A note from our new Law editor, Thomas Rose, followed by his first column for J-Source:
After many years at the helm of this section, Dean Jobb is moving on. He will be missed. Dean’s effort at constructing the Law Section and in creating what he was fond of calling “a clearinghouse for news, information, advice and commentary on legal issues of importance to journalists” cannot be understated.
As the new steward of the Law Section it is my intention to build on what has already been established. In coming weeks and months you will notice some change in content. International reporting on and about journalism and the law from around the world for instance, is to receive a new focus, as will comment on events trending in law and in journalism. And, as always, I welcome your thoughts and ideas about how this section can better serve you.
Ontario may be the latest province to allow the use of electronic devices in its courtrooms, but it is not necessarily a privilege enjoyed by all. Our new Law editor introduces himself and the complexities of this decision.
By Thomas Rose, LL.M, MSL, Editor, Law Section, J-Source
Ontario is the latest province to sanction the use of electronic devices by lawyers and journalists during court proceedings. It is a limited use, to be sure, but a welcome one nonetheless.
The Ontario Superior Court now allows tweets, texts and even the possibility of transmitting photographs of courtroom events as they transpire. Simple guidelines for use have been issued, chief among them is that the “electronic device cannot interfere with courtroom decorum” or “with the proper administration of justice”. This means for example that journalists, as always, must adhere to the provisions of any publication ban or any other restriction a presiding judge may choose to impose.
Ontario’s decision follows similar action in B.C., Saskatchewan and Newfoundland and Labrador. On the national front, the Canadian Centre for Court Technology, after consulting with lawyers, judges and members of the media, has come out in support of greater use of electronic devices to communicate court proceedings.
In certain respects then, the question of whether or not reporting live from a courtroom is acceptable is no longer an issue. Where the potential for controversy remains is in working out the details of how best to proceed. Two of the most contentious of these details are whether any restrictions should be imposed on journalists and whether the privileges the courts are now granting lawyers and journalists should be extended to all Canadians.
Both within and outside the judiciary there are those who advocate for total use of all electronic devices including television, during virtually all courtroom proceedings, from provincial courts right up to the Supreme Court. On the other hand there are those who reject such a blanket approach for fear it may undermine the administration of justice.
Canada’s legal system is built upon a series of fundamental principles that together work to fulfill what is at once a promise to and a compact with the people. Chief among these principles is that anyone who should find themselves before a court will receive a fair and open trial.
Journalists and members of the media generally have tended to frame the argument for greater use of technology in real-time reporting as a critical component of making court proceedings more transparent and more open. The greater the use of electronic devices presumably, the more likely court proceedings will be kept open.
Still, whether a morsel of information makes it into the public sphere a half hour earlier than it would if there were no instant texting and tweeting in court in most cases, is not likely to affect the public’s impression of whether justice is being done, or whether it is seen to be done.
Truth be told, the decision by the Ontario and other courts is perhaps more a concession to the competitive demands of the news industry, which has made something of a fetish of being the first to publish every word, every syllable uttered inside a courtroom, than in living up to the open court principle.
As to extending to all Canadians the same privilege now granted lawyers and journalists the question appears to have been framed as a freedom of expression issue.
Under the Charter, a fundamental freedom granted “everyone” is the right to freedom of expression. It has been suggested that because this right is guaranteed to all Canadians, allowing only lawyers and journalists to be free to express themselves during court proceedings violates the right of anyone in a courtroom to tweet and text. The media it has been argued has no more right than any other citizen when it comes to covering the courts. Not so.
The Supreme Court has over the years been fairly clear that when it comes to freedom of expression as it relates to government or covering the courts, journalists are in fact entitled to greater leeway than ordinary citizens. Just last year, in a public and at times passionate speech on the relationship between the courts and the media Chief Justice Beverley McLachlin stated inter alia, that the media is “essential” to building and maintaining a democracy built on respect for and a belief in the rule of law. This is a longstanding view of the Chief Justice. In 1991, McLachlin, in a dissenting opinion on the question of whether a search warrant should be upheld against the CBC, clearly stated that the Charter “affirms the special position of the press and other media in our society.”
Of course, you never know with a Charter challenge, and there certainly are many jurists who hold that the media should not enjoy rights denied other Canadians. Where this issue may come to a head, in Ontario at least, is over the question of who is to be considered a journalist or for that matter a member of the media.
The Superior Court Protocol on use of electronic devices does not spell out how a judge will make that determination. In the age of the so-called citizen journalist, anyone could conceivably argue that their tweets and text should be judged in the same category as more readily identifiable journalists associated with organizations that espouse generally recognized principles of journalism. In principle, this is a view shared by the Chief Justice.
Writing for the majority in Grant v. Torstar , a groundbreaking case that expanded the defence against liable, McLachlin held that this new defence of Responsible Communication on Matters of Public Interest is “available to anyone who publishes material of public interest in any medium”.
It would seem that in a Charter challenge the Supreme Court may at the very least be prepared to extend to individuals engaged in non-traditional forms of journalism the status of being a journalist for the purpose of tweeting and texting from inside a courtroom. Presumably a broadening of the category of who is officially a journalist would likely carry with it an extension of the special status afforded journalists covering government and the court. Whether the Court would grant that same status to all Canadians under their right to freely express themselves however, would be a stretch.
Clarification: A previous version of this article contained a different final paragraph. The current one contains the same information, but presented more clearly.