History was made on June 26, 2020, in the Ontario Superior Court of Justice decision in R. v. Theriault.
It was a very detailed and meticulous decision that was well over 300 paragraphs long. It cited nearly 50 cases, and carefully went through the evidence and the law. But that’s not what made it noteworthy.
For the first time in Canadian history, the verdict was read out loud and live-streamed on YouTube. Over 20,000 people were reported to watch the verdict, which consisted of a judge reading his decision into a screen for the entire duration of the day. Not the type of video that normally goes viral on YouTube.
Irrespective of the contents of the verdict, the circumstances around the case are worth reviewing. The importance of the facts, of an off-duty police officer and his brother being charged in an alteration with a 19-year-old black man, leaving him horribly injured, was most certainly the backdrop for the audience. These are pressing issues that weigh heavily on anyone paying even mild attention to the social fabric in North America.
There are some very good reasons for not routinely having cameras in the courtroom. In this case it made sense to broadcast the verdict, because the trial was already concluded, and it was the only way to properly give meaning to the open court principle during the COVID-19 pandemic. Although courts have allowed the media to attend motions and trials where the gallery of the court would otherwise be open to, the logistics of trying to register tens of thousands of people for this matter would be an inappropriate use of scarce court resources.
The video had a tiny disclaimer on the bottom of the screen, in what must have been a point size 6 on a regular screen, and illegible on a mobile device. The message stated:
Section 136 of the Courts of Justice Act makes it an offence to take a photograph, motion picture, or audio recording of a court proceeding, except when prior judicial authorization has been granted. The media, however, is authorized to record only for the purpose of note-taking. It is also an offence to publish, broadcast, reproduce or otherwise disseminate a photograph, motion picture, audio recording or a record of a court proceeding. Viewers are prohibited from making any recording or photograph of this live proceeding being heard before the Court, or to embed or otherwise simultaneously broadcast this proceeding through a different host website or through any other means of broadcast.
I’m not sure how the court would ever be able to enforce the prohibition of screen captures, even if unintentional or inadvertent, or by the many who never would have seen the disclaimer to begin with.
What the court is likely more interested in is providing the basis for taking down reproductions, including mash-ups, commentaries, and YouTube talking heads. Treating a verdict in this manner would rightly diminish respect for the justice system, and should be prevented.
Prior to the pandemic, appellate courts had been live-streaming other cases of considerable public interest. This was presumably more efficient than finding another overflow room once the overflow room was full. But they have never seen anything like this.
Whether courts continue to do a live broadcast of high interest criminal verdicts is uncertain. These circumstances necessitated it, due to the social distancing of counsel, the accused, the Crown, and the judge.
Given that everyone was already on a Zoom call, a public broadcast would not seem so unreasonable. Doing so in every criminal matter though in the future hardly seems necessary, meaning we just may have witnessed a one in a lifetime occurrence.