest.

[47] Many of the members interviewed by Commission's investigators discussed their understanding of the concept of the measured approach. Chief Superintendent Gallant saw the approach as involving the "least intervention as possible," and that the bottom line is that "we're not going to overreact." Sergeant Harry Brown, "J" Division Tactical Troop Commander, understood the approach to be "talking with the protesters and explaining what we will do and [how] we respect their side. Giving the people an informed decision on what they wanted to do." Superintendent Maillet, Incident Commander, described the measured approach as finding a way forward through communications and building rapport through negotiation and mediation. Superintendent Maillet also said that this concept was applied throughout the ranks, from the Commanding Officer all the way down.

[48] According to Staff Sergeant Jean-Marc Robichaud, who acted as Operations non-commissioned officer in charge at the protest sites, the measured approach meant "that we only react with the force that was necessary to solve the problem. We would speak to them, if that's all that was needed. We would react with the levels needed and nothing more. This is a measured response to a situation."

[49] Sergeant Lynn Couture, team leader for the "J" Division CNT, said that she was instructed to use the measured approach. She saw her role being to maintain the peace, respect the protesters, and ensure that they understood that they have the right to protest as long as they do it peacefully and they do not impede the workers from performing their job.

[50] Inspector Dennis Fraser, who was brought in as a negotiator from Alberta, said that "the measured approach, in my opinion, is not to overdo it, like not to use excessive force," coupled with negotiation.

Analysis

[51] Although there were many descriptions of the measured approach, all those involved with policing the protests who were interviewed by the Commission grasped the basic notion that what was required was a non-confrontational approach with the least amount of intervention and a focus on negotiation and mediation. It should be noted that the persons interviewed were not given questions in advance, so were giving "off the cuff" explanations.

[52] There are a number of video recordings that show tactical troop members trying to clear the road so that SWN trucks could pass. The members demonstrated great patience in requesting cooperation from the protesters and giving them the opportunity to demonstrate before moving to enforce the requests. This was often done while the SWN trucks waited down the road. Some examples of this are in video 861, where protesters are shown blocking a line of SWN trucks. RCMP members speak to the apparent leader but the crowd continues to mull about. One man is sitting directly in front of the lead SWN truck. One of the members bends down to talk to him, apparently trying to get him to move, but he remains where he is. While this is going on, several women are conducting a drumming ceremony in front of the trucks. Eventually the crowd complies with requests from the RCMP to move to the side of the road to let regular traffic pass. The scene continues in video 862, with regular traffic passing. The drumming is continuing and the man is still sitting in front of the trucks. The combined time of the two videos is approximately 12 minutes. These two videos show a great deal of forbearance by RCMP members and illustrate the application of a non-confrontational measured approach.

[53] Another example is in video 870, which shows a group of protesters led by women drummers approaching a line of SWN trucks. RCMP members ask them to keep one lane free for regular traffic and they cooperate with this request. When the protesters reach the SWN trucks, they gather in front of them and begin demonstrating. However, they comply with the police request to leave one lane open for regular traffic. This video lasts 14 minutes.

2. Crisis Negotiation Team

Facts

[54] The Tactical Operational Plan provided for a CNT reporting to the Tactical Incident Commander. However, as Sergeant Couture, the member in charge of the team, pointed out, there was no negotiated resolution to be had because both sides were firm in their positions. The CNT members were essentially only there to speak to the protesters and try to keep them calm, acting more as mediators. Their approach was to try to identify leaders, particularly among the Indigenous protesters, and connect with them.

[55] This was met with mixed success, as the leadership of the protest groups seemed to be somewhat fluid. The Chief and band council from Elsipogtog maintained a hands-off approach, leading some of the protesters to believe they had worked out an arrangement with SWN. Initially, the team attempted to establish contact with John Levi, who was said to be the band's Warrior Chief, and Amy Sock, a lawyer and respected member of the Elsipogtog community. However, it was not clear that either had solid backing from the Indigenous protesters. Later, members of the Mi'kmaq Warriors Society from Nova Scotia joined the protests and, as noted, brought with them a more aggressive and confrontational style.

[56] The CNT originally consisted of Sergeant Couture, Sergeant Don Stenger, and later Staff Sergeant Denise Vautour, who had also served as a site non-commissioned officer in charge. Sergeant Stenger is Indigenous, but not Mi'kmaw. Corporal Richard Girouard was then added to the team. He is Mi'kmaw, but does not speak the language. Constable Walter Denny and Corporal Jay Marshall were then brought in from "H" Division; they are both Mi'kmaq and speak the language. CNT members attended daily briefings with the Incident Commander.

[57] The negotiators spent most of their time interacting with Indigenous protesters, who seemed to be playing the lead role in the protests. The goal of the CNT negotiators was to encourage people to act lawfully during the protests. The CNT attempted to do this by reaching out to individual protesters who may have influence over others, and enlisting their support to ensure lawful protests.

[58] Wendell Nicholas was hired by the Elsipogtog First Nation to lead a team of "Peacekeepers." According to Constable Denny, the Peacekeepers team drafted a protocol for handling the situation; RCMP members read the protocol and interacted with the Peacekeepers group on a daily basis. The Peacekeepers would act as a buffer in an attempt to avoid arrests. When Protester A was performing a drumming ceremony on the road in July, Constable Denny said: "Rather than us members deal with [Protester A] it was Peacekeepers who would provide that buffer. When we needed to get cars going through, trucks going through, they assisted." However, the Warriors from Nova Scotia had a different way of approaching things. They were prepared to take it to the next level—the threatened use of violence—and the CNT members were trying to find a way to change that and have the Peacekeepers group take the non-violent approach and persuade the Warriors to do the same.

[59] On October 13, 2013, Inspector Fraser was brought in to assist in negotiations. He is Indigenous and had been involved in mediating Indigenous protests in other parts of the country. On the night of October 16, 2013, he and Constable Denny succeeded in negotiating with the Warriors group for the release of security personnel who had been barricaded in the SWN vehicle compound on Route 134. The significance of this will be further examined in assessing the events of October 17, 2013, and those leading up to it.

Analysis

[60] Particularly considering the difficulty in identifying protest leaders, the CNT 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. Their efforts culminated in the negotiated release of the security personnel being detained in the SWN compound and a successful breakthrough in communicating with the Warriors group, which had taken over a leadership role.

D. Surveillance and Searches

[61] During the anti-shale gas protests policing operation, 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.

1. Undercover operations

Facts

[62] The RCMP engaged in an undercover ("UC") operation aimed at gaining access to Facebook communications undertaken by protesters. The purpose of this operation, as stated in the Investigational Planning document, was the following:

UC operator will be utilized in an effort to gather as much information from social media as possible. We would instruct the operator to create a fake identification in order to gain access to the social media sites that the principal targets are using as well as other sites used to organize protests/barricades and criminal activity. Through online communications the UC [operator] will attempt to join social media groups and eventually gain access to private chat rooms and messaging.

[63] The objectives of the operation were as follows:

1. Prevent further damage to shale gas exploration equipment and harm to shale gas exploration employees.
2. Investigate previous and any future Criminal Code offences in relation to property damage to shale gas exploration equipment and/or other offences in relation to shale gas exploration employees.
3. Prevent and strategically police unlawful protests.

[64] The initial application was made on July 4, 2013, and approved shortly thereafter. The Operator was able to actively monitor the following Facebook groups:

Shale Gas Alerts New Brunswick
Upriver Environment Watch
New Brunswick Is Not For Sale
Stop Shale Gas In New Brunswick
Wear White (invited private group)

[65] During the operation, the Operator had direct contact via Facebook with two targets, both of whom were administrators of the Shale Gas Alerts New Brunswick Facebook group. One of the administrators was actively involved in organizing demonstrations and protests. He was asking via social media for people to get names of SWN employees and their subcontractors, information about where they reside, what they do in their spare time, and so on. The Operator was able to determine that people on the social media sites had posted the location of seismic testing and encouraged both protests and damage to property. The Operator also ascertained that meetings were taking place among anti-shale gas protesters in relation to strategic planning.

[66] An application to extend the operation was made on September 16, 2013, and approved two days later. The application called for criminal analysts to monitor the private group conversations within the Facebook group, including logging in and out of the account. The application stated:

If and when contact is requested by anyone, the Criminal Analyst will contact the investigator, who will in turn contact the Cover Person to have this task performed if deemed investigatively necessary. This subsequent contact will be done by the UCO either while on duty or during a callback depending on the investigative need.

Investigators feel that much of the information in relation to the planning and strategizing of unlawful protests and illegal activities is being done on social media via private group messaging.

Analysis

[67] Although the application for approval of the UC operation followed the established procedures, neither the applicants nor the Commanding Officer who approved the operation appear to have considered that the ultimate objective (which was successful) was to obtain access to private electronic communications.

[68] In cases decided several years after the anti-shale gas protests, the Supreme Court of Canada in R v Marakah^{Footnote 8} and R v Jones^{Footnote 9} held that persons had standing to assert that judicial authorization was required to access electronic messages, which constitute private communications. Even before those decisions were released in 2017, courts had held that a warrant was required to search cell phone messages,^{Footnote 10} and Part VI of the Criminal Code has for several decades required judicial authorization to intercept private electronic communications. Section 183 of the Criminal Code defines "intercept" as including to "acquire a communication."

[69] Part VI of the Criminal Code applies to communications for which there is a reasonable expectation of privacy; section 183 of the Criminal Code defines private communication as communication that is "made under circumstances in which it is reasonable for the originator to expect that it will not be intercepted by any person other than the person intended by the originator to receive it . . . ."

[70] In this case, from the information available to the Commission, it appears that the UC Operator (and, in the second operation, a criminal analyst, who monitored messages but was not permitted to make contact with any persons) was engaged in reading messages on the group's webpage posted by other group members, as well as receiving and sending messages directly from/to two Facebook group members (one of whom was a specific target of the investigation).

[71] RCMP records indicate that, in the first operation, the Operator "successfully gain[ed] access to a private chat room on the Facebook site SHALE GAS ALERTS NEW BRUNSWICK and initiat[ed] contact with administrator [sic]." The Operator also "actively monitored" other Facebook groups, as listed above. RCMP records indicate that the Operator "only had direct contact via Facebook with two targets, [name 1 redacted by the Commission] and [name 2 redacted by the Commission], but mostly [name 2]. Both . . . are administrators of Shale Gas Alerts New Brunswick." The RCMP also noted that the second person's "actual identity ha[d] not been confirmed."

[72] The law continues to adapt to the widespread use of social media, as do police practices. Questions remain as to what constitutes "private communications" on a platform such as Facebook, where some "groups" (within which electronic communications occur) may be accessed by any person with a Facebook account; membership in other groups is controlled by a group administrator.

[73] In its Marakah decision, the majority of the Supreme Court indicated that their ruling with regard to the private nature of text messages (sent via cell phones) in that case did not mean that persons necessarily have an objectively reasonable expectation of privacy in all electronic communications, and that each case would turn on its own facts. The majority judgement indicated, "This case does not concern, for example, messages posted on social media, conversations occurring in crowded Internet chat rooms, or comments posted on online message boards."^{Footnote 11}

[74] In a 2018 decision, R v Patterson, a justice of the Ontario Superior Court specifically rejected the claim that the accused in that matter had an objectively reasonable expectation of privacy in messages shared in a Facebook group, stating that "No reasonable person would expect that communications exchanged between unidentifiable members which can be readily copied and disseminated to an unlimited audience would remain private."^{Footnote 12}

[75] In R v Mills,^{Footnote 13} a police officer in Newfoundland created an e-mail address and Facebook profile for a fictitious 14-year-old girl and communicated with the subject of the investigation, using a computer program to take screenshots (digital images) of their communications. The undercover police officer and the accused corresponded for approximately two months, culminating in the accused's arrest for communicating with a minor for sexual purposes.

[76] The trial judge found that Mr. Mills' section 8 Charter rights had been violated. The Newfoundland and Labrador Court of Appeal disagreed, finding that the judicial authorization requirement sections of the Criminal Code were not engaged in this case because there had been no "intercept" of communications. This was so because the interactions involved direct communications between two parties; a recipient of information cannot be said to "intercept" it. This was true even though Mr. Mills did not know he was speaking to a police officer; in fact, both parties were deceiving each other.^{Footnote 14}

[77] With regard to the question of whether Mr. Mills' expectation of privacy was objectively reasonable, the Court of Appeal found:

Mr. Mills was using electronic social media to communicate and share information with a person he did not know and whose identity he could not confirm. On an objective analysis, as the sender of such communications, Mr. Mills must have known that he lost control over any expectation of confidentiality that he appears to have hoped would be exercised by the recipient of the messages. He took a risk when he voluntarily communicated with someone he did not know, a person he was not in a position to trust. Any subjective expectation of privacy Mr. Mills may have had was not objectively reasonable. In the absence of a reasonable expectation of privacy, section 8 of the Charter was not engaged.^{Footnote 15} [Emphasis added]^{Footnote 16}

[78] It is reasonable to assert that persons posting messages in an online group setting have a reduced expectation of privacy in those messages by virtue of the forum in which they are shared. It is true that social media group members are in many cases essentially "unidentifiable," as persons may use a nickname, pseudonym, or an entirely fictitious persona (as was the case with the UC Operator in this matter). In fact, it is noted that the RCMP in this case had difficulty confirming the true identity of one of the persons with whom the UC Operator was communicating through one of the online groups.

[79] It is also true that a person loses a considerable amount of control over his or her communication after it is shared with group members, as that message could be forwarded or otherwise shared to anyone, anywhere. Concerns have been raised about how Facebook itself handles users' communications.^{Footnote 17}

[80] In this case, on several occasions RCMP documents themselves referred to accessing "private" communications. On the information available to the Commission, however, it is unclear whether the communications in question engaged an objectively reasonable expectation of privacy as set out by jurisprudence.

[81] It is apparent that the parties who were communicating with, or in the (virtual) presence of, the UC Operator did not know that he was a police officer. There is a legitimate concern with regard to a chilling effect on peaceful expression of freedom of speech. Courts assess police actions with a view toward "the need to strike a fair balance between the right of the state to intrude on the private lives of its citizens and the right of those citizens to be left alone."^{Footnote 18}

[82] It is also the case that courts have recognized the legitimacy of undercover police work, and that it can be done in a way that does not violate privacy rights. In R c Blais, the Quebec Court of Appeal held that "[l]e fait que l'un des interlocuteurs est un agent de l'État sans que l'appelant ne le sache ne constitue pas, non plus, une « interception. »^{Footnote 19} [Translation: The fact that one of the interlocutors is an agent of the state without the appellant knowing it does not make it an "intercept."] As the Alberta Court of Appeal framed it, "[d]eception does not amount to an interception."^{Footnote 20} In Duarte, Justice La Forest explained this distinction in the following terms:

The Charter is not meant to protect us against a poor choice of friends. If our "friend" turns out to be an informer, and we are convicted on the strength of his testimony, that may be unfortunate for us. But the Charter is meant to guarantee the right to be secure against unreasonable search and seizure. A conversation with an informer does not amount to a search and seizure within the meaning of the Charter. Surreptitious electronic interception and recording of a private communication does.^{Footnote 21}

[83] In the present case, it is unclear whether the actions of the UC Operator amounted to an "intercept" as outlined in the jurisprudence. On the one hand, it can be argued that the Operator "acquired" the information through his actions, bringing the conduct within the ambit of an intercept. On the other hand, an intercept requires "interference" between the sender and the recipient of the communications on the part of the police.^{Footnote 22} As described above, the Newfoundland and Labrador Court of Appeal in Mills stated: "Where there is direct communication between two people, the intended recipient cannot be characterized as having ‘intercepted' a communication meant for that person."^{Footnote 23}

[84] The law is constantly evolving in this area, and has undergone—and continues to undergo—significant developments since this incident occurred in 2013. The information available to the Commission does not establish, on a balance of probabilities, that persons had an objectively reasonable expectation of privacy with regard to their communications through Facebook groups, or that the RCMP UC Operator "intercepted" those communications as outlined in the relevant jurisprudence. It is beyond question, however, that in a free and democratic society, 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.

2. Open source dossiers

Facts

[85] Before the protests began, the RCMP created dossiers on some individuals they suspected would be involved in the protests. The dossiers contained personal information including date of birth, description, home address, employment, mobile telephone number, and pictures from Facebook.

[86] An example is the dossier created for Protester B. It states that he "does not have a criminal record. He is currently employed as a [information redacted by the Commission] with [---]. In the last 8 years, he has been associated to 44 PROS occurrences [RCMP police files]. He was charged once for [---] and he is listed as suspect chargeable or subject of complaint in 10 occurrences. He was listed as a complainant and witness in 25 occurrences." It goes on to note that he has been the subject of complaint in numerous occurrences related to various incidents with another person, providing that person's name and date of birth.

[87] The dossier on Protester D includes the following information:

[Protester D] was born in [---]. He has worked as [---]. [Protester D] has lived in
[---] where he is currently writing a biography.

[Protester D's] name surfaced in May 2012 as he became quite vocal as an opponent of shale gas exploration on various Facebook groups. [Protester D] posted a guide for protesters, also will post various events on Facebook. [Protester D] appears to be the one who created the Shale Gas Alerts' Facebook page and would also be going to the various sites that are posted on this page. [Protester D], along with [six other names] are all Administrators to the SHALE GAS ALERTS IN NEW BRUNSWICK's Facebook page. This page was created to report sightings related to fossil fuel exploration and is a clearing house for reports and/or photographs of water/air testing, surveying, and seismic testing.

[88] It is noted that Protester D is one of the targets whose Facebook communications were successfully targeted in the UC operation referred to above. He is also the subject of one of the check sheets from the stop checks referred to below.

[89] Another example is the dossier prepared on Protester E. Under "Open Source Information," it reads:

[Name] along with [name], [name] and [Protester E] appear to be the most active leaders in the Kent County area. [Protester E] has been reported to be extremely security conscious. Information indicates that she has made claims that her group of contacts communicate through the use of Skype and specific codes are used when dialogue is exchanged. (Source: ---) [Protester E] actively attended the Penobsquis PotashCorp Mining Commission Hearing and encouraged others to attend as well.

[90] Similar dossiers were prepared on approximately 40 other individuals. Many of these people had no criminal record and the only basis for creating the dossiers appeared to be that they had participated in other environment-related protests.

Analysis

[91] Police are not entitled to invade a person's sphere of privacy in a manner that is inconsistent with that person's Charterrights. In R v Plant, Justice Sopinka of the Supreme Court of Canada wrote:

In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual.^{Footnote 24}

[92] In R v Ward, the Ontario Court of Appeal held:

[I]f the state could unilaterally, and without restraint, gather information to identify individuals engaged in public activities of interest to the state, individual freedom and with it meaningful participation in the democratic process would be curtailed. It is hardly surprising that constant unchecked state surveillance of those engaged in public activities is a feature of many dystopian novels.^{Footnote 25}

[93] These cases speak to the invasion of "informational" privacy. The Supreme Court of Canada in R v Tessling adopted as the definition of informational privacy: "[T]he claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others."^{Footnote 26}

[94] If such information gathering is for a legitimate law enforcement purpose, such as a reasonably based suspicion that the individuals may become involved in criminal activity, it may be acceptable. Otherwise, applying the words of the Ontario Court of Appeal in Ward, police may be "unilaterally, and without restraint, [gathering] information to identify individuals engaged in public activities of interest to the state." The practice of researching and assembling personal biographical information on individuals exercising their constitutional rights of peaceful assembly and freedom of speech that happen to be of interest to the state can cross the line and be considered an intrusion on their reasonable expectation of privacy.

[95] It is also noted, however, that the information in question was gathered either from police records or open sources, the former of which are of course under the control of the police, and the latter of which are by definition open to the public. The expectation of privacy with regard to such material is necessarily attenuated.

[96] It is also clear that police have a duty to maintain public safety, and intelligence gathering is one aspect of their role in doing so. Even absent indications of criminal activity or a notable threat level, with regard to protests and demonstrations, the RCMP and other police forces are routinely faced with questions as to the amount of disruption a given protest or demonstration may cause, and whether there will be any risk to participants, bystanders, police, and the general public. In answering these questions, the police act not only in a law enforcement capacity but also in an intelligence-gathering capacity.

[97] In the examples described above, it appears that the information about Protester B, Protester D, and Protester E was gleaned either from police records or open sources. There is necessarily a reduced expectation of privacy with regard to such information. There was also a legitimate law enforcement purpose of conducting a risk assessment with regard to protest activity. 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.

[98] As described above, however, the gathering of such information by police must be done within reasonable bounds. The Commission highlights what appeared to be a dearth of RCMP policy guidance in this area. For example, at the time of the anti-shale gas protests, it appears that RCMP policy did not provide clear guidance as to what kind of information from social media or other open sources could be collected, how it could be used, and under what circumstances it would be retained, particularly in situations where no criminal nexus was determined.

[99] The Commission commented extensively on very similar issues in its 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 27} The Commission adopts and reiterates the general findings and recommendations made in that report with regard to open source intelligence gathering and checks on individuals.

[100] Specifically, the Commission finds that 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.

[101] To that end, the Commission recommends 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. The Commission also recommends 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. Finally, the Commission recommends 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.

3. Stop checks

Facts

[102] Although Inspector Warr stated that, to his knowledge, there was no strategy of conducting traffic stops for the purpose of intelligence gathering, the evidence establishes that it did happen. Inspector Michael Payne, the "H" Division Tactical Troop Commander, was deployed to the anti-shale gas protests in October and November 2013. He stated in his interview with the investigators that when his team was positioned at a checkpoint, they were conducting checks of vehicles that approached the checkpoints.

