No consistent rulings or approach in Canadian courts to journalism and the law.
Our editor and colleague here at The Independent, Justin Brake, is currently facing both civil and criminal charges stemming from his coverage of the Indigenous-led resistance at Muskrat Falls in October 2016. These charges were initiated, in the first instance, by Nalcor, the crown corporation responsible for the Muskrat Falls project.
The criminal charges against Brake—disobeying a court order and mischief greater than $5,000—carry a maximum punishment of 10 years in prison, potentially a criminal record, and hefty fines.
Recently, Justice George Murphy, sitting in Supreme Court in Happy Valley-Goose Bay, ruled in the civil matter that Brake’s status as a journalist was not a material fact and has no bearing on the case.
To briefly overview a few of the important points of the ruling:
This ruling, unfortunately, sets the tone for the upcoming criminal case. I hope that those with more knowledge will respond and correct any discrepancies, but as far as I can tell there has never been a similar case, or a case of such gravity with respect to press freedom and the law, in recent Canadian history.
In his ruling, Justice Murphy drew on a case of journalists inside the barricades of the Oka standoff. Two journalists applied for an injunction against the military that was blockading and denying food and supplies to the Mohawk and others inside the barricades. The journalists argued that denying them food and supplies infringed on their rights to press freedom enshrined in the Charter. The judge in that case ruled that if journalists put themselves in dangerous or compromised situations that there is no obligation for anyone to provide them with resources – they were viewed by the court as no different from any other people inside the barricades.
[A]ny rulings will set a precedent for the way press freedom is understood throughout Canada.
There is some relationship between the Oka journalists and Brake at Muskrat Falls, but mainly in that Brake and his lawyer argued their case based on the freedom of the press section of the Charter. However, the main differences are obvious: Brake was subject to an injunction, not initiating one, whereas the journalists at Oka made their claim based on being denied food and supplies, not because they were subject to an injunction. The journalists at Oka were not facing any charges and were not otherwise impeded from reporting on the standoff, other than being essentially starved off the story. The similarity is, of course, that judges in both cases ruled that Charter rights to press freedom do not grant journalists any special status.
It is odd that Justice Murphy would draw on the case of journalists at Oka, which is somewhat beside the point, but did not look at any other relevant cases, specifically those cases of journalists charged with trespass. Brake is not exactly charged with trespass; however, breaking the injunction and entering the Muskrat Falls site is a very similar act, and Murphy mentions trespass numerous times in his ruling.
Generally, cases in which journalists are charged with trespass are extremely minor and have not resulted in criminal charges. Here are links to two cases involving journalists and trespass in Canada (see here, and here), neither of which carried any criminal charges and were in the end reasonably settled. Furthermore, here is an extract from an article in the Ryerson Review of Journalism on trespass law and journalism, which recounts other relevant cases:
On September 24, 1984, seven reporters, photographers and cameramen – Jonathon Craven, Al Clouston, Stan Coulton and Danny Cook from the CBC, Jim Russell from The Toronto Star, Richard Crabb from Broadcast News and Eaton Howitt from the Canadian Press – were convicted of trespassing in Peel Provincial Court and fined $200 each. Three others – Kenneth Kerr of The Toronto Sun and John McGhie and Al Hogan of The Brampton Daily Times – were acquitted when they could not be properly identified in court. In his decision, Judge Kenneth Langdon noted that “each of these gentlemen has an obligation to gather and disseminate news. …The media has a recognizable interest in getting to [the news] quickly. These people are not criminals.” […]
Though journalists sometimes trespass when they believe the public good requires it, few are charged, according to Stuart Robertson, a Toronto lawyer and author of Courts and the Media. Robertson attributes this immunity to special treatment often accorded members of the press. Those with identification are regularly allowed past official barricades. Others are permitted, even invited, to visit restricted areas. But while such privileges are understood to exist by reporters, they are not officially recognized [by the law]. […]
Bert Bruser, a Toronto lawyer who specializes in media law, predicts it is only a matter of time before a case of journalistic trespass is defended on constitutional grounds. Such a case could be critical in determining the media’s limits in pursuit of a story and in resolving the conflict between the public’s right to know and the rights of privacy and security. With the present judicial attitude toward the press, it is unlikely a decision would favor the media unless the information gathered by the journalist proved to be of exceptional public interest. If it is anything less, a precedent might be set that would make subsequent defences of journalistic trespass even more difficult.
Overall, the law with respect to journalists and trespass, and with respect to the Charter rights to freedom of the press, is not clear. Indeed, as far as I can tell, in recent years there has not been any case quite comparable to the one facing Brake for his work as a journalist at Muskrat Falls, since it carries serious criminal charges, and not simply a slap on the wrist like other trespass cases involving journalists.
As this case proceeds, it may go deeper into the murky waters of the Canadian Charter of Rights and Freedoms and any rulings will set a precedent for the way press freedom is understood throughout Canada. This is certainly no light matter, and any thorough look at the issue of press freedom leads to the conclusion that it is not clear cut or simple. It is not enough to just say, “he trespassed, so he’s guilty.”
In fact, in recent years there has been an effort to try to understand trespass law in a more robust manner. Calls have been made to come to some legal terminology of trespass that will help courts deal with cases of journalists crossing legal boundaries, precisely because such laws are currently applied in a haphazard and irregular fashion. For example, Ben Depoorter, Professor of Law at U.C. Hastings, has worked toward developing a concept of “Fair Trespass” of which he says:
First, this novel doctrine more carefully balances the access/exclusion tradeoff that exists in trespass law. The proposed doctrine would force courts to explicitly weigh the interests of society in access against the potential costs to property owners. Second, by replacing the existing patchwork of ad hoc situations where courts excuse trespassory acts, this proposal provides a more coherent and consistent framework to adjudicate trespass conflicts. In doing so, the suggested doctrinal changes will enable individuals to distinguish ex ante trespassory acts that are strongly discouraged from acts that should be excused. By developing a balancing test to assess trespass claims, the proposed doctrine seeks to protect the rights of property owners on the basis of a more explicit and predictable framework, while at the same time safeguarding the societal interests in access.
Considering the agreed upon fact that Brake entered the Muskrat Falls site as a working journalist, and considering that the law with respect to journalists and the free press is by no means clear, the important question in my mind is really about whether what was reported was of public interest and of such significance that it warranted breaking the court injunction. My view in this matter is that Brake’s reporting was certainly in the public interest.
The take-away point, in closing, is a plea for everyone to step back and to think in broader terms of what is happening here. It seems to me that this is not only a legal matter, but also an ethico-political matter, about the kind of society we want to live in and the role of the press and of journalists in Canada.
In that regard, it matters how we understand this case and how we respond to it, because the ripples will extend far beyond.
Jon Parsons is a writer and researcher whose work focuses on cultures of resistance. Catch up with him on Twitter @jwpnfld