This paper is based on a submission by the Radio Television News Directors Association of Canada, Special Committee on Electronic Public Access to the Ontario Bench and Bar Council, November 18, 1982.  It was also filed with the Ontario Legislature Standing Committee on the Administration of Justice, January 26, 1984.  The chairman of the Special Committee was Con Stevenson (CKOC Hamilton) and its members were Craig Armstrong (CBC, Toronto), Gord Haines (CITY-TV) and Daniel J. Henry.

Table of Contents:

1.   PUBLIC ACCESS: THE PRINCIPLE IS WELL SETTLED
2.   ELECTRONIC PUBLIC ACCESS: A NATURAL AND NECESSARY DEVELOPMENT
3.   EXPERIENCE IN THE UNITED STATES
      (a)   Historical Background
      (b)   The Supreme Court Sanctions Electronic Access
      (c)   The American Bar Association grants Its Approval
      (d)   What Was Feared and What Has Been Found
              (i)  Physical Disruption?  Not now...
             (ii) Distortion of the Image of Justice?  No; if anything, an improvement...
             (iii)  Prejudicial publicity?  No more than now...
             (iv) Right to Privacy?  It has never existed in court
             (v) Effect on the Participants?  None that cannot be handled
      (e)  The Current U.S. Position
4.   THE ONTARIO EXPERIENCE
5.   A CANADIAN LEGAL PERSPECTIVE
      (a)   Existing Restrictions on Publication of Canadian Court Proceedings
      (b)   New Publication Restrictions in Honour of Electronic Public Access are Unnecessary
      (c)   The Impact of the Charter of Rights and Freedoms
6.   A PROPOSAL FOR ELECTRONIC PUBLIC ACCESS TODAY
 

1.   PUBLIC ACCESS: THE PRINCIPLE IS WELL SETTLED

This paper will propose a plan to permit the Canadian public to observe court proceedings through the electronic eye and ear of its media.  It will not propose to extend public access to hearings that are not now open to the public, or to change existing Canadian laws restricting the media's publication of information concerning court proceedings.  It is based on the premise that when our courts and our laws speak of 'public' access, that is in fact what they mean.

In essence, this paper advocates improved public access to court through use of the electronic media.  The principle of public access itself has long been enshrined in our law.1  The reasoning behind it applies with equal force to the improved public access that the new electronic technology permits.

The public presence in court is thought to improve the performance of all participants in the proceedings.  Lawyers are motivated to prepare and present their cases to the best of their abilities; witnesses are less inclined to falsify their evidence; juries have a better understanding of the importance that the community they represent places on their verdict; judges appreciate that when the public can see them explain and apply the appropriate legal principles, it will have greater confidence in judgments they render.  The public is more likely to understand, respect and obey laws that it can see operate fairly.  The public is more likely to generate better proposals for new laws if it has access to the best available information on the results obtained with existing ones.  If in a free and democratic society the public governs itself, then its right to receive the best available information about the day-to-day operation of its laws and legal system should be unquestioned.

Judicial pronouncements on public access make this point eloquently.

Every court of justice is open to every subject of the King.2

The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured because it is felt that in public trial is to be found on the whole the best security for the pure, impartial, and efficient administration of justice, the best means of winning for it public confidence and respect.3

This result, which is declared by courts below to have been legitimately reached under a free constitution, is exactly the same result which would have been achieved under, and have accorded with, the genius and practice of despotism...

It is needless to quote authority on this topic from legal, philosophical, or historical writers.  It moves Bentham over and over again.

In the darkness of secrecy sinister interest, and evil in every shape, have full swing.  Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate.  Where there is no publicity there is no justice.  Publicity is the very soul of justice.  It is the keenest spur to exertion, and surest of all guards against improbity.  It keeps the judge himself while trying under trial.

"The security of securities is publicity." But among historians the grave and enlightened verdict of Hallam, in which he ranks the publicity of judicial proceedings even higher than the rights of Parliament as a guarantee of public security, is not likely to be forgotten:

The civil liberty in this kingdom has two direct guarantees, the open administration of justice according to known laws truly interpreted, and the fair construction of evidence, and the right of Parliament without let or interruption to inquire into and obtain redress of public grievances.  Of these the first is by far the most indispensable; nor can the subjects of any State be reckoned to enjoy a real freedom where this condition is not found both in its judicial institution and in their constant exercise.4

All the rest is doone openlie in the presence of the Judges, the Justices, the enquest, the prisoner, and so manie as will or can come so neare as to heare it, and all depositions and witnesses given aloude, that all men may heare from the mouth of the depositors and witnesses what is saide."7 [emphasis added]

To work effectively, it is important that society's criminal process 'satisfy the appearance of justice' and the appearance of justice can best be provided by allowing people to observe it.8

Many times it has been urged that the "privacy'"of litigants requires that the public be excluded from Court proceedings.  it is now well established, however, that covertness is the exception and openness the rule.  Public confidence in the integrity of the Court system and understanding of the administration of justice are thereby fostered.  As a general rule the sensibilities of the individuals involved are no basis for exclusion of the public from judicial proceedings.  The following comments of Laurence, J. in R. v. Wright…are apposite and were cited with approval by Duff J. in Gazette Printing Co. v. Shallow…

