Breaking the News: What the Cases of Marie-Maude Denis and Justin Brake Could Mean for Journalism
Today’s world is difficult for journalists and freedom of the press values. In the United States, President Donald Trump has described independent journalists as the “enemy of the state.” Increasingly, we have seen perpetration of acts of violence directed towards journalists, such as the pipe bomb delivered to CNN headquarters in New York City and the shocking assassination of Mr. Jamal Khashoggi inside the Saudi Arabian consulate in Istanbul. A 2018 UNESCO report highlights multiple safety concerns for journalists around the globe. The proliferation of “fake news” online is said to be threatening democratic debate and traditional media institutions. The safety of journalists and the integrity of the news media in Canada appears better, but is Canada a bastion of the free press?
The Supreme Court of Canada (“SCC” or “the Court”) has on several occasions acknowledged the vital role journalists play in our democratic society. Journalists seek out the truth, perform their duties in an independent and non-partisan manner, and act as a “conduit through which the public receives … information regarding the operation of public institutions.” Such information can expose corruption and injustice, and enables “members of our society to make an informed assessment of the issues which may significantly affect their lives and well-being.” This frank appraisal of what occurs in the halls of power was said to be by Justice La Forest the “raison d’être of the s. 2(b) [freedom of expression and freedom of the press, Canadian Charter of Rights and Freedom] guarantees.” Moreover, in R v National Post, 2010 SCC 16 the SCC articulated a public “right to knowledge” about issues of public interest, an entitlement citizens would be greatly deprived of without the work of journalists.
Despite such pronouncements from Canada’s highest court, in 2017 Canada lost its place in the top 20 of the World Press Freedom Index. It received a rank of 22. A contributing factor included news that Canadian authorities had issued surveillance warrants against several journalists. Other concerns included whistleblowers having limited protection and journalists facing possible jail time. In 2018, Canada returned to the top 20, ranking 18. Two factors associated with these gains were the December 2017 release of the Quebec Commission of Inquiry (“Chamberland Commission”) final report acknowledging police surveillance of multiple journalists, and the enactment of a federal “press shield law” – the Journalistic Sources Protection Act, SC 2017, c 22 (JSPA) – to protect the confidentiality of journalists’ sources. The JSPA amends the Canada Evidence Act, RSC 1985, c C-5 and the Criminal Code, RSC 1985, c C-46 to provide certain statutory exemptions for journalists.
In this post, I analyze two cases currently before the courts, both involving journalists. In the case of Denis v Côté, 2018 QCCA 611 [Denis], Marie-Maude Denis has been granted leave by the SCC. Justin Brake is waiting for a decision from the Court of Appeal of Newfoundland and Labrador regarding the lower court’s verdict in Nalcor Energy v Anderson, 2017 NLTD(G) 51 [Nalcor]. Denis’s case will engage the live issue of source protection. My colleague Ankita Nayar recently published a commentary analyzing the SCC’s recent findings on that issue in R v Vice Media Canada Inc., 2018 SCC 53 [Vice]. In Vice, the SCC held that the state’s interests in investigating and prosecuting a Canadian citizen and alleged ISIS fighter, Farah Mohamed Shirdon, required Vice Media to hand over their communications with that individual to the police. For some, this ruling was considered a “dark day for press freedom.” A quirk of the Vice case is that the JSPA did not apply. The JSPA places the burden on the party seeking to reveal the source and makes “freedom of the press” a factor in the balancing analysis. Denis’s case, granted leave by the SCC from the Quebec Court of Appeal (“QCCA”), will be the first instance where this “shield law” – the JSPA – is tested at the SCC.
Brake’s case raises the possibility of both criminal charges and civil penalties against journalists who cover protests on private property. Brake is a journalist and recipient of the 2018 PEN Canada/Ken Filkow Prize for freedom of expression. The award was granted in recognition of the courage Brake showed in covering the Indigenous-led occupation of Nalcor Energy’s (“Nalcor”) hydroelectric project site at Muskrat Falls in October 2016. Unfortunately, this coverage resulted in criminal and civil proceedings against Brake in Newfoundland and Labrador. The way our courts resolve these issues could have chilling effects on journalistic free expression, or, alternatively, reinforce the special status of the journalist in our society. Either way, the state of the law is evolving, and the stakes are high for press freedom.
