Commission's Final Report into the RCMP's Response to Anti-shale Gas Protests in Kent County, New Brunswick

PDF Format

Royal Canadian Mounted Police Act
Section 45.76(3)

Table of Contents

Preface

The Commission's Findings and Recommendations

The RCMP's Response to the Commission's Report

Introduction

Background

Analysis, Findings, and Recommendations

Role of the RCMP
Measured Approach
Surveillance and Searches
Open-Source Intelligence Gathering
Freedom of Expression, Association and Peaceful Assembly
Sensitivity to Indigenous Culture, Ceremonies, and Sacred Items
Alleged Bias Against Indigenous Protesters
Tactical Operation of October 17, 2013
Crisis Negotiation Team
Arrests
Use of Force
Contingency Planning

Commission's Final Findings and Recommendations

Conclusion

Preface

[1] The Commission has completed its public interest investigation into the RCMP's response to anti-shale gas protests in Kent County, New Brunswick, and has received the RCMP Commissioner's response to its Interim Public Interest Investigation Report. This independent review of the RCMP's actions is intended to hold the RCMP accountable to the public it serves, and to recommend concrete measures to improve policing.

[2] In the course of its investigation, the Commission reviewed an exceptionally large amount of video and documentary evidence, witness statements, police records, and other relevant information. The Commission assessed various RCMP actions that took place over a six-month span from June to December 2013. In addition to its 116-page Interim Public Interest Investigation Report, and this 54-page Final Report, the Commission also completed detailed reports into 21 individual complaints related to the anti-shale gas protests.

[3] Given the breadth of complex issues and evidence examined, it is important that the essence of the case not be lost in its details. For this reason, the Commission offers the present overview of the importance and ongoing significance in today's context of the Commission's substantive findings and recommendations. The Commission also comments on the RCMP Commissioner's response to these findings and recommendations, and what it tells us about the operation of the independent oversight regime in this case.

The Commission's Findings and Recommendations

[4] The issues considered by the Commission with regard to the Kent County protests remain relevant in today's context, not only to the interested parties and broader Canadian society, but also to the continued improvement of the RCMP's public order policing operations and its responses to protests. These include issues surrounding:

  • arrests;
  • use of force;
  • tactical operation planning;
  • the enforcement of injunctions by police;
  • the establishment of stop checks, roadblocks, and exclusion zones by police;
  • negotiation and the measured approach;
  • the collection of open‑source intelligence about individuals involved in protests; and
  • police interactions with spiritual practices of Indigenous persons involved in protests.

[5] The Kent County anti-shale gas protests arose from significant concerns about environmental protection and Indigenous rights. The protests and the underlying issues were of great importance to many people, including Indigenous persons in the region and beyond. The RCMP's response to the protests was also significant in terms of its scope and impact.

[6] Lawful protest is a hallmark of democratic societies and a Charter-protected right in Canada. At the same time, police have a crucial role to play in keeping the peace, protecting society, and preventing crime. Tension and conflict often arise between protesters and police. It is here—by determining the facts and making meaningful findings and recommendations—that independent civilian oversight of the police can play an important role. In this case, the Commission has fulfilled this role by assessing the evidence in a neutral fashion, identifying instances where RCMP members acted reasonably and within the limits set by the applicable law, and addressing other instances where there were concerns about police actions. Consequently, areas for improvement were identified.

[7] In its report, the Commission recognized the challenges faced by the RCMP members whose job it was to police these protests, sometimes at risk for their own safety. Hence, despite a perception by many of the protesters and some members of the public that the force used in policing the Kent County protests was excessive, the Commission has made findings that most of the arrests, and use of force incidents, were in fact reasonable and justified under the circumstances. There was also significant concern expressed by community members about the overall role played by the RCMP in the context of the protests, but the Commission found that the RCMP members involved exercised their law enforcement role appropriately.

[8] In other areas, for example in relation to police roadblocks and stop checks and the collection of open-source intelligence, the Commission has expressed concerns about the reasonableness and, at times, the legality of the practices engaged in by the RCMP.

[9] As a result, the Commission made findings and recommendations toward the improvement of the RCMP's handling of protest policing, particularly with regard to Indigenous-led protests. Key findings and recommendations were also made in relation to RCMP members' knowledge of and sensitivity to Indigenous cultural practices, and the handling of sacred Indigenous items.

The RCMP's Response to the Commission's Report

[10] The RCMP's response to the Commission's report contains indications that many of the concerns raised by the Commission in its report will in fact be addressed.

[11] For instance, the RCMP has demonstrated an unequivocal commitment to supporting and implementing the Commission's recommendations related to sensitivity to Indigenous cultural practices and the handling of sacred items, and has provided detailed information about the steps it has taken and intends to take in this regard. Similarly, the RCMP has provided concrete information about the actions it intends to take to ensure that the role of the Crisis Negotiation Team involved in policing these types of protests is better defined and that the Crisis Negotiation Team is better informed of the overall operational plans.

[12] In another instance, the RCMP has committed to implementing one of the recommendations that it did not support. The RCMP Commissioner indicated that she considered it would be a best practice that RCMP members involved in the policing of protests be provided with a review of law and policy related to search and seizure, as recommended by the Commission, although she did not officially support the recommendation due to her disagreement with the Commission's findings about the stop checks and searches conducted during the Kent County protests.

[13] Despite these encouraging developments, other responses to the Commission's recommendations raised concerns.

[14] The RCMP strongly rejected the Commission's recommendations meant to limit the collection and retention of intelligence about protesters from open sources such as social media accounts. The Commission has serious concerns about the RCMP's approach in such matters. The RCMP's response not only failed to alleviate the concerns that the Commission had expressed in its Interim Report, but further heightened many of the concerns. The Commission has therefore reiterated and further clarified its recommendations in an effort to address those concerns.

[15] In addition, of the eight recommendations the RCMP officially supported in its response, there are three for which the RCMP Commissioner has stated that no further action will be taken, as the RCMP believes its existing practices are already in line with the recommendations. While the Commission is aware that the legislation allows the RCMP to refuse to implement some of its recommendations, the Commission is concerned with the rationale provided in the case of these recommendations that the RCMP has supported, but refused to implement. These included recommendations on important issues such as roadblocks and exclusion zones, and the need for RCMP members to be cognizant of the limits of their powers, especially in light of the fundamental constitutional rights being exercised by protesters.

[16] The Commission made these recommendations for improvement because the facts in the Kent County case raised concerns about the RCMP's actions in these areas. However, in indicating 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 and efforts have been made to address them. As such, it is difficult to view these responses as true support for the Commission's recommendations. They also do not provide a satisfactory explanation of the reasons for the RCMP's decision not to take further action.

[17] With respect to the RCMP's response to the Commission's findings about the events in Kent County, the RCMP Commissioner agreed with the findings concluding that the RCMP members' actions were not unreasonable, and also agreed with a number of the findings that were critical of the RCMP's actions.Footnote 1

[18] Therefore, in a number of instances, the RCMP has acknowledged the issues identified by the Commission. For example where it agreed with the Commission's findings about:

  • the RCMP members' insufficient training in Indigenous cultural matters;
  • the unfortunate consequences that resulted from not providing information to the Crisis Negotiation Team about operational planning; and
  • the fact that the handcuffs that were initially placed on certain protesters were too tight.

[19] In other instances, the RCMP disagreed with the Commission's findings and appropriately brought to its attention certain evidence and documents that provided a rationale for not accepting some findings. This was to be expected given the exceptionally large volume of evidence in this case. For example, with respect to a finding regarding the arrests made pursuant to the terms of a November 22, 2013, injunction, the RCMP Commissioner provided specific references to police officers' notes, and specific references to some videos that further explained the arrests. While this raised some concerns regarding RCMP members' record-keeping and the information provided to the Crown prosecutor, it did cause the Commission to reconsider its initial views regarding the grounds for these arrests. The response to this finding is an example of the oversight regime allowing the RCMP to provide an explanation for its actions functioning as intended.

[20] 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. In one case, the RCMP even rejected a finding by the Commission that the evidence was insufficient to conclude that the RCMP members' conduct was unreasonable, instead expressing the view that the evidence demonstrated that the RCMP members' conduct was reasonable and appropriate.

[21] Those responses, which often included a lengthy, point-by-point rebuttal of the Commission's findings, without additional factual information being provided, raise concerns about the operation of the independent oversight regime.

[22] The regime enacted by Parliament to provide oversight for the RCMP provides that the RCMP will have an opportunity to investigate specific incidents in the first instance and make conclusions about its members' actions. Where the complainant is not satisfied with these conclusions, or where, as in this case, the matter is of public interest, the legislation entrusts this Commission, which is independent from the RCMP, with the mandate to assess the evidence and come to conclusions about the actions of the RCMP members involved.

[23] While the legislation does provide that the RCMP may choose not to act on some of the Commission's findings and recommendations, the Royal Canadian Mounted Police Act provides a mechanism of accountability through transparency, by imposing an obligation on the RCMP to provide a response to the Commission's reports indicating what action will be taken about the complaint, and, if no action is to be taken about any of the findings or recommendations, to explain the reasons for not acting.Footnote 2

[24] This requirement for the RCMP to explain itself where it chooses not to implement the Commission's findings or recommendations constitutes an opportunity for the RCMP to raise important issues that may not have been considered when the Commission prepared its Interim Report. For example, there could be issues that the Commission is not aware of that affect the feasibility of implementing certain recommendations. There could be resource implications, or an impact on other operations of the RCMP. These are all important factors to consider. They may lead the Commission to reconsider or rephrase some recommendations, and they will be relevant in helping the public better assess the RCMP's response to the events. The Commission welcomes dialogue of this nature with the RCMP, in the spirit of working toward the common goal of improving policing.

[25] It is unfortunate that, in its responses to many of the Commission's findings on important topics such as the random stopping of vehicles and the "general inquisition"Footnote 3 into vehicle occupants, the RCMP did not take this opportunity to provide additional facts or information justifying or explaining its rejection of the Commission's conclusions. Instead, the RCMP sought to substitute its own views of the evidence for those of the Commission, and to provide its own conclusions about the reasonableness of its members' actions.

[26] 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, having examined all the evidence as it is mandated to do, 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.

[27] For these reasons, the Commission found that these types of responses were not helpful to achieve the kind of accountability and transparency contemplated by the oversight regime. The Commission has therefore reiterated many of its original findings on those topics.

[28] Despite these concerns, the Commission is confident that the detailed analysis and lessons learned in these reports can assist the RCMP in improving its response in the policing of protests, particularly Indigenous-led protests, with the delicate balance to be struck between enforcing the law and respecting the rights of all citizens.

Introduction

[29] The Civilian Review and Complaints Commission for the Royal Canadian Mounted Police ("the Commission") is an agency of the federal government, distinct and independent from the RCMP.Footnote 4 The Commission received several public complaints about the RCMP's response to protests against shale gas testing/hydraulic fracturing ("fracking") in Kent County, New Brunswick, in 2013. Given the significant number of complaints and the issues raised therein, on July 30, 2013, the Commission decided that it was in the public interest for it to conduct its own investigation of those complaints. The Commission received a total of 21 complaints.

