In the public interest?

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Free press advocates argue there is no public interest in pursuing the civil and criminal charges against Canadian journalist Justin Brake.

“Quite the contrary, there are clear harms to public interest in pursuing this case against Mr. Brake,” said Duncan Pike, co-director of Canadian Journalists for Free Expression.

Protecting private property rights

Two questions drive the controversy over the charges that national and international advocates say are ‘deeply troubling’ and ‘contributing to the decline’ of Canada’s ranking in the press freedom index.

First, is it in the public interest for the crown attorney’s office to pursue criminal charges against a journalist covering an event of national importance?

Free press organizations say that the journalist’s role in providing information is in the public interest, while Newfoundland and Labrador crown prosecutor for the case Jennifer Standen says that the protection of private property rights and the enforcement of court orders are in the public interest.

Pike said that journalists need to be able to cover protests. “Whether it is a hydroelectric project in Labrador or a pipeline in British Columbia, there’s going to be protests, they’re going to be contentious, and they need to be reported on. Canadian people need to know what’s happening. They need to know the ways in which these effect the community around them. They need to know how police respond to civil disobedience,” said Pike.

Nalcor’s lawyer Chris King doesn’t agree. “I think while we all agree and respect and appreciate the need for freedom of the press, freedom of the press is the ability to report. It’s not the ability to trespass onto private property. And it’s certainly not the ability to ignore an order of a court,” he said.

The charges against Brake have been condemned by the Canadian Association of Journalists, Reporters Without Borders, Canadian Journalists for Free Expression, and the Centre for Free Expression at Ryerson University.

Journalists and advocates across Canada and the world are watching to see how the Canadian legal system responds to the civil and criminal charges brought against Brake, who disobeyed a court injunction when he followed land protectors to the Muskrat Falls hydroelectric project in October of 2016. At the time, Brake was reporter and editor for this publication, theindependent.ca.

“I don’t know of another case in Canada that raises more serious questions of press freedom than Justin’s. It’ll be a very dark day for freedom of the press and the public’s right to know if he’s convicted,” said Jim Turk, with the Centre for Free Expression at Ryerson University.

Canada has fallen 14 places in the World Press Freedom Index

The second question relates to the role of journalism in a democracy: When is it in the public interest for a journalist to act as a witness to events that might include illegal activity, such as receiving stolen documents or trespassing?

“Sometimes the things that journalists do are legal, but they’re not remotely ethical. And sometimes what journalists do may be illegal, but it would be unethical to not do those things,” said Lisa Taylor, former lawyer and assistant professor of journalism at Ryerson.

Taylor said that a journalist’s right to report is not absolute, but that a journalist has an ethical duty to inform the public, especially during protests.

“So I think journalists have to look and say ‘what is the public interest and what might happen on the other side of this door or these gates or this barricade that could be again legitimately something that the public would want to know about?’ That’s one of the questions. And perhaps nowhere is that more fraught than in questions of protest,” Taylor continued.

As Brake’s civil and criminal charges proceed, the court’s interpretation of public interest and a journalist’s public role could impact the legal protections that many reporters have taken for granted, potentially changing the way reporters cover some of Canada’s most important stories in the future.

“Canada has fallen 14 places in our press freedom index in the last 14 years. The case against Justin adds to this overwhelming declining environment for press freedom in the country that’s very concerning. That’s why [we] need to make sure we draw attention to these cases at an international level so that Canada understands that they need to comply with democracy’s fundamental principle of respecting a free and independent press,” said Margaux Ewen, North American Director of Reporters Without Borders, a non-profit group that promotes and defends the freedom to be informed and to inform others throughout the world.

Ewan listed other contributors to Canada’s decline on the world press freedom index, including multiple cases of journalists being ordered to share background information or sources and the discovery of the police surveillance of multiple Quebec journalists. Canada was ranked 22nd on the 2017 World Press Freedom Index.

Brake said that he had understood his actions while reporting as a journalist were protected by the Canadian Charter of Rights and Freedoms.

“I never interpreted press freedom as something that could be used by journalists to do whatever they want, however they want, whenever they want. But in a situation where  a major story is unfolding, like the occupation of Muskrat Falls, I never thought that somebody would respond by trying to take away my press freedom and the press freedom of all journalists because of my decision to cover that story,” he said.

Crown criminal charges and the public interest

When crown prosecutor with the province Jennifer Standen took on the case in late summer 2017, she considered whether or not there was a public interest in pursuing criminal charges against Brake.

“For every prosecution we have two criteria that we have to look to before we proceed. So when I took this file over, my first responsibility is to review the file and assess it for what we call a reasonable likelihood of conviction. And then we have the second criteria, which is whether this is in the public interest. So I did both of that and determined that, yes, in both cases we met both criteria with the prosecution in this case,” she said.

Standen said that the public interest related to the charges include the consistent enforcement of court orders and the protection of property rights.

