Can a member of the public post a tweet about a sentencing hearing as it is taking place in a Canadian courtroom? It depends on which court and in which province, but in most of Canada the answer is no. And what about checking email during the course of a long-winded closing submission? The answer, is yes, in most jurisdictions, but only if you’re a legal profession insider.
The Canadian Centre for Court Technology (“CCCT”) has posted a Canada Wide Summary of Court Policies on Live, Text-Based Communications from the Courtroom as of June 2013. The Summary confirms what Dean Jobb of The Globe and Mail recently described as “a confusing patchwork of restrictions” on the use of social media within Canadian courts in Resistance to courtroom tweeting based on myth, not reality. Jobb noted that restrictions on tweeting and other use of social media are not particularly effective:
Anyone who wants to post to the Web can duck outside or wait for a break or the lunch hour, then tweet and blog to their heart’s content. Restrictions are an inconvenience, nothing more.
In an effort to address the “patchwork” and encourage consistency of approach, last fall, the CCCT developed National Guidelines Regarding the Use of Electronic Communication Devices in Court Proceedings. In developing the Guidelines, a multi-disciplinary committee reviewed the concerns with respect to use of social media and electronic devices in that courtroom and took a pragmatic and “unrestricted” approach, providing that:
The use of electronic communication devices in silent or vibrate mode is permitted, except as follows:
(i) The presiding judicial officer orders otherwise.
(ii) Legislation or a court order restricts public attendance.
(iii) Taking photos or videos is not permitted.
(iv) Audio recording of proceedings is permitted by counsel, court staff, members of the media, and litigants for note-taking purposes only. Such audio recordings cannot be transmitted.
(v) Talking on electronic communication devices is not permitted while court is in session.
Despite these clearly written and well thought-out Guidelines, Manitoba’s recent review of these issues has resulted in a more restrictive policy that gives latitude only to members of the legal profession and “eligible media,” while prohibiting the general public from their devices to communicate when court is in session.
The new Manitoba Courts Electronic Devices Policy sets out the social media rules applicable in all Manitoba courts as of September 1, 2013. The policy applies to members of the media, members of the legal profession and members of the public attending court facilities in Manitoba. The key provisions are as follows:
1. Electronic devices are permitted in Manitoba court facilities and courtrooms.
2. Only members of the legal profession and eligible media may use electronic devices to transmit and receive data during a court proceeding or hearing before a court so long as it is undertaken in a manner that will not cause interference or disruption with the proceeding or hearing. In any other circumstance, electronic devices must be turned off or be unable to electronically transmit or record data and audio when present in courtrooms.
5. A person found using an electronic device in contravention of the terms of this policy or the terms of any direction or order made by the presiding judge in respect of a specific court proceeding or hearing, may be subject to one or more of the following sanctions:
- Direction to turn off the electronic device
- Direction to forfeit the electronic device and erase or delete the data or audio, as the case may be, that has been wrongfully recorded
- Directed to leave the courtroom
- Citation for contempt of court; or
- Any other direction or order of the Court or the presiding judge
Manitoba’s policy states that:
It is premised on the fair and proper administration of justice and the open court principle.
Interestingly, the CCCT Guidelines also state that:
These Guidelines are founded on the “open courts” principle, which requires transparency and accountability in the judicial system to foster public confidence in the administration of justice.
I think I prefer the CCCT committee’s view of what “open courts” means in the modern age. What do you think?