[30] 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 Commission's then Chairperson initiated his own complaint and investigation into the following issues:

  1. the use of arrest;
  2. the use of detention and search powers;
  3. the use of force;
  4. the adequacy of communication with members of the public;
  5. the planning, management and execution of the arrests at the protest camp on October 17, 2013;
  6. the handling of spiritual items, and/or interference with the spiritual practices of Indigenous peoples involved in the protests;
  7. the role of the RCMP in the policing of protests by Indigenous peoples pertaining to Indigenous land rights; and
  8. whether there was differential treatment of Indigenous peoples compared to other protesters.

[31] The materials disclosed by the RCMP, and generated by the Commission's investigators, were voluminous and took a great deal of time to organize and review. More than 130 civilian witnesses and RCMP members were interviewed by Commission investigators. The investigation unearthed 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). The Commission encountered delays in obtaining relevant materials from the RCMP, and much of the materials were provided to it in a disorganized fashion. The Commission's reports in this matter are based on as thorough a review as possible of the available information. The Commission thanks complainants and the RCMP members who were the subjects of the complaints for their patience.

[32] After reviewing the voluminous evidence collected during its investigation, the Commission made findings about the issues raised. With so many different perspectives, it was not always possible to achieve certainty about the unfolding of the events. When faced with conflicting versions or evidence, the Commission sought to determine what was more likely than not to have happened. This well-known legal standard is referred to as the "balance of probabilities" standard. This was the test applied by the Commission to reach all of its conclusions in this case.

[33] The Commission completed a 116-page Interim Report Following a Public Interest Investigation ("Interim PII Report"), dated March 13, 2019, making 38 findings and 12 recommendations. The Commission also completed reports in relation to each of the 21 individual public complaints.

[34] In accordance with the Royal Canadian Mounted Police Act ("RCMP Act"), the Commission sent the Interim PII Report to the RCMP Commissioner. On June 17, 2020, the Commission received a response from Commissioner Brenda Lucki, in accordance with section 45.76(2) of the RCMP Act.

[35] After considering the RCMP Commissioner's response, the Commission has prepared this Final Report, according to section 45.76(3) of the RCMP Act. In this report, the Commission provides an overview of the analysis completed in its Interim PII Report about the issues raised, and sets out the interim findings and recommendations that it made. The Commission then provides an overview of the response provided by the RCMP Commissioner to each of its interim findings and recommendations, as well as its own analysis of the RCMP Commissioner's response.

[36] In cases where the Commission has reconsidered or rephrased any of its findings or recommendations in light of the RCMP Commissioner's response, this is indicated in the text. In all other cases, the Commission is reiterating the findings and recommendations made in its Interim PII Report. For ease of reference, a table of the Commission's final findings and recommendations is included at the end of this report.

[37] The Commission notes that, given the breadth of issues to be addressed in the present report, only a general overview is provided of the analysis and conclusions set out in the 116-page Interim PII Report. For a complete understanding of the interim findings and recommendations, and the evidence they were based on, the entire Interim PII Report should be reviewed. Similarly, while the Commission sought to provide an overview of the RCMP Commissioner's response to its report, it was not feasible to reproduce all the information provided. For a complete review of the RCMP Commissioner's response and the details of the actions she has stated will be taken, the response itself should be reviewed in its entirety.

Background

[38] In 2012, the Government of New Brunswick granted a licence to SWN Resources Canada ("SWN") to explore the accessibility of shale gas in the vicinity of the town of Rexton and the Elsipogtog First Nation Reserve in Kent County and various other parts of the province. Exploration began in June 2013, as did protests. As the provincial contracting police agency in New Brunswick, the RCMP's "J" Division was engaged in policing the protests.

[39] Protesters were vehemently opposed to the shale gas project and expressed their views in various ways over the course of six months. Many of the protesters were Indigenous persons from the Elsipogtog First Nation and elsewhere. Much of the protest activity took a form of civil disobedience—for example, people positioning themselves in the middle of the road to prevent trucks from passing and refusing to move when requested by the RCMP. Indigenous persons would occasionally conduct sacred ceremonies in the roadway, which the participants insisted on completing before moving. Numerous arrests occurred. Over time, the dynamics of the protests changed with the arrival of more confrontational protesters, the Warriors.

[40] Protesters eventually set up an encampment, which blocked the exploration company's compound. Private security guards (Industrial Security Limited or "ISL") hired by the company were prevented from leaving the building by the protesters' blockade. A court issued an injunction restricting the activities of the protesters. Negotiations were conducted between RCMP members and protesters to resolve numerous issues. Some progress was made but the RCMP conducted a tactical operation on October 17, 2013, in which the encampment was cleared. What ensued was effectively a riot and numerous people were arrested. Relations between the RCMP and local people, especially Indigenous persons, were damaged. Protests continued, as did arrests, until the company left the area in December 2013.

[41] For Indigenous protesters, a primary 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. They were joined by non-Indigenous protesters, including environmentalists, whose interest in protecting the land blended with the interests of the Indigenous protesters.

Analysis, Findings, and Recommendations

Role of the RCMP

[42] The RCMP's primary role in any demonstration or protest is to preserve the peace, protect life and property, and enforce the law in a manner that is consistent with 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. The RCMP's role does not include determining the legal validity of a licence or an injunction.

[43] Despite the RCMP's attempts to balance the rights of all groups and individuals involved, many of the protesters accused the RCMP of acting as SWN's private security. The Commission found that the RCMP's interactions with SWN were reasonable in the circumstances. It was necessary for the RCMP to engage with SWN to know what plans the company had—for example, where and when they planned to operate—to plan their own operations. The perception of the RCMP working to facilitate SWN's work may have arisen because actions taken to enforce the law, including court‑ordered injunctions, had the effect of allowing SWN to carry out its work.

Commission's Interim Finding #17

The RCMP did not act as private security for SWN. Its role was to keep the peace and ensure public safety while respecting the protesters' right to protest. Based on the available information, the RCMP's interactions with SWN Resources Canada were reasonable in the circumstances.

RCMP Commissioner's Response

[44] The RCMP Commissioner agreed with Interim Finding 17.

Measured Approach

[45] The RCMP's Operational Plan for Shale Gas Exploration, developed in April 2012 and revised in April 2013, addressed the probable operational conditions and included references to the "measured approach," as did other relevant policies. Some complainants alleged that, in various ways, the RCMP failed to follow this approach. The Commission closely examined the RCMP's compliance with policy in this area.

[46] 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. Under this approach, the role of the police is to bring the involved parties together to work on achieving a resolution to the conflict.

[47] Throughout the protests, there were numerous examples of the RCMP employing the measured approach. Overall, the Commission found that RCMP members understood and applied a measured approach in their dealings with protesters.

Commission's Interim Finding #2

In general terms, RCMP members understood and applied a measured approach in their dealings with protesters.

RCMP Commissioner's Response

[48] The RCMP Commissioner agreed with Interim Finding 2.

Surveillance and Searches

[49] 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. For example, in conducting "stop checks," RCMP members randomly stopped vehicles for a purpose other than those set out in provincial highway traffic legislation. They did not have judicial authorization and were not conducting an emergency investigation of a serious crime. The Commission found that these actions were inconsistent with the Charter rights of vehicle occupants.

[50] Likewise, although there was a legitimate concern for public safety given unconfirmed information that had been circulating about weapons, the Commission found that, in the circumstances, the practice of searching persons entering the protesters' campsite appeared to be inconsistent with the individuals' right to be secure against unreasonable search and seizure.

Commission's Interim Finding #8

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 vehicles. This practice was inconsistent with the Charter rights of the vehicle occupants.

Commission's Interim Finding #9

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 Charter rights of vehicle occupants.

Commission's Interim Finding #10

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.

Commission's Interim Recommendation #4

That members involved in public order policing operations be provided with a review of law and policy related to search and seizure, including the warrant requirement and the legal grounds establishing exceptions for warrantless searches.

RCMP Commissioner's Response

[51] The RCMP Commissioner disagreed with Interim Finding 8. She stated that whether requesting identification from an individual engages the Charter depends on the facts and especially whether or not the individual was detained at the time. She concluded that, from her review of the evidence, she could not conclude that the sole purpose of the stops was intelligence gathering, or that RCMP members acted improperly or in a manner that was inconsistent with the Charter. She stated that the video evidence was incomplete, and that there were not enough facts or context upon which to derive conclusions.

[52] The RCMP Commissioner also stated that she could not conclude that the passengers were detained at the time the information was solicited from them. The RCMP Commissioner put forward the case of R v Harris, in which the Ontario Court of Appeal found that a vehicle passenger who was asked for identification had been lawfully detained for a purpose under the Highway Traffic Act (the driver's failure to signal a turn); thus, the detention was not arbitrary.

[53] The RCMP Commissioner also disagreed with Interim Finding 9. She expressed the view that there was insufficient evidence in the Commission's Interim PII Report detailing specific instances where a roadblock was unlawfully erected, and she challenged the applicability of some of the jurisprudence relied on by the Commission. Specifically, the RCMP Commissioner stated that the relevant materials did not reveal that roadblocks or exclusion zones were arbitrarily established, or that individuals were detained at them. She also pointed to specific circumstances where closing roads was legally justified.

[54] The RCMP Commissioner similarly disagreed with Interim Finding 10. She stated that she found the Commission's finding and associated analysis to be somewhat vague as to whether the Commission was referring to searches only of persons or of persons and vehicles.

[55] The RCMP Commissioner also explained that an agreement had been reached with the protesters to allow the search of a trailer that was being brought into the campsite for the comfort of the elders. In addition, the Commissioner stated that a small number of other vehicles, including a van that brought in food from time to time, and a vehicle that brought "Porta Potties" in and out, were searched. She stated that this was justified given the at times "extremely hostile environment." The Commissioner detailed numerous reasons for concern about safety and the possible importation of weapons into the campsite. She expressed that, in the circumstances, the RCMP could have been viewed as negligent if they did not search these few vehicles, and weapons were indeed brought in that were then used to harm police or protesters.

[56] The RCMP Commissioner also concluded that the available evidence did not support the conclusion that there was a practice of routinely searching or "patting down" persons entering the campsite on foot.

[57] The RCMP Commissioner indicated that she did not support Interim Recommendation 4 concerning the above three findings. She nevertheless agreed that it would serve "as a best practice going forward" to provide RCMP members involved in public order policing operations with a review of law and policy related to search and seizure, including the warrant requirement and the legal grounds establishing exceptions for warrantless searches. The RCMP Commissioner indicated that she would therefore direct that this recommendation be shared through the public order command structure.

Commission's Analysis of the RCMP's Response

[58] With respect to Interim Finding 8, the Commission notes that this is an example of an instance where the RCMP Commissioner is proposing a different interpretation and assessment of the evidence, without pointing to new or different facts or evidence. On the whole, the Commission reiterates its original assessment of the matter. Having reviewed the evidence and case law specifically discussed in the RCMP Commissioner's response, the Commission found no new facts or law that would cause it to change its original finding.

[59] The Commission acknowledges that the specific video discussed in the relevant section of its Interim PII Report did not show the beginning of the interaction. While seeing the entirety of an interaction can provide more context and may alter the impressions of what occurred, the fact remains that what is seen in the available portion of the video is a minor who was a passenger in the vehicle being asked for his name and date of birth, which were then recorded in writing by an RCMP member.

[60] Although the quality of several videos was poor, the Commission did observe instances of vehicle stops where the first question asked by RCMP members was a request for identification, as opposed to a demand for a driver's licence, vehicle registration, and insurance. Although the RCMP Commissioner provided her view that the evidence did not show that the sole purpose of the stops was information gathering, she did not offer any information as to what other purposes were being pursued by the RCMP members.