Though the publication of such proceedings may be to the disadvantage of the particular individual concerned, yet it is of vast importance to the public that the proceedings of courts of justice should be universally known.  The general advantage to the country in having these proceedings made public more than counterbalances the inconvenience to the private persons whose conduct may be the subject of such proceedings.10

I am aware that eminent judges in England, whose names be found in the notes of my learned brother, Mr. Justice Duff, have held that the privilege of the press to publish juridical proceedings may be traced to another order of ideas.  According to them, this privilege is based upon the right which the public enjoy of being made acquainted with everything that takes place during the sittings of the Courts, and as everybody cannot be present at such sittings, the press comes to the aid of those who are absent by publishing the proceedings, thereby enlarging, as it were, the sphere of usefulness of the Courts of justice.  According to this theory the press is a kind of good fairy conducting a continuous performance of miracles.  By a wave of its wand, it is pictured to us in the act of dissolving the walls which encircle our halls of justice, and of revealing to the public gaze not only of the country but of the universe, a tableau of everything which may be carried on within.11

2.  ELECTRONIC PUBLIC ACCESS: A NATURAL AND NECESSARY DEVELOPMENT

Some will argue that the public through its media already have access to court proceedings.  Reporters can attend in court and relate what they have seen.  This is, after all, what newspaper reporters have been doing for years.  In my view, the fact that newspapers are restricted technologically from providing more to the public than their reporter's perceptions of what takes place in court is no justification for similarly artificially restricting the electronic media.  Each medium should be permitted to perform its role as effectively as it can.  If the public has a right to see and hear for itself what takes place in court, the electronic media should be permitted to facilitate the public's exercise of that right.

Many members of the public rely on the electronic media to keep them informed.  The accuracy and completeness of the information they receive is important to all of us.  To understand why providing them with a reporter's perceptions is just not good enough one must appreciate the nature of electronic news.  A typical television news program, lasting 30 minutes, will have fewer words spoken than those which can be printed on a single page of a newspaper.  To convey as much information as a newspaper on any given story, television news must use film or videotape.  A leading text on television news states:

Because one of its chief concerns is to allow its viewer to see the news, television has freed itself from the obligation of the newspaper to make the news clear through printed words.  Its purpose is to outline, to bring to its audiences eye and mind much of the same news a paper prints.  In many ways, the television news program faces what seem insurmountable obstacles; so it appears that its problems are far more complex than those of a newspaper.  Its dimensions, though less than the newspapers in terms of time and space, are increased in the areas of sight, sound, and movement.  Television news has these three vital and essential qualities to help it report the news.12

The State of Florida, for example, has permitted electronic coverage of its courts since 1977 and hundreds of its cases have been covered in this fashion.  In 1981 Norman Davis, one of the initial proponents of electronic coverage of courts in that state, described eloquently the demonstrated value of such coverage:

Viewers in Florida have seen nothing whatever that remotely resembles Perry Mason or the Defenders.  Instead, they see a process which is mostly low-key arguments which focus on technical procedure, and attorneys and judges who look just like the rest of us.  The courtroom doesn't resemble a movie set and the participants don't look and act like a Hollywood cast...
     What's the value of it all?  What do people actually see that justifies the presence of the camera?  Most of all they see reality which a sketch, or a newspaper report, or a television reporter taping a stand-up outside the court-house can't quite convey.  When invited to other states to discuss the Florida experience, I sometimes read aloud a newspaper account of a day's proceedings in court and then show the televised version of the same events which appeared on the evening news.
     The result is unfailingly striking.  Both reporters concentrate on the day's highlights.  But the picture and sound convey an tension, indifference, weariness, determination, frustration, hostility, meekness, stubbornness - all of the things which make human beings human.  When one reads about these qualities they are abstract; to see and hear them is to experience them.  The camera itself neither dramatizes nor diminishes.  It simply shows what's there...
     Even in the brief digests which typically appear on television news broadcasts, there are accumulating images of the way the system works.
     We saw a judge one day patiently explore with a teenage defendant the consequences of his plea of no-contest to a murder charge, and learned something of the safeguards built into the process.
     We saw a judge strongly admonish an accused killer not to lecture the judge threateningly with a pointed finger, and learned something of the discipline the court environment requires and exacts.
     We watched one day as a female judge pronounced the death penalty to an angry and disruptive convict and we realized that women, too, impose discipline and perform the hard tasks of justice; the momentous words she spoke which sent the man to the electric chair had vivid meaning for those who support as well as those who oppose capital punishment.
     We saw a close-up one day of the roster of more than a hundred cases facing a judge in traffic, and understood why he sent a nervous shoemaker off into a corner of the courtroom to bargain with the arresting officer and the prosecutor on a lesser charge.
      We looked in on a Small Claims Court as an elderly citizen complained to the judge that he'd been gypped by a merchant on the purchase of a house trailer, and we saw something of the necessary reliance on common sense as well as intricate procedural rules.
      We watched in some horror as the beleaguered criminal court judge on a Monday morning waded through an incredible stack of felony cases - scores of them - and negotiated with a herd of lawyers milling around before the bench.
      We watched for several minutes one night as a mother testified about the early life of her murderer-son, and were a little less surprised that events had brought him to that trial.
      We've had various glimpses of the juror-screening process as competing lawyers probed for strength and weakness in ordinary people.
     Hollywood?  Not for a minute!13

In Canada today, despite eloquent statements by eminent jurists about the value of an open court system, our court proceedings are not truly "public".  We now have the means to change that.  Extensive American and Canadian experience demonstrates that beyond doubt.