Source Protection: The Case of Marie-Maude Denis
Relying on anonymous or confidential sources is standard practice for journalists. Without being able to offer protections to their sources, the argument goes, the ability of journalists to access needed information is diminished, and without an effective media, there is no meaningful transparency and accountability in public affairs. As such, it is for good reason that journalists have a professional code of ethics discouraging source disclosure.
At the same time, journalists are not above the law. There can be good reasons in certain circumstances where journalists must reveal source identity or turn over confidential communications. As Lord Denning put it, if a source is not revealed “how is anyone to know that this story was not a pure invention” or that the information is not “mere rumour”? Similarly, there is a balancing act between source protection and other issues such as state security and the rights of accused (if a journalist’s story leads to criminal charges).
In Denis v Côté, Marie-Maude Denis, a Radio-Canada journalist who broke a story about government corruption in Quebec, will ask the SCC this spring to allow her to keep her source(s) confidential. Denis’s reporting on Montreal’s construction industry lead to resignations of public officials, the establishment of the Charbonneau Commission to investigate corruption in public contracts, and fraud charges against several individuals, including Marc-Yvan Côté, former Quebec Liberal cabinet minister and fundraiser.
Quebec courts have given different interpretations of the JSPA. The Court of Québec (preceding the Superior Court in this instance) dismissed the motion to divulge the identity of the source, holding that this information was not pertinent to the guilt or innocence of the accused (Mr. Côté). By contrast, a Quebec Superior Court ordered Denis to reveal her source. That ruling held that under the JSPA, Côté’s interest in knowing his accuser outweighed the value of source protection. The QCCA dismissed Denis’s appeal on a jurisdictional basis. The criminal proceedings against Côté have been stayed until the source protection issue gets resolved by the SCC.
The SCC will be faced with how to resolve competing interests under the JSPA framework. Clarity in the law is needed. It will be interesting to see if the Court will take the JSPA as a signalling of Parliament’s intent to swing the balance from concerns like security and trial fairness towards source protection.
Criminalizing Journalism: The Case of Justin Brake
At the time of his coverage of the Muskrat Falls protest, Brake was an editor and writer for The Independent, an alternative newspaper in Newfoundland. Brake followed protestors onto a hydroelectric project site, where he remained with them for a couple days despite an injunction prohibiting access. As Geoff Budden, one of Brake’s lawyers, shared with this author, “Nobody is alleging [Brake] was anything other a journalist covering those stories.” However, as Budden and his associate counsel Allison Conway note, when Nalcor went to the Supreme Court of Newfoundland and Labrador seeking ex parte relief, Nalcor did not advise the court of the fact that Brake was working as a journalist.
Brake’s lawyers argue that this is a civil procedure issue. There is a common law duty on the party seeking ex parte relief to advise the court of any “material” fact. A fact is material if it “could” have influenced the court’s decision to grant the ex parte order. Brake’s lawyers contend that Brake’s status as a journalist is material because it requires consideration of additional laws or legal principles, including Charter rights. While protestors have the generic right to “freedom of thought, belief, opinion, and expression,” the legislators of the Charter “chose to specifically enshrine the freedom of the press and other media.”
Justice Murphy of the Supreme Court of Newfoundland and Labrador disagreed, holding that “Mr. Brake did not have any special status in this case because of the fact he is a journalist. There was no obligation on Nalcor to bring that fact to the attention of the court.” Justice Murphy cited a Federal Court precedent that arose from the 1990 Oka Crisis in which Justice Joyal, as he then was, found that “freedom of the press … does not confer any special status on media people.” However, that context was different from Brake’s. Justice Joyal ruled that journalists should not be able to receive materials and aid separately from the Indigenous protestors, but he also acknowledged that
[A]dmittedly, the role normally exercised by journalists is one which is fundamental to a free and democratic society. This is the role which the plaintiffs have voluntarily undertaken by maintaining their vigil in the compound and by continually filing their stories. In so doing, the plaintiffs are exercising their right to stay there (emphasis added).
