Whether she meant to or not, B.C. Premier Christy Clark has outed the province's prosecutors and prominent defence lawyers.

Her directive that prosecutors ask for television cameras to be present at the trials of those charged during the Stanley Cup rioting in June has been almost universally opposed by members of the legal community. Unless that changes, and judges and defence lawyers go along with her plea, we will likely just continue the great divide between what the judicial system promises in terms of openness and transparency and what it delivers.  

That promise is neatly summarized on the website for B.C.'s Provincial Court, where the riot trials will take place. "An open society means open courts" is the stirring heading to the section on access to the courts.

It goes on to explain the importance of having open courts and invites everyone to come down and "learn a lot about how society operates."

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A Vancouver police officer surveys the riot damage following the seventh game of the Stanley Cup playoffs, which the Canucks lost, in June 2011.

 

The reality, of course, is that most people don't have the time to see a trial in person. Instead, every day hundreds of thousands of people rely on media reports about what happens in court.

But while reporters are welcome to watch the proceedings, we are banned from using the very tools — cameras, recording devices — that are crucial in showing our audience what's happening.

Over the years, I've covered hundreds of trials, from premiers to murderers to protestors. Many times I've wished more people could see what I have witnessed in court. Instead, they have to rely on hastily sketched illustrations and video of the main participants walking to and from the courthouse.

I've learned over the years it's easy to get lawyers and judges to agree in principle to support cameras in the courtroom. But when the trial date draws closer, there's always a reason why "this time," it's a bad idea.

The perfect case

I don't know what Premier Clark's political motives were for taking on this issue, but from the perspective of someone who has spent a lot of time trying to help people better understand our court system, she couldn't have picked a better group of cases.  

The alleged crimes happened in public, indeed on city streets amid a forest of cellphone cameras and media. It would be hard for the accused to claim an expectation of privacy.  

As well, these are events with great public interest, not a tabloid spectacle. People in Vancouver have a right to hear more about what happened that night to better understand it and how to try to prevent it from happening a third time.

Which leads us to deterrence. In theory that is a consideration in every criminal penalty. In fact, when sentencing is carried out away from public view, the potential to deter future rioters is diminished.

More than anything, though, allowing cameras in these trials will teach people how their legal system works or, in some cases, doesn't. I have heard many judges tell members of the public that these are their courts. Well, they deserve the chance to see them in action.

Balance and harm

What's been most dismaying this past week is that I haven't heard a single prosecutor or prominent criminal lawyer make those points.

Instead, it's been all the old clichés about the harm cameras might bring to the courtroom, intimidating witnesses and lawyers, distorting the proceedings, covering trials as entertainment.  

There are three problems with these criticisms.

First, they abandon the usual legal approach of balancing good effects with bad. Again, consider the well-established right to watch a trial in person.

Of course there is a possibility that a packed public gallery might affect a witness or lawyer, particularly if it is an emotional murder or a sexual assault case.

But lawyers and judges agree that the good of an open court (accountability) usually outweighs the bad. And when it doesn't, judges retain the right to bring in a publication ban or even close the court. A power they use sparingly.  

When it comes to the issue of broadcasting proceedings, few even pretend to contemplate that balance. I call this the "slightest possibility of harm" principle and it often seems to apply only to the case of cameras in the courtroom. The mere hint that a camera might, in theory, cause a problem is usually enough to banish them to the street.

Weigh the evidence  

The second problem with the criticism of cameras is that the critics are abandoning another hallmark of the justice system — weighing the evidence. We have had dozens of televised public inquiries in Canada with no suggestion that cameras have caused any problem.

I understand that these aren't criminal trials but, in many cases, the stakes are similarly high.

Consider the Braidwood inquiry into the Taser death of Robert Dziekanski at Vancouver Airport and the impact it had on the four RCMP officers involved.

Or think back to the hearings over the pepper-spraying of protestors at the Asia-Pacific Economic Conference in Vancouver in 1997. An RCMP officer's reputation was on the line there too. So was the credibility of a senior member of the prime minister's office.  

After that hearing ended, I interviewed the commissioner (a former judge and prosecutor) and six of the key lawyers. All said the cameras had no impact on the proceedings for them or any of the witnesses.

I can tell you, though, that having the camera inside allowed us to present a much more accurate picture of what was going on.

You didn't have to rely on my description of the witnesses' mood. You could watch and judge on your own. As well, long excerpts were played on our CBC News Network so you could see the broader context of the news clips.

But in the past few days, no one seems to be citing examples like these. Instead, we keep hearing about the O.J. Simpson trial from 1995, a bizarre legal and pop-culture spectacle that was unusual even by U.S. standards.

More than entertainment

Thirdly — and I say this with some hesitation — the opposition to cameras reflects an unwarranted contempt for the media on the part of many judges and lawyers.

For example, a few years ago, I was speaking to some judges at a conference in Vancouver and making the same points I'm making here.

One of them rose and said, "When I look out and see a reporter in my court, I know why they're there. Entertainment. My job is to administer justice, not help you sell newspapers."

I was disappointed he felt that way, but happy he said it publicly. It allowed me to tell him what I'll repeat here: Of course reporters cover cases that will be interesting to their audiences. But "selling newspapers" is not the same as serving the public.

Yes, put cameras in the court and some reporters will do a lousy job. But bad reporting is not a reason to restrict journalistic access.

In a functioning democracy, we're supposed to aim a little higher and appreciate how the material will be used by good journalists, documentary makers and educators.

People care about their justice system. They deserve to see it in action. "An open society means open courts" can be more than just a slogan.