3. EXPERIENCE IN THE UNITED STATES

Forty-three states now permit electronic public access on a permanent or experimental basis.14   The number of states involved has grown dramatically in the years since 1974.  This growth took place initially in spite of a 1965 ruling by the U.S. Supreme Court in Estes v. Texas 15  which was thought to have pronounced a constitutional ban on electronic access.  A 1981 ruling of the Court, Chandler v. Florida,16  for all practical purposes, overruled the Estes case.

(a) Historical Background

Courtroom photography was permitted in the U.S on a sporadic basis in the early part of this century.17   By the mid-1920's still photos were a regular feature of the New York Daily News.  In the same period newsreel cameramen recorded the Scopes trial.  There was no unified response from the Bench or Bar until the trial of Bruno Hauptmann in 1935.

On September 18, 1934 Bruno Hauptmann was charged with the kidnapping and murder two years before of the 18 month old son of Charles Lindbergh.  Approximately 700 writers and broadcasters as well as 132 still and newsreel cameramen covered at least part of the trial.  The presiding judge permitted photographers to take pictures three times each day, before convening, at noon, and after the court recessed.  He also permitted a silent newsreel camera on the floor of the court, a sound camera in the balcony, and a third camera in the library next to the courtroom.  Despite his order that no filming be done while he was seated on the bench, the sound camera operated for several days while the court was in session.  It was so well sound-proofed that the judge only learned of the filming when footage was released.  Despite demands from the New Jersey Attorney General that the film not be exhibited, two distributors ensured that the film was played in 10,000 of the 14,000 movie theatres in the United States.

In reaction, the American Bar Association adopted Canon 35 of its Canons of Judicial Ethics in 1937.  It stated:

Proceedings in court should be conducted with fitting dignity and decorum.  The taking of photographs in the courtroom, during sessions of the court or recesses between sessions, and the broadcasting of court proceedings are calculated to detract from the essential dignity of the proceedings, degrade the court and create misconceptions with respect thereto in the mind of the public and should not be permitted.18

Texas was one state which did not adopt Canon 35.  As a result cameras were permitted to cover the 1962 trial of Billie Sol Estes, a wealthy friend of Presidents Kennedy and Johnson, on charges of swindling and embezzlement.  The defendant's motion to prohibit television coverage at the trial was considered at a pre-trial hearing which was itself well covered.  Mr. Justice Clark, of the U.S. Supreme Court, described the pre-trial scene:

These initial hearings were carried live by both radio and television, and news photography was permitted throughout.  The videotapes of these hearings clearly illustrate that the picture presented was not one of the judicial serenity and calm to which petitioner was entitled.  Indeed, at least 12 cameramen were engaged in the courtroom throughout the hearing taking motion and still pictures and televising the proceedings.  Cables and wires were snaked across the courtroom floor, three microphones were on the judge's bench and others were beamed at the jury box and the counsel table.  It is conceded that the activities of the television crews and news photographers led to considerable disruption of the hearings.19

Over the years the A.B.A. Canon was amended a number of times.  In 1972 it was recodified as Canon 3A(7) and the language was altered to permit limited electronic access to courts.20

 3A(7)  A judge should prohibit broadcasting, televising, recording, or taking photographs in the courtroom and areas immediately adjacent thereto during sessions of court or recesses between sessions, except that a judge may authorize:

(a) the use of electronic or photographic means for the presentation of evidence, for the perpetuation of a record, or for other purposes of judicial administration;
(b) the broadcasting, televising, recording, or photographing of investigative, ceremonial or naturalization proceedings; (c) the photographic or electronic recording and reproduction of appropriate court proceedings under the following conditions:

(i) the means of recording will not distract participants or impair the dignity of the proceedings;
(ii) the parties have consented, and the consent to being depicted or recorded has been obtained from
(iii) the reproduction will not be exhibited until after the proceeding has been concluded and all direct appeals have been exhausted; and
(iv) the reproduction will be exhibited only for instructional purposes in educational institutions.

(b) The Supreme Court Sanctions Electronic Access

In 1981 the U.S. Supreme Court was given an opportunity to rethink its position in the context of Chandler v. Florida,23  a case that emerged in the course of Florida's initial experiment with electronic court coverage.  The Florida Supreme Court had instituted a one-year pilot program permitting such coverage without participant consent.  It did so only after several unsuccessful attempts to obtain such consents, and it only proceeded after carefully developing a set of standards to govern media conduct in court.

In July 1977, during Florida's experimental period an amateur radio operator in Miami overheard and recorded conversations between two policemen over their walkie-talkies.  They were committing, rather than preventing, a burglary.  Media interest prompted the policemen to attempt to block television coverage of their trial.  They were unsuccessful in that attempt as well; their appeal to the United States Supreme Court to reverse their conviction on the ground that television coverage infringed their constitutional right to a fair trial their appeal was dismissed.  Chief Justice Burger, speaking on behalf of the Court, concluded:

Estes is not to be read as announcing a constitutional rule barring still photographic radio and television coverage in all cases and under all circumstances.  It does not stand as an absolute ban on state experimentation with an evolving technology, which, in terms of modes of mass communication, was in its relative infancy in 1964, and is, even now, in a state of continuing change.24

