For many media lawyers, it's familiar territory.
As this was being written, lawyers were gathering in Winnipeg to argue whether media outlets should be allowed to broadcast pictures and sound from an inquest into a matter that has generated wide public interest — the troubling case of a homeless aboriginal man who was found dead in his wheelchair after 34 hours in a Winnipeg hospital's waiting room.
The media's right to attend isn't being questioned. Journalists are free to come and go from almost every judicial and quasi-judicial proceeding in Canada.
It's their electronic baggage that's the issue — their cameras, tape recorders and whether they should have the right to broadcast the proceedings using all of the tools of their trade.
Even though cameras have been present in many inquiries and hearings, the issue often gets thrashed out anew whenever a high-profile case turns up because there is no right to automatic camera access in any such proceeding.
As for criminal trials, the pro-camera arguments usually lose. Most trials in this country remain firmly out of bounds as far as broadcasting is concerned. Various attempts to get cameras into the trials of Ottawa Mayor Larry O'Brien, former B.C. premier Glen Clark and former Saskatchewan cabinet minister Colin Thatcher were all unsuccessful (although the judge in the O'Brien case did allow reporters to live blog proceedings from inside the court).
So pictures and spoken testimony from the proceedings were replaced by court sketches, on-screen text excerpts and reporter summaries.
Advocates of more camera access see that as contrary to the public interest; opponents see such prohibitions as a salvation for the whole trial process.
A bit of history
The ‘man in the glass booth’
The 1961 trial of Nazi officer Adolf Eichmann was the first war crimes trial to get gavel-to-gavel camera coverage. Producer Milton Fruchtman persuaded the three judges the cameras would not disrupt proceedings by hiding the cameras behind false walls. War crimes trials are now routinely televised.
The debate over cameras in the courts is hardly new. In this country, the back-and-forth goes back almost three decades.
In the U.S., the debate really began back in the 1930s with one of the most intensely followed criminal cases of all time — the 1935 trial of Bruno Hauptmann for kidnapping and killing the infant son of Charles Lindbergh.
Imagine a courtroom with several hundred reporters, telegraph operators, photographers and newsreel cameramen, and you can see why court decorum soon went out the window. The resulting chaos was enough to lead to the banning of all cameras from U.S. courts for decades.
These days, opponents point to the sensational coverage of the O.J. Simpson trial in 1995 as a prime example of why cameras should have no place in trial courts. Even those who consider the O.J. case to be a rare aberration acknowledge that it resonated far beyond the U.S., giving opponents of camera access new ammunition in many countries, including Canada.
The familiar arguments
Both sides of the debate argue their cases with passion and conviction. It's a debate that countless media organizations, judges, lawyers, politicians and civil liberties groups have weighed in on over the years.
Supporters of greater camera access usually offer some variation on these arguments:
- Most Canadians can't attend courts in person.
- TV is the main source of news for most people.
- Witnesses will be more likely to tell the truth when cameras are there.
- Lawyers will be better prepared.
- Televised trials educate the public and show differences between the U.S. and Canadian legal systems.
- The whole trial process is more open to public scrutiny.
Opponents of camera access have their own list of concerns:
- Witnesses could be reluctant to come forward if cameras are present.
- Lawyers could grandstand for the cameras.
- Jurors could feel pressure.
- The media would focus on sensational cases or testimony.
- Stress on trial participants would increase.
- Invasion of privacy in sensitive cases.
The Canadian experience
Cameras in foreign courts
U.S. — All 50 states permit some degree of camera access to state courts. Cameras are not permitted in most federal courts of appeal and are not allowed in federal criminal trials or in the Supreme Court.
Britain — Cameras are barred by statute from courtrooms in England, Wales and Northern Ireland. In Scotland, rules of practice severely restrict camera access. Appeals are rarely broadcast (the Lockerbie bombing appeal being a notable exception).
Australia – Cameras have been allowed into all levels of Australian courts, but usually on a restricted and ad hoc basis.
New Zealand – Cameras have been routinely permitted in all levels of New Zealand courts since 1999, following a three-year pilot project.
Source: Audio-visual coverage of courts, by Daniel Stepniak
It may surprise some to know that the Supreme Court of Canada was actually a pioneer in allowing electronic access to its proceedings. Between 1993 and 1995, it allowed three high-profile cases to be televised — including the one that considered whether Sue Rodriguez had the right to assisted suicide.