[61] The content of check sheets reviewed by the Commission supports the conclusion that these stops more likely than not consisted of a "general inquisition" of vehicle occupants. The documents 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.

[62] With respect to the RCMP Commissioner's argument that the passengers were not detained when they were questioned by the RCMP members, the Commission notes that in the case relied on by the RCMP Commissioner in support of this position, R v Harris,Footnote 5 the majority of the Court also found that the police officer's request for identification from the passenger infringed his rights under section 8 of the Charter. The judges concluded that the accused's identifying himself in response to the officer's questions constituted a seizure and attracted section 8 protection. That seizure was unreasonable. The officer had no reason to suspect the accused of anything when he questioned him and requested his identification. The purpose of the stop did not justify an at-large inquiry into the accused's background or his status in the criminal justice system.Footnote 6 [Emphasis added]

[63] The Court in Harris reiterated the well-established principles that physical and psychological restraint by police constitutes detention, and that "[a] person who complies with a police direction or command reasonably believing that he or she has no choice is detained for the purposes of sections 9 and 10 of the Charter."Footnote 7 The Court in Harris also discussed two of the other cases (R v GrafeFootnote 8 and R v HallFootnote 9) put forward by the RCMP Commissioner to support the principle that police may in the course of their duties properly request identification from individuals in circumstances where the police have no reason to suspect that individual of any misconduct. The Court stated that those cases "turn largely on the finding that the person who was asked for identification was not under police detention or any other form of compulsion to answer the request for identification."Footnote 10

[64] Another case referred to by the RCMP Commissioner, R v Frank, found that not all traffic stops involving asking a question of a passenger amount to a detention of the passenger, and that a fact-specific inquiry must be carried out in each case.Footnote 11 In that case, the accused was "not concerned" about giving his name to police when asked.Footnote 12

[65] In the Kent County matter, passengers were in stopped vehicles, being asked questions by RCMP members. The Supreme Court in Mellenthin said of stop checks, "[the lawfulness of the stop] does not make a check stop any less a manifestation of police authority. For even the most experienced and sophisticated driver it will create an atmosphere of some oppression."Footnote 13 As stated in the Commission's report, it is far from clear that vehicle 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. It is 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. The RCMP Commissioner has not provided any additional facts or pointed to any evidence that would cause the Commission to reconsider its finding in this respect.

[66] For these reasons, the Commission reiterates Finding 8.

[67] With respect to Interim Finding 9, it is established that, during the Kent County matter, stop checks occurred and check sheets were completed. The RCMP Commissioner points to certain specific instances that justified closing roads, including when roadways and highways were rendered inoperable or unsafe by felled trees, when serious property damage and arson occurred, and when "certain circumstances" at times created a hazard to public safety. The Commission agrees that such instances did occur and that in some of these cases, closing roadways may have been necessary, reasonable, and legally justifiable. However, this does not explain or justify many of the roadblocks and stops conducted. Hence, while the Commission will adjust its finding to reflect the existence of certain circumstances that justified some roadblocks, the essence of the finding remains unchanged.

[68] The rationales invoked in the RCMP Commissioner's response do not explain or justify the kind of "general inquisitions" that appeared to have taken place, as described above. If a roadway was closed due to fallen trees or for the investigation of a serious crime such as arson, then presumably the RCMP member would simply tell the driver of the vehicle to turn around, not ask them and their passengers for identification or other personal information.

[69] The RCMP Commissioner stated that jurisprudence referred to by the Commission involved cases where roadblocks were erected and vehicles and their occupants were searched. As stated in Harris, however, the obtaining of information from a detained person can amount to a seizure under section 8 of the Charter.Footnote 14

[70] While challenging the Commission's assessment of the evidence, the RCMP Commissioner has not put forward any rationale for the information gathering that was carried out during some stop checks. The content of the check sheets suggests an intent by the RCMP to gather information. The Commission again highlights that there did not appear to be any particularized concern regarding the occupants of the vehicles being stopped, nor has any other justification been put forward.

[71] For these reasons, the Commission reiterates Finding 9, with the caveat that some of the roadblocks were likely justified in the specific circumstances.

Commission's Final Finding #9

Although some of the roadblocks were likely justified in the specific circumstances, 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 Charter rights of vehicle occupants.

[72] With respect to Interim Finding 10, the Commission recognizes that the text of its Interim PII Report referred to searches of both vehicles and individuals entering the protesters' campsite, while its finding referred only to "persons" being searched. The Commission acknowledges that its language could have been clearer in this regard. The Commission also acknowledges that some searches based on consent, such as the search of the trailer brought in for the elders, would have been lawful and reasonable in the circumstances.

[73] For the other searches, however, the Commission can only reiterate its conclusion that the circumstances were insufficient to justify a routine search of vehicles and individuals entering the campsite, particularly given that the threshold for exigent circumstances or an apprehended breach of the peace did not appear to exist. One example of this was provided by Allan Marsh, who explained to the Commission's investigator that he had been given permission in advance by the RCMP to bring water into the campsite, but that he took issue with what he described as multiple searches of his vehicle. Items such as a hammer and knife were temporarily confiscated, and he had to leave his canoe on the side of the road.

[74] The Commission detailed many of the same circumstances in its report that the RCMP's response relies on as the concerns that would have justified the searches. The Commission had considered these circumstances in reaching its original conclusion. As noted in the Commission's report, 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.

[75] The Commission acknowledged the legitimate concerns about weapons potentially being brought into the campsite, but if sufficient grounds existed, the RCMP could have sought and obtained a general warrant to search vehicles and individuals entering the site. This was not done and no rationale has been provided for why it was not done.

[76] However, the Commission recognizes that the information brought forward to it regarding searches related primarily to searches of vehicles and their contents. For this reason, the Commission has decided to amend its Finding 10 to focus on vehicle searches.

Commission's Final Finding #10

On the balance of probabilities, the practice of searching vehicles entering the campsite may, in the circumstances, have been inconsistent with the individuals' right to be secure against unreasonable search and seizure. It would have been preferable for the RCMP to seek a general search warrant, if sufficient grounds existed.

[77] With respect to Interim Recommendation 4, the Commission notes that the RCMP has effectively agreed to implement it, despite not supporting it due to its disagreement with the associated findings.

Open-Source Intelligence Gathering

[78] With regard to open-source dossiers and certain undercover operations, the Commission found that RCMP conduct was generally reasonable. The Commission nevertheless conducted a detailed analysis and made several findings and recommendations about the parameters of such practices. For example, the Commission found that any gathering of potentially private electronic communications by the RCMP must be done only within the strictures of the law. The Commission also recommended that RCMP policy should describe 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. Also, the Commission recommended that RCMP policy should require the destruction of personal information, including records obtained from social media sources, once it is determined that there is no criminal nexus regarding the information.

Commission's Interim Finding #4

The information available to the Commission does not establish, on the balance of probabilities, that persons had an objectively reasonable expectation of privacy with regard to their communications through Facebook groups, or that the RCMP Undercover Operator "intercepted" those communications as outlined in the relevant jurisprudence.

Commission's Interim Finding #5

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.

Commission's Interim Finding #6

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.

Commission's Interim Finding #7

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.

Commission's Interim Recommendation #1

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.

Commission's Interim Recommendation #2

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.

Commission's Interim Recommendation #3

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.

RCMP Commissioner's Response

[79] The RCMP Commissioner agreed with Interim Findings 4, 5, and 6.

[80] The RCMP Commissioner stated that she agreed generally with Interim Finding 7, acknowledging that, at the time of the protests, the RCMP did not have a policy that provided clear guidance on the collection, use, and retention of personal information obtained from social media or other open sources. She stated that, since that time, the RCMP has adopted chapter 26.5. of its national Operational Manual, called (as of 2019) "Using the Internet for Open Source Intelligence and Criminal Investigations." The policy emphasizes that the public's reasonable expectation of privacy is paramount. Additionally, all open-source intelligence-gathering activities must be directly related to the operating program's mandate and official law enforcement activities.

[81] The RCMP Commissioner wrote that she is satisfied that the combined operation of the Privacy Act, Operational Manual chapter 26.5., and the RCMP's policies on information management provide sufficient guidance on the collection, use and retention of personal information obtained from social media. The RCMP Commissioner also wrote that she is satisfied that the RCMP's collection, use and retention of open-source intelligence are in accordance with the current state of the law concerning informational privacy.

[82] In light of this, the RCMP Commissioner did not support Interim Recommendation 1. She indicated that, when it is unclear if open-source intelligence activities would violate law or policy, the policy directs practitioners to consult the unit commander or certain other authorities, and/or RCMP Legal Services for guidance. All members conducting intelligence-gathering activities must also have completed training that varies by specialization tier. Additionally, the Commissioner wrote that the RCMP is creating a SharePoint environmentFootnote 15 in which Tier 2 and Tier 3 practitioners will be kept up to date on the latest changes in law and techniques concerning the collection, use and retention of open-source intelligence. Furthermore, the RCMP is developing an internal course covering the acceptable use of open-source intelligence that will be available to all employees through the RCMP's intranet. The course will provide employees with an understanding of the law, policy, and privacy impacts of the use of open-source intelligence.

[83] The RCMP Commissioner also did not support Interim Recommendations 2 and 3. The RCMP Commissioner stated that while the police have a duty to prevent crime and keep the peace, they also have a duty to protect life and property. During public protests, the RCMP will use tactical intelligence to obtain information about the groups involved and to determine whether there will be any risk to participants, bystanders, and police. According to the RCMP Commissioner, the police need to be able to access information about the participants even where there is no reason to believe that they were involved in criminal activities. Although the information that is collected may not always appear to have a criminal nexus, it may be necessary to "create a baseline" for the activities of a group of protesters.

[84] The RCMP Commissioner stated that commanders rely on the results of intelligence processes to make informed decisions about the overall risk posed by a specific group in order to develop an appropriate plan and response to protests. It is, the RCMP Commissioner wrote, "therefore justified that information related to protesters be found in the operational file, even if some of those individuals are not associated with criminal activities." The Commissioner stated that such information is no different from information being obtained during an investigation and retained in the operational file despite having no criminal nexus. The information is "part of the fruits of the investigation" and supports the actions taken and the decisions made.

[85] The RCMP Commissioner also stated that once an intelligence report has been prepared that contains personal information and/or open-source intelligence, the RCMP considers it Operational Information Resources of Business Value and its policies require that such information be incorporated or linked into the operational file. The Commissioner stated that RCMP employees are obligated to ensure that all information of business value is incorporated into the RCMP Records Management Program. All open-source intelligence materials are included as supporting documents. They have the same retention period as the occurrence file itself.

[86] In addition, the RCMP Commissioner wrote that the Privacy Act requires that the collection of any personal information must be related to a specific operating file or program. As such, all personal information collected from social media posts are incorporated into the police operational file, "like any other piece of information collected during an investigation." The retention period of such personal information is based on the retention period for that occurrence file, in keeping with RCMP policies on information management.

