Unclear what 'lawful authority' Vancouver police had to restrict access to public, media during decampment: OPCC

The Vancouver Police Department appears to have created an exclusion zone – blocking access to the public and the media – while an encampment on East Hastings Street was being dismantled, according to a provincial watchdog.

On April 5, tents and other structures where dozens of people were living were removed as city staff, backed up by police, enforced an order made by the fire chief who said the risk of a catastrophic blaze was a significant public safety concern.

A member of the public submitted a complaint to the Office of the Police Complaint Commissioner on the day of the decampment saying, in part, that preventing journalists from accessing the blocks-long stretch of the city street was "an infringement upon journalistic freedom and freedom of press, a constitutionally protected right in Canada."

That complaint will be reviewed at the Vancouver Police Board's meeting Thursday.

In a letter to the board dated April 14, police complaint commissioner Clayton Pecknold said the issue of an exclusion zone was being considered as separate and distinct from the other issues about the decampment that were raised in the complaint.

"After review of the concerns raised in the complaint and the public statements of the VPD, it appears that an 'exclusion zone' was created by the VPD for the purpose of excluding the public and the media from a specific section of the city for a defined period of time," Pecknold wrote.

"It is unclear what lawful authority was relied upon in the creation and enforcement of this 'exclusion zone.' The matter of the legality of 'exclusion zones' has been the subject of consideration by the courts most notably in the context of civil disobedience."

That morning of the decampment, police posted to social media saying they had "limited public access" to a blocks-long stretch of road. The move was being made, according to the department, "to ensure the safety and privacy for people within the encampment."

At a news conference later that day, VPD Chief Const. Adam Palmer said restrictions on access were necessary to prevent a "free for all." City Manager Paul Mochrie said the fact that traffic cameras were out of service at the time was "a mistake" and that "we are working to provide as much transparency as possible, including a pool camera in the area.”

A pool camera is a single camera that records video that is shared amongst multiple media outlets.

Pecknold's letter to the board notes that the Police Act outlines the options legally required to address the complaint – including dismissing it. If the complaint is not dismissed, the board can direct the chief constable to investigate and report back, it can also order a study or an investigation.

In this case, the OPCC recommended an additional action.

"As the public record demonstrates that both the chair of the police board and the chief constable were directly involved in the circumstances which give rise to this complaint, it is my recommendation that the Vancouver Police Board obtain independent advice in addressing this complaint distinct from the VPD," Pecknold's letter said.

In a statement to CTV News, Brent Jolly, the president of the Canadian Association of Journalists, said reporters need to be able to do their jobs and hold police and the city accountable.

“Police have no legal right to stop journalists from reporting on their activities,” he said.

Jolly added that in 2021, The CAJ took the RCMP to court and won when the police force tried to prevent the press from reporting on the Fairy Creek watershed in Vancouver Island.

In a news release from the CAJ, the judge that presided over the case, Justice Thompson, stated, “I am not satisfied that geographically extensive exclusion zones, and associated access checkpoints, have been justified as reasonably necessary in order to give the police the space they need.”

Jolly said it would be wise for law enforcement in Vancouver to consider Thompson’s decision, with regards to the critical role journalists play in a free and democratic society. 

The chair of the police board is Mayor Ken Sim who has said he would not hesitate to dismantle another encampment in the event of a "dangerous situation" like the one on East Hastings Street.

The board responded to Pecknold on Nov. 14, saying it did not receive his letter until that day because it had been "misaddressed."

The board's response maintains that the VPD's role in the decampment was to "stand by and keep the peace in order to maintain public safety."

It will be recommending that the Service and Policy Complaint sub-committee asks the chief constable to investigate whether an exclusion zone was established and if any VPD member was involved. The findings of that investigation will then be reported back to the sub-committee which "may consider any further action to recommend to the committee."

The issue of exclusion zones, where media access is restricted by police, has been the subject of controversy and court challenges – mainly as it pertains to how the RCMP have responded to environmental and Indigenous rights protests.