Amber Bracken and Michael Toledano on the decline of press freedom in Canada

And how the industry outsources much of its riskiest work to freelance photographers and videographers like themselves

On the morning of Friday, November 19, an RCMP convoy drove up to a tiny house on Wet’suwet’en territory in Northern British Columbia. Inside were nine land defenders and two journalists.

“It feels like being surrounded by an army, and they are coming to get you,” says Amber Bracken, a freelance photojournalist who was covering the raid from inside the house while on assignment for The Narwhal. “And then the next thing you know, they’re coming through the door like Jack Nicholson in The Shining.”

The police, enforcing a court injunction, were clearing an area that’s been blocked by demonstrations preventing the construction of the Coastal GasLink pipeline through unceded territory.

Bracken and freelance documentary filmmaker Michael Toledano, on assignment for the CBC, were among the 15 people arrested across the disputed area that morning. They were held in police custody for three nights and released only after agreeing to respect the court injunction and “keep the peace.”

In most interviews since, the pair have tried to shift the spotlight back toward the story they were covering, rather than let it settle on themselves.

But as CANADALAND is in large part a show about the media, this week’s episode sees Bracken and Toledano speaking with host Jesse Brown about their own experiences — with the police and with the news companies for which they put themselves in danger:

The following is an edited and condensed version of that interview:

In their statement about your arrests, the RCMP said they were aware of the court’s precedent with the Justin Brake case — about the special considerations that they’re supposed to have for journalists — but that that applies only if the journalists are “not actively assisting, participating with, or advocating for the protesters about whom the reports are being made” and if the journalists cannot “reasonably be considered” to be “aiding or abetting the protesters in their protest actions or in breaching any order” that has already been made. I think the suggestion that the RCMP is making about the two of you is that you do not deserve those considerations.

Amber Bracken: I would challenge them to tell me exactly how I aided, abetted, or participated. It’s frankly in question whether or not I even broke the injunction, particularly where we were at was not interfering with an active work site. But it’s an interesting characterization, and my feeling is that they’re embarrassed. I mean, they need to scramble to defend themselves, because the reality is they knowingly arrested and detained for multiple days two people that they knew were reporting. They knew that we were there in the capacity of journalists. And I just think that, of course, they’re scrambling to cover their butt.

Michael Toledano: Both Amber’s editors and my producers contacted the RCMP directly and told them that we were on the territory and that we expected to be able to continue doing our jobs safely and that we were not there to interfere with police actions.

My understanding of their position is, “Oh no, we knew that you consider yourselves journalists. We don’t.”

Toledano: The RCMP can’t be the ones who make a political and ideological determination of who is and who isn’t a journalist. The fact of the matter is that Amber and I were there and captured images of incredible importance to Canadians and of essential value to the historical record. Around injunctions, particularly, the police take this punitive approach to controlling all space, and it’s deeply problematic to have the RCMP make those kind of determinations, because often it’s not journalists who are accredited or who are carrying press credentials who captured images of public importance, but just someone with a phone or a camera.

At the same time as the RCMP was enforcing on Wet’suwet’en territory, they were enforcing on the neighbouring Gitxsan territory an injunction held by CN Rail against the Gitxsan hereditary chiefs and their supporters. The police enacted an incredibly violent arrest there of Denzel Sutherland-Wilson, who is a well-known leader in that community but also an elected council member. Four officers were on top of him and had their knees on his neck or were otherwise restraining him, and he was yelling, “I can’t breathe.” The idea that the police can just enact violence and target people with cameras based on their own established bias is ridiculous. People should be able to document police actions, full-stop, in any context, anywhere.

It’s not just the RCMP who seem to be confused or asserting that you’re not real journalists. There were people online who were screenshotting this page from the website of the Wet’suwet’en land defenders, which has a demand, under the heading “Media Protocol,” that “all reporting must centre, prioritize, and uplift Wet’suwet’en voices and sovereignty” and that if you don’t agree to those terms, you might be banned from covering Wet’suwet’en stories. Did either of you agree to that protocol?

