File No. CRM 40 of 2017 THE BENCH JUDICIAL CENTRE OF BATTLEFORD BETWEEN: HER MAJESTY THE QUEEN, Respondent, - and - GERALD STANLEY Respondent, - and - CTV, a division of BELL MEDIA INC., CANADIAN BROADCASTING CORPORATION, GLOBAL NEWS, a division of CORUS ENTERTAINMENT INC., POSTMEDIA NETWORK INC., and ABORIGINAL PEOPLES TELEVISION NETWORK. Applicants/Media Interveners. AFFIDAVIT OF DAVID HUTTON I, DAVID HUTTON, of Saskatoon, Saskatchewan, MAKE OATH AND SAY THAT: I make this Af?davit on behalf of the ?ve media Applicants in this matter who are making an Application (?the Application?) to the trial judge for an Order permitting the use of three cameras in the courtroom during the trial of Gerald Stanley to record limited segments of the trial as set forth in the Application. I am employed by the Canadian Broadcasting Corporation for CBC Saskatchewan. CBC is a national broadcaster with both regional and national news coverage. I have been employed with CBC for one year in the position of Managing Editor and oversee all news operations on all of our platforms (TV, Radio, Digital, Social). I hold a Master?s Degree in Journalism from Carleton University and a Master?s Degree in English from the University of Saskatchewan. I have worked for The Saskatoon StarPhoeniX as managing editor, city editor, and reporter, and for the Globe and Mail as a reporter. The media have reported extensively on the case of Gerald Stanley who is charged with second-degree murder in the death of 22 year old Colten Boushie. His shooting death on Gerald Stanley?s property has drawn attention across Canada, and around the world. The CBC conducted a search on November 28, 2017 and found 477 stories in Canadian newspapers, including letters to the editor and commentary; 116 wire service news stories; and 203 broadcast media stories about this incident since it took place. Given the signi?cant interest in the incident it is certain the trial of Gerald Stanley will be of interest in Saskatchewan, and throughout Canada and the world. While we all know that the public has a right to attend in person at trials, most members of the public are not able to attend due to work commitments or family obligations. As well, time and distance effectively prevent most of the public from exercising this right. Even for those who wish to attend the Gerald Stanley matter the courtroom space in the court house is limited even with closed circuit TV in an adjoining courtroom. But in reality, very few people have the ability to attend such proceedings in person which makes it the media?s role to ?ll this gap. I am advised by media representatives in this matter and do verily believe that all ?ve Applicants intend on reporting on the trial of Gerald Stanley on all of their platforms, and I believe that they will play a key role in informing the public about the process and the proceedings. In a 1990 paper, the Canadian Judicial Council argued that ?reports prepared by journalists and disseminated through the media constitute the main and most complete source of news and comment on the justice system. For most people the only contact that they have with the daily workings of the law is through media reports. The Canadian Judicial Council 10. acknowledges that the justice system and the public interest are served when coverage of the justice system and manner in which it functions contains an accurate, balanced and complete report of the hearing and disposition of speci?c cases.? A signi?cant number of Canadians continue to report that they rely on television as their main source of news, and a rapidly increasing number of people say the Internet both web sites and social media networks provide another major source of news. Television is not the only medium that requires use of Video cameras. All major media outlets now provide video clips and streams on their websites. Attached as Exhibit is a copy of a report by Statistics Canada, comparing how Canadians receive their news in 2003 and 2013. For the Applicants to discharge their role properly, their television and online reporters must have the means to do so accurately. For such reporters, a camera is an essential tool and the ultimate means of accurately and completely recording all that transpires in the courtroom. Camera captured images are far more accurate than jottings in a reporter?s notebook or brush strokes on an artist?s sketch pad. Over the last two decades, camera access to many proceedings has expanded exponentially. To my knowledge, no serious problems or controversies have arisen from the use of cameras in any trial proceedings and are now accepted in appeal proceedings, the Supreme Court of Canada having led the way in the appeal courts. The Colten Boushie family has recently consented ?to have cameras in the courtroom for the matter v. Gerald Stanley as set out in a November 22, 2017 email to me from their lawyer, Chris Murphy. One true copy of this email is Exhibit to this Af?davit. Exhibit to this Af?davit contains a copy of a ?Stanley Trial Technical Proposal? prepared and emailed November 20, 2017 by Jon Anderson of CBC for our counsel in this Stanley matter together with a document headed ?Schedule This ?Schedule contains revisions to the Jon Anderson proposal which re?ect the joint position of all ?ve applicants and updates the earlier proposal to include the right to livestream. This ?Schedule will form part of the Draft Order that is being ?led in support of the Application. 11. 12. Acceptance of ?Schedule will mean that in the trial courtroom all three proposed cameras will be ?xed and stationary; the trial judge will have control over the video/audio feed via a ?kill switch?; and, no camera operator will be present in the courtroom to disturb the trial proceedings such that the dignity and decorum of the court in the courtroom and most critically Gerald Stanley?s right to a fairtrial will be preserved at all times. At no point will any of the cameras capture the jury, including the jury spokesperson?s delivery of the ury?s verdict. None of the shots will include gallery members. I depose this af?davit in support of the Application requesting the Applicants be permitted to record as per ?Schedule those segments of the Gerald Stanley trial as set forth in the Application, and to publish and livestream all or any excerpts from such recorded segments. SWORN BEFORE ME at the City of Regina, in the Province of Saskatchewan, this day of 2017. DAVID HUTTON A Notary Public for the Province of Saskatchewan. My Appointment expires: Or Being A Solicitor. THIS DOCUMENT WAS DELIVERED BY: GERRAND RATH JOHNSON LLP Barristers and Solicitors 700 - 1914 Hamilton Street Regina, Saskatchewan S4P 3N6 ADDRESS FOR SERVICE IS: same as above LAWYER IN CHARGE OF FILE: F. WILLIAM JOHNSON TELEPHONE: (306) 522-3030 FAX: (306) 522-3555 Our File: 5224.004 COURT FILE NUMBER CRM No. 40 of 2017 COURT OF BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF BATTLEFORD APPLICANTS CTV, a division of BELL MEDIA INC., CANADIAN BROADCASTING CORPORATION, GLOBAL NEWS, a division of CORUS ENTERTAINMENT INC., POSTMEDIA NETWORK IN C., and ABORIGINAL PEOPLES TELEVISION NETWORK . RESPONDENT HER MAJESTY THE QUEEN -and? RESPONDENT GERALD STANLEY BRIEF OF LAW ON BEHALF OF THE ACCUSED, GERALD STANLEY, TO THE APPLICATION OF CTV et al. DATED JANUARY 16TH, 2018, TO FILM AND BROADCAST PORTIONS-OF THE TRIAL ROBERTSON STROMBERG ROBERTSON STROMBERG LLP Barristers Solicitors Suite 600, 105 21st Street East Saskatoon, SK S7K 0B3 Direct Line: (306) 933-1354 Facsimile: (306) 652-2445 Lawyer in Charge of ?le: Scott R. Spencer II. Page 2 Introduction The Applicants seek permission to ?lm portions of the upcoming Gerald Stanley trial. They have requested an order allowing them to record, Iivestream, and broadcast, any or all excerpts from the opening remarks of the Trial Judge, the opening remarks and closing submissions of counsel, the charge to the Jury by the Trial Judge, the Jury?s verdict, and the remarks of the Trial Judge following delivery of the verdict, including sentencing, if any. The Applicants prepose to have three security-style cameras located in the court room to be controlled remotely. The Trial Judge, the Honourable Chief Justice Popescul, will be given a monitor with a live feed, and will have a ?kill? switch, to be used at his discretion. The Applicants state that the public will not have access to the recordings, and the Draft Order provides that they reserve the right to choose whether or not to Iivestream the video. The data will be distributed to the media consortium via private broadcast circuits and/or streaming to a secure website. The Applicants suggest that cameras in the courtroom will enhance the administration of justice, and the media?s freedom of expression. The Respondent, Gerald Stanley (hereafter referred to as the ?Respondent?), is opposed to the presence of cameras in the courtroom as proposed or otherwise, and respectfully requests that the application be dismissed. This Application is not about openness and education, it is about entertainment. It is not crafted to enhance reconciliation, but rather to further the con?ict the media attention has generated to date. Argument The Respondent disputes the grounds offered in support of the Application. Each ground will be dealt with in turn. 10. 11. Page 3 a) Administration of Justice i) Educating the Public The Applicants have requested the right to ?lm and broadcast the opening and closing remarks of the Trial Judge and counsel, the charge to the Jury by the Trial Judge, the verdict of the Jury, the remarks of the Trial Judge following the verdict, and sentencing, if any. The Respondent appreciates that, apart from his potential testimony, these are the most interesting aspects of the trial. This fact was recognized in R. Pilarinos, 2001 BCSC 1332, [2001] BCJ No 1936, [Tab (?Pilarinos?), at paras 160 to 162, where Justice Bennett stated: Part of the dif?culty with the argument regarding increasing the public's understanding and reSpect for the system, is that the public will get much less information on television than they presently get in the neWSpaper coverage. A better understanding would be fostered by "gavel to gavel" The education factor is far better addressed by the attendance of the hundreds of high school [sic] and second language students who arrive at the courts annually to watch and leam about the Canadian judicial system. The courtroom is a place of solemn inquiry. It is not a place of entertainment. The many problems associated with Expanded Media Coverage clearly reach the incompatibility threshold set by Lamer C.J.C. There are strong arguments and evidence that Expanded Media Coverage would negatively affect the administration of justice and would be incompatible with the ?mction of the court. The Court?s function is one of truth-?nding and inquiry. By broadcasting only select portions of argument, the media will not be providing insight into how that function is accomplished. The sole purpose of ?hning these portions of the court proceedings is to provide entertainment and drama to make the media?s reporting more interesting. This, as Justice Bennet recognized, is not the ?mction of the Court. ii) The ?Victim?s? Family Welcomes Cameras in the Courtroom The rights and needs of victims and their families cannot be overlooked in the criminal justice system. Victims and their families have a signi?cant interest in seeing that the truth comes out, and that justice is done. The problem is that to have a ?victim? you need a 12. 13. 14. 15. 16. Page 4 ?nding of guilt. A further problem is that justice must be seen to be done on the facts, not on the basis of argument. Finally, as a jury trial, the focus of the trial must be to determine the truth, based on the facts, not to broadcast entertaining arguments that are not evidence. Any measure that may distract the court or place undue pressure on court participants, thereby diminishing the truth-?nding function of the court must be avoided. All parties involved have an interest in ensuring that the trial is fair. This trial and its participants have already suffered from the sensationalism surrounding the charge and preliminary hearing and the social discord that followed, in no small part, due to inaccurate, incomplete, and misleading media coverage. The interests of all parties involved, including the family and community of the deceased, are best served by ensuring that the court properly in its truth?fmding function. No interest, except the media that may sell more papers or advertising, or get more ?clicks?, are served by turning this trial into a spectacle for entertainment purposes. Cameras Will Enhance the Open Court Principle The Open Court principle has long been recognized as fundamental to a democratic society. Courts have long understood that open courts foster trial fairness by subjecting court actors and processes to public scrutiny. As Justice Bennett noted in Pilarz'nos, the act of excluding cameras from the courtroom only serves to limit the technical manner in which information is gathered. It does not affect the openness of the Court ([Tab at para 75). Individuals are still allowed to enter and exit the courtroom ?eely, to take notes, and to report on what they hear. Prohibiting cameras from the courtroom has no effect on the openness of the Court. In Saskatchewan, accredited media can record, but not broadcast, audio. Although cameras in the courtroom will create a greater audience, the Applicants? proposal will allow broadcast of information to that audience in a way that distorts and diminishes the Open Court principle, rather than enhancing it. Rather, it will result in a collateral ?trial? in the public based on argument, not facts, unlike the actual justice process which must be based on facts discovered in the Courtroom. 17. 18. 19. 20. 21. 22. Page 5 The Applicants? request includes the right to ?lm portions of the trial, sending them to a media consortium. Only the media will have access to the data. The public will not be given access to the complete recording. Media outlets will be able to control the content that individuals of the public witness. This not only removes context ?om the broadcasted information, but enables the media to manipulate the information. David Lepofsky describes the negative effects of selective editing at page 342 of ?Cameras in the Courtroom Not Without My Consen [Tab as follows: Paragraphs, sentences, phrases and even single words can be edited out of the videotape. The viewer may not be able to detect that this has occurred. Lawyers? questions and witnesses? answers can be juxtaposed out of sequence. This can create a different impression in the viewer?s mind than would have occurred in the courtroom had the viewer been present; this can happen even where the editor does not seek to distort or manipulate the message. Although Lepofsky uses the questioning of a witness as an example, the same analysis applies, perhaps more so, to counsel submissions. The public cannot be said to be ?scrutinizing? court proceedings when they are only shown the most sensational portions of the trial, edited and played back to them in a manner designed to create entertainment and fuel the existing controversy around this case. The public cannot make an assessment of whether a trial was fair, or whether justice has been done, based on an argument, which in turn may be distorted by selective editing and broadcasting. Excluding cameras from the courtroom does not detract from the openness of the Court. Allowing cameras in the courtroom creates the risk that Court proceedings will be distorted. This potentially will impact the truth-?nding function of the Court for no bene?t. It threatens to hinder, rather than enhance, the Open Court principle. iv) Gerald Stanley?s Right to a Fair Trial Will be Protected The Applicants suggest that this proposal avoids the inherent dangers of cameras being present. Courts and scholars have long been aware of the chilling effect cameras may have on witness testimony (see, for example: ?Cameras in the Courtroom: not without my consent?, [Tab at pages 346-348). 23. 24. 25. 26. Page 6 The Applicants? submission fails to recognize the many other ways that ?lming and selective broadcasting of a trial may create undue pressure on court participants, speci?cally the Jury, and counsel. The Jury As David Lepofsky notes, (?Cameras in the Courtroom Not Without My Consent?, [Tab at page 345): If courtroom ?lming occurs at trial, then the media could broadcast all or part of the trial while it is ongoing. Jurors, if not sequestered and/or members of their families, could be exposed to this coverage while the trial is in progress. The media?s repeated emphasis on one piece of evidence on the news could well in?uence jurors either directly, or through feedback from their family and friends. It may not be suf?cient for the trial judge to instruct the jury not to watch television at night while the trial is ongoing. Where courtroom ?lming is permitted, a community-wide if not nation- wide sensation can be created, such as in the Simpson murder case and the William Kennedy?Smith sex assault prosecution. This can make it virtually impossible for the jurors to escape potential media in?uence. The only alternative would be to sequester the This is a dramatic incursion on juror?s liberty. Sequestration is a last resort which should be avoided if at all possible, especially in a long trial. [emphasis added] Jurors should be entitled to draw their own conclusions as to what evidence and what statements made by counsel are relevant, and which hold the most weight, without their view being coloured by selective reporting and edited snippets of information broadcast over television and the intemet. Further, the jurors will know that the media trial, based on argument alone, is ongoing outside the Courtroom, which will inevitably draw them away ?om the evidence. David Lepofsky?s point also speaks to the fact that selective reporting may colour the public, including friends and family of the jurors. Jurors should not be subjected to undue pressure, real or imagined, from friends and family who have seen only edited portions of the most newsworthy segments of the trial, without the bene?t of seeing the rest of it or the actual evidence. 27. 28. 29. 30. 31. Page 7 It is accepted that the same concerns arise with written reporting of a trial. The media may select, colour, and edit statements to achieve a desired effect with written reporting as well. However, if a picture is worth a thousand words, the effect that a video clip will have on its audience will be much greater. David Lepofsky explains this at page 346 ((?Cameras in the Courtroom Not Without My Consent?, [Tab In contrast [to written material], when the public observes courtroom footage, no matter how edited and selective it may be, the viewer has a keen sense that they are seeing what ?really happened?. This can be an entirely inaccurate but strong perception. The photographic image tends to imprint itself in a more long lasting and emotive way on the viewer?s mind than does conventional media coverage. As such, the prejudicial impact ?om filming in court can be more deeply rooted, insidious, and long lasting. Ultimately, the mischief produced by selective reporting is the same whether done by print or television, however, the effect of the mischief, and the likelihood that it will occur, is only expanded by ?lming and broadcasting portions of the trial. Counsel Whether they will admit it or not, counsel will be aware of the fact that their performance and arguments will be scrutinized, not only by the public, but by legal professionals across the country. This added pressure is undesirable in an already tense and pressure-?lled trial. In order to ful?ll their function in the criminal justice system, counsel must be entitled to speak openly and candidly about the evidence and issues in the trial. Counsel will undoubtedly be pressured by the fact that their words, phrases, and arguments will be reproduced and reported out of context. Counsel will be limited in ful?lling their if they are forced to consider how each statement or argument may sound in the media when edited and taken out of context. Placing counsel under undue pressure threatens both the accused?s and the public?s right to a fair trial. Counsel should only have to consider the case in front of them, and not be forced to concern themselves with how their words may be analyzed or misconstrued in the court of public opinion. Although counsel in this case are seasoned, there is no doubt that the Applicants? proposal creates potential stress for both counsel and Gerald Stanley. 32. 33. 34. 35. 36. 37. Page 8 The Experience in Manitoba Manitoba developed a set of guidelines following a formal process to allow for media applications to ?lm portions of hearings. This Media Audio and Video Recordings in the Courtroom (MAVRIC) policy was developed in an effort to facilitate the use of cameras in the Courtroom. The content of these guidelines is telling. Manitoba limited the admission of cameras into the Courtroom to only Court of Appeal hearings, and, with respect to the other courts, only to the delivery of reasons for decision (see the MAVRIC Guidelines, attached to the Applicants? Brief). In the Motion Decision delivered January 28th, 2016, by Justice Brent Stewart, in the matter of the Inquest into the Deaths of Sheldon Anthony McKay and Durval David avares, [Tab Justice Brent Stewart noted that an Inquest may be a suitable proceeding to allow cameras, for the reasons stated at paragraph 8: Inquests have a very speci?c and limited process and the judge conducting this matter is to examine the circumstances relating to the death of each of the deceased inmates and to determine what if anything can be done to prevent similar deaths from occurring in the future. There is no fault ?nding function within this hearing and as such is somewhat of a neutral hearing which normally will not cause controversy. Clearly, a controversial jury trial is not a suitable format to test the use of cameras in the Courtroom in Saskatchewan. The Manitoba Guidelines also recognize that there is a real concern that broadcasts may be used or manipulated, and that broadcasting images of justice system participants, including counsel and judges, creates security concerns for those individuals (see page 3 of the MAVRIC Guidelines, attached to the Applicants? Brief). Without guidelines, the Respondent submits that Saskatchewan Courts would be wise to avoid assessing the use of cameras on a case-by-case basis. 38. 39. 40. Page 9 b) Freedom of Expression i) The Proposed Relief Respects the Media?s and its Audience?s Freedom to Express and Receive Recordings of the Trial There is no constitutionally protected right to ?lm and broadcast portions of a trial (see: Pilarz'nos, [Tab at para 71; and Motion Decision delivered January 28th, 2016, by Justice Brent Stewart, in the matter of the Inquest into the Deaths of Sheldon Anthony McKay and Durval David avares, [Tab at para 6). Neither the media, nor their audiences, have a right to receive pictures and sounds ?'om speci?ed portions of the trial. While the media does have a right to gather and express information, this does not amount to a right to ?lm within a courtroom (Pilarinos, [Tab at para 75). As Justice Bennett explains in Pilarinos ([Tab at para 109): Therefore does the inability of the media to record every emotion, nuance or gesture amount to a ban of publication or an exclusion from the courtroom? I think not. No one is prevented ?'om entering the courtroom, observing or taking notes about the proceedings. No one is banned from publishing anything in the proceedings simply because they are not permitted to record the proceedings by video or audio. The prohibition on cameras and audio recording devices is not analogous to the prevention of gathering or publishing information. In Soci?te? Radio-Canada Qu?bec (Procureur g?n?ral), 2011 SCC 2, [2011] 1 SCR 19, [Tab the Supreme Court ruled on the validity of procedural rules that limited the media?s ability to conduct interviews in the hallways of courtrooms, and to broadcast of?cial audio recordings ?om court proceedings. In ?nding that the rules amounted to a justi?able limit on the right of freedom of expression, Justice Deschamp stated at paragraphs 92 and 93: Although I accept that the broadcasting of of?cial audio recordings would add value to media reports and make them more interesting, I cannot ?nd that the prohibition against broadcasting these recordings adversely affects the ability of journalists to describe, analyse or comment rigourously on what takes place in the courts. The negative effect that broadcasting the audio recordings would have on the proceedings and the real impact it would have both on those participating in the hearing and on the search for the truth inherent in the judicial process are factors that must be taken into account. [emphasis added] 41. 42. 43. 44. 45. 46. Page 10 The same analysis applies exponentially to video recordings. Although video recordings would enhance the entertainment value of news reporting, prohibiting the media from ?lming and broadcasting portions of the trial does not hinder or diminish the media or the public?s right to express and receive trial information. This fact must be considered in the context of the negative effects that ?lming and broadcasting selected edited portions of the trial will have on the judicial process. ii) The Limited Authorizations Sought Will Balance Such Freedoms of Expression with Gerald Stanley?s Right to a Fair Trial Although the authorizations requested by the Applicants are somewhat limited and avoid some of the concerns regarding the ?lming of court proceedings, many of the negative effects of the Applicants? proposal cannot be ignored. As Justice Deschamps said in Soci?te' Radio-Canada Que'bec (Procureur g?n?ral) ([Tab at para 98): Freedom of the press and the fair administration of justice are essential to the proper functioning of a democratic society and must be harmonized with one another. Each one is just as vital as the other. Freedom of the press cannot foster self-ful?lment, democratic discourse and truth ?nding if it has a negative impact on the fair administration of justice. Prohibiting the use of cameras to ?lm and broadcast court proceedings has no effect on the media?s right to collect and report information, nor on the public?s right to receive that information (Pilorz'nos, [Tab at para 109). The rights to receive and express information do not include the right to ?lm and broadcast court proceedings. The Applicants? proposal attempts to create, for itself, a new right, to the detriment of Gerald Stanley?s right to a fair trial. Prohibiting cameras in the court room has a neutral effect on the media?s right to expression and the freedom of the press, but a negative effect on Gerald Stanley?s right to a fair trial. There is no balance created by the Media?s request, only hardship for the trial process and the administration of justice. 0) Other Considerations If the Court accepts that, despite the foregoing argument, allowing cameras in the courtroom will enhance the openness of the court process, the Respondent respectfully 47. 48. 49. 50. 51. Page 11 submits that this Honourable Court should consider the effect that further sensationalizing this trial may have on Saskatchewan as a whole. In Canadian Broadcasting Corp. R., 2011 SCC 3, [2011] 1 SCR 65, [Tab a man with a mental disability was acquitted of assisting with suicide. The trial judge refused to allow the broadcasting of a statement made by the accused to the police before charges were laid. The CBC appealed that decision, and although the case had already been decided, the Supreme Court heard the appeal. In refusing to overturn the trial judge?s decision, the Supreme Court stated, at paragraph 19, tha, are cases in which the protection of social values must prevail over openness.? In the months following Colten Boushie?s death, there was large-spread anger and division across the province, largely as a result of the media?s inaccurate portrayal of the events of that day and the alleged motives behind the shooting. The division within the province became such that Premier Wall was forced to give a statement in an attempt to reduce the discord. In this matter, the Defence has taken the responsible position of stating that the public must wait for the facts to come out in evidence. The Crown has preperly maintained silence. The Crown and Defence are ready to marshal the facts before the Court, and should not at this late date, after commencement of the trial, be required to deal with a collateral distorted trial in social media. It is the Defence submission that this is a case where the protection of social values must prevail over the alleged openness that the Applicants suggest could be accomplished by the selective video reporting of non-evidence portions of the trial. Saskatchewan is a province that values cohesion and community. Filming and broadcasting edited and selected portions of counsel arguments in an entertaining manner to create a greater spectacle runs the risk of further division and anger within the province. The media reporting to date has done more than enough damage to the ?societal interests? of Saskatchewan and Canada. Page 12 Remedies 52. For the foregoing reasons, the Respondent respectfully submits that the Application be dismissed. ALL OF WHICH IS RESPECTFULLY SUBMITTED DATED at the City of Saskatoon in the Province of Saskatchewan, this 12th da January, 2018. ROBERTS ROMBERG LLP Scott R. Spencer Solicitor for the Applicant Per: This Brief of Law delivered by: ROBERTSON STROMBERG ROBERTSON STROMBERG LLP Barristers Solicitors Suite 600, 105 21St Street East Saskatoon, SK S7K 0B3 Lawyer in Charge of ?le: Scott R. Spencer Direct Line: (306) 933-1354 Facsimile: (306) 652-2445 E-Mail: s.spencer@rslaw.com TAB 1 R. v. Pilarinos, 2001 BCSC 1332, 2001 CarswellBC 1993 2001 BCSC 1332,2001 CarswellBC 1993. [2001] B.C.J. No. 1936, 158 C.C.C. (3d) 2001 BCSC 1332 British Columbia Supreme Court R. v. Pilarinos 2001 CarswellBC 1993, 2001 BCSC 1332, [2001] B.C.J. No. 1936, 158 C.C.C. (3d) 1, 51 W.C.B. (2d) 255, 88 ORR. (2d) 33 Her Majesty the Queen against Dimitrios Pilarinos and Glen David Clark and BCTV, a division of Global Communications Limited, CKVU, a division of Global Communications Limited, CKNW, a division of Corus Entertainment Inc., Canadian Broadcasting Corporation, CTV Inc., CTV Television Inc., CIVT, a division of CTV Television Inc., Vancouver Television, the Radio Television New Directors' Association of Canada and Ad Idem - Advocates in Defence of Expression of the Media, and The Vancouver Sun (Applicants) Bennett J. Heard: September 10-14, 2001 Judgment: September 25, 2001 Docket: Vancouver C00014o2 Proceedings: allowed leave to appeal R. v. Pilarinos (2002), 89 C.R.R. (2d) 188 (note), 291 NR. 199 (note) (S.C.C.) Counsel: W.B. Smart, Q.C., J. Esson, for Crown I. Donaldson, Q. C., D. Clements, for Dimitrios Pilarinos D. Gibbons, Q. C., R. Fowler, M. Nathanson, for Glen David Clark D. Burnett, H. Maconachie, for Applicants K. Woodall, for Vancouver Sun G. Copley, Q. C., R. de Boer, for Attorney General of British Columbia J. Wood, Q. C., P. Juk, R. Millen - Amicus Curiae Subject: Criminal; Human Rights Headnote Criminal law Charter of Rights and Freedoms Freedom of expression Bennett J.: BACKGROUND 1 On October 20, 2000, Glen Clark, a former Premier of British Columbia, was charged with violating ss. 121 and 122 of the Criminal Code, RS. 1985, c. C-46. Dimitrios Pilarinos was charged with violating ss. 121, 122, 341 and 397 of the Criminal Code. Both men were charged together in a direct indictment. The charges arise, inter alia, from allegations that Mr. Pilarinos improved Mr. Clark's real property in exchange for his assistance in respect of an application for a casino license. This application relates to the extent and form the media may provide coverage of the trial. 2 The trial of the two men is to commence with preliminary arguments on September 24, 2001. The trial is presently scheduled to proceed with a judge and jury. Jury selection is scheduled to commence on October 15, 2001. The defence has advised that it cannot determine whether to proceed to trial with a jury or with a judge alone until this application is determined. In order to ensure that the trial proceeds as scheduled, I advised counsel that I would release the decision on September 24, 2001. As a result, these reasons will not do justice to the extensive, thorough and very able argument CANADA Copyright Thomson Reuters Canada Limited or its Iicensors (excluding indivldual court documents). All rights reserved. 1 R. v. Pllarinos, 2001 BCSC 1332, 2001 CarswellBC 1993 2001 BCSC 1332, 2001 CarswellBC 1993, [2001] B.C.J. No. 1936. 158 C.C.C. (3d) 68 This passage was cited with approval by Dickson C.J.British Columbia, supratherefore well-established on the authorities that s. 2(b) does not provide absolute protection to all expressive activities. (ii) Is gathering information on ?lm, video or audiotape expressive activity? 70 The amicus curiae identi?es two sub-issues. First is whether 5. 2(b) guarantees the right of members of the media to gather news. Second, is whether creating a ?lm or audiotape is expressive activity protected by s. 71 The authorities support the right of the media to gather news. The amicus curiae submits that this right is guaranteed under s. 2(b) and I agree that this right is protected. However, I am not convinced that the right to gather news includes the right to ?lm the proceedings in a courtroom. 72 In Edmonton Journal Cory J. stressed the importance of the open courts at p. 610. He held that freedom of expression "protects listeners as well as speakers". He identi?ed the "fundamentally important role" the press plays with respect to informing the public about the courts. This role, he says, is especially important in a time when few people have the leisure hours to attend court proceedings. None of these comments can be questioned. 73 However, this assessment was made in the context of a case where the media was prohibited from printing and publishing almost every asPect of all matrimonial cases. 74 Similarly, in Canadian Broadcasting Corp. v. New Brunswick Attorney General) (1996), 139 D.L.R. (4th) 385 (S.C.C.), a challenge was brought to s. 486(1) of the Criminal Code, when a judge excluded the public and the media from a courtroom during a sentencing proceeding. La Forest J. said, at p. 396-7: From the foregoing, it is evident that s.2(b) protects the freedom of the press to comment on the courts as an essential aspect of democratic society. It thereby guarantees the further freedom of members of the public to develop and to put forward informed opinions about the courts. As a vehicle through which information pertaining to these courts is transmitted the press must be guaranteed access to the courts in order to gather information. As noted by Lamer 1., as he then was, in Canadian Newspapers Co. v. Canada Attorney General), [1988] 2 S.C.R. 122, at p. 129, 52 D.L.R. (4 th )690 (S.C.C.): "Freedom of the press is indeed an important and essential attribute of a free and democratic society, and measures which prohibit the media from publishing information deemed of interest obviously restrict that freedom." Similarly, it may be said that measures t_hpL prevent the media from ggt_hering that information, and from disseminating it to the public, restrict the freedom of the press. To the extent that such measures prohibit public access to the courts and to information about the courts, they may also said to restrict freedom of expression in so far as it encompasses the freedom of listeners to obtain information that fosters public criticism of the courts. [Emphasis added]. 75 The decisions that say the press has the "right to gather information" were made in the context of rulings or legislation that prevented the press from entering the courtroom altogether, and therefore prevented the press from ?gathering information". Excluding cameras and tape recorders from the courtroom does not prevent the gathering of information. as the courts are open to everyone. It only limits the technical manner in which information is gathered. I conclude that the latter is a not a constitutionally protected right. 76 The analysis does not end here, however. As noted above, the issue also includes whether ?lming constitutes expressive activity. This issue was speci?cally addressed in R. v. Butler (1992), 70 C.C.C. (3d) 129 (S.C.C.). Butler operated a video store and was charged, inter alia, with possessing obscene material for the purpose of sale. He was offering pornographic movies for sale. CANADA Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 11 R. v. Pilarinos, 2001 BCSC 1332, 2001 CarswellBC 1993 2001 3080 1332, 2001 CarswellBC 1993, [2001] B.C.J. NO. 1936, 158 C.C.C. (3d) 10] The Ontario Court of Appeal af?rmed the order, but limited it to Ontario and an English channel from Montreal. The details regarding the application for an injunction could also be published. 102 The court held that a publication ban infringes s. 2(b) rights [Dagenais? C. GE. U. supra, p. 378]. The exclusion of the public infringes s. 2(b) rights as it prevents the press from "gathering" the information v. New Brunswick, supra, at p. 397]. There are statutory bans, particularly relating to sexual offences, young witnesses and pretrial application which have been upheld as constitutional. The press argues that excluding cameras and audio equipment from the courtroom is a publication ban. 103 The media submits that reporters cannot obtain a complete account by simply taking notes. The reporter cannot grasp the nuances of the words of the witness, or the emotions, pregnant pauses, gestures and emotion. [Wyatt af?davit, MacDonald af?davit]. Thus, it submits, the media is banned from publishing much of the trial. 104 If the media is correct in its analysis, then the onus rests with those wishing to prevent Expanded Media Coverage from coming into the courtroom. 105 No one questions that open courtrooms epitomize the cornerstone of a free and democratic society. Judges are not permitted to try matters in secret. In Needham B. C. GE. U. supra, Goldie .A. referred to some of the reasons why openness in the courts is the rule and "covertness is the exception." He referred to the maintenance of public con?dence in the integrity of the justice system and improving the public's understanding of the court system 153, also MacIntyre v. Nova Scotia Attorney General) (1982), 65 C.C.C. (2d) 129 (S.C.C.), at pp. 145-6]. However, these are not the only reasons for an open court. The open court was entrenched in England from before the time of the Norman Conquest [Richmond Newspapers Inc. v. Virginia, 65 L. Ed. 2d 973 (U.S. Sup. Ct., 1980), at 982 With the Act of Settlement of 1701, the Court of Star Chamber was abolished, and judges achieved independence. As noted by Goldie J.A., in Needham B. C. G. E. U. supra, at p. 153, William Blackstone said the following, describing how evidence was given in the courts of law (Commentaries on the Laws of England, vol. (1768), para. 372): And all this evidence is to be given in open court, in the presence of the parties, their attornies, the counsel, and all bystanders, and before the judge and jury: each party having liberty to except to its competency, which exceptions are publicly stated, and by the judge are openly and publicly allowed or disallowed, in the face of the country: which must curb any secret bias or partiality that might arise in his own breast. 106 The Charter of Rights and Freedoms protects an accused's right to a "fair and public hearing" (5. As Jeremy Bentham said, "Where there is no publicity, there is no justice. Publicity is the soul of justice." 107 Anyone can attend court and listen to the proceedings. Some communities have organized regular court watchers to observe what occurs in the trial process. Often media people attend court to report on cases that they think the public will ?nd interesting. Most of the thousands of cases heard in the courts each year receive no publicity or media attention. They are not sensational or compelling. 