[103] The Commission reviewed a number of check sheets completed on July 27, 2013, as well as videos and photos of stop checks. Whenever there were passengers in the vehicles, they were asked to identify themselves. Photos or video recordings were taken of licence plates, and one video shows pedestrians being required to produce identification. When vehicles were stopped, the first request made by the members was to produce identification. There was no request to produce the usual driver's licence, vehicle registration, and insurance. It is clear from the videos and the information contained in the check sheets that the purpose of the stops was not pursuant to the Motor Vehicle Act provision that allows police to stop vehicles to check on driver sobriety, licence, insurance, and mechanical fitness of the vehicles. In total, the Commission found nine check sheets and twelve videos of stop checks.

Analysis

[104] Although provincial legislation authorizes police to stop vehicles for the above-mentioned reasons, there is no legal authority to require passengers to produce identification. Jurisprudence has held that requiring passengers in stopped vehicles to identify themselves in the absence of lawful justification amounts to a violation of the person's section 8 Charter rights.^{Footnote 28} As far back as 1992, the Supreme Court of Canada held that "[r]andom stop programs must not be turned into a means of conducting either an unfounded general inquisition or an unreasonable search."^{Footnote 29} A lawful traffic stop "does not and cannot constitute a general search warrant for searching every vehicle, driver, and passenger that is pulled over."^{Footnote 30}

[105] Passengers in a vehicle are, of course, at liberty to co-operate with police by answering their questions if they so choose, provided that they have voluntarily given informed consent and understand that they are not required to answer questions. The Supreme Court explained: "It is true that a person who is detained can still consent to answer police questions. However, that consent must be one that is informed and given at a time when the individual is fully aware of his or her rights."^{Footnote 31}

[106] In this case, Pamela Ross described to the Commission how she and others in a car were stopped as they approached the protest site on Airport Road in July 2013 and all were required to produce identification. As another example, video recording 20130705121405 shows an RCMP member with a note pad asking a 16-year-old male, who was a backseat passenger in a vehicle, for identifying information. While writing in her note pad, the member clarifies the spelling of the passenger's name and then asks for his date of birth, which he provides. It is unclear precisely when or where this interaction occurred, but the date stamp of the video recording suggests that it was on July 5, 2013. There appeared to be four other passengers in the vehicle, plus the driver.

[107] Check sheets reviewed by the Commission 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.

[108] It is again noted that there did not appear to be any particularized concern regarding the occupants of the vehicles being stopped. It could be argued that occupants of the vehicles provided information to the RCMP of their own volition; that is to say, with consent. It is far from clear to the Commission, however, that 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, as was the case in the video recording described above. It seems 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.

[109] 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 vehicle. This practice was inconsistent with the Charterrights of the vehicle occupants.

[110] Police have a duty to, among other things, prevent and investigate crime; within limits, they have ancillary powers under common law to carry out those duties. Courts permit police to establish random roadblocks for the purpose of deterring and investigating the serious problem of impaired driving (for example, well-known programs such as the Reduce Impaired Driving Everywhere [R.I.D.E.] program),^{Footnote 32} and they are also permitted to do so in what Justice David M. Paciocco described as "emergency criminal investigation[s]"^{Footnote 33}: for example, the "special dangers . . . of a 9-1-1 gun call," where gun-wielding persons were leaving the parking lot of a club,^{Footnote 34} or the apprehension of "dangerous criminals in fresh flight," where armed bank robbers were fleeing the scene of a crime.^{Footnote 35} Justice Binnie, in his concurring reasons in Clayton, further described potentially acceptable scenarios for emergency roadblocks, including the search for a kidnapped child believed to be in the trunk of a vehicle, or the search for escaped inmates in the immediate aftermath of a prison break.^{Footnote 36}

[111] In this case, although there was a legitimate concern for public safety given the unconfirmed information that had been circulating about weapons, this in itself did not rise to the level of an emergency criminal investigation necessitating a roadblock.

[112] As such, 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 Charterrights of vehicle occupants.

4. Physical searches

Facts

[113] During the blockade of the SWN compound on Route 134, RCMP members routinely searched vehicles and individuals entering the protesters' campsite. Staff Sergeant Vautour explained that this was done for both public and officer safety concerns because of the possibility of firearms being brought in. Chief Superintendent Gallant acknowledged that such searches are not authorized by law, but he indicated that perhaps in this situation members could have had information or observed something that would subjectively justify the searches.

[114] Although a rifle was pointed toward tactical troop members and eventually seized on October 17, 2013, the evidence is clear that, prior to that incident, there was no reliable, confirmed information that any of the protesters were in possession of firearms.

Analysis

[115] The law is, again, well established that police do not have the authority to conduct physical searches in the absence of Charter-compliant legislation or judicial authorization. A warrantless search or seizure is presumptively unreasonable.^{Footnote 37} Exceptions to this rule include the existence of exigent circumstances or an apprehended breach of the peace, which arises from the exercise of police ancillary powers, as discussed below in relation to section 2 of the Charter. Other exceptions can include a search incident to arrest; a "safety search" (i.e. pat-down) incident to investigative detention, if there are reasonable grounds to believe that officer or public safety is at risk; and searches based on consent.

[116] Exigent circumstances have been held to exist where there is an "imminent danger of the loss, removal, destruction or disappearance of the evidence if the search or seizure is delayed."^{Footnote 38} Although there was certainly reason to be concerned about the possibility of firearms and other weapons being brought into the campsite, and there was unconfirmed information to that effect, those circumstances were insufficient to justify a routine search of vehicles and individuals entering the campsite.^{Footnote 39} 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.

[117] For an apprehended breach of the peace to justify stopping and searching individuals or vehicles, it must be imminent and the risk that the breach will occur must be substantial. The mere possibility of some unspecified breach at some unknown point in time will not suffice.^{Footnote 40} The proper process, therefore, would be to apply for a general warrant to authorize such a procedure if sufficient grounds existed.

[118] In certain circumstances, police may entirely close a public roadway; this is often authorized by statute in situations involving, for example, a traffic collision or poor road conditions. They may also do so by virtue of their ancillary common law powers related to their duty to prevent crime and ensure public safety; such circumstances will be discussed below in the "Buffer zones and re-routing of traffic" section.

[119] In this case, the persons in question had not been arrested, nor were they subject to investigative detention. Neither exigent circumstances nor an apprehended breach of the peace existed. As with the requests for identifying information from vehicle passengers discussed above, it could be argued that persons who were stopped and searched gave consent to these searches. It is again difficult for the Commission to conclude, however, that persons gave fully informed and voluntary consent to these searches in the circumstances. Voluntary consent means that the person has a "real choice."^{Footnote 41} It is quite likely that the persons in question felt obligated to submit to the searches if they wished to proceed into the campsite.^{Footnote 42}

[120] As mentioned above, although there was a legitimate concern for public safety given the unconfirmed information that had been circulating about weapons, 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.

E. Freedom of Expression, Association and Peaceful Assembly

[121] The Charter guarantees the following:

2. Everyone has the following fundamental freedoms:

• (a) freedom of conscience and religion;
• (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
• (c) freedom of peaceful assembly; and
• (d) freedom of association

[122] As expressed by the Ontario Court of Appeal, "the right to protest government action lies at the very core of the guarantee of freedom of expression."^{Footnote 43}

Facts

[123] Although the Tactical Operational Plan for the policing of the protests described a focus on a measured approach/non-confrontational model "as it applies to the premise that all persons have the right to lawful dissent," several incidents or practices interfered to varying degrees with the protesters' rights to freedom of expression, association, and peaceful assembly.

[124] The practice of stopping and searching vehicles and individuals entering the protest campsite on Route 134 was discussed above, but this practice was also arguably inconsistent with protesters' freedom of expression and assembly.

[125] Other incidents that restricted protesters' peaceful assembly rights occurred in what appears to have been a misinterpretation of the terms of the second injunction, which led to several legally questionable arrests.

[126] As a result of that interpretation, members denied protesters the right to approach any SWN equipment within 20 metres, although the wording of the injunction seemed to indicate that the 20-metre rule applied to the side of the SWN trucks only. Because part of SWN's equipment was installed along the highway, the apparent interpretation was that the protesters were not allowed to stand less than 20 metres from the highway itself. This led to problematic situations, as evidenced in video 20131130_0007, where a protester cannot approach the road to access a protest site and asks the 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?" Video 6397 shows another occurrence of the same rule being applied. Videos 6315 and 7364 document other occurrences of protesters not being allowed to stand within 20 metres of the Vibroseis trucks as provided in the injunction. In video 7364, a protester is arrested for this reason.

1. Arrests pursuant to November 22, 2013, injunction

[127] On November 29, 2013, Protester Z was observed on Route 11 near Richibucto, New Brunswick, and was reportedly "very close (less than 20 metres) [to] the shale gas testing equipment that was operating." Members told him that he was under arrest for violating the injunction; Protester Z did not comply and instead, ran into the woods, where he was pursued and then arrested for breach of court order and resisting a police officer.

[128] A Crown prosecutor refused to pursue the charges, indicating that there was no information to suggest that Protester Z had breached the injunction, as there was no condition in the order limiting a person's distance from the equipment, but rather, from the trucks only. Moreover, there had not been any interference with the operation of the vehicles by the protester, nor had he caused a nuisance vis-à-vis the access or egress of the work sites. The resisting arrest charge was also not pursued, as Protester Z would likely have had a valid defence given the problematic grounds for the arrest.

[129] Similarly, on November 29, 2013, Protester Y was walking on the side of Route 11 with three other males when he was arrested for breach of court order for being "within the 250 [metre]/20 [metre] zone." The notes of one of the arresting officers read, in part, as follows: "Étant donné que ces cinq (5) individus étaient à moins de 250 mètres et à moins de 20 mètres de la route, la décision fut prise […] de procéder à l'arrestation des 5 individus …" [Translation: Given that these five (5) individuals were within less than 250 metres and less than 20 metres of the highway, the decision was made . . . to proceed with the arrest of these five individuals.] [Emphasis added] Protester Y fled from police and was apprehended after a brief foot pursuit. He was, therefore, also charged with resisting a police officer.

[130] The Crown prosecutor refused to pursue the charges against Protester Y for much the same reasons as in the case of Protester Z. He explained that, in his opinion, none of the conditions in the injunction had been breached by Protester Y, and he did not appear to have been causing a nuisance. The Crown prosecutor did not believe that it was in the public interest to pursue either charge.

Analysis

[131] When evaluating a member's decision to make an arrest, it is important to keep in mind that his or her role is not to determine a suspect's guilt or innocence—members do not act as judge and jury. The fact that an accused is arrested but not convicted, or that charges are not proceeded with, is not determinative of the appropriateness of the arrest. The test at trial is "beyond a reasonable doubt," and for prosecution, it is a "reasonable likelihood of conviction," both of which create a higher threshold than that of reasonable grounds.

[132] Nevertheless, RCMP members must take care to interpret legal provisions (in this case, the terms of an injunction) in a reasonable manner. The relevant section of the injunction, which was imposed by the Court on November 22, 2013, reads as follows:

IT IS HEREBY ORDERED that the Respondents [and other persons] . . . are hereby restrained and enjoined . . . from:

. . .

(b) interfering or attempting to interfere, by force, threat of force, intimidation, coercion, blocking, standing or by any other unlawful means, the operation of the Applicant's vehicles along Route 11 and, without limiting the generality of the foregoing, specifically within 250 metres from the front or back of any of the Applicant's vehicles and within 20 metres of the sides of any of the Applicant's vehicles.

[133] From the available information, it appears that RCMP members made several arrests of protesters without having reasonable grounds, from an objective point of view, to believe they had committed an offence. This was apparently based on a misinterpretation of the conditions of the injunction.

[134] The Commission recommends that the RCMP provide members 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.

2. Buffer zones and re-routing of traffic

[135] Another area of complaint by protesters was the allegedly unnecessary re-routing of traffic away from the protest sites. Ms. Ross recounted that, during protests on Route 126, RCMP members created a detour when nobody was in the road stopping traffic:

There was some people who wanted to come in there, and they said - they were about eight kilometres down the road was the detour to take you around. And they said if you want to go in, you got to walk. And then I'm like, you know, we're bringing stuff in, we're bringing food and water (inaudible) no. You want in, you got to walk. So there was no reason for them not to allow people to go to the 126. There was nothing illegal going on there. … So I drove down to that detour and they were stopping traffic and saying sorry, there's a bunch of people down the road, protesters down the road there, they got the road blocked off so you got to detour.

[136] According to Mr. McQuarrie, there were times when the detours prevented the media from getting to the protest sites. He felt that this affected the protesters' ability to get their message out to the public. Mr. McQuarrie said:

The thing that disturbed me was there was consistently that one where they line up on both sides and then they would get away down the road and for example, they would not let the media in at all. Well, that's our bread and butter when we're trying to communicate that we've got a problem here, you know, and I just don't understand how they could stop someone who wants to go down a public road from going down a public road, but they would consistently do that.

[Y]ou would call the media and say stuff is going to be probably happening here and they would get shut out and you would hear on the news, well, that the police closed the roads and they couldn't get in or they would say demonstrators closed the roads . . . . [T]hey closed the roads, we didn't close the road . . . . When we were out demonstrating, like we had our marshals, yes, traffic did slow down to go around us and what not, but we never closed a road once, we never tried to close a road.

Relevant legal provisions

[137] R v Knowlton^{Footnote 44} is the seminal case on the lawfulness of police action when restricting access to public areas in the context of a public gathering. In that case, the police had cordoned off an area in front of a hotel—including the sidewalk—where a foreign dignitary was to make a short stop. The appellant had indicated to two police officers that he wanted to take pictures and be allowed to proceed along that part of the sidewalk that was in the cordoned off area. Because of his insistence on his right to enter the area, he was warned that he would be arrested if he did. The appellant, however, pushed through the two police officers and was arrested.

[138] The police having interfered with the appellant's right to circulate freely on a public street, the issue in the appeal was police duty and the use of powers associated with this duty. The Court had to determine:

• (i) whether such conduct of the police fell within the general scope of any duty imposed by statute or recognized at common law; and
• (ii) whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty.^{Footnote 45}

[139] Under statute, the municipal police force duties included the preservation of the peace and prevention of crime. The Supreme Court found that the official authorities were not only entitled but duty-bound to take all reasonable measures to prevent a criminal assault of the visiting dignitary, especially in light of the fact that the very same dignitary had been assaulted a few days prior:

According to the principles which, for the preservation of peace and prevention of crime, underlie the provisions of s. 30, amongst others, of the Criminal Code, these official authorities were not only entitled but in duty bound, as peace officers, to prevent a renewal of a like criminal assault on the person of Premier Kosygin during his official visit in Canada. In this respect, they had a specific and binding obligation to take proper and reasonable steps. The restriction of the right of free access of the public to public streets, at the strategic point mentioned above, was one of the steps—not an unusual one—which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid. In my opinion, such conduct of the police was clearly falling within the general scope of the duties imposed upon them.^{Footnote 46} [Emphasis added]

[140] It should be noted, however, that the powers conferred upon the police to execute their duties are not as broad as the duties themselves:

The law imposes broad general duties on the police but it provides them with only limited powers to perform those duties. Police duties and their authority to act in the performance of those duties are not co-extensive. Police conduct is not rendered lawful merely because it assisted in the performance of the duties assigned to the police. Where police conduct interferes with the liberty or freedom of the individual, that conduct will be lawful only if it is authorized by law.^{Footnote 47} [Emphasis added]

[141] In Knowlton, an important fact was that police conduct was responsive to the circumstances known by the police.

[142] In Figueiras v Toronto (Police Service Board),^{Footnote 48} the Ontario Court of Appeal had to determine whether police acted within the scope of their common law power when, during the 2010 G20 Summit in Toronto, they required demonstrators walking down a public street to submit to a search of their bag if they wished to access a protest site. Mr. Figueiras refused to submit to such a search and a police officer denied him the right to proceed further toward the protest site. The group of officers involved in the interaction with Mr. Figueiras had received no instructions to carry out such searches.

[143] The essence of Mr. Figueiras' complaint was that police officers had unlawfully stopped him from travelling down a public street and prevented him from carrying on his peaceful demonstration at a location closer to the summit site.^{Footnote 49}

[144] In the afternoon of the day preceding Mr. Figueiras' interaction with the police, the G20 demonstration had been violent, with some of the protesters engaging in "black bloc" tactics in which they wore balaclavas, ski masks, goggles, and bandanas to conceal their identities while committing unlawful acts before fading into the crowd of peaceful protesters and changing into nondescript clothing.^{Footnote 50}

[145] Since the officers had no statutory authority, whether under the Criminal Code or otherwise, to demand that Mr. Figueiras consent to a search of his bag as a precondition to walking down a public street in the direction of his choosing, the question was whether the officers' actions where authorized under the common law ancillary powers doctrine.

[146] Even without specific statutory authority, police do have the power to restrict access to certain areas that are normally open to the public, but this is not a general power; rather, it is "confined to proper circumstances, such as fires, floods, car crash sites, and the like."^{Footnote 51} It is recognized at law that the police have the power to create buffer zones "for proper purposes in order to carry out their duties."^{Footnote 52}

[147] Where an officer's conduct has led to, at first glance, an interference with a person's liberty, courts apply a two-part test^{Footnote 53} to determine whether the officer's conduct falls within his or her common law ancillary powers and ask:

• (1) Does the police conduct in question fall within the general scope of any duty imposed on the officer by statute or common law?
• (2) If so, in the circumstances of this case, did the execution of the police conduct in question involve a justifiable use of the powers associated with the engaged statutory or common law duty?^{Footnote 54}

[148] The second part of the test requires a balance between the competing interests of the police duty and of the liberty interests at stake. The factors that must be weighed include:

• (1) The importance of the duty to the public good;
• (2) The extent to which it is necessary to interfere with liberty to perform the duty; and
• (3) The degree of interference with liberty. This aspect of the test requires a consideration of whether an invasion of individual rights is necessary in order for the peace officers to perform their duty, and whether such invasion is reasonable in light of the public purposes served by effective control of criminal acts on the one hand and on the other, respect for the liberty and fundamental dignity of individuals.^{Footnote 55}

[149] In Figueiras, the Court concluded that the officers' conduct of stopping Mr. Figueiraswhile walking down a public street and preventing him from carrying on his peaceful demonstration engaged Mr. Figueiras' common law right to move unimpeded on a public highway, as well as his paragraph 2(b) Charter right of freedom of expression. The parties agreed that the officers' conduct met the first part of the test—that is, they were acting in furtherance of the police duty to preserve the peace. Consequently, the Court did not examine this point. On the second part of the test, the Court further found that the purported police power at issue was not grounded in statute or common law.

[150] The Court found that the police conduct at issue was not "temporally, geographically and logistically responsive to the circumstances known by the police."^{Footnote 56} Ultimately, the Court determined that, by stopping Mr. Figueiras and demanding a search, police officers violated his common law right to travel unimpeded on a public highway, and also his Charter right to freedom of expression.

Analysis

[151] In the present case, justification for road closures was said to be a concern for public safety. Chief Superintendent Gallant stated that the RCMP tried to keep roads open as much as possible and pointed out that Route 134 was kept open with one lane through most of the blockade in October. The road had been partially blocked by felled trees.

[152] Generally speaking, the concerns expressed about road closures were not particularized with specific dates; parties explained that the police "did it a lot" or that the RCMP "would consistently do that." This lack of detail presents challenges for the Commission's analysis of the matter. In specific instances, there may have been reasonable justifications for the police to establish a "buffer zone." The reasonableness of such an action would also depend on, among other things, the size of the zone, who was excluded and why, and the duration of the exclusion.

[153] 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 re-routing 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.

[154] That said, one specific allegation of this type was comprehensively examined by the Commission in an individual complaint. A separate report into that matter has been issued and a summary of the issues therein will be presented in this report.

[155] Protester F claimed that Corporal Guy Marquis and other members violated her right of peaceful assembly by improperly denying her access to a protest site on June 5, 2013. The complainant also asserted that she was improperly threatened with arrest for mischief should she approach the site.

[156] Protester F had briefly left the demonstration site and sought to return, when she was stopped by an RCMP member who explained that she could not rejoin the protest, as some of the protesters had begun to impede the work of SWN employees in an unlawful manner, and the member could not be certain that Protester F would not join that illegal activity. Therefore, she would have to remain at a certain distance from the protest site or face the prospect of being arrested.

[157] Viewed in isolation, the restriction of the complainant's ability to rejoin the protest may appear to be unreasonable. However, additional factors led the Commission to the conclusion that the RCMP members' conduct was not unreasonable in the circumstances.

[158] The information gleaned from the video recording and interviews lead to the conclusion that there was no legitimate concern for violence during the events. There is no indication that any breach of the peace^{Footnote 57} was ongoing or imminent in the area. A few protesters were involved in civil disobedience and blocking the road, while all others were complying with police instructions. One man had been arrested shortly prior to this incident and a youth was arrested shortly thereafter.

[159] The complainant was prevented from returning to the site on the basis that she would "add herself to the group." However, as noted, the vast majority of the group was complying with police instructions. In Brown, the Court stated that "[t]he apprehended breach must be imminent and the risk that the breach will occur must be substantial. The mere possibility of some unspecified breach at some unknown point in time will not suffice."^{Footnote 58} The risk that the complainant would move past the group standing on the shoulder of the road to join the three protesters standing in the middle of the road was not readily apparent, and the consequences of such an event were not, in the circumstances, likely to cause harm to anyone or even impede SWN further than what was already occurring (however, as will be described below, it is notable that this in itself constituted the offence of mischief). It does not appear that the complainant was with a large group of protesters seeking entry; the available information suggests that she was accompanied by her children and an adult male.