Justice Joyal, in other words, would not have barred reporters from being present at the protest for the purpose of news coverage.
The Truth and Reconciliation Commission Report provides a new framework to consider, perhaps further differentiating Brake’s circumstance from that of the journalists covering the Oka Crisis. In the wake of the Report, which identifies a nationwide responsibility to facilitate decolonization and reconciliation, there is an opportunity for our courts to enable journalists to fairly report on Indigenous issues and highlight concerns from those communities. A conviction for Brake might indicate that land disputes, especially as they pertain to Indigenous peoples, are not events that journalists can cover in person.
As Brake and his lawyers await the appellate court ruling, the precedential consequences of a negative verdict loom large. The civil case raises the concern that corporations may use their economic advantage to engage in a form of libel chill, discouraging unfavorable journalistic activities through the threat of lawsuits. Meanwhile, a criminal conviction for Brake could act as a further deterrence against other journalists reporting on land disputes, including instances where Indigenous peoples defend themselves or their land against unwelcome intrusions by corporations and the state. This could effectively make private property a space where corporate and state actors control the flow of information. Such a state of affairs would have widespread impact in Canada, for instance in the context of ongoing pipeline disputes like Trans Mountain (see Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 153). A court precedent that favours private property over Charter press freedom rights could mean reporters are prevented from gathering information directly and thus be forced to rely on second-hand information that may be pre-screened by corporations or government.
Freedom of the press is an important constitutional guarantee, which promises the promotion of accountability and transparency in public affairs. However, it is a right that the SCC has not carved out neatly from freedom of expression rights more generally. As Oliphant notes, the term “freedom of expression” is often treated as a “superfluity to be protected, if at all, through the related but conceptually distinct notion of freedom of expression.” The minority opinion penned by Justice Abella in Vice made strides in the direction of decoupling these concepts. Justice Abella states, “Unlike the majority, I see no reason to continue to avoid giving distinct constitutional content to the words “freedom of the press” in s. 2 (b). The words are clear, the concerns are real, and the issue is ripe.”
There is a historical tradition to draw upon in Canada in support of such a distinct protection for journalists, dating back possibly as far as the pre-Confederation Libel Trial of Joseph Howe in 1835. In that case, Nova Scotia newspaper editor Joseph Howe was charged, but ultimately acquitted, for seditious libel prompting discontent and rebellion “among His Majesty’s subjects.” The jury’s acquittal of Howe set a tone that scholars such as John Ralston Saul connect to later constitutional developments.
Recognition by Canadian courts of the special status of journalists would be very timely. Recent concerns have been raised about Canada’s status as a bastion for the free press. These have included government surveillance of journalists, inadequate source protection, and the possibility of jail time and lawsuits against journalists who enter private property to report on protests. In 2019, Canadian courts will continue to grapple with defining the bounds of key issues like source protection and whether journalists should be immune from legal consequences that would otherwise flow from charges like trespassing. The cases of Marie-Maude Denis and Justin Brake warrant close attention. How these two cases are decided may impact the quality of information we receive from our media as well as the ability of journalists to report fairly and accurately.
 United Nations Educational, Scientific, and Cultural Organization, “2018 DG Report on the Safety of Journalists and the Danger of Impunity” (2018), online: <https://unesdoc.unesco.org/ark:/48223/pf0000265828>.
 Re Vancouver Sun, 2004 SCC 43, para 26.
 Canadian Broadcasting Corp v New Brunswick (AG),  3 SCR 459, 85 DLR (4th) 57, para 475.
 Canadian Broadcasting Corp. v. New Brunswick (Attorney General),  3 SCR 480, para 23, per La Forest J.