(c ) The American Bar Association grants Its Approval

In August 1982 when the American bar Association considered amending its Canon 3A(7), the U.S. Supreme Court had decided Chandler and 36 States were permitting electronic coverage on some basis.  Its answer was inevitable.  It replaced the language of Canon 3A(7) with language following a resolution adopted by the U.S. Conference of Chief Justices four years earlier.26   The new Canon 3A(7) reads as follows:

 Canon 3 - A judge should perform the duties of his office impartially and diligently.
 A. ADJUDICATIVE RESPONSIBILITY

(7) - A judge should prohibit broadcasting, televising, recording or photographing in courtrooms and areas immediately adjacent thereto during sessions of court, or recesses between sessions, except that under rules prescribed by a supervising appellate court or other appropriate authority, a judge may authorize broadcasting, televising, recording and photographing of judicial proceedings in courtrooms and areas immediately adjacent thereto consistent with the right of the parties to a fair trial and subject to express conditions, limitations, and guidelines which allow such coverage in a manner that will be unobtrusive, will not distract the trial participants, and will not otherwise interfere with the administration of justice.

Ever since electronic access became possible, U.S. courts have attempted to balance the constitutional guarantees of a free press and a fair trial.  The state of the technology probably coloured the debate in its early years.  And there is no doubt that significant technological advances and general public acceptance of the electronic media affect the debate today.

(i)  Physical Disruption?  Not now...

Numerous cameramen operating noisy cameras using heavy cables, bright lights, and flashbulbs posed serious risks to the conduct of a fair and dignified hearing.  jurisdiction after jurisdiction has proved that these are problems of the past.  What is required is a media pool, carefully drafted rules governing media conduct in court, and the new electronic technology.

A small and silent television camera, operated on behalf of all the media by one cameraman in a fixed and unobtrusive location, can produce an adequate picture with available courtroom light.  A single microphone, properly placed, can pick up all of the necessary sound while being virtually invisible to those in attendance.  A single small cable can carry both the video and audio signals to a separate room where members of a media pool can have access to them.  Because the equipment is silent and unobtrusive, participants in a proceeding hardly notice its existence.

Some who have experienced a proceeding with electronic access now even suggest that it reduces the physical disruption in court.  The noise of sketch artists is removed.  Members of the press make fewer entrances and exits to and from the courtroom, preferring instead to watch the proceedings on television monitors in the separate media room.  Finally, the availability of pictures from the proceeding itself diminishes the necessity for the media to "mob" the participants when they enter or leave the court to obtain whatever pictures they can.

(ii) Distortion of the Image of Justice?  No; if anything, an improvement...

Sandwiching a well-edited three minute news segment between commercials was what was expected and feared.  What was ignored was that in a free society both the print and the electronic media will do that with or without the co-operation of the court.  The issue is not how the public receives its news or whether selective editing should or should not be permitted.  Rather, it is whether the electronic media's access to court will improve or compromise the reports which they must edit in any case.  No television station can offer complete coverage of a court proceeding just as no newspaper can afford to reprint complete court transcripts.  None of the U.S. jurisdictions considering electronic access has attempted to use it as a lever to assert editorial control.  The comments of the U.S. Supreme Court in Craig v. Harney are apt:

What transpires in the courtroom is public property...  There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit or censor events which transpire in proceedings before it.28

It is highly inconsistent to complain of the ignorance and apathy of voters and then to 'close the windows of information through which they might observe and learn.'  Generally only idle people, pursuing 'idle curiosity' have time to visit courtrooms in person.  What harm could result from portraying by photo, film, radio and screen to the business, professional and rural leadership of a community, as well as to the average citizen regularly employed, the true picture of the administration of justice?  Has anyone been heard to complain that the employment of photographs, radio and television upon the solemn occasion of the last Presidential Inauguration or the Coronation of Elizabeth II was to satisfy an 'idle curiosity'?  Do we hear complaints that the employment of these modern devices of thought transmission in the pulpits of our great churches destroys the dignity of the service; that they degrade the pulpit or create misconceptions in the mind of the public? The answers are obvious.  That which is carried out with dignity will not become undignified because more people may be permitted to see and hear.29

It has been said that witnesses and jurors who are allowed to go home at night during the course of a proceeding that is being covered by the electronic media might be improperly influenced by reports which include film clips of actual testimony.  On close inspection this argument has proved weak.  The Florida Supreme Court found no evidence of such influence in its extensive survey.30   It also found it hard to act on the assumption that witnesses or jurors would disregard their oaths or directions from the court either on a general basis or with respect to the electronic (as opposed to the print) media alone.31

Would electronic access make the task of finding an impartial jury impossible in the case of a retrial?  The ability to find such a jury will depend not on electronic access but on the level of publicity that a case receives.  Publicity will be generated in any event and even without electronic access, it will include sketches or photographs combined with excerpts of testimony or legal argument.  In the words of Mr. Justice Sundberg of the Florida Supreme Court:

Who can assess whether this type of coverage will be any less sensational or have any less impact on the community than an accurate, direct broadcast of the events occurring in the courtroom.32

(iv) Right to Privacy?  It has never existed in court

It has been suggested that to compel a witness or juror to appear in a judicial proceeding by legal process and then to expose him over his objection to a public audience is to infringe his right of privacy.  While U.S. courts have recognized the sensibilities involved, and while U.S. law strongly supports rights of privacy generally, it has been universally held that there is no right to privacy in the context of a judicial proceeding.33

