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Cameras in the Courtroom Report
October 15,
2001
The Law Society
of Newfoundland
5th Floor, Atlantic Place
P.O. Box 1028 St. John's,
NF A1C 5M3
Attention: Mr.
Jeffrey P. Benson
President
Dear Mr. Benson:
Re: Cameras in the Courtroom
As you are aware, in the Spring of this year Robert M. Sinclair, Q.C.,
then President of the Law Society, requested that a special Advisory Committee
inquire into, and report to Benchers on, the issue of "Cameras in the
Courtroom". As I believe you are also aware, the Advisory Committee consisted
of Mr. Ted Janes, Lay Bencher, Ms. Valerie Marshall, Law Society Member,
and the undersigned, as Chair of the Committee.
I. INTRODUCTION
Our Committee decided to approach
this matter by conducting a search and review of the extant literature
on the subject of photographic and electronic media coverage of Courtroom
proceedings, including reports, commentaries and legislative/regulatory
enactments from other jurisdictions. Once the Committee members each had
an opportunity to review the more salient of the available materials,
we discussed the issues and developments in this subject area. The focus
of our discussions was the assessment of approaches or trends in other
jurisdictions, the identification of areas of potential concern, and consequently
the agreement of points which we think could usefully be brought to the
attention of Chief Justice Derek Green, whose correspondence of March
9, 2001 invited the Law Society's views on this subject.
We can report that there is no dearth of commentary on the subject of
"Cameras in the Courtroom". The Committee had available to it a significant
volume of material, and it may be of interest to Benchers to note that
the materials reviewed by the Committee included (but were not limited
to) the following:
(i) the Final Report
of Canadian Bar Association's Special Committee on Cameras in the Courts
(July 1987);
(ii) the discussion paper "Cameras in the Courts: Balancing Freedom of
the Press with the Rights of Litigants", presented to the National Council
of Canadian Bar Association at its 2001 Mid-Winter Meeting;
(iii) the Preliminary Report of the New York State Bar Association Special
Committee on Cameras in the Courtroom (January 2001);
(iv) the 1999 Report of the research undertaken by the Federal Court of
Australia into "Electronic Media Coverage of Courts"; and
(v) the most recent version of California's Rule 980 ("Photographing,
Recording and Broadcasting in Court"); and
(vi) the recent decision of the British Columbia Supreme Court in R. v.
Pilarinos and Clark.
The 1987 Canadian
Bar Association Report, while somewhat dated, gives a useful overview
of the arguments for and against cameras in the courts, and underlying
constitutional considerations. The New York State Bar Association Preliminary
Report is useful not only for its discussion of the issues, but also for
its detailed canvassing of the relevant regulatory regimes or policies
in the other American states. The Australian Report is very informative
in that is surveys the situation in Australia, New Zealand, the American
states, Canada and the United Kingdom. The decision in R. v. Pilarinos
and Clark is very interesting for its review of the constitutional considerations
affecting media coverage of courtrooms in Canada. Copies of all the documents
referred to supra are being provided to the Society with this report.
It is the impression of the Committee that there has been a clear but
cautious trend in other jurisdictions towards liberalization of access
by electronic media to courtroom proceedings. While there does appear
to be an understandable recognition of the public benefit to be gained
by awareness of and observation of court proceedings, this does however
appear to be widely tempered by a concern for the integrity for the judicial
process and a concern for the interests of the various persons involved
in the typical courtroom drama. It appears that many jurisdictions have
already attempted to accommodate these competing interests. Not surprisingly,
in all the jurisdictions surveyed, a concern for the integrity of the
process emerged as a paramount concern, to which the public's right of
electronic media access should be subordinate. Not surprisingly, and perhaps
understandably, there has not been entrenched any presumed right of access
of electronic media in the courtrooms of Canada, the United States, or
any other jurisdiction with which we are familiar.
II. THE ISSUES
During our review and analysis of this issue, a number of core issues
and concerns became evident, and it is the Committee's view that each
of these issues or concerns needs to be addressed before any rules or
policies are laid down concerning access to the Courts by electronic media.
In particular, we refer to the following points:
(i) Ought there to
be an absolute right of access by electronic media to courtroom proceedings?
(ii) Is a right of access by electronic media subsumed in a general right
of public access, or does the electronic media merit separate consideration?
(iii) Whose interest is being served by the presence of electronic media
in the courtroom?
(iv) Ought a right of access by the electronic media be subject to the
consent or veto of any involved party, or ought it to be a matter of judicial
discretion to be exercised on a case by case basis?
(v) What factors are important in determining, in any given case, whether
the electronic media should be given a right of access?
(vi) Are some court proceedings more amenable to coverage by electronic
media than others?
(vii) Are any measures necessary to avoid or minimize potential adverse
effects of the presence of electronic media in the courtroom?