 National Post, para 28.
 Reporters Without Borders For Freedom of Information, “Back in the top 20 but still room for improvement”, online: <https://rsf.org/en/canada>.
 Commission d’enquête sur la protection de la confidentialité des sources journalistiques – Report Overview (December 14, 2017), online: <https://www.cepcsj.gouv.qc.ca/fileadmin/documents_client/documents/CEPCSJ_Synthese-ANG_Accessible_2017-12-14.pdf>.
 Denis Leave Application Decision, online: <https://scc-csc.lexum.com/scc-csc/scc-l-csc-a/en/17229/1/document.do>.
 See Catherine Tunney, “’Dark day for press freedom’: Vice must give ISIS notes to police, top court rules” (November 30, 2018), CBC News, online: <https://www.cbc.ca/news/politics/supreme-court-vice-ben-makush-decision-1.4926102>.
 JSPA, s. 39.1(9).
 PEN Canada, “Justin Brake wins 2018 PEN Canada/Ken Filkow Prize for freedom of expression”, online: <https://pencanada.ca/news/pen-awards-annual-filkow-prize-to-journalist-justin-brake/>.
 Nalcor Energy v. Anderson 2017 NLTD(G) 51, online: <https://www.canlii.org/en/nl/nlsctd/doc/2017/2017canlii19485/2017canlii19485.pdf>.
 Attorney-General V Mulholland  1 All ER 767,  2 QB 477, see online: <https://www.casemine.com/judgement/in/56e1290f607dba3896620f5d>.
 Supreme Court of Canada Docket 38114, online: <https://www.scc-csc.ca/case-dossier/info/dock-regi-eng.aspx?cas=38114>.
 For more information on Quebec’s judicial system, see “The Quebec Judicial System”, online: < https://www.educaloi.qc.ca/en/capsules/quebec-judicial-system>; Côté c. R., 2018 QCCQ 547 (CanLII), para 214, online: <https://www.canlii.org/en/qc/qccq/doc/2018/2018qccq547/2018qccq547.html?searchUrlHash=AAAAAQAjQW5kcsOpIFBlcnJlYXVsdCwgbWFyaWUtbWF1ZGUgZGVuaXMAAAAAAQ&resultIndex=1>.
 Side c. R., 2018 QCCS 1138 (CanLII), para 39, online: <https://www.canlii.org/fr/qc/qccs/doc/2018/2018qccs1138/2018qccs1138.html>.
 Canadian Paraplegic Association (Newfoundland and Labrador) Inc v Sparcott Engineering Ltd,  NJ No 122, 150 Nfld & PEIR 203, para 18
 Canadian Paraplegic Association, para 18.
 Factum of the Appellant, Supreme Court of Newfoundland and Labrador File No. 2017 01H 0027, pg 12.
 Nalcor, para 37.
 McLeod v. Canada (Armed Forces),  1 FC 144, 2 CR (3d) [McLeod], para 35.
 “Honouring the Truth, Reconciling for the Future”, Summary of the Final Report of the Truth and Reconciliation Commission of Canada, online :<http://caid.ca/TRCFinExeSum2015.pdf>.
 For example, Kinder Morgan sought an injunction to keep Indigenous people and their supporters off the Trans Mountain project site. Query whether reporters have been deterred from covering this significant story in person? See “Kinder Morgan files injunction against pipeline protesters” (March 9, 2018), National Observer, online:<https://www.nationalobserver.com/2018/03/09/news/kinder-morgan-files-injunction-against-pipeline-protesters>.
 See Benjamin Oliphant, “Freedom of the Press as a Discrete Constitutional Guarantee” (2013) 59:2 McGill LJ 283.
 Oliphant, pg. 1.
 Vice, para 109.
 Cecil Rosner, “Free Speech and Joseph Howe” (2005). 85. Manitoba: The Beaver, 12.
 John Ralston Saul, Joseph Howe & The Battle for Freedom of Speech (Kentville: Gaspereau Press, 2006).