108 There are many people who cannot attend court because of the many obligations people face due to employment and family obligations. Those who are interested in court proceedings, but cannot attend, must receive their information from those who were in attendance, most often the media. 109 Therefore does the inability of the media to record every emotion, nuance or gesture amount to a ban of publication or an exclusion from the courtroom? I think not. No one is prevented from entering the courtroom, observing or taking notes about the proceedings. No one is banned from publishing anything in the proceedings simply because they are not permitted to record the proceedings by video or audio. The prohibition on cameras and audio recording devices is not analogous to the prevention ofgathering or publishing information. CANAM Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 15 R. v. Pllarinos, 2001 BCSC 1332, 2001 CarswellBC 1993 2001 BCSC 1332, 2001 CarswellBC 1993, [2001] B.C.J. No. 1936. 158 0.0.0. (3d) The general Canadian public is fundamentally unfamiliar with its judicial system. What little the public knows about judicial proceedings generally relates to American and not Canadian proceedings, due to the in?uence of American television, and the widespread practice of televising court proceedings in the United States. Greater access by the Canadian public to its court system by means of televised proceedings would result in: i) demystification of the judicial process; ii) greater informed deliberation and critical assessment cf the judiciary based on the public's ability to readily observe judicial proceedings; increased understanding of and respect for the judiciary based on the public's increased ability to observe the daily working of the courts; iv) improved journalistic standards relative to court reporting resulting from greater coverage of court proceedings and the development of court reporters specializing in judicial matters. 160 Part of the difficulty with the argument regarding increasing the public's understanding and respect for the system, is that the public will get much less information on television than they presently get in the newspaper coverage. A better understanding would be fostered by "gavel to gavel" coverage, however, this is a small aspect of the application. I was advised that two million people have signed up for the many new digital television stations. How many of those will actually watch Court TV is unknown. 161 The education factor is far better addressed by the attendance of the hundreds of high school and second language students who arrive at the courts annually to watch and learn about the Canadian judicial system. 162 The courtroom is a place of solemn inquiry. It is not a place of entertainment. The many problems associated with Expanded Media Coverage clearly reach the incompatibility threshold set by Lamer C.J.C. There are strong arguments and evidence that Expanded Media Coverage would negatively affect the administration of justice and would be incompatible with the function of the court. 163 Applying McLachlin test involves the application of different considerations. Her analysis allows for a consideration of the functional aspect of the courtroom. However, she requires a further assessment, and that is whether the expression in question promotes one of the purposes underlying the guarantee of free expression. Her analysis considers time, place and manner. The place is the courtroom. 164 The courtroom is not a place of public debate aimed at promoting the truth. The expression is the recording of the presentation of evidence in order for a judge to resolve a dispute, according to strict rules of evidence. In any event, the press can cover the trial thoroughly and the addition of Expanded Media Coverage does not advance the search for truth. 165 Similarly, the courtroom is not a place of debate to facilitate social or political decision-making. It is a place for dispute resolution. Politicians are not permitted to make speeches at the courthouse, no more than they may on a military base. 166 Finally, the courthouse is the last place to encourage self-ful?llment and human ?ourishing by encouraging the conveyance and reception of ideas. 167 I conclude that applying either the Lamer test or the McLachlin test, the common law prohibition of Expanded Media Coverage in the courtroom or in the courthouse, does not violate s. 2(b) of the Charter. 168 It follows that the Policy, including the consent rule, as an expansion of the common law rule, does not violate the spirit of the Charter of Rights. The activity in question is not protected by s. Copyright Thomson Reuters Canada Limited or [Icensors (excluding individual court documents). All rights reserved. 24 TAB 2 Cameras in the Courtroom Not Without My Consent David I. GENERAL 335 A. Introduction 335 B. Disclaimer 336 C. Terms of Reference for the Policy Debate 337 D. The Legislative Context 338 II. THE HARMS POSED BY CAMERAS IN THE COURTROOM 341 A. The Foundation for the Harms Posed by Cameras 341 B. Threat to a Fair Trial Through Prejudicial Publicity 343 C. Impact on the Testimony of Witnesses 346 D. Impact on Lawyers 348 E. Impact on Jurors 350 F. Impact on the Judge 351 G. Impact on Crime Victims 352 H. Public Perception of Justice 353 I. Impact on the Administration of Justice and Effective Law Enforcement 354 J. Invasion of Privacy 354 K. Access to Justice 356 LL.B.(Osgoode Hall) LLM (Harvard). The author is counsel with the Crown Law o?ice (Criminal) of Ontario's Ministry of the Attorney General. This article is written in the author?s personal capacity, and does not purport to represent the views of Ontario's Attorney General or her Minish?y. The author acknowledges, with many thanks, the editorial and analytical advice and suggestions of Dr. Donald Bur, a writer and editor with a keen for important detail. 334 OPEN JUSTICE LA TRANSPARENCE DANS LE SYSTEME IUDICIAIRE L. Improved Technology New Miniaturlzed Television Cameras 356 M. Learning From the American Experience 357 N. Alternative Methods to Prevent Adverse Affects 359 1. Rules Restricting Numbers and Locations of Cameras 360 2. Availability of Rights to Appeal 360 3. Bleep Out Names and Blot Out Images of Sensitive Witnesses Dcserving Anonymity 361 CAMERAS IN THE couaraoom NOT WITHOUT MY CONSENT 335 4. Give Court Discretion to Disallow Cameras where Circumstances Proved to Warrant it 361 5. Allow Courtroom Filming on Appeals 363 THE ASSERTED BENEFITS OF CAMERAS IN THE COURTROOM 363 A. Preliminary Considerations How Courtroom Footage Would be Used 363 B. The Public's Right to Know 365 C. Open Justice and Access to Court 366 D. Public Education on the Judicial Process 368 E. Public Con?dence in the Judicial System 371 F. More Accurate Reporting on Court Proceedings 372 G. Discrimination Against Television Media 372 H. Cameras in Canadian Royal Commissions 373 IV. CONCLUDING CONSIDERATIONS 375 A. Cameras in the Courtroom and the Charter's Free Expression Guarantee 375 B. Experimenting with Cameras in the Courtroom 384 CONCLUSIONS 386 I. GENERAL A. Introduction It is commonly believed that the invention of new technologies automatically brings with it the unimaginable and unprecedented bene?ts of progress. One who warns against the proliferation of a particular kind of technology can, at ?rst blush, be branded as an in?exible opponent to progress. On more careful re?ection, it becomes evident that any new piece of technology can have the potential either to work for good or for bad. In the context of the administration of justice, the introduction of the relatively new technology of television cameras into Canadian courtrooms to enable the media to ?lm and broadcast judicial proceedings does not constitute a form of progress. Rather, it poses a serious threat to the proper administration of justice and offers little if anything in the way of bene?ts. The introduction of television cameras into Canada's courts, especially where the witnesses or parties do not consent to being ?lmed, would be a substantial step backwards in Canada's ongoing effort at improving its justice system. One can be a strong and passionate supporter of the long-standing principle of open justice, honouring the public's traditional right to attend and report on court proceedings in Canada, without at the same time having to approve of cameras in the courtroom. This article presents such a position. The purpose of this article is to discuss whether and when we should permit television cameras in Canadian courtrooms. The position presented here is that cameras should not be admitted into courtrooms to ?lm judicial proceedings for broadcast in whole or in part, except where such ?lming is consented to by all of the court participants who will be ?lmed, including the judge, the parties, the witnesses if any, and the jurors if any. By "consent" is meant the following: ?rst, if a person does not agree to be ?lmed, but does not object to the rest of the proceeding being ?lmed, then ?lming can proceed except for the involvement of the objecting party. If a person objects to the ?lming of the whole proceeding, then the entire proceeding may not be ?lmed. It would be insuf?cient simply to allow a court participant to consent or withhold consent to ?lming of themselves alone. If an entire trial is to be ?lmed, and one witness is reluctant, they may feel compelled to consent to themselves being ?lmed, despite their true wishes, for fear of appearing to have something to hide. For the consent power to be meaningful and effective, the individual must have the full range of choices listed above. The discussion begins with a brief review of the state of the art both in legislation in Canada and in practice. Next, the speci?c pro-camera arguments are each set out and responses to them are explored. The key arguments that media advocates typically advance in favour of the pervasive introduction of cameras into Canada's courts are identi?ed. Responses are provided to each argument. The various pro-camera arguments considered here can be found in the veritable barrage of articles and commentaries which appear from time to time in the press and elsewhere authored by reporters, editorialists and lawyers who represent their interests.1 1. See DJ. Henry, "Electronic Access to Court: A Proposal for its implementation Today" in P. Anisman AM. Linden, eds., The Media, The Courts and The Charter (Toronto: Carswell, 1986) at 441-490; Crosson, "Cameras in Courts Do Not Adversely A?'e'ct Conduct of Court Proceedings" (1991) 205 CAMERAS IN THE counraoom NOT WITHOUT MY CONSENT 33? Next, this article will set out the reasons why the Canadian Charter of Rights and Freedoms does not constitutionally require courts to admit cameras into their proceedings. Attention then turns to the suggestion, periodically put forward by media advocates, that we should try an experiment with cameras in the courtroom. Finally, some re?ections on the overall debate over cameras in the courtroom are provided in the conclusion. In this article, "cameras in the courtroom" or "courtroom ?lming" refers to the proposed practice of news media bringing cameras into the courtroom to take still or video recordings of a judicial proceeding, in whole or in part. It is contrasted with "conventional media coverage" of court proceedings. Conventional media coverage refers to the common current practice in Canada whereby news reporters from television, radio and newspaper outlets personally attend court proceedings, take notes, and then ?le reports on the day's proceeding, but without having the use of actual footage shot in the courtroom during the proceeding. B. Disclaimer At the outset, I should indicate my previous involvement with this issue. From late 1984 until late 1993, I acted as co-counsel for the provincial Crown in Ontario in the case of R. v. Squires.2 There, relying on the guarantee of freedom of expression, including freedom of the press and other media of communication in section 2(b) of the Canadian Charter of Rights and Freedoms, CBC television reporter Catherine Squires attacked the constitutionality of Ontario legislative restrictions on ?lming in courtrooms and courthouse corridors. As is discussed further below, she was ultimately unsuccessful in her constitutional attack. I have been intimately involved for many years in representing the Crown in this hotly contested Charter case. My perspectives on the cameras in the courtroom issue may well have been influenced by the partisan role which I was assigned to play, or may be perceived as having been so in?uenced. I can only invite the reader to critically assess my arguments and analysis on their merits. New York Law 83; "Keep the Cameras" (Cameras in the Courtroom) (Editorial) The National Law JaurnaI, (5 June 1989 12; LA. Krsul Jr., ?Cameras in the Courtroom: Time to Experiment" (1983) 62 Michigan Bar J. at 384?385; S.E. Nevas "The Case for Cameras in the Courtroom" (198]) 20 Judges J. at 22(5); T. D'Alemberte "Cameras in the Courtroom? Yes." (1980) 7 Barrister at N. Davis, "Television in Our Courts: The Proven Advantages The Unproven Dangers" (1980) 64 Judicature 85; WJ. Arendt, "Televised Trials in Illinois: Should it be Viewed as a Privacy Question?" (1985) 18 John Marshall L.Rev. 793; L. Ares, ?Chandler v. Florida: Television, Criminal Trials, and Due Process" (198!) Supreme Court Review 157; See also the argument successfully advanced in favour of cameras in the courtroom by the media in Re Petition of Post-Newsweek Stations. Florida. Inc, 370 So. 2d 764 (1979). 2. R. v. Squires (1986), 50 CR. (3d) 320 (Ont. Prov. Offences CL), Vanek, a??d (1989), 69 CR (3d) 337 (Out. Dist. Ct), Mercier, ajj?d (1993), 78 C.C.C. (3d) 97 (Ont. Leave to appeal to Supreme Court of Canada refused (1994) 25 CR. (4th) 103. 338 OPEN JUSTICE I LA TRANSPARENCE DANS LE SYSTEME Jumcuuas C. Terms of Reference for the Policy Debate It is important at the outset to clarify key parameters of the cameras in the courtroom debate. First, this article's major focus is on the question of whether cameras should be admitted into Canadian courtrooms as a matter of policy, and if so, on what terms. This article approaches this debate primarily from the policy perspective. A consideration of the constitutional claim of a Charter right to televise court proceedings is provided a?er this policy discussion. Of course, many of this article's policy observations would bear upon a consideration of the constitutional question. Second, the core policy question at stake here is not simply whether television cameras should ever be permitted in Canada's court rooms. The real issue is whether cameras should be permitted to film judicial proceedings in cases where some or all of the court participants (lawyers, witnesses, jurors, judge and/or parties) do not wish to be ?lmed. Where all court participants consent to being ?lmed, and where this consent is freely given without duress or pressure, there may be a reduction in the risks associated with ?lming court proceedings. Hence, the relevant question at the core of this debate is whether it is appropriate for court participants to be forced to be ?lmed by television cameras when they do not consent to being ?lmed. Because Canada's courts now rarely admit television cameras, and certainly not without the consent of the presiding judge and court participants, any transition to a regime where reporters can bring cameras into courtrooms without the consent of court participants would be a dramatic change. From a justice policy perspective, such a substantial change should not occur unless it is ?rst established that this new innovation will bring signi?cant benefits and that it will not have any adverse effects on the administration of justice. Hence, there are two questions that must be considered. On both, the burden of proof lies on those who seek to persuade us that cameras should more readily be admitted to Canada's courtrooms. First, will cameras in the courtroom provide any signi?cant bene?ts? Second, even if they would, will they pose any material threats of harm to the administration of justice? This does not involve a facile balancing of costs versus bene?ts -- one that contemplates that if the bene?ts of courtroom ?lming are great, then any associated harms, even if signi?cant, should be endured. Camera advocates cannot make out their case in the policy arena by simply showing that the bene?ts of cameras in the courtroom outweigh any possible harmful effects. They must instead begin by showing that cameras in the courtroom, if permitted over the objection of court participants, will be problem free. This must precede any discussion of cameras' alleged bene?ts. The debate is framed in this way because we here contemplate signi?cant alterations to the justice system. The administration of justice is a critical yet fragile component of our democratic self-governing process. Many people have their liberty and property at stake in courts everyday. CAMERAS IN THE counraoom NOT WITHOUT MY CONSENT 339 Even minimal or marginal adverse effects on any particular case can have dramatic consequences for individuals who come to court seeking justice, or whom government compels to appear in court. If cameras distract even one juror or intimidate one witness in a case, the conviction of an innocent person or the acquittal of a criminal offender may result. Either consequence is too serious to accept as a "trade-off" for allegedly better quality media coverage of courts. This assessment is analogous to the long-standing legal maxim that it is better that nine guilty persons go free rather than one innocent person be convicted. A review of at least some U.S. state court decisions, af?rming the use of cameras in the courtroom, suggests that cameras in the courtroom could pose some problems. At least some state courts appear to have concluded that the bene?ts outweigh the disadvantages in their view.3 Such a willingness to tolerate and indeed to accept interference with the administration of justice reflects a value judgment that we in Canada ought not follow. With respect, it demonstrates a cavalier disregard of the importance of the right to a fair trial and the requirements of the proper administration of justice. D. The Legislative Context In most democratic countries around the world, television cameras are rarely if ever permitted into courtrooms. Canada is no exception. The principal departure from this trend is the United States. Within its two-tiered court system, most state courts now permit television cameras into courtrooms under some conditions. Although the federal courts recently conducted a limited experiment in this regard, they have concluded that they ought to continue their long-standing camera ban.4 The U.S. Supreme Court does not permit cameras at all. Of those American states that do permit television cameras in the courtroom, there exists a wide diversity of rules stipulating when cameras will be allowed. There is no general pattern. For example, some states allow television cameras into appeal courts, but not trial courts. Some permit television cameras into courts only with the permission of some or all court participants. Others will permit cameras in the courtroom over the objection of court participants, with limited exceptions. A small number of States undertook what they called "experiments" with television cameras in the courtroom for limited periods, before making their camera rules permanent. Others simply adopted rules permitting television cameras without any prior 3. See for example Re Petition ofPast-Newsweek Stations, Florida, Inc. for Change in Code of Judicial Conduct, supra note 1 at 787-789. See also the various other court studies such as those cited in?'a note 23. 4. See Jackson. "Let Cameras Roll" (Judicial Conference of U.S. decides to bar cameras for Federal courts) (Editorial) Los Angeles Daily Journal (3 October 1994) 2 and T. Lastes, "Experiment to End on T.V. in U.S. Courts: Conference Action" (N.S. Judicial Conference) Los Angeles Daily Journal (22 September 1994) 1. 340 OPEN IUSTICE ILA TRANSPARENCE DANS LE SYSTEME JUDICIAIRE on-site experimentation. Most if not all U.S. state rules admitting cameras to courtrooms were promulgated by the courts themselves, and not by the state legislatures. Despite the broad diversity of local rules and practices, there is one point on which U.S. courts have been categorical and consistent. The admission of television cameras to U.S. courtrooms is not required under the free speech and press clauses of the First Amendment to the U.S. Constitution" The U.S. Supreme Court has held that state courts are free to experiment with television cameras in the courtroom if they wish, so long as the accused's right to a fair trial is respected.?5 However, they are not constitutionally required to do so. In Canada, television cameras have rarely been admitted to courtrooms to ?lm judicial proceedings. There have been sporadic incidents of courtroom ?lming during judicial proceedings across the country. In most provinces, there is no legislation governing this question. Instead, it is left to the inherent jurisdiction of the presiding trial judge to determine whether television cameras may be admitted and if so, under what circumstances and conditions. The most comprehensive legislative regime in Canada addressing cameras in the courtroom is found in Ontario 's Courts of Justice Act.7 It permits the ?lming of judicial 5. Chandler v. Florida, 101 802 Estes v. Texas, 85 1628 (1965); Nixon v. Warner Communications Inc, 98 1306 (1978); U.S. v. Edwards, 785 F.2d 1293 (5th Cir. 1986); Westmoreland v. CBS Inc, 596 F. Supp. 1166 (1984); 752 F.2d 16 (1985) cert. den. sub nom. Cable News Network Inc. v. District Court at al. 105 S. Ct. 3478 (1985); U.S. v. Torres. 602 F. Supp. 1458 (U.S. Dist.Ct. 1985); U.S. v. Hastings 695 F.2d 1278 1983); In Re National Broadcasting Co.. Inc. 653 F.2d 609 1981); Bela Broadcasting Corp. v. Clark. 654 F.2d 423 1981); Zenith Radio Corp. v. Matsushita Electric Industrial Co., 529 F. Supp. 866 (ED. Pa. 1981); Doorman v. Meisner, 430 F.2d 558 1970); Seymour v. United States, 373 F.2d 629 1967); Tribune Review Publishing Co. v. Thomas, 254 F.2d 883 1958); In Re Petition of Post-Newsweek Stations, Florida. Inc, for Change in Code of Judicial Conduct, supra note 1; In Re Mack, 126 A. 2d 679 (Pa. Sup.Ct. 1956); State v. Clifford, 123 NE. 2d 8 (Ohio Sup.Ct. 1954). 6. Supra note 5. 7. See Courts of Justice Act, R50. 1990, c. C43, 5. 136 building upon its predecessor, section 67 of the Judicature Act, R50. 1980, c. 223, which was considered in the Squires case, supra note 2. Section 136 provides as follows: 136. (1) Subject to subsections (2) and (3), no person shall, take or attempt to take a photograph, motion picture, audio recording or other record capable of producing visual or aural representations by electronic means or otherwise, (0 at a court hearing. (ii) of any person entering or leaving the room in which a court hearing is to be or has been convened. or of any person in the building in which a court hearing is to be or has been convened where there is reasonable ground for believing that the person is there for the purpose of attending or leaving the hearing.- CAMERAS THE. COURTROOM NOT WITHOUT MY CONSENT 341 proceedings for broadcast where the trial judge approves the ?lming for educational or instructional purposes, and where all witnesses and parties consent to being ?lmed. The Squires District Court ruling purported to sever and declare unconstitutional the "educational or instructional purposes" requirement in a predecessor provision. Whether or not this ruling was obiter, and whether it would stand if reviewed in a higher court are likely beside the point. This is because the trial judge in Squires had construed this "educational or instructional purposes" clause as potentially permitting ?lming in at least some news-gathering circumstances.a Hence, the clause does not appear to prevent media ?lming in courtrooms, except for perhaps commercial advertising. or non-informational aims? publish. broadcast. reproduce or otherwise disseminate a photograph. motion picture, audio recording or record taken in contravention of clause or broadcast or reproduce an audio recording made as described in clause 1984. all. s. 1460): 1988. c.69. s. Exceptions (2) Nothing in subsection (1), prohibits a person from unobtrusively making handwritten notes or sketches at a court hearing; or prohibits a solicitor. a party acting in person or a journalist from unobtrusively making an audio recording at a court hearing, in the manner that has been approved by the judge, for the sole purpose of supplementing or replacing handwritten notes. 1984. cl 1. s. 146(2); 1988, c.69, 5. Exceptions (3) Subsection (1) does not apply to a photograph. motion picture, audio recording or record mode with authorization of the judge, where required for the presentation of evidence or the making of a record or for any other purpose of the court hearing; in connection with any investitive. naturalization, ceremonial or other similar proceeding: or with the consent of the parties and witnesses. for such educational or instructional purposes as the judge approves. O?'ence (4) Every person who contravenes this section is guilty of an offence and on conviction is liable to a ?ne of not more than $25. 000 or to imprisonment for a term of not more than six months, or to both. 8. Supra note 2. 9. For a more thorough discussion of the history of the introduction of television cameras into courtrooms in Canada and the United States, see the Squires trial decision, supra note 2. 342 OPEN JUSTICE 1' LA TRANSPARENCE DANS LE SYSTEMS IUDICIAIRE II. THE HARMS POSED BY CAMERAS IN THE COURTROOM A. The Foundation for the Harms Posed by Cameras To discuss the harms posed by cameras in the courtroom, it is helpful to ?rst outline some distinctive properties of the television camera and of human nature. When a video camera records all or part of a court proceeding for broadcast to the public, either edited or unedited, it has several unique properties. These dramatically distinguish the video camera's from the eyes of a spectator in the courtroom, be that spectator a member of the general public or a journalist. These distinctive properties take on powerful signi?cance when regard is had to the human experience of appearing in court as a witness or party to a legal proceeding. The camera instantaneously captures on ?lm or videotape the image of the witness, lawyer, juror, or party. it can immediately transmit that image in living colour to thousands or millions of television screens across the land. Excerpts can be replayed over and over again on the news, on documentaries, and on television commercials for the television station for days, months, or even years into the future. Paragraphs, sentences, phrases and even single words can be edited out of the videotape. The viewer may not be able to detect that this has occurred. Lawyers' questions and witnesses' answers can be juxtaposed out of sequence. This can create a different impression in the viewer's mind than would have occurred in the courtroom had the viewer been present; this can happen even where the editor does not seek to distort or manipulate the message.lo The camera can zoom in from a distance to provide an extreme close-up image of the witness's face. This provides a visual perspective that a court spectator could not secure. To obtain such a view in the courtroom, a spectator would have to walk up to the witness stand and place themselves inches from the witness's nose something which no presiding judge would ever permit. Hence, the camera can electronically invade and violate the court participant's personal space in a fashion that no spectator can. Even without any editing of images and shots, the camera can subtly distort visual images. Depending on the kind of lens being used, the shot's angle, the duration of a shot, and various settings on the camera, the image on the screen, while quite realistic and life-like, can nevertheless be dissimilar to the real thing. To some these differences may appear trivial at ?rst. However, their cumulative impact can be quite signi?cant. People may look bigger and heavier on television than in real life. Camera-induced spacial distortions may make court participants look like they are standing closer together or further apart than in real life. Depending on available lighting and camera settings, a person's face may look more or less pale on television than in real life. 10. For a case study in how courtroom footage was used in a Canadian documentary produced by the CBC arising out of a murder trial which was ?lmed in Ontario with the legislatively required participant consents, see J.M. Linton M. Gerace, ?The ?Reel World' of the Courtroom: An Analysis of A Television Documentary About a Murder Trial" (1990) 10 Windsor Yearbook of Access to Justice 127. CAMERAS THE COURTROOM NOT WITHOUT MY CONSENT 343 Turning from the properties of the camera to the properties of the persons being placed before the camera. there are several natural tendencies of people who are involved in court proceedings, such as jurors, witnesses, or parties to a criminal or civil proceeding. Most have never been in a courtroom before. Of those who have, it is rare that they will have had any experience giving testimony, much less subjection to an incisive and probing cross-examination. Many will be unfamiliar and uncomfortable with public speaking before an audience of strangers. Witnesses and parties can personally have a great deal at stake in the proceedings. For the accused, their very liberty can he on the line. For plaintiffs and victims, much needed personal vindication can be at stake. For many parties, their livelihood and reputation can hang in the balance. For all parties and witnesses, their personal credibility is put in question as soon as they enter the witness box. In cross- examination, their honesty, their morality and their integrity can be savagely challenged by skilled professional counsel who are paid and trained to tear them apart through the ordinary adversary system. When called to the stand, parties and other witnesses Often must testify about personal and private matters, including events in which they may have been reluctantly caught up. It is not unusual, particularly in a criminal or matrimonial case, for witnesses to be called upon to give evidence about unseemly personal situations where they were in the wrong place at the wrong time. Many litigants, and especially victims and criminal accused persons, have very little con?dence in the justice system because of its seeming lack Of sensitivity, fairness and respect for their personal autonomy. Thus, most parties and witnesses enter the courtroom in a state of acute stress, fear and at times sleeplessness even without the prospect of television cameras. The courtroom's solemn ritual, formality and arcane language can be quite foreign and alienating. This exacerbates the powerful sense of fear and stress. Most witnesses may only testify for a brief period of time, being a matter of minutes or hours within a single day. They will routinely be excluded from the courtroom before they give their own testimony, pursuant to a judicial order requiring witnesses to wait outside before they are called to give evidence. Thus, they have little time to acclimatize themselves to the process before the experience of testifying is upon them. A professional witness such as a police of?cer may approach the giving of testimony in a more calm, controlled and experienced way. Yet beneath this veneer is still a human being with feelings, doubts and fears. If their professionalism, competence, honesty or motives are attacked in cross-examination, the courtroom experience can be quite stressful even if it is not particularly foreign. Augmenting these personal attributes is the fact that very few persons in Canada, apart from full?time journalists, actors, and politicians, have ever been on television. For most, therefore, the experience of being on television for the ?rst time is a foreign and daunting event, even at the best of times. From the earliest age, we are all trained at an instinctive or subconscious level to pose for the camera. Hence, experienced television journalists know that when a television camera appears at a demonstration or other news event, the conduct of persons at the scene can rapidly change. Similarly, they are well 344 OPEN JUSTICE 4 LA TRANSPARENCE DANS LE SYSTEME JUDICIAIRE aware that when politicians are off camera they may speak very differently than when the cameras are turned on. Bearing in mind these well-known and time-tested attributes of the camera, and of people caught up in the judicial process, we can consider what consequences would ensue if court participants could be forced over their objection to be ?lmed by media cameras when they are involved in a court proceeding. B. Threat to a Fair Trial Through Prejudicial Publicity Media advocates argue that cameras in the courtroom would not generate any prejudicial publicity that could undermine the fairness of a trial. They assert that if there is any risk of potential prejudicial pretrial publicity, the Criminal Code now adequately addresses this. The Code mandates a series of publication bans which can be implemented if needed. It is a core requirement of our justice system that every case be decided solely on the evidence presented to the judge and/or jury without any external in?uence or pressure. Justice is not done if media coverage of a court proceeding creates a real risk of prejudice to the fairness of a trial, by contaminating the trier of fact with material which may be inadmissible as evidence. Where there is a public perception of such contamination, then justice will not be seen to be done, even if there was no prejudice in fact.ll Both advocates for and opponents to cameras in the courtroom agree that courtroom ?lming should never be allowed to pose a risk of prejudicial publicity which could contaminate fairness of a trial. Where they disagree is on the questions of whether courtroom ?lming will create a risk of this prejudice, and whether the media will act on its own to prevent such prejudice, if given broader permission to ?lm. U.S. experience reveals that where courtroom ?lming is permitted, the media will be quite willing to ?lm and broadcast a proceeding live, at least in part. This can include pretrial proceedings, if the media outlet believes that they have a suf?cient market. They will do so regardless of the risk to the fairness of a trial. No example better illustrates this than the Simpson prosecution. There US. television and radio networks nationally broadcasted gavel-to-gavel the entirety of the preliminary hearing, including a "suppression hearing" on the admissibility of certain incriminating evidence. The media could not have known in advance whether prosecution evidence challenged in the suppression hearing or other evidence adduced at the preliminary hearing would ultimately be ruled admissible at trial. Yet, the pretrial proceedings were televised non-stop, replete with colour commentary on how the various items of evidence might serve to incriminate or exculpate the accused. 