(viii) Who should bear the costs associated with the presence of electronic
media in the courtroom?
We will now turn to a brief
discussion of the Committee's thoughts on these points, in the order in
which they are mentioned. What follows is not intended to be a recapitulation
of the situations, policies or rules in other jurisdictions, but rather
is intended to be an expression of the Committee's views in these particular
areas.
IX. DISCUSSION
1. An absolute right of access?
The Committee has not been able to identify any jurisdiction in which
the electronic media enjoy an absolute or unfettered right of access to
the courtrooms, and it is the Committee's view that no such right should
exist. The competing interests and concerns of all parties involved in
court proceedings (including the interests and concerns of the Court itself)
are so numerous and weighty that it is difficult to conceive of any situation
where an absolute right of access could be justified.
2. Is the electronic media included in "the general public", or is
it something else?
There is a line of reasoning which has it that representatives of the
media already enjoy the same right of access to courtroom proceedings
in Canada as members of the general public, and that accordingly no special
consideration ought to be extended to the media. Thus, as the media already
have a right of access to our courts, there is no reason in principle
why cameras or other recording/broadcasting equipment need be permitted.
This line of reasoning found favor in the Pilarinos and Clark decision
(and others cited therein), where the Court decided that the media do
not enjoy preferred constitutional status relative to members of the general
public.
While on one level this line of thought has about it an attractive conceptual
simplicity, it is felt that it fails to recognize that the purpose of
the presence of the media is not only to enhance systemic accountability,
but also to educate the public and foster the confidence of the public
in our system of justice. Further, it fails to recognize that a significant
percentage of the general public do not use the conventional print media
as their primary sources of news, and that indeed for many people the
primary point of contact with media news coverage is television.
Thus, constitutional considerations aside, there would appear to be some
legitimate practical justification for treating the electronic media as
a distinct entity meriting separate consideration, and not treating it
in the same breath as "members of the general public", especially bearing
in mind the ability of the Court to control what happens in the courthouse
and to place limitations or restrictions on the media as may be appropriate
to the particular case. If it is accepted that the electronic media serve
important informational and educational roles for at least a large minority
of the general public, then means will have to be found to accommodate
the cameras which enable them to fulfill these valuable functions.
3. Whose interest is being served?
There is little doubt that the broadcast of courtroom proceedings
can serve the function of public education and can promote public awareness
and understanding of the workings of our system of justice. It also serves
to disseminate the "news" of what is actually happening in our courtrooms.
It is presumed that important incidental effects of electronic coverage
are that (i) it serves to remind the public that our society is governed
by a system of law, and (ii) it instills in the public a necessary level
of confidence in our system of justice.
The Committee is of the view that ethical and responsible electronic media
coverage is certainly capable of serving the interests of the public and
of our system of administration of justice. Certainly, the aforementioned
benefits to the public and society at large are frequently touted and
relied upon by broadcasters in support of a right of access to our courtrooms.
The Committee will observe,
however, that despite the statements of laudable intentions by the media
to protect and promote the public's interests, the actual coverage not
infrequently undermines the veracity of these statements. More often than
not, broadcast coverage is sensationalistic or lurid, or both, and the
more informed viewers can often guess that it is also incomplete, oversimplified
or inaccurate. Clearly, in such cases it is the commercial interest of
the media outlet(s) that is being served, and not necessarily the interests
of the general public and the system of justice. Indeed, it is probably
true to say that in the case of electronic media access to our courts,
the "public interests" will sometimes be served, but the interests of
the media will always be served. The problem is, however, that while "gavel
to gavel" coverage would likely better serve as an educational tool (however
tedious this might sometimes be), it is the shrill, fast-paced two minute
suppertime-news item which best suits the purposes of the broadcaster,
whose audience has long been trained to expect and appreciate short, snappy
and colorful news stories.
The Committee raises this issue because it feels that it is important
to recognize that commercial electronic media may sometimes have interests
or perspectives which are not synchronous with the public interest, and
which may indeed be inconsistent with the public interest. If it is seen
as important and desirable that electronic media coverage educate the
public and promote a civil society, then is the cost of this the fact
that we must put up with instances of coverage where this is plainly not
the intent? The Committee is of the view that there will be cases where
the electronic media's interest will be solely or very largely commercial,
and that it is important that this fact be recognized.
4. Who decides: the parties or the Judge?
Our review of practices in other jurisdictions indicates that amongst
those jurisdictions where access to the courtroom is granted to the electronic
media, there is a divergence of views concerning the weight to be given
to the wishes of the parties involved in the actual proceedings. At one
end of the spectrum, a bare refusal by any one party (including in some
cases the presiding Judge) determines the matter. At the other end of
the spectrum, the wishes of the parties are but one factor to be taken
into account by the presiding Judge, who in an exercise of his or her
discretion will weigh any number of factors before deciding upon access,
including the scope thereof and any limitations to be placed thereon.