Following that experiment, the high court has allowed almost all of its proceedings to be broadcast by CPAC — the Cable Public Affairs Channel. Small, remotely operated cameras are permanently mounted in the main courtroom.
Since 2009, those proceedings have also been webcast and are archived on the Supreme Court's website.
The Federal Court of Appeal began a two-year experiment with electronic access in 1995, but was not made permanent. Four requests for electronic coverage were granted and two hearings were broadcast live.
The Nova Scotia Court of Appeal also ran a two-year pilot project in the 1990s that saw eight criminal appeals recorded by TV cameras.
Even though Ontario is the only province to have passed a law banning audio and video coverage of court proceedings, a few cases have been broadcast with the court's permission.
The Ontario Court of Appeal's 2007 review hearing that ended in the exoneration of Steven Truscott was webcast live in its entirety, and the video testimony has been archived in a special section on CBC.ca.
The same year, the Ontario Court of Appeal acquitted William Mullins-Johnson of murdering his four-year old niece in 1994. That hearing was webcast.
Trials vs. appeals
The CBC has also taped trials in several other provinces, but these cases are far from the norm.
Generally speaking, cameras are not allowed in trial courts in Canada. Rules of procedure, bench rules, and long-standing policies and guidelines have made camera access requests unsuccessful in the vast majority of cases.
When it comes to cameras in courts, Canadian courts have drawn a deliberate distinction between appeal courts — including the Supreme Court — and trial courts. The distinction revolves around witnesses. Unlike trials, there are no witnesses in appeal courts, just lawyers arguing their points. That reality has made trial judges far less accepting of cameras in their courtrooms.
Supporters of camera access note that dozens of cases that feature witness testimony have already received widespread video and audio coverage.
Many royal commissions, public hearings, and commissions of inquiries have been televised and/or webcast in the past 25 years. They include some that have dealt with such sensitive matters as child sexual abuse allegations in Cornwall (2006-09), the Grange inquiry into baby deaths at Toronto's Hospital for Sick Children (1983-84), and the Hughes inquiry into sexual abuse at Newfoundland's Mount Cashel orphanage (1989-90).
More recently, CBC sent cameras into the inquiry into the 2008 public inquiry into botched pathology results at the Miramichi Regional health authority in eastern New Brunswick
There was live webcasting of the 2009 inquiry into the death of a Nova Scotia man who died in custody 30 hours after he was shocked with a Taser. Those webcast sessions have been archived here.
John Piccolo, a spokesman with the Nova Scotia judiciary, said broadcasting that inquiry allowed the community an opportunity to hear all of the facts.
"In effect, what we are doing is using technology to reinforce the principal of open courts," Piccolo said.
Supporters of camera access say there have now been so many camera-friendly trials, hearings, inquiries and inquests in Canada that the evidence is clear: cameras don't hurt the judicial process.
"Out of all this coverage and experience, there is little evidence that cameras have affected the search for truth or have led to sensational reporting," says CBC senior legal counsel Daniel Henry, who has been a driving force behind the efforts to allow cameras in court.
He notes that in the U.S., where thousands of criminal trials have been televised, no case has been overturned on appeal due to the presence of cameras.
Critics don't agree that cameras are a benign presence.
David Lepofsky, a lawyer with the Ontario Attorney General's department, is a long-standing foe of cameras in courts.
In his paper, "Cameras in the Courtroom: Not Without My Consent ", Lepofsky referred to what he called "significant problems with cameras in Royal Commissions."
He also said the editing of trial footage "can create a different impression in the viewer's mind than would have occurred in the courtroom had the viewer been present." That was a reference to the CBC's editing of footage of a 1982 murder trial in which witness testimony was not shown in chronological order.
Lepofsky, who declined to be interviewed for this story, has also cited replays of explicit and emotional testimony from victims at the Mount Cashel sex abuse inquiry as one example of how cameras violated witness privacy.
"While court proceedings must be conducted in public to secure public confidence and to avoid official abuse, they need not be televised," he wrote.
Lepofsky says it's not enough for camera advocates to show that benefits of cameras in the courtroom outweigh possible harm.
