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R v Brake 2019 NLPC

The allegation of mischief against Mr. Brake arose in October of 2016. At that time, there were consistent protests at the Muskrat Falls site which is close to Happy Valley-Goose Bay, NL. As a result of blockades at the site, Nalcor sought, and was granted an ex parte injunction order from the Supreme Court in Happy Valley-Goose Bay on October 16, 2016.

The injunction order’s effect was to prevent persons who were named in it or who had notice of it from engaging in certain activities.

Law enforcement officials were ordered to enforce the terms of the injunction order and to terminate any activity that contravened the injunction order. After the injunction order was granted, the protests continued including blockades of traffic. On October 22, 2016, a protestor cut the lock on the gate to the work site and approximately 50 people, including Mr. Brake, entered onto the site. Some of these persons continued within the site to an accommodations complex where they remained for some time. Others remained at the gate area and continued to block access to the site.

Persons identified to have taken part in these activities were served a civil contempt Notice to Appear including Mr. Brake. Mr. Brake was also charged criminally pursuant to sections 127 and 430 of the Criminal Code. The Crown, following a Court of Appeal decision, withdrew the section 127 Criminal Code charge but is proceeding on the section 430 mischief charge.

(The)decision by the Court of Appeal led the Respondent to discontinue the prosecution of the section 127 Criminal Code offence. Mr. Brake entered a not guilty plea to the mischief charge on July 29, 2019. This application was filed by Mr. Brake on September 4, 2019 alleging violations of sections 2(b) and 7 of the Charter. More particularly, Mr. Brake alleges that the continuation of the prosecution of the mischief charge is an abuse of process in light of the Court of Appeal decision. It appears to be the position of the Applicant that the Court of Appeal has made factual findings which this court should consider to determine that the facts found by the Court of Appeal would not support a mischief conviction.

(In the alternative) Mr. Brake suggests that the findings of the Court of Appeal support a defence under section 430(7). Finally, Mr. Brake contends that the continuation of the section 430 mischief prosecution is an abuse of process as the Crown has failed to properly exercise its prosecutorial discretion to discontinue the prosecution.

Justice Harris states:

It is clear that the Court of Appeal did not consider the criminal offence of mischief in its decision. In fact, the Court of Appeal did not consider criminality at all. There was one narrow issue before the Court of Appeal and it related to the civil matters surrounding the protest at the Nalcor site.

So while it is clear that mere trespass will not, on its own, necessarily constitute mischief, it may form the basis of a mischief charge in that trespass puts a person in a position where they may then interfere with the use and enjoyment of the property upon which they are trespassing.

This court has not heard any evidence in this matter. While it has been provided with the documentary evidence provided to the Court of Appeal, there has been no viva voce evidence. None of the documentary evidence referred to has come from the Respondent. It has been generated as a result of, and in response to, civil proceedings. The Respondent was not party to the civil matters and did not participate in those proceedings.

The argument that journalistic reporting falls under section 430(7) is a novel argument and neither counsel were able to provide any case law which was analogous to the situation in this case. If mischief can be made out against Mr. Brake, it is certainly open to him to argue that this section provides a defence. However, it is not altogether clear, without consideration of all of the facts and circumstances, whether this defence applies. This issue, like the mischief charge, has not been specifically addressed by the Court of Appeal. Nor does it appear to have been considered by any other court in the country.

If the mischief matter proceeds to trial, it is open to Mr. Brake to raise section 430(7). As the matter of the mischief has not been adjudicated, this court cannot speculate on the possible success of this section. As discussed above, neither counsel was able to provide any case law supporting the applicability of the section to journalistic reporting. Whether this would be covered would be a question for the trial judge to determine given the particular circumstances.

The Court of Appeal decision in Re Brake does not have the effect of determining the outcome of a criminal trial for mischief or the possible applicability of section 430(7) to the facts. The actions of the Crown do not meet the standard of egregious and it does not seriously compromise trial fairness and or the integrity of the justice system. Counsel have, in fact, demonstrated that there are triable issues particularly as it relates to the possible application of section 430(7).