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.
It seems misleading to say that has been been charged for reporting, rather than to say that he has been charged while reporting. I haven't read the charges, but I presume the issue is lack of perceived immunity rather than separate laws against reporting. But this does raise the question, are there crimes that journalists frequently commit for which they are not charged? The implication is that prosecution is rare because of immunity, but a simpler explanation would be that prosecution is rare because journalists are generally law abiding.
> are there crimes that journalists frequently commit for which they are not charged?
I suspect for trivial ones like this (tresspass), it is pretty common. This guy was tresspassing in the wake news-worthy trespassers. A rationally self-interested owner might want to let the journalist off to avoid bad press.
That said, the other journalists remained at the gate. So this guy was going beyond the informal norms around there. Also it says: 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.
So maybe he was seen as one of the protesters rather than a journalist covering them. Also does he cover a multi-day tresspass? If so, it is clearer that he should have sought permission from the owners before going in to film; at least after the initial rush.
There was also property damage with the gate being broken, but I doubt that applies.
There was also a specific injunction against the protest, not just trespassing, and it was multiday trespassing, not just entering a private propety to film something of interest and then leaving.
Was it necessary for him to be there integrated as one of them for the whole disruption to get the story? Im curious what line youd have to cross to be a protestor, not just a reporter.
Their reporting is less likely to be seen as a public good, but I imagine that paparazzi are charged for trespass and/or assault with some frequency. Just as not all trespass is a like, not all reporting is either. I think a judge would be more sympathetic to trespass that reveals, say, prison corruption than a celebrity affair.
Sorry, I'm a Canadian (of partial Turkish decent, funnily) I don't want our society / police touching journalists that cover protests or other incidents of civil disobedience or conflict. Journalists stop the powerful from manipulating history and history will be manipulated if they're not allowed to access sit-ins, protests, etc.
If they're the only ones trespassing, sure, arrest them. But otherwise let's keep the courts for the actual criminals.
From what I've read, it doesn't look like he was "touched" because he covered the event, but because he, practically, participated in it. I can imagine a situation when someone can do it with the sole intention to provide information which can save somebody from a wrong conviction, for instance, but it anyway would require a due process, and a judge to weigh a motive. You cannot realistically have a blanket legislation immunizing everyone who streams, or records - that would be too easy to abuse. So the case doesn't look like Canadian democracy is in real danger.
And, by the way, let's not overestimate the alleged sanctity of journalism: they are humans too, as any of us, and there are numerous examples of journalists distorting facts for variety of reasons, starting from personal beliefs, and ending with bribes.
I'm a developer, it's still illegal for me to use holes found by other developers. He trespassed on private property, his being called a "journalist" doesn't much change that.
There are many cases where sticking around someone (e.g. a civil activist like MLK) was illegal enough for having a criminal charge over you; but journalist get immunity -to a degree, explicit or implicit- for being so; so yeah I think your analogy here misses the point.
What about criminals who have their friend video their crimes to put on Youtube? Do you want the friend to be let off too? Isis did this a lot. In both cases, the journalist is helping the criminals whose aim is to be publicly seen. It sounds like this guy was sympathetic to the protesters so he probably did help them with his publicity.
Isis also had a lot of non-sympathetic (of them) people filming them; do you want those in jail as well? According to you those journalist are "helping" the criminals; so in your world view journalist should just not cover anything at all to avoid any possible liabilities, yeah no; the rational thing is to err on the other side.
We can't create a class of people above the law. Private property rights are just as important to a functioning (western) society as freedom of the press.
One less person in the property doesn't make the violation more or less grave; you are talking as if the journalist was the only one to enter or like he destroyed something inside the property.
Eh, I get the spectrum argument, but if there are real journalists gathered at the gate then its enough for me to say that this was a real public interest story.
Work with me on this hypothetican scenario please: I am robbing a pizzeria. The robbery lasts 10 minutes. Next to me for the full 10 minutes is a guy with big camera at hand wearing a vest that writes "PRESS" and is recording the whole thing. Police should not arrest him?
In my mind, they should arrest him, examine the evidence (gun from my pocket, pizza slices from my bag, camera from the journalist). I should then receive my 5-to-10. He should receive a pulitzer.
But at that time, we should both be arrested. Police will not sentence him or me. Courts will do that (sentence or release).