11. See generally, M.D. Lepofsky, Open Justice: the Constitutional Right to Attend and Speak about Criminal Proceedings (Toronto: Butterworths, 1985) at 17-22. CAMERAS IN THE COURTROOM Nor WITHOUT MY CONSENT 345 These broadcasts were not the sole effort of the marginal "tabloid media", engaging in their predictable excesses. Rather, they were provided by all the major U.S. networks. As such, there can be no practical expectation that the media will police its own reportage to insure that there is no prejudice to a fair trial, where cameras in the courtroom are permitted. Publication bans provided for in the Criminal Code and pursuant to the court's inherent power may prevent some of these problems: For example, if there is a publication ban on the evidence tendered at a preliminary hearing or bail hearing, then these proceedings cannot be televised. However, with the media's increasing tendency to attack the constitutionality of these publication bans, one cannot assume that news outlets will be content that all existing publication ban powers remain in force in their present form, especially as they pertain to pretrial publicity.12 One must approach the cameras in the courtroom debate on the basis that the media may well attack the constitutionality of these publication bans, as violating the Charter's free press clause. Even if one assumes the continued availability of all existing publication bans, courtroom filming could nevertheless generate unchecked prejudicial publicity contrary to the requirement of a fair trial both for the prosecution or plaintiff and the accused or defendant. This is so for the following reasons. First, during the trial itself, there is usually no publication ban precluding the media from reporting on the trial proceedings, with the exception of proceedings occurring in the absence of the jury. If courtroom ?lming occurs at trial, then the media could broadcast all or part of the trial while it is ongoing. Jurors, if not sequestered and-"or members oftheir families, could be exposed to this coverage while the trial is in progress. The media?s repeated emphasis on one piece of evidence on the news could well in?uence jurors either directly, or through feedback from their family and friends. It may not be suf?cient for the trial judge to instruct the jury not to watch television at night while the trial is ongoing. Where courtroom ?lming is permitted, a community-wide if not nation-wide sensation can be created, such as in the OJ. Simpson murder case and the William Kennedy-Smith sex assault prosecution. This can make it virtually impossible for the jurors to escape potential media influence. The only altemative would be to sequester the jury. In the U.S., cameras in the courtroom have increased the need for more rigorous jury selection procedures and for sequestration during the trial. This is a dramatic incursion on juror's liberty. Sequestration is a last resort which should be avoided if at all possible, especially in a long trial. Second, if a trial is televised in whole or in part and a successful appeal results in the direction of a new trial, the televising of the ?rst trial can create a real and substantial risk of prejudicial publicity which would undermine the second trial. This is exacerbated 12. See for example, Global Communications and Attorney General for Canada (1984), 10 C.C.C. (3d) 97 (Ont. R. v. Bernardo (5 July 1993), (Ont. Ct. Gen. Div.) [unreported] Kovacs Monaghan et v. Canadian Broadcasting Corp. a! a1. (1994), 110 D.L.R. (4th) 39 (Ont. Ct. Gen. Div.), Chapnick J. 346 OPEN JUSTICE a LA TRANSPARENCE DANS LE SYSTEME by the fact that the media have a long standing practice of re-publicizing the ?rst trial on the eve of the second trial, where the case is one of some notoriety. For example, when New England millionaire, Claus VonBeulow was tried in the early 1980's for attempting to murder his wife in Rhode Island, his trial was televised. When his conviction was reversed on appeal, and a new trial ordered, the American media ?ocked to re-broadcast salient excerpts from the original trial on the eve of the new trial. This could only serve to make it harder to provide a prejudice-free second trial. Finally, the Criminal Code?s publication bans do not apply in civil proceedings. While the vast majority of cases which the media wish to televise are criminal, there would be occasions where the media would seek to ?lm civil cases. In such cases, camera advocates cannot plausibly argue that the existing criminal law governing publication bans will be certain to avert any risk of prejudicial publicity. In response to these concerns, camera advocates would argue that these risks of prejudice are already present, even if there are no cameras in the courtroom. The media is free to report on Claus VonBeulow's first trial. There can be no problem if cameras are added. This line of argument disregards the qualitative difference between television broadcasting of court proceedings on the one hand and conventional media reporting on television, radio, or in newspapers on the other. The public understands that a report by a television, radio or print journalist is just that a report. The public knows that quotes can include misquotes and that reporting involves summarization. In the absence of cameras in the courtroom, there is no media created sense that one is "watching" the proceedings. In contrast, when the public observes courtroom footage, no matter how edited and selective it may be, the viewer has a keen sense that they are seeing what "really happened". This can be an entirely inaccurate but strong perception. The photographic image tends to imprint itself in a more long lasting and emotive way on the viewer's mind than does conventional media coverage. As such, the prejudicial impact from ?lming in court can be more deeply rooted, insidious, and long lasting. C. Impact on the Testimony of Witnesses Camera advocates contend that cameras in the courtroom will have no effect on the testimony of witnesses. They argue that the courtroom is a public place. Evidence must now be given in public, even if cameras are not present. Witnesses now know that news reporters can be present. Every word a witness says 'can be transcribed and reported to the public. Media advocates thereupon ask: "What difference would a camera make?" This line of argument ignores the core aspects of human nature and of the camera. As is described earlier, most television journalists and other public celebrities are quite used to performing in front of a camera. Most witnesses in court are neither public celebrities nor journalists. They have no experience in front of a television camera. Yet CAMERAS IN THE COURTROOM NOT WITHOUT MY CONSENT 347 they would have a great deal Of experience with watching television and knowing of its dramatic impact on mass audiences. It is normal for a layperson who is shown on television in other contexts to receive comments from friends and acquaintances that they have now become "famous", a "star". It is unrealistic to expect that people can readily disabuse themselves of their natural tendencies to pose for the camera. How is it that witnesses in a courtroom could be assumed to be immune to the dramatic impact Of a camera, especially if they object to being ?lmed? As indicated above, participation in the court process, even without cameras, engenders stress and anxiety on all but the most fearless. Superimpose on this delicate, stressful and vulnerable situation the glaring of the television camera, the prospect that one's split second responses may be depicted on millions of television screens, and the possibility of subjection to instant replays if there is a dramatic error, admission or mistake. It is hard to imagine how cameras could not have some impact on the witness, especially if the witness does not consent to being ?lmed. Before one can accept the suggestion that cameras in the courtroom will not have an impact on a witness's demeanour on the stand, one must ignore the natural reaction people have to cameras and must disregard the overwhelming pressures and anxieties which a witness generally experiences when performing in court. What are the implications for the administration Of justice if we permit witnesses to be forced to be ?lmed while on the stand over their objection? Experienced trial lawyers know beyond any doubt that the courtroom is a very volatile place. The outcome of a case is dramatically affected both by the particular wording of a witness's response to a lawyer's probing, and by that witness's demeanour during questioning. The slightest pauses between questions and answers, the momentary changes in facial expressions, and the like can in?uence the judge's or jury's assessment of a witness's credibility. The witness's overall performance while testifying results from the con?uence Of the matrix of pressures and anxieties associated with the testimonial process. The experienced trial lawyer knows that no matter how many times a witness reviews their testimony with counsel in advance of a court proceeding, their performance in the witness box can include signi?cant surprises. Any new pressure introduced into the courtroom's subtly pressured environment can well affect what the witness says in the stand, how he or she says it, and how he or she looks while testifying. This in turn can in?uence how the judge or jury perceives the witness as they give evidence. Every jury is instructed by the presiding judge that to assess a witness's credibility they should take into account the witness's testimonial demeanour. Juries and judges routinely interpret a witness's nervousness or reluctance as a possible sign of dishonesty, or dubious credibility. If these perceptions are induced by the camera rather than by actual dishonesty, the camera serves to distort the fact ?nding process. This undermines the proper administration of justice and the right to a fair trial. The camera's impact on witnesses can vary. Some who testify in front of a camera may become more outgoing or obnoxious, playing to the camera. Others can become more nervous, distracted, reluctant tO testify, and more hesitant while answering counsel's questions. Still others may not be willing to testify at all in front of cameras. 348 OPEN JUSTICE TRANSPARENCE DANS LE SYSTEME JUDICIAIRE. If forced to testify under subpoena, and to be cross-examined as an adverse witness, the quality of a reluctant witness's evidence can suffer signi?cantly, as compared to a willing and cooperative witness. As a legal formality, the subpoena and the adverse witness process are important tools. As a practical matter however the reluctant adverse witness who is forced under subpoena to testify and who must be cross-examined by the counsel calling him or her is a very shaky foundation on which to build a prosecution or defence. Perhaps the ultimate proof that cameras in the courtroom can have an impact on witnesses came from three witnesses who testi?ed for the Crown in the Squires case. Two leading US. criminal defence lawyers and one district attorney each testi?ed that they had developed techniques to exploit television cameras in the courtroom as a tactical device to manipulate witnesses. While cross-examining an opposing witness, counsel would begin by standing in a position out of line with the camera. The witness would thus look at the questioning lawyer, and away from the camera, while testifying. While conducting the cross-examination, the counsel would gradually move. They would eventually situate themselves in a position which is directly in line with the camera. This is achieved by slowly walking over to the jury box while questioning the witness, as the camera was placed in the back of the court, beyond the jury box. When counsel confronts the witness with the culminating question in cross?examination which presents the witness with a lie or inconsistency in their earlier testimony, the witness, while looking at counsel, must also look right into the camera's glaring eye. The witness wilts. To the cross?examining counsel, it does not much matter whether the witness wilted because of the camera's eye, or because of the confrontation in cross-examination. Either way, the witness looked nervous at a critical point in the cross. The impact on the jury would favour a ?nding that the witness was not credible. Trial lawyers are ultimately a result-oriented lot. They use what works. If U.S. trial lawyers have found that cameras in the courtroom can be subtly and carefully used to put increased pressure on an opposing witness, this is so because of the technique's effectiveness. In response to these serious concerns, camera advocates contend that even if it were surmised that cameras in the courtroom have an impact on some witnesses, they will not affect every witness. However, it is not necessary for cameras to adversely affect every witness before the right to a fair trial is threatened. As long as any witness is affected, a material risk is posed to the right to a fair trial. This risk may not be quanti?able in advance, because the outcome of a trial is often unpredictable and fluid up until the last moment. However, once the damage is done, it cannot easily, if ever, be undone. As well, camera advocates will answer that witnesses will get used to the cameras after a while. Their impact, if any, will thus dissipate. Even if it were assumed that some witnesses might get used to the cameras after a time, the camera-induced harm may already have been caused in the interim. As mentioned above, most witnesses testify for relatively brief periods of time. They may have gotten used to the camera, if at all, only after they have given their critical testimony. CAMERAS THE couarnoom NOT WITHOUT MY CONSENT 349 D. Impact on Lawyers Camera proponents assert that cameras in the courtroom will not have any impact on the behaviour of counsel. They reject suggestions that at least some lawyers will play to the cameras. As a fallback position, they suggest in the alternative that counsel who will play to the media would do so whether or not there are cameras. Some lawyers will deny that counsel would play to the cameras, invoking platitudes of professionalism. However, the legal profession includes a heterogeneous population. Within this group are some for whom cameras would provide a welcome new audience, either to feed a public perception that they champion important causes, or as a means for developing clientele. As well, the legal marketplace is quite competitive. A lawyer's exposure to the public through televised court proceedings can give them far greater notoriety than does conventional media coverage. Media advocates also contend that cameras in the courtroom will make lawyers prepare more thoroughly for court. If a lawyer knows that his or her case is going to be televised, they will not wish to look like a fool. This, it is argued, will contribute to more effective lawyering, and thus to the improvement of the administration of justice. If this claim were true, then it contradicts the earlier media contention described above. Either cameras affect lawyers or they do not. If they do not affect lawyers at all, as some media advocates argue, then they cannot be expected to have a salutary impact on counsel's preparation. If, on the other hand, they do have the salutary impact on lawyer preparation, then it must be accepted that the cameras can in?uence lawyers' conduct. If it is conceded that cameras can in?uence lawyers' behaviour, then they can equally have an adverse impact on at least some counsel, inducing them to grandstand for the cameras. Even if one does not wish to delve into the bog of lawyers' egos or economics, it is beyond debate that the introduction of cameras in the courtroom, particularly over the objection of witnesses and parties, will place signi?cant new burdens on counsel. It will be the lawyer's responsibility to be ever-vigilant to detect any prejudicial camera-induced impact on witnesses. It will also be counsel's responsibility to place on the record at trial arguments about the camera's prejudicial impact, if the lawyer happens to notice its transitory effects when they occur. When media parties intervene in a proceeding to demand that cameras be permitted to ?lm the case, it will be the responsibility of the lawyer, opposing cameras, to divert scarce time and resources to argue in opposition to the media requests. Media advocates also suggest that the lawyer will quickly forget that the cameras are present in the courtroom. They will become absorbed in the regular pressures of advocacy. However, this would be irresponsible on the part of the lawyer. Because cameras in the courtroom, over the objection of the parties and witnesses, can generate the kind of prejudicial impacts described in this article, the lawyer is duty-bound in his or her client's interest to be ever alert to the camera's presence and impact. The lawyer cannot afford to forget the camera. 350 OPEN JUSTICE I LA TRANSPARENCE DANS LE SYSTEME JUDICIAIRE CAMERAS IN THE COURTROOM NOT WITHOUT MY CONSENT 351 E. Impact on Jurors Media advocates similarly urge that cameras in the courtroom would not have any adverse impact on jurors. Jurors are sworn to do their job of fairly trying the case on its merits. They will do the same job whether the cameras are present or not, it is contended. They urge that we should have faith in the integrity of Canadian juries. Patriotic invocations of faith in the jury system provide no answer to the problems which cameras in court pose for the jury. To the contrary, cameras in the courtroom can have varied kinds of impact on jurors. Jurors may fear being depicted on television, and being identi?ed in association with the proceeding, particularly in a criminal case. They could consciously or unconsciously fear that the accused's friends or associates might seek to secure retaliation against them, especially if they return a guilty verdict. Media advocates respond that this concern can be solved by a guarantee that they will not film and broadcast the images of jurors. There are two problems with this solution. First. jurors will not necessarily have any confidence that the media will comply with this requirement. They would not know for certain that the media have complied with any such undertaking until the case is completed. Jurors are instructed not to watch television coverage of the case while the trial is ongoing. They would be left in doubt on this important matter when they most critically require real certainty. They would not know whether they had been depicted on television until it is too late. Second, past experience reveals that the media cannot necessarily be trusted to always honour a requirement that they not visually identify jurors. In 1984, the CBC ?lmed a murder trial in Kingston, Ontario pursuant to section 67 of Ontario's Judicature Act. CBC secured the consent of the parties and witnesses and the trial judge's approval. As a precondition, CBC had undertaken that jurors would not be identi?ahly depicted in the ensuing documentary. CBC violated this commitment. The nationally broadcasted documentary clearly included the recognizable images of some jurors.13 If the cameras influence the testimony of any witnesses, as described above, this can in turn seep into the jury's assessment of the case. As well, the cameras can distract the jurors themselves, when they should be looking at the witness who is testifying. Being on camera is undoubtedly a novelty. Being a juror is undoubtedly a novelty. If the two are mixed together, justice may not result. Cameras in the courtroom can have an additional impact on the jury, beyond the foregoing concerns. The fact that the media have decided to televise a particular case, in whole or in part, can signal to jurors that there is something special or extraordinary about the case. Jurors, like the rest of the public, know that most cases are not televised. They know as well that most cases would not be televised even if cameras in the courtroom were permitted more widely than at present. 13. The use of courtroom footage in the documentary on this case is analyzed in J.M. Linton M. Gerace, supra note 10. 352 OPEN JUSTICE 1 LA TRANSPARENCE DANS LE SYSTEME JUDICIAIRE Where cameras are liberally permitted in US. courtrooms, it is rare that cameras are present for the whole proceeding. More frequently, cameras will appear for only part of the case, if the news outlet is getting close to deadline, and has competing demands on its scarce camera crews. They may simply show up long enough to get some good footage and then leave. The cameras could be present for a witness during examination-in-chief, but not for the cross-examination. When cameras are present for only part of the testimony, this could readily signal to one or more jurors that only part of the testimony was really important. Similarly, if the cameras are directed not to ?lm the face of a particular witness (such as a sexual assault complainant), in order to preserve her anonymity, this could signal to the jury that this witness is somehow special or different, and merits special treatment. It would defy human nature to expect that a judge's correcting jury instruction could totally rectify these perceptions. Discussions about jury deliberations are somewhat dif?cult by virtue of the fact that jurors in Canada cannot publicly discuss their deliberative processes.14 Even where cameras have a prejudicial impact on some or all jurors, we will not be able to detect this through any disclosure by the jurors themselves. F. Impact on the Judge Proponents of cameras in the courtroom also contend that cameras will not have any impact on the presiding judge. Camera advocates play upon our con?dence in judges' professionalism, and thus position camera opponents in the unsavoury role of doubting the abilities of judges. Yet, there is a sound basis for being concerned about the potential impact of cameras in the courtroom on judges. At the very least, cameras in the courtroom will place signi?cant added burdens on the judge. The judge will have to police the cameras, to ensure compliance with all rules, and to try to prevent any prejudicial camera-induced impact. Unfortunately, the judge is not necessarily in a good position to effectively discharge these duties. The judge may not notice that the camera is distracting a juror, if the judge's eyes are ?xed on a witness during important testimony. Similarly, the trial judge may not notice one counsel seeking to take advantage of the presence of the camera, if the judge's eyes are on the jury. If his or her eyes are cast downward while writing notes during testimony, the judge will not be in a position to police anything. Judges are experienced with administering justice in public. However, they are no more experienced than the average lay witness in being broadcast to the television screens of untold thousands or millions of viewers. Serving as a trial judge is far from 14. It is of interest that it was held in Ladane v. Lerner, 521 N.Y.S. 2d 760 (1987), that ?lming oral argument can have a negative impact on the jury. CAMERAS IN THE COURTROOM NOT WITHOUT MY CONSENT 353 simple and stress-free, especially in a dif?cult and controversial case, such as those attracting intense media attention. Unless trial judges are believed to be devoid of the normal human reactions to television cameras, then it is only reasonable to conclude that cameras can affect at least some judges' conduct to some extent. G. Impact on Crime Victims Camera advocates also reject any suggestion that cameras in the courtroom will have an adverse effect on crime victims. They argue that any problems experienced by crime victims in the criminal justice system already exist and that cameras will not make things any worse. We must look closely at the circumstances now confronting crime victims. Our criminal justice system depends heavily on crime victims' willingness to come forward to report offences and to testify in court. Absent this, the police will experience greater dif?culty acquiring criminal evidence. Without the victims? cooperation and effective testimony, the Crown's capacity to meet the very high burden of proof in a criminal case is signi?cantly impaired. Without television cameras in the courtroom, crime victims are now very reluctant to report their victimization, and to testify in court. Thus, much crime goes unreported and/or unprosecuted. Many cn?minal offenders go unconvicted and unpunished. As a result, both the public and individual victims suffer. Those victims who do opt to report their victimization and testify. often now ?nd their involvement in the justice system to be highly stressful and traumatic. Their participation in the criminal justice system is frequently described as a "second victimization". It reactivates the trauma associated with their original victimization at the hands of the offender. At the core of this second victimization is the victim's sense of loss of control over their circumstances, akin to the loss of control that they first experience when the crime was perpetrated against them. If cameras are admitted into Canadian courtrooms over the objection of court participants such as victims, this can only worsen the troubling situation now confronting crime victims in our justice system. It will make victims more reluctant to report their victimization. Why would they want to subject themselves to the brutality of cross- examination on television? Why would they want to have their image splashed all over the television, so that they can be immediately recognized on the streets as a crime victim? The status of "victim" already carries with it a great deal of stigma and pejorative stereotype. Why would they want to make it easier for the accused's associates to record their picture on a This would enable them to recognize the victim and to take retaliatory action against them, even if those associates are not present in the courtroom during the victim's testimony. Even if the victim is willing to report their victimization and to testify despite the foregoing concerns, their experience in the courtroom can only be made more stressful by 354 OPEN JUSTICE LA TRANSPARENCE DANS LE SYSTEME JUDICIAIRE the presence of cameras. Subjection to harsh cross-examination is an unfortunate but necessary feature of our criminal justice system. The instantaneous transmission of this ordeal to a television audience at home need not be. The "second victimization" trauma of participating in the court process will tend to be exacerbated by the repeated instant replays on newscasts of dramatic courtroom scenes, such as a victim breaking down in tears in the face of harsh cross- examination. It is reasonable to expect that this will occur. The media tend to select the most dramatic courtroom scenes and to replay them again and again. We have all seen television replays of the testimony of the Mount Cashel orphanage victims, describing in detail their sexual violation at the hands of those who were charged with their care. These were aired across Canada, not only during the actual hearing itself, but as well for years afterwards during documentaries on child sexual abuse. For a victim who has had months or years a?er the trial to put the twin traumas of initial victimization and second victimization behind him or her, recurring instant replays on television can revive and reopen old wounds, in a fashion that the testimony at trial could not. H. Public Perception of Justice To sum up the preceding arguments, media advocates contend that cameras in the courtroom absent parties' or witnesses' consent will not cause any actual prejudice to the right to a fair trial or the proper administration of justice. As such, they submit that the discussion need go no further. Cameras should simply be permitted. This approach disregards the second of the twin core requirements of the proper administration of justice. It is critical for justice not only to be done in fact, but as well, for justice to be seen to be done. It is thus critical to ask not only whether cameras in the courtroom will actually cause injustices, though, in this author's opinion, they will. It is necessary to inquire further. We must ask whether cameras in the courtroom, particularly over the objection of court participants, will create a public perception that justice is not being done. It is trite that public con?dence in the administration of justice is critical to the effective operation of the justice system. Cameras in the courtroom can create a public perception of injustice, especially if they are there over the objection of court participants. The public's con?dence in the administration of justice can erode if there is a public perception that witnesses in a televised case were made more reluctant to testify because of cameras, or that lawyers played to the cameras to their client?s detriment. Similarly, public con?dence in the judicial process can be undermined if there is the perception that the trial judge was responding to the presence of cameras in his or her rulings, or that the jury was distracted, intimidated or otherwise in?uenced by cameras. I. Impact on the Administration of Justice and Effective Law Enforcement CAMERAS in THE couaraoom nor WITHOUT MY CONSENT 355 Camera advocates traditionally focus on the impact of courtroom ?lming on the accused's right to a fair trial, arguing that there is no adverse effect. However, in addition to the accused's fair trial interests, the public has fair trial entitlements at stake as well. This is usually articulated from the prosecution's perspective. It is characterized as the public?s interest in the proper administration of justice and in effective law enforcement. If cameras in the courtroom present the problems described above, they threaten not only the accused's fair trial rights but the public's fair trial rights as well. To the extent that Crown witnesses are not able to give effective testimony, or that victims and/or witnesses are reluctant to report crime and testify, or that jurors are made more reluctant to convict the guilty for fear of reprisals, the proper administration of justice is thwarted and offenders may go free. This undermines effective law enforcement. J. Invasion of Privacy Camera proponents argue that the introduction of cameras in the courtroom over the objection of court participants, will not cause any invasion of privacy for court participants. They argue that in a public courtroom, there is no such thing as "privacy". The courtroom is a public place, pure and simple. Once an individual enters this public place, they are susceptible to being photographed for broadcast, whether they like it or not. Such a view fails to acknowledge the actual experience of individuals caught up in court proceedings, and the expanding recognition of the importance of privacy in Canadian law and society generally.? As a practical matter, privacy is not an all or nothing phenomenon. A person is not automatically stripped of all privacy when he or she walks in public generally, or enters a courtroom in particular. Privacy is an important incident of personal dignity. It can exist in varying degrees, whether or not one is in public. When a person enters a public courtroom, they know that they can be recognized by anyone in the courtroom, and that every word that is spoken during testimony is transcribed for the of?cial record. They do not thereby automatically submit to becoming rendered instantly visually recognizable by any member of the public in their community, across Canada, or internationally. Yet, a television camera can suddenly create this mass recognizability. The camera thereby invades ones privacy in a fashion which conventional media coverage does not, even though conventional coverage can include exhaustive reports on the proceedings. A television camera can intrude upon a witness while in the witness box in a way that a spectator in the courtroom cannot. When a Spectator sits in the body of the court, they can only observe the witness from a discrete distance. A witness would certainly 15. For some indications of the Supreme Court's increasing acknowledgment of privacy in general, see for example. Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Duane, [1990] S.C.R. 30; R. v. Wang, [1990] 3 S.C.R. 36. 356 OPEN JUSTICE LA TRANSPARENCE DANS LE SYSTEME experience a substantial invasion of their personal space, if the spectator walked up to the box while they were giving evidence, and planted themselves two feet away from the witness. As is mentioned above. a television camera can zoom in on the witness as closely as this. This constitutes a unique kind of privacy invasion. U.S. courts and Canadian media take the absolute, unwavering position that once a person enters a public venue such as a courtroom, their privacy is wrenched from them in its totality. The Supreme Court of Canada has enunciated a different perspective on privacy. Re?ecting Canada's more sophisticated, delicately balanced conception of open justice, the Supreme Court of Canada has acknowledged that in a proceeding held in a public courtroom, court participants can still retain a measure of their personal privacy. It has recognized that privacy is a value of superordinate importance that can override the freedom of expression in relation to court reporting, at least in some circumstances.16 This derives from the court's acknowledgment that open justice principles can be superseded by social interests of superordinate importance such as protection of the innocent.[7 It is constitutionally permissible for the court to ban the media from reporting on the name of a sexual assault complainant, even though the entire sex assault trial is carried on in public, and even though every other aspect of the case can be reported.?3 Consistent with Canada's recognition that participants in a public court proceeding can retain a residual privacy interest, cameras in the courtroom can invade this residue of privacy. K. Access to Justice In support of courtroom ?lming, it is also argued that cameras in the courtroom, even over the objection of court participants, would not undermine the public's important right of access to justice. The justice system is accessible to all, whether or not cameras are present, they argue. This contention suffers from the same ?aws as the preceding ones supporting non-consensual courtroom filming. Cameras in the courtroom, if permitted over the objection of court participants, do pose a serious and substantial threat to the right of every member of the public to access to justice. By "access to justice" is meant the right of every individual to avail themselves of the justice system, to seek redress of their grievances, whether criminal, civil, matrimonial, or otherwise. We have a justice system so that people can have open to them a civilized and orderly method under law to resolve disputes. To use this process, individuals must have a practical means of access to the justice system. If there are physical barriers to such access, such as a picket line,19 or economic impediments to access, such as prohibitive costs, then the right of access to justice is illusory. 16. See Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; The court there, did not ?nd the impugned legislation to be valid, however it acknowledged that more narrowly tailored legislation, targeted at promoting individual privacy, could be justi?ed under Charter section 1. l7. Attorney General of Nova Scotia v. Macintyre, [1982] S.C.R. 175 at 186-187, Dickson J. 18. See Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122. 19. For example see B.C.G.E.U. v. British Columbia (Attorney General), [1938] 2 S.C.R. 214. CAMERAS IN THE couarnoom Nor WITHOUT MY CONSENT 357 How could cameras in the courtroom undermine the right of access to justice? As was the speci?c case of crime victims discussed above, individuals who require access to justice for a redress of their civil grievances may similarly ?nd that the possibility of being televised in court over their objection deters them from using the justice system. Our justice system is already severely criticized as being practically inaccessible to many. It would become even more inaccessible as a result of cameras in the courtroom over the objection of court participants. This is especially the case for vulnerable groups such as battered wives who are in special need of the courts as a means for protecting themselves from their violent husbands. L. Improved Technology New Miniaturized Television Cameras Camera advocates will concede that in the years before the 1970's, television cameras may have posed problems for the administration of justice when they were admitted to court proceedings. They contend that the original objections to courtroom ?lming were due to the fact that before the mid 1970?s, television cameras used to be large, loud, and supported by bright lighting. Camera advocates admit that those older cameras were disruptive and distracting in court proceedings. They urge that newer video cameras are now much smaller and silent. They can function in normal illumination without requiring additional bright lights. Thus, they argue that cameras will no longer be disruptive to court proceedings. This argument begs the critical question. The position presented in this article is not premised on any assumption that cameras are noisy, physically disruptive, or demanding of special lighting. It is assumed throughout that silent, discreetly-placed cameras could be used to ?lm in a courtroom without special lighting. This is subject to two factors. First, the camera is not invisible, unless it is hidden behind courtroom walls something which most Canadian courtrooms cannot now accommodate. Second, microphones must be placed in front of the lawyers, the witness box, and the judge. This may not pose a difficulty in some courthouses. Some Canadian courtrooms are already equipped with microphones to aid in the production of the of?cial record of the proceeding for appellate purposes. The adverse impacts of courtroom ?lming, delineated in this article, arise solely from the fact that the proceeding is being ?lmed in whole or in part without the consent of all court participants. The judge, jury, witnesses, parties and lawyers, as well as prospective witnesses who might come forward to testify, will all be aware that the proceeding is being ?lmed, even if the camera is silent and unobtrusively located and indeed even if the camera is secreted in the courtroom wall out of sight. It is this fact, and not fears associated with large glaring lights or noisy videotape reels, which trigger the adverse effects on court participants. M. Learning From the American Experience 358 OPEN JUSTICE I LA TRANSPARENCE DANS LE SYSTEME JUDICIAIRE Proponents of cameras in the courtroom argue that the American experience with courtroom ?lming has proven this practice to be bene?cial and problem-free. The Americans, it is argued, have already examined all the key issues in this debate. They have undertaken rigorous experimentation with cameras in the courtroom, and have proven courtroom ?lming to be effective and desirable. The American experience is said to show that the more one has experienced with cameras in the courtroom, the more quickly the old, undocumented fears evaporate. Each element of this contention is erroneous. It is true that some US. states undertook trial periods with cameras in the courtroom. However, this was only done in a minority of the States that now permit cameras. Moreover, of the so-ealled "experiments" conducted in the late 1970's and early 1980's, none were conducted in a scienti?cally-valid way.20 Florida, one of the ?rst to convene such an experiment, openly admitted that it had declined to use a scienti?c method of evaluation.2 The results of these "experiments" do not provide a proper basis for making policy or legal decisions. It would be erroneous to suggest that the few States which undertook trial periods with television cameras in the 1970's and early 1980's, proved courtroom ?lming to be problem free. These inquiries tended to yield evidence showing that cameras in the courtroom could pose problems for the administration of justice, at least to some extent. Some witnesses, jurors and lawyers reported dif?culties caused by television ?lming in the courtroom. It was decided by the States in question to go ahead with permanent permission for courtroom ?lming despite these adverse effects.? A most cursory examination of current US experience with cameras in court triggers serious concerns about this practice?s propriety. Women who have been victimized by sexual assault would likely be more reluctant to report their victimization to the police after the nation-wide televising of William Kennedy-Smith's sex assault trial. Even if OJ. Simpson were to 20. G. Gerbner, "Trial by Television: Are We at the Point of No Return?" (1980) 63 Judicature 416; G. Gerbner, ?The Risk of Playing to the T.V. Cameras", (1994) 137 New Jersey Law Journal 22; D. Slater V.P. Hans, "Methodological Issues in the Evaluation of Experiments with Cameras in the Courts" (1982) 30 Communication Quarterly 376; MC. Gerace, "Televised Trials: The Case Against Implementation" (1984) 3 Advocates' Society Journal 7; R. v. Squires, supra note 2 at 334-341. 21. See Re Petition of Post-Newsweek. Stations, Florida, Inc. for Change in Code of Judicial Conduct, supra note 1. 22. Re Petition of Post-Newsweek Stations, Florida, Inc. ibid. at 767-769; Report of the Minnesota Advisory Committee on Cameras in the Courtroom to the Supreme Court, vol. II (1982); The Chief Justices' Special Committee on the Courts and the Media. The State of California, Sacramento (1981); The Advisory Committee to Oversee the Experimental Use of Cameras and Recording Equipment in the Courtroom: Report to the Supreme Judicial Court Commonwealth of Mass. (1982); Report to the Supreme Court Committee to Monitor and Evaluate the Use of Audio and Visual Equipment in the Courtroom. The State of Wisconsin (1979); In Rre Society of Professional Journalists, (I986) 43 Utah Adv. Rep. 26 (Supreme Court of Utah); In Re Modification of Canon 3A (7) of the Minnesota Code of Judicial Conduct, 441 N.W. 2d 452 (Minn. Sup.Ct. 1989). See also DJ. Henry, "Electronic Public Access to Court: A Proposal for its Implementation Today" in P. Anisman AM. Linden, eds, The Media, The Courts and The Charter, (Toronto: Carswell, 1986) at 452-457. CAMERAS IN THE counraoom nor WITHOUT MY CONSENT 359 secure a fair trial after the televised obsession with his case, any verdict would forever abide under a cloud of suspicion of potential camera-induced prejudice. Before deciding to admit cameras into Canadian courtrooms even over court participants' objection based on the American experience, regard should be had to the fact that a number of US. states would themselves not permit courtroom ?lming without participant or party consents. It is also important to consider critical legal differences between the American judicial system and Canada's. Many if not most state American judges, district attorneys and in some cases public defenders are elected to of?ce. State rules governing court ?lming are not made by state legislatures. Usually they are promulgated by the courts themselves. Elected state judges, who must seek re-election, could reasonably be seen to have a very strong personal interest in admitting television cameras into their courtrooms, just as Canadian parliamentarians had an interest in allowing television cameras in the House of Commons and in provincial legislatures. Our judges are not elected. They administer justice in a somewhat different milieu than their American state counterparts. The American examination of issues surrounding cameras in the courtroom, before their permanent introduction, was limited in scope. It failed to address critical issues which are fundamental to Canada?s consideration of this issue. In the United States, the core question which was examined was the admittedly crucial issue of whether cameras in the courtroom would threaten the fairness of trials by, for example, affecting the quality of testimony of witnesses, the behaviour of lawyers, or the deliberations of jurors. Yet, little if any attention was directed in the US. debate to the question whether cameras in the courtroom would deter witnesses and victims from coming forward to testify, or from reporting crimes to the police. The prospect that courtroom ?lming might make the victim?s experience with the justice system even more traumatic was not weighed in the balance. At most only minimal consideration was paid to the question whether cameras in the courtroom over the participants' objection would deter potential plaintiffs from using the justice system for civil redress, undermining the right of access to justice. The question of whether cameras in the courtroom threatened the inherent right to privacy of court participants was similarly disregarded or downplayed. These are all critical policy considerations. By failing to consider them, the balancing process undertaken by US. states in favour of admitting cameras was a lop- sided one, which biased in favour of the media. It was a process which Canada should not replicate. N. Alternative Methods to Prevent Adverse Affects If media advocates are confronted with the litany of adverse affects that courtroom ?lming can have on court participants, particularly where they are forced to be ?lmed over their objection, they fall back on a second line of defence. They may concede 36o OPEN JUSTICE I LA TRANSPARENCE DANS LE SYSTEME that courtroom ?lming may on occasion cause some of the problems described above. However, they urge that these problems can be controlled by appropriate court rules, short of a requirement that all participants consent before the camera can be brought in. Yet, no alternatives will work as effectively. The only measure which can truly prevent these problems is a rule requiring that courtroom ?lming will not be allowed except with the consent of court participants. This is demonstrated by the following review of the most commonly proposed alternative ways for controlling courtroom ?lming's adverse effects, short of a strong consent requirement: CAMERAS THE counraoom NOT WITHOUT MY CONSENT 361 1. Rules Restricting Numbers and Locations of Cameras Media advocates point out that in most if not all American states that allow cameras in the courtroom, detailed rules have been devised to regulate the process. They limit the number and location of cameras that can be permitted in the courtroom at any one time. They require media outlets to share the feed from the limited number of cameras that are permitted in the courtroom. They preclude the cameras from being moved while proceedings are in progress. These rules can undoubtedly help ensure orderliness in the courtroom. However, they do not address the major problems with courtroom ?lming discussed above. Moreover, while these rules may look good on paper, there can be no assurance that the media will consistently obey them. Where a breach of these rules occurs, such as a camera person moving a camera around the courtroom during testimony, the trial judge confronts a catch-22. He or she can stop the proceedings and order the camera person to stop disrupting the proceedings, thereby causing a further disruption through the interruption of testimony. Alternatively, the judge can let the camera person continue to breach the rules. While this avoids an interruption of the proceeding's flow, a camera-induced distraction in the courtroom is tolerated. 