Commission's Analysis of the RCMP's Response

[87] The Commission's analysis and recommendations on this topic were first made in the context of the 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 16 That report discussed the RCMP's monitoring of individuals generally engaged in lawful advocacy, protest, and dissent about issues that concerned critical infrastructure (touching on the RCMP's national security mandate) where there was ultimately no criminal or national security nexus. Of note, the RCMP's national security mandate expressly excludes lawful advocacy, protest or dissent except where such advocacy, protest or dissent is in conjunction with an act defined as a threat to the security of Canada under the Canadian Security Intelligence Service Act. The personal information of Canadians who are engaged in such lawful activities is therefore excluded from the national security operations of the RCMP.

[88] As stated in the National Energy Board PII Report, the Commission has ongoing concerns about the collection, use and retention of that information under the Privacy Act. Some of these concerns were reiterated in the Kent County Interim PII Report, in light of the information gathering practices observed there. The RCMP Commissioner's response fails to alleviate the Commission's concerns.

[89] The Commission's analysis and recommendations from the National Energy Board PII Report were adopted in the present complaint, which concerned a more confrontational and tense situation involving injunctions, civil disobedience, and some acts of violence. The objective of Interim Recommendation 1 in the present case was to address the Commission's concerns about the RCMP's collection of personal information regarding individuals who sought to participate in protests and demonstrations related to environmental causes or had done so in the past. Many of these people had no criminal involvement or intention. The Commission was concerned about the long-term retention of that information, and it believed that clear guidance was needed about the collection, use and retention of personal information obtained from open sources.

[90] The Commission acknowledges that the RCMP has since adopted Operational Manual chapter 26.5. The Commission also acknowledges that the Privacy ActFootnote 17 and the RCMP's information management policies do provide some basic guidance. Furthermore, the Commission acknowledges the training materials and resources that the RCMP is developing. Finally, the Commission acknowledges the RCMP's Audit on Open Source Information, which the Commissioner stated will be tabled at the Departmental Audit Committee "in the near future." The Commission looks forward to reviewing the results of that audit.

[91] The measures described by the RCMP Commissioner meet many of the Commission's objectives in making Interim Recommendation 1. However, the Commission remains concerned that the RCMP's policy is vague. An effective policy should provide clear guidance to personnel and emphasize the important elements of the topics discussed. Of course, no policy can address all situations, and policies do not operate in isolation, but other RCMP policies do refer to relevant law and to the expected standards or procedures. The Commission sees no reason why this policy would not include similar references. Privacy and freedom of expression are essential to Canadians, and vague policies set poor guidance.

[92] As an example of where policy guidance would be appropriate, the current high‑profile protest movements, ranging from anti-petroleum development to anti-racism and police reform, are worth considering. These movements, linked to numerous protests and demonstrations, engage the RCMP's common-law and statutory duties to keep the peace, prevent crime, protect life and property, and enforce the law. As such, the Privacy Act would arguably permit the RCMP to monitor the social media posts of all individuals who are concerned with these causes and who indicate on social media that they support and/or plan to attend a given protest, no matter how large the event. Arguably, the RCMP would also be allowed to build dossiers about all such individuals even if an event included hundreds or thousands of supporters and participants. Although this information touches on the "biographical core" of information of an individual, under the current RCMP policies, the only clear limits to the collection of "open-source" information in this context would be the RCMP's own decisions and resources. RCMP policy should provide clearly defined and reasonably constrained intelligence and law enforcement parameters with respect to the collection of such information.

[93] In light of the information provided about the current RCMP policy, the Commission reiterates its Recommendation 1 and has decided to modify it to further clarify its intent.

Commission's Final Recommendation #1

That, in addition to the Privacy Act and the RCMP's existing policy and training, the RCMP provide clear policy guidance setting out defined and reasonably constrained intelligence and law enforcement parameters with respect to the collection of personal information from open sources such as social media sites, the uses that can be made of it, and what steps should be taken to ensure its reliability.

[94] With respect to Interim Recommendations 2 and 3, the Commission acknowledges that the police have a legitimate need to develop meaningful intelligence about public order events like protests and demonstrations. The Commission has already found that it is reasonable to make use of "open-source" materials like social media to generate intelligence and plan appropriate responses. Nevertheless, the RCMP's position on the indiscriminate, long-term retention of personal information about lawful dissent collected from sources like social media is concerning. This raises at least the potential for a chilling effect regarding the public's participation in lawful dissent and in online discussions, particularly through social media.

[95] In the National Energy Board PII Report, the Commission noted its concerns on the retention of information obtained concerning individuals who were not suspected of any criminal activity but who had been identified as organizers or participants in an upcoming protest or demonstration or other public order event. Although in the National Energy Board PII Report the Commission was not prepared to find that the checks conducted were unreasonable per se, these checks appear to have been of limited value, and the use and retention of personal information obtained about these individuals is problematic and potentially unreasonable where there is no criminal nexus.

[96] Based on the response provided, the RCMP Commissioner appears to have understood the Commission's recommendation as requiring it to destroy all personal information the moment that it is determined not to have a criminal nexus. As made clear in the analysis within the National Energy Board PII Report, this is not what the Commission is recommending. The Commission acknowledged in the National Energy Board PII Report that it could be helpful and appropriate to obtain and refer to personal information during public order events. The Commission also stated, in the recommendation it made in its National Energy Board PII Report, that RCMP policy should direct that personal information "be destroyed as soon as is practicable and in accordance with applicable law once it is determined that there is no criminal nexus or that the information is otherwise no longer necessary for the purposes for which it was collected." For clarity, the Commission will add this to Recommendation 3 in the present case.

[97] The Commission does not accept the RCMP Commissioner's argument that it "might not be lawful" to require the deletion of personal information obtained from social media sources. The Commissioner referred to the Privacy Act in support of this argument. Section 6(1) of the Privacy Act states that personal information must be retained for a minimum period of at least two yearsFootnote 18 where it has been used for an "administrative purpose." The Privacy Act states that an administrative purpose, "in relation to the use of personal information about an individual, means the use of that information in a decision making process that directly affects that individual." This is to allow the affected individual reasonable time to obtain access to that information.

[98] The Commission doubts that the use of personal information for generating intelligence products would qualify as an administrative purpose within the meaning of section 6(1) of the Privacy Act. In reality, the individual targeted by the intelligence assessment will almost certainly never know that any assessments were made involving their personal information, let alone be in a position to make a Privacy Act request about it. Furthermore, the overall purpose of the Privacy Act must be kept in mind in this discussion. This legislation was enacted to protect the privacy rights of individuals and to permit them to access and challenge the accuracy of the personal information that government agencies collect about them. Of course, the Privacy Act does not necessarily require the knowledge or consent of the individual whose personal information is collected,Footnote 19 nor does an individual always have a right of access in the case of law enforcement investigations.Footnote 20 Nevertheless, it appears contrary to the Privacy Act's purpose to invoke this same legislation to justify the secret retention of information collected when the very individuals the legislation was meant to protect are left unaware.

[99] The intelligence practice of gathering personal information from social media posts is not analogous to obtaining information through investigations. It is true that, for example, in a situation where a person is a witness to an incident, their personal information such as their name, birthdate, and address may be included in an operational file. In many such cases, however, the person is voluntarily co-operating with the police and presumably understands that their information is being recorded for a particular purpose. Even where the police obtain personal information before a witness decides to co-operate, or where the witness declines to co-operate, the information has a direct connection to the occurrence file and it is reasonable that it would be retained for the relevant period, including to fulfil eventual disclosure obligations in the judicial process. Personal information about an individual may also be provided to police by a third party during an investigation and, if pertinent, documented in an operational file. In all these cases, while the individuals in question may not be suspected of wrongdoing, there is a clear and direct connection with an identifiable purpose for collecting and retaining the information.

[100] In the case of open-source intelligence gathering, however, the police may profile individuals for intelligence purposes without so much as a suspicion that the persons targeted intend to engage in criminal activity, or even that they have relevant information about a potential offence. They may only come to the police's attention because they have voluntarily posted about their intention to engage in lawful dissent; that is, by exercising their rights to freedom of expression and freedom of association, individuals may be caught in a wide net. The collection of this type of information involves the obvious risk that individuals will be targeted based on their political convictions or beliefs in certain causes, while not having a clear connection with an identifiable, immediate purpose (unlike an investigation).

[101] Although Canadians have a significantly reduced expectation of privacy in social media, they have not abandoned their privacy interests altogether. As such, where the RCMP obtains personal information in relation to public order events such as protests and demonstrations that has no nexus to criminal activity or threats to national security, this information should not be retained longer than is strictly necessary for the intelligence purpose for which it was collected. The Commission acknowledges that such a purpose can include an indication of whether a given event could be disruptive or pose a risk of property damage or personal harm.

[102] The response provided to the Commission's recommendation makes it clear that the RCMP has made a policy choice to indiscriminately include and archive personal information about individuals engaged in lawful dissent, including by retaining copies of the social media posts in question as supporting documents. The RCMP is deciding on its own that all such information forms "business value" records. The Commission finds that the RCMP has cast an unreasonably wide net, and that clearer limits must be placed on the information being retained.

[103] For these reasons, the Commission has decided to reiterate Recommendation 2 and supplement it by adding a recommendation that the RCMP treat personal information obtained from open-source intelligence as a separate category of information. Such a category would include "supporting documents" like screen shots of social media sites. Where the personal information in question has no criminal nexus or national security dimension, it should be kept for no longer than necessary to provide intelligence for the event or purpose for which it was collected. The Commission suggests a general six-month retention period for such personal information. This period could be extended if the original intelligence purpose continued, but the RCMP should not treat such information like another "business value" record. Of course, where the personal information has a criminal or national security nexus, it might be appropriate to treat this information as a "business value" record to be included in the operational file.

[104] The Commission further adds the recommendation that, wherever possible, the RCMP should anonymize any information in an intelligence assessment or other product generated from personal information from open sources that the RCMP reasonably believes is necessary to understand a group or movement but which has no connection to criminal activity (or otherwise to the RCMP's national security mandate). Anonymized information could be included in an operational file where necessary to provide context or to support an assessment.

[105] In addition, the Commission will send a copy of its Interim PII Report, the Commissioner's Response, and this Final Report to the Privacy Commissioner so that he may take whatever actions he deems appropriate.

Commission's Final Recommendation #2

That RCMP policy treat personal information and supporting documents obtained from social media sources containing personal information (such as screen captures of social media sites) as a separate category of records. This category of records should be kept for no longer than strictly necessary to provide intelligence for the event or purpose for which it was collected where it is established that there is no criminal nexus or national security dimension.

Additionally, where an intelligence assessment or other product generated from open sources is to be retained, RCMP policy should require the anonymization or destruction of any personal information within that assessment where there is no connection to criminal activity or to the RCMP's national security mandate (such as where the personal information relates to lawful dissent).

Commission's Final Recommendation #3

That the RCMP develop policies providing that personal information obtained with respect to public order events like protests and demonstrations should be destroyed as soon as practicable and in accordance with applicable law once it is determined that there is no criminal nexus or that the information is otherwise no longer necessary for the purposes for which it was collected.

Freedom of Expression, Association and Peaceful Assembly

[106] Several incidents or practices interfered to varying degrees with the protesters' rights to freedom of expression, association, and peaceful assembly. An apparent misinterpretation of an injunction, dated November 22, 2013, led to several arrests of protesters without RCMP members having reasonable grounds, from an objective point of view, to believe they had committed an offence. The Commission recommended that the RCMP provide RCMP members engaged in the policing of protests with detailed, accurate interpretations of the conditions of any injunction they are expected to enforce, obtaining legal advice as necessary.

