“Sunlight is said to be the best of disinfectants.” So declared Louis Brandeis over a century ago. Brandeis’ argument was that shining a light on activities both exposed wrongdoing as well as deterred it. The second part of his quote is that “electric light the most efficient policeman.”[i] Writing in 1914, Brandeis was ahead of his time. In 2017, his words should make us sit up and take notice. Especially when it comes to the administration of justice.
Justice Morris Fish – recently named to the Order of Canada – understood Brandeis’ quote more than others. Fish was a former reporter for the now-defunct Montreal Star before he embarked on a legal career. In the opening line of Toronto Star v. Ontario, Justice Fish wrote: “In any constitutional climate, the administration of justice thrives on exposure to light — and withers under a cloud of secrecy.”
That was in 2005.
Justice Fish explained that the fundamental and closely related Charter rights of freedom of expression and freedom of communication “both depend for their vitality on public access to information of public interest.” Fish J. asserted therefore that “what goes on in the courts ought therefore to be, and manifestly is, of central concern to Canadians.”
As Justice Fish would know, the media has historically been the critical intermediary between the courts and the public. Court reporter Christie Blatchford’s recent book chronicles her four decades covering courts in Ontario. The picture she presents is not often flattering; court officials and judges frequently frustrating media access instead of facilitating it. Blatchford and her colleagues – often backed by media lawyers – had to be persistent, adversarial and sometime even litigious. But as Blatchford herself recognizes, she and her peers are a dying breed.
We can no longer rely on the media either to communicate what goes on in the courts to the public or to expose misbehaviour that goes on inside them.
Webcams in the courtrooms would help expose and curb abuses of power by judges and by lawyers. Judges exercise tremendous power in Canadian society. Judicial independence exists and is zealously guarded and constitutionally protected – we are told (by judges) – not for the personal benefit of judges, but for the greater good of Canadians. Judges are held accountable for their actions through the requirement of producing reasons for their decisions, by appellate review and through the open court principle.
All three of these have significant limitations in holding judges to account. The recent incident of the Hamilton judge wearing a Trump hat in his court and declaring his allegiance to the @RealDonaldTrump is a case in point. Nobody caught the incident on video because there are no cameras in the court and the use of smartphones and even texting in Canadian courts is regulated and generally prohibited by the judges themselves. In any other context, someone would have aimed their smartphone at the proceedings and captured the image and the words on video and tweeted it out. But not in our courts. There is no YouTube channel titled “Judges Behaving Badly”. There should be.
The story about the Trump-judge dripped out slowly. Someone in the court – likely a lawyer or court staff – leaked the information to the media who dutifully investigated and reported it. The judge went in to damage control and apologized, attempting to minimize his conduct. The Toronto Star would have ordered transcripts from the day’s proceedings (at a cost of between $4.30 and $8.00 per page assuming it was the first certified copy of the transcript which is likely) which further revealed that the judge in question had not only simply worn and displayed the Trump hat, but openly declared his support for Trump. The so-called “open court” principle relied on leaks, took about a month and several hundred dollars.
Webcams would have exposed the misbehaviour in real time. One can only hope that their presence might have prevented it.
Webcams might also help to expose Lawyer-bullies – at least the courtroom variety. Although here I admit their impact may be minimal since most litigator-bullies become obsequious and demonstrate faux-respect for opposing counsel in open court where a judge is presiding. In shouldn’t take a webcam to reign in abusive or unprofessional counsel, it is the presiding judge’s responsibility to do so. Perhaps webcams might also influence such judges who could then be called to account not for what they did but for what they failed to do.
Litigators know that the worst bullying takes place outside the courtroom: in courtroom corridors, on the phone and in examinations for discovery. There is absolutely no reason why webcams should not become de rigueur in discoveries.
Cameras have become ubiquitous in our society: in schools, in taxis, on police and of course on our smartphones. It is time to bring cameras into Canadian courtrooms.
[i] Louis D. Brandeis, Other People’s Money—and How Bankers Use It (1914).