Bracken: The first time I ever saw that protocol was actually in the aftermath of this thing, where some of the trolls came out of the woods to try and pick apart or undermine my position. The reality is nobody’s ever asked me to sign any kind of agreement, from camp or otherwise. And nobody reviews my work, either; I have absolute editorial independence within that space. As far as I can understand it, I don’t really see how that protocol is any different than the regular PR protocol that you would deal with with a corporation. Honestly, I’ve had a lot more freedom and ability to work within that territory than I’ve had in getting information and responses out of Coastal GasLink.

Toledano: For years, I’ve been following this story, and I’ve done an incredible amount of documentation of the Wet’suwet’en history, where their laws, their sovereignty, their right to free, prior, and informed consent have been violated by the police, by the courts, by Coastal GasLink. And my ethic is to not reproduce those harms in my work. I take it very seriously that the Wet’suwet’en have been burned and mistreated by media in the past. And so I put a lot of care into working closely with elders and talking to elders, and to finding out from community members that my reporting is in fact accurate, taking into account oral histories, things like that. I’ve never signed any agreement, and I’ve also never been told to, you know, alter my work in a way that I felt was dishonest or obscured the truth of something that was happening. I wouldn’t do that.

But shy of signing that, did you agree to it?

Toledano: No. This is a story that cuts to the heart of land ownership in British Columbia, and whether or not British Columbia even has a legitimate claim to 22,000 square kilometres of land. So there’ll be every possible attack vector to discredit or distract from the images that we captured.

It’s no surprise that it’s not traditional journalists who are getting the best access, the best pictures, the deepest commitment. But it does bring new dynamics into the way that we tell these stories.

Bracken: Why are we allowing the RCMP to arbitrate who is and who isn’t a journalist in the first place? I mean, I would argue that the key issue here, in this interaction, was how the police were interacting with the Wet’suwet’en occupiers, that the RCMP’s conduct was under the most scrutiny. And at that point, why are we allowing them to decide who’s allowed to scrutinize them? Basically, we’re walking into a police state where we have to ask permission from the police in order to observe them and under what conditions that’s allowed. That’s insane to me.

You keep saying things like, “Oh, you’re not traditional journalists.” I really don’t agree. I just reopened the Justin Brake decision, and I can’t see a single place in any of those five points in which I am not absolutely covered under it. Maybe the RCMP might try to say that I’m not a journalist and not functioning like a journalist, but all of my actions are well within the range of established journalism practices. Even their allegation of being embedded or the suggestion that somehow by being embedded, that means that I’m not functioning as a journalist. Well, the whole concept of being embedded is a well-established journalistic practice that is used for all different kinds of organizations, including the police and the military.

And there’s a separate conversation that doesn’t actually have to do with a legal definition of journalism, that’s more about how you frame a story. The fact that I use language that comes from the community that I cover, I don’t think that has any kind of negative connotations on my function as a journalist, traditional or otherwise.

Getting very close to your story, spending a lot of time with your story, understanding the history of your story: these are all best practices. But it’s no accident that the major news organizations are not the ones making the commitment to keep people on site for as long as the two of you have made those commitments.

Bracken: Right. And honestly, that’s the elephant in the room: that basically because I don’t have a major publication behind me this time around, that somehow that undermines my credibility. Now I have covered this story for The New York Times. I could have pitched it to them again; I just have a closer relationship with The Narwhal, and honestly, they’ve been following the story longer, and so that’s why I went with them. But the elephant in the room is that the reason why I don’t have legacy media behind me is because I’m expensive. I’m a photographer, and we don’t really exist on staff anywhere in Canada anymore. So it isn’t that the work that I’m doing isn’t valuable, it isn’t that they don’t want to access the work that I’m creating. It’s the fact that I’m too expensive. And so the fact that police are using that, or critics are using that, as a means to undermine my credibility — this is a function of the media ecosystem right now.

Amber, I know that The Narwhal has had your back and they have been defending you legally and claiming you publicly. Both of you have enjoyed the support of the industry, of your colleagues writ large. The Canadian Association of Journalists (CAJ) sent a letter to the federal government demanding your immediate release, which dozens of news organizations (including Canadaland) signed. But, Michael, the CBC did not sign that document demanding your release. And though we see you identifying yourself to the RCMP as somebody who’s there doing a story for the CBC, when the CBC reports on the story, in at least one of their reports, they don’t claim you. They call you an independent filmmaker. What’s up with that?