[107] The Commission emphasized that police may only establish "buffer zones" in accordance with the parameters detailed by the courts. Anything outside of these bounds is impermissible. The Commission further emphasized that, particularly when policing a public protest, RCMP 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.

[108] 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.

Commission's Interim Finding #11

On the balance of probabilities, the Commission finds that RCMP members made several arrests of protesters pursuant to the November 22, 2013, injunction 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.

Commission's Interim Finding #12

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 rerouting 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.

Commission's Interim Finding #13

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.

Commission's Interim Recommendation #5

That the RCMP provide members who are 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.

Commission's Interim Recommendation #6

That decisions to restrict access to public roadways or other public sites be made only with specific, objectively reasonable rationales for doing so, and if legally permissible, 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.

Commission's Interim Recommendation #7

That, particularly when policing a public protest, members be cognizant of the limits of their powers, specifically in relation to curtailing protesters' ability to assemble and express themselves in a lawful manner.

RCMP Commissioner's Response

[109] The RCMP Commissioner disagreed with Interim Finding 11. She stated that there was no evidence to support that arrests had been made based on a misinterpretation of the November 22, 2013, injunction. In particular, she indicated that the videos referred to in the Commission's Interim PII Report did not depict illegal arrests or clearly demonstrate a lack of understanding of the injunction. The RCMP Commissioner added that notes from RCMP members explained the grounds for the two arrests described by the Commission in its Interim PII Report, although she noted that there was a "disconnect" between those notes and what was submitted to the Crown prosecutor. The RCMP Commissioner further stated that the Crown prosecutor's decision not to approve charges was immaterial to the reasons for arrest.

[110] Although she did not support Interim Finding 11, the RCMP Commissioner nonetheless supported the related recommendation, Interim Recommendation 5. The Commissioner indicated that the Incident Commander or Critical Incident Commander should be responsible for disseminating to RCMP members engaged in policing public protests the accurate information concerning the enforcement of any injunctions. To that end, she stated that she will direct that national Operational Manual 55.2., "Aboriginal Demonstrations or Protests," as well as any other RCMP policy requiring that members enforce injunctions, such as 37.7., "Labour Disputes," be amended to provide that the Incident Commander and/or Critical Incident Commander ensure that members under their command are briefed on the conditions and interpretations of any injunction that they are expected to enforce and are provided with all the nuances and unique background information regarding the specific protest or public order event.

[111] The RCMP Commissioner additionally informed the Commission that the RCMP is currently seeking to provide national oversight regarding RCMP employees engaged in public protest/public order activities in general by developing a policy on public assemblies, which will provide for all protests, not only protests involving Indigenous matters specifically. Consequently, she will further direct that a section similar to the one mentioned above be included in the new policy on public assemblies.

[112] The RCMP Commissioner agreed partially with Interim Finding 12. She stated that, in her view, there was enough information in the relevant materials to support a finding on the balance of probabilities that the instances of traffic rerouting or road closures were brief, necessary, and responsive to the circumstances, and therefore, were reasonable. She also stated that the evidence suggested that the media had "unfettered access to the protest sites."

[113] The RCMP Commissioner agreed with Interim Finding 13.

[114] With respect to Interim Recommendations 6 and 7, the RCMP Commissioner stated that she supports them, but that she would not direct that any action be taken to implement them, as she is satisfied that RCMP operations are already in line with the terms of the recommendations.

Commission's Analysis of the RCMP's Response

[115] As a result of the statements made in the RCMP Commissioner's response, the Commission undertook another review of the videos it referred to in this section of the report (regarding the arrests pursuant to the November 22, 2013, injunction).

[116] Video 6315 shows a line of RCMP members getting protesters who were standing on the side of the roadway to move back. This was apparently shortly after other protesters had been arrested; these arrests were not shown on the recording. The protesters repeatedly ask the RCMP member in charge why they have to move, given that they are farther than 20 metres from the vehicles. No vehicles or equipment can be seen on the video. The RCMP member does not directly answer these questions but repeatedly tells them that their protests must be lawful and peaceful. At one point the member says that he is not a lawyer and he is not going to debate the issue. He also tells the protesters that, as the vehicles get closer, they will have to move farther down the road. The RCMP member is calm and attempts to de-escalate the situation; the protesters comply as the police line moves forward.

[117] In video 7451, a protester asks an 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?" The conversation continues and the RCMP member states that, had the protesters stayed where they were, they would have been within 20 metres of the vehicles when they started moving, so the police stopped the protesters from violating the injunction.

[118] While these videos (6315 and 7451) do tend to indicate that protesters were moved when they were not within the prohibited distance of the vehicles, they may also suggest that police were moving protesters away in anticipation that they would violate the injunction as vehicles moved forward.

[119] In video 7364, one RCMP member tells another that a protester wants to be arrested. The RCMP member calmly tells the protester that he must move because he is within 250 metres of the vehicles and that he is in violation of the injunction. The protester says that he is not going to move, and he is arrested. In its Interim PII Report, the Commission had stated that this protester was arrested for standing within 20 metres of the vehicles. Upon review of the video, it is clear that this was not accurate and that the protester was arrested for being within 250 metres of the vehicles.

[120] In video 6397, protesters are questioning an RCMP member about the terms of the injunction. The member states, [Translation] "As far as I know, it is 20 metres on the side of the vehicles, 250 [metres] in front." He further says that he is not going to weigh in on the underlying issues behind the protest and that he knows the protesters he is speaking with are good guys; the RCMP member reiterates that all he can impart are the details of the injunction.

[121] In its Interim PII Report, the Commission described two arrests conducted pursuant to the November 22, 2013, injunction, which were considered to be representative of the other arrests made. In these cases, the Crown prosecutor had indicated that the arrests were not legal. He described the arrest of Protester Z as "unlawful" and said that this arrest had the "same problems" as the arrest of Protester Y. Protester Z was arrested for being less than 20 metres from equipment, but that act was not contrary to the terms of the injunction. The Prosecutor's Information Sheet, prepared by an RCMP member and presented to the Crown, misstated that people could not be within 250 metres of the front or back of the equipment (the injunction actually referred to the vehicles).

[122] Likewise with regard to the arrest of Protester Y, the Prosecutor's Information Sheet stated that Protester Y had been within 20 metres of "employees or equipment," neither of which is necessarily in violation of the injunction. The document stated that the protester was "observed by ????????? [sic]." Crown counsel analyzed the situation and concluded that none of the injunction's conditions had been breached. He also noted that, to secure a conviction, he would have to prove that the protesters had knowledge of the order, which means knowledge of its specific contents. There was also insufficient evidence that the protesters were committing a nuisance, as they were only "at the tree line on the side of the highway gesturing towards the police." Crown counsel stated that the reason for the arrest of Protester Y could not stand. File information indicates that a total of five individuals were arrested at that time.

[123] In its Interim PII Report, the Commission noted that the standards for pursuing a prosecution and obtaining a conviction are different than for a lawful arrest. Nonetheless, the Crown's opinions about the arrests and the Prosecutor's Information Sheets were compelling information suggesting that several "unlawful" arrests had been made, apparently based on a misinterpretation of the injunction.

[124] However, in its response, the RCMP Commissioner drew to the Commission's attention the notes of Constable Marco Johnson and Constable Frédéric Langlois. Constable Langlois' notes do indeed state that the four or five individuals had been observed [Translation] "within 250 metres of the gas trucks." Constable Johnson's notes appear to state with regard to Protester Y, "Advised of breach, [Protester Y] didn't think he was less than 20 metres or 250. Advised less than 250 [illegible word(s)]."

[125] It appears that the RCMP member who completed the Prosecutor's Information Sheets (who did not conduct the arrests himself) may have erred in describing the terms of the injunction and the grounds for arrest. It is unclear whether Crown counsel was in possession of the arresting members' notes, or whether the notes factored into his analysis, but the fact that he concluded that the arrests were unlawful based on the Prosecutor's Information Sheets raises doubts as to whether the notes were provided to him. It is also unclear whether the RCMP attempted to clarify this issue with Crown counsel after his decision.

[126] Due to the voluminous documentary record in this case, the Commission had not initially identified the notes of the arresting RCMP members. Under the circumstances, the Commission had assumed that proper procedures were followed and that all relevant documents and information had been provided to the Crown prosecutor, such that his opinion that the arrests were unlawful took into account all the pertinent information. In light of the information now provided to the Commission about the notes, the Commission concludes that it is possible that the arrests themselves were reasonable, but errors by the RCMP member in submissions to the Crown contributed to charges not being approved and the arrests being deemed unlawful.

[127] What remains clear from reviewing the videos and documentary evidence is that there was confusion among some protesters and some RCMP members as to the terms of the November 22, 2013, injunction; specifically, how close people were allowed to stand in relation to the vehicles and equipment. Although protesters, like all citizens, must inform themselves about the laws as they relate to their actions, the police enforcing the laws must also be fully informed about them and communicate them to the public as clearly as possible. This is especially pertinent when it comes to injunctions and the offence of disobeying a court order, which requires proof of intent to violate the order.

[128] Therefore, the Commission has decided to modify its Finding 11 to reflect the possibility that the arrests may not have been illegal, but that its concerns remain as to the confusion about, and possible misunderstanding of, the terms of the injunction.

Commission's Final Finding #11

There was confusion among some protesters and some RCMP members as to the terms of the November 22, 2013, injunction. There is insufficient information to conclude on the balance of probabilities that the arrests made pursuant to this injunction were unlawful or unreasonable. Although protesters, like all citizens, must inform themselves about the laws as they relate to their actions, the police enforcing the laws must also be fully informed about them and communicate them to the public as clearly as possible.

[129] With respect to Interim Finding 12, the Commission maintains that it cannot conclude that the road closures and rerouting of traffic were unreasonable. The allegations were too general for the Commission to make specific findings to that end, with the exception of the finding and extensive legal analysis made regarding Protester F's specific circumstances (Interim Finding 13).

[130] Therefore, the Commission reiterates Interim Finding 12. The Commission notes that, although the RCMP Commissioner presented her own interpretation of the evidence supporting her conclusion that the road closures and traffic rerouting were reasonable, she did not present any additional facts or evidence in support of this conclusion. The Commission—whose mandate as the RCMP's independent oversight body was to analyze the evidence and come to conclusions —did not consider that the evidence warranted a conclusion that the road closures and traffic rerouting were reasonable. On the contrary, the Commission had concerns about the potentially overbroad use of roadblocks and traffic rerouting, and their potential impact on the rights of the protesters. For these reasons, while it was not in a position to conclude on the evidence presented that the RCMP's actions were unreasonable in this case, the Commission made interim recommendations 6 and 7 to ensure that the risks of infringing upon protesters' rights was minimized in the future.

[131] In this regard, the Commission has concerns about the RCMP's response to interim recommendations 6 and 7. While the response officially supports the recommendations, the RCMP Commissioner also indicates that no action will be taken to implement them, as she believes the RCMP's current practices are already in line with the recommendations. However, the RCMP Commissioner did not present any information indicating that RCMP practices or procedures have changed since the events in Kent County. As such, the concerns the Commission had about these events remain, and the Commission can only reiterate the recommendations.

