Civil Lawsuit Seeks to "Clear a Path"

On February 13, 2023, The Narwhal announced that it had filed a civil lawsuit against the RCMP in relation to the arrest and detention of Amber Bracken on Wet’suwet’en territory in November, 2021.
 
Ms. Bracken, a photojournalist, was engaged in covering protests sparked by a dispute between Coastal Gaslink Pipeline and leaders of the Wet’suwet’en Nation in relation to construction of a natural gas pipeline across unceded Indigenous territory in northwestern British Columbia. She and colleague Michael Toledano were arrested and detained for several days, the immediate effect of which was to prevent them from bearing witness to the protest and reporting the information they had gathered prior to their arrest. Ultimately, Coastal GasLink did not pursue the civil contempt charges, but the chilling effect on Ms. Bracken’s ability to report crystallized at the moment of her arrest.
 
Ms. Bracken’s lawsuit claims damages against the RCMP for breach of her Charter rights and wrongful arrest. The Narwhal’s goal in advancing this litigation is “…to clear a path for all journalists in Canada to do their work without risk of police interference”.
 
This case is of interest to the lawyers at Budden & Associates given our previous work in Re Brake. As detailed in another blog, contempt proceedings (and later, criminal charges) were initiated against journalist Justin Brake following his reporting on protests at the Muskrat Falls site in October, 2016. Ultimately, Mr. Brake was vindicated in relation to the civil charges by the Newfoundland and Labrador Court of Appeal in 2019, and the criminal charges were withdrawn in 2020.
 
Critically, the Court of Appeal recognized the importance of not constraining journalists from exercising their reporting function, especially in the context of reporting on matters engaging Indigenous rights. Specifically, the Honourable Justice Green found that “[t]o achieve the goal of reconciliation, better understanding of Aboriginal peoples and Aboriginal issues is needed. This places a heightened importance on ensuring that independently-reported information about Aboriginal issues, including Aboriginal protests, is available to the extent possible.”
 
Following her arrest, Ms. Bracken sat down with Justin Brake and spoke to the importance of reporting in this context:
 
“In the beginning, I said there’s an inconvenient image here, of this militarized armed response of the RCMP against unarmed, peaceful Indigenous people and their supporters on the land. I mean, they’re literally being dragged off the land at gunpoint. In this larger conversation of reconciliation is an incredibly inconvenient image, and I absolutely believe that it’s being repressed and there’s an attempt to control and mitigate that image.
 
And that’s exactly the reason why I think I need to be there. I think Canadians need to know what’s being done with their government dollars and in their name, and at the behest of politicians who will stand at a podium and talk about reconciliation, and even our Crown-Indigenous Relations Minister Marc Miller talking about land back, and how it’s time to give land back. And here’s a nation with a really valid claim, or at least a claim that really deserves serious inquiry and conversation. And rather than engaging with that question in a meaningful way, they’re dragging people away at the point of a gun.”
 
The Charter was not directly engaged in Re Brake, as the focus of the inquiry was not whether Mr. Brake’s section 2(b) Charter rights were constrained, but rather whether Mr. Brake’s status as a journalist was a material fact such that the court ought to have had the opportunity to consider it prior ordering the injunction sought by Nalcor in that case.
 
Ms. Bracken’s case, which directly asserts the breach of her Charter rights, has the potential to build upon the important findings of the Newfoundland and Labrador Court of Appeal in Re Brake.  Should a court ultimately find that Ms. Bracken’s Charter rights were breached, such a finding has the potential to strengthen protections for journalists who are both exercising their own expressive rights under the Charter, as well as facilitating the rights of the public at large by covering news critical to the public interest. While Ms. Bracken’s claim is still at an early stage, the lawyers at Budden & Associates will be following this important case with interest. 

-Allison Conway