Toledano: Yeah, they sure didn’t sign that document asking for my release from prison, which was surprising to see when I got out — that, you know, the majority of news organizations in Canada had signed it, except for the one that I was working for. In the week leading up to my arrest, I was filing footage to CBC’s The National, to CBC News Network. I was filing audio to CBC Radio. And from what I can tell, nowhere have they publicly claimed that work or acknowledged that work. And so I think that it speaks to the relationship that freelancers have with many Canadian outlets: we take all of the risk, and we are not guaranteed any institutional support. There has been a bit of institutional support that’s followed some of the conversations I’ve had. CBC Docs is a separate entity from CBC News, and they’ve offered some financial support to help with my legal fees and the costs that I’ve incurred.

The reason that they gave me for refusing to sign that letter was that it was lobbying a politician, that it was making a specific request from a specific politician, and the CBC has a policy against that as the public broadcaster. I don’t think that that is a satisfying answer. It certainly wasn’t satisfying to me after four days in holding cells.

Bracken: I think the contrast between Michael’s experience and my experience is exactly the problem. Because photographers and videographers are expensive, newspapers and magazines and all of the different publications decided to outsource it, almost as a complete institutional decision across the board, across our entire industry. But nobody addressed the cost of doing business or what would be the liability. And the reality is that there are many, many roles in a newsroom that can be performed remotely. Photography and videography cannot. I literally have to be present, which means I’m, in many cases, the most exposed. Like, we’re in the most vulnerable position and assuming the most risk. But we haven’t, as an industry, had a conversation about how that risk will be assessed. And so it’s completely up to the individual outlet to decide what they will and won’t do. I’m completely supported by The Narwhal; Michael’s marginally supported by the CBC. And this is part of the risk and part of the problem. I think it’s a dampening effect on the coverage that we’ve been seeing in this country.

In February 2020, at an earlier stage of this conflict, we spoke to Karyn Pugliese, who was president of the CAJ and had recently been head of news at APTN. And she said that the wildest thing about injunction enforcement, when it comes to the media, is that the RCMP’s fear tactics work. This is what she said about her decision as a news boss to not allow a reporter to cross the injunction line: “If it was me, I would have crossed the line because I’m responsible for myself. But I’m sitting there and thinking, like, ‘What if she ends up in jail? I’m responsible for that. What if I can’t protect her?’ And that’s where you start creeping into this police state.”

Bracken: That’s exactly the issue at hand, is that it takes it takes an intentionally courageous choice to establish that right to work and that freedom to work, because what you will have is rights creep. This is where my critique of legacy media comes in. I can’t even count how many press-heavy events I’ve covered, where there’s all of the outlets standing in the same place on the same corner and police telling us where we can and can’t go, and how many times I would just wish that people would collectively say, “No, we’re not going to do that. You don’t have a Charter basis for limiting our access.” So I think it takes a consciously courageous decision to push those boundaries and protect those freedoms.

Because even in the relatively short period of my career, about 11 or 12 years now, I’ve seen the encroachment on these rights. I’ve seen that we have had them curtailed, and access gets worse, and it gets harder and harder and harder to even see what’s going on. They’ll say, “Oh yeah, we can give you a vantage point,” and it’s, you know, a kilometre away. And all you can really see is the backs of police officers, and it’s not actually real oversight.

Toledano: I think it is a conscious choice to continue to report on this story, and it’s one that involves adapting to or anticipating police tactics of repression. Year after year, we’ve anticipated exclusion zones. We’ve anticipated that access would be blocked, and the only way around that is to spend extended periods of time on the territory, preempting any police offensive, preempting any police action. Being arrested and incarcerated for this will not stop me from going out onto the territory and continuing to report on the story and continuing to hold the police accountable in their actions.

The conflict on Wet’suwet’en territory was the biggest news story of 2020 before Covid hit, and I don’t think there’s any excuse for the media that it was just a handful of independent filmmakers and Amber Bracken that were on the, you know, the right side of this. We’ve seen the playbook play out before, and I have an open question of why more resources weren’t devoted to this story in advance.

Top: Amber Bracken photo by Amanda Follett Hosgood, and Michael Toledano photo by Amber Bracken.

Latest Stories
Announcing Our 2024 Podcast Slate
Introducing CanadaLabs
What Twitter Was