Sensitivity to Indigenous Culture, Ceremonies, and Sacred Items

[132] The Commission found that, with some notable exceptions, the RCMP members assigned to the protest policing operation did not have sufficient training in Indigenous cultural matters. The Commission recommended that the RCMP require all members to review the RCMP's Native Spirituality Guide, and that all members involved in Indigenous policing, including members of public order units involved in policing protests by Indigenous persons, be required to attend a training program that is specifically aimed at understanding Indigenous cultural issues.

[133] Video evidence showed 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. Indigenous protesters sometimes held 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. The available information suggests that RCMP members did not, either deliberately or unwittingly, unnecessarily interfere with Indigenous ceremonies or sacred items.

[134] However, 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. Without question, the handling of sacred items is a complex issue given the competing rights and interests at stake. The Commission stated that reflection on the part of the RCMP was required with a view to adopting a policy providing practical guidance to RCMP members dealing with the seizure and handling of sacred items. The Commission noted that this policy should enable RCMP members to make prompt decisions regarding the seizure and handling of sacred items, while refraining from unnecessarily curtailing the arrested person's Charter rights. The Commission concluded that the RCMP should develop a procedure for the handling of sacred items following an arrest, especially in a protest environment. 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.

Commission's Interim Finding #14

At the time the anti-shale gas protests policing operation began, with some notable exceptions, the members assigned to the operation did not have sufficient training in Indigenous cultural matters.

Commission's Interim Finding #15

The available information suggests that RCMP members did not, either deliberately or unwittingly, unnecessarily interfere with Indigenous ceremonies or sacred items.

Commission's Interim Recommendation #8

That the RCMP require all members to review the RCMP's Native Spirituality Guide, and that all members involved in Indigenous policing, including members of tactical troop/public order units involved in policing protests by Indigenous persons, be required to attend a training program that is specifically aimed at understanding Indigenous cultural issues.

Commission's Interim Recommendation #9

That the RCMP initiate collaboration with various Indigenous stakeholders with a view to developing a context-specific, practical procedure providing guidance to members with regard to the handling of sacred items in various contexts.

RCMP Commissioner's Response

[135] The RCMP Commissioner agreed with Interim Findings 14 and 15, and supported Interim Recommendations 8 and 9.

[136] With regard to Recommendation 8, the RCMP Commissioner informed the Commission that the RCMP has deployed ongoing efforts on training current and new RCMP members to keep pace with the diversity, understanding, and compassion required to execute policing duties in a bias-free manner and to provide members with a solid knowledge of cultural elements and history of Indigenous communities. The RCMP Commissioner explained that the RCMP offers 29 learning programs that include Indigenous culture as part of its curriculum; 24 of those programs or courses were created for and are presented directly to RCMP members with the intent of increasing Indigenous cultural knowledge and 26 of those courses contain material on Indigenous culture with a focus on regional traditions or geographic differences.

[137] The RCMP Commissioner also informed the Commission that the RCMP is presently developing a new Indigenous Awareness Guide that will highlight the distinct and unique cultures, languages, and political and spiritual traditions of Canada's First Nations, Métis, and Inuit peoples. This guide is intended to educate and increase the RCMP employees' cultural awareness and understanding of matters related to the delivery of Indigenous policing services and interactions with Indigenous peoples.

[138] The RCMP Commissioner indicated that she was satisfied that the new guide will expand on the information provided to members with regard to Indigenous cultural issues. Therefore, to implement the first part of the Commission's recommendation, she will direct that, once the new Indigenous Awareness Guide is completed, a national communique will be sent to all employees requesting that they review both the current Native Spirituality Guide and the newly developed Indigenous Awareness Guide.

[139] With regard to the recommendation that all RCMP members involved in Indigenous policing, including members of tactical troops/public order units involved in policing protests by Indigenous persons, be required to attend a training program specifically aimed at understanding Indigenous cultural issues, the RCMP Commissioner stated that she will direct that the Commanding Officer of each division identify training specifically aimed at understanding the cultural issues of the Indigenous communities found in their division, and ensure that members take that training. The results will be recorded on the members' training record.

[140] In relation to Recommendation 9, the RCMP Commissioner stated that she understands and acknowledges the concern that, at times, due to what appeared to have been a lack of appropriate communication or guidance, the handling of sacred objects during certain specific arrests could reasonably have led one to perceive an interference with those sacred objects. She also agreed that there was no formal RCMP procedure in place at the time detailing how and when, in practice, sacred objects should be seized and how they should be handled.

[141] The RCMP Commissioner stated that, considering the country's demographics and the varied traditions, beliefs, and practices of its Indigenous communities, she determined that the implementation of the Commission's recommendation should be done at the divisional level. She agreed to direct the commanding officers of each division to ensure that collaboration is initiated with their local Indigenous stakeholders to develop appropriate and culturally sensitive procedures, as referenced in the Commission's recommendation.

Alleged Bias Against Indigenous Protesters

[142] A number of protesters claimed that the RCMP treated the Indigenous protesters more harshly than non-Indigenous protesters. In particular, they perceived that more Indigenous protesters were arrested and charged than were non-Indigenous protesters.

[143] Several factors may have contributed to the allegations of bias. On the available evidence, the Commission concluded that it was satisfied that the RCMP members did not differentiate between Indigenous and non-Indigenous protesters when making arrests, nor did they demonstrate bias against Indigenous protesters generally.

Commission's Interim Finding #16

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.

RCMP Commissioner's Response

[144] The RCMP Commissioner agreed with Interim Finding 16.

Tactical Operation of October 17, 2013

[145] Commission determined that the RCMP had the legal authority to conduct the tactical operation of October 17, 2013, and that it was a reasonable exercise of their discretion to do so in all the circumstances. However, the Commission found 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.

[146] With regard to the lead-up to the operation, an "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.

[147] 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.

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

[149] 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. 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. Although there had been no confirmed evidence of firearms at the campsite, there was reportedly a significant amount of information to that effect.

[150] 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.

[151] 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 in the compound 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 it was a reasonable exercise of their discretion to do so in all the circumstances.

[152] However, the Commission found that it was 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, including numerous arrests, use of force incidents, and a loss of trust in the RCMP on the part of local communities. It was apparent that the mobilization of troops from "C" Division (Quebec) and "H" Division (Nova Scotia) (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. The Commission concluded that allowing more time for negotiation, particularly after the Crisis Negotiation Team ("CNT")'s negotiations had already borne fruit, would have been reasonable and desirable in the circumstances.

Commission's Interim Finding #19

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.

Commission's Interim Finding #20

It would have been prudent to allow more time for negotiations and a review of the injunction in court before proceeding with the operation. Allowing more time for negotiation, particularly after the Crisis Negotiation Team's negotiations had already borne fruit, would have been reasonable and desirable in the circumstances.

Commission's Interim Finding #31

The evidence before the Commission does not support the allegation that, on October 17, 2013, RCMP members were "ill-equipped so that some might suffer physical harm which would result in the vilification of protesters."

Commission's Interim Finding #33

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.

Commission's Interim Finding #36

The decision not to inform the schools about the imminent operation was reasonable, although it would have been prudent for the Tactical Operational Plan to have been modified to ensure that children were able to get to school prior to the operation commencing.

Commission's Interim Finding #37

There is no evidence to support the claim that agents provocateurs were used by the RCMP on October 17, 2013.

Commission's Interim Finding #38

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

RCMP Commissioner's Response

[153] The RCMP Commissioner agreed with Interim Finding 19.

[154] The RCMP Commissioner disagreed with Interim Finding 20. She stated that several reasons were provided by the Incident Commander for refusing to delay the tactical operation in favour of further negotiation, as requested by RCMP negotiators. She further explained that there was nothing in the relevant materials about how much additional time the RCMP negotiators required, which she believed would have been a key consideration in the decision. The RCMP Commissioner noted that the Commission's investigators did not pose this question during their interviews with RCMP members.

[155] Overall, the RCMP Commissioner found that the decision to proceed with the tactical operation as planned on October 17, 2013, was prudent and was a reasonable consequence of the Incident Commander's risk analysis based on the information known to him at the relevant time.

[156] The RCMP Commissioner agreed with Interim Findings 31 and 33.

[157] The RCMP Commissioner agreed only in part with Interim Finding 36. She stated that there was insufficient evidence to conclude that the Operational Plan could have been modified in such a way that students could be allowed to attend school without preventing word of the operation from reaching the protesters, and she noted that the Commission's investigators did not ask the relevant RCMP member about modifying the plan. The RCMP Commissioner stated that public and police safety (which required secrecy about the timing of the operation) took precedence over any inconvenience to the school children, teachers, and staff.

[158] The RCMP Commissioner agreed with Interim Findings 37 and 38.

Commission's Analysis of the RCMP's Response

[159] With respect to Interim Finding 20, the Commission notes that, in its Interim PII Report, it had acknowledged, in detail, the factors supporting the imminent implementation of the tactical operation. The Commission found clearly that the operation was legally justifiable and that it was reasonable in the circumstances for the RCMP to conduct the operation.

[160] Nevertheless, the Commission remains of the view that it would have been prudent to allow more time for negotiations and the upcoming review of the injunction in court before proceeding with the operation.

[161] The considerations raised by the RCMP Commissioner about the lack of knowledge of how much more time the RCMP negotiators requested are inconsequential to the Commission's finding. The Commission found that allowing for more time would have been advisable. How much time was required was something the Incident Commander would have had to discuss with the negotiators, had he decided to allow for this possibility. As it was, the RCMP negotiators asked for more time to negotiate, and none was given.

[162] The Commission continues to acknowledge that senior RCMP officers were faced with a difficult decision. Tensions had been escalating and, even after the negotiation breakthrough, significant issues remained outstanding. Some important progress had been made, however, and further efforts could have been undertaken to that end, as requested by the RCMP negotiators. The decision to go ahead with the tactical operation had significant consequences. Allowing more time for negotiation, particularly after the CNT's negotiations had already borne fruit, would have been a reasonable and desirable course of action in the circumstances.

[163] Accordingly, the Commission reiterates Interim Finding 20.

[164] With respect to Interim Finding 36 about the impact on children who were not able to get to school before the operation started, the Commission notes that RCMP plans had initially called for the Superintendent of Schools to be notified before 6 a.m. on the day of the tactical operation; this would include the high school and possibly the middle school and elementary school "if applicable." A contact person had been identified. An official school closure announcement would be made shortly thereafter, and then a telephone advisory would go out to residents in the immediate area.

[165] This plan was not implemented and the schools received no prior notice of the operation. In its Interim PII Report, the Commission found that the 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.

[166] However, the Commission remains of the view that it would have been prudent for the Tactical Operational Plan to have been modified to ensure that children were able to get to school prior to the operation commencing.

[167] The 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. The RCMP Commissioner referred to "the inconvenience to children and school staff" in this situation, but the Superintendent of Schools stated the following to the Commission's investigator, "We were told that kids were traumatized, that it was a very frightening situation." She recounted, "I called a bus driver just to see how they were doing. At that point he was talking to me [and] a young child was throwing up because he was scared." There were kindergarten students on the buses, "They're five years old and they're seeing people running around and helicopters buzzing around and police cars with sirens flashing and ambulances going by." The Superintendent explained that the high school went into full lockdown and the other schools went into a modified lockdown (the doors were locked but the children were not in hiding).

[168] For these reasons, the Commission continues to be of the view that more should have been done to avoid the consequences suffered by the school children. The RCMP initially had an elaborate plan for notifying and closing the schools, which appropriately recognized the importance of doing so. When that plan was abandoned, the lack of a modified plan seeking to ensure the well-being of students was apparent.

