Cameras in Court: Canadians have a right to know about their justice system

We do not understand our justice system.

IMG_3818Why should we? How could we? How do we expect Canadians to understand something so complicated that the vast majority, despite its importance, have no meaningful contact with in their lives?

We are like the prisoners in Plato’s Allegory of the Cave feebly trying to understand complex legal principles, or intensely emotional and sophisticated evidence through shadows on the wall.

Live tweets, editorials, and courthouse reporting all deserve the same response that Plato gave thousands of years ago: “to them, I said, the truth would be literally nothing but the shadows of the images.”

Would live tweets capture the intensity, emotion, and spirit of a Stanley Cup Hockey game? Do we understand the taste of a meal from a restaurant review?

Do we feel we understand the true loss of losing three children as a result of an impaired driver through media reports and exclamation marks? Are we so naive as to believe in comprehension as to why Mr. Ghomeshi is acquitted or found guilty based upon endless opinions, commentary, and media after-court briefings?

Twitter does not convey justice.

As one Toronto lawyer opined: “Twitter doesn’t do the Ghomeshi trial justice. There is a better alternative.” He states (quite rightly in my view):

The Ghomeshi trial vividly underscores the argument that live television broadcasting would promote better public understanding, enhance journalistic coverage and contribute to public confidence in the criminal justice system.

[…]

It is surely difficult for the public to decide between these two competing views. But if the Ghomeshi trial were broadcast live, it would have provided a unique opportunity to foster public understanding of the process. Instead, the public is left to rely on immediate social media reporting.

In order to truly understand anything as humans, we strive to use all our faculties of comprehension available. The more facilities we can use, the greater the understanding. This is particularly important in matters that affect us as a properly functioning society like the justice system.

It is important to understand so that we can discuss our law, debate it, engage each other, and engage our government for reform where needed.  As has often been said, sunshine is the best disinfectant. The justice system is not immune to the mildew of complacency. Shining light can add to meaningful dialogue on how to adapt and make systems better.

Jeremy Bentham wrote in the 19th Century:

Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial

Yet why is it that something so important for the collective to understand is reduced to hearsay and second hand information like media reports, live tweets, and so-called “expert” opinions?

Ironically, this second-hand information is the very type of “unreliable” information that a Court would not permit as evidence in trial to get to the truth of any matter. Yet, somehow, this is “reliable enough” for the public to have sufficient understanding of the legal system to foster confidence in its existence?

As a lawyer, one could never appear in Court and introduce into evidence a media report of a fact for its truth; yet, the same Court won’t permit first hand streaming of that information to the public to make their own assessments of facts? It is staggering to understand the conflicting rationale, yet so is the case in Canadian courts.

Justice is about understanding the process, not the result.

What every lawyer and judge knows is that justice is as much about process, as it is about result – if not more so.

An old principle of common law declares “Not only must Justice be done; it must also be seen to be done.”  The process itself must be known for society to have confidence that rules were followed and the law was applied fairly.

canada needs cameras in courtReporting on end results like guilt or innocence does nothing to advance greater confidence or deference towards our justice system.  Rather, it aggravates ignorance and fuels distrust by creating dissonance to those who predicted a result contrary to their expectations based upon limited information and lack of procedural understanding.

As a highly respected law professor Amy Salyzyn wrote several years ago in The Star on this very issue: 

For one, seeing or hearing something isn’t the same as reading it. Visual cues, sound and tone of voice matters, as anyone who has been on the sending or receiving end of a misinterpreted email can attest.

Yet here we are in a day of unlimited information at the tips of our fingertips. Through apps like Periscope and Instagram, the eyes of everyone has made the words entirely accessible and transparent.  Except, of course, the very place we should be striving to seek the utmost transparency: our justice system and the Courtroom where it is either banned, or severely restricted.

The Chief Justice of the Supreme Court of Canada is correct

The Chief Justice of the Supreme Court of Canada’s said herself:  

[I]f we want to sustain a society built on the rule of law. Despite occasional discomfort, a free press and an independent judiciary must work together to foster a society committed to the rule of law. The rule of law cannot exist without open justice and deep public confidence in the judiciary and the administration of justice. And the media is essential to building and maintaining that public confidence.