2. Availability of Rights to Appeal Media advocates have argued that we should not be concerned about the hypothetical possibility that cameras in the courtroom, over the objection of court participants, might cause prejudice in some cases. If there is any prejudice to a party, it is emphasized that they always have a right of appeal from an adverse ?nding on the merits oftheir case. This is unacceptable as a solution to the problems posed by courtroom ?lming. It unfairly leaves the onus on an objecting party to ?nance and ?ght an appeal when the media has caused prejudice. At its core, the argument provides that we, the media, may cause the prejudice, but you, the victim of this prejudice, must thereafter take the steps to rectify it. As well, rights of appeal may not always be sufficient to redress camera-induced problems. The adverse effects that cameras can have on a witness, juror, lawyer, or judge may be transitory, and may not be documented in the court record. There may be no foundation in the transcript upon which an appeal can be launched. 362 OPEN JUSTICE I LA TRANSPARENCE DANS LE JUDICIAIRE 3. Bleep Out Names and Blot Out Images of Sensitive Witnesses Deserving Anonymity Media advocates also propose that if the witness can persuade the court that they should not be filmed, there are electronic means for ensuring that they will not be visually identi?ed. Their names can be bleeped out from the audio broadcast. The camera can be pointed away from the witness?s face when they testify. Alternatively, a blue dot can be placed over their face while testifying to preclude anyone from recognizing them, as was done in the case of the sexual assault complainant in the William Kennedy Smith trial. There are two problems with this approach. First, despite the media's best efforts, these methods may not prevent the name from getting out. For example, when such an arrangement was attempted in one nationally-televised sex assault case near Boston, there was a failure to bleep out the name of a sexual assault complainant. As a result, the name got out onto the airwaves. In that highly-publicized case, the sex assault victim had to eventually be relocated to another state. Similarly, even without such an error, friends and associates may nevertheless recognize the protected witness's voice, or otherwise piece together their identity from the onslaught of details that will become available through the broadcast of the proceedings. Second, even if these dif?culties do not occur, sexual assault complainants and others who might be entitled to have their identities bleeped out may nevertheless feel incredible pressure to consent to being identi?ed, even though they don't want to be. This is what eventually happened to the complainant in the William Kennedy-Smith sexual assault prosecution. During the trial, her face was covered by a blue dot. However, after the accused was acquitted in a case which was largely a credibility contest, she eventually succumbed to enormous pressure to identify herself publicly. This was because the "blue- dot" made it look like she had something to hide, and that she was deserving of less credibility in the eyes of the public. It does not promote the proper administration of justice, or motivate already reluctant sexual assault victims to lay charges and testify, if our justice system were to confront vulnerable persons with the cruel choice of either surrendering their anonymity on the one hand, or appearing to have something to hide from the cameras, on the other. 4. Give Court Discretion to Disallow Cameras where Circumstances Proved to Warrant it Camera advocates also suggest that the court should not automatically preclude courtroom ?lming when there is an absence of consent from the parties or witnesses. They fear that people will rarely if ever consent, and that in the result, it will be very dif?cult to ever get cameras into courtrooms. They would prefer it if the media had the right to film proceedings, unless an objecting party or witness could af?rmatively persuade the court in the case's speci?c circumstances that it was justi?able to preclude ?lming of them. CAMERAS THE COURTROOM NOT WITHOUT MY CONSENT 363 This "judicial discretion" alternative to a consent requirement does not suf?ciently address the problems posed by courtroom ?lming. The fact that witnesses and/or parties will often not consent to ?lming is indicative of the fact that cameras in the courtroom can pose a serious problem for the justice system. As well, it is entirely unfair to place upon a party or witness the burden to prove why they should not be ?lmed. The witness or party may not wish to publicly disclose their potential vulnerabilities. A judicial discretion rule unfairly forces a party to disclose to the opposing party potential weaknesses in their case. If it is the accused who does not wish to be ?lmed while testifying, this approach would require the defence to disclose to the prosecution at an early stage that the accused intends to testify, as part of a motion to exclude the cameras for cause. Ordinarily, the defence does not have to. reveal in advance to the Crown that they intend to call the accused as a witness, much less that the accused has some fears regarding the giving of evidence. The defence may well feel that such early disclosure could compromise their defence strategy. The accused may be placed in the unacceptable position of either enduring the cameras, not testifying at all, or making early disclosure Of the defence's intention to call the accused. Neither may be an acceptable Option. Such a judicial discretion rule also places the trial judge in an untenable position. How is the tn'al judge to know in advance whether the witness's Objection to being ?lmed is valid? Would the parties be expected to call expert testimony documenting the witness's sense of vulnerability to the cameras? Would media counsel be permitted to cross-examine the objecting party to test the strength of their reasons for not wanting to be ?lmed before the trial on the merits can begin? If the trial judge is to rule on the claim for exclusion of the cameras on more than mere speculation or surmise, he or she would have to conduct a voir dire or mini-trial on the claim Of an exemption from ?lming. The claim's outcome would likely depend primarily on the trial judge's appraisal of the witness's or party's credibility, perhaps bolstered by expert evidence. It would be inappropriate to call upon the judge to prejudge a witness's credibility before they reach the point in the case where they testify on the case's merits. Under a judicial discretion rule, media interventions in the trial on collateral camera issues could disrupt and delay the proceedings on the merits. Depending on the applicable procedural law, media interventions under a judicial discretion rule could also generate interim appeal proceedings. These could further divert and detract from the resolution Of the dispute between the parties which brought the case to court in the ?rst place. 364 open JUSTICE a LA raansmaence DANS LE SYSTEME 5. Allow Courtroom Filming on Appeals Finally, media advocates argue that if there are problems with ?lming in trials without the consent of witnesses and parties, then cameras should at least be allowed to ?lm appellate proceedings without requiring consent. Yet there is still room for a consent rule when dealing with media requests to ?lm during an appeal. Consent will be easier to get in the Court of Appeal than at trial. There are no witnesses whose consent would be needed. Some lawyers may not be reluctant to being ?lmed in the appellate arena. Thus, a consent requirement will not be as burdensome on the media in the appellate context. In the face of this more limited request for courtroom ?lming, it is still necessary to consider whether lawyers and clients should be forced to submit themselves to courtroom ?lming in appellate proceedings where they or their clients object to cameras. Especially for inexperienced counsel, this could pose a real dif?culty. If they fear that cameras will adversely affect their performance in the appellate courtroom, they are professionally obliged to either object to the cameras' presence, or withdraw from the case. This in turn could interfere with the clients' right to have the services of the counsel of their choice. A debate over the wisdom of ?lming in appellate proceedings in the absence of consent is a largely irrelevant academic exercise. The media will rarely be interested in ?lming appellate proceedings. What they want to ?lm are trials, especially dramatic criminal trials which involve public celebrities, violence, sex, or some combination of these. Appellate court proceedings are dry, boring, and unlikely to hold the attention of most television audiences for any amount of time. HI. THE ASSERTED BENEFITS OF CAMERAS IN THE COURTROOM A. Preliminary Considerations How Courtroom Footage Would be Used Even if cameras in the courtroom presented none of the preceding problems, the question would arise whether courtroom ?lming offers any signi?cant bene?ts to the public. The various benefits which media advocates attribute to cameras in the courtroom are considered here. However, before examining each claimed bene?t individually, it is important as a basis for the discussion to delineate exactly how the media would use ?lm shot in the courtroom. We are in a good position to evaluate this, because we can see how the U.S. media has made use of courtroom footage over the past 15 years. Often, media advocates suggest that the public would better learn about a case if it were ?lmed and broadcast gavel-to-gavel. This, they argue, would be far superior to the audience merely receiving brief conventional media reports on the broadcast or print news. CAMERAS IN THE COURTROOM NOT wrrnour MY CONSENT 365 However, it would be erroneous to assess the potential bene?ts of cameras in the courtroom by focusing primarily on the advantages which might ?ow from a televising of cases wall-to-wall. This is because gavel-to-gavel coverage of a court proceeding is highly exceptional. It rarely happens in the United States where courtroom ?lming is more liberally permitted, and would rarely happen in Canada. This is so for several reasons. First, courtroom ?lming is costly. Second, it disrupts or bumps regularly-scheduled programming. Third, most cases would not draw a suf?ciently massive audience to justify the expenditure of media resources and the allocation of scarce air time. Only the most visible and sensational cases would secure enough ongoing audience attention to merit displacing the soaps. At present the Canadian media does not report to the public on the vast majority of court proceedings. This is so even though almost all cases are tried in open court and are subject to no publication bans. The small percentage of cases on which the media now reports is not representative of the overall judicial business which Canadian courts routinely transact. The media covers those cases that reporters and editors deem to be "newsworthy". Those are the proceedings which are the most immediate, important and interesting from the audience?s perspective. These involve a combination of violent crime, sex, controversy and/or the alleged conduct of public ?gures. When the media now opts to report on a case by conventional media coverage, reporters do not endeavour to fully cover the proceeding's entirety. Instead, they may only attend court for part of the case. They select for coverage those portions of the case which they judge to meet the foregoing newsworthiness criteria. News reporting focuses on a case's most conflictual or controversial events. If the media could ?lm in Canadian courts more readily than at present, they would still choose the same selective sample of cases for coverage as they now do. They would only report on the same aspects of a case as they now do. The only difference would be that coverage would include some courtroom footage to augment the reporter's narrative reportage. Usually, brief 10 to 20 second clips from a day's proceedings would be inserted, with a reporter's voice-over explaining the context. These sound-bites will tend to portray a case's most visually dramatic moments. They can be heavily edited. The answer to a question in chief can be depicted without the question to which it responds, or any of the cross-examination on point that might elucidate the 'answer. In some instances, the voice- over might block out the witness's words. Thus, the proper question to consider is whether this use of selective footage will provide any signi?cant bene?ts to the public, as contrasted with current conventional media coverage of courts. Each of the media's assertions of bene?ts ?owing from cameras in the courtroom must be appraised in light of the fact that courtroom footage will tend to be used in this way, and not generally through gavel-to-gavel simulcasting. 366 OPEN JUSTICE a LA TRANSPARENCE DANS LE sverMs JUDICIAIRE B. The Public's Right to Know At the core of the traditional argument favouring cameras in the courtroom is the media's contention that to televise court proceedings would ful?ll the public's "right to know". This argument suffers from four major ?aws. First, there is in law no such thing as a public's "right to know". While the Supreme Court has once adverted to such a "right to know",23 it is doubtful that this "right" has any serious juridical status. Journalists typically use the rhetoric of a "public right to know" as a way of justifying their demands to compel access to information which they consider newsworthy. However, when a reporter on the trail of a story tells a potential news source that the "public has a right to know" about a desired piece of information, it is likely more accurate to state that in the reporter's judgment the public has a desire to know, or perhaps that the reporter has a desire to ?nd out and tell. The public does not have a general legal right to force a potential news source to pass on newsworthy information. It has been judicially recognized that section 2(b) guarantees both the right to disseminate information and the right to receive it. Section 2(b) gives rights to both speakers and listeners.24 However, properly understood, this only pertains to the right of willing speakers to transmit information to willing listeners, and in turn, for willing listeners to receive information from a willing speaker. It should not be in?ated or over-extended, so as to give a listening audience, such as the public, a right to compel access to information from a person or organization that does not wish the information released. Charter section 2(b) is not a constitutional freedom of information act. Second, even if the public had a "right to know" of some kind, it is doubtful that a reporter can unilaterally enforce this right on the public's behalf. The media are not appointed by the public as their representative and have no legal authority to purport to exercise the public's rights. The danger of using this "right to know" rhetoric is that it can lead one to transform a claim of public interest into an assertedly higher claim of public right or, indeed, of supreme constitutional right.? Third, had the law provided for a public "right to know", it would be fully satis?ed by the traditional requirement of open justice, without needing the addition of cameras in the courtroom. When a courtroom is open to public attendants, including attendants by representatives of the media, and when those attending court proceedings are at liberty to fully report on the proceedings to others, then the public has ample opportunity to learn, and the media to inform about the case. 23. Supra note 16. 24. See Ford v. Quebec (Attorney General}, [1988] 2 S.C.R. 712. 25. See MD. "The Role of "The Press' in Freedom of the Press", (1992-93) 3 Media Communications Law Review 89. CAMERAS THE COURTROOM NOT WITHOUT MY CONSENT 367 Fourth, even if courtroom ?lming were more liberally permitted in Canada, this would not lead to any greater ful?llment of a public supposed right to know because of the limited and selective sampling of courtroom footage that would be shown to the public. The public has no way to force the media to televise portions of proceedings which editors and news producers opt not to put on the air, due to limited resources, competitiveness, or other editorial or commercial considerations. C. Open Justice and Access to Court Camera advocates rely heavily on the traditional principle of open justice. It is argued that for our justice system truly to be open, it is necessary that there be cameras in the court room. This article accepts as axiomatic that open justice is a core value of the Canadian justice system.26 It does not follow from this that there must be cameras in court. Traditionally, "open justice" includes two requirements. First, Canadian judicial proceedings should not be conducted in secret closed sessions. Courtroom doors must be open for the public to attend. Second, those who attend court proceedings should be free to report to others on what they have observed, without any judicial or other government censorship of their message.27 These time-tested principles are founded on the need for public con?dence in the judicial process, the need for judicial accountability, and the justi?ed fear that where court proceedings are conducted in secret there is a serious risk of abuse of power by judges and other public of?cials akin to those experienced in the old Court of Star Chamber. They derive from the long-standing maxim that justice must not only be done, but must also be seen to be done. According to camera advocates, it is logically inevitable that if courtrooms are to be open, they should be televised. After all, televising court proceedings advances the goals of openness. However, this conclusion does not so easily follow. To understand this, it is necessary to conceptualize the notion of openness of our justice system on a spectrum. At one extreme of this spectrum is the closed court proceeding, with a broad publication ban that prevents anyone outside the courtroom from learning about events transpiring inside. This is the "Star Chamber" extreme. Moving along the spectrum to the middle, one finds a courtroom which is open to public attendants, and which is available for conventional media coverage. This middle ground embodies the traditional requirement of open justice. Moving to the opposite extreme we ?nd a court proceeding which is not only open to public attendance with unfettered coverage by conventional media, but which is also broadcast to the world by television cameras, in whole or in part. 26. See M.D. chofsky, Open Justice, the Constitutional Right to Attend and Speak about Criminal Praceedings,supra note 11, and MD. Lepofsky, Open Justice 1990. "The Constitutional Right to Attend and Report on Court Proceedings in Canada", in D. Schneiderman, ed., Freedom of Expression and the Charter, (Toronto: Carswell, 1991) at 3-84. 27. Ibid. at 64. 368 OPEN JUSTICE a' LA TRANSPARENCE DANS LE SYSTEME IUDICIAIRE Closed, secret proceedings do not secure public con?dence. They do not promote judicial accountability. They run the real risk of abuse of power by judges and other public officials. To remedy this, we open the courtroom doors and free up the journalist's reportage. Once we have achieved the traditional middle ground of open justice, the risks associated with Star Chamber justice have been redressed. It is thus erroneous to suggest that one need go further along the spectrum, to the extreme of televised court proceedings, before the concerns associated with closed and secret justice can be addressed. They already have been dealt with through traditional open justice practices, without needing to televise cases. The argument of camera advocates is based on an unarticulated premise that unless court proceedings are televised, they are not in fact open. If so, then this would lead to the necessary conclusion that Canada's justice system is now not in truth open, despite its long standing commitment to open and public justice. This commitment is forcefully reflected in statutory and constitutional provisions as well as in innumerable oft-cited and lofty judicial pronouncements. If we adopt the analysis propounded by camera proponents, we would not end up with a substantially more open justice system than at present in any event. As stated above, they would have it that a courtroom is not truly Open unless it is televised. Yet, as detailed earlier in this article, if cameras were permitted in Canada's courtrooms on liberal terms, the media would not seek to ?lm most judicial proceedings. Of those that they ?lm, very little of the proceedings would be seen on the air. Hence, by their own analysis, even with broad permission to ?lm, our courts would remain largely closed and secret, since they would remain largely untelevised. It is highly doubtful that the 19th century proponents of open justice on whom camera advocates rely, such as Jeremy Benthamfm ever had in mind the mass broadcasting of court proceedings to audiences of millions, when they spoke so eloquently of the importance of public court proceedings and the evils of secret justice. Surely, proponents such as Bentham would not have endorsed as the ultimate achievement of open justice the trial of an accused person in a roman style coliseum before a live audience of tens of thousands of spectators. To them, a trial in Toronto's Skydome, packed to capacity, would have been out of the question. It would amount to a public spectacle, discordant with principles of fundamental justice. Yet, camera advocates seek in effect to achieve what they would presumably characterize as the electronic equivalent. They argue that cameras in the courtroom enable the home viewer to have the same experience as if they were observing the trial in the courtroom itself. If a trial in the Skydome would thwart the fundamental principles of justice of which open justice is a core value, then its asserted electronic equivalent could bear no closer link to open justice. 28. See J. Bentham, Rationale of Judicial Evidence, vol. 1. (London: Hunt Clarke, 1827) cited in Edmonton Journal. supra note 16. CAMERAS THE COURTROOM NOT WITHOUT MY CONSENT 369 By another spin on their open justice argument, camera advocates contend that the public has a constitutional right of access to the courtroom. Most members of the public never physically attend a court proceeding. They are too busy, or the court is too far away. As such, television cameras provide them with electronic access to the courtroom. This argument has two fatal defects. First it assumes that when cameras are in the courtroom, the trial will be televised in its entirety, gavel-to-gavel. As indicated above, this will be a rarity. Television cameras do not provide "access to the courtroom" for a person when they show a snippet anymore than does a newspaper columnist's reportage of a quotation from a court proceeding. Second, this spin on the open justice argument presumes that the public can effectively use the media as its instrumentality to "attend" court proceedings by means of the television camera. A key component of the right to attend court is the right to choose which proceedings to attend. Yet, as indicated above, the public has no say in the choice of which cases the media will cover either through conventional coverage or by means Of cameras in the courtroom. D. Public Education on the Judicial Process According to camera advocates, cameras in the courtroom would enable the media to more effectively and more accurately report on court proceedings. This will lead the public to be better informed and educated on the operations of the courts. This is said to be an important aim, since the Canadian public now knows little about our court process. It learns most of what it now knows from U.S. television. While the aim of educating the public on the justice system is a laudable one, it is hardly one which should be pursued at the expense of undermining the proper administration of justice through the various camera-induced adverse effects described earlier in this article. In any event, cameras in the courtroom would not substantially contribute to better public education on the judicial system.29 Even if it were assumed that gavel-to-gavel coverage might serve an educational Objective, this will rarely occur. Brief clips Of dramatic scenes taken from the day's proceeding at a sensational or newsworthy case will not better educate or inform the public, or demystify the judicial process, when compared to conventional media coverage. After over a decade of cameras in many U.S. state courts, there is no solid evidence suggesting that this has led to a better informed and educated American public with respect tO the judicial system. 29. This is con?rmed, for example, by the ruling of the Rhode Island Supreme Court in In Re Extension of Media Coverage for a Further Experimental Period, 472 A. 2d 1232 (1984). While the court decided there to extend the experimental period with cameras in the courtroom, it described the efforts of the media at educating the public to date as "feeble". 370 OPEN JUSTICE - LA TRANSPARENCE DANS LE SYSTEME Jumcwaa Moreover, it can appear somewhat disingenuous for media advocates to claim that the aim of cameras in the courtroom is better public education. The media did not extensively televise the Lorraina Bobbitt case because it raised any important legal issues. They televised it because of the sensational aspects of the case's bizarre facts. When the Canadian and U.S. media broadcasted large portions of the prosecution of William Kennedy-Smith on sexual assault charges, they claimed that they were doing so to bring to the public's attention the important new issue surrounding date-rape. However, date-rape had been around for a long time, without receiving anywhere near the media attention that Kennedy-Smith secured. The truth is that they so intensively covered this case because a member of one of the most famous American families was on trial for alleged sexual misconduct. As well, his famous Senator/Uncle had to testify in his defence. The Kennedys always make good copy. When the Simpson case received unprecedented coverage, it had nothing to do with public education on the workings of the criminal justice system. Rather, the prosecution of a sports and movie celebrity for an alleged rather typical spousal homicide provided an unprecedented opportunity for soap opera coverage, and tabloid excesses. From the outset when television cameras covered Simpson's ?ight from arrest, a veritable sensation was created for the public, which was fueled by national television coverage of every moment of the court proceedings, down to consent adjoumments. As can happen when there are cameras in the courtroom, the media frenzy took on a life of its own, far out of proportion to the reality of the case. It was not unusual to hear members of the public and even some journalists complaining that the media coverage of this case was altogether out of hand. If the media wished to ?lm court proceedings for the purpose of educating the public about the operations of the justice system, they would not by mere coincidence have picked the most sensational cases to ?lm. Should the media wish to take maximum advantage of the open justice principle to inform the public on the courts, there are thousands of court proceedings going on in Canada everyday in open courtrooms which are fully susceptible to media coverage, and which now receive no media coverage at all, cameras or no cameras. As well, if the media would like to better educate the Canadian public on the justice system, it has ample other opportunities so to do. Docu-dramas, in- depth reports and documentaries on cases and on justice issues can be equally informative and educational. When confronted with the foregoing points, media advocates usually respond that the media should not be criticized for how they choose which cases to report and how they would use ?lm footage. Bestowed the constitutional right to freedom of the press by our Charter, these matters should not be the subject of debate, they urge. They note that newspapers already provide selective reporting on court proceedings. Cameras in the courtroom should not be criticized for leading to the same selective process. Such rejoinders miss the point. Camera advocates must show that cameras in the courtroom will have the additional educational bene?ts that they postulate, beyond those potentially available through conventional media coverage. If media advocates claim that courtroom ?lming will produce greater informational or educational bene?ts, it is entirely appropriate for these claims to be scrutinized critically. CAMERAS THE counraoom NOT wnuour MY CONSENT If it turns out that the way in which news reporters would make use of this ?lm footage will not lead to any additional informational or educational bene?ts, it is perfectly appropriate to point this out in response to the media claims. This does not involve any contravention or subversion of the freedom of the press. It is beyond debate that the media are free to disseminate whatever message they wish. However, the freedom of the press does not include a guarantee that the media will not be criticized or judged when their reportage is found to be wanting, nor does it require us to accept on faith any contention that they advance during a policy debate. Clearly the print media, like the television media, will be selective in the information that they choose to present to their audiences. This demonstrates that the use of ?lm footage from courtrooms will not have any more educational bene?t or informational gains than now derive from conventional media coverage of courts since the television media will employ the same selective news reporting techniques. The fact that print journalists are also selective does not make television journalism any more informative when it is selective. At the core of the media?s claim that cameras in the courtroom will lead to greater educational or informational bene?t is the conventional wisdom among many television journalists that a news story must include pictures from the scene of the news event in order to be effective. Camera advocates emphasize that television news is pictures. Without courtroom footage, it is dif?cult if not impossible to effectively inform the public about the goings on in a courtroom. The audience will not watch, or if it watches, it will not understand the story in the absence of actual court footage. While this may constitute a conventional wisdom among some, if not many television journalists, journalistic convention does not necessarily constitute objective truth. 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. Yet, the vast majority of television, radio and print journalism relies heavily on narrative reports. The public keeps buying newspapers, televisions and radios, and continually tunes into its daily diet of news and current affairs programming. This media claim is also contradicted by the fact that the three most acclaimed and effective examples of television journalism over the 1980's primarily used "talking heads". "Talking heads" refers to people on the television screen talking to each other or to the viewing audience about current events or news, rather than a preponderance of action footage shot at the scene of newsworthy events. These programs include ABC's "Night Line", PBS's "McNeil, Leher Newshour", and "The Journal". The enormous audiences that these programs have attracted seem to be able to absorb complex current news and public affairs coverage, despite the absence of good visual action to reinforce the discussion in many if not most instances. E. Public Con?dence in the Judicial System Camera advocates additionally contend that cameras in the courtroom promote public confidence in the administration of justice. They argue that much of the public 372 OPEN JUSTICE I LA TRANSPARENCE DANS LE SYSTEME JUDICIAIRE cynicism about the administration of justice is based on ignorance about the court process. Cameras will help lift the veil of ignorance, and dispel the cynicism. This is a mere reiteration of the claim that cameras in court will educate and inform the public about the judicial process in a manner which conventional reporting cannot achieve. The arguments dispelling that claim are equally applicable here. Recent American experience generates further doubt about the claim that cameras in the courtroom will promote con?dence in the judicial system. With the intense television coverage of the 0.1. Simpson case, including the televising of the preliminary hearing and suppression hearings, much of the debate surrounding that litigation has been about whether a fair trial could be achieved. Even before the Simpson trial began. public con?dence in the capacity of the justice system to extend to the accused and to the public the basic entitlement to a fair trial, was at best, quite shaky. Similarly, unbeknownst to many Canadians, the ?rst trial in California state court of the police of?cers charged with heating motorist Rodney King was televised in southern California gavel-to-gavel for weeks on end. If the camera advocates are to be believed, this should have led to unprecedented public con?dence in the fairness of that proceeding, and hence, substantial public acceptance of the eventual verdict. Yet, the massive riots which ensued after the delivery of the not guilty verdicts stands as perhaps the strongest evidence that cameras in the courtroom do not necessarily have the asserted public con?dence-building capacity. F. More Accurate Reporting on Court Proceedings It is urged that courtroom ?lming will result in more accurate news reporting about court proceedings. Conventional media reporting by television, radio and newspapers runs the risk of subjectivity, due to the biases or personal perspectives of the individual reporter. Without video recording, there is more of a risk of inaccuracy in the rendering of information. In contrast, it is contended that the camera will provide an accurate, neutral and unmanipulatable rendering of the actuality or reality of the courtroom. This argument flies in the face of modern teaching in the areas of ?lm production and communication studies. The argument is rebutted by the simple fact, emphasised above, that courtroom proceedings will usually not be shown on television in their entirety. In a selective television news report that includes a brief courtroom clip, it is open to television news reporters to heavily contextualize a 10 second excerpt with voice over commentary as well as summary and analysis afterwards. Moreover, the excerpt can be edited and shown out of context. There is at least as much room for subjectivity or bias with ?lm footage as there is without it. The issue of news reporting accuracy is a red herring. Those who criticize existing news coverage of court proceedings rarely do so on the basis of factual error. It is not that the reporter frequently gets important facts wrong, though this of course can happen from time to time. Because court proceedings are usually transcribed by a court CAMERAS THE counrnoown NOT WITHOUT MY CONSENT 3T3 reporter, a journalist can check a quotation's accuracy. Rather, it is the selectivity in which information is chosen for reporting, and the lack of adequate contextual information that gives rise to most criticism of media reporting on court proceedings. Cameras in the courtroom do nothing to address these problems. G. Discrimination Against Television Media Television industry advocates protest against restrictions on the use of cameras in court because there are said to be no comparable restrictions on radio or print reporters. They assert that camera restrictions discriminate against the television media. Other reporters are allowed to use the tools of their trade, whereas television journalists are not. This discrimination is said to be particularly odious since a majority of Canadians rely on television as their ?rst source of news. The television media, they argue, should not be excluded from the courtroom if other media are not. This discrimination rhetoric is wholly out of place in the cameras in the courtroom debate. It is erroneous to suggest that the television media is kicked out of the courtroom, while the other media are allowed in. Reporters from all three branches of the media are equally welcomed to attend public court proceedings, and thereafter to report to the public through their own chosen medium of communication. Additionally, television reporters are not the only ones who might bene?t from film and electronic recording technology, if it were permitted in courts. Print and television reporters would both wish to use pictures. Radio reporters wish to use audio clips from court proceedings and newspapers want to use still photographs. Hence, the restriction on electronic recording in the courtroom has an impact on each branch of the media, and not solely on television. The very invocation of the term "discrimination" in this context is unwarranted. Under our Charter in particular and in Canadian law generally, the concept of discrimination pertains to adverse exclusion of minorities and groups from the mainstream of Canadian life, such as women, racial minorities, people with disabilities, and the like, who have historically suffered from social, political and economic disadvantage.30 The television industry is far from a weak, powerless and disadvantaged group in our society. The simple fact that the law may not afford to the television industry every opportunity it wishes does not mean that this industry is the victim of discrimination.3 30. See generally Andrews v. Law Society of British Columbia, [1989] S.C.R. I43. 