Journalist faces unprecedented criminal charges over coverage of Muskrat Falls protest

MARCH 22, 2018 

When Justin Brake made the move that would ultimately result in criminal charges against him, the journalist did not see himself as breaking the law.

He thought it would protect him.

A journalist with Newfoundland online news outlet The Independent, Mr. Brake was in the midst of an intensive stint of reporting on the tensions inflamed by Muskrat Falls, the controversial Labrador-based hydroelectric project, on the day he filmed protesters cutting through a locked gate. When they flooded onto the project site in spite of an injunction blocking trespassers, Mr. Brake followed and continued to film.

While other media remained at the gate, Mr. Brake embedded himself with a largely Indigenous group of protesters (which he refers to as “land protectors”) while they occupied workers’ accommodations. He live streamed their protest for several days.

As a result of his work, Mr. Brake now finds himself at the lonely centre of a rare legal scenario thought to be unprecedented in Canada. More than a year after covering the protest, Mr. Brake is fighting both civil and criminal charges for violating the injunction that protesters ignored. He is thought to be the only journalist ever to have been charged both civilly and criminally for reporting on a matter of public interest in this country.

“To lay criminal charges against journalists is a very rare thing to do,” said Paul Schabas, a Toronto-based lawyer with expertise in media and constitutional law. “Here it strikes me as particularly extraordinary given that they are also proceeding with a civil remedy,” said Mr. Schabas, who is not involved with Mr. Brake’s case. “What’s the need to also pile on a criminal charge?”

Newfoundland provincial court judge Wynne Anne Trahey said earlier this month that the criminal charge is “intended to address matters of public interest” while the civil proceedings “resolve issues between competing parties.” Her comments were part of a ruling that rejected Mr. Brake’s legal request to have the criminal charges stayed.

The journalist, who now works in Halifax for the Aboriginal Peoples Television Network, is awaiting another judge’s decision, which could come any day, on a separate appeal to have the civil charges tossed out. But the likelihood that Mr. Brake will be forced to defend his 2016 decision to favour journalism over an injunction seems increasingly firm.

While much is at stake for Mr. Brake personally – the young father faces jail time plus increasing legal bills – media advocates and legal experts argue that his case, which happens to be unfolding in courtrooms on the geographical margins of the country, ought to be setting off alarm bells nationwide.

“A case where a journalist is effectively charged with a criminal offence for what appears to be doing their job is something that should concern everybody,” said Mr. Shabas.

Duncan Pike, co-director of Canadian Journalists for Free Expression, said Mr. Brake’s case is “incredibly dangerous for press freedom in Canada.”

“Canadians are very complacent with the state of our freedoms and think that these things don’t happen in Canada – that reporters don’t get arrested for their coverage,” Mr. Pike said, adding: “He was there as a journalist, doing his job.”

With his focus on indigenous rights, Mr. Brake had spent weeks in isolated Happy Valley – Goose Bay interviewing locals, uncovering fault lines and getting a pulse on the remote community’s opposition to the Muskrat Falls dam, which included worries about methylmercury contamination.

On the day that protesters cut the lock on a gate to the work site, Mr. Brake, armed with two iPhones, felt he could not stay behind.

“You have to follow that story,” Mr. Brake said, recalling his decision in a recent interview with The Globe and Mail. “This was me recognizing a major story and making a decision to cover it. I didn’t think anybody would try to apply that injunction to me, recognizing that I was there as a reporter … I took comfort in knowing that we have press freedom enshrined in our constitution and this was a story.”

Born in Newfoundland and raised in Ottawa, Mr. Brake said his aim is to “practice journalism as responsibly as I can.” A key element of doing that involves covering Indigenous issues and ensuring marginalized voices are heard (during a two-year stretch, he said he worked without pay as an editor for The Independent as part of an effort to keep the publication afloat).

Mr. Brake, who does not identify as Indigenous but recently learned he has some Mi’kmaq ancestry, is an advocate for media reform. He has not been shy on social media about criticizing mainstream media when he deems coverage to lack balance.

“I’ve done journalism that is unconventional,” Mr. Brake said. “But I don’t think I’ve been necessarily an activist.”

In defending himself on charges, though, Mr. Brake finds himself advocating for a broader cause.

“I fear that journalists watching my case unfold might be influenced, might be deterred from following such stories,” he said. “Regardless of whether or not I’m convicted in the end, the chill effect is huge.”