How the RCMP convinced a court to censor Capital Daily

Jimmy Thomson / Capital Daily

A BC Supreme Court judge has permanently prohibited Capital Daily from publishing a leaked document that raises questions about the RCMP’s conduct at Fairy Creek.

That’s about as specific as we’re allowed to be, now that the publication ban has been made official; the nature of the document is, in many ways, the key to the story, and talking about what, specifically, it is could land us in hot water and violate the court order.

What we can tell you is what got us to this point—and that’s a story unto itself.

A leaked report

A document landed in my inbox on Jan. 18, and its importance was immediately obvious. It raised questions about an important ruling by [redacted], and how the RCMP has been abiding by it or avoiding it in the context of Fairy Creek.

I reached out to the document’s author and to the RCMP to confirm its authenticity, with questions about where it came from, how common this kind of document is, and how it was used.

Instead of responding to the questions, the author contacted the BC Prosecution Service. The document had been provided to people who are defending against criminal contempt charges. Under Canadian law, defendants have a right to see evidence that could be used against them in order to respond to the charges—this is called the discovery process. But they are not meant to share those documents with the outside world. My being in possession of the document meant that someone had violated that agreement.

That broken agreement is at the heart of what came next: a publication ban that was swiftly enacted to prevent me from publishing a story about the document.

Court

Capital Daily decided to fight the order on the grounds that interfering with press freedom should be an extremely high bar to meet, especially on a critical matter of public interest like police accountability.

That’s not a new argument to make—it’s been made, successfully, by the Globe and Mail in a landmark case in the Supreme Court of Canada, Globe and Mail v. Canada, 2010.

So off I went to Nanaimo to make that case to the judge: that this was a matter of press freedom, and that the obligation to keep documents like this confidential, as the Supreme Court wrote, “does not, and cannot, extend to the media.”

The Crown saw it more simply, more or less ignoring the media aspects of the case and relying instead on Juman v. Doucette , a case where the police had been the ones trying to get information that had been shared during the discovery process, not the media. That case resulted in a ruling that the discovery process is important to protect in the interest of privacy and because it’s important that parties feel safe sharing information with the other side of a court case, so that, ultimately, the truth can come out.

In a nutshell, that was the core of the question before the judge: is it more important to protect the discovery process, or to protect press freedom from censorship?

In written submissions and over two days in Nanaimo court, I tried to press the point that the RCMP have been shown to have little regard for media freedom—something the same judge presiding over this publication ban, Justice Thompson, had already ruled in a previous decision.

From the first day of its enforcement at Fairy Creek, the RCMP had blocked journalists' access, myself included, controlled their movement, monitored them, and even threatened to arrest them. Elsewhere—most recently in Wet'suwet'en, in the case Amber Bracken and Michael Toledano—they have actually arrested journalists on the job.

I had already filed Freedom of Information requests for the document and for any contracts related to it—at this point, the RCMP is months late in responding to those requests. When and if I receive the documents, if history is any indication, they will be heavily redacted.

At one point, one of the two Attorney General of Canada lawyers acting on behalf of the RCMP seemed to try his best to make my case for me, standing up to insist there is “no story” here.

“Not only is the RCMP not in a reasonable position to decide what is and is not a story,” I responded, “but the RCMP has in fact been found again and again to be more interested in actively obstructing the work of journalists than in facilitating our work.”

Decision

The decision was released on June 21 at 10:30 in the morning. I was wide awake by 6, and when it came out, I was positively vibrating.

It starts out well: the judge accepted that the Globe and Mail v Canada case was the appropriate lens through which to approach the question. He said kind things about the work of journalists, my approach to this case, and that of Camilo Ruiz, my fellow journalist sitting next to me at the defendants’ table who was fighting for the right to publish a separate document also leaked from discovery.

He even saw merit in our arguments that the RCMP's close guarding of information is antithetical to the healthy functioning of a democracy.

But in the end, the judge determined that “the benefits of a publication ban outweigh its negative effects, as substantial as the negative effects are.”

The publication ban was upheld.

So that’s where we are: prohibited from publishing the document or the information within it. If we receive the information through FOI, or through a different leak that doesn’t come from the discovery process, or through it being entered into evidence in a court proceeding, we can publish it.

And we will.

Justice Thompson, Re Teal Cedar Products Ltd. v. Rainforest Flying Squad, 06-21 by Jimmy Thomson on Scribd

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