[160] Moreover, the means chosen to reduce the likelihood of the identified risk materializing must be effective. Here, the means chosen (interfering with any "newcomer's" liberty of circulation) would not necessarily have been effective at preventing the risk of mischief from materializing. There was no way of knowing that the complainant or any other "newcomer" was more likely to stand on the road and refuse to move than the approximately 80 protesters already present on the scene. The test requires a consideration of whether an invasion of individual rights was necessary for the peace officers to perform their duty.

[161] In a narrow sense, it was difficult to conclude that blocking access to the site to "newcomers" was necessary, as described in the case law, to prevent anyone from blocking the road. One method to prevent the road from being blocked was to arrest the protesters who were not complying with police orders; as described above, members were, in fact, doing this when necessary.

[162] But broader questions were also raised. The protest and ceremony had reportedly blocked the roadway—and SWN's work—for over an hour and a half. Should the ceremony have been allowed to be conducted in that location in the first place, given that it was illegally impeding the work of SWN, or was this a reasonable use of the measured approach by the RCMP? After it had been initiated, how long was "too long" for it to be permitted to continue in the circumstances? When some people refused orders to cease, was it reasonable for police to restrict access to the site by other would-be protesters who may or may not be compliant?

[163] On that day, protesters had blocked traffic to a certain extent. Some of them had conducted a peaceful, but lengthy, ceremony in front of SWN vehicles. These actions did not amount to an unlawful assembly. These actions did not amount to a breach of the peace. These actions did, however, amount to mischief,^{Footnote 59} but rather than immediately arrest all the persons who were engaging in these acts, RCMP members showed considerable forbearance in permitting the protests to continue for a lengthy amount of time. Eventually, the decision was made that protesters would have to clear the road. Most did. Some did not. Those people were arrested.

The degree of interference with liberty

[164] When considering the extent of police interference with an individual's liberty, regard must be given to the cumulative impact on all the individual's liberty interests.

[165] In this instance, the complainant's rights to freedom of expression, freedom of assembly, and common law liberty to proceed unhindered down a public street were restricted in the sense that she was not allowed to rejoin the protest in the vicinity of the SWN trucks. During their interaction, Corporal Marquis mentioned an "alternative" that the police provided the complainant. It is unclear what this alternative may have been but, from RCMP records, it appears that protesters were told that they could protest farther down the road.

The balancing exercise

[166] This involves a balancing of competing interests with, on one side of the scale, the state's interest in effective policing, including crime (mischief) prevention. On the other side of the scale is a consideration of the liberty interest of citizens, including all of their civil liberties (common law and Charter rights).^{Footnote 60} The overall impact of police conduct on the complainant's civil liberties must be considered in the balancing exercise.

[167] On the one hand, the liberties at stake were both foundational common law civil liberties and fundamental constitutional freedoms. On the other hand, the RCMP was seeking to prevent a specific and identifiable harm: protesters had impeded the work of SWN employees, and some had refused to comply with police orders, necessitating their arrests. Eventually, the RCMP made the determination that they would not allow any other persons to join this situation. This objective was important. However, the interference with the individual rights at stake was also substantial. This is true potentially in terms of number of interferences—the complainant and possibly other protesters received the same treatment—but mostly in terms of the nature of the infringement, as the complainant was unable to rejoin the protest at that location.

[168] The Commission considered whether an invasion of individual rights was necessary for the peace officers to perform their duty. Boiled down to its essence, in this scenario the RCMP permitted some protesters to engage in peaceful civil disobedience for a considerable length of time (by one estimate, the ceremony in front of the SWN trucks lasted for in excess of one and a half hours). The actions of the protesters caused SWN employees to be impeded from carrying out their job; in fact, operations did not resume at all that day. Taking a measured approach, the RCMP allowed this protest to occur despite the persons involved technically committing mischief.

[169] At a certain point, the RCMP decided that this conduct should not be allowed to continue and the protesters would have to stop impeding access to the public highway or be arrested; this was a reasonable decision in the circumstances. As described in detail above, most protesters complied and some did not. Although the timeline is not exactly clear, Sergeant Mike Landry's report indicates that the protesters "dispersed fairly quickly" after the arrests. It is also noted that, in the RCMP's Daily Update document dated June 6, 2013, it is described that Chief Aaron Sock of the Elsipogtog First Nation released a media statement that day (the day after the incidents in question) "asking that any demonstrations that take place be done in a peaceful and lawful [manner]."

[170] The timing of the complainant being denied access is also significant and, unfortunately, on the available information it cannot be determined conclusively. The contemporaneous video recording of the exchange between the complainant and Corporal Marquis strongly suggests that protesters were still blocking the trucks at that time. Corporal Marquis mentioned this twice and the complainant did not dispute those statements; rather, she said that she was not going to join those people but, instead, would stand 50 feet from the trucks.

[171] The protests were not violent and did not amount to a "tumultuous" assembly, but arrests were made, one forcibly. Although the RCMP were clearly animated by the imperative of stopping people from impeding SWN's work, public safety was also a consideration in prohibiting persons such as the complainant and her children from accessing the site; Corporal Marquis told the Commission's investigators that "[the members] made every effort possible to make sure everything was safe for everybody. That was [their] main concern, was public safety."

[172] Ultimately, was it reasonable for the RCMP to effectively impose a "buffer zone" as a means of carrying out their duty to prevent crime and ensure public safety in this situation? Given that a not insignificant number of protesters had been engaged in mischief (albeit in a peaceful manner and therefore with the acquiescence of the RCMP) for a considerable amount of time, thereby stopping SWN's work, and some refused to comply with police orders, leading to arrests, the Commission cannot conclude that the decision to deny the complainant's ability to rejoin the protest was unreasonable in the circumstances.

[173] In essence, this was a difficult judgment call, made more difficult because it involved restricting the fundamental rights of the complainant and possibly others in her position. The complainant may very well have had every intention of lawfully protesting. The use of the terms "unlawful protest" by some members was inaccurate, as it was not unlawful at all times; many protesters did comply with police orders. That said, viewing the situation in its whole context, a significant number of protesters did engage in mischief, stopping SWN's work for the day, and some disobeyed police orders to cease this unlawful activity. 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.

[174] Nevertheless, the Commission emphasizes that, particularly when policing a public protest, 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.

[175] The Commission determined that the RCMP's conduct in this particular instance was not unreasonable. That said, other instances of blocking public access to roadways, especially when such actions may have directly or indirectly unnecessarily hindered the media's ability to report on the protests, may have been unreasonable. The Commission emphasizes that police may only establish "buffer zones" in accordance with the parameters detailed by the courts in the relevant jurisprudence. Anything outside of these bounds is impermissible in a free and democratic society.

[176] 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.

F. Sensitivity to Indigenous Culture, Ceremonies, and Sacred Items

1. Training/Spirituality Guide

Facts

[177] Although no accurate figures are available, it appears that the majority of the anti-shale gas protesters were Indigenous. The degree of knowledge of, and experience with, Indigenous issues varied significantly among the RCMP members involved in policing the protests.

[178] The RCMP's Native Spirituality Guide is a document intended to "help police officers gain an understanding of sacred ceremonies, practices, and sacred items carried by many Native people across Canada." It discusses topics including the Circle of Life, the Medicine Wheel, the Four Powers, Ceremonies, Elders, Prayers, Pipe, Pipe Ceremonies, Fasting, Sweat Lodges, Feasting, Drums, and Spiritual Artifacts.

[179] The Native Spirituality Guide, which is posted on the RCMP's website, had not been read by many members who were interviewed, and many were not even aware of it. However, some members involved in the ongoing protests—particularly those dealing directly with the protesters and those in the Incident Command structure—had received some specialized training or were themselves Indigenous.

Analysis

[180] When asked whether he felt resources in "J" Division had a really good understanding of Indigenous culture, "top to bottom," Chief Superintendent Gallant, the Criminal Operations Officer for "J" Division, said: "I think it could have been better." However, he pointed to the human resources turnover in the RCMP. His view was that members may get to a level of understanding and then they leave. He did not feel that, as a Criminal Operations Officer, he was equipped with the best tools. He acknowledged that effective training should be a priority given the number of Indigenous communities in the province of New Brunswick and that the lack of comfort in cultural sensitivity in "J" Division personnel led him to reach out to other divisions for resources.

[181] Some of the comments of those directly involved with the protest policing are instructive:

• As indicated above, Constable Denny, one of the Indigenous negotiators, provided Indigenous training to about 60 members around September 26 or 27, 2013. It was a two-hour version of a five-day course given in Halifax.
• Corporal Marshall, who is of Mi'kmaw ancestry and speaks the language, had never seen the RCMP's Native Spirituality Guide, but he helped RCMP members understand the cultural significance of what they were about to enter into with regard to dealing with the First Nations.
• Corporal Girouard, another Indigenous RCMP member, said he was familiar with the RCMP's Native Spirituality Guide. In terms of conversation regarding Mi'kmaw culture and how sacred objects should be treated, he said that the guide was discussed, including how to approach sacred fires.
• Before the protests began, Staff Sergeant Vautour, a non-Indigenous negotiator, attended a session given by Constable Denny. She rated her knowledge of First Nations culture as basic. She said that she did not witness any members being disrespectful towards the First Nations community in any way.

[182] At least three specific instances of alleged mishandling of sacred items were brought to light during the investigation interviews.

Facts

[183] On June 5, 2013, on Route 126, in an incident recorded on video, Protester A was engaged in a drumming ceremony in front of a line of SWN trucks. The video of this incident shows that an officer in a police car with a bull horn announced that anyone who did not move off to the side of the road would be arrested. Protester A continued drumming in the middle of the road. She was accompanied by her daughter and another female. After waiting approximately five minutes, several officers approached the three women and spoke to them. Protester A's daughter and the other woman moved to the side of the road, but Protester A refused. She was arrested holding her drum and an eagle feather staff—both sacred items. As she was brought to the police van, her daughter was able to take the staff but Protester A held on to the drum. At the van, the officer appeared to attempt to take the drum from her, but Protester A resisted and eventually one of the officers recruited Protester A's daughter to take the drum.

[184] On June 9, 2013, during a protest on Route 126 near Birch Ridge, New Brunswick, a female protester was blocking the road and preventing the SWN trucks from continuing their work. The protester had a package of tobacco and made attempts to provide members with a small amount of this tobacco. Once finished offering this, the woman took the tobacco and made a line on the roadway in front of the SWN trucks, then she made a circle in front of the line, got on her knees, and began to pray. A short time later, the protester sat down in the middle of the northbound lane and began to sing. Other protesters approached but they stayed on the shoulder of the road and did not cross the white centre line. There were two or three other women singing and making music with drums. When the SWN trucks approached the location, they had to stop work. The protester was arrested and charged with mischief.

[185] The third incident was described by Mr. McQuarrie, a non-Indigenous protester:

[A] Maliseet gentleman had a pipe and when they were arresting him, they started grabbing for the pipe and you just — the roar from the crowd went up and I thought oh boy, here we go, but somebody in command . . . he hollered, "Don't touch the pipe," and they backed off and they let the guy give the pipe to whoever gave it to him and then away he went.

[186] This incident appears to have been captured in video 6146, which shows a man with a sacred pipe being arrested. During his arrest, someone in the crowd shouts that he is holding a sacred pipe. At 11 minutes 6 seconds, an Indigenous person is seen taking custody of the pipe before the arrested protester is placed in a police vehicle.

[187] An example of how members exercised patience towards Indigenous practices is shown in a video recording found at https://www.youtube.com/watch?v=fQmWYnm-QQk. This video shows a female Indigenous protester who had strapped herself to bundles of SWN equipment, slated for helicopter transport. Five RCMP members arrive at the scene; the protester gives each member ashes and makes them promise to not be violent with her people. The members carefully explain to the woman that they are there to keep the peace and are not protecting SWN. They assure her that they will not harm her or her people. The protester eventually agrees to untie herself from the equipment.

[188] In another video, found at https://www.youtube.com/watch?v=iY-YM5Glv7k/, dated June 6, 2013, an Indigenous woman is shown drumming and praying in front of a line of "thumper" trucks. She is approached by two RCMP members and asked to move. Although the audio is poor, it appears she is explaining to the members that she needs to finish her ceremony. The members stand back and let her continue uninterrupted for approximately six minutes until she finishes. They then allow her to gather her drum and other items and walk with her away from the scene as the trucks begin their operations.

[189] In a video entitled "Elsipogtog – RCMP move in on peaceful protesters 17 October," recorded by a protester on October 17, 2013, Protester G is seen kneeling on the ground at a distance of approximately two or three metres from a police line holding a drum. A woman is kneeling approximately two metres on Protester G's right. She is holding an eagle feather high in the air. As the police line advances she is ordered to move. She does not. She disappears behind the line along with the other woman while the other protesters retreat. The Commission was unable to locate any video evidence documenting the arrest itself. Protester G said in her interview that when she was arrested she stood up, intending to put her drum into her drum bag, as the drum is sacred and it is forbidden for anyone wearing a firearm to touch it. One of the arresting officers, however, attempted to take the drum out of Protester G's hands. Protester G resisted, explaining that the member was not allowed to touch the drum and asking him to let her put it in the bag. The member continued to pull on the drum. Eventually she was able to put the drum in its bag, and it was given to a third party.

Analysis

[190] Freedom of religion under the Charter consists of the freedom to undertake practices and harbour beliefs having a nexus with religion:^{Footnote 61}

. . . Defined broadly, religion typically involves a particular and comprehensive system of faith and worship. Religion also tends to involve the belief in a divine, superhuman or controlling power. In essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual's spiritual faith and integrally linked to one's self-definition and spiritual fulfilment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith.^{Footnote 62}

[191] In the context of a Charter analysis, an individual must demonstrate that "he or she sincerely believes or is sincerely undertaking in order to connect with the divine or as a function of his or her spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials."^{Footnote 63}

[192] This means that the belief must be sincere, but that courts will not engage in an analysis of whether the belief is valid with regard to official religious dogma. Assessment of sincerity is a question of fact, and criteria including the credibility of a person's testimony as well as an analysis of whether the purported belief is consistent with the person's other current religious practices will be assessed.

[193] However, a religious belief does not become absolute because it is sincerely held. Once religious freedom is triggered, a court must then ascertain whether there has been non-trivial or non-insubstantial interference with the exercise of the implicated right so as to constitute an infringement of freedom of religion.^{Footnote 64} Even then, it may be reasonable, in the context of our democratic society, to infringe or curtail that right in certain circumstances. Section 1 of the Charter provides:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

[194] In sum, "no right, including freedom of religion, is absolute."^{Footnote 65} If a right cannot be exercised in harmony with the rights and freedoms of others and the general well‑being of citizens, the infringement to the right may be considered legitimate, and no violation of the right to freedom of religion will have occurred.^{Footnote 66}

[195] In Protester G's case, as the arresting member indicated in his interview, he was animated with security concerns when he elected to pull on Protester G's drum. RCMP members are trained to ensure that no arrested person is allowed to enter a police transport vehicle equipped with something that could be used to inflict injury to themselves or damage the vehicle.

[196] However, as stated by Protester G, this object was of spiritual significance to her and there is no reason for the Commission to conclude that this belief was not sincere. The removal of the sacred object from her did not amount to a trivial curtailment of Protester G's rights but, on the balance of probabilities, it was justified given the context. The arrest was effected in the context of events that would be accurately described as a riot, and given that the drum stick (and, to a lesser extent, the drum) posed a security threat, the attempt to seize the drum would likely have been found legitimate by a court of law, considering all the circumstances, including democratic values, public order, and the general well-being of citizens. Courts have held, in similar contexts, that the right to religious freedom had not been engaged. This is because, as further discussed below, if a religious ceremony is held to express a political view, it may not be exercised as a sincere religious belief and section 2 of the Charter may not be engaged at all. For example, in Colford,^{Footnote 67} the Court held:

I accept the evidence of Harry LaPorte with reference to the spiritual significance of the ceremonial drum, and the religious requirement that it be in the center of that which is going on, and further that once a chant accompanied by the ceremonial drum be [sic] commenced it should be completed without interruption. Without in any manner attempting to derogate from its religious significance in the Maliseet culture, there exists no right or colour of right enabling the Kingsclear band (or anyone else) to carry out religious ceremonies on a public highway. To elect to do so is to elect to breach the law. [Emphasis added]

[197] However, setting aside the Charter question, and as can be readily seen from the turn of events in this case, a reasonable accommodation can often be provided, and was indeed provided in Protester G's case when a third party was allowed to take custody of the sacred items before Protester G was placed in a police transport vehicle.

[198] Video evidence shows that 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 their 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. As Corporal Marshall, himself Indigenous, said: "When you have it on a highway, it's no longer a ceremony, it's a blockade, and you will be arrested."

[199] Staff Sergeant Vautour noted: "They were using [ceremonies and sacred items] as a stalling tactic . . . one day, they blocked the road, said yeah, they're going to open it, they're just going to do some kind of ceremony . . . so we [used the] measured approach . . . Go ahead, do your ceremony. How long is this going to last? Well, it could last four hours or four days. We don't know, the elders will decide."

[200] Many RCMP officers expressed the view that when a sacred object is used with the underlying oblique intention of committing mischief or obstruction, there should be no deference to the sacred character of the object shown by police officers. This reasoning may or may not be legitimate depending on the context and on whether there is an oblique intention, as opposed to a sincerely held belief. For example, over the two and a half weeks following September 29, 2013—the day on which the protesters blocked the entry to the SWN compound by parking a van in front of its entrance—a sacred fire was lit and maintained in the middle of the compound entrance. This sacred fire and the people tending to it were, in addition to the other objects that were placed in front of the entrance to the compound, effectively preventing the SWN vehicles from leaving the compound.

[201] On October 17, 2013, the members who raided the compound had to rapidly secure the area and dismantle the small encampment blocking the entrance, including the sacred fire. This was done for security reasons and, in the Commission's view, it cannot be reasonably argued that the sacred fire had not been placed as a means to accomplish something that, over the course of the month, had clearly become illegal. Given the context, it is reasonable to conclude that the measures taken by the RCMP to secure the area were reasonable in the context.

[202] It is also worth noting that when the circumstances allowed it, the RCMP showed ample sensitivity to Indigenous culture and spirituality. For example, once the area was secured, before dismantling the tepee that had been erected in the Warriors encampment, the RCMP requested the expertise of an elder from the community for the proper ceremonies to be conducted prior to the dismantlement.

2. Protocol for dealing with sacred objects upon arrest

[203] The RCMP's national Operational Manual, chapter 38.9., "Aboriginal Demonstrations or Protests," states that "[t]he RCMP's primary role in any demonstration or protest is to preserve the peace, protect life and property, and enforce the law" and reminds members that the rights of Aboriginal peoples of Canada are recognized in section 35 of the Constitution Act. It requires that members "ensure every enforcement action is measured, incremental and as non-confrontational as possible . . . ." It further provides that an attempt to negotiate the conflict must be made before taking enforcement action. The policy also specifically provides:

4. Supervisor/Detachment Commander

. . .

4.4. Liaise with the divisional Aboriginal Policing Services to determine any cultural or historical dynamics which may factor into the existing situation. Indigenous legal traditions and other mechanisms employed by aboriginal leadership within their tribal grouping or provincial/territorial areas may exist which could assist in these matters.

[204] The policy does not contain other guidance with regard to cultural sensitivity or any practical guidance regarding the handling of sacred objects or interference with spiritual ceremonies in the context of a protest.

[205] Part 19 of the national Operational Manual discusses prisoners and, more specifically, chapter 19.3. is entitled "Guarding of Prisoners and Personal Effects." Section 3.2.2.3. provides:

If a prisoner has items of religious or cultural significance in his/her possession, e.g. an Indian medicine bundle, a prayer book, ensure the items are respectfully handled and retained for safeguarding. [Emphasis added]

[206] There is no guidance as to how a member should proceed to "ensure the items are respectfully handled and retained for safeguarding."

[207] The portion of the Operational Manual entitled "Prisoner Escort" does not provide any guidance on this issue.

[208] As mentioned above, the Native Spirituality Guide discusses topics including the Circle of Life, the Medicine Wheel, the Four Powers, Ceremonies, Elders, Prayers, Pipe, Pipe Ceremonies, Fasting, Sweat Lodges, Feasting, Drums, and Spiritual Artifacts. The guide also contains a section entitled "Treatment of Medicine Bundles by Law Enforcement Officials" in which RCMP officers are encouraged, when conducting a search, to ask the person wearing a medicine bundle to open the bundle themselves, as "the spirituality of the bundle is only violated if it is touched or opened without the carrier's permission." Other than this, the Native Spirituality Guide does not contain any specific guidance in relation to how and when such objects should be seized and handled when a person is arrested.

[209] In his interview with the Commission's investigators, Sergeant Brown shared what appeared to be his personal view regarding how such seizure and handling was to be made:

Right from the beginning, we were – in my mind, if we were going to seize any ceremonial items . . . once it get [sic] to that point, that you know, we had to seize the item, we couldn't – we couldn't let them get in a police car with it, but that we were – we were to inform them of what we were going to do, have them place it in the trunk of the car or in a bag and that – that was the way we would treat, you know, any eagle feathers or drums or, you know, any ceremonial items. [Emphasis added]

[210] Aside from this personal view, 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.

[211] Without question, the handling of sacred items is a complex issue given the competing rights and interests at stake. On the one hand, the RCMP is obligated to ensure the safety of its members as well as members of the public, maintain public order, and respect the Charter rights of protesters. For security reasons, the RCMP cannot allow an arrested person to carry a staff or a drum stick into the police vehicle following an arrest. The situation may, however, present itself differently if the object and context clearly pose no security threat to the officer or to the arrested person. In this regard, throughout the protests, RCMP members displayed sensitivity and flexibility in dealing with sacred objects, as this photograph of a person who is under arrest but nonetheless carrying an eagle feather demonstrates:

[212] In the Commission's view, reflection on the part of the RCMP is required with a view to adopting an official policy providing practical guidance to RCMP members dealing with the seizure and handling of sacred items. This policy should provide practical guidance to enable officers to make prompt and efficient decisions regarding the seizure and handling of sacred items while also remaining flexible enough to refrain from unnecessarily curtailing the arrested person's Charter rights, if and when those rights are likely to be engaged. Members should also remain open to the possibility of providing a reasonable accommodation consistent with relevant human rights legislation.

[213] It is reasonable to conclude that seizing a sacred object and putting it in the trunk of a police vehicle or in a bag, as was suggested by Sergeant Brown, may desacralize or disregard the sacredness of the object, which may not constitute a trivial curtailment of the protester's rights. Yet the safety of the officer and of the public must be ensured. Moreover, although there is nothing to suggest that this occurred in this situation, it should be emphasized that protesters cannot be allowed to use their sacred object as a stalling method to slow their arrest or the processing of prisoners, particularly in a public event such as a massive protest. This would run contrary to the Supreme Court's findings in Amselem, which requires the religious practice to be sincere.

[214] The Commission concludes that the RCMP should take steps to address these issues by developing a procedure for handling sacred items following an arrest, especially in circumstances where large public gatherings are held. 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. For example, the person may be allowed to carry the sacred item to the prisoner transport area, where an elder or other designated person will be responsible for taking custody of the object. This, incidentally, is what happened in Protester G's case but not, however, before the arresting officer tried to forcibly remove the sacred object from her hands.

G. Alleged Bias in Dealing With Indigenous Protesters

Facts

[215] A number of protesters claimed that the RCMP treated the Indigenous protesters more harshly that non-Indigenous protestors. In particular, they perceived that more Indigenous protesters were arrested and charged than were non-Indigenous protesters. According to witnesses, when non-Indigenous persons were arrested, they were released without charges, whereas Indigenous protesters who were arrested were taken into custody, charged, and subjected to restrictive release conditions.

[216] Jason "OK" Augustine, one of the Warriors, claimed that, on June 21, 2013, only Indigenous persons were arrested. He said that there were non-Indigenous protesters there too who were standing with the Indigenous protesters, but the police only arrested the Indigenous people and "pushed the non-Native ones back onto the line."

[217] James Emberger, a non-Indigenous protester, described an incident on Route 126 where a non-Indigenous woman who was sitting in the middle of the road blocking SWN trucks was physically moved by the police to where Mr. Emberger and his wife were at the side of the road, and kept there while Indigenous protesters were arrested. He identified the non-Indigenous woman as Pamela Ross.

[218] Ms. Ross claimed that, on June 21, 2013, when she and a friend were the only non-Indigenous people at the protest site, all the Indigenous protesters were arrested, but she and her friend were not. She added that her friend eventually "had to go out of her way to get arrested." This may have been the same incident that was referred to by Mr. Emberger.

[219] An Indigenous protester, Brian Milliea, alleged that, at one of the protests on Route 126, RCMP members separated Indigenous and non-Indigenous protesters, and then assaulted the Indigenous ones. He said that he observed an Indigenous youth being forced off the road by a SWN vehicle. He complained to the RCMP but Mr. Milliea said that they refused to investigate the complaint. (In fact, the complaint was investigated – RCMP PROS File 2013-741512.) Mr. Milliea believed that the RCMP had two sets of rules in responding to the anti-shale gas protests: one set of rules for non‑Indigenous protesters and another for Indigenous protesters.

[220] Patty Musgrave recounted seeing RCMP members treating non-Indigenous protesters "differently" than Indigenous protesters and arresting proportionally more Indigenous protesters than non-Indigenous protesters. She also alleged that RCMP members treated Indigenous arrestees in a "very rough manner." She did not refer to any specific dates or events.

[221] All RCMP members who were asked to comment on the allegations of differential treatment of Indigenous protesters compared to other protesters denied that there was any such strategy. Chief Superintendent Gallant said that his messaging was quite clear and was probably the other way around—to be more careful when dealing with Indigenous protesters. Inspector Warr adamantly denied that Indigenous protesters were treated differently. He stated that when protesters were arrested, it was because there was no other choice based on what they were doing. There was no strategy. Staff Sergeant Vautour concurred, saying: "Everybody was asked the same thing, whether they're First Nations or Caucasian or whoever they were. Everybody was asked the same thing. Not everybody listened to what was asked of them."

[222] Corporal Anthony Egeilegh, a member of the "J" Division tactical troop, noted that the Indigenous protesters were more frequently arrested because they were the "people up front." There were no instructions issued to him "to go in and get Indigenous persons."

[223] Sergeant Couture agreed that Indigenous persons were arrested more frequently. However, this was reportedly because most of the non-Indigenous protesters stayed in the background, leaving it to Indigenous protesters to get the protesters' point across. Sergeant Couture observed that it appeared to be a tactic to have Indigenous women get arrested "because then it looks bad for the RCMP in the media." Video 10223, recorded on October 17, 2013, shows the tactical troop clearing Route 134 being confronted by a line of Indigenous women protesters.

[224] Similar observations were made by Sergeant Stenger of the CNT. He said that most of the non-Indigenous protesters did not stand on the road; they stood off to the side, on the shoulder. Indigenous protesters more often stood their ground when they were told to move off the road, while the non-Indigenous protesters generally complied with the direction given by RCMP members. It was Sergeant Stenger's impression that many of the Indigenous protesters wanted to be arrested, so they intentionally disregarded members' efforts to negotiate or mediate solutions to avoid conflict. Corporal Marquis made similar comments about some of the Indigenous protesters wanting to get arrested. Sergeant Stenger stated that the RCMP members deployed to the front line of the protests demonstrated tremendous restraint in dealing with the protesters, many of whom were verbally abusive to the police officers.

Analysis

[225] In addition to the differential manner of protesting, several factors may have contributed to the allegations of bias. Some of the non-Indigenous protest groups had undergone training on how to conduct peaceful protests and had "marshals" to organize them. Edna Thompson said: "There was training done, how to behave without violence and we were to listen to the people who kept us in line." She clarified that these were members of her own group, and that "[a]s far as I could see everybody was doing that." On the other hand, Sergeant Dustin Ward, the Commander of the Elsipogtog Detachment, commented that some people with strong beliefs that were in attendance at the protests were willing to get arrested or willing to do things to get media attention. It appears, both from witness interviews and video recordings, that the Indigenous protesters were more steadfast in their dedication to stopping the entire shale gas exploration project than were the non-Indigenous protesters. This was also demonstrated by the Indigenous group setting up camps at the protest sites where they lit sacred fires and held other ceremonies and literally camped out while, as observed by Ms. Ross, most of the non-Indigenous groups went home for the night.

H. RCMP and SWN Resources Canada

Facts

[226] The RCMP did not want to be perceived as acting as security for SWN. Nevertheless, it was necessary to engage with the company to know what plans SWN had—for example, where and when they planned to operate—to plan their own operations. Inspector Warr was the main liaison person. In addition to staying apprised of SWN's intentions, he attempted at times to sway them to certain realities. It was the opinion of Chief Superintendent Gallant that SWN had little understanding of the environment they were working in. He put it in these terms:

[T]hey didn't have an appreciation of the history around First Nations protests in this country and the idea that the police wouldn't immediately respond to protests that are maybe on the edge of peaceful protest and more towards activism.

[T]heir expectation was that this shouldn't be happening, that the police force's jurisdiction should be handling it, and handling it in their mind meant, you know, clearing the path so they could do their work.

We tried to educate them. We talked to them about what the measured approach is, we talked about the history of conflict in the province of New Brunswick and in Canada, the history around First Nations, you know. So we tried to educate them to the degree we could and that that's not how we do business here. And you know, that's not what they can expect and they should invest more up front in terms of consultation and paving the way.

[227] Staff Sergeant Collin and Ms. Levi-Peters arranged a meeting between SWN representatives and Elsipogtog band members, but it does not appear that it led to any further understanding, given the diametrically opposed positions of the protesters and SWN.

[228] Despite the attempts by the RCMP to balance the rights of all stakeholders, many of the protesters to varying degrees accused the RCMP of acting as SWN's private security. One member of the Warriors made the following statement:

The RCMP had declared war on [our] people . . . . Based on [the fact] that they worked with SWN. They weren't there working with us. They weren't standing and being by us, for us, like they were always. They chose the corporation.

[229] Another Warriors member remarked:

[An RCMP member] admitted that they were hired by SWN and ISL. I know they were working security for SWN.

[230] Other protesters made more measured comments:

And police said every time we're here for public safety. And we said no, you're not. You know, and then when SWN would leave, when the trucks would turn around and leave, the police would turn around and leave. And then so we would say, well, wait a minute, there's still 150 of us here. Shouldn't you be staying here for the public['s] safety? Right? Oh, it's not an - not an issue anymore because SWN is not here. So it just - it was really obvious that the RCMP were being used as, you know, corporate police. They were there for the corporation and not for the people. And that really offended a lot of people.

Analysis

[231] There was no available information reviewed by the Commission to support the first two allegations. The third allegation suffers from an error in reasoning, as the RCMP was present to keep the peace between two opposing groups. Once one group left, there clearly was no longer a need to keep the peace. The protesters were not a danger to themselves.

[232] The Operational Plan for Shale Gas Exploration stated: "The primary police concern is the safety and security of citizens and their property and to ensure that police are prepared to deal with possible interruptions to, and/or increased calls for service due to the Shale Gas Exploration in New Brunswick."

[233] The Commission reviewed SWN's Confidential Security and Emergency Plan. The plan sets out the role and responsibilities of the private security organization hired by SWN. The private security personnel's role with regard to the RCMP does not extend further than liaising and communicating with RCMP members. The plan contains a detailed organizational chart showing that the RCMP is a distinct entity from the private security firm.

[234] Throughout interviews with senior officers involved with policing the protests, there are comments to the effect that they did not want to be "the story." The perception of the RCMP working to facilitate the work of SWN may have arisen because actions taken to enforce the law, including court-ordered injunctions, may have had the effect of allowing SWN to carry out its work, but this was not the underlying intention of the police force. The allegations that the RCMP was acting as "private security" for SWN are unfounded and may have been based on a misunderstanding of the RCMP's role in keeping the peace and enforcing the law.

I. Tactical Operation of October 17, 2013

[235] In the early morning of October 17, 2013, over 200 RCMP members were deployed to clear out the protest camp and blockade of the SWN vehicle compound on Route 134. The decision to do so and the timing of the operation became the subjects of considerable controversy.

[236] This section of the report is divided into three parts. The first part will examine the events leading up to the implementation of the tactical operation and will analyze in detail the background facts, the planning, the events of the night of October 16, 2013, and the decision to implement the operation. The second part will review the operation itself, and the third part will assess the aftermath of the operation, including its effect on relations between the RCMP and the local community.

1. Lead-up

(a) Background

[237] On September 29, 2013, SWN returned to the Rexton area after having suspended their activities in late July. The "thumper" trucks were parked in a compound on the north side of Route 134 across from its junction with Hannay Road. The compound was protected by chain link fencing. It had only one exit for vehicles. Within several hours of the vehicles being parked in the compound, a van belonging to one of the protesters was driven to the gate of the compound and parked there. Attempts to get a tow truck in to remove the van were blocked by protesters. Over the following two and a half weeks, additional items were placed in front of the gate and a sacred fire was lit and maintained, all of which effectively prevented the SWN vehicles from leaving the compound. As well, an encampment was established on private property (apparently with the owner's permission) at the corner of Hannay Road and Route 134, across from the compound, and trees were felled to the east and west of the compound, partially blocking Route 134. Adding to the tension, the Warriors group had returned and attracted a number of youths from the Elsipogtog community who were becoming increasingly aggressive. Eventually, prominent members of this group became the campsite leaders.

[238] SWN had contracted with ISL, the uniform branch of Irving Security, to provide security for its operations. During the blockade, ISL employees were stationed inside the compound to protect the SWN vehicles. At first, these employees were allowed to carry out shift changes, but on the night of October 15–16, 2013, an incident occurred where an ISL employee came out of the compound carrying a baton and encroached on the sacred fire. He was told to get rid of his baton, as individuals are not allowed to carry weapons around the sacred fire. This led to a physical confrontation with one of the Warriors youths and resulted in the ISL employees being confined inside the compound. ISL employees claimed that there were threats directed by the protesters toward the employees, consisting of death threats and threats to rape family members. Video recordings show the employees being taunted by young men in camouflage clothing.

[239] Superintendent Maillet claimed that the front-line RCMP officers were getting similar threats. He recounted: "It's one thing to be called a name. It's one thing to be told I'm going to find where you live and I'm going to rape your wife. That's something else . . . . Social media were giving the names of our members . . . and they were putting out messages that weren't true. And they were putting our officers at risk, and their families." As a result of this, members stopped wearing name tags.

[240] Throughout the blockade, the CNT was continuing to engage with all protesters, but in particular, the Indigenous groups. Inspector Fraser, an Indigenous member with experience negotiating with Indigenous protesters in other provinces, was brought in to assist the CNT. He arrived on October 13, 2013.

(b) Interim injunction

[241] On October 3, SWN brought an application before the New Brunswick Court of Queen's Bench for an ex parte injunction restricting the activities of the protesters. The application was brought against Lorraine Clair, James "Jim" Pictou, Peter "Seven" Bernard, Jason "OK" Augustine, Greg Cook, Wilhelmina "Willi" Nolan, Melanie Elward, Anne Pohl, Rachel Daigle, Suzanne Patles, John Doe, and Jane Doe. The application was granted and the Court order enjoined the respondents from:

• a) interfering or attempting to interfere by force, threat of force, intimidation, coercion, blocking, standing or by any other unlawful means any persons, including the Applicant and its servants, agents, contractors, suppliers and any other representatives of the Applicant, seeking peaceful and lawful passage to and from the Applicant's staging area and storage facility situated at Route 134, Rexton, Kent County, PID 25277062, or the surrounding area within 1 kilometre;
• b) interfering or attempting to interfere by force, threat of force, intimidation, coercion, blocking, standing or by any other unlawful means any persons, including the Applicant and its servants, agents, contractors, suppliers and any other representatives of the Applicant, along Route 134, Highway 11, or any public roadway including any interference with any of the activities related to the seismic testing program, including the vehicles, equipment, or persons engaged in those activities of the Applicant;
• c) hindering, interfering with or obstructing access to the Applicant's staging area and storage facility, with respect to a vehicle of any type;
• d) operating or stationing any vehicle, person or object in, adjacent to or in the vicinity of the Applicant's staging area and storage facility in such a manner as to obstruct or impede traffic;
• e) interfering with or attempting to interfere with any person or property of the Applicant and its servants, agents, contractors, suppliers and any other representatives of the Applicant;
• f) causing a nuisance at or adjacent to or in the vicinity of the Applicant's equipment and its servants, agents, contractors, suppliers and any other representatives of the Applicant including those activities related to the seismic testing program along Route 134, Highway 11, or any public roadway or the staging area and storage facility, in particular, conduct likely to deter persons with peaceful object from approaching, entering or leaving this site and from molesting, threatening, assaulting or intimidating the Applicant and its servants, agents, contractors, suppliers and any other of the Applicant's representatives; and
• g) ordering, aiding, abetting, counselling or encouraging in any manner whatsoever either directly or indirectly any person to commit any of the acts hereby enjoined.

[242] The order also authorized police officers to "arrest, remove, and remand" any persons that they had reasonable grounds to believe were contravening, or had contravened, the injunction. The order was to remain in effect until midnight on October 12, 2013.

[243] The order, however, was not served on the protesters and the matter was again before the court on October 11, 2013. At that time, the Court heard arguments on behalf of SWN for an order directing the RCMP to enforce the order. The Court refused to grant such an order but instead ordered substitutional service by way of publication in a local newspaper, and extended the injunction to October 18, 2013. The proceeding was adjourned to October 18, 2013. At the October 11, 2013, hearing, counsel appeared and advised the Court that he expected to be retained to represent the Elsipogtog Chief and council at the October 18, 2013, hearing.

(c) Tactical Operational Plan

[244] Within days of the blockade, Staff Sergeant Rick Bernard, Tactical Troop Site Commander, and Sergeant Brown, "J" Division Tactical Troop Commander, drew up an initial Tactical Operational Plan to clear the protest site and secure the release of SWN and ISL equipment and personnel. The plan was revised on October 3, 2013, and October 9, 2013, with the final draft dated October 13, 2013. The plan called for the deployment of tactical troops^{Footnote 68} and Emergency Response Teams^{Footnote 69} ("ERTs") from "H" Division (Nova Scotia) (a combined troop with "L" Division – Prince Edward Island), "C" Division (Quebec), and "J" Division, and divided the operation into four phases:

1. Pre-operational
2. Tactical troop deployment
3. Post-operational
4. De-escalation

[245] The plan provided details of briefings, transportation, troop movements, arrest teams, prisoner transport, and the removal of SWN equipment and provision of an escort to a new staging area. The plan noted that 48 hours' notice would be required to mobilize the "C" Division and "H" Division troops.

(d) Factors considered

Facts

[246] Inspector Payne, "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.

[247]Inspector Payne was of the view that the lawful protests had been hijacked by a criminal element that had taken control of the protest encampment.

[248] Superintendent Maillet also indicated:

You could see it was getting to be a hot spot . . . It was a difficult environment for . . . many, many days . . . [Y]ou could see it building . . . The Warrior types, right? They were in camo gear, and wanted to be identified as Warriors . . . And then they were sort of hid[ing] their faces. They were naming different ranks. This is General and so on, trying to give themselves a structure. [sic throughout]

[249] On the days leading up to October 17, 2013, regular teleconferences were chaired by Chief Superintendent Gallant, and attended by members of the Incident Command group, including Superintendent Maillet and other senior officers. In addition, regular intelligence reports were provided to the Incident Commander. Most of the intelligence reports were based on information from sources inside the campsite. The reports indicated that the Warriors group, led by James Pictou, was in charge of the camp and blockade. They also provided ongoing commentary on the atmosphere within the camp. The camp occupants appeared to have anticipated that the police would conduct a raid in an effort to end the blockade. There was information that a trail system through the woods was being used by the Warriors to facilitate entry and smuggle people and weapons. Some information suggested a belief that there were long guns and handguns in the tents and in the woods, hidden, to be used to respond to threats. However, no weapons had been observed directly by the source. The word "war" was used if police were to "attack."

[250] Other reports noted that Mr. Pictou was training young people in self‑defence tactics and how to be a Warrior "in a negative way." He was described as a "very angry and violent man." On October 8, 2013, one person wearing Bacchus (an outlaw biker gang) colours was seen at the campsite. On October 10, 2013, three more such persons were present. They met with some of the Warriors, and one of the protesters said that they were there to help them. On October 11, 2013, it was reported that the Warriors in Kent County were being supported by the Mohawk Warriors and Hells Angels, and that the Warriors and their supporters would not leave the area until the SWN employees leave New Brunswick. On October 14, 2013, it was reported that the Warriors were awaiting the expiration of the injunction for police action and were seeking assistance "from all over." There were, however, still no reliable reports of firearms being at the campsite. By October 15, 2013, the occupants of the campsite were reported as believing the police would raid on October 18, 2013.

[251] During the October 16, 2013, teleconference, the only mention of threats was: "At approximately 16:12 hours, we were informed that two males dressed in camouflage (one linked to last night's incident) walked up to the compound, one had a knife on his belt, would have made some comments that ‘he was going to get it at shift change.'" The notes from the teleconference mention progress being made by the CNT, but also comment that protesters have announced that they will not allow any ISL shift changes "from this point forward." Inspector Warr mentioned an ISL manager's concern for the safety of his staff following the incident with the camouflaged protester with a knife. During the teleconference call, Inspector Don Allen reported that, from the intelligence they had received, it was believed that there were no firearms at the site "at the present time."

[252] Sergeant Brown said that the decision to conduct the operation on October 17, 2013, was actually made on October 15, 2013, at 2:22 p.m. He attended a meeting with the Incident Commander Superintendent Maillet, Staff Sergeant Bernard, Staff Sergeant Robichaud, and Staff Sergeant Jean-Guy Richard, an Incident Commander from "H" Division. Staff Sergeant Robichaud confirmed that the decision to activate the plan was made by Superintendent Maillet at that meeting, and from that point forward, they started to assemble the resources that would be required to carry out the plan.

[253] The possibility that there were firearms in the campsite was commented on by several of the members interviewed by Commission investigators:

• Superintendent Gilles Maillet: We're getting more information, the possibility of firearms. Nothing confirmed, nothing seen, no observation, but the word was there could be firearms on scene.
• Chief Superintendent Wayne Gallant: . . . you have the threats of violence and stuff like that, and the intel that's back, that's in behind that from the 15th, right, which the Commanding Officer has heard too, like talks of firearms coming in and things like that. . . . I can tell you that there was information coming in . . . that was constant throughout of that being a possibility. Nobody actually saw them . . . So you got information of varying degrees of credibility. But from multiple sources, right, that says, yeah, looks like there's firearms coming into the camp.
• Inspector Michael Payne: There were some threats that had been made and there was some mention of firearms. And there had been at a previous work site involving SWN, there had been some equipment damage with Molotov cocktails and that sort of thing.
• Inspector John Warr: Imminent danger. There was intelligence that there were firearms in the camp, that the threat level had increased, that people's lives were being threatened.
• Corporal Jeremy Tomlinson: I had no informant . . . who had seen firearms. A lot of talk of firearms . . . People talking about bringing in guns to having access to guns . . . I had really certain specific information . . . there was specific talk of firearms coming in . . . The latest information I had was that the group had access to firearms somewhere close by, not sure where. [sic throughout]

[254] Staff Sergeant Bernard, however, explained that, as there was no direct information as to the presence of firearms, just prior to the operation commencing, the decision was made for the operation to proceed under the premise that the protesters did not have firearms. At the tactical troop briefing on the morning of October 17, 2013, members were advised that it was believed that the protesters did not have firearms. As a result, the tactical troops were initially deployed in "Level 2" gear (soft hats, combat pants, and jackets).

[255] It should be noted that the RCMP hoped that deployment in Level 2 gear would help avoid confrontation. As Sergeant Brown, Commander of "J" Division tactical troop, put it: "We do not want to go in there in full tac troop gear . . . . From my experience, as soon as protesters see full tactical gear, it amps up the level of anxiety of protesters, and we didn't want to go to that." He described this strategy as being consistent with the measured approach.

Analysis

[256] The 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.

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

(e) Negotiations

Facts

[258] As noted above, the CNT continued negotiating with Indigenous protesters during the blockade. The team had been augmented by adding Corporal Girouard, Constable Denny, and Corporal Marshall, all Indigenous members, and on October 13, 2013, Inspector Fraser was added. The primary focus of the negotiations during the blockade was to negotiate its resolution and allow the SWN vehicles to be removed. After the ISL employees were confined to the compound on October 16, 2013, and subjected to threats, the more immediate concern was their safe release. Throughout the blockade, the CNT members were intentionally kept uninformed about plans for the tactical operation to end the blockade. The rationale for this was said to be enabling them to continue engaging with the protesters without concern for an eventual raid on the campsite and compound.

[259] The campsite and blockade appeared to be controlled by the Warriors group, led by James ("Jim") Pictou, Jason ("OK") Augustine, and Peter ("Seven") Bernard. On the evening of October 16, 2013, Inspector Fraser and Constable Denny attended a meeting with members of the Elsipogtog community at the band office. Speakers indicated that the Warriors did not represent the community, but community members were afraid to tell them to leave. What happened next is described by Inspector Fraser as follows:

[T]here was a big commotion outside, and then there was people that burst in the door. They – there was probably three or four of them, and they were dressed in camo and wouldn't talk or anything, stood by the door. And they – they had a spokesman that was a female. She was the spokesman. She's the one that talked. And her name ended up being Miss Clair. I believe her first name was Annie . . . and I got to talking to Annie there, and you know, and she said well, why are you meeting with these people and not us over there. I says, invite me to your community. Invite me to your camp. And so they actually did. [sic throughout]

[260] Inspector Fraser and Constable Denny then went to the camp and met with Mr. Pictou, the main Warriors spokesperson, and after some negotiation, the members were able to arrange for the ISL employees to be released and replaced with RCMP members to safeguard the compound. After this, Inspector Fraser and Constable Denny gave Mr. Pictou tobacco. Inspector Fraser assured him of his trustworthiness.

Analysis

[261] There were several opinions expressed by those interviewed by the Commission's investigators as to the meaning and significance of the giving of tobacco in Indigenous cultures. According to Constable Denny, it is a show of respect and not a peace offering. Inspector Fraser saw it as both a peace offering and a show of respect. Staff Sergeant Richard believed it to be a peace offering. Mr. Augustine, one of the Warriors present that evening, described the tobacco given by Inspector Fraser as having been wrapped in red cloth. He understood it to mean, "from now on, it is going to be peaceful, no more fighting"; it is for "respect and peace."

[262] The Commission obtained an opinion from Dr. Bonita Lawrence, Mi'kmaw, who is Chair of the Department of Equity Studies and Coordinator of the Indigenous Studies Program at York University. Dr. Lawrence wrote:

When there has been a conflict between people, to offer tobacco wrapped in red cloth is a profound peace-making statement. For the other party to accept the tobacco signifies their willingness to make peace. In some contexts, giving and receiving tobacco signifies the end of conflict. In more complex contexts, giving or receiving tobacco is a means of demonstrating that both parties are now acting absolutely honestly and with the best of intentions, so that productive dialogue between parties can now take place.

[263] As previously described, there were different interpretations as to the specific meaning of the gifting of tobacco in this case.

[264] Neither Inspector Fraser nor Constable Denny had any knowledge of the planned operation, slated to begin the following morning, until the briefing with the Incident Commander at 11:30 p.m. on October 16, 2013. At that time, they pleaded for more time to continue their negotiations, which they believed could result in the peaceful removal of the SWN equipment.

[265] Whether the gifting of tobacco was perceived as a peace offering, a show of respect, or a symbol of honourable intent, 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.

[266] The CNT, primarily Inspector Fraser and Constable Denny, had successfully negotiated the release of the blockaded ISL employees and believed that they could arrange the peaceful release of the SWN vehicles if given more time.

[267] As noted above, the description of the role of the CNT in chapter 3.1. of the Tactical Operations Manual involves hostage-taking situations, which are quite different from the scenario faced by the CNT during the anti-shale gas protests. The Commission recommends that the RCMP consider drafting a policy that is specifically tailored to the CNT's role in the circumstances of public order policing.

2. Decision to implement the Tactical Operational Plan on October 17, 2013

Facts

[268] Sergeant Brown, a co-author of the Tactical Operational Plan, listed the plan's objectives as follows:

• a) Ensure the safety of the protesters and the public, SWN, ISL, and the police.
• b) Clear the protesters out of the encampment.
• c) Re-open Route 134.
• d) Secure SWN equipment from damage.
• e) Secure a safe exit for ISL and SWN staff.
• f) Arrest persons committing illegal acts and also arrest persons who had previously committed offences.

[269] The decision to commence the tactical operation on October 17, 2013, was made by the Incident Commander Superintendent Maillet, although it was approved by both Assistant Commissioner Brown, Commanding Officer of "J" Division, and Chief Superintendent Gallant. According to Superintendent Maillet, the decision was made on the evening of October 16, 2013. However, as already mentioned, the Tactical Operational Plan itself had been finalized on October 13, 2013, as "C" Division and "H" Division tactical troops required 48 hours' notice before deployment.

[270] The rationale for the decision, according to Superintendent Maillet, was primarily the build-up of tension from the Warriors. He described it in the following terms:

Why? Because of where we were at. The tension, the risk of bodily harm. Like I mentioned earlier there, the ISL, being death threats towards the employees; the language of the – the core militant protesters, which were the guys in – dressed in camo, their language; knives, that knife; that bear spray; language they were using against the ISL. ISL felt they had to back out, if not somebody's going to get killed. And I got that from ISL. And at that point, I felt, you know what, we're in the position if we don't act, something is going to happen. Right? So you could see that – you see that building. Like, you could really see it building. So I said we got to do something here. [sic throughout]

[271] Superintendent Maillet acknowledged that Inspector Fraser and Constable Denny pleaded with him for more time when they found out about the operation at the 11:30 p.m. briefing on October 16, 2013. This was after they had negotiated the release of the ISL employees and the gifting of tobacco earlier in the evening. They felt that they were close to a peaceful resolution leading to the lifting of the blockade, but Superintendent Maillet would not budge. He felt that the RCMP members who replaced the ISL workers were also at risk, even though they were armed. He said that he could not leave them there "for days and days. Because something could have happened. That's why we took action that day . . . . The threat, even if you're armed, is still a threat. You get into a gun fight, somebody's going to get killed."

[272] Chief Superintendent Gallant recalled that the injunction was a factor in the decision, but he said that "the straw that broke the camel's back" was the necessity to get the ISL workers out of the compound. That objective had, however, already been accomplished through negotiation.

Analysis

[273] Based on its thorough review of the available information, the Commission is of the view that 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, but it would have been prudent to allow more time for negotiations and a review of the injunction in court before proceeding with the operation.

[274] 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, the maintenance of which could reasonably be construed as constituting the offence of mischief and being in violation of the terms of the injunction. 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.

[275] With regard to the possibility of weapons at the protest site, in a section entitled "Officer Safety Hazards," the Tactical Operational Plan stated as follows:

There is . . . information that firearms are readily accessible to certain individuals at the protests site [sic]. Up to this time, there is no confirmed sighting of firearms at the protest site . . . . [W]ill be made aware when and if firearms are seen at the protest site.

[276] Although there had been no confirmed evidence of firearms at the campsite, there was reportedly a significant amount of information to that effect. This information was repeatedly mentioned by members when discussing the rationale for the operation. Chief Superintendent Gallant noted that they were constantly receiving information from "multiple sources" of varying credibility regarding weapons being brought into the camp. Corporal Tomlinson stated that he had "really certain specific information" about weapons, and that "the group had access to firearms somewhere close by, not sure where." This intelligence turned out to be accurate; although the existence of weapons was not confirmed by the RCMP at the time the decision to commence the tactical operation was made, it is nonetheless noted that a rifle was ultimately pointed at members, two other rifles were discovered, Molotov cocktails were thrown during the operation, and other items that appeared to be improvised explosive devices were found.

[277] 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.

[278] Superintendent Maillet put it in the following terms: "All I knew at the time was that the tension, the level of . . . talk from the protesters and militants was to a point where it's unacceptable . . . . I wasn't going to take that anymore. It had to stop. Right? Because we were at a level where somebody's going to get hurt." Assistant Commissioner Brown, Commanding Officer, explained: "I knew in the back of my mind at some point in time making no decision was going to be the wrong decision because things were heating up and getting to a point where even if we didn't do something there was a fear and understanding it was going to get worse."

[279] 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 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, 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.

[280] In the Commission's view, however, it is 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. It is apparent that the mobilization of troops from "C" Division and "H" Division (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. Allowing more time for negotiation, particularly after the CNT's negotiations had already borne fruit, would have been reasonable and desirable in the circumstances.

J. Use of Force and Arrests

[281] Several of the protesters complained of excessive force used by RCMP members in making arrests and generally dealing with protesters. Some submitted individual complaints.

[282] The Commission has reviewed video recordings of numerous arrests that occurred during the spring and summer of 2013. The reviewed videos show that, in general terms, the RCMP members made the arrests in a reasonable manner. The arrests were generally a result of protesters practicing a form of civil disobedience—positioning themselves in the middle of the road to prevent SWN trucks from passing and refusing to move when requested to do so by the RCMP. Some of this took the form of sacred ceremonies conducted in the roadway that the participants insisted on completing before moving. Several of the individuals who were eventually arrested continued passive resistance and had to be physically removed.

[283] The events of October 17, 2013, were far more dynamic and confrontational in nature and thus involved more "hard" arrests. In some instances in the wake of that operation, tensions remained high and other arrests occurred periodically.

[284] The Commission will address several examples of allegations made by the protesters who came forward to be interviewed by the Commission's investigators. As stated above, several protesters have made individual complaints, and those complaints have been examined and assessed. The individual complainants will receive reports containing the Commission's comprehensive analysis and findings in connection with them.

Law and policy with regard to arrest and use of force

[285] Police officers must establish that they have reasonable grounds to believe that an individual has committed a criminal offence prior to arresting that individual. Moreover, the grounds must be justifiable from an objective point of view; a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable grounds for the arrest.^{Footnote 70}

[286] When evaluating a member's decision to make an arrest, it is important to keep in mind that his or her role is not to determine a suspect's guilt or innocence—members do not act as judge and jury. The fact that an accused is arrested but not convicted, or that charges are not proceeded with, is not determinative of the appropriateness of the arrest. The test at trial is "beyond a reasonable doubt," and for prosecution, it is a "reasonable likelihood of conviction," both of which create a higher threshold than that of reasonable grounds.

[287] Section 495 of the Criminal Code provides that a police officer may arrest someone without a warrant if they find the person committing a criminal offence and if the police officer believes on reasonable grounds that the arrest is necessary to prevent the continuation or repetition of the offence, and/or to identify the person.

[288] Section 129 of the Criminal Code states that a person commits obstruction if they "resist or wilfully obstruct a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer." Section 430 of the Criminal Code provides that a person who "obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property" or "obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property" commits mischief. Participating in an unlawful assembly or riot is also a crime.

[289] When carrying out their duties, police officers may be required to use force. However, subsection 25(1) of the Criminal Code restricts the authority to use force as follows:

Every one who is required or authorized by law to do anything in the administration or enforcement of the law . . . (b) as a peace officer or public officer . . . is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

[290] RCMP policy and training supplement section 25 of the Criminal Code by explaining the members' obligations with respect to the use of force. RCMP policy and training is consistent with the requirement that the use of force in any circumstance must be reasonable.

[291] Chapter 18.1. of the RCMP's national Operational Manual, entitled "Arrest," provides that, when an arrest is made, "the Incident Management/Intervention Model [IM/IM] must always be applied in the context of a careful risk assessment."^{Footnote 71} The IM/IM provides that the main objective of any intervention is the safety of law enforcement officers and the public.^{Footnote 72} It acknowledges that although intervention by means of force is sometimes necessary, many occurrences can be resolved through dialogue.

[292] The principles of the RCMP's IM/IM are used to train and guide members based on situational factors to determine whether to use force, and what type and amount of force is necessary in the circumstances. Members are required to assess the risk posed by a subject, followed by a determination of the appropriate level of response, which may include the use of force. The IM/IM conveys concepts of the proportionality between a person's behaviour and the police response when considering all the circumstances.

1. Arrests

(a) Select examples of arrests during the anti-shale gas protests

Facts

Statement of Susan Levi-Peters

[293] Susan Levi-Peters stated that she was concerned that Indigenous women were being arrested by police and placed in prisoner wagons. She viewed the arrests as the women being attacked by police. Ms. Levi-Peters did not identify any incidents by date and no evidence has been found to substantiate this claim.

[294] The Commission's review noted that female protesters tended to be in the forefront of the confrontations with police. It may be that Ms. Levi-Peters was referring to the arrest of Protester A.^{Footnote 73}

Statement of Anne Pohl

[295] Anne Pohl felt that there were too many police officers and that some of them engaged in conduct that was excessive, including the way in which two people were arrested, both of them Indigenous people. An Indigenous woman who was arrested and a young man who was of Indigenous and African-Canadian heritage, were both treated callously. One of them, she said, received an injury. She commented on the number of officers, saying it was outrageous that so many officers were needed for 12 people standing in the middle of the road. She described it as a show of force that was military in nature in a small, rural community where people's livelihoods and their property values are potentially at risk as a result of the fracking. She describes the events of June 21, National Aboriginal Day (now known as National Indigenous Persons Day), as consisting of "massive, violent arrest of Aboriginal people."

[296] The Commission viewed a recording of one forceful arrest from June 21, 2013, which involved a man breaking through police lines and throwing himself under a moving SWN truck. Several RCMP members immediately rushed to grab the man and pull him away and then arrested him. Two other men followed and were also forcibly arrested. In the circumstances, the force used was reasonable.

[297] Ms. Pohl also described the arrest of Protester A on June 5, 2013, as "horrible" and that "for those few who were affected directly that day, it was an awful thing." That arrest will be analyzed below.

Arrest of Protester A on June 5, 2013 and November 14, 2013

[298] On June 5, 2013, on Route 126, in an incident recorded on video, Protester A was engaged in a drumming ceremony in front of a line of SWN trucks. The video of this incident shows that a member in a police vehicle with a megaphone announced that anyone who did not move off to the side of the road would be arrested. Protester A continued drumming in the middle of the road. She was accompanied by her daughter and another female. After waiting approximately five minutes, several members approached the three women and spoke to them. Protester A's daughter and the other woman moved to the side of the road, but Protester A refused. She was arrested holding her drum and an eagle feather staff—both sacred items. As she was brought to the police van, her daughter was able to take the staff but Protester A held on to the drum. At the van, the members attempted to take the drum from her, but Protester A resisted and eventually one of the members recruited Protester A's daughter to take the drum.

[299] It is clear from Protester A's statements to the Commission's investigators that she knew that she was required to step off the road or face arrest if she did not comply. Moreover, the video evidence described above clearly shows that Protester A was warned several times before the members proceeded to arrest her.

[300] The video evidence, the statements of the members, and the explanations of Protester A herself reveal that when she was arrested, Protester A was conducting a spiritual ceremony in front of the Vibroseis trucks. She was warned multiple times and given many opportunities to step off the road before she was arrested. The members therefore had reasonable grounds to conclude that Protester A was committing mischief and, thus, it was reasonable for them to arrest her.

[301] The video recording of Protester A's arrest shows that she initially sat on the ground and then went limp when being carried to a police vehicle, but then appeared to actively resist the members. Her knees were bent at a 90-degree angle and she seemed to be pulling back with all her weight. As she approached the police vehicle, she placed both feet at the entrance to prevent her being placed in the vehicle and forcefully pushed back. One member was struggling with Protester A over the drum while the other two were trying to place her inside the vehicle. A conversation between Protester A and a member ensued. Protester A and the member were both holding onto the drum. The member then turned around and asked for Protester A's daughter, who was brought into the camera's view, still holding the eagle staff. After a lengthy discussion, she took custody of the drum.

[302] Protester A's actions may be placed and considered within the broader context of her engaging in a ceremony and holding items of spiritual significance, but nevertheless, Protester A did resist arrest by struggling with the RCMP members, by pulling herself back, and by bracing herself by placing her feet at the bottom of the police transport vehicle's door to prevent being placed inside it. This incident was video‑recorded. There is no evidence that the members used more force than necessary to conduct the arrest.

[303] Protester A was also arrested on November 14, 2013. In that instance, at least two people witnessed Protester A interfering with SWN's equipment. At least one witness report is on file to that effect. A call to police about her conduct was audible on a video recording reviewed by the Commission. Protester A could be seen on that video recording as well. It is also noted that, when speaking with the Commission's investigators, Protester A admitted to disconnecting a wire in a geophone because that would "stop the whole operation."^{Footnote 74} There were reasonable grounds to believe that she had committed the offence of mischief, and therefore, it was reasonable for members to arrest her for that offence.

[304] In addition to their statements to the Commission, both arresting officers noted in their respective reports that Protester A resisted arrest. One arresting member reported that she resisted by crossing her arms and placing them close to her body. Another arresting member wrote: "The female immediately crossed her arms in front of her chest and was holding her hand as tight as possible close to her body." Both officers stated that they had to bring her to the ground in a controlled manner to conduct the arrest. Moreover, the first arresting member stated that Protester A bit him in the process of attempting to control her arms.

[305] Although she did not admit to resisting arrest, Protester A acknowledged having put her hands underneath herself and biting a member's finger. She provided explanations as to why she engaged in that conduct, but in the moment, members had to respond to the behaviour that they were encountering. Objectively, Protester A's conduct was resistive and assaultive, and this necessitated the use of force by the members.

[306] The second arresting member acknowledged having placed a knee on Protester A's side, but that appeared consistent with the necessary amount of force required to control her given the circumstances.

[307] After having reviewed the extensive record, the Commission found no evidence substantiating the claim that unnecessary or excessive force was used in the arrest.

Statement of James Emberger

[308] Mr. Emberger, a non-Indigenous protester, commented that he observed several protesters who had "made their statement" and put their hands out knowing they would be arrested, being taken down hard to the ground, face first, hitting their face on the pavement, glasses gone astray. He said: "It all seemed very unnecessary as the people were offering no resistance and in fact were trying to help the officers out with the arrest." Mr. Emberger did not identify any of the members and there was no video evidence reviewed by the Commission to support this claim.

Statement of Jason "OK" Augustine

[309] Mr. Augustine, one of the Warriors, claimed that, on National Aboriginal Day, a woman stood up and started to block a car, so about four RCMP officers ran over and "dropped" her and two of them punched her. She was on the ground and full of blood. The members were not identified and therefore could not be interviewed.

[310] There does not appear to be any video of such an event, although there is video where protesters can be heard shouting that a woman just got punched by police officers. This YouTube video is dated July 7, 2013. However, Mr. Augustine references the incident he observed as taking place on Aboriginal Day, which is June 21. It is possible this is the same incident referred to by a complainant who stated an elder had been punched in the face on June 21, 2013.

[311] If that is so, as described above, there is no evidence of excessive force in the video of that arrest. Rather, there is a video recording of a woman running into the police line and colliding with a member; the woman's head appeared to make contact with the member's shoulder as she ran into him. Members' statements confirm that the protester charged the police line. The protester was arrested and shortly thereafter, she was observed to have blood near her mouth.

[312] There is insufficient information to conclusively determine how the female protester sustained an injury to her lip or mouth. The available information suggests, however, that the injury was sustained when the female protester forcefully tried to push through the police line and her face came into contact with a member's shoulder. There is no information available to the Commission indicating that the female protester was punched in the face by a member. The female protester did not file a complaint and it is possible that this allegation arose based on an off‑camera comment made by an unknown person in a video recording of the protest.

[313] The difficulty in assessing the credibility of this allegation is that several protesters claim that forms of excessive force were used by the RCMP, but acknowledge that they did not see it. Their knowledge comes from hearing others describe the incident.

Statement of Peter Bernard

[314] Mr. Bernard, one of the Warriors, said that the reason he joined the protest was because he had seen a video of several elders getting pushed around. An elder was "pushed to the ground and stuck in the mud" by the RCMP.

[315] Again, no members were identified and a review of the video recordings does not assist in identifying the incident. No timeframe is given except that it presumably occurred before the Warriors arrived on the scene. According to RCMP teleconference minutes, that was June 25, 2013. There is video from June 21, 2013, showing protesters running onto the middle of the road and lying down in front of a moving SWN truck. RCMP members responded instantly and pulled them off to the side of the road and forcibly arrested them. Given the actions of the protesters, the arrests did not constitute excessive force. It may well be that the members prevented serious injury to the arrested protesters.

Statement of Miles Howe

[316] Mr. Howe, another non-Indigenous protester, noted that on June 21, 2013, when people stood in front of the trucks, the RCMP "peacfully" arrested those who were standing there and refused to move. There was a line of police and a line of protesters. It was a standoff for an hour before the RCMP acted against the protesters. He said that the trucks started to move away and three or four people broke through the police line. One threw himself under a truck and an elder woman was pushing up against the police because she could not see what had happened to the man who had just thrown himself under a truck. Mr. Howe claimed that the police bloodied her face in the process of arresting her. He did not see them punch the woman in the face but what he did see was a chaotic scene for a moment.

[317] Video 211 appears to capture this event. It shows one male breaking through the police line and diving under a SWN truck that has just started to move. Police rush to arrest him as two more protesters follow him and are also arrested. After this, at 3:02 in the video, a woman wearing a black top and yellow pants can be seen on the side of the road where the police line is talking to an officer. At 3:21, the same woman is on the opposite side of the road being arrested. There is no indication of any injury and the arrest is done peacefully. The reason for the arrest is not clear from the video.

Statement of Pamela Ross

[318] Ms. Ross, a local resident and non-Indigenous protester, said that in the very beginning it was actually fairly civil between the RCMP and the protesting people. There were some familiar RCMP members from small communities in Kent County. Eventually they seemed to remove the local RCMP and in place brought in members from Quebec. The mood changed. They became much more abusive and aggressive. Ms. Ross found the scenes of officers marching in force with the SWN vehicles and carrying rifles with soft rounds disturbing. She commented: "At the end of it, they were militarized . . . they weren't RCMP anymore, they weren't serve and protect."

[319] This complaint essentially calls into question the tactical troop operations. This issue will be addressed later in this report.

Arrest on June 9, 2013

[320] On June 9, 2013, during a protest on Route 126 near Birch Ridge, New Brunswick, a female protester was blocking the road and preventing the SWN trucks from continuing their work. The protester had a package of tobacco and made attempts to provide members with a small amount of this tobacco. Once finished offering this, the woman took the tobacco and made a line on the roadway in front of the SWN trucks, then she made a circle in front of the line, got on her knees, and began to pray. A short time later, the protester sat down in the middle of the northbound lane and began to sing. Other protesters approached but they stayed on the shoulder of the road and did not cross the white centre line. There were two or three other women singing and making music with drums. When the SWN trucks approached the location, they had to stop work. The protester was arrested and charged with mischief. This course of action was reasonable in the circumstances.

Arrests on October 17, 2013

[321] Many arrests were also conducted during the operation on October 17, 2013. The following are examples of arrests that day, in summarized form:

Arrest of Protester B

[322] Protester B was arrested for mischief and was later charged with mischief, uttering threats, and assault. In video 10223, the protesters are confronting the police line and are attempting to physically push through it. Members respond by deploying pepper spray and sock rounds^{Footnote 75} (the sound of which can be heard in the video recording). At 5:08, Protester B is clearly visible and can be heard yelling "Get the rocks!" twice. At 5:39, he forcefully throws a rock toward the police line.

[323] At a different time that day, several protesters wereyelling and taunting the members. Protester B was one of them. He paced from one side of the crowd to the other, exciting the crowd. He postured in front of a member, making hand gestures as if he was loading a firearm and said that it would be like "Full Metal Jacket," referring to a movie about war and violence.

[324] There were reasonable grounds to believe that Protester B had committed, and was committing, various criminal offences, and therefore it was reasonable for members to arrest him.

[325] Force was applied to conduct Protester B's arrest. The arresting member grabbed Protester B's hand and used a technique known as an arm bar to bring him to the ground. The arresting member stated that Protester B initially resisted arrest by trying to pull away when his arm was seized, but he "didn't resist at all" once brought to the ground. The arresting member held Protester B's head by placing an arm around his neck while several members secured him in handcuffs.

[326] In the circumstances, with Protester B having acted in an assaultive, inciting, and threatening manner toward members before his arrest, it was reasonable to conclude that he may present a danger while being arrested. Thus, it was reasonable to apply force to control him during his arrest, and the amount and type of force was not unreasonable in the circumstances. It is also noted that force was employed for a short duration and Protester B did not report any injuries as a result of the arrest.

Arrest of Protester C

[327] The events that unfolded at the encampment as a consequence of enforcing the injunction were violent. Molotov cocktails were thrown. A protester displayed a firearm during the course of the police intervention. It is evident that this portion of the protest qualified as a "riot" under the Criminal Code. The RCMP was, therefore, justified in establishing restricted access zones to prevent members of the public from approaching the area where a riot was in progress.

[328] Upon being alerted by various communications methods, including social media, that the protesters' encampment was being "raided," a number of community members tried to access the protest site for various reasons. In Protester C's case, she reported having done so to provide help in defusing the situation.

[329] However, RCMP members had formed a line and it would have been clear to all observers that they were forbidding members of the public from accessing the area. In addition, the report authored by the arresting member describes that members were telling the crowd to "stay back" and that public access to the area was blocked. According to the member, the scene was "chaotic" and there were people "yelling, screaming and trying to break through the line."

[330] It is apparent from Protester C's interview that she understood that her crossing the police line was forbidden, even though the police line had reportedly momentarily parted. The fact that she started running clearly indicates that she knew the RCMP members did not intend to let her through.

[331] In any event, the RCMP members did not need to ascertain Protester C's true intentions in crossing the line and starting running.

[332] It is reasonable to conclude that the actions of Protester C in crossing the police line and starting to run toward the area that the members plainly intended on blocking access to constituted, at a minimum, the offence of obstruction. This conduct was witnessed by the arresting officer. Accordingly, the Commission finds that there were reasonable grounds to believe that Protester C was committing obstruction, and arresting her without a warrant was necessary to stop her from continuing to commit that offence.

[333] The Commission does not possess sufficient information to determine if Protester C was forced to the ground by a member or if she fell without police intervention. It is clear, however, that she was actively engaged in obstruction by running past the police line during what could accurately be described as a riot, and the arresting member was authorized to use a reasonable amount of force in arresting her.

[334] In addition, it was reasonable for the arresting member to strike Protester C's forearm once to cause her to cease actively resisting by holding on to a lighting apparatus, and to be able to complete the arrest. He does not specifically state that he instructed her to stop resisting before he struck her, although it may be implied that he did so given that he indicated that Protester C "would not let go." In other circumstances, it may have been reasonable to first provide a warning, but the situation was chaotic with many protesters running toward a dangerous area. Moreover, the crowd was becoming more agitated.

[335] It was necessary to use force to complete the arrest of Protester C, and the amount of force used was proportional in the circumstances.

[336] The Commission reviewed extensive video footage of arrests on October 17, 2013. The Commission did not see evidence of the use of excessive force in making arrests. In several cases, the arrested persons were either actively resisting arrest or being uncooperative to the point of having to be picked up and carried to the police vehicles.

[337] Although the Commission could not conduct an in-depth assessment of every arrest made on October 17, 2013, it is satisfied from the available information, particularly the video evidence, that members did not use excessive force in conducting arrests on October 17, 2013.^{Footnote 76}

Arrest of Protester D on December 2, 2013

[338] On December 2, 2013, Protester D was standing in the middle of the road. She refused to move off it despite being asked to do so several times by the police. She stood her ground in front of the members who were advancing to force the protesters to retreat to the shoulder of the road. Considering all the circumstances, there were reasonable grounds to believe that Protester D was committing mischief and obstruction, and that therefore, it was reasonable to arrest her.

[339] The force used to arrest Protester D escalated, for the most part, because of other protesters seizing Protester D's arm and pulling her in an attempt to prevent her arrest. It likely also escalated in part because Protester D shifted her weight backward and screamed "Let go!" when the officers seized her. She asserted that this was because she was scared and did not understand why she was being pulled. This might have been prevented, in the spirit of the IM/IM, by warning her of her impending arrest, but as explained further below, the circumstances did not allow for such a warning.

[340] From the available information, including the video recording, the Commission concludes that, whether because she was taken by surprise or deliberately resisting arrest, Protester D shifted her weight back and screamed "Let go!" At that point, another protester pulled on her arm, and these actions were interpreted as resisting by the arresting member. Protester D was therefore rapidly brought to the ground, at which point an unidentified member tripped on her feet and fell over her.

[341] The Commission finds that, in this situation, a general instruction had been given to all protesters, and possibly to Protester D personally, to move off the roadway. Protester D did not heed this instruction, and when placed under arrest, she shouted, "Let go!" and appeared to shift her weight back, possibly in an effort to resist being held by the member. At this time, a young male protester who had rapidly approached the scene appeared to grab and pull Protester D's arm. Other members intervened and eventually there were at least six persons involved in the interaction. Although Protester D contended that her actions in shifting her weight away from the member were as a result of her being caught by surprise, and not a deliberate attempt to resist arrest, a member must react to the behaviour with which he or she is presented at the time. This action, combined with the young male protester rapidly approaching the scene and grabbing Protester D in an effort to disrupt the arrest, necessitated the use of force in Protester D's arrest. Furthermore, the available information does not suggest that more force than necessary was used.

Statements of RCMP members

[342] Chief Superintendent Gallant, Criminal Operations Officer for "J" Division, pointed out that Forensic Identification Services^{Footnote 77} photographers were assigned to video-record the activities in most situations where arrests occurred. He said:

[W]hat I saw in terms of the arrests seemed to be commensurate with the situation. There was certainly a hard arrest when that rifle was pulled [on October 17, 2013] and that guy's lucky to be alive, I would say, from the restraint that was shown from our Emergency Response Team that day in terms of him and the people that were around him.

And there was a whole bunch of chaos that ensued from that and the arrests and our officers were trying to gain control of the situation and there's no doubt there were people that were probably handled roughly that day, but that was, I would say, commensurate with the situation.

[343] Inspector Payne, Commander of the "H" Division and "L" Division combined tactical troop, claimed that the situation was no different than any other policing situation. Members are trained from day one that when you make a lawful arrest, you use only as much force as is required to take the person safely into custody. He commented: "If certain folks felt that their arrests were hard it was because they weren't obeying or complying with demands to cooperate." Inspector Warr correctly observed that being peaceful can also involve breaking the law. You can peacefully block the highway, but that can constitute the offence of mischief and when protesters refuse to move, they are subject to arrest; if they resist, the officers are justified, under subsection 25(1) of the Criminal Code in using as much force as necessary to conduct the arrests.

[344] Sergeant Brown, "J" Division Tactical Troop Commander, said that the method used to deal with protesters who were passively resistant and blocking the highway or who were obstructing the police was to move the police line around these people, and when they were behind the line they would be arrested. He noted that there were threats made toward members and him in particular and they did not act on them. He also mentioned there were some indecent remarks made about finding members' wives and kids, suggesting they would rape them. He felt that crossed the line: "We let a lot of stuff go. On a normal night they would've been arrested and gone in front of the judge. We did not want to escalate the situation and put everyone in danger."

Analysis

[345] The Commission was not able to review every arrest that took place over the course of the months-long anti-shale gas protests. However, it did review an extensive amount of RCMP records, video recordings, and witness statements documenting numerous arrests. Individual complainants who were arrested and submitted complaints will receive reports with comprehensive analyses of their allegations.

[346] In certain circumstances, arrested persons were not subsequently charged, or they were charged but the charges were not pursued for various reasons. These outcomes do not necessarily negate the lawfulness or reasonableness of the arrests. As explained above, when evaluating a member's decision to make an arrest, it is important to keep in mind that his or her role is not to determine a suspect's guilt or innocence—members do not act as judge and jury. The standard for making an arrest is different than for pursuing a prosecution or determining guilt in a criminal trial.

[347] The available information suggests 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, but this was generally justified given the assaultive, resistive, and inciting conduct of some protesters.

[348] In general terms, and with certain exceptions (arrests conducted pursuant to the November 22, 2013 injunction), the Commission finds that RCMP members had reasonable grounds to believe that persons had committed or were committing various offences including mischief and/or obstruction; that is was, therefore, reasonable to arrest those persons; and that the force used in conducting the arrests was necessary and proportional in the circumstances.

b) Tightness of plastic tie wrap handcuffs

[349] The Commission did, however, identify concerns about the tightness of the plastic tie wrap handcuffs used on protesters, including specifically Protester C and Protester D. This was a common assertion among people who were arrested in the context of the anti-shale gas protests and submitted a formal complaint.

[350] In the case of Protester C, the photographs she submitted show bruises on both wrists. It is difficult for the Commission to determine when or how these bruises were suffered. In her interactions with police on that day, Protester C engaged in a great deal of mostly passive resistance, necessitating a significant amount of physical intervention on the part of RCMP members. Handcuffs are, of course, meant to restrain a person and maintain them in custody, and must be tight enough to do so; when an arrested person resists, particularly to the point of requiring physical intervention by members, the movement of the handcuffs may cause redness and/or bruising.

[351] With regard to Protester C specifically, however, the Commission notes that a member at the scene described that, when a senior member ordered another member to remove her handcuffs, the member had difficulty cutting the tie wrap because it was "too close to [Protester C's] wrist." After one attempt, to avoid injuring her, the member obtained scissors from paramedics and successfully removed the handcuffs from Protester C.

[352] It is reasonable to conclude that handcuffs that were difficult to remove safely were likely overly tight when initially placed on Protester C.

[353] Likewise, with Protester D, the video documenting his arrest shows that a member said "Tight it, tight it! Tight it a little bit more! [sic] It's not tight enough" during the arrest. Contrary to the assertion of Protester D, there is no evidence, however, that this followed a request by Protester D for the restraints to be loosened. Indeed, Protester D was completely silent while being controlled.

[354] Video 5623 also depicts Protester D being rapidly escorted toward the police transport vehicle area. As this is happening, he is seen from the back. It does not seem that one of the members escorting him is tightening the restraints. The Commission did not find any indication that an RCMP member intentionally and maliciously tightened the handcuffs after Protester D asked for them to be loosened.

[355] The Commission notes that in his videotaped statement to the police, dated October 18, 2013, Protester D frequently gestures with his hands to illustrate his views. His left hand does not appear injured or bruised.

[356] The photograph of Protester D with his hands restrained, combined with his statements about the tightness of the cuffs, suggests that the handcuffs placed on Protester D were likely tighter than was necessary to restrain him.

[357] Plastic tie wrap handcuffs were used on Protester C, Protester D, and other arrested persons during the anti-shale gas protests. These are fastened differently than the handcuffs usually used by RCMP members on general duty. The Commission reminds members that, in situations such as public order policingwhen they are required to arrest persons using plastic tie wrap handcuffs, the restraints must only be applied with as much force as is necessary to safely restrain the arrested person.

c) Campsite arrests

[358] Several complainants questioned the arrests conducted during the operation at the Hannay Road campsite, given that, in their view, the protesters at the campsite were ostensibly not committing any criminal offences. The campsite was set up on private property, apparently with the permission of the owner. With the notable exceptions of individuals throwing Molotov cocktails, and the person pointing a rifle at RCMP members (these incidents will be described in greater detail below), no one else appeared to be armed with a weapon, although later in the standoff, one of the younger members of the group was seen brandishing what appears to be a baseball bat. There were many provocative comments and gestures on the part of the Warriors, but none that can be heard in the videos that would necessarily amount to criminal conduct.

[359] To justify an arrest without warrant under section 495 of the Criminal Code, police officers must have reasonable grounds to believe the person arrested has committed an indictable offence. In defining the offence of mischief, section 430 of the Criminal Code prohibits persons from interfering with the lawful use or operation of the property.

[360] As for persons not directly committing an offence, it is well established that mere presence at the scene of a crime is not sufficient to ground liability,^{Footnote 78} but under paragraph 21(1)(b) of the Criminal Code, providing encouragement or assistance to the principal perpetrators is an offence. Significantly, the Ontario Court of Appeal has held that "[t]he strength of numbers may at times be an important source of encouragement."^{Footnote 79}

[361] It is reiterated that, on September 27, 2013, the SWN and ISL staging area was moved to a fenced compound in Rexton. SWN shared its logistical and security plans with the RCMP, and the RCMP voiced concerns about site security to SWN. On September 29, 2013, a group of protesters overran the entrance to the SWN/ISL compound, thus preventing SWN from beginning their work as scheduled. This was the beginning of the blockade of the compound. Warriors members moved to the site and a camp was set up. In a subsequent trial, the court described the protesters as having "blocked access to the compound in which machinery used in exploration was stored, refusing both ingress and egress to the compound," and described that the campsite was "at the intersection of Hannay Road and Route 134 and had either blocked or impeded traffic on that portion of Route 134 between the village of Rexton and Route 11."^{Footnote 80}

[362] As previously described, during the blockade, ISL employees were stationed inside the compound to protect the SWN vehicles. At first, these employees were allowed to carry out shift changes, but on the night of October 15–16, 2013, an incident occurred involving an ISL employee and protesters, leading to a physical confrontation with one of the Warriors youths and resulting in the ISL employees being confined inside the compound. ISL employees claimed that there were threats directed by the protesters toward the employees, consisting of death threats and threats to rape family members. Video recordings show the employees being taunted by young men in camouflage clothing. Negotiations between the RCMP and protesters resulted in the release of the ISL employees, who were replaced in the compound by RCMP members.

[363] Over the 18 days of the blockade, the RCMP had made the following observations:

• Members of the Warriors group were leading the blockade.
• The campsite was set up as a base of operations for those directly involved in maintaining the blockade.
• Others at the campsite were present for the purpose of supporting the blockade.

[364] Given these facts, it is reasonable to conclude that the persons maintaining the blockade were committing mischief under section 430 of the Criminal Code, 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. Importantly, as detailed above, the injunction order 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, arrests of persons at the campsite were reasonable in the circumstances.

d) Arrests of Chief and council members

[365] Shortly after the campsite was cleared and protesters moved to the west, Chief Aaron Sock and members of his council arrived on the scene and requested to be let through the police line to visit the campsite to ensure that no injured persons had been left there. Following discussions with Inspector Fraser and Staff Sergeant Jeff Johnston, Superintendent Maillet, the Incident Commander, approved bringing them through the line to the campsite to show them that everything was under control there and that none of his people had been hurt.

[366] According to Staff Sergeant Johnston, the agreement with Chief Sock was that once they were able to see the campsite and confirm that none of their people were hurt or being held against their will, they would leave and return to the western barricade. However, the Chief and council then took up a position sitting in chairs in front of the SWN compound and stated that they were not going to leave. They stated that they wanted to be arrested. They were reminded that they had made an agreement with the Incident Commander to leave, but they refused to do so.

[367] Before the decision was made to arrest the Chief and council members, several of them used their phones to send photos to the members of the community at the barricade, which caused the crowd to grow and the level of tension to heighten between protesters and the RCMP members. Since the SWN equipment was still in the compound, and given the level of tension at the barricade and their stated wish to be arrested, the decision was made to arrest the Chief and council members for the offence of mischief and to move them away from the compound to a location on Hannay Road until the equipment could be moved out.

[368] While they were being arrested, the group were fully cooperative; however, several of them took photos of themselves being placed in handcuffs and posted them on Facebook or texted them to people. This resulted in a significant further escalation in the level of confrontation and violence between the RCMP members and protesters at the west barricade. Staff Sergeant Johnston described that the situation enraged the crowd, which precipitated the arrests and the extreme violence that followed, including the burning of the police vehicles.

[369] The Chief and council members were not placed in cells after their arrest; they were held in police vehicles on Hannay Road until later in the afternoon, and they were then released. When they were released, Staff Sergeant Johnston was asked to escort them up to the front line at the west end where the police cars had been burned and where the tumultuous clashes had occurred, and then release them. He asked the Chief and council members to speak to some of their people in an effort to calm things down. They agreed to do so.

[370] In a gesture that was consistent with the measured approach, RCMP members accommodated Chief Sock and council members by allowing them to enter the campsite after it had been cleared. It was reasonable for RCMP members to arrest Chief Sock and the council members for the offence of mischief when they subsequently sat down in front of the SWN compound and refused to leave.

2. Use of force

[371] The Commission received numerous complaints of a general nature regarding the RCMP's use of force during the anti-shale gas protests (distinct from complaints regarding the use of force during specific arrests). Complainants, many of whom did not have a direct connection to the events but, rather, witnessed coverage of incidents through the media, asserted among other things that RCMP members used unnecessary and excessive force against protesters during peaceful protests; improperly used firearms to deal with protesters; unnecessarily fired sock rounds at protesters; and improperly deployed Police Service Dogs (PSDs) against protesters.

a) Allegation that unidentified RCMP members used excessive force when dealing with peaceful protesters

Facts

[372] During the course of their intervention on October 17, 2013, RCMP members used a bullhorn to inform the protesters that the injunction was being enforced, ordering protesters to disperse and advising them that they would be arrested should they fail to comply.

[373] When facing protesters who were attempting to gain access to the encampment, the RCMP members formed a line perpendicular to the road and proceeded to advance in a sweeping motion, repeatedly ordering protesters to "move, move, move" while advancing.

[374] Some protesters offered only passive resistance. They kneeled, prayed, or played the drum in front of the police line.

[375] Sergeant Brown, "J" Division Tactical Troop Commander, explained that the method used to deal with protesters who were passively resisting was to move the police line around these people and arrest them once behind the line. The police officers were trained to avoid physical confrontation with protesters in this situation. This resulted in the non-violent arrest of the protesters who engaged in civil disobedience.

[376] As explained above, other protesters reacted violently to the RCMP operation. For example, in his interview, Sergeant Brown explained that, in the early morning hours of October 17, 2013, the incoming RCMP officers were immediately met by Molotov cocktails thrown by the protesters and had to deploy sock rounds to disperse those individuals responsible. Sergeant Audoux, who was in charge of the "J" Division ERT and who ordered the deployment of the sock rounds, confirmed this:

So because it was dark, it was very clear that the Molotov cocktail [sic] were being fired and it also came over the (inaudible). So when I saw that happen, I knew I had a guy with a less lethal [use of force option] there, and knowing that my guys didn't have fire retardant uniforms on because they were wearing camouflage, I gave the direction to Eric Jean, who was armed with the sock round, to take care of the thrower of the Molotov cocktails.

[377] A few minutes later, the "C" Division tactical troop was confronted by a protester with a rifle that was used to threaten the members. At trial, in finding the protester guilty of pointing a firearm, the court found that he took an "aggressive stance" while holding a hunting rifle equipped with a scope at a 45-degree angle with the barrel facing in the direction of four RCMP members.^{Footnote 81} A two-hour standoff between the protesters holding a defensive position in the encampment and the RCMP ensued. One RCMP member testified at trial that, on a couple of occasions, he thought that he was going to have to shoot the person holding the gun, but as the rifle was being held at a 45-degree angle, he did not do so.^{Footnote 82}

[378] Eventually, the rifle was placed inside a van, and RCMP members moved in to arrest the protester. The arresting member described in his report that the protester was lying down on a mattress in the rear of the van, with his right hand on a rifle equipped with a scope. ERT members broke the windows of the van, yelling at the protester to "stand down." The arresting member opened a door and grabbed the protester by the scruff of the neck, pointing his firearm at the protester and removing him from the vehicle. He told the protester that he was under arrest for obstruction and pointing a firearm; the protester resisted and three other members assisted in physically restraining him.

[379] Most of the other participants located in the encampment were also arrested. The protesters resisted and the video recordings of the arrests show what could be described as hard arrests, although in the circumstances where the members were met with considerable resistance, the manner of the arrests, including the use of force, appeared to be justified. RCMP members' notes and interviews, as well as the video evidence, indicate that sock rounds were fired in the context of those arrests.

[380] Following the arrests, three rifles were seized—two were in the trunk of a car and the other was in the back seat of a van parked on Hannay Road and appears to be the one pointed towards the troops earlier. Several items that appeared to be improvised explosive devices were also recovered.

[381] "J" Division tactical troops then proceeded to clear the woods on both sides of Route 134, moving west toward the western checkpoint on Route 134.

[382] While this was going on, the "H" Division (Nova Scotia) tactical team was securing the western checkpoint. Word of the tactical operation had spread and a large number of protesters had gathered on Route 134. Witnesses estimated that about 80 protesters were on the scene. Tactical troops began clearing them by forming a line with ERT members covering from the flanks. As they tried moving forward to the west, they were met with angry protesters. Some protesters attempted to stop the police line's advance by kneeling and praying in front of the members. Eventually, some of the protesters resorted to throwing rocks, water bottles, and other objects at the police. The police responded with pepper spray and sock rounds.

[383] Constable Mathieu Gallienne, who was holding the police line on Route 134, notes:

. . . [F]or approximately an hour a group of females made a line in front of the RCMP members and had their elbows locked with each other. At one point Cst Gallienne heard the male protesters tell the females to get back, that they were taking over. At that point, a group of males charged at the RCMP members. Cst Gallienne observed one male in front of him with a green jacket having his fists closed like he was going to punch Cst Gallienne or any other RCMP officers on the line. Cst Gallienne gave a push to the crowd and took his OC Spray and deployed it on the crowd. This intervention was effective as the protesters moved back. Cst Gallienne was also contaminated from other officers deploying their OC Spray. Cst Gallienne heard the less lethal [use of force option] being deployed as well. RCMP officers then pushed back the protesters further away. Cst Gallienne also had to put his arms and hands in front of his face several times because the protesters were throwing rocks and bottles at the officers on the front line. Cst Gallienne caught a rock that was thrown and was coming right at his face.

[384] At that point, several protesters were seen running towards the police vehicles that were left farther down the road earlier in the morning. Constable Gallienne could see smoke coming from two police vehicles. One of the vehicles exploded.

[385] In video 10223, the protesters are confronting the police line and attempting to push through it. Some protesters are throwing rocks and other projectiles at the police line. The members respond by deploying pepper spray and sock rounds (the sound of which can be heard on the video recording).

Analysis

[386] With regard to the use of physical force such as pushing, striking, or using pepper spray to control the protesters, the Commission conducted an extensive review of the video and documentary evidence pertaining to the events that unfolded on October 17, 2013. The Commission finds that these methods of control were used after the protesters physically tried to break through the police line and were effectively participating in a riot. The Commission concludes that, given the risks posed by the protesters, and reasonable concerns for the safety of RCMP members and the public, the use of physical force including pushing, striking, or deploying pepper spray was necessary in the circumstances and was proportional to the conduct encountered by the members.

b) Allegation that, on October 17, 2013, unidentified RCMP members improperly used firearms when dealing with peaceful protesters

Facts

[387] On October 17, 2013, the RCMP deployed 24 sock rounds.

[388] No live ammunition, other than sock rounds, was deployed on October 17, 2013.

[389] Chapter 17.5. of the national Operational Manual provides that the use of "drag stabilized bean bags (sock rounds)" is authorized to distract individuals who pose a threat to themselves, police officers or the general public. The policy also provides that sock rounds are deployed when other less lethal methods of intervention are unsuccessful or inappropriate.

[390] From its extensive review of the evidence pertaining to the RCMP operation carried out on October 17, 2013, the Commission understands that members pointed firearms (loaded with live ammunition), and pointed and fired firearms loaded with sock round ammunitions at the protesters in the following contexts:

1. During the standoff at Hannay Road;
2. In the process of clearing the woods on both sides of Route 134 (moving west towards the western checkpoint on Route 134); and
3. In the process of clearing Route 134, when members were met by rioting protesters.

[391] The Commission will address each of these instances separately.

The standoff at Hannay Road

[392] The circumstances of this standoff were summarized above.

[393] Photographs taken by the RCMP Forensic Identification Services depict the situation where the troops approached and went to ground. They are depicted lying or crouching in the long grass beside Hannay Road while, as shown in videos, protesters casually walk around on the road making threats and generally being verbally abusive towards the tactical troops and ERT members.

Intersection of Route 134 and Hannay Road, showing the campsite (left) and the SWN compound (centre right)

[394] Several of the camp's occupants described the early morning scene from their perspective. Mr. Augustine explained to the Commission's investigators:

[I stayed overnight and the next morning all] hell broke loose. I walked down . . . I was standing right on the 134 where the pylons are, standing with my flashlight. I then got a text [about] four buses coming down loaded with RCMPs. I turned around and told them, be careful boys, I don't know what's going on . . . I'm getting weird texts.

They were already like that on me. I looked around like that. What gun? I don't got no gun, I got a flashlight. They told me again drop that gun. I didn't know they were pointing the gun at me the first time. . . . I don't got a gun. It's a flashlight. And I went like – I went like that. And when I went like that, my flashlight opened and I seen three RCMPs like that on me already. And that was a nine-millimetre Beretta. I ain't stupid. I know my guns. And when that nine-millimetre Beretta is – it's loaded with a nine-millimetre bullet. And I had no gun. I had a flashlight. And that's when the sun was just starting to rise. And I was – where it was rising, I seen buses. I didn't even – I didn't see the bus because the first time was dark. And when the sun came up, like holy, I just seen RCMPs and – and I looked this way, I see nothing but RCMPs again. Like holy. And then Seven walked up. Seven didn't even see them. What's going on? I think we're being – something's going on, man, look at all those RCMPs. Look over there. Holy! And then – and then he – and then that's when hell broke loose.

. . . He told me to go to the ground . . . They wanted me to go to the ground, but I wasn't going to go to the ground. They had guns on me. I moved back. . . . I moved back to the dirt road. But back – when I moved back to the dirt road, I already seen, I would say, about hundreds of – hundred RCMPs moving into the grass. OK, so I walked back to the dirt road. And I kept on – I started talking to the boys. OK – OK, boys, you guys got to remain peaceful.

[395] During his interview, Mr. Pictou made these comments:

I see all these cops. They're all around us, one in the back. Good morning guys. What are you all doing here this morning? Another one would talk, nobody would say nothing. We'd go in the front. I go to the tents, everybody's gone. There's only 12 of us left, 12 members for 500 cops. Isn't that a little overdoing it?

I go to the cop and tell him, do you see anything going on here? Why don't you come and get the vehicles? I'll go tell Seven. You take the vehicles and we can all go home. He said no, it's too late. When I turned around, I seen somebody grab Jason, rip his shirt off and it all started right then. That's how it all started. . . .

They just came in. I got shot in the back. My shoulder was out to here. Even when I came out I had to go to physio to get my shoulder set back into place. I got jumped by six cops. I see Seven get shot in the leg. I see Aaron get shot in the shoulder. He goes down on the ground. We're all on the ground. They were all on top of Seven, on top of Jason, on top of my son. [sic throughout]

[396] Mr. Howe was a protester who stayed at the camp the night before. This was his account:

I wake up. There's cops screaming, coming through the bush. I'm here, here's the compound. I'm in the woods right beside it. Cops are coming through here. There's about four tents. . . . There's about 20 officers on the north side of Highway 134 with their pistols out.

There's about 35 officers coming through the field heading west with assault rifles, a dog or two. It's very frightening. They're sweeping through this field towards that Warrior encampment. . . .

. . . This sweep comes through the field, drives them out of their tents, drives them onto the dirt road and that's not even enough. They have to come at them from all angles and take them down, shoot them in the legs, tackle me. There's no sense in it unless you want to prove a point, which is to smash them. Everything that happens that morning is begun from that point. [sic throughout]

[397] Staff Sergeant Johnston was called in to assist as a negotiator on the morning of October 17, 2013; however, he did not arrive until after the standoff had commenced. He received the call from Corporal Girouard, another member of the CNT, advising that the police and protesters were engaged in a standoff after the police were confronted with Molotov cocktails and a rifle. When he arrived on site, he was introduced to several members of the Warriors group (including Mr. Pictou, Mr. Augustine, and Stephen Breau) by Corporal Rick Tessier, who had been speaking with them prior to his arrival. He stated that Mr. Augustine was agitated and was yelling at the RCMP members who were crouched down in the ditch for protection. Mr. Augustine was making insults and threats, swearing and yelling. At one point, as can be seen in video 5613, he deliberately put himself in the line of fire, between the protester holding the rifle and the members aiming at the armed protester, yelling at the RCMP members: "Shoot me!"

[398] In video 6763, a female protester is standing on Hannay Road next to three Warriors engaged in a verbal altercation with the members who are lying in the grass aiming at the armed protester. The female begins walking in the field toward the tents, yelling: "This is a camera. This is a camera, it's a camera. Get your gun off me." As she continues walking in the field, she yells: "Well, there's children here too. Hey. This is a phone. Get your guns off me, this is a phone. I don't have a gun, it's a phone." She repeats: "Put your gun down, this is a phone," as she walks through the field and reaches the cluster of tents.

[399] Eventually, the ERT and tactical troops move in on the protesters and arrest most of the main participants. Several sock rounds are fired. The protesters resist and the videos of the arrests show what could be described as hard arrests, although in the circumstances where the members were met with considerable resistance, the manner of the arrests appear to justify the use of force.

Analysis

[400] The process for assessing an incident under the IM/IM includes taking into consideration:

• The situational factors;
• The subject's behaviour;
• The peace officer's perception; and
• Tactical considerations.^{Footnote 83}

[401] As previously explained, chapter 17.5. ("Less Lethal Use of Force") of the RCMP's national Operational Manual states that the sock round is authorized for RCMP operational use to distract individuals who pose a threat to themselves, police officers or the general public. It is deployed when other less lethal methods of intervention are unsuccessful or inappropriate. The policy also specifies that before using the sock round, a member must consider other possible intervention options.

[402] As described above, firearms loaded with sock rounds were pointed (and, in some cases, fired) at protesters during the standoff and in the process of effecting what can be described as "hard arrests" in the context of the standoff. It was clear during the standoff that any less of a dynamic approach by the RCMP would likely have resulted in even more resistance and violence.

[403] 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 finds 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 members encountered.

Clearing of the woods on both sides of Route 134

[404] The "J" Division tactical troop then proceeded to clear the woods on both sides of Route 134, moving west towards the western checkpoint on Route 134.

[405] The Tactical Operational Plan for October 17, 2013, does not contain much detail regarding this sequence of events. It only describes the surveillance measures that were put in place to ensure that no protesters remained in the woods before and during the operation:

5) H.A.S.P. to be on scene performing surveillance at 05:00 hrs on day of operation and relaying current video and thermal imaging, to detect any persons in the woods before and during operation, to Incident Command.

[406] The plan also provided:

From this point forward [following the morning briefing at Bouctouche Post] all Tactical Troop/QRT/PDS/ORT deployments will be at direction of Site Command for Tactical Troop and ERT. All QRTs are able to be re-deployed at the discretion of the Tactical Troop Commander.

The ERT's role

[407] At the time of his interview with the Commission, Corporal François Ducros was a dog handler in "C" Division (Quebec).He explained the ERT's role as a support role "in case it becomes a gun call" or, in other words, providing "lethal over-watch":

Basically the official word now for Tac troop is public order. This was a public order deployment but the ERT team is always deployed as well in a support role in case it becomes a gun call because depending on the level – the public order team, what level of dress they wear, right now they're level two so since they had their side arms but had they had their helmets and shield and all their padding they would not have any side arms. So ERT members are deployed with lethal force in case the public order team is met with lethal force.

. . . With the ERT we're always kind of the same. It's basically securing whether it's a field, a building. Obviously if we're met with lethal threat we will respond with lethal threat but we're always prepared. When the ERT is deployed they have their assault rifles. When you're deployed and especially in a capacity in the woods, you're deployed with your M16 assault rifle which is no different than any other callout. It's not because this was First Nations protests. It's not because – any ERT deployment that's the gear we carry. [Emphasis added]

[408] Sergeant Audoux stated in his interview that on October 17, 2013, the ERT was deployed in support of the tactical troop members to provide lethal over-watch in the event the tactical troops were confronted by armed persons while enforcing the injunction order. ERT members were dressed in their camouflage gear. Tactical troops were dressed in blue uniforms.

[409] The RCMP's national Tactical Operations Manual in force in 2013 describes the role of the ERT as follows:

1. Policy
1.1. The RCMP is committed to resolving potentially violent incidents using an integrated, measured approach response in accordance with the RCMP Incident Management and Intervention Model and the Criminal Code while ensuring the rights of Canadians are respected.
2. Definitions
. . .
2.2 "Assaulter" means an ERT member who had successfully completed the Emergency Response Team course (BM3526).
2.3 "Critical incident" means an event or series of events which by scope and nature, require a specialized and coordinated response.
. . .
2.6. "Emergency Response Team" (ERT) means a group of members comprising assaulters and snipers/observers, specially trained in the use of various tactical procedures and weapons.
. . .
3. General
3.1 the Cr. Ops. Officer/delegate may activate an ERT to provide tactical armed support, under the direction of an Incident Commander, including but not limited to:
. . .
3.1.6 assisting tactical troops. When assisting tactical troops, ERT resources will be deployed by the tactical troop commander, and if possible, an ERT commander should also be deployed.^{Footnote 84} [Emphasis added]

[410] The ERT became responsible for clearing the woods, as the RCMP suspected that a trail system through the woods was being used by the Warriors to facilitate entry into the encampment and smuggle people and weapons. The RCMP members were worried that armed protesters or protesters equipped with explosive devices may be hiding in the woods.

[411] In sum, ERT members were in the woods to provide lethal over-watch to the tactical troops.

[412] The evidence disclosed, including the video evidence, leads to the reasonable conclusion that ERT members engaged in the "clearing" of the woods did encounter protesters. Corporal Ducros stated that ERT members and dog handlers confronted the protesters who entered the woods on October 17, 2013:

Yes, so we were somewhere around here and the protesters were trying to flank us on both sides. Obviously we didn't have enough people. The tac troop members were busy blocking the road so every time First Nations people, the protesters were trying to flank us we would go in the woods with the ERT team and a dog handler. The dog is used as a deterrent to hopefully prevent people from overpowering us from the sides coming in from the flanks or the rear and if need be you could use the dog to protect yourself and use him in a criminal apprehension manner. [Emphasis added]

[413] At 1 hour 56 minutes 12 seconds of video 5623, a protester is standing in the woods (but still visible from the road) facing approximately 10 tactical troop members.The video recording shows that a protester told a member in the woods: "I want that gun off my [expletive] chest." At various points during this encounter, both his hands are visibly empty, although not held in the air. A few minutes later, an RCMP member is heard saying: "Keep your hands up boys, keep your hands empty."

[414] It is possible that a firearm was pointed toward the protester at that point. The Commission does not know the identity of the member who may have pointed the firearm and could not locate his notes. From this recorded exchange, and taking the overall context into consideration (the fact that the ERT was providing lethal over-watch and suspected that the protesters in the woods might be carrying firearms or explosive devices), the Commission concludes that it is more likely than not that a firearm was pointed toward the group of protesters who had entered the woods and that this is the reason why an unidentified member located in the woods stated, "Keep your hands up boys, keep your hands empty." The Commission also concludes that it is more likely than not that when a protester said, "I want that gun off my fucking chest," to an unidentified member located in the woods, this member was pointing a firearm at the protesters.

[415] Considering the above, it is reasonable to conclude that an ERT member pointed a firearm toward protesters who had entered the woods.

[416] As indicated above, the IM/IM provides that the main objective of any intervention is the safety of law enforcement officers and the public.^{Footnote 85} Members are required to assess the risk posed by a subject, followed by a determination of the appropriate level of response, which may include the use of force. The IM/IM conveys concepts of the proportionality between a person's behaviour and the police response when considering all the circumstances. The process for assessing an incident under the IM/IM includes the various factors previously listed above.

[417] In the present situation, the alleged pointing of a firearm occurred when some protesters, ERT members, and a dog handler met in the woods. As described above, there had been a standoff between an armed protester and members earlier that morning. Molotov cocktails had also been thrown at members approaching the encampment by unknown protesters hidden in the woods. In the circumstances, members had reasonable grounds to suspect that other protesters might be armed or might be moving firearms or explosive devices through the woods.

Process of clearing Route 134

[418] As described above, while this was going on, the "H" Division tactical troop was securing the western checkpoint. Word of the tactical operation had spread and a large number of protesters had gathered on Route 134. Witnesses estimated that about 80 protesters were on the scene. Tactical troops began clearing them by forming a line with ERT members covering from the flanks. As they tried moving forward to the west, they were met by protesters. Members formed a line perpendicular to the road and proceeded to advance in a sweeping motion, repeatedly ordering protesters to "Move, move, move," while advancing.

[419] Some protesters offered only passive resistance. They kneeled, prayed or played the drum in front of the police line, while other protesters reacted violently to the RCMP operation. Video 6772 presents a good example of this. In this video recording, the protesters are engaged in a scuffle with the RCMP members holding the line until they are dispersed using oleoresin capsicum (pepper) spray.

[420] Throughout the intervention on Route 134, RCMP members had their firearms drawn at various times, but most often pointed at the ground.

[421] In video 6337, an ERT member (dressed in camouflage clothing) is seen kneeling in front of the police line and pointing a rifle directly at the crowd before returning to his position flanking the police line. The quality of the video recording is poor. A woman is heard yelling: "We don't have weapons, this is all we fucking have, we don't fucking have weapons. Put your gun down." A few seconds later, a woman holding an eagle feather kneels in front of the police line. The woman shooting the video repeats: "Put your gun down!" a few times. The crowd is repeatedly yelling: "Drop the gun," but it is not possible to see if a member is in fact pointing a firearm: the camera is moving laterally along the police line, and no member appears to be pointing a firearm. At this point, all parties become quiet and the woman kneeling on the ground and holding an eagle feather remains immobile.

[422] There is a second video (5624) depicting what appears to be the same incident from a different angle. This video was shot by the RCMP's Forensic Identification Services and the quality of the image is considerably better than in video 6337. At 02:01:55, the police line is advancing. The crowd is agitated and yelling. A protester throws a cup of coffee at the members. The members are seen ducking their heads repeatedly, but it is not possible to discern what is being thrown at them. A sock round is fired and more projectiles are thrown at the police line. At 02:02:17, the police line resumes its advance. The protesters move back. Projectiles, however, continue being thrown at the police line. This goes on for some time. The police line is advancing rapidly. Another sock round is fired. At 02:04:38, the female voice in video 6337 is heard, stating the exact same words. The ERT member observed in video 6337 is then seen reverting to his position flanking the tactical troop. He is wearing camouflage clothing with a soft hat and a scarf is covering part of his face. He is holding a long rifle clearly labelled with an orange fluorescent sticker, indicating that the firearm he is holding is loaded with sock rounds. He puts the rifle down and when turning his body to face the crowd, it becomes apparent that the ERT member is also equipped with another firearm, this one without an orange label. This second firearm is hanging along the member's side while he is holding the firearm bearing the orange label. The crowd is yelling "drop the gun" and appears to be directing this comment at another member who cannot be seen on the camera.

