Mounties may have broken law during N.B. anti-fracking protests, says watchdog


Some of the RCMP’s tactics during the 2013 anti-shale gas protests in New Brunswick might have broken the law, while other practices raise concerns about how Mounties surveil protesters, according to an investigation by the force’s watchdog.

The Civilian Review and Complaints Commission released its final report this morning looking into how the RCMP responded to anti-fracking protests that erupted into a riot in the fall of 2013 near Elsipogtog First Nation in Kent County, N.B.

While the 200-plus-page report notes many officers acted within reason, it flags deep-seated concerns with the way Mounties gather intelligence, restrict movement during protests and approach Indigenous culture. 

“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,” notes the commission’s final report, released Thursday morning. 

The protests at the heart of the investigation began after the government of New Brunswick granted a licence to SWN Resources Canada to explore the accessibility of shale gas near the town of Rexton. The protesters, many of whom were Indigenous and fiercely opposed to the exploration project, retaliated by blocking access to the site and setting up an encampment.

Police were in the area to enforce a court-issued injunction and tensions boiled over after the Mounties ran a tactical operation on Oct. 17 and cleared the site. The clash resulted in what the commission described as a riot, leading to dozens of arrests and multiple RCMP vehicles being torched.

After receiving more than 21 complaints, the commission launched an investigation that looked at the six-month span from June to December 2013. As part of the probe, the CRCC reviewed thousands of files, video and documentary evidence and spoke to more than 100 witnesses.

RCMP didn’t have legal authority: report

That investigation concluded that some of the RCMP’s surveillance practices and physical searches were inconsistent with protesters’ Charter rights.

“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,” notes the report.

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

The information gathered included the 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” and another section to list whether or not a criminal record check and a police database check had been conducted on the driver. 

“In conducting ‘stop checks,’ RCMP members randomly stopped vehicles for a purpose other than those set out in provincial highway traffic legislation,” said the report.

“The members were not responding to an emergency, nor did they have judicial authorization to do so.”

RCMP Commissioner Brenda Lucki agreed with eight of the CRCC’s 12 recommendations. (Adrian Wyld/The Canadian Press)

The commission also felt that the practice of searching people entering the campsite was inconsistent with their right to be secure against unreasonable search and seizure.

Given those findings, the commission said Mounties involved in these types of public order policing operations should be given a review of the laws and policy around search and seizures, including warrant requirements.

RCMP Commissioner Brenda Lucki disagreed.

When it comes to stop checks and roadblocks, she argued from her review of the evidence, there was nothing to conclude that the sole purpose of the stops was intelligence gathering, and said there weren’t enough facts or context upon which to come to those conclusions. She also noted that some of the video evidence showed only snippets and not the full interactions. 

However, she wrote in her 19-page response that while she disagrees with the recommendation, she agreed to provide members a review of the law “as a best practice going forward.”

Intelligence gathering online questioned

The commission also looked into how the Mounties kept an eye on protesters and how that intelligence was stored.

The report found that RCMP policy did not provide clear guidance about collecting, using and retaining personal information obtained from social media and other open sources, especially when it was determined the people involved had no criminal involvement or intention. 

“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,” it said.

The commission recommended that the RCMP provide clear policy guidance setting out parameters around collecting and storing personal information from open sources, such as social media, and that steps should be taken to ensure its reliability.

In her response, Lucki acknowledged that during the time of the protests, the RCMP did not have a policy that provided clear guidance on gathering personal information obtained from social media or other open sources and have made some changes.

But she disagreed with the recommendations to update the policy regarding intelligence gathering and storage, noting that 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.

This RCMP cruiser was among those destroyed during an anti-shale gas protest near Rexton, N.B., in October 2013. (Courtesy of Gilles Boudreau)

In its final report, the watchdog wrote that it’s troubled by this response and said it has ramifications for protesters going forward.

“The RCMP’s position on the indiscriminate, long-term retention of personal information about lawful dissent collected from sources like social media is concerning,” said the report.

“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.”

Indigenous sensitivities

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

However, it said based on the available evidence, it is satisfied that officers did not differentiate between Indigenous and non-Indigenous protesters when making arrests.

The CRCC found that RCMP members assigned to the operation near Rexton, N.B., in 2013 did not have sufficient training in Indigenous cultural matters. (Jen Choi/CBC)

The commission made multiple recommendations related to training on Indigenous cultural practices and the handing of sacred items, which the RCMP said it will implement.

The report cleared officers on many fronts, including that the RCMP’s use of force was generally necessary and proportional in the circumstances, especially given the risks posed by the protesters’ conduct.

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

Issues with review legislation 

The commission released portions of its interim report earlier this year when it was asked to review the RCMP’s conduct on Wet’suwet’en traditional territory in British Columbia.

CRCC Chairperson Michelaine Lahaie declined to launch a public interest investigation because she said the same broad issues were raised and previously investigated in New Brunswick.

The Civilian Review and Complaints Commission reviews thousands of complaints every year, though the vast majority are not as high-profile as the Rexton protests.

While the commission has investigative powers and can make recommendations, the RCMP has no obligation to implement those findings and there’s no appeal process to deal with the disagreements between the two bodies.

This is something the report called into question multiple times. 

“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,” the report concludes.

“Such a process would amount to giving the RCMP carte blanche to come to its own conclusions about its members’ actions.”