OTTAWA, March 28, 2019—Today’s decision by the Court of Appeal of Newfoundland and Labrador is a victory for Justin Brake, and offers protection for journalists from broad injunctions.
Mr. Brake faces criminal charges of mischief and disobeying a court order after he followed a group of mostly Indigenous demonstrators onto the site of the Muskrat Falls hydro project site, following demonstrators for the purpose of reporting in October 2016. He also faced civil contempt proceedings in Newfoundland and Labrador Supreme Court, based on the same set of facts.
“Justin Brake should never have been named in the injunction,” says Canadian Association of Journalists vice president Evan Balgord. “This was a naked attempt by a crown corporation to avoid accountability by preventing a journalist from doing their job. While we celebrate the verdict in the civil case, these charges have cost Brake time and money and are an attack on our shared Charter right to freedom of the press. The criminal charges he still faces based on the same set of facts should be dismissed immediately.”
In today’s decision regarding the civil proceedings, the Court stated that Mr. Brake’s role as a journalist reporting on issues impacting Indigenous people was a factor of significance and as a result his status as a reporter should have been included on the court injunction and considered by the judge. The decision also recognized the key role media should play in fulfilling the goals of the Final Report of the Truth and Reconciliation Commission.
The Court agreed with APTN, who intervened in the case, that failing to recognize journalists as independent observers risks impeding the media function, and accepted that the chilling effects are real, significant and should be avoided.
In addition, the Court was concerned about broad injunctions and gave some guidance for the future regarding “John Doe” orders, while stating the real purpose of the injunction was to protect specific property rights by restraining protest activities that impeded or prevented access to the construction site. It concluded that the injunction prohibited “trespass”, but the order shouldn’t have been interpreted so broadly to prevent technical trespass unconnected to the protests. As a result they found Brake was not the object of or caught by the injunction.
Working for The Independent in the fall of 2016, Mr. Brake was reporting on concerns raised by local residents, many of whom were Indigenous, about the impact of the Muskrat Falls hydroelectric dam project on their land, health and rights.
On Oct. 22, demonstrators cut the lock on the gate to the construction site and entered. Mr. Brake followed the demonstrators and embedded with them until Oct. 25,after Nalcor named Mr. Brake on a court injunction with demonstrators but failed to identify him as a working journalist.
Mr. Brake now works for APTN.
The Canadian Association of Journalists is a professional organization with more than 700 members across Canada. The CAJ’s primary roles are public-interest advocacy work and professional development for its members.
For further information:
Evan Balgord, CAJ vice president