The Newfoundland Court of Appeal has issued a landmark decision that explicitly underscores the importance of ensuring journalists covering matters of the public interest – including Indigenous land-use disputes – have unfettered access.
In a unanimous decision thought to be the first of its kind in Canada, the court overruled a trial judge’s earlier decision to uphold contempt of court charges against journalist Justin Brake. Mr. Brake was covering a land dispute at Labrador’s Muskrat Falls in 2016 when the main contractor of the project, Nalcor Energy, included his name on a list of 22 protesters the company asked the court to remove from its site via an injunction.
Although Mr. Brake said his occupation was known to the company, and he was reporting live from the site, his journalist status was not made clear to the court. Mr. Brake’s subsequent appeal to be removed from the injunction was rejected; the judge wrote then that it was not “material” that Mr. Brake was a journalist.
The author of the appeal decision issued Thursday, Justice J. Derek Green, argued it was wrong to include Mr. Brake’s name in the injunction, which “would unduly and unnecessarily interfere with his function as a journalist.” The judge then issued a caution about wide-reaching injunctions that threaten to impede media function and risk the public being “deprived of access to information of the public interest.”
He warned that “the potential ‘chilling effect’ is real and significant and should be avoided if at all possible.”
He also underscored the specific importance of reporting on Indigenous issues.
“Aboriginal communities have been historically underrepresented in the Canadian media,” Justice Green wrote. “That makes freedom of the press to cover stories involving indigenous land issues even more vital.”
For what appears to be the first time in Canadian law, Justice Green went so far as to list a set of criteria other courts ought to consider when exempting journalists from orders designed to block protest activities. Judges should consider whether a journalist is engaged in good-faith news gathering, aiding protesters, obstructing justice or interfering with law enforcement and whether matters being covered are in the public interest, Justice Green wrote.
“Particular consideration should be given to protests involving aboriginal issues,” he added.
Geoff Budden, one of the lawyers who represented Mr. Brake, said he believes the ruling will force subsequent courts to specifically consider the effects on journalists of any injunctions they are asked to consider.
“We now have an appellate court saying that journalists – and particularly journalists covering matters of public interest – do have special status,” Mr. Budden said. “I would think this will apply to coverage of protests against the G8, protests against climate change, labour matters, anything that engages the public.”
In an interview, Mr. Brake said he hopes the ruling will give journalists renewed confidence that they do have specific rights to do their job.
“This doesn’t give journalists … a master key to just go anywhere they want,” he said. “But clearly if they are reporting on a matter of public interest and it is indigenous people defending their land, it matters they are there as a journalist and they should be able to report.”
Mr. Brake is still facing criminal charges in relation to his coverage of the 2016 protest. His lawyer, Mr. Budden, said he is hopeful they will soon be dropped.
Jessica Leeder