Breaking the Fourth Wall: The Case for Cameras at the SCC

Weighing in on the Webcasts

Visitors to the Supreme Court of Canada’s website in recent months will have noticed that they can newly access webcasts of oral arguments before the bench, as first reported here by Rebecca Ross for TheCourt.ca. Since February 9, 2009, the Supreme Court has streamed all counsel’s submissions and judges’ questioning in permitted cases.

This development is an exciting one, as it offers court-watchers adverse to Ottawa’s chilly climes or too impatient to order videos through more official channels a convenient alternative means of reviewing oral arguments. The Main Courtroom at 301 Wellington is now but a few mouse clicks away.

The Supreme Court does well to reveal part of the reasoning process behind its decisions, but in doing so revives popular debate surrounding cameras in the courtroom. In my view, while much of the clamour concerns the effects of recording defendants, victims, and lay witnesses in criminal trials – all moot issues in our high court, which does not hear live testimony in all but the most extraordinary of cases – the arguments against the webcasts seem largely without merit.

Affecting How We Perceive Justice

The judiciary seems by many accounts a relatively impenetrable branch of government. Because the SCC is staffed by life appointees who are afforded little media exposure in their interpretations of law and policy, Canadians are often unwilling to engage or feel unable to engage productively with its decision-making process. However, by recording oral arguments and questioning online, the Supreme Court invites potential observers, especially those working or otherwise unavailable to sit in on its actual sessions, to experience the process on their own time.

If only in some small measure, informing popular perceptions of justice may actually help increase access to justice. Observers may be emboldened by the transparency of the Supreme Court’s new initiative, the comprehensibility of the arguments it transmits, or the sensitivity of its justices in asking questions. Further, observers may better understand that the process by which the SCC’s decisions are made involves an intricate weighing of opposing arguments and mitigating social, operational, and policy factors. This understanding may engender an appreciation for the process which runs deeper than that which they could feel reading case commentary, whether it be in one of Kirk Makin’s columns, in the Canadian Abridgment Digest, or even – dare I say it – on TheCourt.ca. For these reasons, transmitting oral arguments via webcast cannot help but instill greater public confidence in the judiciary.

Improving the Quality of Legal Education

Perhaps more tangibly, these newly accessible materials will be of much practical utility to academics. In developing their own skills, teachers and students of many legal subjects, and especially trial practice, may draw from the Supreme Court’s video reserve of counsel exemplifying effective oral advocacy.

(In what may be equally useful to academics, these newly accessible materials may create a similar video reserve of less effective approaches to trial advocacy. Seek out a recording of the province’s counsel in Vriend v. Alberta, [1998] 1 S.C.R. 493 for an example – his questioning by the court is quite unlike anything I have ever seen.)

A Note of Apprehension?

As I mentioned earlier, the most familiar objections to cameras in the courtroom surround complications arising from the recording of defendants, victims, and lay witnesses in criminal trials. Many fear that unnecessary exposure of criminal defendants builds prejudice against them before a verdict is rendered, that victims and witnesses may be exploited by a sensationalist media, and that victims and witnesses may be disinclined to testify because their painful recapitulations would be recorded and published, to name but a few concerns. I concede that these issues militate very strongly against video recording testimony in certain trials, notwithstanding any improvements in access to justice or the quality of legal education which flow from the recordings.

However, as the Supreme Court does not hear live testimony in all but the most extraordinary of cases, these concerns are not triggered and I recall few other applicable objections to its webcasts. One of the most common, highlighted by Rebecca Ross, contends that an accessible video log of all arguments and questions may unduly circumscribe the high court in future, apprehensive that its decisions will not accord with the tone of legal questioning or discussions adopted during earlier sessions.

I must admit that at first rub, this objection seems fruitless. There exists no expectation that in deciding cases, Supreme Court justices adhere to the same lines of reasoning they entertained when questioning counsel. Rather, the expectation is that they entertain all arguments, considering and perhaps espousing one before refining or disregarding it, until reasons are developed upon continued research and reflection with other justices. I do not believe that the justices’ performance during questioning will result, or has resulted, in “less candid discussion and more cautious judgments from the court.”

Commending the Court

As an aspiring trial advocate and avid court-watcher, I cannot but commend the Supreme Court for its positive strides toward improving access to justice and our quality of education, if only in some small way, by posting webcasts of oral arguments. It may be yet too early to tell the precise impacts of the webcasts, but let us hope that they accord with the Supreme Court’s good intents.