Justin Brake (journalist)

Justin Brake is a Canadian journalist and winner of a 2019 press freedom case in Newfoundland and Labrador. Brake was the first Canadian journalist to face both criminal and civil charges.[1][2] He won the civil case, while the criminal charges are still pending. Legal experts and press freedom groups such as Canadian Journalists for Free Expression, the Canadian Association of Journalists feared that if the charges were upheld it would give precedence to property rights over media rights as defined in case law and the Charter of Rights and Freedoms.[3][4][5][6][7][3][8][9][10] The case also drew international attention from the Fahmy Foundation,[11] Reporters without Borders,[12] and was cited as a concern by the Press Freedom Index.[13][14][15] The 29-page unanimous decision by the Court of Appeal of Newfoundland and Labrador, established an important legal precedent across Canada protecting the legal rights of media against useof injunctions.[16][17][18]

Brake was the recipient of the 20th annual Press Freedom Award, awarded annually by the Canadian Committee for World Press Freedom,[19][20][21] the 2018 PEN Canada/Ken Filkow Prize for freedom of expression,[22] and co-recipient, with Indigenous journalist Karyn Pugliese, of the 2019 Elias Boudinot Free Press Award, issued by the Native American Journalists Association.[23]

Early life and education

Brake was born in Newfoundland and raised in Ottawa; he does not identify as being indigenous, but says he has some Miꞌkmaq ancestry.[24] Brake graduated from Algonquin College in Ottawa in 2001.

Career

From 2012 to 2017, Brake was a journalist at The Independent based in Newfoundland and Labrador.[25] In 2017, he joined APTN News as a reporter, and works in their Ottawa bureau.

Muskrat Falls

Muskrat Falls is a natural 15 metre waterfall located on the lower Churchill River about 25 kilometers west of Happy Valley-Goose Bay, Labrador with great hydropower potential. From 1970 to the present plans were put in place to develop hydro-electricity. This includes development known as the Lower Churchill Project, which has raised concerns of scientists and local Inuit about methyl-mercury poisoning of the water, wildlife and food sources.[26] Local Indigenous groups say they ere not properly consulted before the project began, and hosted a series of demonstrations against the project, including hunger strikes in 2013. The Nunatsiavut Government, which represents the Inuit of Labrador, was unsuccessful in using the courts to try and halt the project.[27]

Civil charges

In October 2016, Brake was covering the Muskrat Falls story for The Independent. Indigenous demonstrators, who call themselves land and water protectors, broke a lock on October 22 and entered the property of Nalcor Energy. Brake followed the protesters filming and documenting what happened to them over the course of several days. He was the sole reporter inside the facility.[28] When Nalcor filed and was granted an injunction to get the demonstrators off the property, they listed Brake on the injunction without mentioning that he was a journalist and not part of the protest. Brake was charged criminally with mischief and disobeying a court order and with civil contempt proceedings in Newfoundland and Labrador Supreme Court, because he'd been present on the property.[29] The injunction was issued on October 16, 2016 and an ex parte contempt appearance order issued on October 24, 2016.[30] At least one local rally was held in support of Brake demanding the charges be dropped.[31] Brake fought the civil charges but lost. On March 15, 2017, Justice George Murphy of the Supreme Court of Newfoundland and Labrador wrote in his decision: “Mr. Brake’s status as a journalist was not a material fact and there was no obligation on Nalcor to bring that fact to the attention of the Court on their application for the Injunction Order or the Contempt Appearance Order.”[32][33]

