Friday, May 16, 2008

 

Television in the Courtroom: where "the citizens, collectively, exercise the function of sovereign by ruling themselves"

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Judge considers request to tape B.C. trial
from CBC News

In what would be a first for the province, a B.C. Supreme Court judge might allow tape recorders and TV cameras into a courtroom in Victoria ...


I wish that judge could be Madam Justice Elizabeth Bennett. I wish the B.C. trial could be the Basi Virk Basi / BC Rail trial. And who knows, it might happen. But the quote above is dated July 5, 2000 and concerns the trial of nine Koreans charged with smuggling 131 Chinese migrants into Canada. Nevertheless, a precedent is a precedent and the common law is built upon precedents. That trial did happen in B.C. and it was indeed televised.

Many of us are hoping that Madam Justice Bennett will also rule in favour of allowing British Columbians to observe the unfolding evidence in the Basi Virk Basi / BC Rail trial.


To find the general terms of the Supreme Court of British Columbia Policy on Television in the Courtroom (adopted March 9, 2001) we must go to: http://www.bccla.org/othercontent/02camerafactum.html and scroll down through some dead-boring legal talk until we get to Part II: Summary of common arguments for and against television in the courtroom.

FOR TELEVISION:

* Television opens trials to public scrutiny ...

* enhances fairness of the trial and the appearance of fairness that is essential to public confidence in the system by exposing the participants to public view and criticism

* does not distort – merely "watches" and shows accurately

* knowledge that trial will be televised will cause lawyers to prepare more thoroughly to avoid looking foolish, and will thus produce more effective advocacy and an improvement in the administration of justice

* the courts are public institutions, not the private preserve of judges, and the public has a right to have public proceedings televised

* Television educates the public

* increased public understanding of the system enhances the quality of justice and engenders respect and confidence – will allay the current widespread cynicism

* most people have no direct access to courtrooms and receive their information through television

* an informed public can work to ensure that laws and procedures are fairly and lawfully implemented

* television provides more accurate, balanced, and complete reports of court proceedings than conventional media reports

* tapes of televised trials will be valuable educational tools, particularly for law students


AGAINST TELEVISION

* Television affects the trial participants

* witnesses may be reluctant to testify when faced with the glare of publicity

* witnesses may look and act differently than they would if they did not know they were being televised, thus affecting an assessment of their credibility (The U.S. Federal Judicial Conference evaluation noted that 64% of participating judges reported that, at least to some extent, cameras make witnesses more nervous and 41% found that, at least to some extent, cameras distract witnesses)

* a witness’s testimony may be affected by what he or she sees during televised proceedings before testifying

* witnesses may embellish their testimony to attract media attention to themselves – their "15 minutes of fame"

* television puts unnecessary pressure on jurors and could affect their judgment

* lawyers will be tempted to "grandstand" (e.g., O.J. Simpson)

* television may affect counsel’s conduct of the case ...

These arguments are fully developed in two particularly useful papers. First, arguments in favour of televised trials are developed in a paper by Daniel J. Henry, house counsel for the C.B.C., entitled "Electronic Public Access to Court – An Idea Whose Time Has Come", which can be found at: http://adidem.org/articles/DH1.html . Second, arguments against television of trials are set out in an article by M. David Lepofsky, counsel in the Ontario Ministry of the Attorney General, who was Crown counsel in R. v. Squires in both the District Court and the Court of Appeal. His paper is entitled "Cameras in the Courtroom – Not Without My Consent", and is published at 6 National Journal of Constitutional Law 161.

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From The Canadian Encyclopedia: Cameras in the Court, another view Pro and Con

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 [such as the 9 Koreans cited above. - BC Mary] 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. [My emphasis added. - BC Mary.]

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 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.

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.

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.


Proponents

Proponents 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.

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Continued from Supreme Court of B.C. policy on Television in the Courtroom:

C) The Interests in the Balance

a. The Principle of Open Courtrooms

16. The presumption in favour of open courtrooms is grounded in the fundamental concept of democracy that the citizens, collectively, exercise the function of sovereign by ruling themselves. This ideal requires citizens to retain the ability to observe, deliberate on, and call into account both elected and unelected representatives of the legislative, judicial, and executive branches of government ...

The freedom of individuals to discuss information about the institutions of government, their policies and practices, is crucial to any notion of democratic rule. The liberty to criticize and express dissenting views has long been thought to be a safeguard against state tyranny and corruption.

Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480 (S.C.C.) at 494; Appellant's Brief of Authorities, Vol.I, Tab 2

17. The interest of the democratic citizenry that underlies the principle of open courtrooms is elevated to constitutional status by section 2(b) of the Charter. As noted by La Forest, J. in CBC v. New Brunswick:

The principle of open courts is tied inextricably to the rights guaranteed by s.2(b). Openness permits public access to information about the courts, which in turn permits the public to discuss and put forward opinions and criticisms of court practices and proceedings.... The full and fair discussion of public institutions, which is vital to any democracy, is the raison d'etre of the s.2(b) guarantees.

Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480 at para.23; Appellant's Brief of Authorities, Vol.I, Tab 2

18. In Edmonton Journal, Cory, J. expressed the preeminent importance free expression in securing the democratic accountability of institutions:

It is difficult to imagine a guaranteed right more important to a democratic society that freedom of expression. Indeed a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions. The concept of free and uninhibited speech permeates all truly democratic societies and institutions. The vital importance of the concept cannot be overemphasized.

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Coming soon: Why the Basi Virk Basi / BC Rail trial should be televised,

How to initiate a request to Madam Justice Bennett to rule in favour of TV.

- BC Mary.

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Comments:
Masterful Mary, simply Masterful. A great article.

It's another uphill grind. But isn't everything nowadays in this province. You must have spent a lot of time in preparing this.
 
"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."

The bolded part can be taken two different ways, does the interested party personally have the time, OR can that party find out ACCURATELY and dependably when the proceedings will move forward and.....you know.....actually happen?

It is VERY helpful for the public to have actual, factual information regarding Where & When court proceedings are to take place, especially if they are going to travel 500 or 1000 miles to attend. After driving for a full day or more, a notice that the time has been changed, especially to earlier, is not happy making news!

With a modicum of research, mainly scanning past posts (here and elsewhere, and Court Listings) and the rare mention in CanWest publications, it would not be difficult to assemble a number of incidences of time change, cancellation, postponement, room changes and other last minute re-adjustments of the scheduled proceedings in the BC Rail Corruption Trial!
 
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