Note-Taking in Court

Susan Clairmont reports in today’s Hamilton Spectator that Mark Conacher, a Toronto JP holding G20 bail hearings, banned note-taking in his court “the other day”. Clairmont reports that, when challenged, Conacher qualified the ruling, saying “The ban doesn’t apply to the media.” According to Clairmont, Conacher offered no explanation and cited no law.

I haven’t been able to find Clairmont’s column on a free web-site, but it’s available on a suitable PressDisplay, LexisNexis or Factiva subscription.


  1. Just as I posted here, the free version of Clairmont’s column was posted here.

  2. Harried and hurried judges make egregious mistakes about law they should know (and more often not likely do) more often than people realize. Fortunately, more often than not, the judge’s error doesn’t make a difference (beyond providing more work for lawyers – that’s a good thing, right?). JPs, who need not be lawyers, would seem equally or more at risk of error than judges. As I don’t practice on the criminal side, I can’t comment meaningfully about the likelihood that a JP’s error will turn out to be moot. However, many of use have read the reasons in more than one case where JP’s decision on, say, a search warrant, was … problematic. We recently discussed one such case: R. v. Morelli, 2010 SCC 8. Some readers of this blog with appropriate experience may be in a position to comment on the likelihood that a judge would have issued the search warrant in Morelli, had the warrant been sought from a judge.

  3. *sigh* I didn’t mean to type “use” for “us”, really. (So no Soprano or Vinny-type jokes, please, even if I did spend the a few days, not so long ago, in Montclair NJ.)

  4. A follow-up column from Susan Clairmont, “Justice of peace pulls back on note-taking ban,” appeared in today’s Hamilton Spectator. She writes that the following clarification was given by the JP on July 16:

    It is, of course, permitted that members of the public, in addition to media, take notes but it must be done in an unobtrusive manner, and not in a way that creates the potential for a distraction to others in the court, particularly the presiding judicial officer or any witnesses.

    Clairmont also reports that the Canadian Civil Liberties Association filed a complaint about the matter with the chief justice of the Ontario Court of Justice, but I haven’t been able to find anything about it on either the CCLA or the Justices of the Peace Review Council websites.

    It seems unlikely that any such complaint would be vigorously prosecuted, since there appears to be no serious debate about the principle.

  5. David John Thornton


    Try this, as in R. v David John Thornton – Toronto Court, College Park, court room 503, June 13 2010 … trial date to set…

    “With respect Your Honour, I am exercising the absolute and lawful right of a defendant under sec 136 subsection (2) of the Courts of Justice Act, to record his/her own court proceedings for the purpose of supplementing or replacing handwritten notes and trust that this Honourable Court will accept the manner in which the defendant has chosen to so record, to be unobtrusive.”

    If you have a problem and told to turn off the recorder, simply ask the judge to make his/her objection an order of the court. If it is so ordered that you cease and desist, then file a formal complaint with the Judicial Council.

    “In an official directive to Ontario judges the former Chief Justice of Ontario, W. G. Holland and approved by the Ontario Courts Advisory Council, the courts were also told that recording under section 136 (2) of the Courts of Justice Act was to be “considered as being approved without oral or written application to the presiding judge.”

    That, is the law, but many judges and J.P.s are unfamiliar with that particular regulation: One judge argued that he had been on the bench for 20 years and never heard of the law and had never been asked by anyone to be allowed to record.

    This law, as I counter-argued before the judge, came into effect either 2 years before or after he became a judge, I just forget now which.


    Section (2) Nothing in subsection (1)

    (b) prohibits a lawyer, a party acting in person or a journalist from unobtrusively making an audio recording at the court hearing, in the manner that has been approved by the judge, for the sole purpose of supplementing for replacing handwritten notes. R.S.O. 1990, c. C. 43, s. 136 (2); 1996, c. 25, s. 1 (22).

    Some judges know the law, but pretend otherwise in an attempt to prevent recording in their court. Some are outright tyrannical on the issue of recording; others are accommodating. There is good and bad everywhere, and in the case of Judge Zuker who was admonished by the Judicial Council for having a transcript “doctored,” recording is a good idea.

    Also, as I explained to the judge, it takes weeks, sometimes months to obtain a transcript, never mind the unnecessary cost, so if you have several consecutive court dates a defendant does not have access to an absolute accurate record of what was said in court to properly prepare for the next day, particularly when the defendant is self represented and may miss important points in the first “go ’round”.

    So, that’s how you explain and enforce your rights under section 136 (2) of the Courts of Justice Act. And remember, if we don’t exercise our rights, like muscles, we will lose them.

    David Thornton

  6. David John Thornton


    Correction: The court date was Sepember 13, 2010.

    dave – CBNow