[169] Therefore, the Commission reiterates Finding 36.

Crisis Negotiation Team

[170] Throughout the blockade, the RCMP's CNT negotiated with the protesters. They 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.

[171] The CNT had successfully resolved a key issue and, the night before the tactical operation occurred, negotiators presented tobacco to one of the main Indigenous spokespeople, which was variously seen as a show of respect or a peace offering. 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.

[172] For various reasons, the CNT had been "walled off" from information about operational planning. Although the Commission found that there were reasonable rationales for maintaining separation between negotiators and operational planners, the Commission recommended that the RCMP give consideration to more fully informing CNT members of the overall strategy being pursued, to avoid regrettable misunderstandings that can damage relationships between the RCMP and members of the public. The Commission also recommended that the RCMP consider drafting a policy that is specifically tailored to the CNT's role in public order policing operations.

Commission's Interim Finding #3

Throughout the protests up to October 17, 2013, the RCMP command team and the Crisis Negotiation Team made every effort to bring stakeholders together to achieve a resolution to the conflict. These efforts were frustrated, in part, by the intractable nature of the dispute and by the absence of clear leadership on the part of the protesters.

Commission's Interim Finding #18

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.

Commission's Interim Recommendation #10

Although there are reasonable rationales for maintaining separation between negotiators and operational planners, the RCMP should give consideration to more fully informing Crisis Negotiation Team members of the overall strategy being pursued, to avoid regrettable misunderstandings, which can damage relationships between the RCMP and members of the public.

Commission's Interim Recommendation #11

The RCMP should consider drafting a policy that is specifically tailored to the Crisis Negotiation Team's role in the circumstances of public order policing.

RCMP Commissioner's Response

[173] The RCMP Commissioner agreed with Interim Findings 3 and 18. The RCMP Commissioner also supported Interim Recommendations 10 and 11.

[174] Specifically, in supporting Recommendation 10, the RCMP Commissioner acknowledged the consequences that the decision to isolate members of the CNT from information about the Operational Plan had in this case. She informed the Commission that consideration has been given to the present recommendation, and it was found that the Tactical Operations Manual, Part 3, "Crisis Negotiations Team," should be modified to provide that the CNT Team Leader be made privy to the overall operational strategy being pursued by the command team. This modification should also specify that it would be the responsibility of the CNT Team Leader to share with the other members of the team only the information necessary to fulfil the CNT's role. She indicated that she will direct that this be done.

[175] With regard to Recommendation 11, the RCMP Commissioner stated that this recommendation has been considered and it was determined that Tactical Operations Manual chapter 3.1., "Crisis Negotiation Responsibilities," could better reflect the different roles played by the CNT. She indicated that she will direct that this be done.

Arrests

[176] With regard to the arrests that occurred during the spring and summer of 2013, the available information suggested 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. Having examined the evidence, the Commission concluded that this was generally justified given the assaultive, resistive, and inciting conduct of some protesters.

[177] The Commission reviewed an extensive amount of RCMP records, video recordings, and witness statements documenting numerous arrests that took place over the course of the months-long protests. In general terms, and with certain exceptions, the Commission found that RCMP members had reasonable grounds to believe that persons had committed or were committing various offences including mischief and/or obstruction; that it was, therefore, reasonable to arrest those persons; and that the force used in conducting the arrests was necessary and proportional in the circumstances. The Commission also found that detention practices were generally planned and implemented in a reasonable manner.

[178] With regard to the arrests of persons at the campsite, the Commission found that it was reasonable to conclude that the persons maintaining the blockade were committing mischief, in that they were interfering with SWN's ability to use its equipment. Others at the campsite, if not necessarily active participants in the blockade, were parties to the offence of mischief. Importantly, 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, the Commission concluded that the arrests of persons at the campsite were reasonable in the circumstances.

[179] The Commission reviewed the arrest of the Chief of the Elsipogtog First Nation and council members; they were placed in police vehicles and then released. The Commission determined that RCMP members accommodated the Chief and council members by allowing them to enter the campsite after it had been cleared. It was reasonable for RCMP members to arrest the Chief and council members for the offence of mischief when they subsequently sat down in front of the SWN compound and refused to leave.

[180] The Commission also found that the plastic tie wrap handcuffs that were placed on some protesters were likely tighter than was necessary to restrain them. The Commission recommended that, in situations such as public order policing when RCMP members may be required to arrest persons using plastic tie wrap handcuffs, the restraints only be applied with as much force as is necessary to safely restrain the arrested person.

Commission's Interim Finding #1

Overall, RCMP members handled post-arrest and detention procedures in a reasonable manner and in compliance with policy.

Commission's Interim Finding #21

In general terms, and with certain exceptions (arrests conducted pursuant to the November 22, 2013, injunction), the Commission finds that, during the anti‑shale gas protests, RCMP members had reasonable grounds to arrest persons for various offences including mischief and/or obstruction, and that, in general terms, the force used in conducting arrests was necessary and proportional in the circumstances.

Commission's Interim Finding #22

The handcuffs that were initially placed on Protester C and Protester D were likely tighter than was necessary to restrain them.

Commission's Interim Finding #23

It is reasonable to conclude that the persons maintaining the blockade were committing mischief, 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. In addition, the injunction order specifically prohibited persons from impeding SWN's work at the compound, and authorized police to arrest persons violating the terms of the injunction. Thus, arrests of persons at the campsite were reasonable in the circumstances.

Commission's Interim Finding #24

It was reasonable for RCMP members to arrest Chief Sock and the council members for the offence of mischief when they sat down in front of the SWN compound and refused to leave.

Commission's Interim Recommendation #12

That, in situations such as public order policing when RCMP members may be required to arrest persons using plastic tie wrap handcuffs, the restraints only be applied with as much force as is necessary to safely restrain the arrested person.

RCMP Commissioner's Response

[181] The RCMP Commissioner agreed with Interim Finding 1.

[182] The RCMP Commissioner agreed in part with Interim Finding 21. She reiterated her view that she is satisfied that RCMP members had reasonable grounds when they arrested several protesters pursuant to the November 22, 2013, injunction.

[183] The RCMP Commissioner agreed with Interim Findings 22, 23, and 24.

[184] The RCMP Commissioner stated that she supported Interim Recommendation 12, but that she would not direct that any action be taken to implement it, as she is satisfied that RCMP operational practices are already in line with the recommendation.

Commission's Analysis of the RCMP's Response

[185] Given its modification of Interim Finding 11, as described above, the Commission has also decided to modify Interim Finding 21 along the same lines.

Commission's Final Finding #21

In general terms, the Commission finds that, during the anti‑shale gas protests, RCMP members had reasonable grounds to arrest persons for various offences, including mischief and/or obstruction, and that, in general terms, the force used in conducting arrests was necessary and proportional in the circumstances.

[186] With respect to Interim Recommendation 12, the Commission reiterates its concerns about a response that supports the recommendation, but states that no action will be taken to implement it. In particular, in this case, the RCMP Commissioner has not explained how it was, if RCMP practices are already in line with the recommendation, that the handcuffs placed on certain protesters were likely tighter than necessary, as found in Interim Finding 22. The RCMP Commissioner has also not provided any information indicating that practices have been modified since these events. As such, the Commission can only reiterate its recommendation.

Use of Force

[187] Several protesters submitted public complaints contesting their arrests and the force used against them. The Commission completed individual reports and described select examples of arrests and the use of force in its Interim PII Report in this case. The Commission also received numerous complaints of a general nature regarding the RCMP's use of force during the anti-shale gas protests, particularly during the tactical operation. Complainants asserted among other things that RCMP members used unnecessary and excessive force against protesters during peaceful protests; improperly used firearms to deal with protesters; and unnecessarily fired sock (bean bag) rounds at protesters.

[188] 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. 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 found 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 RCMP members encountered.

[189] Likewise, video evidence confirmed 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 pushing and striking, as well as deploying pepper spray and sock rounds. The Commission concluded that, given the risks posed by the protesters' conduct, and reasonable concerns for the safety of RCMP members and the public, in general terms this use of force was necessary in the circumstances and was proportional to the conduct encountered by the members.

Commission's Interim Finding #25

Physical force such as pushing, striking, or using pepper spray to control the protesters was used after the protesters physically tried to break through the police line and were effectively participating in a riot. Given the risks posed by the protesters and the concerns regarding the safety of RCMP members and the public, the use of force including pushing, striking, or deploying pepper spray was necessary in the circumstances and was proportional to the conduct encountered by the members.

Commission's Interim Finding #26

In the context of the standoff, it was necessary for members to use force (including sock rounds and the drawing and/or pointing of firearms), and the type and amount of force used was proportional to the conduct that the members encountered.

Commission's Interim Finding #27

Emergency Response Team members had reasonable grounds to suspect that protesters in the woods might be carrying firearms or explosive devices because of the standoff with an armed protester that had occurred earlier that day, and because Molotov cocktails had been thrown from the woods by unidentified protesters earlier that day.

Commission's Interim Finding #28

Given that Emergency Response Team members had reasonable grounds to suspect that protesters in the woods might be carrying firearms or explosive devices, from the evidence available to it, the Commission finds that the pointing of a firearm did not constitute an unreasonable use of force in the circumstances.

Commission's Interim Finding #29

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.

Commission's Interim Finding #30

The Commission did not find any evidence of direct physical contact between police service dogs and protesters. The evidence shows that police service dogs were used as a psychological deterrent only. Consequently, the use of police service dogs 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.

RCMP Commissioner's Response

[190] The RCMP Commissioner agreed with Interim Findings 25, 26, 27, 28, 29, and 30.

Contingency Planning

[191] The Commission noted that no plan can anticipate every eventuality, and allowing for discretion and flexibility in decision-making is essential in any dynamic operation. That said, although there had been no reliable information about firearms at the campsite, there had been several rumours to that effect. Therefore, the Commission found that it would have been reasonable for the Tactical Operational Plan to have provided for the possibility of there being firearms and explosives at the campsite. In addition, for several reasons, the situation during the tactical operation deteriorated to the point where six police vehicles were left unguarded and were set on fire by protesters. The Commission found 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 gathering on Route 134.

Commission's Interim Finding #32

Although there had been no reliable information about firearms at the campsite, there had been several rumours to that effect. It would, therefore, have been reasonable for the Tactical Operational Plan to have provided for the possibility of there being firearms and explosives at the campsite.

Commission's Interim Finding #34

It was reasonable for the RCMP to have decided to use police vehicles as a "movable" barricade. Once the situation had deteriorated, it was reasonable for RCMP 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.

Commission's Interim Finding #35

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.

RCMP Commissioner's Response

[192] The RCMP Commissioner disagreed with Interim Finding 32. She stated that, while there was not a formalized process contained within the Operational Plan to deal with the possibility of firearms and/or explosives being present in the camp, it was clear in the relevant materials that this concept was addressed in the plan. She added that the relevant materials were replete with references by RCMP members to the possibility of weapons being present there. The RCMP Commissioner stated that "it was preferable to allow members to address the discovery of firearms or explosives by using their training and experience rather than to require them to follow a process that may or may not be workable given the highly volatile and stressful nature of the protests."

[193] The RCMP Commissioner agreed with Interim Finding 34.

