February 2nd, 2011
What do O.J. Simpson and Bruno Hauptmann have in common? Their judicial proceedings were captured on camera. Unlike all 50 federated states in the U.S. which permit some degree of camera access to state courts, Canadian provinces generally prohibit the use of cameras in trial courts. Recently, the CBC, Groupe TVA, La Presse and the Fédération professionnelle des journalistes du Québec (the “media organizations”) contributed to the Canadian litigation history concerning journalistic activities in courthouses and media coverage of judicial proceedings by challenging the constitutionality of rules 38.1 and 38.2 of the Rules of practice of the Superior court of Québec in civil matters (the “rules of practice”); ss. 8.A and 8.B of the Rules of Practice of the Superior Court of the Province of Québec, Criminal Division, 2002 (the “rules of practice”; and Directive A‑10 of Quebec’s Ministère de la Justice entitled Le maintien de l’ordre et du décorum dans les palais de justice. These rules not only limit where filming, photographs and interviews may take place in public areas of courthouses, but also prohibit broadcasting of official audio recordings of court proceedings. The case found it’s way to the docket of the Supreme Court of Canada (SCC) after the Superior Court and Court of Appeal upheld the constitutional validity of the rules. Last week, the SCC released its unanimous decision on the validity of the rules of practice. The holding? The appeal should be dismissed. The constitutionality of the rules of practice and of Directive A‑10 is confirmed.
After applying the test for establishing a violation of s. 2(b), which was formulated in Irwin Toy Ltd. v. Quebec (Attorney General), [  1 S.C.R. 927 and expanded in Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62, the SCC found that both the rules of practice and of Directive A-10 infringed the right to freedom of expression.* Applying the s.1 Oakes test, the SCC held that the limits imposed on freedom of expression are reasonable and justified in a free and democratic society. The legislature’s objective of maintaining the fair administration of justice by ensuring the serenity of hearings advances concerns that are pressing and substantial. There is a rational connection between the means used and the objective. The increase in the number of journalists together with a greater sophistication of the technologies used in courthouses have had adverse consequences for the administration of justice by disrupting the maintenance of order and decorum in and near courtrooms. Additionally, the rules of practice and Directive A-10 protect the privacy of witnesses, an important aspect of the fair administration of justice. The minimal impairment stage of the Oakes test is met: the solution is less intrusive than a total ban on journalistic activities in courthouses and journalists maintain the right to use recordings of hearings to enhance the accuracy of reports. Finally, the salutary effects (e.g. allowing parties to move about freely near courtrooms without fear of being pursued by the media) outweigh the negative effects.
This case adds to a list of freedom of expression – in particular, freedom of the press – cases that have been decided by the SCC in recent years (e.g. my colleague, Cris Best, commented on the issue of journalistic-source privilege in R v. National Post here). With s. 2(b) cases, the courts are faced with the difficult task of assessing state-imposed limitations on freedom of expression; arguably one of the most notorious freedoms. It embodies essential core values of Canada and its citizens – that of, democracy (political expression), the pursuit of truth (expression of ideas) and self-realization (artistic expression). While I would not be the first to agree with all legislative attempts to restrict this essential freedom; in my opinion, I do believe the unanimous court was right to uphold the constitutional validity of the rules of practice and Directive A-10 (the name of which to me sounds like it came out of 2010: Space Odyssey). While some may criticize the judgment for putting decorum and dignity of a courtroom above press freedoms, order, tranquility and serenity in a courtroom really do contribute to the fair administration of justice. Why do lawyers (at least in Ontario) bow as a sign of respect upon entering and leaving a courtroom?
While I agree that permitting journalists with video cameras unfettered access to courthouses may not always result in O.J. Simpson media-frenzy style coverage, I think it’s important to remember that parties to judicial proceedings are undergoing extraordinarily difficult times in their lives, and do deserve protection of their privacy. It should not be forgotten that the public is permitted to enter courtrooms and watch proceedings, yet I question how many people have actually stepped into a courtroom for this purpose. I will be the first to admit that I never stepped foot into a courtroom, let alone a courthouse, until a few weeks ago. Judicial proceedings are also accessible public records. Not only that, but the Supreme Court of Canada has been a contributing force to expanded journalistic activities in courthouses and media coverage of judicial proceedings. For example, between 1993 and 1995, the SCC allowed three high-profile cases to be televised – including the one that considered whether Sue Rodriguez had the right to assisted suicide. (The CBC has an interesting article on cameras in the courts here). Steps have been taken to facilitate media access to courthouses. One reason why freedom of the press is protected under s. 2(b) is because a strong and vibrant media contributes to a strong and vibrant democracy. While Canadian jurisprudence has established that the gathering and dissemination of news and information without undue government interference is at the heart of s. 2(b) values: democracy, truth and self-realization – the government interference in this case is not undue.
*As a side, in most s. 2(b) challenges, the focus of the debate is whether the law or policy at issue can be upheld pursuant to s. 1. Freedom of expression violations are usually easily established due to the broad interpretation of the right given by the courts. It is interesting to note that in this case, the majority of the Court of Appeal found no s. 2(b) violation, holding that broadcasting recordings of hearings as a method of expression undermine the values that underlie freedom of expression.[filed: Canadian Broadcasting Corp. v. Canada (Attorney General) Freedom of Expression]