The Court of Appeal

The case was appealed to the Court of Appeal of Newfoundland and Labrador, the province's highest court December 12, 2017.[34]APTN intervened in the case and Pugliese, then the executive director of news, testified personally, arguing media to be present at conflicts involving Indigenous Peoples, with reference to the calls to action of Canada's Truth and Reconciliation Commission, which had submitted its final report in December 2015.[35][36] In his decision issued March 28, 2019 Justice Derek Green stated: “The evidence from APTN, which I accept, is that Aboriginal communities have been historically under-represented in the Canadian media.”[29] The decision referenced both the Charter rights to free expression for journalists and stated the need for reconciliation “places a heightened importance on ensuring that independently-reported information about (A)boriginal issues, including (A)boriginal protests, is available to the extent possible.”[37] Nalcour did not appeal the case to the Supreme Court of Canada. The case established an important legal precedent for press freedom. It prevents the arbitrary use of injunctions against journalists and recognizes the important role journalists have in covering protests and Indigenous issues in Canada.[18][38][39][40]

Criminal charges

As of September 2019, lawyers for the crown filed criminal charges of mischief and unlawfully disobeying an order of the court against Brake even though the charges were based on the same set of facts which Justice Green had dismissed in the civil case.[41][42] In the September court appearance Brake filed a charter challenge to ask for a stay of proceedings, and Brake's lawyer Geoff Budden said he would be arguing the charges are an "abuse of process."[43] In November 2019 the Crown decided to drop the charge against Brake of unlawfully disobeying an order of the court, but decided to pursue a charge of mischief over $5,000. Judge Phyllis Harris will decide if the case proceeds.[44]