Justice is served in courts. Police should just stick to the basics: Trespass = arrest. Rob = arrest.
Irrespective of whether the guy/lady/etc. is a journalist, baker, etc.
Unauthorized entry is an actual crime. If you leave your front door unlocked and I enter your hallway just to admire your collection of shoes for a moment or two, I'm committing a crime.
He "trespassed" to cover the actions of the actual trespassers. If he had been reporting negatively about the trespassers and informing on them I'm sure he wouldn't have been charged.
If you're trespassing in the role of a journalist, it will greatly behoove you for your journalism to strongly take the point of view favoring those who are trespassed upon.
That's the only way you can hope to obtain "retroactive authorization to have been there" from the property owners. (I.e. they have the charges dropped.)
You're likely not going to get that from the property owners if you side with the trespassers; then you're as good as one of them as far as they are concerned.
This is a good point. And as another user pointed out, perhaps if he was there filming for days he should have requested permission from the landowners to do so.
This story was a bit concerning at first, given what the phrasing implies, but if the above case is true (that he did not request permission, and that journalists don't have legal immunity in that situation) I think the journalist could have taken steps to ensure legality and cover his story.
I can't imagine the landowner would be all that enthusiastic about allowing a broadcaster direct access to the people who are protesting him. It would be pretty easy to say no "for safety reasons".
Unprecedented? Really? I just googled "reporter charged with trespassing" and it sure as heck does not seem that unprecedented. I am not sure why so many people think that just by calling yourself a journalist you somehow put yourself in an elevated status with regards to the law. There is no such thing as "Freedom of the Press" it's just another name for the first amendment.
Edit: I know this happened in Canada and the 1stA is not directly relevant to this case but my point is the same. There is not press freedom to trespass in Canada. There is a reason the other reporters stayed behind.
There is a "press privilege" explicitly recognised by the courts protecting journalists from being compelled to name their sources. Some US states have also codified this principle in so-called "shield laws".
That's one of the more obvious counterexamples. Being a journalists can also play a significant role when judges have to balance different rights: "Trespassing", for example, is obviously not as absolute as you make it out to be. If your life is in danger you can pretty much trespass as much as you want without any legal risk. "Informing the public" is a slightly weaker justification than survival, but it is a generally recognised public good and will be considered, especially in victimless crimes such as trespassing.
Law isn't an algorithm, or at least not a trivial one. It needs to capture the full breath of human life, with its limitless supply of nuance.
By extension, if it were fully illegal, then this would be a good time to check whether the law needs updating. Laws are not commandments. Saying something like it doesn't matter whether it's wrong or right "it's the law", misunderstands what law is.
Being a journalist should not put you above the law, but the law should be careful to protect freedom of the press. It is a foundational element of western society -- even though we're talking about Canada, which doesn't have a first amendment.
It's a freedom to write whatever you want without being harassed by the government. It doesn't give you any freedom to break any laws while doing that (including harassment or libel).
I was more concerned about the case of Antoine Trepanier, who was arrested for harassment for doing normal journalism. However it appears that the charges have now been dropped.
> Person faces well-precedented criminal charges over trespassing.
At what point does writing a juicy headline cross from good marketing to bad ethics? Because I'm getting increasingly exhausted by the grotesque stunts getting pulled for a click. This 'journalist' was charged with trespassing because they trespassed, which is absolutely fair, there's not even any gray area here in my opinion.
I think there is a wide divide between a reporter with a history and a CV, and some rando with a camera.
Intent, like actual intent -
not what you say to get a lighter sentence - matters a lot. Some rando saying "I was filming because something something amateur reporter" has less weight than someone who can more rightfully show history of reporting, unless the rando actually demonstrates theyve been engaged in independent production before the crime.
However in this contrived situation, provided the "journalist" isn't driving the getaway vehicle, yeah, they shouldn't be charged with burglary.
Journalism is so vital to democracy, that I want lenience for reporters even when things aren't super clear cut. Justice is full of compromises.
I wonder if there are any test cases from the other side of the culture war - say, a multi-day sit-in at an abortion clinic in defiance of an injunction, covered by an ambiguously activist reporter for a Christian newspaper who "does not identify as Born Again but recently accepted Jesus as his lord and savior" - so that we could see to what extent either the proponents or the opponents of this prosecution are acting on principle and to what extent they are simply rationalising tribal solidarity.
I don't see journalists as some special class of citizen with special rights. They use the same free speech rights that we all have. They just happen to speak for a living.
And, last time I checked, I don't get to violate the law just because I'm speaking.
If the law can be disregarded because of pursuing a greater good, that should apply to everybody that can demonstrate that's what they are doing. Not just people who are doing it as a career.
Just hours ago, two members of Canadian parliament, one of whom is the leader of the Green Party of Canada, were arrested in a protest against pipeline expansion in BC. Not exactly related to this piece of news, but interesting nevertheless.
If I understand correctly a trespass case is reported in the article as a charge against press? This is not bending the truth for some agenda? The criminal charges are not over the coverage of protests, but by breaking some law in the process of doing it.
"I'm Bond, James Bond, and I am allowed to break any law because I am a journalist".
My mental model of a dedicated journalist is willing to break laws in pursuit of a story, and also willing to face charges for doing it. In other words, I don't see the problem here. The article states this particular reported 'didn't see himself as breaking the law'. I think he's just mistaken about that part.
The theory that a free press is required for a free society. Some laws/statues don't apply to journalists, or there are exemptions for journalists, and some laws explicitly protect journalists.
For the most part though, what protects journalists are the same laws that protect non-journalists. As journalists are involved in the judicial process, the finding of the courts are applied in a way that they would apply to anyone in that situation, not just journalists.
Another way to interpret this: the actions of a concerned citizen documenting people breaking the law. Example: If you saw a woman being chased by a man waving a knife in the air, and you started filming it, and they both ran into a building marked "PRIVATE - NO TRESPASSERS", should the person documenting this event simply wait outside? Or follow them in, at the very least to document what appears to be an attack, and potentially help? Would this person be charged with trespass? (IANAL, but you can see how regardless of a 'journalistic standard' these situations could become less than simple)
Intent is often used to interpret how a law should be applied.
The protesters intent was to protest, and the reporters intent was to publish journalism on the protest, on a matter of significant public interest too.
Many people have no problem seeing the difference.
In my opinion, neither group should be charged in this case, but certainly not the journalist.
> The journalist, who now works in Halifax for the Aboriginal Peoples Television Network
It's possible that his intent was to protest AND to publish journalism. What's the dividing line between protester and journalist?
For example, imagine an embedded journalist with a group of guerrillas that perform war crimes. At what point is the 'journalist' culpable for the crimes of the group? If the 'journalist's' intent is the making propaganda pieces for the group, is he still a journalist? If he takes up arms with the guerrillas, is he still a journalist?
I'm not saying this guy is a criminal, just stating that it may be a bit of a grey area depending on how much he is affiliated with the group.
One of the central tenets of free speech is that there's no such thing as a "journalist", just people engaging in journalism. The protections of journalists apply to you whether you work for the NYT or you're a hobo with a cheap cell phone; You can document and report on things around you.
On one hand, it's not a free license for anyone to break trespassing or other laws with impunity. Being a journalist doesn't absolve you of public safety concerns. It doesn't absolve you of It's an affirmative defense. You take an illegal action only to offset a much larger one. Journalists often do engage in trespass to document illegal practices. There's a despicable practice that's become common, called "ag-gag laws", which prohibit filming in slaughterhouses. Why would you do that? These laws have no merit... Until you read the accounts of film crews that acquired jobs at meat production facilities only to film "exposes" about meatpacking practices... That were, pretty simply, not surprising or exposing anything. They're often gruesome, significantly because these crews are making it the story. Meatpacking is and always has been an unpretty industry, and quite frankly reportage inside the packing houses is important - Upton Sinclair would have something to say about it - But these crews were endangering themselves and others for the sake of their drama, operating machines unsafely, allowing unsanitary conditions to build for the sake of "exposing them". There was a legitimate problem with charlatans on a mission, each looking to one-up each other. I saw a few of these movies, and my reaction to the first one was "So you went to a farm?" - The latter were "That's unsafe", but not about the farms but about the behavior of the crew filming.
It sounds like this guy is on the edge of being a nuisance protestor claiming journalism, and a legitimate journalist trying to get to the heart of the story. I actually doubt that it's that fuzzy if you had the full testimony, but there's a legitimate reason for this to go to court. Sad, but legitimate.