(v) Effect on the Participants?  None that cannot be handled

The feared effects were answered well in the Florida Supreme Court judgment which approved electronic coverage in Florida on a permanent basis as of May 1, 1979.34   The judgment was rendered after a one year experiment involving an extensive survey of the participants.  As noted earlier, the experiment permitted electronic coverage without participant consent and, indeed, over the objections of some.  The Court said:

Because of the scanty empirical data available to permit an assessment of the psychological impact upon courtroom participants, opponents assert that the presence of electronic media will have myriad adverse effects.  They maintain that: (1) lawyers will "grandstand" or "play to the cameras" to advance their own self interests;  (2) judges will engage in 'posturing"--particularly at election time; (3) witnesses will either assume a stage presence and "ham it up" or will be so intimidated as not to be able to present fairly their testimony; (4) jurors will either be distracted from concentrating on the evidence and the issues to be decided by them or, because of their identification with the proceedings, they will fear for their personal safety, be subjected to influence by members of the public, or attempt to conform their verdict to community opinion; and (5) the presence of electronic media in the courtroom will make that case appear to the participants to be a cause celebre and, therefore, prevent an objective and dispassionate presentation and resolution of the issues.  These are concerns that any fair-minded person would share because they would certainly in combination, be antithetical to a fair trial.  The fact remains, however, that the assertions are but assumptions unsupported by any evidence.  No respondent has been able to point to any instance during the pilot program period where these fears were substantiated.  Such evidence as exists would appear to refute the assumptions.  The Survey reflects that the assumed influences upon participants during the experimental period were perceived to vary in degree from not at all to slightly.  More importantly, there was no significant difference in the presence or degree of these influences as between the electronic and print media.  Similarly, it was the opinion of an overwhelming majority (90-95%) of respondents to the survey of the Florida Conference of Circuit Judges that jurors, witnesses, and lawyers were not affected in the performance of their sworn duty in the courtroom.  With particular reference to the charge of an inflated appearance of newsworthiness created by the presence of the electronic media in the courtroom, it must be recognized that newsworthy trials are newsworthy trials, and that they will be extensively covered by the media both within and without the courtroom whether Canon 3A(7) is modified or not.  Consequently, if it is deemed to be to the public advantage to permit electronic media coverage in the courtroom, it seems inappropriate to be dissuaded by honestly perceived but unsubstantiated concerns as to adverse psychological effects on participants.35

1.    Presence of the electronic media in the courtroom had little effect upon the respondent's perception of the    judiciary or of the dignity of the proceedings.
2.    It was felt that the presence of electronic media disrupted the trial either not at all or only slightly.
3.    Respondent's awareness of the presence of electronic media averaged between slightly and moderately.
4.    The ability of the attorney and juror respondents to judge the truthfulness of witnesses was perceived to be affected not at all.  The ability of jurors to concentrate on the testimony was similarly unaffected.
5.    All respondents were made to feel slightly self-conscious by the presence of electronic media.
6.    Both jurors and witnesses perceived that the presence of electronic media made them feel just slightly more responsible for their actions.
7.    Presence of electronic media made all respondents feel only slightly nervous or more attentive.
8.    The distracting effect of electronic media was deemed to range from almost not at all for jurors, to slightly for witnesses and attorneys.
9.    The degree to which jurors and witnesses felt the urge to see or hear themselves on the media fell between not at all and slightly.
10.   Presence of the electronic media affected the different participants' sense of the importance of the case in varying degrees.  Jurors felt that it made the case more important to a slight degree; witnesses to a degree between slightly and moderately; court personnel slightly; and attorneys moderately.
11.   To a degree between not at all and slightly, jurors perceived that the presence of electronic media in the courtroom during the testimony of a witness made that witness' testimony more important.
12.   There was no significant difference in the participants' concern over being harmed as a result of their appearance on electronic media broadcast (including still photography) as opposed to their names appearing in the print media.  In each instance the concern ranged on the scale between not at all and slightly.
13.   Jurors and witnesses manifested the same attitude concerning the possibility that person would attempt to influence their decision or testimony.  There was no discernible difference in the height of the concern as between electronic and print media; the average response was slightly on the lower end of the spectrum between not at all and slightly.
14.   Court personnel and attorneys perceived that the presence of electronic media made the participating attorneys actions more flamboyant only to a slight extent.
15.   Court personnel and attorneys were of the attitude that the presence of electronic media affected the flamboyancy of witnesses to a degree between not at all and slightly.
16.   They also felt that the witnesses were slightly inhibited by the presence of electronic media and that jurors were made slightly self-conscious, nervous, and distracted, but also slightly more attentive.36

The Florida Supreme Court did find occasional instances of significant adverse impact on some categories of witnesses.38   In one case the widow of a deceased murder victim sought to bar electronic coverage of her appearance as a witness.  Her argument based on her right to privacy did not succeed.  In the same case an inmate of the Florida Corrections System refused to take the stand for fear of reprisals from fellow inmates if she testified.  She was held in contempt.  Apparently the judge did not pursue other avenues of dealing with her fear.  In another case electronic coverage of the testimony of a 16 year old rape victim was permitted after some debate.  In responding to these instances the Florida Supreme Court noted other potential problem areas, namely, child custody proceedings, sexual battery victims, relatives of victims, prisoners, confidential informants and witnesses under protection of anonymity.  It decided in the end not to compile a "laundry list" but rather to leave the matter to the "sound discretion" of the presiding judge:

          to be exercised in accordance with the following standard:

The presiding judge may exclude electronic media coverage of a particular participant only upon a finding that such coverage will have a substantial effect upon the particular individual which would be qualitatively different from the effect on members of the public in general and such effect will be qualitatively different from coverage by other types of media.39

The study was very carefully designed.  Data was collected through event logs, request forms, case records, an attitudinal survey, interviews, and the observation of objective evaluators sitting in on court proceedings.  An attempt was made to compare the effects of electronic media coverage with conventional coverage.  The final report is 245 pages long, excluding appendices.

