The Civilian Review and Complaints Commission of the RCMP – issued its Final Report on the RCMP’s actions in managing Indigenous protests over shale-gas exploration by SWN Resources Canada in New Brunswick in 2013. After reviewing the RCMP’s response to the interim report’s findings on the 21 specific complaints, the CRCC Chairperson noted “with concern, however, that the RCMP has expressed reluctance to take action with regard to some of these findings and recommendations, and as expressed in the Kent County report, I encourage them to do so without delay… Canada’s ongoing reconciliation with Indigenous people includes protecting the rights of those whose voices have been diminished by systemic sources of racism in our society”.

The RCMP’s own views about the appropriateness of its members’ actions should not be allowed to govern in a case where the independent oversight body has reached a different conclusion, and no further factual information or explanation is being offered by the RCMP. Such a process would amount to giving the RCMP carte blanche to come to its own conclusions about its members’ actions. In its response, the RCMP acknowledged a number of the Commission’s findings, including several of those critical of its actions. Furthermore, the RCMP agreed to implement several of the Commission’s recommendations:

• including sensitivity and awareness training related to Indigenous culture and sacred items;
• better information sharing with crisis negotiators; and
• refreshers for RCMP members on law and policy for search and seizure.

However, the Commission has serious concerns about the RCMP’s response to some of its findings and recommendations. Those concerns are discussed in the preface to its report. Of note, while the RCMP indicated that it supported 8 of the Commission’s 12 recommendations, it believed 3 of those required no further action. This concerns the Commission, as these included recommendations concerning roadblocks, exclusion zones and limits to police powers. The Commission made recommendations about these issues because there were concerns about the RCMP’s actions in this case.

Executive Summary and Select Findings and Recommendation:

• The role of the RCMP in enforcing the law and legal injunctions: No fault found. The RCMP was not acting as SWN’s private security
• Was their approach in crisis management philosophy a “measured approach” Yes
• Were Surveillance and Searches consistent with Charter Rights. No. There were some unjustified actions
• Open-source intelligence gathering: recommendations on tightening operational practices and policies
• Freedom of expression, Association and Peaceful Assembly: recommendations to limit unreasonable enforcement of injunction powers
• Sensitivity to Indigenous culture, ceremonies and sacred items: All RCMP members review Native Spirituality Guide and any involved in Indigenous policing receive Indigenous cultural training
• Alleged bias against Indigenous protestors: No evidence to support Indigenous protestors being treated more harshly than non-Indigenous
• Tactical operation on Oct. 17, 2013: RCMP had legal authority to conduct the tactical operation but continuing negotiation beforehand would have been advisable
• Crisis Management Team (CMT): Isolating the CMT from information about around operational planning strategy was a mistake
• Arrests: With some exceptions, these actions were justified
• Use of Force: the use of force was generally necessary in the circumstances and was proportional to the conduct encountered by the members.
• Contingency Planning: Could have been better prepared to account for operational challenges: armed and/or belligerent protestors, more awareness of negative impact on children in school bus witnessing potential violence

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.