APEC – Commission Interim Report
Dennis Porter was a Simon Fraser University student who had volunteered as a cameraman with Working TV during the APEC conference. He obtained a press pass, which gave him access to the media centre at the Vancouver Trade and Convention Centre. He complains that during the conference, an RCMP officer wrongfully removed his press pass.
16.1. Media Accreditation
In all, 23,000 people, including about 3,000 media representatives, were accredited to attend all or part of the APEC activities over the week long event. Mr. Porter was one of them. According to Mr. Porter, Working TV is part of the "alternative" media and has a particular perspective on social justice issues such as the effects of "globalization" on workers.
Two levels of media accreditation were issued by ACCO for the APEC conference:
- the first level, which was given to Mr. Porter, was a general media pass providing access to the media centre at the downtown Vancouver Trade and Convention Centre which was an otherwise restricted area; and
- the second level was a special media pass which allowed the bearer to be included in the various pools of media personnel which, from time to time, were escorted by RCMP members inside other restricted areas to report on specific events.
To obtain accreditation, Mr. Porter completed an application and submitted it with a letter of assignment from his producer and a photograph of himself. He understood that he would be subject to a security check. Once Mr. Porter was accredited, he was given a general media pass (with his name, picture and a bar code) to be worn around his neck while performing his media work at APEC events. He said he was told that he was too late to apply for the second level of accreditation.
16.2. What Happened
16.2.1. Initial RCMP Contact with Mr. Porter
Sgt. John A. Buis was the RCMP Media Coordination Officer for APEC and was responsible for monitoring the media inside certain secure areas and escorting media pools to cover special events. He described himself as being in charge of media security. He spent considerable time at the media centre in the Trade and Convention Centre and encountered Mr. Porter there on November 19. Sgt. Buis said that he had a conversation with Mr. Porter and an associate at that time because he had concerns about their conduct. He asked for their accreditation and they produced it. Despite the encounter, Sgt. Buis said that Mr. Porter retained his trust and that the RCMP did not interfere with the privileges afforded to Mr. Porter by his media pass.
16.2.2. Media Pool at the Museum
On the evening of November 22, Sgt. Buis conducted a pool of media personnel to the Museum of Anthropology grounds, which earlier in the evening had become part of the secure area pursuant to the amended Licence Agreement. He explained why a pool of reporters was taken to that site:
At about 5:00 p.m., I learned that the Museum of Anthropology site was going to be turned over to the Federal Government, and as such, there were a number of protestors encamped on the hill in the rear of the Museum of Anthropology. Once the property was turned over to the Federal Government and the site was turned into a secure site, the protestors would be asked to leave. If they did not leave, then they would be arrested. My concern was that I wanted the general public and an independent organization, such as the media, to observe how the arrests took place.
After the museum grounds became a secure area the second level of accreditation was required for access. In discussing the "double pass" system, Sgt. Buis said:
So it was a double pass system, and from my knowledge of any of the activities that were going to go on at the Museum of Anthropology, the double pass system was going to be in effect.
So that not only would they be required to have their original media accreditation, but they would be required to have a secondary pass to get into that area.
Mr. Porter was at his usual location, which he called the regular "tent city" on campus, when he learned that a media pool was at the museum site, so he went there. He said he had his media pass around his neck and that another person associated with Working TV carried a camera to "shoot" the events. As the museum site had become part of the secure area, Mr. Porter's pass did not entitle him to be there although, because the amendment the Licence Agreement had not yet been made public, there is no reason to believe that Mr. Porter was aware of that fact.
16.2.3. Mr. Porter's Press Interviews
Sgt. Buis explained what occurred after the media representatives had witnessed the arrests at the tent site:
At about 10 to 15 metres to the north of the encampment I heard a--a man conducting a press conference, an impromptu press conference. And I observed Dennis Porter, who had not come along with the media pool, giving an impromptu press conference on the top of a hill. To me he appeared to be one of the protestors because he was speaking on behalf of the protestors and--and giving a press briefing on what was going on. This concerned me a great deal because I had escorted the media into a secure area and he was not part of that media pool. I got the people to move again back towards the bus and about another 10 metres further to the north, again Mr. Porter began speaking on behalf of the protestors, as if he were one of the protesters, giving his views on what had taken place.
Although Sgt. Buis referred to seeing Dennis Porter, it was not until the next day that he had satisfied himself that it was, in fact, Mr. Porter who had been speaking to the media the evening before.
The media pool members who were escorted to the museum on November 22 held second level" accreditation. As the holder of level one accreditation, Mr. Porter was not entitled to enter the area. This was understandably quite significant to Sgt. Buis, who was concerned that Mr. Porter was in a secure area when he was not entitled to be there.