In her speech, she accepts that we would be naive to not acknowledge that incomplete, distorted, or one-sided press coverage does damage to our collective fabric by disintegrating our respect for the justice system and its understanding.  Yet, in a pathetic twist of irony, this is the only way the media is permitted to report on cases of huge public significance.

She cites one case in particular case where:

…The media coverage that followed was very disturbing. A number of commentators focussed personally on the judge rather than on the merits of his decision. His intellectual ability was attacked, and he was castigated as a closet paedophile. The vitriol in the press inflamed public passions on a subject that was already very sensitive. The reaction became so extreme that the individual judge received threats and required police protection. Such sensationalization and distortion do little to help people understand the issues or the justice system, and impose serious costs in terms of the security of judges, the independence of the judiciary, and the repute of the judicial system.

And yet, here we are 17 years later in the same darkness, looking at shadows on the wall.

All the while, the world lives in the outside of the Cave with unfettered and staggering access to information that is immediate, comprehensive, and unfiltered. Virtually everywhere and everything we experience this transparency but not in the Court where unfiltered transparency matters most.

Criticism of cameras in Court

why don't we have cameras in court in canada?Criticism of why cameras cannot work in Courts is rampant, but it invariably comes from the those most involved in the proceedings, rather than society as a whole who seeks to benefit from understanding. However, these explanations, in my view, are self-serving and protective of the very issues society ought to expose in order to enhance and improve upon.

If anything, cameras in courts will actually regulate those directly involved in the process to themselves hold themselves to a higher standard of public accountability.

Sky-falling claims of witness’ safety protection, witness exclusion order violations, grandstanding of lawyers or witnesses are wildly speculative at best; completely false most likely.

We have seen first-hand through other jurisdictions that cameras in Courts can and do work.  Perhaps one of the most telling examples of how cameras in court serves a valuable and effective catharsis for society in seeking justice was the case of Oscar Pistorius.  The same can be said for Michael Jackson, O.J. Simpson, and many others.

Whether people agreed or disagreed with the results on those cases, at least there was informed and meaningful debate about what happened. Serious and informed discussions were had on domestic violence, expert evidence, racism in policing, and the value of thorough cross-examination.

Can the same be said in any of Canadian cases? We may all like to believe we have an understanding but the truth of the matter is that we, as Canadians, probably have a better understanding of the U.S. justice system than our very own. Does anyone really know what happened in the cases of Robert Pickton? Russell Williams? The Jane Creba shooting? The James Forcillo trial?

Can any Canadians, other than those in attendance, make a fair judgment against Mr. Ghomeshi or against his accusers? Yes judgment on social media is ubiquitous, but it is not judgment made within echo chambers of media coverage?

Further criticisms that courts are open and people can attend if they wish is deliberately naive.  Anyone knows that such a limitation makes Canadian courts accessible only to lawyers, judges, the unoccupied, and tourists. To expect Canadians to take time off work, school, or other obligations in order to better understand a system we all have an interest in appreciating is beyond naive – it’s offensive. We, as Canadians, have a right to know how our Courts work an deliver justice as much as any other right we share.

Suggesting that Canadians’ open court rights are met because they can attend personally is like saying they can vote if they attend Ottawa to do so (Monday to Friday, for three days, between the hours of 10:00-4:30 with lunch and breaks in between).

Limits places on cameras in Canadian Courts

Even the strongest of advocates for cameras in Courts would not insist that cameras ought to be permitted at all costs.  There are always limits.  To name a few obvious examples: child and other vulnerable witnesses, national security matters, investigatory techniques being revealed, to name only a few.

Like any right, there must always be “reasonable limits” to the open court principle but those limitations must balance the salutary effects and its deleterious effects. Instances for censorship ought to be rare, and only where it is necessary to prevent a specific miscarriage of justice or would somehow undermine the justice system as a whole.

IMG_3625The default should be one of permission to broadcast, not automatic refusal in all cases.

Just as one can walk into virtually any Court in Ontario without reason and watch a proceeding, that same principle should apply to broadcasting such proceedings a matter of public interest.

It’s time for Canadians to be freed from the Cave that is the Canadian Justice system.

We cannot be content with watching shadows on the wall and feel confident in believing we have an understanding of something so integral to a properly functioning society.  The more we understand, the better we all fare: the public, witnesses, accused, the Court, and justice itself.

2017-01-27T07:21:24+00:00

About the Author:

Sean Robichaud is lead counsel and owner of Robichaud's.