On Journalist Reporting Court Cases

The Supreme Court of Canada issued two companion decisions Friday morning regarding what journalists are allowed to do and not do in the context of reporting on court cases. Both decisions stem from the trial of a Montreal man charged with aiding suicide. At the trial, the CBC wanted to do two things, both of which were curtailed by the trial judge: conduct interviews in the public area of the courthouse and broadcast a piece of videotape that was introduced into evidence. On both issues, the SCC upheld the trial judge’s ruling.

All of this is related to the principle of open courts, which was nicely summarized by Madame Justice Marie Deschamps at the beginning of one of the judgments:

"The open court principle is of crucial importance in a democratic society.  It ensures that citizens have access to the courts and can, as a result, comment on how courts operate and on proceedings that take place in them.  Public access to the courts also guarantees the integrity of judicial processes inasmuch as the transparency that flows from access ensures that justice is rendered in a manner that is not arbitrary, but is in accordance with the rule of law."

Reflecting on this principle as a former journalist and current law student, it seems to me that the Supreme Court got it half right here. In regards to the first judgement, which upholds a courthouse’s right to control where journalists can conduct interviews, I agree with the 9-0 decision of the court. The Rules of practice of the Superior Court of Québec in civil matters, in s. 38.1, dictate that interviews and uses of cameras are restricted to certain public areas.

This can’t practically curtail the notion of open courts. In no way are journalists prevented from conducting interviews, there are simple rules placed upon them to preserve the peace and sanctity of a courthouse environment. There are plenty of other areas and opportunities for journalists to get what they need for their stories.

On the second judgment, though, which disallows the broadcast of videotaped evidence at a judge’s discretion, I have a harder time seeing how this can be reconciled with the principle of open courts. Evidence tendered at trial are public exhibits, and the media are simply representatives of the public at trial. Should anyone want to see the video that the media aren’t allowed to broadcast, they would be free to go down to the courthouse and watch it unrestricted. Broadcasting the same video is simply an extension of that. I fail to see how disallowing such a broadcast isn’t a strict contraction of the open courts principle, as well as a sharp limit on freedom of expression.

By Laura Drake, UVic Law Student

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