The Mike Duffy trial has attracted unprecedented public interest and a mass of media attention. The Ottawa courtroom where the trial is being heard is not large enough for all the spectators who want to watch the proceedings. As is customary in “high profile” cases, an adjacent courtroom equipped with live streaming has been opened to accommodate the overflow. At the beginning of the trial, Justice Vaillancourt warned onlookers that televising, recording or taking photographs in the courtroom is unlawful. The National Post, in a recent editorial, renewed its demand to “open Canada’s courtrooms.” Two days later, CBC Radio on Day 6 with Brent Bambury aired a vigorous debate between media lawyer Paul Schabas and defence counsel David Lutz on “the case for cameras in the courtroom.” This is a recurring issue.
The argument for opening the courts to cameras and recordings is based on the principle that courts are open to the public, that the more justice is seen to be done, the more the process will be demystified, and the better the accountability of all participants. In an age when most people get their information from television, “broadcasting the proceedings,” as the National Post says, “in a sober, no-bells-and-whistles fashion, is simply an extension of that principle.” Besides, “if the Duffy trial can be live-tweeted, why can’t it also be broadcast?”
The Supreme Court of Canada was a pioneer in permitting camera access to the courts. In 1981, it allowed cameras to broadcast argument of the Patriation Reference. Twelve years later, it did the same thing in the Sue Rodriguez assisted suicide appeal. Since 1995, CPAC, the Cable Public Affairs Channel, has broadcast all their proceedings, using small, remotely operated cameras affixed to the walls of their main hearing room. Beginning in 2009, those proceedings have also been webcast and are available to anyone, anytime, from the archive on the Supreme Court’s website. Some Canadian Courts of Appeal have allowed video coverage of occasional high-profile cases on an case-by-case basis. A pilot project in the Manitoba Superior Court last year created a presumption that proceedings in certain courts could be broadcast “absent compelling arguments to the contrary,” but excluded the testimony of witnesses and jury trials. In the United States, all 50 states allow some camera access in state courts, but none is allowed in federal proceedings or the US Supreme Court. In Britain, limited video coverage occurs only in Scotland; elsewhere there have been some experiments. Following a three-year pilot project in New Zealand, all levels of courts there permit the use of cameras. Similarly in Australia, but on a more restricted and ad hoc basis.
Opponents of cameras in the courtroom are concerned about the effects on witnesses, jurors, lawyers and judges. Witnesses never want to testify. The possibility of appearing on television can only add to their stress. And how can the court protect their privacy? Or give any oversight as to how the media will use what they have filmed? Existing powers under the Criminal Code to impose a ban on the identification of witnesses and to exclude the public from particular testimony are limited. There is the danger that edited snippets of evidence taken out of context will misrepresent what actually happened. Electronic coverage of jury trials would have special problems: juries may need to be sequestered to avoid contaminating what they see and hear, or finding an impartial jury for a possible retrial could be more difficult. Citing the notorious O.J. Simpson trial, isn’t there a danger of lawyers and judges playing to the cameras and making a mockery of the judicial system? Or of multiple cameras undermining court decorum? From a marketing perspective, televising entire trials in real courtrooms in real time is not like the tv program, Law and Order, or the popular “This is Wonderland” series about the Old City Hall court in downtown Toronto which entertained viewers for three seasons a few years ago. For all the moments of high drama, court proceedings can be static, boring, hard to understand, “like watching paint dry.”
Before I was a judge, I was in the “open courtroom to cameras” camp. Early after my appointment, however, a disciplinary hearing for a fellow judge alleged to have kissed a crown attorney without her consent was televised by a local cable company. The results were horrific. Pictures of the complainant were repeated over and over again as all the media piled on to the coverage. Ten second clips taken out of context re-victimized the complainant, destroyed her privacy, and added nothing to any public understanding of what was actually going on. This was a classic worst case scenario over which the court had no control.
It strikes me that the existing distinction between cameras in trials where the rights of witnesses could be jeopardized and cameras televising appeals where lawyers are only making argument is a valid one. Perhaps existing absolute bans should be nuanced to reflect that practice in trial courts: electronic coverage to set the court scene and during argument and final submissions, but not while witnesses are testifying. For the rest, the public would need to attend in person or rely on court sketches and summaries from reporters. Pending any change, those interested might want to check out CPAC’s coverage of Supreme Court of Canada hearings. Those in the know say it’s a good way to fall asleep.