by Amy Salyzyn
Tweets from space! Far from a futuristic vision of social media, this is a current reality thanks to Canadian astronaut Chris Hadfield who has been tweeting from the International Space Station in recent days. Informative and occasionally entertaining (the tweets now include an amusing and well-publicized exchange with William Shatner), Hadfield’s use of social media is providing the world with a wonderful and intimate account of his time in, and view from, outer space.
At the same time that Twitter is soaring past the earth’s boundaries, however, it will soon face new limitations here on terra firma. As reported previously on Slaw by John Gregory, a protocol issued by the Superior Court of Ontario will, as of February 1, 2013, ban members of the public from using electronic devices in the courtroom unless a judge orders otherwise. The effect of the protocol is to create a presumptive ban against live tweeting in relation to proceedings of the Superior Court. Notably, journalists and lawyers will enjoy an exemption from the ban.
Integrating technology into our courtrooms, which are built on rituals and routines reaching deep back into history, is far from a straightforward endeavour. Important interests—such as privacy and the need for decorum—need to be taken into account. New technologies can also bring unintended consequences that require care and caution. However, even with such considerations in mind, the Superior Court’s new protocol misses the mark.
The proceedings to which the protocol applies are, it bears emphasizing, public proceedings. This is far from accidental but rather a deliberate choice to provide transparency to the workings of the province’s justice system. Quoting the philosopher Jeremy Bentham, the Supreme Court of Canada has repeatedly told Canadians that “publicity is the very soul of justice” and has emphasized the crucial role that public access to court proceedings plays in our democratic system.
In our modern era, public access to how courts work and what takes place in them cannot be meaningfully achieved by simply permitting members of the public to attend court proceedings. As reported by the Court Services Division of Ontario’s Ministry of the Attorney General, the province’s courtrooms operated for more than 500,000 hours during 2011-2012 year. One consequence of this vast volume is that the public needs to rely on accounts by others to understand what is happening in the courts. Social media can facilitate timely and efficient access to such information.
To be sure, the new protocol does not preclude all reporting from the province’s courtrooms. As noted above, lawyers and journalists will be allowed to use electronic devices in courts, subject to certain restrictions. With no stated rationale for this selective exemption, however, it is hard to escape the conclusion that there is an assumption that members of the public are inherently less trustworthy than members of these two professional groups. The basis for such a conclusion is not clear and, indeed, somewhat ironic when one considers that lawyers and journalists consistently rank extremely low in public polls measuring the perceived trustworthiness of professional groups.
The messaging here is extremely concerning, particularly as courts are now already at risk of becoming more and more hostile and inaccessible to members of the public with increased security measures being put into place. One possible consequence of the new Superior Court protocol is a reinforcement of a perception the public is to be feared, rather than warmly welcomed into courthouses.
On a more practical level, it difficult to understand what, at the end of the day, will be achieved by banning the public from using electronic devices in the courtroom. Any case for the necessity of such a ban seems to be severely undercut by the fact that the protocol does not appear to prevent members of the public from attending court and tweeting about proceedings outside of court afterwards, whether it be at home or in the hallway of the courthouse. The protocol doesn’t prevent people from tweeting, it just restricts where certain people are allowed to do it.
There are, no doubt, important privacy and decorum issues at play here. A sea of cell phones in a courtroom risks being invasive and distracting. A presumptive ban, however, strikes the wrong balance. There should be a presumptive allowance: the public should be able to use electronic communication devices in the courtroom and tweet freely, unless there is good reason to believe that such behaviour will unduly compromise the privacy of courtroom participants or disrupt court proceedings. Indeed, the Canadian Centre for Court Technology recently issued guidelines suggesting this sort of approach.
Our courts need to break out of old molds and habits if we are ever going to make headway in the perpetual access to justice crisis that we face in Canada. Unfortunately, the Ontario Superior Court’s new protocol on using electronic devices in the courtroom seems to be moving us in the wrong direction.