Cameras in the Court

Canadian courts are open to any member of the public if there is the space, if the court is near enough to them and if they can find the time to attend. For years Canadian media have argued for television camera access to court proceedings. There has been some televised coverage of Canadian courts, though it is not routine.

The Supreme Court of Canada first allowed a camera in its court in 1981 to broadcast its decision in the Patriation Reference case. Since 2 March 1993 it has permitted the televising of 3 cases - involving the tax deductibility of nanny expenses to a professional (Symes), the right to assisted suicide (Rodriguez) and the tax deductibility of spousal support payments (Thibaudeau). It now records all arguments before it for its own use and for occasional teaching purposes.

In Ontario an experiment was conducted in 1982 by the Radio Television News Directors Association of Canada under the supervision of the chief justice's Bench and Bar Committee. Proceedings in all levels of court were taped and resulted in a one-week series of new reports. The experiment was pronounced successful by all concerned. Since then, the Canadian Broadcasting Corporation has taped a few trials in courts in Ontario (a murder trial, part of an abortion injunction application, and a sentencing in an environmental offence case), in Newfoundland (an impaired driving trial presided over by the province's first native judge), in Alberta (in youth court) and in the Northwest Territories (6 cases of a judge on circuit).

On 1 January 1995 the Federal Court of Appeal began its 2-year experiment with electronic coverage. An appeal of the decision allowing the construction of the fixed link to Prince Edward Island was televised in the first year. On 1 January 1996 the Nova Scotia Court of Appeal began its 2-year experiment. Three cases were televised within the first few months.

Recent Years

In recent years, Canadian media have televised royal commissions, public inquiries, human rights hearings, immigration hearings, securities commission hearings and police complaints hearings. Over 20 commissions of inquiry and other proceedings have been televised in whole or in part since the early 1980s. Recent examples include the Somalia inquiry in Ottawa and the Westray inquiry in Halifax. Years of daily testimony have been televised.

In 1987, in his report on Ontario court reform, Mr Justice Zuber recommended a 2-year experiment with cameras in court. That same year, the Law Reform Commission of Canada and the Canadian Bar Association independently studied and recommended immediate camera access to appeal courts and a 2-year experiment with cameras in trial courts. According to the CBA committee that studied it, the camera could be turned off at any time if it were determined by the presiding judge to be necessary in the interest of justice.

For its part, the Canadian Judicial Council has pronounced itself opposed to cameras in court, having voted on the issue in 1983, 1988 and 1995. Its current position is expressed as a "recommendation" only.

Camera Access to Courts

Camera access to courts is not novel. While it has been allowed from time to time in Australia, China, France, Israel, Italy, the Netherlands, New Zealand, Norway, Russia, Singapore, Spain and the European Court of Human Rights, the greatest experience outside Canada is clearly in the United States.

Cameras are allowed in the courts of 47 states and were permitted for 3 years in selected civil proceedings of the US Federal Court. Since July 1991 CourTV has broadcast court cases all day every day, and now serves over 15 million households. Television coverage of court cases has been massive, and while public debate focuses on individual cases, like the O.J. Simpson case, the Menendez case, the Bobbit case and the W. Kennedy-Smith case, thousands of cases are televised each year locally, regionally and nationally.

Proponents

Propoenents argue that television is simply another method of making public proceedings public. Electronic reports are more accurate and provide more people with first-hand information. The placement of a single camera and microphone in court at the side of the public gallery without additional light does not affect the proceedings, and the dignity and decorum of the proceedings are preserved. Witnesses who testify are more likely to tell the truth, knowing that viewers are monitoring their testimony. As for certain vulnerable witnesses, such as sexual assault complainants, there are in Canada bans on the publication of any information which would identify them, and these bans apply to all forms of coverage, including television. Lawyers, for their part, are more likely to prepare and present their cases well if they are televised.

If there are concerns about juror anonymity, rules can be developed to ensure that jurors are not the focus of television coverage. Proponents point to a number of studies supporting them. One of the more recent scientific studies, published in 1990, showed that the camera in court did not impair a witness's ability to recall accurately details of a crime or to communicate effectively, and did not adversely affect juror perceptions of the quality of witness testimony.

Opponents

Opponents to camera access maintain that there is a greater tendency to grandstand, and they focus on the use of "misleading" and "sensationalist" clips by the media. They maintain that the media are not interested in educating the public, but rather, exploiting for commercial gain the private tragedies of individuals who are forced to come to court to obtain or participate in justice. Fair trial is inevitably affected by prejudicial publicity. Victims will hesitate to report crime, for fear of having to appear on television. Justice will not be served.

Most agree that televising appellate proceedings is not problematic. Concerns surround the television of the testimony of witnesses at trials. The issue following from that is whether televising should then be permitted with the consent of the parties in the case and the witness concerned. Proponents of greater camera access to court argue that a consent rule, such as that which exists in Ontario, means that there is little or no television coverage of courts, in fact. They suggest that while the position of the participants can be taken into account, the judge should decide whether television should be permitted on the basis of the open court principle, constitutional rights and the public interest.

Fundamental Freedoms

In Canada, there are 2 additional elements to the debate. The CANADIAN CHARTER OF RIGHTS AND FREEDOMS provides under s2(b) that a fundamental freedom is "freedom of expression, including freedom of the press and other media of communication." Unlike the United States, where a constitutional right of camera access to court has not yet been established, judicial decisions in Canada make it clear that the Charter right in s2(b) includes the process of filming generally, and includes, as well, general public access to court. In the Squires case, which considered the issue of television camera access to the doorway of a courtroom, the Ontario Court of Appeal held that s2(b) did create a right to film in a court building. In that case, a 3:2 majority of the court upheld a ban on camera access to the court doorway as a reasonable limit on the freedom on the basis of a consideration of section 1 of the Charter, while indicating that the considerations regarding camera access to the courtroom itself would be different. Since then, the Supreme Court of Canada, in its decision in the Dagenais case, has substantially rewritten the common law rule applying to publication bans generally (see OPEN COURTS AND PUBLICATION BANS). That law would also apply to a consideration of television camera access to court.

From the point of view of policy, it is clear the Canadians are now deluged with American justice on television. Advocates argue that television camera access to Canadian courts holds the promise that Canadians could see and hear how their own unique system of justice works.

See also MEDIA AND THE LAW.