31. See the opinion of La Forest, 1.. dissenting on other grounds, in Edmonton Joumalsupra note 16. where he rejects a suggestion that laws which differentially a??ect the various branches of the media may violate Charter section 15's equality guarantees. There, the print media protested under Charter section 15 against alleged legislative disadvantages imposed on it but not on the broadcast media. Section 15 prohibits legal discrimination against those disadvantaged groups enumerated in it, such as women, persons with disabilities, and racial minorities, and other similarly disadvantaged groups which are analogous to those who are explicitly named in section 15. The various branches of the mass media do not constitute an ?analogous" group appiying the section 15 test established in Andrews v. Law 374 OPEN JUSTICE LA TRANSPARENCE DANS LE SYSTEME H. Cameras in Canadian Royal Commissions Proponents of cameras in the courtroom urge that television cameras have been present in a number of Royal Commissions across Canada over the past decade, without any problems. This, they argue, demonstrates that we need not entertain any fears about cameras in court proceedings. This argument has several serious flaws. To begin, it is not accurate to assert as a fact that cameras have not posed problems during Royal Commission proceedings. There has been no systematic study of the impact of television cameras on the participants in these proceedings. Sporadic anecdotal observations by a few commissioners that they did not observe any dif?culties provide no basis for concluding that cameras in Royal Commissions have been problem free. A commissioner presiding at a Royal Commission, like a judge presiding at a trial, is not in a good position to know whether the cameras had an impact on the willingness of witnesses to come forward to testify, or on the conduct of witnesses, parties or counsel during the hearing, for the reasons described earlier in this article in relation to judges. Even in the absence of formal studies, we know that there have been signi?cant problems with cameras in Royal Commissions. For example, the Royal Commission into the sexual abuse of young boys at the Mount Cashel orphanage in Newfoundland was televised. including extended coverage of the testimony of the now-adult survivors of this child sex abuse. In a criminal proceeding concerning this sex abuse, the victims would be entitled to a legal guarantee of anonymity, through a publication ban on their identities. In contrast, the Mount Cashel victims were subjected to being televised while describing the horrendous personal violations which they had suffered as boys. The clips of the most emotional points in their testimony were replayed on television across Canada months and years after they gave their evidence to the Royal Commission. This could only serve to ensure that the serious invasion of their privacy posed by the cameras at the hearing itself was perpetuated and re-aggravated. Similarly, when two Crown attorneys filed sexual harassment allegations against a Toronto Provincial Court judge, their testimony was televised during the ensuing I993 judicial discipline inquiry. Cameras captured the moment when they described the details of their sexual harassment and broke into tears. This was repeatedly replayed not only on the news but also in television commercials for news programs. No matter how tough and professional these women may be as Crowns, this repeated violation could only be expected to make them wonder why they subjected themselves to this process in the ?rst place. Female Crown attorneys who are sexually harassed by judges in the future will undoubtedly think twice before they ?le complaints, for fear that they too, will be splashed across television screens in their most vulnerable moments. Society of British Columbia, supra note 30. CAMERAS IN THE COURTROOM NOT WITHOUT MY CONSENT 375 Even if the experience with cameras at Royal Commissions had been problem free, it would not justify the introduction of cameras into Canadian courts absent participant consent. Royal Commissions are not the same as court proceedings, even though they super?cially look similar in some respects. Royal Commissions do not decide the rights of the parties. A Royal Commission's purpose is to have as public as possible an airing of some controversial issue. In contrast, court proceedings aim at resolving the legal rights and obligations of opposing parties. While court proceedings must be conducted in public to secure public con?dence and to avoid of?cial abuse, they need not be televised. 376 OPEN JUSTICE LA DANS LE SYSTEME IUDICIAIRE IV. CONCLUDING CONSIDERATIONS A. Cameras in the Courtroom and the Charter's Free Expression Guarantee The preceding discussion has addressed the cameras in the courtroom issue as a policy debate. Some camera advocates have argued that cameras in the courtroom are not only desirable as a matter of policy, but that the media has a constitutional right to ?lm in court if they wish. They contend that the guarantee of freedom of expression including freedom of the press and other media of communication in Charter section 2(b) includes a constitutional right to televise court proceedings, even over the objection of court participants. There is little authoritative appellate Canadian caselaw on point. When the CBC argued before the Supreme Court of Canada that it had a constitutional right to televise provincial legislative proceedings in Nova Scotia, a majority of the court dismissed the claim on other grounds, without probing the meaning of Charter section 2(b) in so far as media ?lming is concerned.32 32. New Brunswick Broadcasting Co. v. Nova Scaria (Speaker of the House of Assembly), [1993] S.C.R. 319. CAMERAS IN THE couarkoom NOT WITHOUT MY CONSENT 377 In the case of R. v. Squires,33 CBC television journalist Catherine Squires was charged with contravening section 67 of Ontario's Judicature Act.34 This section restricted the use of television cameras in courtrooms and in courthouse corridors, to ?lm court participants and court proceedings on terms akin to those in the successor provision of Ontario's Courts of Justice Act, discussed earlier.35 She had directed a CBC camera technician to ?lm a victimiwitness on a charge of 33. 34. 35. Supra note 2. Section 67 of the Judicature Act. supra note 7, provides as follows: 67(1) In this section, a) 'judge" means the person presiding at a judicial proceeding: b) 'judicial proceeding" means a proceeding of a court of record; c) ?precincts of the building means the space enclosed by the walls of the building. (2) Subject to subsection (3), no person shall, a) take or attempt to take any photograph, motion picture or other record capable of producing visual representations by electronic means or otherwise. i) at a judicial proceeding. or it) of any person entering or leaving the room in which the judicial proceeding is to be or has been convened, or of any person in the precincts of the building in which the judicial proceeding is to be or has been convened where there is reasonable ground for believing that such person is there for the purpose of attending or leaving the proceeding; or b) publish. broadcast, reproduce or otherwise disseminate any photograph, motion picture or record taken or made in contravention of clause (3) Subsection (2) does not apply to any photograph. motion picture or record taken or made upon authorization of the judge. a) where required for the presentation of evidence or the making of a record or for any other purpose of the judicial proceeding; b) in connection with any investive, ceremonial, naturalization or similar proceedings: or c) with the consent of the parties and witnesses, for such educational or instructional purposes as may be approved by the judge. (4) Every person who is in contravention of this section is guilty of an o?'ence and on conviction is liable to a ?ne of not more than $10,000, or to imprisonment for a term of not more than six months. or to both. Section 67 of the Judicature Act was subsequently replaced by section 136 of Ontario's Courts of Justice Act, supra note 7, which reads almost identically to the predecessor provision with two differences. First, the new provision imposes the same restriction on audio recording of judicial proceedings as has been the case for video recording. Second, an exception is made for audio recording of judicial proceedings which is permitted as an aid to note-taking. so long as the audio tape is not broadcast. 378 OPEN JUSTICE ILA TRANSPARENCE DANS LE SYSTEME IUDICIAIRE attempted murder in a courthouse corridor, while he attempted to exit in his wheelchair from an Ottawa courtroom. He had just testi?ed at a preliminary hearing into the attempted murder charges against the suspected terrorist who had allegedly wounded him, causing him permanent mobility disability. The accused reporter moved to quash these charges.36 She argued that the Act's restrictions on ?lming in courtrooms and in courthouse corridors unconstitutionally infringe the freedom of expression and press guaranteed by Charter section At trial, a ?ve-week evidentiary hearing ensued on the constitutional free expression issue. Both the Crown and defence called numerous experts from Canada and the U.S. to testify on the alleged benefits and harms associated with cameras in the courtroom and in courthouse corridors. The trial judge held that the Act did not violate Charter section free expression and press guarantee. He went on to hold that if this section had infringed the freedom of expression, its restrictions on ?lming in courtrooms and in courthouse corridors would nevertheless be saved from constitutional attack as a reasonable limit on the freedom of expression, immunized under Charter section 1.38 36. Supra note 2. 37. Charter section 20:) provides as follows: 2. Everyone has the following fundamental freedoms: b) freedom of thought, belief: opinion and expression including freedom of the press and other media of communication 38. Charter section 1 provides as follows: 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedom set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. CAMERAS IN THE counrnoom NOT WITHOUT MY CONSENT 379 The accused unsuccessfully appealed her conviction to the Ontario District Court.39 The District Court judge upheld her conviction. Unlike the trial judge, he ruled that Charter section 2(b) does constitutionally guarantee to the media a prima facie right to ?lm in courtrooms and in courthouse corridors. However, he concluded that the law's consent requirement for ?lming in courtrooms and courthouse corridors was constitutionally saved under Charter section l.?10 The accused further appealed her conviction to the Ontario Court of Appeal.41 A ?ve-justice panel of the Court of Appeal unanimously decided that the only constitutional question that properly arose on this conviction appeal, and which required a ruling from the court, concerned the validity of the Judicature Act's restrictions on ?lming in courthouse corridors. This is because the accused reporter was charged and convicted of ?lming in a courthouse corridorcourtroom, and was not charged with trying to do so. Thus, it was not necessary for the court to rule on the validity of the law's restrictions on courtroom ?lming. A majority of the Court held that the Judicature Act's restriction on ?lming in courthouse corridors did violate Charter section A majority also held that the provision was saved from Charter attack under Charter section 1 as a reasonable limit. Hence, the Court of Appeal's interpretation of Charter section 2(b) may arguably be seen as obiter. The Supreme Court of Canada refused leave to appeal from this decision.?12 On a principled construction of Charter section it is my view that this provision does not confer a constitutional right to force court participants to be ?lmed by 39. Supra note 2. 40. The District Court suggested that the legislation's restriction on ?lming in court to circumstances of "educational or instructional purposes" was unjusti?ed and severable. However, it is arguable in light of the subsequent decision of the Ontario Court of Appeal in this case that the District Court's conclusion in this regard is obiter dicta and hence non-binding. 41. See R. v. Squires (1993), supra note 2. 42. See R. v. Squires (I994), supra note 2. Apart from the Squires case, there have been incidents where courts have turned down requests to ?lm court proceedings, where the requests were founded in whole or in part on Charter arguments. In R. v. Vander Zalm, B.C. Supreme Court, unreported released May 14 1992 per Esson, C.J., the B.C. Supreme Court refused to permit the CBC and other applicants to bring television cameras into the highly publicized trial of former Premier William Vander Zalm. The court relied upon its unwritten long-standing and well-known rule that no cameras may be used in a courtroom during a legal proceeding. It declined to rule on the merits of the media arguments in favour of cameras. It did so, in large part, because the applicants had waited until only a few days before the trial was to begin to bring their application. It was known that to litigate the substantive questions surrounding courtroom ?lming would require weeks of court time. In R. v. Fleet, (2 November 1994), (N.S.S.C.) [unreported], Palmeter A.C.J., a documentarian's Charter section 2(b) claim was dismissed on its merits. The court did not refer to Squires or any other major free expression Charter case law in so deciding. The court expressed concems about the potential harm?il impact of courtroom ?lming on the process, and the alleged bene?ts said to derive from cameras in court. 380 OPEN JUSTICE I LA TRANSPARENCE DANS LE SYSTEME the media in the courtroom over their objection.43 As the preceding discussion demonstrates, there is much that can be debated about cameras in the courtroom in the policy arena. Yet, if something is turned into a constitutional right, then it is presumptively taken out of the policy arena. It becomes a mandatory constitutional requirement, unless the state can discharge the burden of justi?cation for limiting the activity under Charter section 1 as a reasonable limit on the right which can be demonstrably justi?ed in a free and democratic society. Constitutional rights tend to include those entitlements that we consider fundamental to our democracy. They are comprised of entitlements that our tried and true. This includes things like the right to a fair trial, the right to choose one's religion and to practice its teachings, and the right to engage in peaceful demonstrations and assemblies. In contrast, courtroom ?lming is neither tried nor true in Canada. It is an innovation which is best left to be debated in the policy arena. It is certainly not a core and indispensable facet of Canadian democracy. Turning to the specifics of a claim that Charter section 2(b) guarantees a constitutional right to ?lm in court over the objection of court participants, such a position is discordant to existing Canadian caselaw on the meaning of the freedom of expression. Freedom of expression includes the right to freely express one's self, without government censorship of the message on account of its viewpoint or content.? The Supreme Court has held that "expression" means activity which conveys meaning to others, that is, by words or symbolic actions.? The act of operating a video camera to record something such as proceedings in court is not "expression" within this meaning. It is not itself expressive. It does not convey meaning. Put simply, when a person sets up and turns on a video camera in a courtroom, what message is he or she thereby conveying? There is a fundamental difference from the constitutional perspective between disseminating information, which is "expression" within the meaning of section 2(b) on the one hand, and operating an electronic device to record information on the other hand, which is not. Even if the act of using a camera were construed as "expression", the media would be no better off in advancing a claim that cameras in the courtroom are constitutionally required. The freedom of expression includes, among other things, the right of every person to express their views or to refuse to engage in expression if they wish.?5 If ?lming is expression, then so is the act of being ?lmed. If a witness or other court participant does not wish to be ?lmed, then he or she must have a commensurate constitutional right to refuse to be ?lmed, that is to refuse to engage in "expression". Hence, if we accept the suggestion that the very act of ?lming constitutes expression, then 43. I do not propose here to critique the speci?c analysis employed by the various levels of court in the Squires case, as I was counsel in those cases. Rather, I simply set out here my own approach to the analysis of this constitutional issue. 44. Irwin Toy v. Quebec (Attorney General), [1989] S.C.R. 927 and R. v. Keegstra, [1990] 3 S.C.R. 697. 45. Irwin Toy, ibid. 46. Sleight Communications Inc. v. Davidson. [1989] S.C.R. 1038. CAMERAS IN THE couaraoom NOT wrrnour MY CONSENT 381 a law that permits courtroom ?lming only with the consent of those being ?lmed respects and advances the freedom of expression of court participants. Freedom of expression including freedom of the press does not confer on the media the right to do whatever they want in pursuit of the news. It would severely over-in?ate section 2(b) to construe the freedom of expression including the freedom of the press as presumptively immunizing from legal responsibility any activity which a journalist undertakes in furtherance of the gathering of the news. Freedom of expression entitles the media to communicate to a willing audience about subjects of its choosing, and to relate any information that it wishes, and that it has lawfully acquired. This entitlement is abundantly respected where the courtroom is open to the public, including reporters, and where reporters are free to report on any aSpect of the proceeding they wish, without being subjected to restrictions such as publication bans. Media advocates will argue that Charter section 2(b) should be interpreted as including a right to use cameras in courtrooms since this will advance the values of public access to court and open justice. This article's refutation of such claims in the policy arena are equally applicable in the constitutional context. Put another way, restrictions on courtroom ?lming would have at most only a trivial and insubstantial impact on news reporting on courts for the reasons discussed earlier in this article. Section 2(b) is not violated where the burden on the media is only trivial and insubstantial in degree.? Even if it were assumed that courtroom ?lming served those values which section 2(b) aims to achieve,? this alone does not translate cameras in the courtroom into a constitutional right. Charter section 2(b) does not constitutionally protect all human activities which promote the purposes of the freedom of expression. Rather, it protects the speci?c activity of engaging in the freedom of expression in order to advance those purposes. Camera proponents support their invocation of Charter section 2(b) by arguing that without courtroom footage, the television audience will not be willing to watch news reports on court proceedings for more than a short period of time. Even if this claim were assumed to be factually true despite the discussion in this article, this contention has no constitutional significance in construing the Charter's free expression guarantee. The Charter does not guarantee to the television industry an assured audience for its news broadcasts. As McLachlin, ., ruled in R. v. It'eegstra:49 "Freedom of expression guarantees the right to let loose one's ideas on the world; it does not guarantee the right to be listened to or to be believed". 47. R. v. Edwards Books and Art Ltd. [1986] 2 S.C.R. 713 and Shell Canada Products Ltd. v. Vancouver (City), [1994] S.C.R 231, McLachlin l. 48. The Supreme Court has enumerated the purposes of the freedom of expression in Irwin Toy v. AG. Quebec, supra note 44 as including the promotion of the search for truth, the fostering of democracy and social and political participation, and individual self-?ilfillment. I examine in detail section purposes in MD. Lepofsky, "Towards a Purposivc Approach to the Freedom of Expression and its Limitation" in F.E. McArdle, ed., Cambridge Lectures 1989 (Montreal: Yvon Blais, 1990) 1. 49. Supra note 44 at 831-832. While she was dissenting in this case, her views on this point were not the subject of disagreement with the majority opinion. 382 OPEN JUSTICE I LA TRANSPARENCE DANS LE SYSTEME JUDICIAIRE Media advocates would also rely on the Supreme Court's ringing endorsement of the principles of open justice and the media's constitutional right to report on court proceedings in Edmonton Journal v. A.G. Alberta.so There the Supreme Court struck down an old Alberta statute that prohibited publication of virtually any information about matrimonial proceedings in the province. It also banned pretrial publication of most information concerning other civil proceedings in Alberta. When carefully scrutinized however, that case is of little assistance to a claim that the Charter guarantees to the media a right to force non-consenting court participants to submit to being ?lmed in court. That case does include a powerful judicial re- af?rmation of the importance in Canada of traditional principles of open justice. However, this article's position is not premised on any departure from such a position. Rather, it's analysis is built on the ?rm foundation that our justice system must be wide open to public attendance and full media reporting, except in the most limited exceptional circumstances of pressing necessity. Edmonton Journal does not address the speci?c constitutional question considered here. It did not involve a media assertion of a right to televise court proceedings. Rather, the media there claimed a constitutional right to report to the public on information that they had learned at open and public civil and matrimonial proceedings. All parties to the appeal conceded that the law's sweeping publication ban violated section This was an unremarkable event since previously the Supreme Court had unanimously held that legislative bans on media reporting of a sex assault complainant's identity contravened Charter section 2(b) and had to be justified under section Edmonton Journal is thus not an authoritative pronouncement on an issue which was neither raised there nor the subject of contested argument. Additionally. media advocates will endeavour to construct their constitutional claim on the basis of Ontario Court of Appeal rulings to the effect that Charter section 2(b) confers a right to personally attend court proceedings.52 While super?cially attractive at ?rst blush, these cases ultimately do not provide the strong support that camera proponents would claim. This is because this article's policy and constitutional analysis proceeds on the assumption that Charter section 2(b) includes, among other things, a constitutional right for members of the public, including journalists to personally attend court proceedings. - The Supreme Court of Canada has not yet considered whether section 2(b) includes a right to personally attend court proceedings. The Ontario Court of Appeal's rulings on point did not apply the Supreme Court's landmark decision in Irwin Toy v. A.G. Quebec.53 which mapped out a three-step test for assessing whether a law abridges 50. Supra note 16. 51. Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122. 52. The Ontario Court of Appeal so held in Re Southam Inc. and the Queen W0. 1) (1983), 41 OR. (2d) 113, and reaffirmed this position in Southam Inc. v. Coulter (1991), 75 OR. (2d) 1. 53. Supra note 44. CAMERAS IN THE COURTROOM NOT WITHOUT MY CONSENT 383 the freedom of expression. This is hardly surprising. The ?rst of these Ontario Court of Appeal rulings was decided before Irwin Toys4 The second was decided some months after Irwin Toy. However, it appears that Irwin Toy was not cited to the Court of Appeal in that case. The Crown appears to have agreed that there was present a breach of section There is room to question whether the Court of Appeal's decisions would be decided in the same way if the Irwin Toy free expression analysis had been applied. A full consideration of this question is beyond this article's scope. Hence, this discussion assumes that those cases were correctly decided. Even if correct, the Ontario Court of Appeal's rulings do not require a ?nding that Charter section 2(b) gives the media a constitutional right to engage in courtroom filming. Those rulings were predicated on two critical considerations, neither of which support a right to ?lm in court. First, the right to personally attend court proceedings is based on the long-standing historical practice of open court, dating back centuries. There is no comparable long-standing Anglo-Canadian tradition of televised court. Second, the rulings were based on the fact that the alternative to open court, namely closed and secret justice, presents the real risk of Star Chamber injustice and official abuse. In contrast, when proceedings are already open to public attendance and conventional media coverage, these fears disappear. Hence there is no necessity for televising the proceeding to prevent such abuses. The requirement of open court already provides the bene?t of nullifying the harms of secret justice. Televising court cannot be justi?ed as a constitutional requirement on the ground that it will provide the benefit of avoiding Star Chamber justice. No jurisdiction outside Canada has held that freedom of expression including freedom of the press encompasses a constitutional right to televise court proceedings. As is mentioned earlier, while 47 U.S. states have admitted cameras into their courts as a matter of policy choice, American courts have consistently held that the First Amendment's guarantee of freedom of speech and press does not include a constitutional right to record and broadcast court proceedings.55 This is so even though the first amendment has often been construed more broadly than Canada's constitutional equivalent, particularly in the open justice context.? It must be remembered that if Charter section 2(b) conferred on the media a constitutional right to use cameras in the courtroom, then this entitlement must equally be bestowed on all members of the public who wish to ?lm in court. As I have argued elsewhere,? reporters and the media are not a special constitutional elite who enjoy special and superior rights under Charter section 2(b) beyond those extended to all members of the public by the freedom of expression. Charter section 2(b) states that freedom of the press and other media of communication is included within the "freedom of expression" 54. Re Southam Inc. and the Queen (No. 1), supra note 52. 55. See authorities cited supra note 5. 56. Compare Canadian Newspapers Co. v. Attorney General of Canada, supra note 51, and Re Global Communications and Attorney General for Canada, (1984), 10 C.C.C. (3d) 97 (Ont. CA.) with Nebraska Press Assn. v. Stuart, 96 2791 (1976); Cox Broadcasting Corp. v. Cohn, 95 1029 (1975). 57. See MD. Lepofsky, supra note 25 at 89-119. 384 OPEN JUSTICE i LA TRANSPARENCE DANS LE SYSTEME and that this right is guaranteed to "everyone". The simple fact that section 2(b) refers to "other media of communication" does not mean that it confers special or superior rights on the television industry. Thus, if reporters can use video or still cameras in the courtroom, so can any number of spectators, including friends and associates of an accused who want personally to ?lm the victim and other Crown witnesses even if the media does not. In the U.S., the media advanced its arguments in support of cameras in court at a time over a decade ago when for practical purposes, video cameras were only owned and used by television stations. Now, anyone can buy a small, portable and silent video camera, and can bring it to court with ease. Even if it were assumed that section 2(b) of the Charter conferred a right to use cameras in a courtroom, it would be a reasonable and demonstrably justi?ed limit on that right to require the consent of all parties and witnesses before courtroom ?lming could occur. A consent requirement for courtroom ?lming should be saved from constitutional attack by Charter section 1. In Squires, the trial judge and the District Court judge at the ?rst level of appeal both sustained such a legislative consent rule under Charter section 1, based on a substantial evidentiary record. The Ontario Court of Appeal did not address this issue. A consent rule promotes several pressing and substantial objectives, each of which has been endorsed under Charter section 1 in other contexts, including protecting the right to a fair trial,? the proper administration of justice and effective law enforcement,59 the dignity rights and privacy of court participants,60 the dignity and decorum in court,? and the right of access to justice.62 Such a restriction constitutes a minimal burden on the media's constitutional rights, since representatives of the media remain free to attend court proceedings, and to fully report on them through conventional media coverage. Such a restriction minimally impairs any asserted Charter rights, because it is narrowly tailored to address only the speci?c impact of courtroom ?lming, and because it allows such ?lming to occur when the required consents are obtained. Courts afford a greater margin of appreciation to government under Charter section 1 where, as here, an issue involves the balancing of the claims of competing groups, such as the resolution of the competing claims of the media for graphic ?lm footage from courtrooms and courthouse corridors and the needs described above of victims, witnesses, law enforcement of?cials, accused persons, and others involved in the judicial system.63 Should section 1 have to be reached, an insight into the Supreme Court's possible approach to this issue can be gleaned from its diSposition of a media challenge to the constitutionality of the Criminal Code provision which entitles sex crime complainants to 58. Global Communications and Attorney Generalfor Canada, supra note 56 at 113. 59. Soulham Inc. v. Coulter. supra note 52 at 17. 60. Supra note 16 at 1345 and R. v. Morgenialer, [1988] 1 S.C.R. 30. 61. Committee for the Commonwealth of Canada v. Canada, [1991] S.C.R. 139 at 249, McLachlin J. 62. Supra note 16 at 1379, La Forest J. dissenting on other grounds; supra note 51, at 130; B.C.G.E.U. v. Attorney General of British Columbia, [1988] 2 S.C.R. 214 at 248-249. 63. Irwin Toy. supra note 44 at 990. CAMERAS THE COURTROOM NOT WITHOUT MY CONSENT 385 ask a trial judge to ban publication of their names, and which mandatorily requires the judge to issue the ban if asked to do so. In A.G. Canada v. Canadian Newspapers}54 the core issue before the court was whether such bans should be mandatory when the complainant seeks one a consent rule or whether the trial judge should retain a discretion to decide on a case-by-case basis whether the ban is needed in the circumstances. The Crown defended the statute's consent rule. The media urged that it be replaced by a judicial discretion option. This dispute parallels the positions taken by the Crown and the media in disputes over whether courtroom ?lming should only be allowed with party/witness consent, or whether the trial judge should retain a discretion to decide when courtroom ?lming is appropriate. In Canadian Newspapers, the Supreme Court rejected the media's contention that a judicial discretion was preferable under Charter section 1 to a complainant consent requirement when determining if the court should ban the media from identifying a sex crime complainant. It upheld the constitutionality of the consent rule. It held that sex crime complainants require certainty from the outset that their identities would not be published. If the fate of their request for a non-publication order was left to a trial judge's discretion, the complainant would not have the assurance or certainty that they need before reporting their victimization to the police. A comparable argument supports a consent requirement vis-d-vis cameras in the courtroom. B. Experimenting with Cameras in the Courtroom There is very little support in the public, the legal profession, the law enforcement community or among the judiciary for cameras in the courtroom in Canada. For most, this debate raises one big non-issue. Yet, media advocates occasionally argue that we should undertake an "experiment" with cameras in the courtroom to see whether they will pose the dif?culties which are feared, and to document their bene?ts. They note that several American states have undertaken such experiments, and thereby have proven cameras in court to be bene?cial. It is critical to pin down exactly what the subject of the prOposed experiment will be, as well as its intended format. The key policy question in issue in the cameras in the courtroom debate is whether the administration of justice will suffer adverse effects where court participants are forced to submit to cameras in the courtroom without their consent. If one wished to "experiment" in relation to this question, it would be necessary to study cases where cameras in the courtroom are forced upon court participants without their consent. Yet, it would be fundamentally unethical to force court participants to be subjected to cameras in the courtroom without their consent, for the purpose of studying whether or not this will cause harmful effects on them. In the medical context, experimentation with new drugs on non-consenting human subjects is considered to be 64. Supra note 51. 386 OPEN JUSTICE LA TRANSPARENCE DANS LE SYSTEME JUDICIAIRE inherently offensive. It is similarly offensive to subject human beings to experimentation with courtroom ?lming, when they have much at stake in a legal proceeding, and when they do not agree to participate in the experiment. Section 7 of Canada's Charter confers the fundamental constitutional right not to have one's liberty deprived except in accordance with the principles of fundamental justice. To force non-consenting persons who are on trial for their liberty to participate in such experimentation arguably would violate the principles of fundamental justice. While Charter section 7 does not confer similar rights on civil litigants, it is nevertheless equally offensive to make those who come to court to have their civil disputes resolved submit to such experimentation over their objection. If court participants are prepared to consent to the experiment, then this ethical problem disappears. However, experimentation on consenting court participants will not yield information of much assistance to those who wish to know about the potential adverse effects of ?lming in the courtroom on non-consenting persons. American states in fact engaged in this kind of experimentation on non- consenting court participants. For example, Florida and California did so in the mid-1970's and early 1980's respectively. At least in the case of Florida, this included forcing at least one accused, who was on trial for capital offences, to submit to courtroom ?lming. This re?ects an unreasonable undervaluation of the rights of the individual. During these U.S. experiments, camera advocates took the position that if their cameras caused any adverse effects, the accused or other objecting party could always appeal. This, however provides no answer. Many court participants have no standing to appeal, such as jurors and witnesses. Moreover, the parties who do have a right to appeal, such as the accused, may not be able to make out their objection on appeal, for the reasons discussed earlier in this article, in conjunction with the limited utility of appeals to redress camera-induced problems. It is unfair to introduce cameras as an experiment on non- consenting parties, and then to place upon accused persons or other court participants the burden of proving whether adverse effects occurred. Even if experimentation were to be undertaken, it is critical that the experiment be designed to detect the effects for which we are looking. Typically, when so-called "experiments" have been attempted in the past in the U.S., they usually involve some sort of post-trial formal or informal surveying of judges, lawyers and perhaps some other participants on the question of whether cameras had an effect on them, or on others they observed.65 Surveys are not an appropriate instrument for assessing these effects. Surveys do not assess the cameras' actual objective effects. They only assess the participant's subjective perception of camera-induced effects. The court participant may not be aware 65. It is noteworthy that Florida's survey was not addressed to accused persons. Clearly, they have the most at stake when their trial is televised. The omissions of accused persons ?'om their survey was one of the many serious ?aws with the so?called Florida experiment with courtroom ?lming in the 1970's, on which so many other U.S. states relied so heavily. CAMERAS THE COURTROOM NOT WITHOUT MY CONSENT 387 of the effect. Also, they may be surveyed so late after the event (as was the case in the Florida experiment), that their recollections would be incomplete and unreliable. The most frequently surveyed court participants in the US. are judges. Yet, judges may well be unable to detect camera-induced effects, as discussed earlier. If there were to be an experiment, it would have to involve the examination of two randomly-selected and adequately?sized pools ,of cases, one pool with cameras and one without, with trained observers in place to detect potential impacts. This experimentation would be very costly, and would require the media to agree to film cases which they may not otherwise be interested in ?lming, in order to make the experiment work. Those who advocate for experimentation must be prepared to advocate for appropriate experimentation. Yet, appropriate experimentation is either unethical, unworkable, or both. CONCLUSIONS Several concluding thoughts about the cameras in the courtroom debate are worth considering. First, camera advocates often argue that cameras in the courtroom are the way of the future and are inevitable. If they are inevitable, the argument goes. we might as well set about ensuring that they are implemented in an orderly and appropriate fashion. Similarly, some who themselves oppose courtroom ?lming may feel resigned to its inevitability. The response to this contention is simple. In 1984, when I ?rst undertook carriage of the defence of Ontario's legislative restrictions on cameras in the courtroom in the Squires case, many with whom I spoke also expressed the View, happily or unhappily, that courtroom ?lming was inevitable in Canada. A decade has passed since that time. The "inevitable" has still not happened in Canadian courts. Though perhaps paradoxical, cameras in the courtroom are only "inevitable" if we allow them to be. They may seem "inevitable" because they are a form of technology, and technology seems inevitable. However, the technology of cameras has existed for decades. This is not essentially a technological question. It is a justice policy question. So long as the people of Canada have the capacity to democratically govern themselves, they have the capacity to shape their justice system in a fashion which best promotes the aims of justice. If it is believed that the ends of justice are not promoted when persons caught up in the judicial process are forced to submit to television cameras in the courtroom, we should be able to maintain control over our justice system to avoid their introduction, particularly in the absence of participant consent. There has been no overwhelming public ground swell or outcry in support of courtroom ?lming in Canada in recent years. This is so despite the substantial Canadian exposure to US. television which has included some high-pro?le televised court proceedings. Even the Canadian journalistic community is itself divided on the wisdom of going the American route in this context. 