Mr. Porter described what occurred at the MOA site on the evening of November 22:
A: I was approached--I was with the media shooting, and I had contact lens problems. And I went off by myself to fix my contact lens problem, at which point, I was approached by a member of the media asking for an interview.
Q: Okay. And I'm going to suggest to you that the substance of the comments that you made during that interview were critical of APEC and the arrest that had taken place that evening?
A: I would say that's true.
...
Q: Okay. But you do recall that when you were asked for an interview by the media--by one media person, you then gave some comment?
A: I explained to him that I was--I was there shooting, and he said, well, we need someone to interview.
Q: Okay, and you--
A: And so he said--yeah--I explained to him that I wasn't that party. He said we need it, and I said fine, I will give you an interview then.
...
Q: Okay. And during your comments to the media, the media people, in fact, turned their cameras to you and recorded your comments?
A: Yes, I would--I would believe that to be true.
16.2.4. Removal of Mr. Porter's Pass
The next day Mr. Porter was out with his camera shooting a march by the People's Summit, which was holding meetings in Vancouver during the APEC conference. The march ended at the media centre at the Trade and Convention Centre. There, Sgt. Buis approached Mr. Porter and asked that he accompany him into a large tent just outside the convention centre. Mr. Porter said at the time he did not know Sgt. Buis and did not recall having met him. He said that Sgt. Buis took his media pass from around his neck and told him it was no longer valid. When Mr. Porter asked for an explanation, he said he was told he would have to go to the media accreditation centre, which Mr. Porter believed was staffed by civilians. Mr. Porter went to the centre but got little satisfaction other than someone telling him that he had lost his accreditation because he had, at some point, jumped over a barricade and done an interview. Mr. Porter believed the RCMP had decided that he was a protester and, for that reason, removed his accreditation.
Sgt. Buis explained his actions during the early afternoon of November 23:
As I recognized him as being the same person who appeared to be a protestor from the night before, I was concerned and I formed the opinion that he did not warrant media accreditation. And if I might explain that people that are given media accreditation are usually professional media reporters who report on the situation and don't become part of the story. When people are given accreditation to go into secure areas, there's an element of trust that these people will take direction from the security people and will conform to the--the rules that are set out to them. A lot of times there are physical barriers and other lines, so to speak, drawn so that--that the media stays behind them so they don't affect the security of the situation. So they act in a predictable manner. I formed the opinion on the afternoon of November the 23rd that Mr. Porter no longer had my trust that he would act in a predictable manner when inside a secure area.
Sgt. Buis acknowledged that he did not advise Mr. Porter of his concerns or invite him to address those concerns before deciding to revoke his accreditation and remove his media pass. Sgt. Buis said he understood that any police officer could remove media accreditation any time the officer believed security was at risk, and he came to believe that Mr. Porter represented a security risk. With respect to his authority to act as he did, Sgt. Buis said:
As the person in charge of overall media security, I thought I had the right to suspend people's media accreditation. And media accreditation is not a right, it is a privilege that's gained by applying for it and going through various security screening procedures.
Mr. Porter lodged his complaint against Sgt. Buis for what he referred to as an "unnecessary use of power."
16.3. Issues
16.3.1. Press Pass: Right or Privilege?
Complainants' counsel submitted that the seizure of Mr. Porter's media credentials violated the freedom of the press guaranteed by section 2(b) of the Charter. In their view, there was no evidence that Mr. Porter was a security threat.
The B.C. Civil Liberties Association submitted that, although Mr. Porter agreed that his media pass gave him certain privileges, "that should not be taken as in any way conceding that what was accorded to him were merely privileges that might be taken away arbitrarily, rather than rights or legitimate expectations". In their view, the RCMP
failed to comply with natural justice and procedural fairness by "arbitrarily" confiscating his pass without providing him with an opportunity to be heard on the matter:
... it is clear that the RCMP's treatment of Dennis Porter was not consistent with standards of natural justice and procedural fairness. Sgt. Buis admits to having only advised Mr. Porter of the intention to remove his accreditation after having physically taken possession of the accreditation, and to not having advised Mr. Porter of his concerns and affording him the opportunity to address those concerns before making his decision (Buis, February 2, 2000, pp. 44-45). The completely arbitrary nature of the decision to confiscate his pass and the lack of any opportunity for him to challenge the confiscation were completely at odds with the standards that have been established by Canadian courts. Those decisions were, on the other hand, consistent with Sgt. Buis' view that he was not bound by any rules in making his decision to revoke Dennis Porter's media accreditation.