“We have a responsibility as prosecutors to ensure that the law is being upheld. An injunction is a court order and we need to take court orders seriously, otherwise they lose their effect. That is one of the things that I considered when looking at whether this was in the public interest. And obviously we do have property rights that are at play here. Someone’s rights as a property owner were breeched, or that’s the allegation, that they were breeched on that day. So that certainly is something that we have to take into consideration,” she explained.

Standen said that she can’t comment on whether or not there is a public interest in pursuing charges against a journalist who was covering an event of national significance.

“Mr. Brake hasn’t raised that issue specifically in the criminal context. So I haven’t had to address it to date. I really can’t speak to that,” Standen said.

The criminal charges Brake faces include disobeying a court injunction and mischief.

“That speaks to the interference with the lawful use or enjoyment of the work camp itself, which is mischief. The individuals who entered the work camp and stayed interfered with the lawful use or enjoyment of the work camp,” Standen said.

The civil and criminal charges are separate from one another—and that’s one thing that people forget or get wrong, said Nalcor’s lawyer Chris King, who is handling the civil proceedings against Brake. He said that the decision to lay criminal charges against a journalist was made by a crown attorney with the Department of Justice and Public Safety.

“The criminal charges again, that’s a decision for the crown attorney’s office to make… That’s something that Nalcor is in no way involved. The crown decided that there was evidence to lay criminal charges and so Nalcor’s had zero involvement, no input, no knowledge. I’ve learned about the criminal charges through the media, just like others, ” said King by phone.

The civil charges have to proceed, said King, Nalcor’s lawyer.

“We’ll often hear, well, why doesn’t Nalcor drop the charges? Nalcor has given its own undertaking to the court that if this injunction is granted, that Nalcor has a legal obligation to bring forth any evidence to the court of any individual who violated the injunction order. Were Nalcor not to do that, Nalcor would be in contempt of court itself. It would be in violation of its own obligation to the court,” said King.

And yet, Nalcor has dropped the civil charges against some of the Muskrat Falls protestors.

“There’s a notorious case of the 96-year-old woman who was charged. They dropped that pretty quick. As far as I know, they’ve only dropped a small number. And the position they’re taking is that, but for those very exceptional cases, they’re duty-bound to see them through,” said Brake’s lawyer, Geoff Budden.

Budden said that he argued before the court that Nalcor’s original injunction—the one that led to both the criminal and civil charges against Brake—should have identified Brake as a journalist.

“We asked them to rule that the civil contempt process that has been started should be ended because it was based on an order that was made without the court being aware that Justin was a working journalist. So we feel that taints the whole process to the point where the civil contempt should not proceed. So I guess we’ll see what the court has to make of that,” Budden said.

Budden said they’re waiting for a decision to come down on that argument for the civil charges. They have not yet put in a plea for the criminal charges.

Increasing recognition by courts of the role of journalists 

Press freedom advocates agree with what Brake and his lawyer Budden are arguing: that because journalists play a central role in getting information to the public and because this role is important to functioning democracies, journalists have a right to be treated differently before the courts in some circumstances.

“Generally there’s been increasing recognition by courts of the important public role that journalists play. So there’s been every reason to think that our legal system is clearer about how vital it is for journalists to be able to play the role of eyes and ears for the public,” said the Centre of Free Expression’s Jim Turk .

Journalists have already been granted some rights before the courts in order to allow them to do their job without facing prosecution, said Budden.

For example, journalists have been granted the right to protect confidential sources, he said. A journalist who has come into possession of stolen property, such as a letter from a politician about participation in illegal activity, would most likely not be charged with possession of stolen property, he added.

“So the law has recognized those two ways. Either formally or tacitly, the law doesn’t see journalists charged in those respects,” said Budden. “At present the law hasn’t really engaged at any high level about what kind of immunity they have in acting as Justin has, because Justin’s argument of course is, ‘Look, I wasn’t protesting anything. I was covering protestors. And it was a newsworthy story. I followed the news where it went.’ Is that a defence? At this point we don’t know,” he said.

When is it important for journalists to be present? 

Lisa Taylor, who teaches media ethics and the law, says that journalists play an important role during conflicts, including protests.

“Having a neutral party observer there in the form of a journalist, who can not just observe but also share their information with the world at large is really important in these cases,” she said.

Taylor said that journalists often act as watchdogs, particularly in instances where people may misbehave and where things can go suddenly wrong.

“So whether the journalist is there to be a watchdog on the police or a watchdog on the protestors or all of the above, it’s a pretty important place for journalists to be. And without that neutral third party on the ground at times like this it becomes one group’s word against another.”

In order to serve as the public’s eyes and ears, journalists have to go to risky places to cover stories sometimes, said Turk.

“By definition, some of those places are where journalists have to put themselves at risk. And that risk has to be recognized and made allowance for in our legal system in order that the public can have a better knowledge of what’s happening in our society or in the world. And that’s why the first thing totalitarian governments do is attack the journalists. They attack professors, but they attack the journalists first because they don’t want the public to know,” said Turk.

Should the courts consider Brake’s profession when considering the charges brought against him? Taylor thinks so.