388 OPEN JUSTICE 1 LA TRANSPARENCE DANS LE SYSTEME JUDICIAIRE Every few years, when a major US. case secures extensive television coverage, some Canadian media outlets will rally with a few current affairs items, panel discussions and editorial columns on point. These programs tend at times to have a bias in favour of the pro-camera perspective. This is hardly surprising both because the media produce these programs and because there is no well-organized, highly-funded anti-camera lobby to mount an effective response to the entrenched pro-camera position. After these brief spurts of media attention on the cameras debate, the issue again fades into obscurity. Second, it is critical that the debate over cameras in the courtroom be put in the real world context. It cannot take place in some rare?ed environment devoid of an air of reality. Much of the rhetoric which the media advances in support of its desire to ?lm court proceedings suffers from this kind of unreal atmospherics. A salient example of this is when, as discussed earlier, camera advocates claim that they want cameras in courtrooms to educate the public on the justice system. Another example of discordant rhetoric is where media advocates claim that the media is the agent of the public when it covers court proceedings. As I have argued elsewhere, the public relies on the media for much of their information about judicial proceedings. However, this does not transform journalists, working for public sector or private-pro?t making media mega-corporations into the agents of the public.?S We neither can hire them nor ?re them, nor direct them in how to carry out their business. Were they the agents of the public, we would be able to superimpose upon them rather strict rules about how courtroom footage should be used. However, journalist and news organizations would strenuously resist any effort by the public to direct the media in how to use courtroom footage. Third, it is simply too simplistic to suggest that open justice is an "all or nothing" phenomenon. Openness can serve justice and justice can serve Openness only when a very ?nely tuned delicate balance is maintained between the interests of all those involved in this complex policy debate. Canada's overall approach to open justice since the enactment of the Charter has involved a carefully?tuned and sephisticated approach to media coverage of court proceedings, which avoids the veritable absolutism of American jurisprudence in this context. Fourth, it is insuf?cient for some media advocates to dismiss opponents to coerced courtroom ?lming as being simply "anti-media" or as being "out to punish the media for bad coverage". The premise of the position advanced here is not that the media should be allowed to have cameras in the courtroom only when they do a "good job" in the view of lawyers, judges or politicians. Rather, the position articulated here is that cameras in the courtroom can only be permitted with participant consent because courtroom filming threatens serious harms in the absence of the consent of court participants. This is so regardless of the good or poor quality of journalistic practices when ?lming is permitted. Canada has managed up until now to resist the trend prevailing in the United States towards having cameras in the courtroom. For reasons set out in this article, this 66. MD. Lepofsky, Open Justice 1990, supra note 26. CAMERAS IN THE coua?raoom NOT wm-Iour MY CONSENT 389 Canadian approach is fully warranted. It should continue well into the future. Shakespeare once wrote that all the world's a stage. We should not accept the claims of camera advocates, lest all the worlds? courtrooms become a sound stage. TAB 3 Fi? Manitoba THE PROVINCIAL COURT OF MANITOBA IN THE MATTER OF: THE FA TALIT INQUIRIES ACT C.C.S.M. C. F52 AND IN THE MATTER OF: IN QUEST INTO THE DEATHS OF SHELDON ANTHONY MCKAY AND DURVAL DAVID TAVARES AND IN THE MATTER OF AN APPLICATION BY CANADIAN BROADCASTING CORPORATION, CTV TELEVISION INC., AND THE WINNIPEG FREE PRESS, A DIVISION OF THE FP CANADIAN NEWSPAPERS LIMITED PARTNERSHIP (TI-IE TO RECORD PROCEEDINGS) Sheldon Anthony McKay and Durval David Tavares Inquest Motion Decision Delivered this 28th day of January, 2016 APPEARANCE Mr. Jonathan Kroft, for the Applicants Mr. Charles Murray, for the Department of Justice Manitoba Mr. Scott Farlinger, for the Department of Justice Canada Mr. Tony Marques, for the Manitoba Association of Crown Attorneys I want to begin by thanking all counsel for their extensive written and oral submissions which I have reviewed at length. The applicants are seeking an order that they be permitted to record, videotape and broadcast the inquest proceedings into the deaths of Durval David Tavares and Sheldon Anthony McKay which occurred in Stony Mountain Institute on March 21, 2005 and May 3, 2006 respectively. It is the applicants? argument that they have a s. 2 Charter protected right to do so. This right is subject to 5.1 of the Charter with reasonable limits prescribed by law as are demonstrably justi?ed in a free and democratic society. It is the submission of Mr. Kroft on behalf of the applicants that the case law is now clear with the decision frOm the Supreme Court in CBC v. Canada [2011] 1 S.C.R. The Attorney General of Manitoba, the Attorney General of Canada and the Manitoba Association of Crown Attorneys in response to this application, ask this Court for an order denying the broadcast application. It is their position collectively that there is no constitutional right to televise an inquest or any other judicial proceeding. It is their position that CBC v. Canada does not stand for the proposition that media has a constitutionally protected right to ?lm and broadcast judicial proceedings. These respondents suggest that the decision in the Re: Brian Lloyd Sinclair Inquest 2010 MBPC 18 of Judge Preston is the appropriate decision to rely upon. My reading of the CBC v. Canada case concurs with this position. I do not believe that the media have a constitutionally protected right under 5.2 of the Charter to broadcast and ?lm this inquest. In a joint effort of the three levels of court in Manitoba, a guideline under the Media Audi and Video Recordings in the Courtroom (MAVRIC) and policy have been developed since the Sinclair Inquest to further the directions of the Attorney General of the Province of Manitoba to have ongoing initiatives to improve public access to Manitoba?s justice system. These court initiatives are designed to increase public knowledge and experience with our courts through both personal and intemet access to our sitting courts or through media exposure to those courts through the pilot projects initiated in April 2014. These court initiatives were intended to be evolving and at no time were they to restrict the judicial independence of the presiding judge whose discretion to the operation of his or her court was in their domain exclusively. All parties to this motion have acknowledged this discretion as it relates to the application being made. Clearly, in my opinion, these guidelines and policies are a growing attempt by Manitoba judiciary to expand openness and access to justice within our court proceedings. As a result the application such as this can be heard and considered on an individual case by case basis. At ?rst blush, it appears to me that an inquest hearing is a logical extension of the three court policy of televising court proceedings. Inquests have a very speci?c and limited process and the judge conducting this matter is to examine the circumstances relating to the death of each of the deceased inmates and to determine what if anything can be done to prevent similar deaths from occurring in the future. There is no fault ?nding function within this hearing and as such is somewhat of a neutral hearing which normally will not cause controversy. This should be even more on this speci?c inquest as a result of the deaths occurring more than ten years ago. It is important for the public to have a general understanding at least to judicial processes and in particular to see how an inquest can be an effective tool to shape society for the better in the future. That being said, the circumstances, including the parties involved and the location of the deaths which are the basis of the calling of the hearing, cannot be overlooked. I have on ?le, af?davits of four anticipated witnesses, and from Ms Sholdice, the president of the Manitoba Crown Attorneys Association, outlining the serious concerns that they have as to the ?lming of evidence to be heard at this inquest. All of those parties are concerned about the personal safety of the participants of the hearing should their faces be televised. These fears arise as a result of the fact that the deaths being inquired into relate to once prominent gang leaders of two violent street gangs located and operating in Manitoba then and now. The concern is that there could be repercussions towards them or their families should current gang members take exception to the proceedings or the evidence which arises. I take these concerns seriously. [10] Considering both competing positions, in my discretion, I am allowing the application to record audio only of the inquests of Sheldon Mckay and David Tavares. Obviously, should circumstances arise that require a restriction on any of the recordings that decision will be dealt with then. DATED at the City of Winnipeg, in Manitoba, this 28th day of January, 2016. ?Original signed by:? Brent Stewart, Provincial Court Judge TAB 4 Soci?t? Radio-Canada c. Quebec (Procureur g?n?ral), 2011 SCC 2, 2011 CarswellQue 43 2011 SCC 2, 2011 CarswellQue 43, 2011 CarswellQue 44. [2011] 1 S.C.R. 2011 SCC 2 Supreme Court of Canada Soci?t? Radio-Canada c. Quebec (Procureur g?n?ral) 2011 CarswellQue 43, 2011 CarswellQue 44, 2011 SCC 2, [2011] 1 S.C.R. 19, [2011] S.C.J. No. 2, 199 AC.W.S. (3d) 1132, 1 C.P.C. (7th) 1, 264 C.C.C. (3d) 1, 328 D.L.R. (4th) 34, 411 NR. 23, 93 W.C.B. (2d) 603, .E. 2011-189 Canadian Broadcasting Corporation, Groupe TVA inc., La Presse Lt?e and F?d?ration professionnelle des journalistes du Quebec, Appellants and Attorney General of Canada, Attorney General of Quebec, the Honourable Francois Rolland in his capacity as Chief Justice of the Quebec Superior Court and Barreau du Qu?bec, Respondents and Attorney General of Alberta, Canadian Civil Liberties Association, Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers Association, RTNDA Canada/Association of Electronic Journalists, Canadian Association of Journalists, Canadian Journalists for Free Expression, Canadian Publishers' Council and British Columbia Civil Liberties Association, Interveners McLachlin C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein, Cromwell JJ. Heard: March 16, 2010 Judgment: January 28, 2011 Docket: 32920 Proceedings: af?rmed Soci?t? Radio-Canada c. Qu?bec (Procureur g?n?ral) (2008), 62 CR. (6th) 99, [2008] R.J.Q. 2303, 2008 CarswellQue 9893, 2008 CarswellQue 14639, 2008 QCCA 1910, Bich J.C.A., Doyon J.C.A., Morissette J.C.A., Nuss .C.A., Robert .C.Q. (C.A. Que); af?rmed Soci?t? Radio-Canada c. Qu?bec (Procureur g?n?ral) (2006), 2006 QCCS 5274, 2006 CarswellQue 14112, 2006 CarsweIlQue 9008, [2006] R.J.Q. 2826, Lagac? .C.S. (C.S. Que.) Counsel: Barry Landy, Francois Demers, for Appellants Pierre Salois, Claude oyal, for Respondent, Attorney General of Canada Jean-Francois Jobin, Marie-Eve Mayer, Dominique A. Jobin, for Respondent, Attorney General of Quebec Raynold Langlois, Q.C., Marie Cossette, for Respondent, Honourable Francois Rolland, in his capacity as Chief Justice of Quebec Superior Court Douglas C. Mitchell, Eric Cadi, for Re5pondent, Barreau du Quebec Donald B. Padget, for Intervener, Attorney General of Alberta Mahmud Jamal, Jason MacLean, for Intervener, Canadian Civil Liberties Association Christian Leblanc, Marc-Andre Nadon, for Interveners, Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers Association, RTNDA CanadaJAssociation of Electronic Journalists, Canadian Association of Journalists, Canadian Journalists, for Free Expression and Canadian Publishers? Council Simon V. Potter, Michael A. Feder, for Intervener, British Columbia Civil Liberties Association Subject: Public; Constitutional; Civil Practice and Procedure; Municipal; Human Rights Headnote Privacy and freedom of information Freedom of information Provincial legislation Constitutional issues Following series of incidents involving media at Montreal courthouse, Superior Court and Quebec's ministers de la Justice adopted measures designed to limit activities of reporters These measures limited ?lming, taking photographs and conducting interviews to speci?c areas in courthouses and prohibited broadcasting of recordings of hearings Media representatives unsuccessfully brought motion before Superior Court seeking declaration that these measures CANADA Copyright Thomson Reuters Canada Limited or Its licensors (excluding individual court documents). All rights reserved. 1 Soci?t? Radio-Canada c. Qu?bec (Procureur g?n?ral), 2011 SCC 2, 2011 CarswellQue 43 2011 800 2, 2011 CarswellQue 43. 2011 CarswellQue 44. [2011] 1 S.C.R. were of no force or effect because they limited their freedom of expression, and they appealed Court of Appeal dismissed appeal, holding that ?lming, taking photographs and conducting interviews in courthouses would be likely to disturb tranquility and decorum that are essential in light of purpose of place Court of Appeal found that broadcasting recording of hearings undermined values that underlie freedom of expression Media representatives appealed to Supreme Court of Canada Appeal dismissed Court was of view that activities of ?lming, taking photographs and conducting interviews were not incompatible with purpose of public areas of courthouses Further, broadcasting recordings of hearings could not be considered separately from content and could not serve as basis for excluding expressive activity from protection of s. 2(b) of Canadian Charter of Rights and Freedoms Since news gathering forms integral part of freedom of press, it was Court's view that measures that limit ?lming, taking photographs and conducting interviews infringed s. 2(b) of Charter Test developped in decision of Supreme Court of Canada should be applied Impugned measures met "prescribed by law" requirement Objective of government and judges of Quebec Superior Court was pressing and substantial Further, it was reasonable to expect that measures would have positive effect on maintenance of fair administration of justice Solution proposed in impugned measures fell within range of reasonable alternatives When salutary and negative effects of impugned measures were balanced, it should be concluded that former outweighed latter Therefore, limits imposed on freedom of expression were reasonable and were justi?ed in free and democratic society. Constitutional law Determining constitutionality General principles Following series of incidents involving media at Montreal courthouse, Superior Court and Quebec's ministere de la Justice adopted measures designed to limit activities of reporters These measures limited ?lming, taking photographs and conducting interviews to speci?c areas in courthouses and prohibited broadcasting of recordings of hearings Media representatives unsuccessfully brought motion before Superior Court seeking declaration that these measures were of no force or effect because they limited their freedom of expression, and they appealed Court of Appeal dismissed appeal, holding that ?hning, taking photographs and conducting interviews in courthouses would be likely to disturb tranquility and decorum that are essential in light of purpose of place Court of Appeal found that broadcasting recording of hearings undermined values that underlie freedom of expression Media representatives appealed to Supreme Court of Canada Appeal dismissed Court was of view that activities of ?lming, taking photographs and conducting interviews were not incompatible with purpose of public areas of courthouses Further, broadcasting recordings of hearings could not be considered separately from content and could not serve as basis for excluding expressive activity from protection of s. 2(b) of Canadian Charter of Rights and Freedoms Since news gathering forms integral part of freedom of press, it was Court's view that measures that limit ?lming, taking photographs and conducting interviews infringed s. 2(b) of Charter Test developped in decision of Supreme Court of Canada should be applied Impugned measures met "prescribed by law" requirement Objective of government and judges of Quebec Superior Court was pressing and substantial Further, it was reasonable to expect that measures would have positive effect on maintenance of fair administration of justice Solution proposedin impugned measures fell within range of reasonable alternatives When salutary and negative effects of impugned measures were balanced, it should be concluded that former outweighed latter Therefore, limits imposed on freedom of expression were reasonable and were justi?ed in free and democratic society. Constitutional law Charter of Rights and Freedoms Nature of rights and freedoms Freedom of expression Activities in public or quasi-public areas Following series of incidents involving media at Montreal courthouse, Superior Court and Quebec's minist?re de la Justice adopted measures designed to limit activities of reporters These measures limited ?lming, taking photographs and conducting interviews to speci?c areas in courthouses and prohibited broadcasting of recordings of hearings Media representatives unsuccessfully brought motion before Superior Court seeking declaration that these measures were of no force or effect because they limited their freedom of expression, and they appealed Court of Appeal dismissed appeal, holding that ?lming, taking photographs and conducting interviews in courthouses would be likely to disturb tranquility and decorum that are essential in light of purpose of place Court of Appeal found that broadcasting recording of hearings undermined values that underlie freedom of expression Media representatives appealed to Supreme Court of Canada Appeal dismissed Court was of view that activities of ?lming, taking photographs and conducting interviews were not incompatible with purpose of public areas of courthouses Further, broadcasting WestlawNext mums Copyright Thomson Reuters Canada Limited or its licensors (excludlng individual court documents). All rights reserved. 2 Soci?t? Radio-Canada c. Qu?bec (Procureur g?n?ral), 2011 860 2. 2011 CarswellQue 43 2011 SCC 2.2011 CarswellQue 43. 2011 CarswellQue 44. [2011] 1 S.C.R. recordings of hearings could not be considered separately from content and could not serve as basis for excluding expressive activity from protection of s. 2(b) of Canadian Charter of Rights and Freedoms Since news gathering forms integral part of freedom of press, it was Court's view that measures that limit ?lming, taking photographs and conducting interviews infringed s. 2(b) of Charter Test developped in decision of Supreme Court of Canada should be applied Impugned measures met "prescribed by law" requirement Objective of government and judges of Quebec Superior Court was pressing and substantial Further, it was reasonable to expect that measures would have positive effect on maintenance of fair administration of justice Solution proposed in impugned measures fell within range of reasonable alternatives When salutary and negative effects of impugned measures were balanced, it should be concluded that former outweighed latter Therefore, limits imposed on freedom of expression were reasonable and were justified in free and democratic society. Vie priv?e et acc?s a I'information Acc?s a l'information Legislation provinciale Questions constitutionnelles A la suite d'une s?rie d'incidents survenus au palais do justice de Montr?al impliquant les m?dias, 1a Cour sup?rieure et le minist?re de la Justice du Quebec ont adopt? des mesures visant a encadrer 1e travail des joumalistes Ces mesures limitaient la prise d'images et la tenue d'entrevues a des endroits sp?ci?ques dans les palais de justice et interdisaient la diffusion des enregistrements des audiences Repr?sentants des m?dias ont d?pos? en vain une requ?te devant la Cour sup?rieure visant a faire d?clarer ces mesures nulles et inop?rantes, faisant valoir qu'elles limitaient leur libert? d'expression, et ils ont interjet? appel Cour d'appel a rejet? l'appel au motif que la tenue d'entrevues et la prise d'images ?taient de nature a affecter la qui?tude et decorum essentiels a la vocation des lieux Cour d'appel a conclu que la diffusion des enregistrements des audiences minait les valeurs sous-jacentes de la libert? d'expression Repr?sentants des m?dias ont form? un pourvoi devant 1a Cour supreme du Canada Pourvoi rejet? Cour ?tait d'avis que la prise d'images et la tenue d'entrevues n'?taient pas des activit?s incompatibles avec la destination des aires publiques des palais de justice De plus, Ia diffusion des bandes sonores ne pouvait ?tre consid?r?e de facon ind?pendante du contenu et ne pouvait pas ?tre un motif de retrait de l'activit? expressive de la protection de Part. 2 de la Charte canadienne des droits et libert?s Comme la collecte d'informations est une activit? qui fait partie int?grante de la libert? de la presse, Ia Cour ?tait d'avis que les mesures limitant 1a prise d'images et la tenue d'entrevues portaient atteinte a Part. 2 de la Charte II fallait appliquer la grille d'analyse d?velopp?e dans un arr?t de la Cour supreme du Canada Mesures contest?es constituaient des r?gles de droit Objectif poursuivi par le gouvernement et les juges de la Cour sup?rieure du Quebec ?tait urgent et r?el De plus, i] ?tait raisonnable de pr?voir que les mesures auraient un effet positif sur le maintien de la saine administration de la justice Solution propos?e dans les mesures contest?es se situait a l'int?rieur d'une gamme de mesures raisonnables Lorsque les effets positifs et n?gatifs des mesures contest?es ?taient mis en balance, force ?tait de constater que les premiers l'emportaient sur les seconds Par consequent, les limites impos?es a la libert? d'expression ?taient raisonnables et justifi?es dans le cadre d'une soci?t? libre et d?mocratique. Droit constitutionnel Determination de la constitutionnalit? Principes g?n?raux A la suite d'une s?rie d'incidents survenus au palais de justice de Montreal impliquant les medias, Ia Cour sup?rieure et le minist?re de la Justice du Qu?bec ont adopt? des mesures visant a encadrer 1e travail des joumalistes Ces mesures limitaient la prise d'images et la tenue d'entrevues a des endroits sp?ci?ques dans les palais de justice et interdisaient la diffusion des enregistrements des audiences Repr?sentants des m?dias ont d?pos? en vain une requ?te devant 1a Cour sup?rieure visant a faire d?clarer ces mesures nulles et inop?rantes, faisant valoir qu'elles limitaient leur libert? d'expression, et ils ont interjet? appel Cour d'appel a rejet? l'appel au motif que la tenue d'entrevues et la prise d'images ?taient de nature a affecter 1a qui?tude et decorum essentiels a la vocation des lieux Cour d'appel a conclu que la diffusion des enregistrements des audiences minait les valeurs sous-jacentes de la libert? d'expression Repr?sentants des medias ont form? un pourvoi devant la Cour supreme du Canada -- Pourvoi rejet? Cour ?tait d'avis que la prise d'images et la tenue d'entrevues n'?taient pas des activit?s incompatibles avec la destination des aires publiques des palais de justice De plus, la diffusion des bandes sonores ne pouvait ?tre consid?r?e de facon ind?pendante du contenu et ne pouvait pas ?tre un motif de retrait de l'activit? expressive de la protection de Part. 2 de la Charte canadienne des droits et libert?s Comme 1a collecte d'informations est une activit? qui fait partie int?grante de la libert? de la presse, la Cour ?tait d'avis que les mesures limitant Ia prise d'images et la tenue d'entrevues portaient atteinte a Part. 2 de la Charte Il fallait appliquer Ia grille d'analyse d?velopp?e dans un arr?t de la Cour supr?me du Canada Mesures contest?es constituaient des r?gles de droit Objectif poursuivi par le gouvernement et les juges de la Cour sup?rieure du Qu?bec WestiawNext. CANADA Copyright Thomson Reuters Canada Limited or its iioensors (excluding individual court documents). All reserved. 3 Soci?t? Radio-Canada e. Qu?bee (Procureur g?n?ral), 2011 SCC 2, 2011 CarswellQue 43 2011 SCC 2, 2071?CarswellQue 43. 2011 CarsweliQue 44. [2011] 1 S.C.R. ?tait urgent et r?el De plus, i1 ?tait raisonnable de pr?voir que les mesures auraient un effet positif sur le maintien de la saine administration de la justice Solution propos?e dans les mesures contest?es se situait a l'int?rieur d'une gamme de mesures raisonnables Lorsque les effets positifs et n?gatifs des mesures contest?es ?taient mis en balance, force ?tait de constater que les premiers l'emportaient sur les seconds Par consequent, les limites impos?es a la libert? d'expression ?taient raisonnables ct justi??es dans le cadre d'une soci?t? libre et d?mocratique. Droit constitutionnel Charte des droits et libert?s Nature des droits et libert?s Libert? d'expression Activit?s se d?roulant dans des espaces publics ou quasi-publics A la suite d'une s?rie d'incidents survenus au palais de justice de Montreal impliquant les medias, la Cour sup?rieure et le ministere de la Justice du Quebec ont adopt? des mesures visant a encadrer le travail des journalistes Ces mesures limitaient Ia prise d'images et la tenue d'entrevues a des endroits sp?ci?ques dans les palais de justice et interdisaient la diffusion des enregistrements des audiences Repr?sentants des m?dias ont d?pos? en vain une requ?te devant 1a Cour sup?rieure visant a faire d?clarer ces mesures nulles et inop?rantes, faisant valoir qu'elles limitaient leur libert? d'expression, et ils ont interjet? appel Cour d'appel a rejet? l?appel au motif que la tenue d'entrevues et la prise d'images ?taient de nature a affecter la qui?tude et decorum essentials a la vocation des lieux Cour d'appel a conclu que la diffusion des enregistrements des audiences minait les valeurs sous-jacentes de la libert? d'expression Repr?sentants des medias ont form? un pourvoi devant la Cour supr?me du Canada Pourvoi rejet? Cour ?tait d'avis que la prise d'images et la tenue d'entrevues n'?taient pas des activit?s incompatibles avec la destination des aires publiques des palais de justice De plus, la diffusion des bandes sonores ne pouvait ?tre consid?r?e de facon ind?pendante du contenu et ne pouvait pas ?tre un motif de retrait de l'activit? expressive de la protection de Part. 2 de la Charte canadienne des droits et libert?s Comme la collecte d'informations est une activit? qui fait partie int?grante de la libert? de la presse, la Cour ?tait d?avis que les mesures limitant la prise d'images et la tenue d'entrevues portaient atteinte a Part. 2 de la Charte Il fallait appliquer la grille d'analyse d?velopp?e dans un arr?t de la Cour supreme du Canada Mesures contest?es constituaient des r?gles de droit Objectif poursuivi par le gouvemement et les juges de la Cour superieure du Quebec ?tait urgent ct r?el De plus, i1 ?tait raisonnable de pr?voir que les mesures auraicnt un effet positif sur le maintien de la saine administration de la justice Solution propos?e dans les mesures contest?es se situait a l'int?rieur d'une gamme de mesures raisonnables Lorsque les effets positifs et n?gatifs des mesures contest?es ?taient mis en balance, force ?tait de constater que les premiers l'emportaient sur les seconds Par consequent, les limites impos?es a la libert? d'expression ?taient raisonnables et justi??es dans le cadre d'une soci?t? libre et d?mocratique. Following a series of incidents involving the media at the Montreal courthouse, the Superior Court and Quebec's ministere de la Justice adopted measures designed to limit the activities of reporters. These measures could be found in ss. 38.1 and 38.2 of the Rules of practice of the Superior Court of Quebec in civil matters, ss. 8.A and SB of the Rules of Practice of the Superior Court of the Province of Quebec, Criminal Division, and in the Directive A-l 0 of the Quebec department of justice. These measures limited ?lming, taking photographs and conducting interviews to speci?c areas in Quebec courthouses and prohibited broadcasting of of?cial audio recordings of hearings. Media representatives brought a motion before the Superior Court seeking a declaration that these measures were of no force or effect because they limited their freedom of expression guaranteed under s. 2 of the Canadian Charter of Rights and Freedoms in a way that was not justi?ed under s. 1 of the Charter. The Superior Court dismissed the motion on the grounds that the limits imposed by these measures on freedom of expression were justi?ed under s. 1 of the Charter as they constituted a reasonable limit in a free and democratic society. The media representatives appealed. The Court of Appeal dismissed the appeal, holding that the protection of s. 2(b) of the Charter did not give the media an unrestricted right to conduct interviews, ?lm and take photographs in courthouses.The Court was of the view that such activities would be likely to disturb the tranquility and decorum that are essential in light of the purpose of the place. On the issue of broadcasting recordings of hearings, the majority of the Court found that this method of expression undermined the values that underlie freedom of expression. The media representatives appealed. Held: The appeal was dismissed. Per Deschamps J. (McLachIin C.J.C., Binnie, LeBel, Fish, Abella, Charron, Rothstein, Cromwell JJ. concurring): Both the Superior Court and the Court of Appeal concluded that filming, taking photographs and conducting interviews outside courtrooms were activities that had the necessary expressive content. The same conclusion applied to the CANADA Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 4 Soci?t? Radio-Canada e. Qu?bec (Procureur g?n?ral), 2011 $60 2, 2011 CarswellQue 43 2011 SCC 2, 2011 CarswellQue 43, 2011 CarswellQue 44. [2011] 1 S.C.R. broadcasting of the audio recordings of hearings. It was the Court?s view that in focussing uniquely on the excesses that led to the adoption of the impugned measures, the Court of Appeal was describing the loss of control the judges wanted to avoid, not the activities the media organizations wished to engage in. Thus, the Court was of the view that the activities of ?lming, taking photographs and conducting interviews were not incompatible with the purpose of the public areas of courthouses. Further, the method of expression in question, that is, broadcasting the audio recordings of hearings, could not be considered separately from the content and could not serve as a basis for excluding the expressive activity from the protection of s. 2(b) of the Charter. Since news gathering is an activity that forms an integral part of freedom of the press, it was the Court's view that the measures that limit ?lming, taking photographs and conducting interviews infringed s. 2(b) of the Charter. Freedom of the press could not foster self-ful?lment, democratic discourse and truth ?nding if it had a negative impact on the fair administration of justice. Here, the impugned measures met the "prescribed by law" requirement, and the test developed in a decision of the Supreme Court of Canada should be applied. The objective of the government and the judges of the Quebec Superior Court, which was to maintain the fair administration of justice by ensuring the serenity of hearings, was pressing and substantial. Further, it was reasonable to expect that the measures would have a positive effect on the maintenance of the fair administration of justice by fostering the serenity of hearings and decorum and by helping to reduce, as much as possible, the nervousness and anxiety that people naturally feel when called to testify in court. The solution proposed in the impugned measures with regard to ?lming, taking photographs and conducting interviews fell within a range of reasonable alternatives. The Court was of the view that journalists had a right to use the recordings of hearings to enhance the accuracy of reports they are preparing, but they could not use them in a way that would have an impact on the testimony itself. When the salutary and the negative effects of the impugned measures were balanced, it should be concluded that the former outweighed the latter. Thus, the limits imposed on freedom of expression were reasonable and were justi?ed in a free and democratic society. Therefore, the appeal should be dismissed and the constitutional validity of the impugned measures should be con?rmed. A la suite d'une s?rie d'incidents survenus au palais de justice de Montreal impliquant les m?dias, la Cour sup?rieure et le minist?re de la Justice du Qu?bec ont adopt? des mesures visant a encadrer le travail des journalistes. Ces mesures se trouvaient aux art. 38.1 et 38.2 des R?glements de procedure civile, aux art. 8A et SB des Regles de procedure de la Cour sup?rieure du Quebec, chambre criminelle, et dans la Directive A-ID du ministere de la Justice du Quebec. En outre, ces mesures limitaient 1a prise d'images et la tenue d?entrevues a des endroits sp?ci?ques dans les palais de justice du Quebec et interdisaient la diffusion des enregistrements sonores des audiences. Des repr?sentants des medias ont d?pos? une requ?te devant 1a Cour sup?rieure visant a faire d?clarer ces mesures nulles et inop?rantes, faisant valoir qu'elles limitaient la libert? d'expression que leur garantissait Part. 2 de la Charte canadienne des droits et libert?s d?une facon qui ne pouvait ?tre justi??e sous son article premier. La Cour sup?rieure a rejet? 1a requ?te au motif que les limites que ces mesures imposaient a la Iibert? d'expression ?taient justi??es en regard de l'article premier de la Charte parce qu'elles constituaient des limites raisonnables dans une soci?t? libre et d?mocratique. Les repr?sentants des medias ont interjet? appel. La Cour d'appel a rejet? l'appel au motif que la tenue d'entrevues et la prise d'images sans restriction par les m?dias dans les palais de justice ne b?n??ciaient pas de la protection de Part. 2 de la Charte. La Cour ?tait d'avis qu'une telle activit? ?tait de nature a affecter la qui?tude et decorum essentiels a la vocation des lieux. En ce qui concernait la diffusion des enregistrements des audiences, la majorit? de la Cour ?tait d'avis que ce mode d'expression minait les valeurs sous- jacentes de la libert? d'expression. Les repr?sentants des medias ont form? un pourvoi. Arr?t: Le pourvoi a rejet?. Deschamps, J. (McLachlin, .C.C., Binnie, LeBel, Fish, Abella, Charron, Rothstein, Cromwell, JJ., souscrivant a son opinion) Tant la Cour sup?rieure que la Cour d'appel ont conclu que la prise d'images et la tenue d'entrevues a l'ext?rieur des salles d'audience constituaient des activit?s poss?dant le contenu expressif requis. La meme conclusion s'imposait en regard de la diffusion des enregistrements sonores des audiences. La Cour ?tait d'avis qu'en s'attachant uniquement aux d?bordements qui ont provoqu? l'adoption des mesures contest?es, 1a Cour d'appel s'est trouv?e a d?crire les d?rapages que les juges voulaient ?viter et non les activit?s que les m?dias voulaient exercer. Ainsi, Ia Cour ?tait d'avis que la prise d'images et la tenue d'entrevues n'?taient pas, en soi, des activit?s incompatibles avec la destination des aires publiques des palais de justice. De plus, 1e mode de communication en question, soit 1a diffusion des enregistrements sonores des CANADA Copyright Thomson Reuters Canada Limited or its Iicensors (excluding Individual court documents). All rights reserved. 5 Soci?t? Radio-Canada c. Qu?bec (Procureur g?n?ral), 2011 SCC 2, 2011 CarswellQue 43 2011 SCC 2, 2011 CarswellQue 43. 2011 CarsweilQue 44. [2011] 1 S.C.R. prohibition, adopted an explicit measure. Any attempt to explain why the Court of Quebec has not also done so would be purely speculative. 92 Although I accept that the broadcasting of official audio recordings would add value to media reports and make them more interesting, I cannot find that the prohibition against broadcasting these recordings adversely affects the ability of journalists to describe, analyse or comment rigorously on what takes place in the courts. 93 The negative effect that broadcasting the audio recordings would have on the proceedings and the real impact it would have both on those participating in the hearing and on the search for the truth inherent in the judicial process are factors that must be taken into account. The recordings are, first and foremost, a means of keeping a record of such proceedings, and journalists should not use them in a way that would distort that objective. The raison d'?tre of the recordings must not be altered. They are a means of conserving evidence. To broadcast them in the name of freedom of the press would undermine the integrity of the judicial process, which the open court principle is supposed to guarantee. 94 When the salutary and the negative effects of the impugned measures are balanced, it must be concluded that the former outweigh the latter. In the court context, freedom of expression, like all other fundamental rights, must be reconciled with the fair administration of justice. As Salmon L.J. wrote in Morris v. Crown Of?ce, [1970] 1 All ER. 1079 (Eng. C.A.), at pp. 1086-87 (quoted with approval by Dickson C.J. in B. CGE. Re, [1988] 2 S.C.R. 214 (S.C.C.), at p. 249): Every member of the public has an inalienable right that our courts shall be left free to administer justice without obstruction or interference from whatever quarter it may come. Take away that right and freedom of speech together with all the other freedoms would wither and die, for in the'long run it is the courts of justice which are the last bastion of individual liberty. Like litigants, the media have an interest in contributing to the fair administration of the judicial system. An approach under which only the immediate interests of a few journalists indifferent to the proper functioning of the courts are taken into account would not foster freedom of the press. The press would be far less useful if, in seeking to ful?l its function of reporting information of public interest, it were to compromise the serenity of hearings and the search for the truth. The presence of journalists would then be not only ineffectual, but harmful. 95 I would note that most of the provinces have also adopted measures to limit journalistic activities outside courtrooms (for example, Ontario prohibits photographing or filming any person in a courthouse where there is a reasonable ground for believing that the person is there for the purpose of attending or leaving a hearing (Courts of Justice Act, R.S.O. 1990, c. C43, s. Nova Scotia has designated areas for the use of cameras on the various ?oors of the courthouses to which its measures apply, and interviews must be conducted in speci?ed areas (Guidelines for Press, Media, and Public Access to the Courts of Nova Scotio, Appendix British Columbia recently adopted new rules, but it is too soon to assess their effectiveness (Supreme Court of British Columbia, "Practice Direction: Television Coverage of Court Proceedings", PD 23, July 1, 2010). As for the broadcasting of recordings of hearings, it is regulated by all the provinces. 