The most significant recommendation of the study was the adoption by California of permanent rules permitting electronic court coverage without the consent of any participant in the process other than the judge.  The judge may, "in the interests of justice, refuse, limit, or terminate extended coverage if a party objects to extended coverage."  The study confirmed many of the findings of the Florida survey.  The ability of judges, lawyers, and witnesses to communicate generally was not found to be impaired by the presence of the electronic or conventional media; trial participants became surprisingly unaware of the presence of the electronic media once a proceeding began.  Each participant tended to focus on the process itself; although there was an isolated suggestion or two of a lawyer "playing to the camera" there was no real evidence of this; judges and jurors were as attentive as ever; very few witnesses, jurors or defendants indicated they feared harm might befall them because of the electronic/photographic media coverage of the proceeding in which they participated; the study found no support for the theory that the more significant cases covered by the electronic media were more likely to have negative effects associated with such coverage.  The study asked and answered the basic question:

Does EMC ('extended media coverage') cause trial participants and prospective trial participants to change their behaviour in a way that interferes with the fair and efficient administration of justice more than those changes caused by conventional media coverage to warrant its exclusion?  The answer is a qualified no.  While the observations showed little behavioural impact due to EMC, interview data showed that some individuals felt apprehension and other concerns.  Few reported actual changes in their own behaviour.  Many did not like EMC, just as may did not like conventional media representatives present.  Attitude measures and the relationship between attitude and behaviour are what remain unanswered.  To the extent that attitude and behaviour are linked, there remains some qualification in the answer to this question.  Taken globally, there is little evidence in this evaluation to suggest that EMC causes significantly more changes in behaviour than does conventional media coverage.43

A few states have permitted an experiment to be conducted in regard to a single trial.  Nevada permitted electronic coverage of the State v. Solorzano case in 1975.  The details of that experiment are well chronicled in an article by Messrs. Goldman and Larsen entitled "News Camera in the Courtroom During State v. Solorzano: End To the Estes Mandate?".44   In the authors' view:

There is no indication from the Solorzano record of any of the detrimental behavioural modification-strutting, playing to the camera, embarrassment, witness intimidation, politicing, or general foolishness which the Estes court had so firmly asserted would befall television trials.  Rather, the Solorzano judge praised the conduct of all parties, indicating that the camera may have encouraged reasonable and dignified behaviour in his courtroom.…Solorzano teaches that the dangers outlined by the Estes court in opening the trial process to news broadcasting and photographic press coverage can easily be mitigated or eliminated by the trial judge.45

After seeing the film each subject was told that the experimenter would have a few questions to ask him about it and was asked to answer each question as directly as possible.  The experimenter then indicated that she would take notes of their answers.  Subjects in the obtrusive camera condition saw a television camera in the room with them and were told that the videotape recording which would be made of their answers would probably be seen by a large number of people.  Subjects in the unobtrusive camera condition could not see the camera, which was behind a two-way mirror, but were told that it was there and that their response would probably be widely viewed.  Subjects in the no camera condition had their answers taken down in note form and were told as well that their answers would probably be widely heard.  This last condition simulated conventional media coverage while the former conditions simulated different electronic media coverage options.  Dr. Hoyt found no significant differences in the subjects' verbal behaviour in the unobtrusive camera condition and the no camera condition.  The only difference in the obtrusive camera condition was that those subjects used slightly more words, waited less time after a question, and included more correct information in their answers than the others.  The longer answers did not contain additional incorrect information but rather more correct information.  Dr. Hoyt thought that this finding had broad implications for courtroom coverage by television:

These data indicate that far from being a danger and a potential hindrance to a fair trial, in this context television cameras can, in fact, lead to a fairer trial.  Because the witnesses could be expected to generate more complete and more correct information in response to the questions from various attorneys, both sides should benefit from the increased information on which the court's decision could be reached.47

(e)  The Current U.S. Position

As noted above, 43 states now permit electronic public access on a permanent or experimental basis.  A summary of the U.S. position as of July 1, 1985 prepared by the Radio Television News Directors Association in the United States is appended to this paper.48   It presents an interesting array of solutions to the same basic questions.