“A society that—at least in theory—believes in the role of the democratic media should have an awful lot of latitude for journalists who find themselves in these situations. You know Justin Brake’s intent was not to break the law. Justin Brake’s intent was to follow the story,” Taylor said.

Journalists at the G20 protests and the Charlottesville protests

Press freedom advocates say that journalists have an ethical obligation to cover events like protests in order to make sure the full stories are told. They point to the G20 protests in Toronto in 2010 and the 2017 Charlottesville protests in the United States to illustrate the full role of journalists.

In Toronto in 2010 “we only understood what went wrong there through the stories of journalists on the ground,” said Taylor.

The initial narrative put forward by the police—one of unruly protestors—was upended by solid reporting. “So you know journalists can tell a story that we need to understand when things go south at any kind of mass gathering, like a protest,” she said.

It would have been unethical for journalists to not cover Charlottesville last year, even when it meant going places the public wasn’t allowed to go.

“If someone had said, ‘okay all journalists you have to pack up and get out of here.’ I’m going to say that if all the journalists did just pack up and leave, they’d be committing journalistic malpractice because it’s really important that we understood how people, especially racialized protestors, were going to be treated at the hands of the police,” she said.

“So I’m going to go so far and say not only is it ethical to remain, I’m going to suggest that if it’s not downright unethical—it’s a kind of dereliction of journalistic duty—to say ‘Well, I’m packing up my camera and I’m going home now,’” said Taylor.

Brake said he acted out of this kind of motivation—that he was making an ethical decision to provide information about an event that had become uncertain and complicated.

“We saw after I made the decision to pursue that story, I was able to provide information that was critical to a more truthful understanding of what actually was happening that day. The more people that tuned into the livestream were then privy to more information which then had a positive impact on the whole situation. Nalcor was worried about the safety of its workers, so when I started live-streaming and showed that workers and land protectors were getting along, and there was no violence and animosity, that must have made Nalcor feel relieved that their workers were not put in jeopardy. And it must have helped the police have a better understanding of what was going on inside. And it must have eased their minds a little bit, because they had their members of their paramilitary arm on hand, with automatic or semi-automatic weapons in military style gear outside somewhere within the Muskrat Falls site. And the government must have been put at ease, knowing that there was a peaceful occupation of the workers’ camps happening, and not something violent happening at the facilities or towards workers on a government-sanctioned and crown corporation-run project site,” Brake said.

Brake says he is defending the rights of all journalists

Nick Taylor-Vaisey, of Canadian Association of Journalists, said that “to treat [Brake] as though he was breaking a law, I think, is a fundamental misunderstanding of the journalist view and why he was there.”

While covering a protest, advocates say that Justin made an ethical decision about how to best get information about the protest to his readership and other Canadians.

“He made a decision, using his judgement as a reporter, to follow them, to cover what he assumed would be newsworthy. And you know, maybe he thought maybe the people who burst into the property would be arrested, maybe he thought they would be unfairly treated, maybe he wanted to cover that. He wanted to make sure that those people’s voices were heard, and the way that the company responded was also reported on. I think that he was within his rights as a reporter,” said Margaux Ewan, with Reporters Without Borders.

The outcome of these charges could impact the kinds of stories journalists cover, said Taylor-Vaisey.

“Obviously that wouldn’t affect every story told by every journalists. But it would mean that a lot of stories would not be told simply because of the risk involved in telling them. It’s hard to put a number on that. But certainly Justin’s reporting would not happen if journalists respond to that sort of chill,” said Taylor-Vaisey.

Brake feels he has an obligation to defend himself against the charges.

“I’m defending journalists’ rights to cover these stories. These are rights that we have. It’s not an unprecedented thing. The thing is not that I violated an injunction in the course of my reporting. Journalists have done that many times. They’ve done things like obtained illegal documents or there’s lots of things journalists have done. What’s unprecedented is that the Crown and a crown corporation are coming after me for doing that. So it’s like, it’s an attack on me, but it’s an attack on press freedom and if I am convicted, as you know, then that could set a dangerous precedent. So, it is stressful but not just because of the impact it’s having on me, but because of the impact it’s having on all journalists in Canada,” he said.

It isn’t unusual for a corporation to bring charges against reporters, said Ryerson’s Jim Turk. He pointed to the outrage expressed by various Canadian mining companies after journalists exposed some of their practices to the world.

“And what Nalcor is doing is a pretty aggressive way of dealing with the matter,” added Turk. “Other corporations I think tend to try to deal with these in more subtle or sophisticated ways that don’t so obviously attack what our Charter of Rights and Freedoms recognizes as a fundamental freedom, and that’s freedom of the press.”

Michelle Porter is the lead editor for The Independent. She holds a BA in Journalism, an MA in Folklore and a PhD in Geography. She is the recipient of 2005 Atlantic Journalism Award for feature writing and the recipient of 2016 NL Arts and Letters award for poetry. She has been long-listed for CBC Poetry prize in 2016 and 2017.