At yesterday's lawTechCamp, Garry Wise, Bob Tarantino, Mitch Kowalski and I hosted a panel session on law, ethics and technology, where we facilitated a discussion on issues ranging from the cloud and confidentiality to the ethics of purchasing Twitter followers. One of the most enthusiastic discussions centered around whether we should have cameras in the courtroom.
Given that the audience was comprised of both lawyers and members of the public, including several media members, the conflicting principles at play over the issue of cameras in the courtroom were carefully teased out.
The call for the cameras emerge from the open court principle, described by the Supreme Court of Canada in Vancouver Sun (Re) dealing with the Air India Flight 182 terrorism trials,
23 This Court has emphasized on many occasions that the “open court principle” is a hallmark of a democratic society and applies to all judicial proceedings. “Indeed a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions. The concept of free and uninhibited speech permeates all truly democratic societies and institutions. The vital importance of the concept cannot be over-emphasized.”
24 The open court principle has long been recognized as a cornerstone of the common law. The right of public access to the courts is “one of principle . . . turning, not on convenience, but on necessity”. “Justice is not a cloistered virtue”. “Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity”.
25 Public access to the courts guarantees the integrity of judicial processes by demonstrating “that justice is administered in a non-arbitrary manner, according to the rule of law”. Openness is necessary to maintain the independence and impartiality of courts. It is integral to public confidence in the justice system and the public’s understanding of the administration of justice. Moreover, openness is a principal component of the legitimacy of the judicial process and why the parties and the public at large abide by the decisions of courts.
26 The open court principle is inextricably linked to the freedom of expression protected by s. 2(b) of the Charter and advances the core values therein. The freedom of the press to report on judicial proceedings is a core value. Equally, the right of the public to receive information is also protected by the constitutional guarantee of freedom of expression. The press plays a vital role in being the conduit through which the public receives that information regarding the operation of public institutions. Consequently, the open court principle, to put it mildly, is not to be lightly interfered with.
Yet the restrictions of cameras in the courtroom, and in court houses generally, have been largely upheld by courts across the country. Ontario's Courts of Justice Act still emphasizes the open courts principle, but also has the following provisions,
Prohibition against photography, etc., at court hearing
136.(1)Subject to subsections (2) and (3), no person shall,
(a) take or attempt to take a photograph, motion picture, audio recording or other record capable of producing visual or aural representations by electronic means or otherwise,
(i) at a court hearing,
(ii) of any person entering or leaving the room in which a court hearing is to be or has been convened, or
(iii) of any person in the building in which a court hearing is to be or has been convened where there is reasonable ground for believing that the person is there for the purpose of attending or leaving the hearing;
(b) publish, broadcast, reproduce or otherwise disseminate a photograph, motion picture, audio recording or record taken in contravention of clause (a); or
(c) broadcast or reproduce an audio recording made as described in clause (2)
The Ontario Court of Appeal dealt with a constitutional challenge to a similar provision in the previous Judicature Act, R.S.O. 1980, c. 223. Justice Osbourne reviewed the competing interests and concluded,
121 In my opinion, electronic media access to those entering and leaving a courtroom cannot, in practice, be regulated in such a way as to achieve a degree of control which would be viewed as reasonable and workable. It is imperative that a reasonable degree of dignity and decorum be preserved. That goes to the heart of the public's confidence in the administration of justice and to the public's willingness to participate in it. The trial judge will not be able to control, in any effective way, what occurs once a witness, a victim or a juror leaves or enters a courtroom. I agree with Houlden J.A. that abuses will inevitably occur if television is allowed to operate in that part of the courthouse. Any system of regulation would have to be workable in all courthouses, in most circumstances. Thus, it seems to me that in the face of benefits (emerging from the form of expression prohibited by s. 67(2)(a)(ii)) which I believe to be of distinctly limited value, the prohibition contained in s. 67(2)(a)(ii) passes the test required to be imposed by s. 1 itself, and by Oakes . In my opinion, the statutory prohibition contained in s. 67(2)(a)(ii) is a reasonable limit imposed by law.