[194] The RCMP Commissioner agreed in part with Interim Finding 35, stating that the Incident Commander was very much alive to the possibility of a large number of belligerent protesters on Route 134, and that, with the resources at his disposal, he did not feel the need to make specific provisions for that eventuality in the Operational Plan. The RCMP Commissioner stated that the Incident Commander "did not need more resources" given that he had 200 RCMP members at his disposal for the operation, including a number of Quick Response Teams.

[195] The RCMP Commissioner added that the Incident Commander and "presumably most other members" were well aware of the possibility of an increase in the number of belligerent protesters in that area once the operation began, but that the absence of this scenario in the Operational Plan was not unreasonable and likely would not have changed how the RCMP members handled the situation.

Commission's Analysis of the RCMP's Response

[196] With respect to Interim Finding 32 about providing for the possibility of firearms, the Commission notes that its Interim PII Report had already addressed many of the points raised in the RCMP Commissioner's response. For example, the Interim PII Report specifically recognized that the possibility of the presence of firearms was mentioned in the Operational Plan. A section of the plan had been quoted to that effect. The Interim PII Report also found that "[a]llowing for discretion and flexibility in decision-making is essential in any dynamic operation."

[197] Hence, as its Interim PII Report indicates, the Commission agrees that this risk was better addressed through training and experience than through a pre-determined process. Indeed, this is exactly what was done when a person pointed a rifle at police, and RCMP members defused a tense and dangerous situation with no injuries or loss of life.

[198] Nevertheless, the Commission continues to be of the view that the Operational Plan could have made more explicit reference to the possibility of firearms being present and had stronger emphasis on this point, without necessarily providing for a specific contingency plan. This is especially pertinent given the considerable danger posed by this threat, as well as the significant consequential effects on the entire operation when a firearm was in fact brandished (lengthy delays in the operation, the redirection of resources, and so on).

[199] For these reasons, the Commission reiterates Finding 32.

[200] With respect to Interim Finding 35, the Commission reiterates that the checkpoint on the western "flank" was initially staffed with what was believed to be an adequate number of RCMP members given the available resources, but that events took over and the situation changed for the worse. Resources were redirected and operations at the blockade and the encampment took longer than expected. As time progressed, the western flank was subject to a growing number of belligerent protesters. RCMP members did their best in responding to an ever-evolving situation, but the western checkpoint area essentially devolved into a riot scene and numerous police vehicles were set ablaze.

[201] The Commission further notes that, if the possibility of an increase in the number of belligerent protesters in the area in question was widely anticipated, as stated in the RCMP Commissioner's response, then it is all the more reason for more thorough provisions to have been made in the Operational Plan in order to respond to it. Although RCMP members sought to do the best they could in a volatile situation, the riotous melee and resultant criminal damage that ensued was a low point in the RCMP operation in Kent County.

[202] With respect to the comment in the RCMP Commissioner's response indicating that the Incident Commander did not need more resources, the Commission notes that it did not make any finding in its Interim PII Report regarding the sufficiency of the RCMP resources deployed to respond to the protests. Therefore, the Commission will not comment on the RCMP Commissioner's statement in this report.

[203] The Commission reiterates Finding 35.

Commission's Final Findings and Recommendations

Final Findings

  1. Overall, RCMP members handled post-arrest and detention procedures in a reasonable manner and in compliance with policy.
  2. In general terms, RCMP members understood and applied a measured approach in their dealings with protesters.
  3. Throughout the protests up to October 17, 2013, the RCMP command team and the Crisis Negotiation Team made every effort to bring stakeholders together to achieve a resolution to the conflict. These efforts were frustrated, in part, by the intractable nature of the dispute and by the absence of clear leadership on the part of the protesters.
  4. The information available to the Commission does not establish, on the balance of probabilities, that persons had an objectively reasonable expectation of privacy with regard to their communications through Facebook groups, or that the RCMP Undercover Operator "intercepted" those communications as outlined in the relevant jurisprudence.
  5. 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.
  6. 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. 
  7. 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.
  8. 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 vehicles. This practice was inconsistent with the Charter rights of the vehicle occupants.
  9. Although some of the roadblocks were likely justified in the specific circumstances, 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 Charter rights of vehicle occupants. 
  10. On the balance of probabilities, the practice of searching vehicles entering the campsite may, in the circumstances, have been inconsistent with the individuals' right to be secure against unreasonable search and seizure. It would have been preferable for the RCMP to seek a general search warrant, if sufficient grounds existed.
  11. There was confusion among some protesters and some RCMP members as to the terms of the November 22, 2013, injunction. There is insufficient information to conclude on the balance of probabilities that the arrests made pursuant to this injunction, were unlawful or unreasonable. Although protesters, like all citizens, must inform themselves about the laws as they relate to their actions, the police enforcing the laws must also be fully informed about them and communicate them to the public as clearly as possible.
  12. 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 rerouting 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.
  13. 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.
  14. At the time the anti-shale gas protests policing operation began, with some notable exceptions, the members assigned to the operation did not have sufficient training in Indigenous cultural matters.
  15. The available information suggests that RCMP members did not, either deliberately or unwittingly, unnecessarily interfere with Indigenous ceremonies or sacred items.
  16. 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.
  17. The RCMP did not act as private security for SWN. Its role was to keep the peace and ensure public safety while respecting the protesters' right to protest. Based on the available information, the RCMP's interactions with SWN Resources Canada were reasonable in the circumstances.
  18. 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.
  19. 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.
  20. It would have been prudent to allow more time for negotiations and a review of the injunction in court before proceeding with the operation. Allowing more time for negotiation, particularly after the Crisis Negotiation Team's negotiations had already borne fruit, would have been reasonable and desirable in the circumstances.
  21. In general terms, the Commission finds that, during the anti‑shale gas protests, RCMP members had reasonable grounds to arrest persons for various offences, including mischief and/or obstruction, and that, in general terms, the force used in conducting arrests was necessary and proportional in the circumstances.
  22. The handcuffs that were initially placed on Protester C and Protester D were likely tighter than was necessary to restrain them.
  23. It is reasonable to conclude that the persons maintaining the blockade were committing mischief, 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. In addition, the injunction order specifically prohibited persons from impeding SWN's work at the compound, and authorized police to arrest persons violating the terms of the injunction. Thus, arrests of persons at the campsite were reasonable in the circumstances.
  24. It was reasonable for RCMP members to arrest Chief Sock and the council members for the offence of mischief when they sat down in front of the SWN compound and refused to leave.
  25. Physical force such as pushing, striking, or using pepper spray to control the protesters was used after the protesters physically tried to break through the police line and were effectively participating in a riot. Given the risks posed by the protesters and the concerns regarding the safety of RCMP members and the public, the use of force including pushing, striking, or deploying pepper spray was necessary in the circumstances and was proportional to the conduct encountered by the members.
  26. In the context of the standoff, it was necessary for members to use force (including sock rounds and the drawing and/or pointing of firearms), and the type and amount of force used was proportional to the conduct that the members encountered.
  27. Emergency Response Team members had reasonable grounds to suspect that protesters in the woods might be carrying firearms or explosive devices because of the standoff with an armed protester that had occurred earlier that day, and because Molotov cocktails had been thrown from the woods by unidentified protesters earlier that day.
  28. Given that Emergency Response Team members had reasonable grounds to suspect that protesters in the woods might be carrying firearms or explosive devices, from the evidence available to it, the Commission finds that the pointing of a firearm did not constitute an unreasonable use of force in the circumstances.
  29. 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.
  30. The Commission did not find any evidence of direct physical contact between police service dogs and protesters. The evidence shows that police service dogs were used as a psychological deterrent only. Consequently, the use of police service dogs 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.
  31. The evidence before the Commission does not support the allegation that, on October 17, 2013, RCMP members were "ill-equipped so that some might suffer physical harm which would result in the vilification of protesters."
  32. Although there had been no reliable information about firearms at the campsite, there had been several rumours to that effect. It would, therefore, have been reasonable for the Tactical Operational Plan to have provided for the possibility of there being firearms and explosives at the campsite.
  33. 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.
  34. It was reasonable for the RCMP to have decided to use police vehicles as a "movable" barricade. Once the situation had deteriorated, it was reasonable for RCMP 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.
  35. 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.
  36. The decision not to inform the schools about the imminent operation was reasonable, although it would have been prudent for the Tactical Operational Plan to have been modified to ensure that children were able to get to school prior to the operation commencing.
  37. There is no evidence to support the claim that agents provocateurs were used by the RCMP on October 17, 2013.
  38. The Commission found no evidence that non-RCMP members were used during the operation on October 17, 2013. 

Final Recommendations

  1. That, in addition to the Privacy Act and the RCMP's existing policy and training, the RCMP provide clear policy guidance setting out defined and reasonably constrained intelligence and law enforcement parameters with respect to the collection of personal information from open sources such as social media sites, the uses that can be made of it, and what steps should be taken to ensure its reliability.
  2. That RCMP policy treat personal information and supporting documents obtained from social media sources containing personal information (such as screen captures of social media sites) as a separate category of records. This category of records should be kept for no longer than strictly necessary to provide intelligence for the event or purpose for which it was collected where it is established that there is no criminal nexus or national security dimension. Additionally, where an intelligence assessment or other product generated from open sources is to be retained, RCMP policy should require the anonymization or destruction of any personal information within that assessment where there is no connection to criminal activity or to the RCMP's national security mandate (such as where the personal information relates to lawful dissent).
  3. That the RCMP develop policies providing that personal information obtained with respect to public order events like protests and demonstrations should be destroyed as soon as practicable and in accordance with applicable law once it is determined that there is no criminal nexus or that the information is otherwise no longer necessary for the purposes for which it was collected.
  4. That members involved in public order policing operations be provided with a review of law and policy related to search and seizure, including the warrant requirement and the legal grounds establishing exceptions for warrantless searches.
  5. That the RCMP provide members who are 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.
  6. That decisions to restrict access to public roadways or other public sites be made only with specific, objectively reasonable rationales for doing so, and if legally permissible, 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.
  7. That, particularly when policing a public protest, members be cognizant of the limits of their powers, specifically in relation to curtailing protesters' ability to assemble and express themselves in a lawful manner.
  8. That the RCMP require all members to review the RCMP's Native Spirituality Guide, and that all members involved in Indigenous policing, including members of tactical troop/public order units involved in policing protests by Indigenous persons, be required to attend a training program that is specifically aimed at understanding Indigenous cultural issues.
  9. That the RCMP initiate collaboration with various Indigenous stakeholders with a view to developing a context-specific, practical procedure providing guidance to members with regard to the handling of sacred items in various contexts.
  10. Although there are reasonable rationales for maintaining separation between negotiators and operational planners, the RCMP should give consideration to more fully informing Crisis Negotiation Team members of the overall strategy being pursued, to avoid regrettable misunderstandings, which can damage relationships between the RCMP and members of the public.
  11. The RCMP should consider drafting a policy that is specifically tailored to the Crisis Negotiation Team's role in the circumstances of public order policing.
  12. That, in situations such as public order policing when RCMP members may be required to arrest persons using plastic tie wrap handcuffs, the restraints only be applied with as much force as is necessary to safely restrain the arrested person.

Conclusion

[204] Pursuant to subsection 45.76(3) of the RCMP Act, the Commission respectfully submits its Final Report, and accordingly the Commission's mandate in this matter is ended.

Michelaine Lahaie
Chairperson

Date modified: