Executive Summary: CRCC Report Into the RCMP's Response to Anti-shale Gas Protests in Kent County, New Brunswick

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Background

The right to lawful protest is a hallmark of democracy.

The Civilian Review and Complaints Commission for the RCMP (the Commission) received 21 public complaints relating to the RCMP's actions in managing protests over shale-gas exploration by SWN Resources Canada, near the town of Rexton, the Elsipogtog First Nation Reserve in Kent County and in various other parts of New Brunswick in 2013.

After considering these complaints and materials disclosed by the RCMP, the Commission's then Chairperson initiated his own complaint and investigation in December 2014, notably to review the allegations from a broader policy and practice perspective .

Following its investigation, the Commission issued a 116-page interim report with 38 findings and 12 recommendations to the RCMP. The Commission has received and considered the RCMP's response to its interim report and now issues its final report on the case.

Select Findings & Recommendations

Role of the RCMP

The RCMP's primary role in any demonstration or protest is to preserve the peace, protect life and property, and enforce the law.

The RCMP's role does not include determining the legal validity of a licence or an injunction.

The Commission found that the RCMP's interactions with SWN were reasonable under the circumstances and that enforcing the law and legal injunctions did not amount to acting as private security to SWN Resources, as some claimed.

Measured Approach

The “measured approach” is a crisis-management philosophy that seeks to bring stakeholders together to work on achieving a peaceful resolution to a conflict.

The Commission found numerous examples to illustrate that RCMP members understood and applied a measured approach in planning their operations and interacting with protesters.

Surveillance and Searches

The Commission found that some of the RCMP's surveillance practices and physical searches were inconsistent with protesters' Charter rights to be free from unreasonable search and seizure.

For example, in conducting “stop checks,” RCMP members randomly stopped vehicles for a purpose other than those set out in provincial highway traffic legislation. The members were not responding to an emergency nor did they have judicial authorization to do so.

Likewise, while unconfirmed reports about the presence of weapons raised a legitimate public safety concern, searching persons entering the protesters' campsite was inconsistent with the individuals' Charter rights. 

Open-Source Intelligence Gathering

While much of the RCMP conduct with regard to open-source dossiers and certain undercover operations was not unreasonable in the circumstances, the Commission had numerous concerns with the RCMP's practices and policies, and accordingly made several findings and recommendations.

For example, the Commission found that RCMP policy did not provide clear guidance as to the collection, use, and retention of personal information obtained from social media or other open sources, particularly in situations where no criminal nexus was determined. The Commission recommended that RCMP policy: describe what personal information from social media sites can be collected, its permitted use; what steps should be taken to verify its reliability; and impose limits on its retention.

Freedom of Expression, Association and Peaceful Assembly

Several incidents or practices interfered to varying degrees with the protesters' rights to freedom of expression, association, and peaceful assembly.

The Commission's report emphasizes that police may only establish “buffer zones” in accordance with parameters set by the courts and that RCMP members must be aware of the bounds of police powers.

As such, decisions to restrict access to public roadways or sites must be specific, reasonable, and limited to minimize the impact on people's rights.

The Commission recommends that the RCMP provide its members engaged in policing protests with detailed, accurate interpretations of the conditions of any injunction they are to enforce, and to obtain legal advice as necessary.

Sensitivity to Indigenous Culture, Ceremonies, and Sacred Items

Video evidence shows that RCMP 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. The Commission found that the RCMP members assigned to the operation did not have sufficient training in Indigenous cultural matters.

The Commission recommends that the RCMP require all members to review its Native Spirituality Guide, and that all members involved in Indigenous policing, including those who may police protests, receive training on indigenous cultural issues.

In the Commission's view, the RCMP should develop policy and a flexible procedure for the handling of sacred items secured during arrests at protests.

Alleged Bias against Indigenous Protesters

A number of protesters claimed that the RCMP treated the Indigenous protesters more harshly than non-Indigenous protesters.

On the available evidence, the Commission is satisfied that RCMP members did not differentiate between Indigenous and non-Indigenous protesters when making arrests, nor did they demonstrate bias against Indigenous protesters generally.

Tactical Operation of October 17, 2013

Against the backdrop of rising tension, threats, a blockade, widespread rumours of guns and explosives and the presence of outlaw bikers, senior RCMP officers decided to implement a Tactical Operational Plan, which involved, among other things, clearing the protest encampment.

The Commission determined that the RCMP had the legal authority to conduct the tactical operation of October 17, 2013, and on the balance of probabilities, it was a reasonable exercise of their discretion to do so in all the circumstances. 

At the same time, the Commission believes it would have been prudent to allow more time for negotiations and a review of the injunction in court before proceeding with the tactical operation. The decision to go ahead with the Tactical Operational Plan had significant consequences. Allowing more time for negotiation, particularly after the CNT's negotiations had already borne fruit, would have been reasonable and desirable in the circumstances. 

Crisis Negotiation Team

Throughout the blockade, the RCMP's crisis negotiation team (CNT) negotiated with the protesters.