Justice Dubin went further, and referenced Justice Lamer's comments in Committee for the Commonwealth of Canada v. Canada, indicating that where the infringement on expression occurs on government property, a further analysis is required to look at the purpose of the facilities,
Having reviewed the interests at issue, I come to the conclusion that s. 2(b) of the Charter cannot be interpreted so as to consider only the interests of the person wishing to communicate. As the Attorney General for Ontario properly points out, s. 2(b) of the Charter does not protect "expression" itself, but freedom of expression. In my opinion, the "freedom" which an individual may have to communicate in a place owned by the government must necessarily be circumscribed by the interests of the latter and of the citizens as a whole: the individual will only be free to communicate in a place owned by the state if the form of expression he uses is compatible with the principal function or intended purpose of that place.
Are these concerns over abuses overstated? What's the worst that could really happen?
Quebec actually experienced some of the worst of having a media presence in court houses, which was permitted up until 2005. Journalists could take their equipment in all areas of the courthouse except the courtrooms and could broadcast extracts from official records of hearings. The growth of the large numbers of media members in the courts, especially in high-profile cases, led to a number of problems.
The courts had difficulty identifying who were members of the media due to a lack of accreditation. Scrums forming around lawyers and litigants blocked hallways and fire exits. Competition between the reporters to get photos and exclusive interviews let to scuffles with the media, including individuals climbing on furniture to get a good shot. There were instances of witness intimidation by the media, and witnesses were filmed even when publication bans were in place. Media members occasionally broke the rules and filmed inside of courtrooms. The lack of confidentiality between lawyers and their clients due to the ubiquitous presence of cameras and microphones in every corner. There were even some examples of cases that had to change the venue due to excessive media attendance.
On October 8, 2004, Quebec Superior Court adopted new rules at a general meeting, which allowed for cameras and interviews only in designated areas of the court house. They also provided guidelines to the media for taking photos and interviews. The court emphasized that journalists should not hinder the free movement of the public, chase people down the hallways with cameras and microphones, or take photos at the entrances and exits of courtrooms, and should respect security cordons and perimeters when erected.
Journalist groups in Quebec brought a constitutional challenge to the new rules in Société Radio-Canada c. Québec (Procureur général). The court adopted the contextual approach in Harper v. Canada (Attorney General), and identified the following objectives of the rules:
- Maintaining the integrity and public confidence in the administration of justice
- Ensuring impartial trials and decorum of judicial hearings
- Ensuring the safety, dignity and privacy of individuals and their families
- Maintaining order and decorum of the courtroom and near them
The court found a rational connection between the new rules because they still allowed journalists to record in designated areas. In evaluating the proportionality, the court afforded greater protection of privacy to participants in the judicial system, and the beneficial measures of protecting this privacy exceeded any prejudicial effect on freedoms of expression and the press.
The appellants stated on appeal that sound bites were of great importance in the efficient transmission of a message to the public. It allowed more authentic stories and is more easily understood. The respondents rejected the trial judge's finding that freedom of expressing was involved, because of the incompatibility of the expressive activities with the function of the court of justice.
The Quebec Court of Appeal concluded that broadcasting is not a positive right, and the state is not required to provide the media with a mouthpiece or special platform. Freedom of expression is intended to protect both the person who wants to receive the information, and the recipient of the information as well. Justice La Cour also reference Justice Lamer's comments in Committee for the Commonwealth of Canada v. Canada,
The interest which any person may have in communicating in a place suited for the purpose cannot have the effect of depriving the citizens as a whole of the effective operation of government services and undertakings. Even before any attempt was made to use them for purposes of expression, such places were intended by the state to perform specific social functions. A person who is in a public place for the purpose of expressing himself must respect the functions of the place and cannot in any way invoke his or her freedom of expression so as to interfere with those functions. For example, no one would suggest that an individual could, under the aegis of freedom of expression, shout a political message of some kind in the Library of Parliament or any other library. This form of expression in such a context would be incompatible with the fundamental purpose of the place, which essentially requires silence. When an individual undertakes to communicate in a public place, he or she must consider the function which that place must fulfil and adjust his or her means of communicating so that the expression is not an impediment to that function. To refer again to the example of a library, it is likely that wearing a T‑shirt bearing a political message would be a form of expression consistent with the intended purpose of such a place.