96 In addition, a number of countries have adopted measures that are similar to or even stricter than the measures being challenged in the case at bar. For example, in the United Kingdom it is prohibited to take any photograph or even to make any sketch in court of any participant in legal proceedings, including in the building and its precincts, and to broadcast recordings of judicial proceedings (Criminal Justice Act, 1925, 15 16 Geo. 5, c. 86, s. 41; Contempt of Court Act 1981, 1981 c. 49, s. 9). France also prohibits the use in courtrooms of any device for recording or broadcasting sound (Code rle procedure p?nale, art. 308). This national, indeed international, consensus con?rms that measures intended to regulate the work of the media in courthouses are necessary to maintain the fair administration of justice. 97 Thus, the limits imposed on freedom of expression are reasonable and are justi?ed in a free and democratic society. 5. Conclusion CANADA Copyright Thomson Reuters Canada Limited or its Iicensors (excluding individual court documents). All rights reserved. 22 Soci?t? Radio-Canada c. Qu?bec (Procureur g?n?ral), 2011 $66 2, 2011 CarswellQue 43 2011 800 2. 2011 CarswellQue 43, 2011 CarswellQue 44, [2011] 1 S.C.R. 98 Freedom of the press and the fair administration of justice are essential to the proper functioning of a democratic society and must be harmonized with one another. Each one is just as vital as the other. Freedom of the press cannot foster self-fulfilment, democratic discourse and truth finding if it has a negative impact on the fair administration of justice. In the instant case, the government has taken action to reconcile those two values. Since no right is absolute, this reconciliation must be accepted. 99 I would dismiss the appeal with costs and con?rm that the impugned measures are constitutional. Appeal dismissed Pourvoi rejet?. Appendix Rules Governing Filming, Picture Taking and Interviewing In order to ensure the fair administration of justice, the serenity of judicial hearings and the respect of the rights of litigants and witnesses: 1. It is prohibited to obstruct or hinder the free movement of persons in public areas, including by stopping in front of them or by blocking their passage. 2. Filming, picture taking and interviewing are permitted only within the areas marked by pictograms in the public sections of the court house. For certain court houses, such areas are identified in the floor plan annexed hereto. 3. It is forbidden to follow individuals with cameras or microphones in court houses. 4. No ?lming, picture taking or interviewing may take place in the general vicinity of court rooms, including near entrance and exit doors. 5. It is, however, permitted to request an interview from a person exiting court room. 6. Where the person consents to give an interview, the media representative and this person must move to the area of the court house designated for that purpose, as identi?ed by pictograms. 7. Notwithstanding the preceding, safety instructions and security zones must be respected at all times. 8. Any person may contact the security service of the courthouse in order to have the present rules enforced. 9. The present rules shall come into effect on May 16, 2005. Francois Rolland Chief Justice Quebec Superior Court End of Document Copyright CD Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. Copyright Thomson Reuters Canada Limited or its licensors (excluding court documents). All rights reserved. 23 TAB 5 R. c. Dufour. 2011 SCC 3, 2011 CarswellQue 41 2011 SCC 3, 2011 CarsweilQue 41,2011 CarswellQue 42. [2011] 1 S.C.R. 2011 SCC 3 Supreme Court of Canada R. c. Dufour 2011 CarswellQue 41, 2011 CarswellQue 42, 2011 SCC 3, [2011] 1 S.C.R. 65, [2011] S.C.J. No. 3, 199 A.C.W.S. (3d) 1161, 227 C.R.R. (2d) 121, 264 C.C.C. (3d) 311, 328 D.L.R. (4th) 651, 411 NR. 75, 92 W.C.B. (2d) 791, .E. 2011-207 Canadian Broadcasting Corporation, Appellant and Her Majesty The Queen and St?phan Dufour, Respondents and Attorney General of Canada, Attorney General of Quebec, Attorney General of New Brunswick, Attorney General of Alberta, British Columbia Civil Liberties Association and Canadian Civil Liberties Association, Interveners Abella ., Binnie ., Charron ., Cromwell ., Deschamps ., Fish ., LeBel ., McLachlin C.J.C., Rothstein J. Heard: March 16, 2010 Judgment: January 28, 2011 Docket: 32987 Proceedings: af?rmed R. c. Dufour (2008), 2008 CarswellQue 14365, Levesque .C.S. (C.S. Que.) Counsel: Sylvie Gadoury, Genevieve McSween, Anne-Julie Perrault, pour Appelante Dominique A. obin, Denis Dionne, pour Intim?e, Sa Majest? 1a Reine, Intervenant, procureur g?n?ral du Qu?bec Pascale F. Tremblay, Michel Boudreault, pour Intim?e, Ste?phan Dufour Pierre Salois, Claude oyal, pour Intervenant, procureur g?n?ral du Canada Ga?tan Migneault, pour Intervenant, procureur g?n?ral du Nouveau-Brunswick Donald B. Padget, pour Intervenant, procureur g?n?ral de I'Alberta Simon V. Potter, Michael A. eder, pour Intervenante, Association des libert?s civiles de la Colombie Britanniqu Mahmud Jamal, Jason MacLean, pour Intervenante, Association canadienne des libert?s civiles Subject: Criminal; Public; Evidence; Constitutional; Municipal Headnote Criminal law Trial procedure Conduct of trial Miscellaneous Accused was charged with aiding suicide under s. 241(b) of Criminal Code Crown produced as exhibit video recording of statement accused had made to police before being charged Members of media were authorized to view statement but prohibited from broadcasting recording Broadcasting corporation brought motion before Superior Court, seeking permission to broadcast recording of statement Trial judge dismissed motion on grounds that ss. 8 and SA of Rules of Practice of Superior Court of Province of Quebec, Criminal Division, prohibited any broadcasting of recording of hearing Broadcasting corporation appealed to Supreme Court of Canada under s. 40 of Supreme Court Act Appeal dismissed Prohibition on broadcasting provided for in ss. 8 and 8.A of Rules applies only to recordings of proceedings Exhibits cannot be equated with those proceedings Thus, in absence of applicable statutory provision, it was up to trial judge to decide, in accordance with analytical approach developed in two decisions of Supreme Court of Canada, how exhibits could be used Access to exhibits is corollary to open court principle However, there are cases in which protection of social values must prevail over openness Here, accused had intellectual disability and was at risk of being adversely affected by broadcasting of his statement Also, accused had been acquitted, which rendered appeal moot Therefore, appeal should be dismissed. Privacy and freedom of information Freedom of information Provincial legislation Practice and procedure Miscellaneous Copyright Thomson Reuters Canada Limited or its licensors (excluding indlviduai court documents). All rights reserved. 1 R. c. Dufour, 2011 366 3, 2011 CarswellQue 41 2011 800 3. 2011 CarswellQue 41. 2011 CarswellQue 42, [2011] 1 S.C.R. Accused was charged with aiding suicide under s. 241 of Criminal Code Crown produced as exhibit video recording of statement accused had made to police before being charged Members of media were authorized to view statement but prohibited from broadcasting recording Broadcasting corporation brought motion before Superior Court, seeking permission to broadcast recording of statement Trial judge dismissed motion on grounds that 8 and 8.A of Rules of Practice of Superior Court of Province of Quebec, Criminal Division, prohibited any broadcasting of recording of hearing Broadcasting corporation appealed to Supreme Court of Canada under s. 40 of Supreme Court Act Appeal dismissed Prohibition on broadcasting provided for in 55. 8 and 8.A of Rules applies only to recordings of proceedings Exhibits cannot be equated with those proceedings Thus, in absence of applicable statutory provision, it was up to trial judge to decide, in accordance with analytical approach developed in two decisions of Supreme Court of Canada, how exhibits could be used Access to exhibits is corollary to open court principle However, there are cases in which protection of social values must prevail over openness Here, accused had intellectual disability and was at risk of being adversely affected by broadcasting of his statement Also, accused had been acquitted, which rendered appeal moot Therefore, appeal should be dismissed. Evidence Examination of witnesses Previous statements Miscellaneous Accused was charged with aiding suicide under s. 241 of Criminal Code Crown produced as exhibit video recording of statement accused had made to police before being charged Members of media were authorized to View statement but prohibited from broadcasting recording Broadcasting corporation brought motion before Superior Court, seeking permission to broadcast recording of statement Trial judge dismissed motion on grounds that ss. 8 and 8.A of Rules of Practice of Superior Court of Province of Quebec, Criminal Division, prohibited any broadcasting of recording of hearing Broadcasting corporation appealed to Supreme Court of Canada under s. 40 of Supreme Court Act Appeal dismissed Prohibition on broadcasting provided for in ss. 8 and 8.A of Rules applies only to recordings of proceedings Exhibits cannot be equated with those proceedings Thus, in absence of applicable statutory provision, it was up to trial judge to decide, in accordance with analytical approach developed in two decisions of Supreme Court of Canada, how exhibits could be used Access to exhibits is corollary to open court principle However, there are cases in which protection of social values must prevail over openness Here, accused had intellectual disability and was at risk of being adversely affected by broadcasting of his statement Also, accused had been acquitted, which rendered appeal moot Therefore, appeal should be dismissed. Droit criminel Procedure lors du proc?s D?roulement du proc?s Divers Accus? a inculp? du crime d'aide au suicide pr?vu a Part. 241b) du Code criminel Minist?re public a d?pos? comme piece au proces l'enregistrement vid?o d'une declaration faite par l'accus? aux policiers avant sa mise en accusation On a autoris? des joumalistes a visionner la declaration mais on leur a interdit de diffuser l'enregistrement Soci?t? de radiodiffusion a d?pos? une requ?te devant la Cour sup?rieure demandant la permission de diffuser l'enregistrement de la declaration uge du proces a rejet? la requ?te au motif que les art. 8 et 8A des Regles de procedure de la Cour sup?rieure du Quebec, chambre criminelle, interdisaient la diffusion de tout enregistrement des audiences Soci?t? de radiodiffusion a form? un pourvoi devant 1a Cour supr?me du Canada, en vertu de PartCour supreme Pourvoi rejet? Interdiction de diffusion pr?vue aux art. 8 et 8A des Regles vise uniquement les enregistrements des d?bats Pieces ne peuvent pas leur ?tre assimil?es Ainsi, en l'absence de disposition legislative applicable, i1 revenait an juge du proc?s de d?cider de I'usage qui pouvait en ?tre fait selon 1a grille d'analyse ?tablie dans deux arr?ts de la Cour supreme du Canada Acces aux pieces est un corollaire du caract?re public des d?bats Toutefois, a des cas ou la protection de valeurs sociales doit parfois avoir pr?s?ance sur la publicit? des d?bats En l'esp?ce, l'accus? avait une d??cience intellectuelle et risquait de subir des inconv?nients a la suite de la diffusion de sa declaration De plus, l'accus? avait acquitt?, ce qui rendait le pourvoi sans objet Par consequent, 1e pourvoi devrait ?tre rejet?. Vie priv?e et acces a l'information ..-- Acces a l?information Legislation provinciale Procedure Divers Accus? a inculp? du crime d'aide au suicide pr?vu a Part. 241b) du Code criminel Minist?re public a d?pos? comme piece au proc?s l'enregistrement video d'une declaration faite par l'accus? aux policiers avant sa mise en accusation On a autoris? des joumalistes a visionner Ia declaration mais on leur a interdit de diffuser l'enregistrement Soci?t? de radiodiffusion a d?pos? une requ?te devant Ia Cour sup?rieure demandant la permission de diffuser l'enregistrement de la declaration Juge du proc?s a rejet? 1a requ?te au motif que les art. 8 et 8A des R?gles de procedure de la Cour sup?rieure du Quebec, chambre criminelle, interdisaient la diffusion de tout enregistrement des audiences Soci?t? de Copyright Thomson Reuters Canada Limited or its licensors (excluding court documents). All rights reserved. 2 R. c. Dufour. 2011 SCC 3, 2011 Carswelloue 41 2011 SCC 3, 2011 CarswellQue 41. 2011 CarswellQue 42, [2011] 1 S.C.R. radiodiffusion a form? un pourvoi devant la Cour supreme du Canada, en vertu de l'artCour supr?rne Pourvoi rejet? Interdiction de diffusion pr?vue aux art. 8 et 8A des Regles vise uniquement Ies enregistrements des d?bats Pieces ne peuvent pas leur ?tre assimil?es Ainsi, en l'absence de disposition legislative applicable, il revenait au juge du proc?s de d?cider de l'usage qui pouvait en ?tre fait selon 1a grille d'analyse ?tablie dans deux arr?ts de la Cour supreme du Canada Acc?s aux pieces est un corollaire du caract?re public des d?bats Toutefoisprotection de valeurs sociales doit parfois avoir pr?s?ance sur la publicit? des d?bats En l'esp?ce, l'accus? avait une d?ficience intellectuelle et risquait de subir des inconv?nients a la suite de la diffusion de sa declaration De plus, l'accus? avait acquitt?, ce qui rendait 1e pourvoi sans objet Par consequent, 1e pourvoi devrait ?tre rejet?. Preuve Interrogatoire des t?moins Declarations ant?rieures Divers Accus? a inculp? du crime d'aide au suicide pr?vu a l'art. 241b) du Code criminel Minist?re public a d?pos? comme piece au proc?s l'enregistrement vid?o d'une declaration faite par l'accus? aux policiers avant sa mise en accusation On a autoris? des joumalistes a visionner la declaration mais on leur a interdit de diffuser l?enregistrement Soci?t? de radiodiffusion a d?pos? une requ?te devant Ia Cour sup?rieure demandant la permission de diffuser l?enregistrement de la declaration Juge du proces a rejet? Ia requ?te au motif que les art. 8 et 8A des Regles de procedure de la Cour sup?rieure du Qu?bec, chambre criminelle, interdisaient la diffusion de tout enregistrement des audiences Soci?t? de radiodiffusion a form? un pourvoi devant Ia Cour supr?me du Canada, en vertu de PartCour supreme Pourvoi rejet? Interdiction de diffusion pr?vue aux art. 8 et 8A des R?gles vise uniquement Ies enregistrements des d?bats Pieces ne peuvent pas leur ?tre assimil?es Ainsi, en l'absence de disposition legislative applicable, il revenait au juge du proc?s de d?cider de l'usage qui pouvait en ?tre fait selon la grille d'analyse ?tablie clans deux arr?ts de la Cour supr?me du Canada Acc?s aux pieces est un corollaire du caractere public des d?bats Toutefoisprotection de valeurs sociales doit parfois avoir pr?s?ance sur la publicit? des d?bats En l'eSp?ce, l'accus? avait une d??cience intellectualle et risquait de subir des inconv?nients a la suite de la diffusion de sa declaration De plus, l'accus? avait acquitt?, ce qui rendait le pourvoi sans objet Par consequent, le pourvoi devrait ?tre rejet?. Accused was charged with aiding suicide under s. 241(b) of the Criminal Code. At one point during the trial, the Crown produced as an exhibit a video recording of a statement the accused had made to the police before being charged. Members of the media were authorized to view the statement but prohibited from broadcasting the recording. A broadcasting corporation brought a motion before the Superior Court, seeking permission to broadcast the recording of the statement. The trial judge dismissed the motion on the grounds that 53. 8 and 8.A of the Rules of Practice of the Superior Court of the Province of Quebec, Criminal Division, prohibited any broadcasting of a recording of a hearing. The broadcasting corporation appealed to the Supreme Court of Canada under s. 40 of the Supreme Court Act. Held: The appeal was dismissed. Per Deschamps J. (McLachlin C.J.C., Binnie, LeBel, Fish, Abella, Charron, Rothstein, Cromwell JJ. concurring): The prohibition on broadcasting provided for in ss. 8 and 8.A of the Rules applies only to recordings of proceedings. Exhibits cannot be equated with those proceedings. Thus, in the absence of an applicable statutory provision, it was up to the trial judge to decide, in accordance with the analytical approach developed in two decisions of the Supreme Court of Canada, how exhibits could be used. Access to exhibits is a corollary to the open court principle. However, there are cases in which the protection of social values must prevail over openness. A situation requiring the protection of vulnerable individuals, especially after they have been acquitted, is one such case. Here, the accused had an intellectual disability and was at risk of being adversely affected by the broadcasting of his statement. Also, the accused had been acquitted, which rendered the appeal moot. Therefore, the appeal should be dismissed. L'accus? a inculp? du crime d?aide au suicide pr?vu a Part. 241b) du Code criminel. A un moment donn? durant 1e proc?s, le ministere public a d?pos? comme piece au proces l'enregistrement vid?o d?une declaration faite par l'accus? aux policiers avant sa mise en accusation. On a autoris? des joumalistes a visionner la declaration mais on leur a interdit de diffuser l'enregistrement. Une soci?t? de radiodiffusion a d?pos? une requ?te devant la Cour sup?rieure demandant la permission de diffuser l'enregistrement de la declaration. Le juge du proc?s a rejet? la requ?te au motif que Ies art. 8 et 8A des Regles de procedure de la Cour sup?rieure du Qu?bec, chambre criminelle, interdisaient Ia diffusion de tout enregistrement des audiences. WestiawNext CANADA Copyright Thomson Reuters Canada Limited or its Iicensors (excluding individual court documents). All rights reserved. 3 R. c. Dufour, 2011 SCC 3, 2011 CarswellQue 41 2011 SCC 3. 2011 CEswellQue 41. 2011 CarswellQue 42. [2011] 1 S.C.R. La soci?t? de radiodiffusion a fortn? un pourvoi devant la Cour supreme du Canada, en vertu de PartCour supr?me. Arr?t: Le pourvoi a rejet?. Deschamps, J. (McLachlin, .C.C., Binnie, LeBel, Fish, Abella, Charron, Rothstein, Cromwell, JJ., souscrivant a son opinion) L'interdiction de diffusion pr?vue aux art. 8 et 8A des R?gles vise uniquement les enregistrements des d?bats. Les pieces ne peuvent pas leur ?tre assimil?es. Ainsi, en l'absence de disposition legislative applicable, il revenait au juge du proc?s de decider de l'usage qui pouvait en ?tre fait selon la grille d'analyse ?tablie dans deux arr?ts de la Cour supreme du Canada. L'acces aux pieces est un corollaire du caractere public des d?bats. Toutefoisprotection de valeurs sociales doit parfois avoir pr?s?ance sur la publicit? des d?bats. La protection des personnes vuln?rables et particulierement lorsqu'elles ont acquitt?es paraissait ?tre un tel cas. En I'esp?ce, l'accus? avait une d??cience intellectuelle et risquait de subir des inconv?nients a la suite de la diffusion de sa d?claration. De plus, l'accus? avait acquitt?, ce qui rendait le pourvoi sans objet. Par consequent, le pourvoi devrait ?tre rejet?. APPEAL by broadcaster from judgment reported at c. ngfour (2008), 2008 CarswellQue 14365 (C.S. Que.), dismissing its motion seeking permission to broadcast accused's statement. POURVOI d'un radiodiffuseur a l'encontre d'un jugement publi? a c. Dufour (2008), 2008 CarswellQue 14365 (C.S. Que.). ayant rejet? sa requ?te visant a obtenir la permission de diffuser une declaration de l'accus?. Desclzamps J.: 1 In this case, as in the companion appeal Soci?t? Radio-Canada c. Qu?bec (Procureur g?n?ral), 2011 SCC 2 (S.C.C.), the judgment in which is being released concurrently, the Court must consider the interrelationship of freedom of the press, the open court principle and the fair administration of justice. The challenge in the companion appeal concerns rules on broadcasting recordings of hearings and on conducting interviews, ?lming and taking photographs. In the case at bar, the challenge relates instead to the broadcasting of a video recording tendered in evidence at trial. 1. Facts 2 The respondent St?phan Dufour, who was charged with aiding suicide under s. 241(b) of the Criminal Code, R.S.C. 1985. c. C-46 C. elected to be tried by judge and jury. The trial began on November 25, 2008 before Levesque J. of the Quebec Superior Court. On November 27, 2008, the Crown produced as an exhibit a video recording of a statement Mr. Dufour had made to the police before being charged. The parties, the jury and members of the media were present in the courtroom. No general or speci?c restrictions were placed on the openness of the hearing. Levesque J. authorized the journalists to view the statement. For this purpose, portions of the recorded statement selected by the journalists were shown on a screen in another courtroom, and the journalists were allowed to ?lm the screen as these portions were being played back. However, the court clerk and Levesque J. told the journalists that they were prohibited from broadcasting the recording of the statement. This limit on the use of the recording gave rise to this litigation. 2. Judicial History 3 On December 1, 2008, the appellant, the Canadian Broadcasting Corporation and Groupe TVA applied jointly to L?vesque J. for permission to broadcast the video recording of the statement. The motion was dismissed: [2008] 1Q. No. 24110 (C.S. Que.). The judge considered that since 55. 8 and SA of the Rules of Practice of the Superior Court of the Province of Quebec, Criminal Division, 2002, am. s. or "Rules of Criminal Practice"), prohibit any broadcasting of a recording of a hearing, the broadcasting of a video recording introduced in evidence should also be prohibited (para. 21). In his opinion, "the effect of [concluding otherwise] would be to indirectly authorize the applicants to do something that is directly prohibited" (para. 22). Relying on the Quebec Court of Appeal's judgment in Soci?te? Radio-Canada c. Qu?bec (Procureur g?n?ral), 2008 QCCA 1910, [2008] R.J.Q. 2303 (CA. Que.), Levesque J. held that 53. 8, SA and SB of the Rules of Criminal Practice were constitutionally valid. CANADA Copyright Thomson Reuters Canada Limited or its licensors (excluding indivldual court documents). All rights reserved. 4 R. c. Dufour, 2011 SCC 3, 2011 CarswellQue 41 2011 SCC 3. 2011 CarswellQue 41. 2011 CarswellQue 42. [2011] 1 S.C.R. 4 The CBC appealed that order to this Court under s. 40 of the Supreme Court Act, R.S.C. 1985, c. S-26. 3. Issues 5 On June 29, 2009, the Chief Justice stated two questions concerning the constitutionality of ss. 8 and 8.A under s. 205) of the Canadian Charter of Rights and Freedoms Charter"). The CBC, the Crown and the Attorney General of Quebec together with Stephan Dufour and the Attorney General of Canada submit that these questions should not be answered, because in their view ss. 8 and 8.A are not applicable in this case. As will be shown in the reasons that follow, this submission is well founded. I would therefore restate the issues as follows: 1. Do 55. 8 and 8.A prohibit the broadcasting of the statement? 2. If not, what are the rules applicable to the broadcasting of an exhibit tendered in evidence at trial? 4. Analysis 6 I will begin by considering the impact of the Rules of Criminal Practice on the broadcasting of exhibits tendered in evidence before discussing the test for determining whether a discretionary publication ban is valid. 4.1 Scope of Sections 8 and 8.A of the Rules of Criminal Practice 7 The relevant excerpts from ss. 8 and 8.A of the Rules of Criminal Practice read as follows: The media may nevertheless record proceedings before the court on audiotape, including any decision rendered, unless the judge orders otherwise. The broadcasting of any such recording is prohibited. 8.A Any broadcasting of a recording of a hearing is prohibited. 8 The prohibition established in ss. 8 and 8.A applies only to the broadcasting of recordings of proceedings, that is, of sounds (including voices) heard during hearings. Exhibits are distinct from the hearings. From the moment they are tendered at trial, exhibits become part of the record of the proceedings. Because they are created independently of and prior to the proceedings at the hearing, however, they cannot be equated with those proceedings. Although the factors that proved to be applicable in the analysis of the constitutional validity of the Rules of Criminal Practice in the companion case may also be relevant to the determination of whether the appellant is entitled to broadcast the exhibits, it does not follow that those rules can serve as a basis for resolving the issue in the case at bar. 4.2. Rules Applicable to the Broadcasting of an Exhibit 9 The Crown and the AGQ argue that Levesque .'s order cannot be equated with a publication ban. They submit, as does St?phan Dufour, that the protection of s. 2(b) of the Charter does not extend to the broadcasting of an exhibit such as a statement tendered in evidence. The CBC disagrees, contending that that constitutional guarantee does in fact apply to the broadcasting of the statement. 10 Because the CBC wishes to inform its viewers of the message contained in the video recording, broadcasting that recording is clearly an expressive activity to which the protection of s. 2(b) of the Charter might apply (Irwin Toy Ltd. c. Qu?bec (Procureur ge'ne'ral), [1989] 1 S.C.R. 927 11 St?phan Dufour, the Crown, the AGQ and the AGC also submit that the rule applicable to the conditions for broadcasting was established in Vic/cery v. Nova Scotia (Prothonotary, Supreme Court), [1991] S.C.R. 671 (S.C.C.), and not in Dagenais v. Canadian Broadcasting Corp, [1994] 3 S.C.R. 835 (S.C.C.), and R. v. Mentuck, 2001 SCC 76, Copyright Thomson Reuters Canada leited or its licensors (excludlng individual court documents). All rights reserved. 5 R. c. Dufour, 2011 SCC 3, 2011 CarswellQue 41 2011 SCC 3. 2011 CarswellQue 41. 2011 CarswellQue 42, [2011] 1 S.C.R. [2001] 3 S.C.R. 442 (S.C.C.), I cannot agree with this position. Although some aSpects of Vickery remain relevant, that case is not determinative, as the Court declined at that time to rule on whether access to exhibits was protected by the Constitution that argument had not been raised in the courts below. In the instant case, however, the constitutional guarantee argument has been expressly raised. 12 Access to exhibits is a corollary to the open court principle. In the absence of an applicable statutory provision, it is up to the trial judge to decide how exhibits can be used so as to ensure that the trial is orderly. This rule has been well established in our law for a very long time. As long ago as in Macintyre v. Nova Scotia (Attorney General), [1982] S.C.R. 175 (S.C.C.), at p. 189, Dickson J. (as he then was) wrote: Undoubtedly every court has a supervisory and protecting power over its own records. Access can be denied when the ends of justice would be subverted by disclosure or the judicial documents might be used for an improper purpose. (See also P. B?liveau and M. Vauclair, Trait? g?n?ral de preuve et de procedure p?nales (15th ed. 2008), at pp. 499-500; Canadian Broadcasting Corp. v. R, 2010 ONCA 726 (Out. c. Be'rub?, [2005] R.J.Q. 1183 (CS. Que); R. c. Giroux [2005 CarswellQue 1890 (CS. 2005 12396) 13 The analytical approach developed in Dagenais and Mentuck applies to all discretionary decisions that affect the openness of proceedings. In Vancouver Sun, Re, 2004 SCC 43, [2004] 2 S.C.R. 332 (S.C.C.), Iacobucci and Arbour JJ. wrote the following: While the [Dagenais/Mentuck] test was developed in the context of publication bans, it is equally applicable to all discretionary actions by a trial judge to limit freedom of expression by the press during judicial proceedings. Discretion must be exercised in accordance with the Charter, whether it arises under the common law, as is the case with a publication ban (Dagenais, supra; Mentuck, supra); is authorized by statute, for example under s. 486(1) of the Criminal Code which allows the exclusion of the public from judicial proceedings in certain circumstances (Canadian Broadcasting Corp. v. New Brunswick (Attorney General), supra, at para. 69); or under rules of court, for example, a confidentiality order (Sierra Club of Canada v. Canada (Minister of Finance [2002] 2 S.C.R. 522, 2002 SCC 41). The burden of displacing the general rule of openness lies on the party making the application: Canadian Broadcasting Corp. v. New Brunswick (Attorney General at para. 71. [para 31] (See also Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188 (S.C.C.), at para. 7; Application to proceed in camera, Re, 2007 SCC 43, [2007] 3 S.C.R. 253 (S.C.C.), at para. 35; Toronto Star NeWSpapers Ltd. v. R, 2010 SCC 21, [2010] 1 S.C.R. 722 (S.C.C.), at paras. 15-16; Canadian Broadcasting Corp. v. R, at para. 21) 14 Thus, there is no need to determine whether the facts in the case at bar are analogous to those in Dagenais or Mentuck. The ?ndings that the activity in issue is protected by 5. of the Charter and that the order was within the discretion of Levesque J. will suf?ce. The issue must accordingly be resolved by applying the test from Dagenais and Mentuck. Requiring the judge to apply this test does not mean that it is necessary to conduct a or elaborate review of the evidence, although all the relevant facts must be considered. Nor is there anything new about trial judges being responsible for establishing conditions for access to exhibits. Judges have always been required, in exercising their discretion, to balance factors that might seem to point in opposite directions. With this in mind, the factors listed in Vickery remain relevant, but they must be considered in light of the framework developed in Dagenais and Mentuck. 15 In the instant case, given that the trial judge interpreted the Rules of Criminal Practice too broadly, he failed to conduct the analysis required by Dagenais and Mentuck. If the trial were still under way, it would be appropriate to remand the case to him to decide the issue on the basis of the relevant facts. However, not only is the trial over Mr. Dufour was acquitted but the Court of Appeal has dismissed the Crown's appeal from that verdict since this Court took the instant case under advisement. The circumstances have therefore been altered fundamentally and the appeal as framed has become moot. Nevertheless, since this is a question of interest, I should mention a few considerations that Copyright Thomson Reuters Canada Limlted or its Iicensors (excluding Individual court documents). All rights reserved. 6 R. c. Dufour, 2011 SCC 3, 2011 CarswellQue 41 2011 860 3. 2011 CarswellQue 41, 2011 CarswellQue 42. [2011] 1 S.C.R. might prove to be relevant should a motion to broadcast the statement be made even though the judicial proceedings are over. 16 The weighing involved in the analysis required by Vickery, Dagenais and Mentuck is based on considerations that include the speci?c context of the case before the judge. How crucial this context is can be seen from the facts in the case at bar. 17 The context of a statement made by an accused person or a susPect in the course of a police investigation is different from that of testimony given in a courtroom. A person who testi?es at a hearing usually does so under compulsion of law, pursuant to a subpoena. Witnesses must, to the extent possible, be protected from any external pressure that could in?uence their testimony. The controlled environment of the courtroom contributes to this objective. The circumstances speci?c to compelled testimony do not exist in the case of an out-of-court statement. But if the person who makes the statement knows that it could end up as the lead story on the local or national television news, this could cause him or her to think carefully before deciding whether to make it. Thus, the possibility that the statement will be broadcast could have a negative effect on the search for the truth, but it could also have a salutary effect on the voluntariness of the statement and, consequently, on the administration of justice. 18 Moreover, since an exhibit already exists when it is introduced at trial, the judge's decision can always be made at the appropriate time. It will therefore be possible for the trial judge, before making an order on an application to broadcast a statement, to weigh the factors at stake and ensure that the serenity of the hearing, trial fairness and the fair administration of justice are preserved. 19 At the end of the trial of the person who made the statement, the judge may have to assess the impact that broadcasting the statement might have on the trial of a co-accused or on the accused personally. In his factum, Mr. Dufour argues that the impact on him of broadcasting the statement would be particularly dire because of his intellectual disability. The fact that Mr. Dufour has been acquitted and his particular vulnerability are factors that give full meaning to Dickson J's comment in MacIntyre, at pp. 186-87, that there are cases in which the protection of social values must prevail over openness. In my view, a situation requiring the protection of vulnerable individuals, especially after they have been acquitted, is one such case. 20 For these reasons, I would dismiss the appeal, but without costs. Appeal dismissed. Pourvoi rejet?. End of Document Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. WestlaWNext (MAM Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 7 1 2018-01-23 20:19 queens 3067871307 306 4467737 2 BENCH FOR SASKATCHEWAN Citation: 2018 SKQB 27 Date: 2018 01 23 Docket: CRIM 40 of 201 7 Judicial Centre: . Battleford BETWEEN CTV, a division of BELL MEDIA IN C., CANADIAN BROADCASTING CORPORATION, GLOBAL NEWS, 1 a division of CORUS ENTERTAINMENT IN C., POSTMEDIA NETWORK IN C., and ABORIGINAL PEOPLES TELEVISION NETWORK, APPLICANTS - and HER MAJESTY THE QUEEN, RESPONDENT and - GERALD STANLEY, RESPONDENT PUBLICATION BAN: Pursuant to 33. 645(5) and 648 of the Criminal Code, no information regarding any portion of the trial taking place in the absence of the jury may be published in any document or broadcast or transmitted in any way until the jury retires to consider its verdict. Counsel: F. William Johnson, Q.C. for the applicants William G. Burge, Q.C., and Christopher J. Browne for the Crown Scott R. Spencer and Dustin L. Gillanders for Gerald Stanley REASONS re APPLICATION TO PERMIT CAMERAS POPESCUL C.J.Q.B. IN THE COURTROOM TO RECORD AND BROADCAST - CERTAIN SEGMENTS OF THE TRIAL January 23, 2018 . 2018-01-23 20:19 queens 3067871307 306 4467737 3 I. INTRODUCTION Gerald Stanley is charged with the second degree murder of Colten Boushie. The incident giving rise to the charge occurred on August 9, 2016. Mr. Stanley was committed to stand trial on April 6, 2017. Preliminary motions were scheduled, and heard, the week of November 20, 2017. Decisions reSpecting all of the preliminary motions have been rendered. The trial is scheduled to commence on January 29, 2018. On November 27, 2017, counsel for the applicants [Media], ?rst provided a general indication to the Court that it intended to bring a formal application respecting permission to place cameras in the courtroom during the upcoming trial. Formal notice of the application was served on the Crown and defence and ?led with the Court on December 12, 2017. The application consists of a notice of application, the af?davits of Karyn Pugliese and David Hutton, a written submission and a draft order. The af?davits, albeit informative, provide a relatively thin foundation for an application such as this that could have far-reaching consequences. The Crown and defence chose not to call any evidence or ?le any af?davits, although did submit comprehensive written submissions. The application was heard on January 16, 2018. Both the Crown and the defence Oppose the application. The Media?s materials contain an email from a lawyer, who represents the family of Mr. Boushie, in which he states that the deceased?s family is in favour of the application. No other entities or organizations were given formal notice of the application. The application does not challenge-the constitutional validity of the 2018-01-23 20:19 queens3067871307 306 4467737 4 -3- current guidelines regulating the use of cameras in Saskatchewan courtrooms, or of the provisions of the Criminal Code, RSC 1985, C-46, pertaining to publication bans. The Media sought formal standing to make the within application. Both the Crown and defence agreed that the Media should have standing. In light of their consent, the Court granted the Media standing. The fact that an application was being made by the Media to broadcast certain segments of the trial was reported in the media. Apparently, no consideration was given to the possibility that the application itself would be caught by either a mandatory or temporary publication ban. This issue was raised at the outset of the hearing. The Media contended that the application did not fall within the mandatory publication ban provisions and that a discretionary publication ban was not appropriate. The Crown and. defence took the opposite position. Each side seemed to be taken off-guard by the position of the other. Since the parties were not prepared to comprehensively address the issue, they were given leave to ?le written arguments on the question. In the meantime, a temporary publication ban was ordered pending release of this decision. II. THE REQUEST The Media requests permission to electronically record and publish ?all or excerpts? of the following segments of the upcoming trial: the opening remarks of the Trial Judge to those persons who are in the courtroom following the empanelling of the uiy; the opening remarks of [the Crown prosecutor] and [defence counsel] to the Jury; the closing submissions of [the Crown prosecutor] and [defence counsel] to the Jury once the Trial Judge calls on 2018-01-23 20:19 queens 3067871307 306 4467737 them to do so; the charge to the Jury by the Trial Judge; the verdict delivery by the spokesperson for the Jury; and the remarks of the Trial Judge following the delivery of the verdict, including sentencing, if any. 5/27 The basis for making the application, as set out in the Media?s notice of application is as follows: 1). Administration of Justice 3). granting the requested relief will assist this Honourable Court in explaining to Saskatchewan citizens the nature and management of a murder trial including in particular the roles of the judge, jury, counsel, and court staff; the victims? family welcomes such communication using courtroom camera images thereby not only eliminating what would otherwise have been a major concern in this area of administration of justice but in fact supporting this initiative; 0). the Open Court principle, a central component of the administration of justice responsibility, will be respected, and enhanced; and, Gerald Stanley?s right to a fair trial will be protected by' guarding against the perceived risks to the all-important oral evidence presentation, consideration, and acceptance or rejection process, when cameras even though non-obtrusive in the courtroom are known to witnesses. 2). Freedom of Expression in this digital age where human communication is - increasingly by internet digitally transferred camera recorded words and images, whether using cellular telephone digital cameras or other forms of digital cameras such as those proposed by the Applicants, the proposed relief Will respect the Applicants? and their audiences? freedom to express and receive by pictures and sounds the identi?ed portions of the trial; and, the limited authorizations sought will balance such freedoms of expression with Gerald Stanley?s right to a fair trial. 