The Association also submitted that, given section 2(b) of the Charter, the police must not be allowed to "arbitrarily prevent reporters that [incur] their displeasure from functioning as reporters", as doing so would prevent "meaningful reporting" and result in an uninformed electorate and the eventual demise of democracy.
Counsel for the 44 RCMP members stated their position:
Media accreditation is a privilege which permits bona fide journalists into secure areas where members of the public are not permitted. A condition of receiving the accreditation is that the recipient will conduct himself or herself according to the standards expected of journalists who have been permitted into secure areas. This means, in particular, that they will abide by the security regulations, observe the directions of the police security officers, and not seek to create a story when they should be merely reporting one. Mr. Porter forfeited the privilege of possessing media accreditation when he staged a press conference...
I take counsel's position to be that it was an implied condition of accreditation that, at an event presenting major security concerns, the accredited person merely reports on the events observed and does not "seek to create a story." I believe that is a reasonable position and I agree with it.
16.3.2. Freedom of the Press
The first issue to be addressed is whether Sgt. Buis' conduct was inconsistent with respect for section 2(b) of the Charter; specifically, freedom of the press.
To begin, Mr. Porter was not accredited to be at the museum site: it had become part of the secure zone by virtue of the amendment to the Licence Agreement and he did not have a "second level" media pass. However, as there was no evidence to suggest that either he or the general public had been made aware of the change in the agreement, I cannot conclude that he deliberately entered a restricted area without accreditation.
Had Mr. Porter known that the museum grounds had become part of the secure zone, I would not hesitate to conclude that Sgt. Buis was entitled to revoke Mr. Porter's accreditation, as the RCMP should not have to tolerate deliberate non-compliance with established security procedures. Furthermore, there is no doubt in my mind that the RCMP may revoke the accreditation of a media representative who has deviated from the conduct expected of accredited media personnel and who the RCMP conclude poses a security risk.
As to the Charter, I have serious doubts as to whether section 2(b) was engaged in these circumstances. In my view, his media pass simply granted Mr. Porter certain privileges over and above those enjoyed by the public. It did not confer an irrevocable right to the continued benefit of those privileges. No authorities were cited to me in support of the proposition that Mr. Porter had a constitutionally guaranteed right which could only be taken away by, in the words of section 1 of the Charter, "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." As a result, I am not prepared to conclude that Sgt. Buis' conduct was inconsistent with respect for the Charter.
16.3.3. Appropriateness of the Removal
The remaining issue, therefore, is whether Sgt. Buis' conduct was "appropriate to the circumstances."
I have no doubt that Sgt. Buis was entitled to revoke Mr. Porter's accreditation if, in Sgt. Buis's professional judgment, he presented a credible security risk or if he deviated, in a meaningful way, from the conduct expected of accredited media representatives.
The proposition that a media pass carries certain implied conditions has particular application to a situation where accreditation is conditional upon a successful security clearance. It is only reasonable to expect that a person who applies for a media pass knowing that it requires a security check, will use the privileges associated with the accreditation only for the purposes for which it was granted: namely, to report on events. If instead the person engages in activities that a police officer reasonably perceives to be actually creating news, rather than reporting on it, the officer could be expected to have significant concerns about whether that person will act acceptably and predictably in the future.
Put another way, I believe Mr. Porter's accreditation was revocable in the event of conduct that, in the opinion of those responsible for media security, was inconsistent with the purpose of the accreditation. Conducting himself as he did at the museum site on the evening of November 22 was simply not in accord with the purpose for which media accreditation was granted. Although Mr. Porter may not have been specifically aware that the museum had become a secure zone at the time he entered it, he certainly became aware that the tenters had been arrested and that the RCMP had some reason for taking that action. Even if he was not aware that the area had been secured, Mr. Porter went to the museum site with his camera, in his capacity as a media representative. When Mr. Porter assumed a different role, Sgt. Buis reasonably concluded that he was "unpredictable" and might be prepared to ignore the implied conditions of his accreditation in the future, thereby creating a security risk.
I do not therefore believe that Sgt. Buis' decision was "arbitrary": rather, it was based on his professional judgment that Mr. Porter's continued accreditation represented a security risk.
I am cognizant of the fact that Mr. Porter was given no opportunity to explain himself and, in hindsight, it may have been preferable for Sgt. Buis to have discussed the matter with Mr. Porter before deciding what action to take. Nevertheless, I am satisfied that Sgt. Buis acted appropriately, if not perfectly, in the circumstances.