The fact that one's freedom of expression is intrinsically limited by the function of a public place is an application of the general rule that one's rights are always circumscribed by the rights of others. In the context of expressing oneself in places owned by the state, it can be said that, under s. 2(b), the freedom of expression is circumscribed at least by the very function of the place.
Justice La Cour emphasized that one of the main functions of the courthouse is to provide for an orderly environment where peaceful judicial hearings can be held, and that aggressive activity by the media would likely interfere and interrupt this function.
The actions of the media may have itself prevented the further dissemination of court recordings through the media in the near future.
More recent court challenges to camera bans have come to similar conclusions. In 2010 Judge Preston considered a motion, In Re: Brian Lloyd Sinclair Inquest, 2010 MBPC 18, by a number of media stations who wanted to stream proceedings through the radio, television and Internet for an inquest with extensive public interest. Although the media has a vital role in maintaining the open court principle by disseminating news of judicial hearings to the public and informing them of legal issues, the Charter does not give the media greater rights than those enjoyed by the public,
 The Applicants bear the onus of establishing that the order permitting the recording and broadcasting of the inquest is necessary to enable free expression of the subject matter of the inquest to occur. The assertion that the onus is on the Respondents to justify a publication restriction ignores the fact that the inquest is, in fact, already open to the public. The media are not banned, nor are publications of the proceedings prohibited or restricted, save and except for actual “in-camera” portions of evidence during the course of a proceeding. If such an in-camera event were to occur, the media have the right to oppose it.
 Freedom of expression guaranteed by s. 2(b) of the Charter does not guarantee any particular means of expression. In other words, although there should be no interference with freedom of expression, there is certainly no obligation on the court to assist in a particular type of expression. In the decision of Haig v. Canada,  2 S.C.R. 995, Madam Justice L’Heureux-Dube illustrated the proposition succinctly, by stating that freedom of expression “prohibits gags, but does not compel the distribution of megaphones”.
Just a couple months ago, several media channels brought a similar application for video broadcasting in the courtroom during the Graham James sentencing. The defence lawyers indicated that James feared for his safety if pictures and reproductions were widely disseminated through the media, and he had already received many threats against him. The province expressed concerns over the safety of justice officials photographed or videoed in court,
Television and internet coverage greatly expands exposure and increases the risk of invasions of privacy and acts of violence.
Moreover, the more newsworthy a case the more likely it is to trigger strong emotions in the public and thus put justice participants at greater risk.
Judge Catherine Carlson concluded that the motion was not brought far enough in advance of the sentencing to properly consider the issue, and stated,
This case is highly charged enough. It's not going to become a spectacle. This is, first and foremost, a sexual assault case and, in particular, a case of sexual assaults committed against persons under the age of 18…
Once images are broadcast on the Internet, they are there in perpetuity. Without having to decide what, if any, privacy rights Mr. James has or does not have in a courtroom, I can certainly say I have the same concerns about his images from the courtroom being broadcast on the Internet with no controls…
This could be extremely embarrassing for the victims since portions of the reasons being read, perhaps the sexually explicit portions, could show up on the Internet any time linked with other material that is out of control of the applicants, out of control of the victims and out of control of the court.
The court cannot sanction anything that could result in any type of revictimization.
As I said in a media interview on the subject, one of the victims in this case had come out openly on the assault and wanted it televised, and had even written a book on his experiences, which would seem to minimize some of the concerns over privacy. The Manitoba court system is currently conducting a review over cameras in the courtrooms, and may release some changes over their rules in the near future. It has been five years since NDP Minister of Justice, Dave Chomiak, indicated that cameras should be allowed in courts, and many members of the media are growing tired of waiting.
Justice Mercier acknowledged at the trial level in R v. Squires that the concerns over disruptive and prejudicial effect that cameras in courtrooms and need to maintain the right to a fair trial could potentially be addressed through time and experience, and envisioned circumstances where the court rules could be amended to allow televising of court proceedings. Some American courts have been broadcasting court cases for years, and we already have court hearings streaming online by the Supreme Court of Canada.
If the courts themselves took the initiatives to install cameras, it seems that many of the privacy concerns, issues over crowding, and need to avoid witness intimidation, could easily be addressed. Courts could edit and release appropriate segments of hearings to the media. But in an era when we're still struggling with electronic filing, I don't see the media production and distribution by the courts coming any time soon.