Close to three-quarters of the states permitting electronic coverage allow it in both trial and appellate courts.  Well over half of the states have adopted permanent rules permitting electronic coverage.  With one exception, all the states permitting trial and appellate coverage permit such coverage in both civil and criminal cases.  (The Maryland Court of Appeal designed an experiment encompassing both civil and criminal cases in trial and appellate courts but the Legislature barred coverage of criminal trials.)49

In over one -quarter of the jurisdictions there is no requirement of prior consent of or notice to the presiding judge, although it is clear that the presiding judge has ultimate control over his court.50   Over three-quarters of the states permitting electronic coverage of civil cases and criminal appeals do not require the consent of a party.  Nineteen of the 28 states permitting electronic coverage of criminal trials do not require the consent of the accused. And 23 of them permit such coverage without the consent of the prosecution.  (The states permitting electronic coverage without the consent of either the prosecutor or the accused include a number of highly respected judicial jurisdictions.)  Almost all of the 43 states permitting electronic coverage on some basis do not require the consent of counsel in civil trials and in all appeals.  (Prosecutors in criminal trials are considered separately, as noted above.)  Close to two-thirds of the states permitting electronic coverage of civil and criminal trials do not require the consent of witnesses.  The consent of a witness is never permitted to determine whether there should be coverage of an entire proceeding, but only of his own testimony.  Two-thirds of the states permitting electronic coverage of trials do not require the consent of a juror, although a few restrict coverage of jurors.

A small number of states have prohibited or limited coverage of certain cases or witnesses.  The list includes proceedings dealing with adoption, child custody, divorce, juveniles, orphans, sex crimes, trade secrets, motions to suppress evidence, in camera proceedings, proceedings before clerks of court and magistrates, and probable cause proceedings.  A few states have also restricted coverage of such witnesses as police informants, relocated witnesses, undercover agents, and minor witnesses.

At the moment electronic coverage of proceedings of the Supreme Court and of federal courts is prohibited.  Despite his favourable comments in the Chandler case in 1981, Chief Justice Burger has been outspoken against television coverage of his court, and no formal challenge has been brought before the Court on that score.

Two cases have been decided recently on the constitutionality of rules prohibiting electronic coverage of federal courts.  In U.S. v. Hastings,51  the Court of Appeals for the Eleventh Circuit upheld a trial judge's decision to deny permission for broadcast coverage despite the defendant's explicit request for it.  Hastings was a federal judge accused of accepting a bribe from an undercover agent posing as a criminal defendant.  He wanted television coverage of his trial to help restore his reputation. The court held that the federal rules did not contravene either the media's First Amendment right of freedom of the press or the defendant's Sixth Amendment right to a public trial. On the First Amendment right the court noted:

[J]ust because television coverage is not constitutionally prohibited does not mean that television coverage is constitutionally mandated…. the press has a right of access to observe criminal trials, just as members of the public have the right to attend criminal trials...In the upcoming trial here, journalists will be able to attend listen and report on the proceedings as they always have.  No part of the trial has been closed from public scrutiny....52

[We] find that the media access sought here would advance First Amendment concerns only to a minimal degree, if at all.  On the other hand, we find significant institutional interests supporting the rules at issue here.53

Nor does the Sixth Amendment require that the trial - or any part of it - be broadcast live or on tape to the public.  The requirement of a public trial is satisfied by the opportunity of members of the public and the press to attend the trial and report what they have observed.54

the alleged public benefits of the requested changes in the rules governing media coverage of currently open-to-the-public courtroom proceedings are outweighed by the risks to the administration of justice.56

4. THE ONTARIO EXPERIENCE

The story of electronic media access to courts in Ontario begins with an incident in Osgoode Hall in 1973.  The Court of Appeal was hearing an appeal in a child custody case which had received a great deal of publicity.  A television crew arrived to record the participants as they emerged from the court.  Chief Justice Gale later lamented the "confusion" that was generated.

No court of justice can have the respect of the people unless its affairs are conducted in a fair and impartial manner and in a calm and dignified setting.  The taking of pictures in and about courtrooms would seriously detract from the level of serenity which is so desirable.57

67(1)  In this section,

(a) "judge" means the person presiding at a judicial proceeding;
(b) "judicial proceeding" means a proceeding of a court of record;
(c) "precincts of the building" means the space enclosed by the walls of the building.

(2) Subject to subsection 3, no person shall,

(a) take or attempt to take any photograph, motion picture or other record capable of producing visual representations by electronic means or otherwise,

(i) at a judicial proceeding, or
(ii) of any person entering or leaving the room in which the judicial proceeding is to be or has been convened, or
(iii) of any person in the precincts of the building in which the judicial proceeding is to be or has been convened where there is reasonable ground for believing that such person is there for the purpose of attending or leaving the proceeding; or

(b) publish, broadcast, reproduce or otherwise disseminate any photograph, motion picture or record taken or made in contravention of clause (a).

(3) Subsection 2 does not apply to any photograph, motion picture or record taken or made upon authorization of the judge,

(a) where required for the presentation of evidence or the making of record or for any other purpose of the judicial proceeding;
(b) in connection with any investive, ceremonial, naturalization or similar proceedings; or
(c) with the consent of the parties and witnesses, for such educational or instructional purposes as may be approved by the judge.58

The RTNDA considered the issues at length and eventually submitted a proposal for a five part series of three minute news items designed with the constraints of section 67 in mind.  The proposal was accepted; the series was produced in the summer of 1982 and telecast by all English language television stations in Ontario in their supper-hour newscasts in the week of September 13 to 17, 1982.