The Commission found that the team 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.

The decision to isolate members of the Crisis Negotiation Team from information about operational planning, however well-intentioned, indirectly led to the unfortunate and regrettable situation of the tactical operation occurring shortly after RCMP negotiators offered tobacco to campsite protest leaders. 

It is the Commission's opinion that the RCMP should have more fully informed CNT members of the overall strategy. This may have avoided regrettable misunderstandings, which in this case left some protesters feeling betrayed by negotiators.

Arrests

The available information suggests that during the spring and summer of 2013, RCMP members 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. 

With some exceptions, these actions were justified. RCMP members had reasonable grounds to believe that persons had committed or were committing various offences and some protesters were displaying assaultive, resistive, and inciting behaviour.

Use of Force

Several protesters submitted public complaints contesting their arrests and alleging that RCMP members used unnecessary and excessive force against them.

Summaries of these individual complaint reports can be found here.

The Commission also received numerous complaints of a general nature regarding the RCMP's use of force during the entirety of the anti-shale gas protests, particularly during the tactical operation.

When carrying out their duties, police officers may be required to use a reasonable amount of force, as prescribed by the Criminal Code and RCMP policy.  

The Commission concludes that, given the risks posed by the protesters' conduct, and reasonable concerns for the safety of RCMP members and the public, the use of force was generally necessary in the circumstances and was proportional to the conduct encountered by the members.

However, the Commission did find instances when the plastic tie wrap handcuffs placed on some protesters were likely tighter than necessary.

Contingency Planning

No plan can anticipate every eventuality, and allowing for discretion and flexibility in decision-making is essential in any dynamic operation.

However, it would have been reasonable for the RCMP's Tactical Operational Plan to have provided for the possibility of there being firearms and explosives at the campsite.

The Commission found that it was reasonable for the RCMP to use police vehicles as a barricade and to prioritize safety over preserving the vehicles when the situation deteriorated. The subsequent burning of the vehicles was not the RCMP's responsibility. However, the Commission also found 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 gathering on Route 134.

The Commission found that it was reasonable for the RCMP not to inform the schools about the imminent tactical operation, but that it would have been prudent to modify the plan to ensure that children were able to get to school before the operation rather than have to wait in the school buses and be exposed to a frightening situation.

RCMP's Response to Report

As required by the governing legislation, the RCMP Commissioner considered the Commission's interim investigative report and provided a written response, indicating which findings and recommendations the RCMP would act on and, if not, the reasons why.

In its response, the RCMP acknowledged a number of the Commission's findings, including several of those critical of its actions.

Furthermore, the RCMP agreed to implement several of the Commission's recommendations, including sensitivity and awareness training related to Indigenous culture and sacred items; better information sharing with crisis negotiators; and refreshers for RCMP members on law and policy for search and seizure.

However, the Commission has serious concerns about the RCMP's response to some of its findings and recommendations. Those concerns are discussed in the preface to its report.

Of note, while the RCMP indicated that it supported 8 of the Commission's 12 recommendations, it believed 3 of those required no further action.

This concerns the Commission as these included recommendations concerning roadblocks, exclusion zones and limits to police powers. The Commission made recommendations about these issues because there were concerns about the RCMP's actions in this case.

In stating that she believed the RCMP's practices are already in line with the recommendations, the RCMP Commissioner provided no information indicating that practices have been adjusted since the Kent County events, or that the Commission's concerns have been recognized.

Further, the RCMP strongly rejected recommendations limiting collection and retention of open-source information. The Commission has serious concerns about the RCMP's approach in such matters. The Commission notes that the RCMP's response further heightened many of those concerns.

In other cases, the RCMP rejected the Commission's findings, but appropriately brought to the Commission's attention specific evidence and documents supporting a different view of the facts. This was to be expected given the exceptionally large volume of evidence. In some cases, the Commission revised its initial view based on this evidence. This is most notable on the issue of sufficient grounds for arrest in relation to an injunction. This was an example of the oversight regime functioning as intended.

However, many of the other responses rejecting the Commission's findings were of a different nature. In those cases, the RCMP did not provide any additional evidence or facts, but instead provided its own assessment of the evidence in support of its conclusion that the conduct of its members was not problematic.

Those responses raise concerns. In the Commission's view, the RCMP's right to refuse to implement findings or recommendations, and its statutory obligation to explain itself when it does so, is not meant to provide an opportunity for the RCMP to act as an appeal body with regard to the Commission's findings.

The RCMP's own views about the appropriateness of its members' actions should not be allowed to govern in a case where the independent oversight body has reached a different conclusion, and no further factual information or explanation is being offered by the RCMP. Such a process would amount to giving the RCMP carte blanche to come to its own conclusions about its members' actions.

Conclusion

Despite concerns with several elements of the RCMP's response, the Commission is confident that, if implemented, its recommendations will help the RCMP improve the policing of protests, in particular Indigenous protests, and help the national police service both enforce the law and respect the rights of all citizens.

To view the full report, click here.

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