2018-01-23 20:19 queens 3067871307 306 4467737 6/27 -5- PUBLICATION BAN RESPECTIN THIS APPLICATION [10] At the commencement of the hearing I raised the issue of whether this application is subject to a mandatory publication. ban or, if not, whether a discretionary publication ban should be imposed. This seemed to catch counsel by surprise. Counsel for the Media had not considered the possibility that a publication ban might apply "to his application. On the other hand, counsel for the Crown and defence seemed to be under the initial impression that a mandatory publication ban would necessarily be in place since this was an application being heard by the trial judge in the absence of the jury. Unfortunately, counsel were not prepared to adequately address the issue at the hearing. [11] It was agreed by all counsel that a temporary publication ban should be put in- place until a decision is rendered on the merits of the Media?s application. In the meantime, counsel was invited to consider their respective positions and submit to the Court written argument respecting the publication ban issue. [12] All counsel ?led their written briefs, as requested, setting forth their respective positions and their legal arguments supporting those positions. [13] Counsel for the Media asserts that the circumstances of this case do not attract the mandatory publication ban provisions of the Criminal Code and further argues that a discretionary publication ban is not appropriate. [14] The position of both the Crown and defence is diametrically opposed to that of the Media. They contend that the publication ban is mandatory and, if found not to be mandatory, that a discretionary publication ban should be put in place until the jury is sequestered. [15] The relevant sections of the Criminal Code are: 2018~01-23 20:20 [16] queens 3067871307 306 4467737 '16- 645(5) In any case to be tried with ajury, the judge before whom an accused is or is to be tried has jurisdiction, before any juror on a panel of jurors is called pursuant to subsection 631(3) or (3.1) and in the absence of any such juror, to deal with any matter that would ordinarily or necessarily be dealt with in the absence of the jury after it has been sworn. 648 (1) After permission to separate is given to members of a jury under subsection 647(1), no information regarding any portion of the trial at which the jury is not present shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict. 7/2? The question of publication bans in the context of pre-trial motions has been considered by courts throughout this country on several occasions. Unfortunately, the conclusions reached have not been consistent. [17] discussed the interplay of the two relevant Criminal Code provisions at paras. 13-15 In Stobbe, 2011 MBQB 293, 284 (3d) 123 [Stobbe], Martin J. 13 Section 648 is an automatic, or mandatory, ban aimed at ensuring trial fairness. It means to ensure that a jury would not be potentially exposed to, or biased by, the content or rulings of proceedings conducted by the trial judge in their absence. Those proceedings would not be published until the jury retires to consider its verdict, when it is normally sequestered and thus would not see or hear of the publication until its deliberations were complete. 14 Section 645(5) was enacted in 1985, after 3. 648 was already in effect. It meant to allow the trial judge to deal with all matters and motions that would normally be dealt with in the absence of the jury, but to do so before the jury was selected so that once the jury was selected, the trial could proceed ef?ciently without signi?cant interruptions, delay or inconvenience to the jury. The provision is aimed at effective trial management. 15 However, considered together, the two sections have been a source of some confusion. While at ?rst blush the two sections would appear designed to function hand in glove, they have not always been interpreted this way. Further, there is no crisp line, in statute or the common law, delineating the type of motions automatically banned by s. 648 where s. 645(5) is in play. The situation has become more opaque as many, if not almost all, anticipated motions and voir dires are now routinely heard, pursuant to s. 645(5), before the jury is 2018-01-23 20:20 queens 3067871307 306 4467737 8/2? -7- summoned or selected and the types of pre-trial motions have grown exponentially, especially since the enactment of the Charter. As well, some issues or applications can be dealt with by a motions judge other than the trial judge. Finally, new amendments to the Code now also come into play. - [18] Justice Martin follows the approach taken by Heeney J. in Sand/mm (2008), 248 (3d) 543 (Ont Sup Ct). The approach concludes that mandatory publication bans apply, by virtue of the combined operation of ss. 648 and 645(5), to all motions or applications that would ordinarily or necessarily be dealt with by the trial judge, in the absence of the jury, after the trial had started. By Operation of s. 645(5) the publication restriction respecting information provided in the absence of the jury extends to motions and applications that are now permitted to be heard in advance of the jury being selected. [19] At its core, the approach in Srobbe would include within the mandatory publication ban any motions dealing with the admissibility of evidence, such as statements of the accused, photographs, character, demeanour, similar fact and the like, but would exclude procedural motions that would not ordinarily be dealt with in the absence of the jury, such as a change of venue, quashing the indictment, releasing exhibits for testing, challenging the jury panel, and adjournments. See Srobbe at paras 48-49. [20] More recently, Goodman J. in Canadian Broadcasting Corp. Millard, 2015 ONSC 6583, 338 (3d) 227 [M'llard], considered the effects of creating such ambiguity in regard to 88. 645(5) and 648 on the media, the accused and the overarching administration of justice. Justice Goodman explains that the mandatory ban at issue is of a temporal nature, limiting the media?s ability to publish only until the jury is sequestered. Alternatively, the effects experienced. by the accused, including his right to a fair trial, and on the administration of justice, including an increased number of pre?trial applications to determine whether a motion would 2018-01-23 20:20 queens 3067871307 306 4467737 9/27 -3- ordinarily be brought_before the trial court, are immediate and foundational. [21] Justice Goodman?s analysis'fmds that in order to prevent uncertainty all motions or applications dealt with by the trial judge, in the absence of the jury, whether litigated before or after the jury is selected are subject to a mandatory publication ban. By operation of s. 645(5) the publication restriction respecting information provided in the absence of the jury extends to motions and applications that are now permitted to be heard in advance of the jury being selected, regardless of whether those applications are substantive or procedural in nature. [22] The Millard approach acknowledges the common ground among the judicial dialogue that the scope of the mandatmy publication ban must accord with the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule to the Canada Act 1982 (UK), 1982, 11 [Charter], and that the temporal ban on publication of all pre-trial motions in the jury context is not a draconian result, but rather a necessary procedural protection to ensure the paramount consideration of trial fairness. [23] I agree with the approach adopted in Millard. This is an issue of statutory interpretation whereby the plain meaning of the provisions must be discerned. Such interpretation must defer to the intention of Parliament and give the same full effect. At issue is the meaning of ?no information regarding any portion of the trial at which the jury is not present?. Where, as here, the provision is not ambiguous, ambiguity should not be read in. I adopt the conclusion and analysis of Goodman J. where he says, at para. 64:. 64 In my opinion, all pre-trial motions adjudicated by the designated trial judge, fall under the s. 648 umbrella. Section 645(5) is a jurisdictional assist, nothing more, as it permits a judge to decide matters that were once delayed until after a jury is selected. Section 645(5) does not limit the operation of s. 648. 2018-01-23 20:20 queens 3067871307 306 4467737 10/27 -9- [24] Furthermore, the Millard [approach promotes consistency in the application of the law and judicial economy. It rejects a case-by-case analysis of what is, what might be, and what is not prejudicial. Such. an approach, reSpects the paramount importance of the accused?s right to a fair and public hearing by providing a mandatory safeguard of information that could be of a prejudicial nature. A consistent approach is not only preferred, but best respects the plain meaning of the provision and the rights enshrined in the Charter. These concerns were noted by Goodman J. when he opined about the broad framing of s. .648, at para. 65: 65 To adopt an approach requiring counsel to attempt to determine if a particular motion or evidence would "ordinarily" be brought before the trial court and invite argument as to which class particular motions belong would inject signi?cant uncertainty where none should exist. Moreover, I agree with the respondents that to . split pre?trial motions into two classes is to increase the burden on litigants and make the proceedings more complex and drawn out than they need to be. I query whether as trial judge, in cases involving multiple pretrial motions, it would be a useful exercise of judicial resources to review all of the applications and rulings to select what potential segmented information could be released to the public; in the face of ensuring that the accused are not prejudiced or their fair trial rights negatively impacted. [25] Therefore, following the reasoning in Millard, I conclude that the Media?s application is subject to a mandatmy publication ban, by virtue of the combined operation of ss. 648 and 645(5). [26] Finding that a mandatory publication ban does apply in these circumstances is conclusive of this issue. However, given the uncertainty in the state of the law it is useful to consider the alternative legal framework. In the event that the publication ban regarding this application is discretionary, I would have found that the interests of justice are best served by utilizing my discretion to order a publication ban, or more accurately a publication delay, until the jury is sequestered. My reasons are as follows. 2018-01-23 20:21 queens 3067871307 306 4467737 11/27 -10- [27] The test to be applied on applications to restrict the Openness of legal proceedings was established in the Supreme Court of Canada decisions of Dagenais Canadian Broadcasting Corp, [1994] 3 SCR 835 [Dagenais], and Mentuck, 2001 SCC 76, [2001] 3 SCR 442 [Mentuck]. The Dagenais/Mentuck test provides that the constitutional right to disseminate information about judicial proceedings can only be restricted when: such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused tora fair and public trial, and the ef?cacy of the administration of justice. This test applies to all discretionary court orders that limit freedom of eXpression and freedom of the press in legal proceedings. The onus rests on the parties seeking the ban to displace the Open court principle. [28] Both the Crown and defence argue that the publication ban should be in place until after the jury commences deliberations. They submit that information respecting the evidence and arguments presented at the hearing before me ought not be permitted to be disseminated because it could have the effect of tainting the jury pool. The Crown and defence argue that placing a temporary publicatiOn ban on information related to the within motion until the jury retires, is a reasonable limitation to the open court principle, and would prevent the possibility of jury panel contamination. [29] Counsel for the Media argues, on the other hand, that there is nothing in 2018-01-23 20:21 queens 3067871307 3064467737 12/27 -11- the application that deals with evidence per se and that fair trial concerns are not engaged. The Media submits that the parties seeking the publication ban have failed to establish that there is a justi?able basis to interfere with the Open court principle. [30] During the course of the hearing before the Court, much of the discussion centred around the somewhat sterile, and, in some respects, esoteric question of whether we have arrived at a point where cameras should be allowed in courtrooms.Counse1 provided their respective positions on the reasons why, or why not, cameras should be allowed to record and broadcast certain portions of the upcoming trial. [31] However, during submissions, reference was made to the facts, evidence and circumstances of the upcoming trial. Although most of the references were general, some comments risk tainting or in?uencing potential jurors. Such comments were made in regard to the credibility of witnesses, actions undertaken by the lawyer for the Boushie family as well as inaccuracies between media reporting of evidence and what is anticipated at trial. [32] In balancing the deleterious and salutary effects of a publication delay in this case, valid concerns were raised about potential contamination of the jury pool. The impact of publishing the comments made at this hearing on the trial remains largely unknown, but could include colouring the views of potential jury members, or in?uencing the testimony of expected witnesses. The impact of a temporary publication ban on the Media, that is, a brief delay in reporting what was said at the hearing of the application and this decision itself, is minimal. In light of the serious concerns raised, publication of this application is not worth the risk it poses to trial fairness. [33] The Crown and defence have convinced me that a publication ban 2018-01-23 20:21 queens 3067871307 306 4467737 13/27 -12- should be in place respecting the application hearing and this decision. [34] Accordingly, I find that the provisions of the Criminal Code provide for a mandatory publication ban respecting this matter. In the alternative, a discretionary publication ban ought to be imposed. I hereby order that a publication ban on the hearing of the application and this decision is in place and will remain in place until such time that the jury is sequestered for ?nal deliberations. IV. POSITION OF THE PARTIES A) Applicants [35] The Media argues that standing to make the application should be granted based on the scepe of the language in the ?Saskatchewan Law Courts Electronic and Wireless Devices Policy, 2012?, and the low threshold for standing identi?ed by James Rossiter (James Rossiter, Law of Publication Bans, Private Hearings and Sealing Orders, loose-leaf (2010-Re1 2) (Toronto: Thomson Canada, 2006)). The Media suggests that 101114386 Saskatchewan Ltd. Saskatchewan (Financial and Consumer Affairs Authorinz), 2013 SKCA 122, 427 SaSk 25, evidences the low threshold for standing in cases involving restrictions on media publication. [36] The Media asserts two grounds on which the application requesting cameras be allowed into the trial be granted: i) the administration of justice, and ii) freedom of expression, as guaranteed by s. 2(b) of the Charter. The arguments underlying both points focus on the principle that courts must be open to the public. [37] - First, relying on the Supreme Court of Canada decision in Re Vancouver Sun, 2004 SCC 43, [2004] 2 SCR 332, the Media asserts that the Dagenais/Menmck 2018-01-23 20:21 queens 3067871307 306 4467737 14/27 ~13. framework, developed in the context of publication bans, is the appropriate test for this Court to employ. The Media asserts, in accordance with the DagenaiS/Mentuck framework, that their application should be dismissed only if the Crown or defence demonstrates, on a balance of probabilities, that the proposed media coverage presents ?a serious risk to the administration of justice?. [3 8] The Media argues that permitting the use of cameras in the courtroom enhances their ability to ful?l their essential role in informing and educating the public about the justice system and that the same will support the court in administering justice. The argument is rooted in the reality that not all members of the public are able'to attend proceedings. The Media leverages the public interest in this case as an excellent opportunity to reach Saskatchewan citizens, and those outside our provincial boarders. [39] SecOnd, the Media argues that past restrictions on cameras in courtrooms focused on preserving the serenity of the proceedings and that such concerns have been placated by the tailOred recjuest before this Court. The Media does not challengethe justified infringement 'of s. 2(b) recognized by past courts, but argues that the scope of this request is a ?win-win? for both 3. 2(b) and the administration of justice. This assertion is grounded in the modernization of technology and the Supreme Court of Canada?s continued acknowledgement that the Media?s access to court houses and courtrooms enhances the values underlying s. See Canadian Broadcasting Corp. Canada (Attorney General), 2011 SCC 2, [2011] 1 SCR 19 Canada]; and Endean British Columbia, 2016 SCC 42, [2016] 2 SCR 162. B) Crown [40] The Crown requests that the Media?s application be dismissed on the 2018-01-23 20:21 . queens 3067871307 306 4467737 15/27 -14- basis that further investigation is required to ensure fairness in the trial process and that s. 2(b) does not vest in the Media a right to ?lm and broadcast proceedings. [41] The Crown argues that decisions regarding cameras in the courtroom and live-streaming of trials should not be made on a case-by-case basis given the extensive concerns that may be incompatible with the Court?s function to ensure fairness of the trial process. Such concerns include: i. distortion of the reality of the proceedings as a result of the editorial capabilities of electronic media; ii. television could put unnecessary pressures on jurors and affect their judgment, judges may be required to monitor media compliance in addition to their regular duties; and iv. television could jeopardize the safety and privacy of the trial participants as well as court buildings. The Crown argues that the signi?cance of this issue on the justice system requires evidence, thorough analysis and consideration by the judiciary as a Whole. The fair trial rights of the accused should not be risked in an ad hoc manner. [42] The Charter does not provide absolute protection of all expressive activities. The Crown relies on the Court?s finding in Pilgrims, 2001 BCSC 1332, 158 (3d) 1 aff?d [2001] SCCA No 497 (QL), that videotaping in court is not expressive activity protected by the Charter. The Crown asserts that therefore prohibiting the use of cameras in the courtroom does not infringe s. Alternatively, if an infringement is found, the Crown asserts that the same Would be a justifiable limit pursuant to s. of the Charter (see CBC Canada at para 97). 2018-01-23 20:21 queens 3067871307 306 4467737 16/27 -15; [43] The Crown disputes the Media?s opinion that the Dagenais/Mentuck test is determinative of applicatiOns for extended media coverage. For this position, the Crown relies on Bennett decision in Pilarz'nos which found that the Media has the onus of proving a s. 2(b) violation. C) Defence [44] The defence Opposes the application and requests that the same be dismissed. Counsel asserts that the Media?s application is motivated by'entertainment purposes, does not increase court openness and poses a risk to both the administration of justice and trial fairness. [45] The defence asserts that the court?s function is one of truth??nding and inquiry not of entertainment. By broadcasting only select portions of the argument the Media is not furthering public understanding of how the court accomplishes this function. Further, the defence argues that such fragmented coverage serves only the Media?s interest, not that of the public or the accused. [46] The underlying principle of court openness requires that justice must not only be done, but be seen to be done. The defence asserts that the Media?s proposal will allow broadcast of information to a greater audience in a way that distorts and diminishes the principle by. creating a collateral trial by the public based solely on argument, not on facts. Alternatively, excluding cameras from the courtroom does not detract from the longstanding ability of the Media to report on the proceedings, or the ability of the public to attend. [47] The defence asserts that the public?s right and Mr. Stanley?s-right to a fair trial will be jeopardized by permitting cameras at trial. Trial fairness can be affected through undue pressure on any of the participants. Jurors should not be subjected to undue pressure, real or imagined, from knowledge of a concurrent media 2018-01-23 20:21 queens 3067871307 306 4467737 17/27 -15- trial, or from family and friends informed only by the'newsworthy segments of the trial. Furthermore, counsel will be limited in ful?lling their function if they are forced to consider how each statement or argument may sound in the media when edited or taken out of context. [48] Further, the defence reminds this Court, that the Media does not have a constitutional right to film and broadcast proceedings (see Pilgrims). Prohibiting cameras in the courtroom has a neutral effect on the Media?s right to expression and the freedom of the press, but a negative effect on Mr. Stanley?s right to a fair trial (see CBC Canada). During oral argument, defence counsel also raised the issue of Mr. Stanley as well as counsel?s s. 2(b) rights, and the possible infringement that would result if images of participants in the court process, who are compelled to attend, are broadcast without their consent. The defence asserts that there is no balance created by the Media?s request, only hardship for the trial process and the administration of justice. [49] In addition to the arguments above, the defence also raises concerns about the need to protect societal values. It is argued that in the months following Mr. Boushie?s death, there was widespread anger and division across the province, largely as a result of the fragmented portrayal of the events of that day and the alleged motives behind the shooting. The defence argues that broadcasting counsels? argument is for purely entertainment purposes and creates the risk of further division and anger within the province. V. CAMERA ACCESS TO THE COURTROOM 7 [50] The importance of the open court principle, freedom of expression and the Media?s ability to report on matters taking place in courts across this country 2018-01-23 20:22 queens 3067871307 306 4467737 18/27 -17- cannot be understated. The Open court principle ensures that our justice system functions not behind closed doors, but in the public whereby citizens can better understand the laws that govern our nation, the processes that enforce the law and comment on the same. It is the essential role played by the media, facilitated through freedom of expression, which ensures Canadian citizens are able to see justice being done. However, it'does not follow that cameras must be allowed into the courtroom in order to uphold these principles with resolute determination. [51] The court recognizes the pivotal role that the media plays in informing the public about what happens in courtrooms throughout the country. Courts are open to the public, albeit, relatively few members of the public have the time or inclination to observe court proceedings ?rst-hand. The media serves as the eyes and ears of the public, reporting to them matters of interest and concern. Television cameras and broadcast of live or recorded events are not new phenomenon. They have been in popular use for decades. Granted, technology has changed, and the size, capability and quality, has improved exponentially. These advancements have not gone unrecognized by those debating the role of cameras in the courtroom. [53] The debate about whether and if so, to what extent, cameras should be allowed in the courtroom is also not new. Many jurisdictions around the world have experimented with ?lming and broadcasting court proceedings, including, the United States, the United Kingdom, Israel, Scotland, South Africa and New Zealand, to name a few. As such, there is no shortage of national and international literature setting forth the pros and cons of having cameras in the courtroom. In Canada this question has been passionately debated, examined, discussed and analyzed for a long time. [54] Initially, there was an outright ban of all types of cameras in all levels of 2018-01-23 20:22 queens 3067871307 306 4467737 19/27 -13- court in Canada. This prohibition was grounded primarily on the premise that the existence of cameras in the courtroom would have a negative impact on the - participants of first instance trials, including judges, jurors, lawyers and witnesses. There were also concerns expressed respecting the potential of advertent or inadvertent distortions that could damage the credibility of the court system and the administration of justice in general. [55] The Canadian Judicial Council is composed of 39 federally appointed Chief Justices and Associate Chief Justices from throughout our nation and is chaired by the Chief Justice of Canada. In 1983 the CJC ?rst stated its formal position respecting cameras in the courtroom concluding that televising court proceedings .. is not in the best interests of the administration of justice? (Canadian Judicial Council, Council modi?es position on cameras in the courts (Ottawa: Canadian Judicial Council, 2002), online: Canadian Judicial Council, c-ccm . gc.ca/ en 02_03 2 8_en .asp (22 January 2018)). This position was modi?ed in 1994 to exempt the Supreme Court of Canada and, in 2002, further amended to exempt appellate courts. In 2015, the CJ C, arguably softened its position when it passed the following regarding the use of cameras in the courtroom: The Canadian Judicial Council supports the open courts principle by encouraging respective courts to pursue policies designed to remove barriers to public access. The Council recommends that courts continue to re?ect on ways to achieve a balance between open courts and preserving the integrity of the administration of justice. Council recognizes that for some jurisdictions, this may mean allowing the presence of cameras, while for others these may be limited or prohibited entirety. The position of the CJC is a non-binding recommendation, developed after considerable thought and re?ection, intended to provide guidance to the courts. It is not a position that should be disregarded. 2018-01-23 20:22 queens 3067871307 306 4467737 20/27 -19- [56] A gradual shift is evident in the evolution of the position to permit the use of cameras in the courtroom. The shift recognizes that some of the fears initially expressed in relation to televising proceedings have not borne out. For instance, the evolution of and increased access to technology has resulted in people becoming more comfortable in the presence of cameras. The most recent resolution maintains judicial discretion to ensure that the open court principle and the integrity of the administration of justice are appropriately balanced. [57] In a similar vein, the Courts of this province have devised policies respecting cameras in the courtroom. The general policy, as set forth on the Courts of Saskatchewan website, is that cameras are not permitted, in courtrooms, other than for ceremonial purposes; however, the policy is not mandatory. This policy was recently overtaken by the Saskatchewan Court of Appeal in a speci?c policy statement issued on June 2, 2017 that expressly sets forth the process by which media outlets can. apply for permission to record and broadcast appeals being heard in that court. The Court of Appeal has, on at least oneoccasion, granted permission for their proceedings to be recorded and broadcast. [58] It is a fair observatiOn that the notion of recording and broadcasting appellate court proceedings is now generally accepted as appr0priate. However, serious concerns still remain respecting the impact that cameras may have on trial proceedings. [59] Introducing television cameras into the courtroom to record and publish certain segments of the trial would be a revolutionary step, thus far, permitted only in limited circumstances in courts across this country, and then generally only with the consent of the parties regarding speci?c portions of the trial and on an experimental basis (see C110, 2000 1162, 189 DLR 180). Counsel for the Media urges this Court to take this unprecedented step. 2018-01-23 20:22 queens 3067871307 306 4467737 21/27 -20- [60] Although the Media have raised a?number of arguments worthy of serious consideration, the Crown and defence have also raised a number of valid concerns respecting the prospect of cameras in the courtroom in this case. Both of these positions are deserving of serious consideration and raise meritorious arguments requiring careful analysis. I am not satis?ed, however, that there is sufficient time to consider this application, that all of the concerned parties are before me, that enough information has been made available to the Court for me to make a decision with such far-reaching consequences, or that it would be fair to the participants of the upcoming trial to, on short notice, change a longstanding practice upon which they would have rightfully relied. [62] - In more detail, my concerns are as follows. [63] First, I am concerned that I may not have all of the truly interested parties before me to assist in marshalling all the relevant considerations that should be taken into account before making such a potentially ground?shifting decision. Although the Crown and defence have been served with the application, other potentially interested groups have not been given the opportunity to seek formal intervener status and provide evidence, insights and legal arguments. [64] The Canadian Bar Association, the Saskatchewan Trial Lawyers Association, First Nations organizations, Crown counsel associations, Victim Rights associations, civil liberty associations, the federal government, unions representing sheriffs and registrars, and the like have not been given an opportunity to be heard. Organizations such as these might be able to provide a broad public interest perspective beyond what is currently before the Court. The importance of these perspectives can be gleaned from CBC Canada, wherein intervener status was granted to the Attorney General of Alberta, Canadian Civil Liberties Association, 2018-01-23 20:22 queens 3067871307 306 4467737 22/27 -21- Canadian NeWSpaper Association, Canadian Association of Journalists and British Columbia Civil Liberties Association. Likewise in Reference re Criminal Code of .. Canada (B. C. 2010 BCSC 1684 [Polygamy Reference], 29 lawyers represented the I interests of 14 distinct stakeholders. [65] Further, it would be useful for the Court to have had the Opportunity to appoint an amicus curiae to assist by providing an independent analysis of the law and the evidence as was done in Pilarz'nos. [66] Second, the record upon which this application is based is very Sparse. The two? af?davits ?led along with the notice of application provide the entire evidentiary base for the application. Undoubtedly, within those two af?davits, there is helpful and cogent information that supports the position taken by the Media. However, a more complete evidentiary base to support an application of this nature would be preferable. Expert testimony and empirical data respecting the rami?cations of cameras in the courtroom on the various participants and the public at large is crucial and would provide the opportunity to base a decision on evidence as opposed to supposition. In the absence of this information, the Court can only guess whether broadcasting certain segments would or would not impact on the trial and, if so, whether such an impact would be negative or positive. [67] In Pilarinos, Bennett J. had a full record, the bene?t of an amicus curiae and was satis?ed that she could determine the application in the context of the evidence that had been ?led: 22 There is much evidence ?led before me with respect to the effect of cameras in the courtroom on witness [sic], litigants, counsel, judges, jurors and other participants on the process. 23 counsel have ?led af?davits of many participants in trials on both sides of the camera issue, as well as many studies and scholarly articles. The evidence gives the application the necessary context 2018-01-23 20:23 queens 3067871307 3064467737 23/27 -22; Such comments cannot be said to apply here. [68] . Jurisprudence focusing on this issue echoes the need for thorough evidence and careful consideration of the effects that allowing cameras into the courtroom might prompt. Moreover, thorough research, discussion and analysis are necessary to ensure that the appropriate legal test is identi?ed. See for instance: Pilarirzos at paras 99?110; Re Sinclair, 2010 MBPC 18 at paras 47 and 66, [2010] 7 WWR 688; Dickinson, 2012 BCPC 28 at para 9; Polygamy Reference at para 6, and Carter Canada (Attorney General), 2011 BCSC 1866 at para 30 [Carter]. [69] Third, the application has been brought less than two weeks before the trial is scheduled to start. Admittedly, the Media provided informal notice of their intention to bring the application two months before the day the trial was supposed to begin. The application was scheduled as soon as all participants could make themselves available. Nonetheless, the Court is placed in the dif?cult position of trying to provide an answer to an unprecedented request in a very compressed time frame. It is simply not possible, given the time frame and the other demands on the Court to give this request the full consideration that it deserves. Similar concerns have been expressed where consideration of applications, such as this, may result in delay of the underlying proceedings. In Polygamy Reference, Bauman (as he then was), rejected. an application to televise a proceeding brought at the eleventh hour on the basis that ?this is not the time to advance the debate? although the question of whether the proceedings should be televised was of fundamental importance. Chief Justice Bauman explained, that the issue cannot be hastily decided: 4 They should be debated, but they should be debated in a calm and orderly fashion so we get any policy arising out of the debate right. 2018-01-23 20:23 queens 3067871307 306 4467737 24/27 -23- 5 This application does not permit a calm and deliberate review of these dif?cult issues. It is brought on the eve of this reference proceeding. As I say, it contemplates fundamental changes to an established protocol dealing with television coverage of court proceedings. I have concluded this is not the time to advance the debate. [71] Justice Smith in Carter, arrived at a similar conclusion, when she rejected a request to broadcast made by a media outlet that was initiated shortly before the hearing was to take place. That trial sought to be televised involved a constitutional question regarding physician-assisted death. In dismissing the media?s application, Smith J. commented as follows, at para. 30: 30 the application in this case raises issues of fundamental importance. Addressing the issues would require weighing the competing constitutional interests at stake in order. to decide whether changes are required to the established court practice regarding the presence of television cameras in courtrooms. Addressing the issues properly would require evidence, thorough argument, and time for consideration. In fairness to the parties to this litigation, which already involves challenging and complex issues of its own, and in recognition of the importance of the issues raised by the application, I decline to embark on such a review in the context of this case. [72] Fourth, it would not be fair to fundamentally change the courtroom landscape less than two weeks before the trial proper. In Pilgrims, which was also a criminal trial, Bennett J. emphasized that litigants have a right to know the parameters of the litigation and What to expect at trial, and that court guidelines, though discretionary, are essential in this regard. The longstanding court policy to not permit cameras in the courtroom, although not binding on an individual judge, serves the useful function of informing the public and the litigants as towhat likely to expect at trial. [73] At the outset of this process and for the vast majority of the time it has progressed through the system, Mr. Stanley, defence counsel, the Crown and the witnesses who are anticipating being called to testify had no reason to anticipate that 2018-01-23 20:23 queens 3067871307 306 4467737 25/27 -24- the trial would be televised. Both the Crown and defence oppose this application. Moreover, defence counsel has brought forward serious privacy concerns. The parties to the trial did not prepare with this possibility in mind, and although, the Court is con?dent that each would be capable and would rise to the task of being televised, to add such an exceptional burden to the parties without their consent at this late stage would not accord with the fair administration of justice, nor with the integrity of the system as a whole. A precipitous change on the eve of trial does not serve the interests of justice. [74] Without discounting the articulate and persuasive arguments made before this Court, this application cannot be granted. Simply stated, more information, time and input from interested parties is needed before such an unprecedented request can be acted upon. [75] Although, in the instant circumstances, the Court is not able to grant this application, the Open court principle is alive and Well and the media will be accommodated as best as the Court is able to do, given the restriction of conducting a modern trial in a heritage building. These accommodations include: media space will be reserved in the courtroom for representatives of as many accredited media outlets as the space permits; an over?ow courtroom with a live-stream of the proceedings has been reserved in order to accommodate an increased number of attendees; an exclusive media room will be established in the court house wherein the trial will be live~streamed so that as many accredited media representatives can be present as possible; accredited media representatives, as always, are permitted to audio 2018-01-23 20:23 queens 3067871307 306 4467737 26/27 -725 - record the proceedings to ensure accuracy in reporting, such audio recordings cannot be broadcast; accredited media, as always, are permitted to live tweet and post or engage in other live text-based communications from court; and the Court has a designated media contact person available so thatthe media will always know who to contact should questions or concerns arise during the course of the trial. VI. CONCLUSION [76] Considering all of the foregoing this application cannot succeed. [77] The relief requested is a marked departure from the longstanding principle that cameras are not permitted in courtrooms. In order to deviate from such a longstanding principle a thorough analysis informed by multiple entities is necessary to safeguard the key principles underlying our justice system. The same would require that notice of the hearing be provided to multiple stakeholders; that a suf?cient evidentiary basis is established from which the known and unknown risks and bene?ts of extended media coverage can be understood; and, that suf?cient time is available for due consideration of each concern raised. The importance of a decision to break from tradition and televise trials cannot be understated and should not be made in an ad hoc manner. [78] This is not the right case to put in a petri dish for experimental purposes. In Opposition to this motion, both Crown and defence raise pertinent concerns that cannot be adequately addressed without evidence and analysis. The jeOpardy faced by Mr. Stanley is of the most serious in Canada, and the risks that could result from 2018-01-23 20:23 queens 3067871307 306 4467737 27/27 I-26- allowing such an experiment could undermine the integrity and administration of our justice system. Despite the goodwill of everyone, it is not possible to gauge the negative unintended consequences that might ?ow from a decision to change the status quo. [79] The application is dismissed. - ?[4970 (2.1.0.3. 7f MD. POPESCUL