One difficulty with having the question of access simply turn on the agreement
of all parties is that it precludes any discussion of the pros and cons
of electronic media access in the particular case. The simple refusal
of any one party ends the discussion, with no evaluation of the merits
of the parties' positions, and no opportunity to be spared vetos based
on dubious or spurious considerations. To accept that any party can have
an unfettered right of veto is to accept that at all times the right of
an individual litigant will override the public interest, which is clearly
a debatable proposition.
While as mentioned there is no uniformity of approach on this point in
the jurisdictions canvassed, there is however a fairly clear trend in
favor of placing the question of access by electronic media exclusively
within the discretion of the presiding Judge, who will hear argument and
make a decision that reflects a balancing of a number of factors. Rule
980 of the California Rules of Court, for example, lays down 19 specific
factors which a judge shall take into account, including the "importance
of maintaining public trust and confidence in the judicial system", the
"parties' support of or opposition to the request" [for electronic media
access] and the "difficulty of [subsequent] jury selection if a mistrial
is declared". (Rule 980 also provides that no court proceedings shall
be photographed, recorded or broadcast except as allowed under the Rule,
and it then requires media outlets to apply in advance for permission
for electronic media coverage in each particular case.)
The Committee is of the view that the question of the right of electronic
media access to courtroom proceedings should rest solely within the discretion
of the trial Judge. Further, the Committee believes that a consultative
process should be undertaken with a view to developing a list of factors
which should be taken into account by the trial Judge in each case. The
Committee is not persuaded that a presiding Judge should be required to
make findings or deliver reasons (on a matter which, after all, we suggest
should be within the Judge's discretion), but the counterbalance to that
may be that the presiding Judge should always afford the parties, including
the media, the right to be heard on the issue, a right which, we note,
is not given in California's Rule 980.
5. What factors are important?
The available literature on electronic media access to courtrooms is replete
with lists of factors which should be taken into account when electronic
media access is being considered. Not surprisingly, common themes emerge,
from a simple concern over potential physical disruption or distraction
caused by the presence of cameras, to concerns over the privacy interests
of litigants. Criminal law and family law cases seem to suggest more areas
of concern than others, though the potential for sensitivities in commercial
litigation is also noted. It is interesting to note that mere embarrassment
or awkwardness on the part of a party or witness in a proceeding is not
widely regarded as sufficient cause to exclude cameras from the courtroom.
At the end of the day, there appear to be two primary, overriding factors
into which all others are more or less subsumed: (i) the preservation
of the dignity and stature of the Court, and (ii) the protection of the
integrity of the trial process.
It is not necessary at this point to elaborate a litany of factors which
judges, commentators and others have deemed important to weigh in the
decision of whether to allow electronic media access. Rather, the Committee
would commend for Benchers' perusal the New York State Bar Association
Preliminary Report, the 1987 Canadian Bar Association Report and California's
Rule 980, for the instructive discussion in each of the factors which
might be considered.
6. Are some proceedings
more amenable than others?
Without doubt, there is much less concern about the broadcast of appellate
hearings than there is about the broadcast of trial proceedings. Nor,
for that matter, is there much controversy generated about the broadcast
of judicial review proceedings. While in the usual run of such appellate/judicial
review proceedings the discussion would often consist of desiccated analyses
of questions of law or possibly of mixed fact and law, there will still
be hearings where of necessity trial evidence of some sensitivity would
be under discussion, and thus it ought not to be accepted as a given that
such proceedings ought to be automatically open to the electronic media.
It bears more than passing notice, in the meantime, that the broadcast
of such higher-level review usually falls to public broadcasters, and
not commercial outlets. This is to return to the obvious point that commercial
broadcasters will usually only be interested in the immediately personal
or human angle, and not the public policy aspect.
Our research tells us that a reluctance to agree to the presence of electronic
media in the courtroom will be found in three main classes of cases: (i)
family law disputes, (ii) criminal [especially jury] cases, and (iii)
commercial disputes, especially where intellectual property of proprietary
or trade secrets or practices come into the evidence. Not surprisingly,
these would appear to be the sorts of cases which would attract the most
attention of the media and of the general public, but in the Committee's
view it is these very sorts of cases which will beg that the presiding
Judge attempt to discern between prurient or otherwise illegitimate interests
and the higher public interest. In many of these cases, the sole interest
of the electronic media will be in the immediate though short-lived sensationalistic
impact of the reportage, and the parties themselves will be left to deal
with the sequellae long after the media has lost interest.
