Justin Brake

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. 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. The case also drew international attention from the Fahmy Foundation, Reporters without Borders, and was cited as a concern by the Press Freedom Index. 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.

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

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

From 2012 to 2017, Brake was a journalist at The Independent based in Newfoundland and Labrador. 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. 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.

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.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. The injunction was issued on October 16, 2016 and an ex parte contempt appearance order issued on October 24, 2016. At least one local rally was held in support of Brake demanding the charges be dropped. 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.”

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.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. 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.” 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.” 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.

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. 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."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.