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References
  1. May 3, Maggie Parkhill Updated; 2018 (2018-05-03). "Journalist charged in criminal, civil courts wins press freedom prize | Ottawa Citizen". ottawacitizen.com. Retrieved 2019-12-14.CS1 maint: numeric names: authors list (link)
  2. Meyer, Carl (May 3, 2018). "Facing jail time, journalist Justin Brake says the courts being used to protect corporate projects". National Observer.
  3. "Charges Against Justin Brake Are A Serious Threat to Press Freedom". CJFE | Canadian Journalists for Free Expression. Retrieved 2019-12-16.
  4. "COURT VICTORY FOR JUSTIN BRAKE, JOURNALISM". caj.ca. Retrieved 2019-12-16.
  5. Speckart, Kathleen (March 28, 2019). "Court Victory for Justin Brake, Journalism". Canadian Association of Journalists.
  6. Beatson, Jesse (Jan 30, 2019). "Breaking the News: What the Cases of Marie-Maude Denis and Justin Brake Could Mean for Journalism". The Court.
  7. "Court order threatening arrest of journalist covering Muskrat Falls must be rescinded". CJFE | Canadian Journalists for Free Expression. Retrieved 2019-12-16.
  8. "Canadian Association of Journalists". caj.ca. Retrieved 2019-12-16.
  9. Bousquet, Tim (March 13, 2017). "Criminal charges against Justin Brake are an attack on press freedom". Halifax Examiner.
  10. Smith, Andrea (May 10, 2019). "In Awe of the Fragile Free Press". TheTyee.ca.
  11. "The Fahmy Foundation".
  12. "Canada - RSF condemns criminal charges against journalist covering protests in Muskrat Falls | Reporters without borders". RSF. 2017-03-09. Retrieved 2019-12-16.
  13. WATSON, H.G. "Canada back in the top 20 of World Press Freedom Index - but concerns remain". Ryerson Review of Journalism.
  14. Conley, Julia (March 23, 2018). "'Affront to Freedom of the Press,' Canadian Journalist Faces Criminal Charges for Covering Protest". Common Dreams.
  15. Sampert, Shannon (April 25, 2019). "Press freedom under siege, at home and abroad". Winnipeg Free Press.
  16. Leeder, Jessica (March 28, 2019). "In landmark decision, Newfoundland appeal court judge lays out criteria for journalist protections when reporting at protests". The Globe and Mail.
  17. Martens, Kathleen (March 28, 2019). "Justin Brakes Case a Victory for journalistic Freedom". APTN.
  18. Lockett, Monica (2020). "A Duty to Report: Alternative Journalism as Political Obligation to Resist and Remedy Injustice". PHP Dialogues Dialogues: Undergraduate Research in Philosophy, History, and Politics. 2 , Article 1.
  19. THE CANADIAN PRESS (May 3, 2018). "Journalist Justin Brake, charged over Muskrat Falls reporting, wins Press Freedom Award". Globe and Mail. Retrieved 2019-12-14.
  20. "Justin Brake on World Press Freedom Day". CPAC. May 3, 2018.
  21. Turnbull (May 4, 201). "Following the story: iPolitics' Q&A with Justin Brake". ipolitics.
  22. "Justin Brake wins 2018 PEN Canada/Ken Filkow Prize for freedom of expression". PEN Canada. 2018-06-07. Retrieved 2019-12-14.
  23. scospernajacom (2019-06-21). "NAJA announces recipients of 2019 free press, investigative awards". Native American Journalists Association. Retrieved 2019-12-14.
  24. Jessica Leider (22 March 2018). "Journalist faces unprecedented criminal charges over coverage of Muskrat Falls protest". The Globe and Mail. Retrieved 8 January 2020.
  25. Hanrahan, Maura. "A Story of Invisibility: The Reaction of the Print Media to the Formation of Qalipu Mi'kmaq First Nation". Source: Native Studies Review. . 2012, Vol. 21 Issue 1: 61–82.
  26. Olsen, Deidre (2018-12-07). "Why Indigenous Activists Are Resisting This Hydroelectricity Project". Vice. Retrieved 2019-12-14.
  27. "Public inquiry hears from people living in fear as Muskrat Falls flooding begins - APTN NewsAPTN News". aptnnews.ca. 10 August 2019. Retrieved 2019-12-14.
  28. "Canada isn't the leader on press freedoms that we think it is". Retrieved 2019-12-16.
  29. "Court decision a victory for journalists covering Indigenous protests - APTN NewsAPTN News". aptnnews.ca. 28 March 2019. Retrieved 2019-12-14.
  30. https://records.court.nl.ca/public/supremecourt/decisiondownload/?decision-id=5521&mode=stream
  31. MacEachern, Daniel (March 25, 2017). "Rally calls for charges against Independent editor Justin Brake to be dropped". CBC.
  32. "Ruling in Brake Civil Case Highlights Failure to Protect the Public Interest". CJFE | Canadian Journalists for Free Expression. Retrieved 2019-12-14.
  33. "Judge: No Special Status For Journalist Charged For Covering Protest". www.canadalandshow.com. Retrieved 2019-12-14.
  34. Bradbury, Tara (Dec 12, 2017). "Journalist Justin Brake's case heard in Court of Appeal".
  35. "Reports | NCTR". nctr.ca. Retrieved 2019-12-14.
  36. ago, Grant Buckler • 8 months (2019-04-04). "What Justin Brake's recent win means for press freedom in 2019". JSource. Retrieved 2019-12-14.
  37. ago, Grant Buckler • 8 months (2019-04-04). "What Justin Brake's recent win means for press freedom in 2019". JSource. Retrieved 2019-12-14.
  38. Davidson, Terry. "Protest injunctions must indicate presence of journalists, lawyers say following appeal decision Thursday". The Lawyer's Daily.
  39. "Book Reviews Published in the Globe and Mail", Collected Works of George Grant, University of Toronto Press, 2009-01-31, doi:10.3138/9781442687677-050, ISBN 978-1-4426-8767-7
  40. McKenzie-Sutter, Holly (March 29, 2019). "Landmark N.L. ruling defends press freedom and coverage of Indigenous issues". Canadian Press.
  41. "Reporter pleads not guilty to charges stemming from Muskrat Falls protest coverage". CBC. Jul 29, 2019.
  42. "Lawyer for Justin Brake asks judge to dismiss criminal charge against reporter". ca.news.yahoo.com. Retrieved 2019-12-16.
  43. "Reporter Justin Brake mounting charter challenge against Muskrat Falls charges". ca.news.yahoo.com. Retrieved 2019-12-14.
  44. "Lawyer for Justin Brake asks judge to dismiss criminal charge against reporter".
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