In the comments, it's a bit surprising to see the heavy repetition of 'journalists are not above the law'.
Isn't it essential for journalists to have access to events of public interest? How else the public learn about them? Events of public interest happen on private land too, including government activities. There seems to be no accounting for that problem.
(It's also not a very good argument because the law in both the U.S. and Canada makes journalists a special class.)
Well it's really bad luck for this guy to be in this difficult situation, though the resolution of these cases will clearly set important precedents for Canadian reporting in the future.
If he had been a police officer would he still be facing charges for the exact same actions? Both could be said to be acting in the public interest.
In any case it would nice to see a little collection to offset this guy's expenses while his suffering pushes Canada's democracy ahead by a small amount.
Exactly! This is an example of the systemic racism still present in Canada. This is clearly politically motivated. They don't want people to empathise with the indigenous, they want us to care about corporate profits.
We called them savages for living in harmony with the land. We are now starting to see what happens when you don't. Who is the savage, now?
> They don't want people to empathise with the indigenous, they want us to care about corporate profits.
Not sure who they are. But the world is turning. What the British had done in the past is being undone (though all too slowly). I can’t speak to the conditions elsewhere, but I know recently the government has partnered with Six Nations reserve groups to build a new solar farm where there was once one of the worlds largest coal fired generating stations. I grew up near there and grew up playing softball with those guys. It’s not all plight down there. It’s not all good either. The North needs so much more help than they’re getting but not many people volunteer to go do anything about it. It’s not just up to the government, but I happen to know they’re doing little bits. My brother volunteered to fly up there to work with isolated communities well north of the Sault with a program run by the OPP (Ontario Provincial Police).
Just don’t vote Doug Ford or what you’re saying will certainly be on the agenda. Otherwise, there are plenty of programs to get involved in, and it’s closer to a front lying issue as it ever has been, also thanks in part to Gord Downies final days being quite vocal about it.
Enough? No it’s not. Will they see retribution? Who knows. Still waiting on the same from the British for the land and life lost in the Highland Clearances. I don’t think that’s coming either. Best bet is to band together and push for something better.
I don’t think the case is politically motivated. Like others have pointed out, the case has to go to the courts yet. That’s where the interpretation of the law will truly happen.
Canadian here. Ottawa and the provinces are really only sympathetic to FN issues when the cameras are on. They don't give a damn any other time of day.
The company got days of free discovery from this guy videotaping everything saving them tens of thousands of dollars. If anything they should be thanking him for his coverage of the trespassers.
The thing is, if there is a blanket exception for journalists, then any group of five home invaders will have one guy doing the break-and-entering, and four of them carrying camera to claim they are just journalists reporting on a crime in progress.
If a journalist wants to follow the perpetrators of some unlawful entry, that journalist must in fact somehow possess the authorization to be there that the perpetrators do not, otherwise he or she is equally unauthorized.
There is no legal category of person called "journalist" who are authorized to enter anywhere they want.
While this situation is unfortunate due to its particular circumstances, there isn't any good way to fix the rules to make an exception.
The letter of the law in fact does operate that way, more or less. The non-binary consideration is in the area of interpretation and severity of application of the law.
The letter of the law can open up cans of worms.
You've never heard of the exploitation of legal loopholes?
Intent is hard to determine since someone's intent is not directly accessible. It can only be inferred from behavior and other surrounding evidence.
However, the inclusion of intent into a law doesn't inherently require any ambiguity in the law itself. The way in which intent factors into a statue can be crystal clear.
> The difference between consent and informed consent is huge.
And not fuzzy in any way; quite "binary", like a computer.
Only in theory, in practice these things decided on a case by case basis. You get things like, "Is the wording of this document clear enough not just possible to decipher."
"I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ["hard-core pornography"], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.[4]" is actually part of case law.
What makes you think I wrote the statement "all written law is unambiguous"?
Do you suspect that the statutes of Canadian law which applies to this particular case are ambiguous? Or if not, should they be, and would that somehow help in some way?
It seems misleading to say that has been been charged for reporting, rather than to say that he has been charged while reporting. I haven't read the charges, but I presume the issue is lack of perceived immunity rather than separate laws against reporting. But this does raise the question, are there crimes that journalists frequently commit for which they are not charged? The implication is that prosecution is rare because of immunity, but a simpler explanation would be that prosecution is rare because journalists are generally law abiding.