[423] As indicated above, chapter 17.5. of the national Operational Manual, entitled "Less Lethal Use of Force," authorizes the use of sock rounds in certain circumstances. The video evidence confirms 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 deploying pepper spray and sock rounds. The Commission finds that this constituted a reasonable amount of force in the circumstances.

[424] Given the evidence available to it, the Commission concludes that 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.

c) Allegation that, on October 17, 2013, the RCMP improperly deployed police service dogs when dealing with peaceful protesters

[425] From its extensive review of the evidence pertaining to the RCMP operation carried out on October 17, 2013, the Commission understands that police service dog ("PSD") teams, each comprised of a dog handler and a PSD, were deployed in the following contexts:

1. During the standoff at Hannay Road;
2. In the process of clearing the woods on both sides of Route 134 (moving west towards the western checkpoint on Route 134); and
3. In the process of clearing Route 134, when members were met by rioting protesters.

[426] At the time of his interview with the Commission, Corporal Ducros was a dog handler in "C" Division (Quebec). Corporal Ducros explained that dogs were used as a deterrent:

Yes, so we were somewhere around here and the protesters were trying to flank us on both sides. Obviously we didn't have enough people. The Tac troop members were busy blocking the road so every time First Nations people, the protesters were trying to flank us we would go in the woods with the ERT team and a dog handler. The dog is used as a deterrent to hopefully prevent people from overpowering us from the sides coming in from the flanks or the rear and if need be you could use the dog to protect yourself and use him in a criminal apprehension manner. . . . [Emphasis added]

[427] Chapter 33.1. of the national Operational Manual is entitled "Police Service Dogs and Specialty Service Dogs." The policy states that PSDs provide specialized support service, among other things, "in assisting tactical troops and emergency response teams." The policy also provides that 1) PSDs must always be under the control of their handlers; 2) all RCMP PSD handlers are accountable for the actions of their dog; and 3) before deploying a PSD as a method of intervention, the dog handler must ensure that all other reasonable intervention options have been considered, in accordance with the IM/IM.

[428] Chapter 7.E. of the Tactical Operations Manual is entitled "Police Dog Services." It provides that the Senior PSD Team Leader and the Tactical Troop Commander decide on the use of the PSD teams. Each team consists of a dog and its handler, and "may act as a psychological deterrent and be valuable to":

1. Disperse and control unruly demonstrators;
2. Prevent injuries and property damage;
3. Assist behind barricades to support police;

   ...

7. Assist when members are making arrests . . . .

[429] The policy also provides that, when a PSD team is deployed with a tactical troop, it will only be used in a defensive role and that "only under exceptional circumstances are the dogs to be in direct contact with the demonstrators during rallies, demonstrations and riots."

[430] The handler must also complete form C-227B after each deployment, detailing where and how the team was deployed. The Commission found three such reports ("Case Reports") in the materials that were disclosed by the RCMP, but these documents did not relate to the events that unfolded on October 17, 2013.

[431] The Commission also viewed various video recordings pertaining to October 17, 2013, where police dogs are observed.

During the standoff at Hannay Road

[432] The PSDs and dog handlers accompanied the ERT during the standoff. One particular PSD team is seen standing in the field close to the road where some Warriors are located. The PSD is barking and pulling on its leash in an aggressive manner. A PSD team was also present when the members moved in to arrest the protesters holding a defensive position in the encampment. The Commission did not find any evidence indicating that the dogs were used to come into direct contact with a protester.

In the process of clearing the woods on both sides of Route 134 (moving west towards the western checkpoint on Route 134)

[433] As described above, PSD teams were deployed in the woods along with ERT members. Corporal Ducros explained that the dogs were used as a deterrent. The Commission did not find any evidence indicating that the dogs were used to come into direct contact with a protester.

In the process of clearing Route 134, when members were met by rioting protesters

[434] The extensive video evidence reviewed by the Commission indicates that PSD teams were deployed in the context of the clearing of Route 134 but, from what the Commission can glean from the video evidence, at all times remained behind the police line or on its flank, as a deterrent.

[435] The following screenshot taken from video 4770 illustrates the position taken by the PSD teams during the clearing of Route 134: all PSDs and dog handlers remain well behind the police line or at its flank while the tactical troop members confront the protesters:

[436] Another example of this is found in video 6772, where a scuffle breaks out between the crowd and members holding the police line. Pepper spray is deployed and a dog handler approaches the crowd, standing in the grass between the woods and the road. The PSD is barking loudly but never directly interacting with the belligerent protesters. Indeed, at one point there is an illustration of the role described by Corporal Ducros: a male protester, joined shortly thereafter by a female protester, suddenly rushes into the ditch on the "flank" of the police line and begins shouting at a dog handler and an ERT member who is holding a rifle. The dog handler and PSD take a few steps back. A moment later, the members are reinforced by three tactical troop members. The protesters do not breach the police line.

[437] The Commission did not find any evidence of PSDs coming in direct physical contact with the protesters.

[438] Pursuant to chapter 7.E. of the Tactical Operations Manual, entitled "Police Dog Services,"^{Footnote 86} PSD teams may be used as a psychological deterrent to help disperse unruly protesters. PSD teams are to be used in a defensive role. Only under exceptional circumstances are the dogs to be in direct contact with the demonstrators.

[439] In its review of the evidence, the Commission did not find any indication that PSDs were used directly on protesters, as opposed to as a psychological deterrent only. Consequently, the use of PSDs 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.

K. Equipment, Contingency Planning, and the Burning of Police Vehicles

[440] Some complainants alleged that the RCMP failed to provide adequate protective equipment to the members involved in the front‑line enforcement of the injunction order, in the hope that some of the RCMP members would be injured so that protesters would be vilified; intentionally or through negligence, allowed cars to be set ablaze and destroyed; and used armed, non-RCMP members in the enforcement of the injunction order, and/or used RCMP members as agents provocateursto infiltrate the crowd of protesters and to openly provoke violence.

[441] After conducting an extensive review of the materials disclosed to it, as well as having considered the interviews of the senior members responsible for the operation on October 17, 2013, the Commission did not find any indication that RCMP members were "ill-equipped so that some might suffer physical harm which would result in the vilification of protesters."

[442] The Commission notes that, with regard to the possibility of weapons at the protest site, in a section entitled "Officer Safety Hazards," the Tactical Operational Plan stated as follows:

There is . . . information that firearms are readily accessible to certain individuals at the protests site [sic]. Up to this time, there is no confirmed sighting of firearms at the protest site. . . . [W]ill be made aware when and if firearms are seen at the protest site.

[443] The plan also noted:

NOTE: At the discretion of Tactical Troop Commanders, Incident Command and S.O.P's, decisions will be made on how to best deal with any threat or resistance encountered (see Tactical Decision Making Matrix).

[444] Allowing for discretion and flexibility in decision-making is essential in any dynamic operation. That said,although there had been no confirmed evidence of firearms at the campsite, there was reportedly a significant amount of information to that effect. This information was repeatedly mentioned by members when discussing the rationale for the operation. It would, therefore, have been reasonable for the Tactical Operational Plan to have provided for a contingency plan with regard to the possibility of there being firearms and explosives at the campsite.

[445] With regard to the gear to be worn by tactical troop members that day, senior RCMP officers had numerous factors to consider. As described above, tension had been escalating; numerous threats had been made; a blockade had been imposed; and rumours of guns and explosives had been circulating. When embarking on an operation in such circumstances, safety had to be top of mind.

[446] As events unfolded and the situation deteriorated, it became clear that some members would have to be deployed in full riot gear (Level 4). The question arises as to whether the situation would have been better controlled, and fewer delays encountered, had members been wearing Level 4 gear from the beginning of the operation.

[447] Nevertheless, there were compelling reasons for the tactical troops to use Level 2 gear. There was no confirmed intelligence regarding the presence of guns or explosives. Furthermore, having a large contingent of members approach the blockade and encampment in full riot gear—doubtless an intimidating presence—may very well have unnecessarily inflamed an already volatile situation. Indeed, this concern was expressed to the Commission's investigators by Sergeant Brown. In addition, some of the tactical troops were to be approaching the scene by way of the woods; as Staff Sergeant Bernard explained, wearing the bulky Level 4 gear would have made this approach more difficult, and being in Level 2 gear would arguably allow members to be more nimble in their response to threats, being able to use both of their hands, quickly access intervention options, or go to ground and lie flat in the face of a threat.

[448] The Commission finds that, 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 on October 17, 2013.

[449] The deteriorating situation at the western checkpoint has been described above.

[450] As this was transpiring, someone began setting fire to RCMP cars that had been parked to the west of the western checkpoint. Multiple videos of the area show that it was effectively a riot scene at this point.

[451] As further described below, there was no contingency plan for dealing with such a situation and members had to improvise.

[452] The Tactical Operational Plan for October 17, 2013, provided that three unmarked police vehicles were to be staged at the west checkpoint prior to the operation. The plan provided for 24 members to "resource each checkpoint equally." Additionally, the plan included the following measures:

H Division Tactical Troop/J Div QRT1/1 PDS/ORT/J Div EMRT proceed to northbound exit ramp of Exit 53, disembark buses and proceed Westbound on Route 134 through East Checkpoint with task of clearing the Hannay Road site and moving protestors West on Route 134 to a point to be determined by Tactical Troop

• a) H Division Tactical troop will be accompanied by 2 marked police vehicles to be tasked with forming a physical barricade for troop if necessary and at discretion of Tactical Troop Commander.
• b) J Division QRT1/1 PDS remain at East Checkpoint to assist members already at this post.
• c) The ORT/J Div EMRT stages at East Checkpoint to be available to assist C or H/L Tactical troops.

[453] Two unmarked police vehicles were to be positioned to physically block Route 134 at the west checkpoint:

• a) West Checkpoint is moved (along with all members) from current location to intersection of Route 134 and Beatties Street. West/Route 505 (this will provide a route of egress to protesters).
• b) J Division QRT 4 and QRT5/PDS proceed to West Checkpoint to assist members already at this post. Marked police vehicles will be positioned to physically block Route 134.

[454] The plan did not provide that the police vehicles would be left unguarded. However, the sequence of events did not go according to plan.

[455] The Commission reviewed multiple videos depicting the burning police vehicles. No members are seen in the vicinity of the burning vehicles. In video 6327, the police line is comprised of numerous members, standing still, equipped with shields. Six protesters are scattered further down the road in front of the line. When the person recording the scene turns around, more protesters can be seen down the road and farther behind them, with black smoke rising. In sum, it appears that the burning police cars and RCMP members are separated by the protesters.

[456] When questioned about the police vehicles that were burned on October 17, 2013, Constable Jonathan Greer explained that two of the vehicles burned on Route 134 were strategically placed there to restrict civilian vehicle access to the area where the tactical troops were staged. He stated that when the protest turned violent, those police vehicles were set on fire and later pushed off the road by trucks driven by protesters to threaten the police officers to a greater extent:

[457] He explained that, given the turn of events, those police vehicles had to be abandoned at some point:

Constable Jonathan Greer: During our operation. . . . Those cars were abandoned at one point because they – the members that were there became overwhelmed I think [because] of the number of people that were coming through from the west.

[458] Constable Greer also theorized (but did not know for a fact) that the RCMP did not attempt to protect the remaining vehicles once the first ones were set ablaze, because it would have been too dangerous:

[459] Incident Commander Superintendent Maillet described how members were called to reinforce the police line in light of the escalating level of violence displayed by the protesters and how, in the process of providing reinforcement, members ended up parking police vehicles in various areas and leaving them unattended:

[460] Corporal André Royer described a similar scene:

[461] The Commission's investigator asked Staff Sergeant Brian Byrne to lay out the details of the plan to protect the police vehicles inside what he called the "hot zone." Staff Sergeant Byrne explained that things did not go according to plan, and that members had to improvise:

[462] Incident Commander Superintendent Maillet explained that the cars had been used as a physical barricade:

[463] He further explained that, at some point in the day, the RCMP realized the police vehicles were at risk, but that the cars were "stuck" there because the car keys could not be located. Moreover, he implies that trying to move the vehicles would have been too dangerous given the number of protesters and the volatility of the situation:

[464] The statements above reveal that, although the RCMP had anticipated that members of the community may converge toward the protest site during the operation, it had not prepared a contingency plan for that eventuality. Members that were involved in the operation on that day did their best in responding to the ever-evolving situation and provided reinforcement wherever it was needed. As a result, some police vehicles were left unattended, and someone set fire to them.

[465] It was reasonable for the RCMP to have decided to use police vehicles as a "movable" barricade. It was intended for the checkpoint in question to be staffed with what was thought to be an adequate number of members given the available resources. The plans, however, were significantly challenged by the circumstances on the ground.

[466] The operations at the blockade and encampment took much longer than planned and kept a large number of members occupied. As time progressed, the western "flank" was subject to a growing number of angry, belligerent protesters who gathered, largely in response to messages about the operation being disseminated on social media. Resources were redirected in an improvised fashion. Some miscues ensued.

[467] Ultimately, the melee was brought under control without the loss of, or serious injury to, any persons. Once the situation had deteriorated, in the circumstances, it was reasonable for the 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.

[468] That said, the Commission finds 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 on Route 134.

School closure

Facts

[469] The Tactical Operational Plan called for the notification of the two schools in the immediate vicinity of the blockade, with the expectation that they would close prior to the operation commencing. At the last minute, Superintendent Maillet decided to change that plan. The rationale for this change was explained by Superintendent Maillet in his interview with the Commission's investigators:

[If] we informed the school ahead of time that not to open – not to open this morning, what does that mean? Are we – are we putting more people at risk by showing what we're doing? Number one. Number two is that the kids, if they're not at school, where are they going to be? Are they going to be protesting with the parents? Are they going to be on the site? Right? That was another thing that we had to figure out, right? Because then they could all come freely to the site, to the protests, in the woods, and so on, and be more at risk. Right? So that's why a decision was made that they're probably safer in school. When this plan goes into place, we'll make sure that they stay in school . . . But we debated that as a – as a group to see what makes more sense, what's safer for everyone. Right? And at the end I made the – the decision that no, we're not – not going to give him a heads-up. [sic throughout]

[470] However, the Traffic Plan appended to the Tactical Operational Plan closed exit ramps from Route 11 to Route 134 westbound, which resulted in school buses being blocked from getting to the schools, and being stuck on the side of the road for several hours.

Analysis

[471] Superintendent Maillet's 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.

[472] The concurrent 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. It would, therefore, have been prudent for the decision regarding notification to have been made earlier and for the Tactical Operational Plan to have been modified to ensure that children were able to get to school prior to the operation commencing.

L. Alleged Use of Non-members and/or Agents Provocateurs

Facts

[473] Several protesters interviewed by the Commission's investigators suggested that the burning of the RCMP vehicles was done by persons masquerading as protesters, but in fact acting as RCMP agents provocateurs. This theory developed as a result of several factors mentioned by witnesses.

[474] Two protesters interviewed by investigators said that the cars that were set ablaze appeared to have been gutted and were not roadworthy, and were therefore just props. Other protesters observed that the RCMP members who had been guarding the cars all suddenly left and the perpetrators showed up. They were masked and did not appear to be part of any of the regular protest groups. The theory was also promoted through Internet circulation of posters purporting to identify the perpetrator as an RCMP and CIA informant.

[475] However, one protestor told the Commission's investigators that she encountered a female elder from Elsipogtog who was pepper-sprayed, and the elder told her son to "burn the RCMP cars." The protester would not provide the name of the female elder.

[476] Chief Superintendent Gallant, Criminal Operations Officer for "J" Division, was emphatic in his denial of this theory. He said: "For people to even insinuate that we would burn our own cars is beyond my realm of comprehension that there are citizens in this country that would believe the police would do that. . . . No, we certainly didn't burn any of our cars and, no, in terms of actively provoking things, we did not engage in that at all nor would I expect any aspect of our organization would."

Analysis

[477] The question of the use of agents provocateurs was put to the senior members responsible for the October 17, 2013, operation by the Commission's investigators. All denied that agents provocateurs were used on that day or that the RCMP had an active role in fostering this event. Moreover, the Commission conducted an extensive review of the documents pertaining to the October 17, 2013, operation and did not find any evidence substantiating the claim that the RCMP may have contributed to or otherwise permitted the police vehicles being set ablaze.

[478] As mentioned earlier, some complainants alleged that the RCMP used armed, non-RCMP members in the enforcement of the injunction order.

Facts

[479] This belief may have arisen from the fact that some RCMP members wore uniforms that the general public does not often see, as evidenced by the following photographs taken on October 17, 2013:

[480] In some of these photographs, the RCMP logo is clearly visible. In others, it is not. Part 2 of the Tactical Operations Manual is entitled "Emergency Response Team" and chapter 2., entitled "Equipment, Firearms and Training," provides some information regarding ERT equipment. It addresses dress requirements summarily in section 1.5.: "An ERT member must wear the ERT uniform when conducting ERT duties or ERT training." There are no further details regarding the various dress codes in effect.

Analysis

[481] In its review of the materials disclosed by the RCMP, the Commission found no evidence that the RCMP used non-RCMP members in carrying out the October 17, 2013, operation. Among other things, the Commission reviewed:

• The Tactical Operational Plan for October 17, 2013. No non-RCMP individual was involved in the enforcement of the injunction pursuant to the Tactical Operational Plan.
• RCMP policies. Part 2 of the Tactical Operations Manual, entitled "Emergency Response Team," requires that all ERT members successfully complete the applicable RCMP training course (see section 2.2.10.). There are also stringent selection criteria described in section 2.1., notably: "A successful ERT candidate must . . . "[b]e an RCMP RM Volunteer, with a minimum of two years of operational policing experience unless there are exceptional circumstances on a divisional level." [Emphasis added]
• The SWN Confidential Security and Emergency Plan. The plan sets out the role and responsibilities of the private security organization hired by SWN. The private security personnel's role with regard to the RCMP does not extend further than liaising and communicating with RCMP members. The plan contains a detailed organizational chart showing that the RCMP is a distinct entity from the private security firm.

[482] Specifically in relation to the members wearing camouflage gear, those individuals were members of the ERT. As explained by Sergeant Audoux, Tactical Troop Coordinator for the "J" Division ERT, as well as by various other RCMP members, ERT members deployed on October 17, 2013, were wearing camouflage clothing.

[483] The Commission found no evidence that non-RCMP members were used during the operation on October 17, 2013.

M. The Aftermath of October 17, 2013

[484] Prior to the protests, the Elsipogtog RCMP Detachment had established a close relationship with the community. This continued during the protests up to October 17, 2013, primarily because the Detachment members maintained their regular duties and were not involved in the front lines at the protest sites or any of the arrests that were made during the protests. The decision for Detachment members to be kept from the front-line protest policing was approved by District management and the Criminal Operations Officer. After October 17, 2013, things changed.

[485] Corporal Tomlinson, an Indigenous member, had been at the Elsipogtog RCMP Detachment for ten and a half years before being transferred to Montréal. He was brought back during the anti-shale gas protests because of his connections with the Elsipogtog community. Corporal Tomlinson commented that "[a]fter October 17th, we're hearing lots of stories of distrust of the RCMP . . . there was a quick decline of the relationship between the RCMP and the community of Elsi at that point." The night after the raid, the Detachment was fire-bombed. The Detachment was forced to relocate away from the reserve.

[486] Sergeant Ward, the Elsipogtog Detachment Commander, said that after October 17, 2013, it was a "difficult phase obviously with the post-Rexton incident and integrating back in the community and trying to rebuild and repair some of those relationships that – they were damaged." Chief Superintendent Gallant said that the operation "destroy[ed] everything we've built here for years, like products of multiple COs' work and CROPS Officers' work and individual officers' work. You know, you just, one event, you've destroyed all of that now. It's going to take us years to recover from that."

[487] Corporal Yanick Soucy, a member of the "J" Division ERT who was stationed at the Richibucto Detachment, claimed that a relatively small segment of the Elsipogtog community supported the anti-shale gas protests. He asserted that the rest supported the RCMP during the protests. Corporal Soucy described how members of the community brought food—coffee, doughnuts—to the Detachment members. They were not happy, however, about road closures. It is not clear from Corporal Soucy's interview whether the community at large blamed the RCMP or the protesters for the closures. When asked about the mood in the community about shale gas at the time of his interview (November 5, 2015), he responded: "We don't hear about it much anymore."

[488] After the protests, some reconciliation occurred. Negotiations took place between the Detachment Commander, Sergeant Ward, and the Elsipogtog Chief for a gradual return to normal policing. This was approved. Sergeant Ward began holding daily liaison sessions with key members of the community and elders. Corporal Tomlinson described a healing ceremony that took place at the Detachment, conducted by one of the female elders. It was attended by several other elders and most of the Detachment members. After the ceremony, they discussed a number of issues and later they brought in a psychologist and held a round table discussion about the tensions between the Indigenous people and the police. Sergeant Ward described having done Aboriginal Perceptions training. It was a community-wide five-day course, locally hosted with community elders and RCMP members along with Justice Department partners. Finally, a protocol was established to provide for communication and dialogue in future conflict situations with regard to Indigenous matters. The Commission supports and encourages these efforts toward reconciliation.

Dispostion

[489] Having considered the complaint, the Commission hereby submits its Interim Report Following a Public Interest Investigation in accordance with subsection 45.76(1) of the RCMP Act.

Michelaine Lahaie
Chairperson