"They must instead begin by showing that cameras in the courtroom, if permitted over the objection of court participants, will be problem free," he says. "This must precede any discussion of cameras' alleged benefits. The debate is framed in this way because we here contemplate significant alterations to the justice system. The administration of justice is a critical yet fragile component of our democratic self-governing process."
Lepofsky's views have support in judicial circles. The Canadian Judicial Council, which is made up of the most senior jurists in Canada, has consistently recommended against cameras at trials, rejecting the advice of a CJC subcommittee to reconsider that position.
'Many council members remain concerned about the potential impact television may have on witnesses, jurors and trial court proceedings generally.'—Canadian Judicial Council
"Many council members remain concerned about the potential impact television may have on witnesses, jurors and trial court proceedings generally," the Council said in a 2002 statement.
A 2006 report prepared by a panel that looked into the issue of camera access for the Ontario attorney general put it this way:
"It is clear to all of us that the great majority of the groups who participate in the justice system have grave and important concerns about television," the panel's final report read. "A recommendation to amend the current restrictions on televising trials would not be acceptable."
Some judges, however, say those concerns are misplaced and outdated.
Manitoba Associate Chief Justice Jeffrey Oliphant was quoted in a 2001 article in Lawyer's Weekly as saying he didn't know "of a single judge who has worked with cameras in a courtroom, or in the setting of a public inquiry where witnesses are giving evidence, who shares the concerns of those opposed to having cameras in the courtroom."
Key sections of the Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Everyone has the following fundamental freedoms: …
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication .…
The role of the charter
Media appeals of camera access denials are based on the Canadian Charter of Rights and Freedoms. Section 2 (b) guarantees, among other things, "freedom of the press and other media of communication."
That right is not absolute. Section 1 of the charter says that all freedoms spelled out in Section 2 are guaranteed "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
The case law has developed to the point that the right to a fair trial does not trump the media's freedom of expression. Now both rights are given equal status.
The Supreme Court has also ruled that a publication ban should only be ordered when it's "necessary in order to prevent a real and substantial risk to the fairness of the trial."
Supporters of camera access point out there is already legal protection prohibiting the identification of young persons and victims of sexual assault. Access advocates say dealing with sensitive situations with blanket bans on camera access, rather than allowing judges to rule on them on a case by case basis, amounts to a blackout that should not be allowed to stand.
So the fight goes on. On March 16, the Supreme Court of Canada will hear two media challenges to Quebec's rules of practice, which prohibit the broadcasting of official court recordings and require reporters to conduct courthouse interviews only in areas designated by the court.
Those restrictions violate the media's charter rights and strike at the heart of the "open court" principle, says the B.C. Civil Liberties Association, which has filed a supporting brief in the case.
"Provided that other compelling interest are not unduly compromised, courts should do all that they can to encourage the media's interest and to facilitate its coverage in whatever manner the media considers best," it argues.
Media outlets say the judicial system must also take into account the changing way people now get their news.
"We've long moved away from being a text-based society," says the CBC's Henry. "Permitting people to get court information in a form they rely on is the key to open justice and the key to wide public understanding of the system.
"Words, no matter how descriptive, aren't enough," he says. "Without pictures, we remain in the dark."
But camera opponent Lepofsky has no time for that argument. "Camera advocates emphasize that television news is pictures. Without courtroom footage, it is difficult if not impossible to effectively inform the public about the goings-on in a courtroom.
"Inherent in this argument is the journalistic assumption that the Canadian viewing audience does not have the intelligence to effectively understand a report about what a witness is saying unless it is seen being said live and in colour," he wrote in the analysis cited above.
So where does all this leave the debate? Perception is everything in this argument and the two sides see very different realities.
Considerable opposition remains to the idea of expanding the role of cameras in covering court proceedings. Some lawyers and judges are supportive of more access, while others remain adamantly opposed. There is even division among journalists.
The one thing that is clear is that it is judges who hold the ultimate power in this debate. They control what happens in their courtrooms.
It is judges who will continue to decide whether cameras will be allowed a greater role, and if so, under what circumstances.
Electronic Public Access to Court: An Idea Whose Time Has Come, by Daniel Henry (1994)
Cameras in the Courtroom: Not without my consent, by David Lepofsky (1995)
Audio-Visual Coverage of Courts, by Daniel Stepniak (2008)
Ad IDEM/Canadian Media Lawyers Association
British Columbia Civil Liberties Association
Supreme Court of Canada