7. Can the electronic media be present but not present?
It has often been remarked that the mere presence of cameras in the
courtroom introduces a dynamic that contaminates the proceedings, though
it is a matter of frequent dispute whether the effect is good or bad,
or conscious or unconscious. While some have suggested that it tends to
promote better behaviour by participants in the court process, at least
as many have suggested that the presence of the electronic media encourages
lower instincts in witnesses, counsel and even in the presiding Judge.
In truth, there is no empirical evidence to date on the point, and there
is not likely to be any data any time soon, given the intrinsic difficulties
of measurement in these circumstances.
Notwithstanding the lack of any empirical data on the point, practical
experience and intuitive logic appears to have lead many jurisdictions
to impose conditions or restrictions on the electronic media coverage
of trials, and the guiding thought seems to have been that the electronic
media may be present so long as their presence is not intrusive and, to
the extent possible, not noticeable. Moreover, there is a concern that
electronic media coverage not introduce the possibility of any detrimental
effect upon those who are not immediate parties to the case in question,
eg, jurors.
Thus, it is not uncommon for
it to be ordered that there be one television camera only in the courtroom,
and that it be trained only on the Judge, counsel or the witnesses, and
never on the jurors or the public in attendance. As well, and in order
to minimize or discourage any tendency in witnesses or others to "act",
it is commonly ordered that the red "ON" light on the cameras be covered,
in order that "actors" in the courtroom drama not be cued to the running
of the camera. As most Benchers will be by now be aware, it is also usual
that the television camera which is permitted in the courtroom is fixed
in place, and not able to move about the room during the proceedings.
Leaving aside the matters of the control of the physical presence of the
cameras in the courtroom, the Committee has a concern, in the case of
criminal proceedings, that the broadcast of trials may make it difficult,
especially in smaller communities, to recruit juries in the event of (i)
mistrials, or (ii) the trials of other criminal defendants involved in
the same fact situations. The notoriety generated by such coverage may
make it difficult to empanel an impartial jury of peers.
The Committee believes that it is important to recognize that, human nature
being what is it, the presence of the camera is never without effect,
despite what others might suggest. Policy-makers will be justified in
proceeding on the assumption that the presence of cameras is not a neutral
factor, and in developing policy which reflects that fact.
8. Who pays?
This is not as simple a question as it might first appear. While on
the one hand it might be thought that, as it is the electronic media who
is requesting access, then it should be the electronic media which absorbs
the cost associated with structural modifications to courtrooms and the
installation of equipment. On the other hand, it may be said that the
system of administration of justice has as much at stake in the broadcasting
of proceedings as the media itself, and that accordingly the courts (through
Government) should be participating in the costs associated with electronic
media coverage of courtroom proceedings. The Committee is of the view
that this issue is one which in any event should be capable of resolution
through negotiation, and ought not to pose a significant obstacle to policy-makers
dealing with the issue of electronic media access to the courtrooms.
There will of course be practical limits to the financial resources which
"the system" can allocate to retrofitting existing courtrooms and equipping
new ones. At some early point, decisions will have to be taken as to whether
all courtrooms will be so outfitted, and whether courtrooms in all judicial
centres will be so outfitted, and the making of these decisions will require
that criteria first be developed upon which to base such decisions.
IX. CONCLUSIONS
There can be no doubt that there is an overall trend towards liberalizing
access by electronic media to courtrooms, not only in Canada but in many
other jurisdictions as well. This development does however appear to have
gone forward in a reasonably measured and cautious fashion, and our research
shows that a great many judges, practitioners and other commentators have
given the subject careful and learned consideration.
The Committee is of the view that the ongoing increase in electronic
media coverage is of benefit to society overall, and that so long as clear
and justifiable rules are put in place to govern the process, then any
negative impact would be outweighed by the overall public benefit. Indeed,
the Committee feels that the courts and the bar should take the initiative
in leading the discussion on this issue, in order that the community can
see the proactive and progressive attitude of the judicial sector in this
area. Not only would such an initiative have the effect of letting the
Bench and Bar set the framework for discussion, but it would likely later
help avoid a perception in the public that change has had to be "foisted"
on the courts, a perception which would not be consistent with public
trust and confidence in the judicial system.
The Committee is aware that the Newfoundland Branch of Canadian Bar Association
is also collecting its thoughts on the issue of Cameras in the Courtrooms,
though we understand that it may be a while yet before any report is ready.
Your Committee feels, however, that the discussion on this issue would
be advanced if at some suitable date in the near future, the Chief Justice
were to convene a meeting of representatives of the Bar, the public and
the media, in order that the perspectives of each sector could be heard.
The Committee trusts that the foregoing discussion will be of some use
to Benchers and indeed, to Chief Justice Green, in the deliberations on
this subject.
Yours faithfully,
Paul M. McDonald
Chair, Advisory Committee on
Cameras in the Courtroom
Ted Janes
Lay Bencher
Valerie Marshall
Member, Law Society
of Newfoundland
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