On Monday, September 13, 1982 viewers saw the process that awaits a person charged with a minor traffic offence.  On Tuesday, the adversary system was explained with a focus on the role of the jury and the method of selecting jury members.  Portions of a jury selection from a major criminal trial were telecast.  The Wednesday segment showed videotape clips of three separate homicide trials.  Viewers were introduced to criminal trial procedure, the opening address, examination in chief and cross-examination, the use of exhibits, final argument, the judge's charge to the jury, the burden of proof beyond a reasonable doubt, and the jury's role in arriving at its verdict.  Thursday's news segment reviewed civil procedure with a close look at a case in Small Claims Court.  The final segment on Friday canvassed the merits of electronic public access itself.  Members of the public were interviewed and seemed generally in favour.  Judges and lawyers who participated in proceedings that were televised and who were interviewed immediately after their cases were  heard, were also very positive.

The series producer attempted to arrange access to over 20 cases but she only succeeded in obtaining access on 7 occasions.  Nevertheless over 50 hours of videotape were recorded in a variety of courts ranging from the lowest levels up to the Ontario Court of Appeal.  The videotape recording in court proceeded without a single practical problem for participants in the hearings involved.  RTNDA's conduct in court was guided by a set of standards which it included in its initial proposal to the Bench and Bar Council.  Those standards worked so well that the RTNDA has proposed their use as model guidelines for electronic media conduct in the courts of every Canadian jurisdiction.59

Did the presence of the camera and microphone affect the proceedings they witnessed?  Given the substantial U.S. experience, the RTNDA expected that they would not.  Judging by the comments of those  members of Ontario's bench and bar who participated in the experiment, they did not:

To be honest with you, when you're standing up and looking at a jury you don't think of anything except those twelve faces. [A defence counsel..]
I was hardly aware that there was a camera there. [a justice of the Ontario Supreme Court.]
Certainly once you're on your feet you're not concentrating on anything in the courtroom except the witness or the judge whom you're addressing... It was as if it didn't exist at all. [a second defense counsel.]

The experiment met and exceeded the limited goals set for it.  The RTNDA proved that the electronic media, acting responsibly, can convey the judicial process to the public in keeping with the dignity that Chief Justice Gale felt precluded electronic access in the first place.  In fact, the Bench and Bar Council concluded:

The cameras and microphones were unobtrusive, there had been no interference with the rights of the accused to a fair trial, and the dignity of the courts had been preserved.60

In September 1983 the Bench and Bar Council produced a background paper and questionnaire and circulated them to all judges of the province, the Law Society of Upper Canada, the Ontario branch of the Canadian Bar Association, the Criminal Lawyers Association, the Advocates Society, and the Canadian Civil Liberties Association.  The background paper reviewed not only the Ontario experience to date, but also the US. experience:

Correspondence with representative Chief Justices indicated there had been no significant problems or mistrials resulting from television coverage of the courts.  It was used primarily for short news reports rather than lengthy telecasts of proceedings.  Any adverse effect on the conduct of proceedings was not considered to be significant.  New Jersey has questionnaires completed by the judge, counsel, witnesses and jurors as to the effect of the cameras and the personnel operating them.  These questionnaires have generated very little adverse criticism.61

The Canadian Judicial Council's resolution was never formally communicated by that body to the RTNDA or any other representative of the media to my knowledge.  In November 1983 it was conveyed to every Chief Justice, the Attorney General of each province, and to the federal Minister of Justice.   It was binding on no one but it obviously had influence.  The Ontario Bench and Bar Council ignored its own experience and decided not to proceed to consider the matter further.

The Attorney General also stopped active consideration of the subject.  When it came time to enact the new Courts of Justice Act to replace the Judicature Act he decided to maintain the status quo.  The result is section 146, which can be found just under the heading "Public Access".  The section came into effect January 1, 1985:

146(1) Subject to subsections (2) and (3), no person shall,

(a)    take or attempt to take a photograph, motion picture, audio recording or other record capable of producing visual or aural representations by electronic means or otherwise,

(i) at a court hearing,
(ii) of any person entering or leaving the room in which a court hearing is to be or has been convened, or
(iii) of any person in the building in which a court hearing is to be or has been convened where there  is reasonable ground for believing that the person is there for the purpose of attending or leaving the hearing; or

(b)    publish, broadcast, reproduce or otherwise disseminate a photograph, motion picture, audio recording or record taken in contravention of clause (a).

(2)    Nothing in subsection (1),

(a)    prohibits a person from unobtrusively making handwritten notes or sketches at a court hearing; or
(b)    prohibits a solicitor or party acting in person from unobtrusively making an audio recording at a court hearing that is used only for the purposes of the litigation as a substitute for notes.

(3)    Subsection (1) does not apply to a photograph, motion picture, audio recording or record made with the authorization of the judge,

(a)    where required for the presentation of evidence or the making of a record or for any other purpose of the court hearing;
(b)    in connection with any investitive, naturalization, ceremonial or other similar proceeding; or
(c)    with the consent of the parties and witnesses, for such educational or instructional purposes as the judge approves.

(4)    Every person who contravenes this section is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more that six months, or to both.62

The other interesting difference from the previous legislation is that certain people are now permitted to make a recording for note-taking purposes.  Reporters are not among them.

The limitations imposed by this law are in the process of being tested in an Ontario Provincial Court.  The CBC, a reporter and a cameraman have been charged with contravening section 67 of the Judicature Act in the summer of 1984.  The CBC is arguing that the section is unconstitutional because it contravenes its freedom of the media as guaranteed in the  section 2(b) of the Charter.

Meanwhile, after more than a year of negotiation another Ontario experiment took place in the summer of 1984.  A CBC film crew recorded an entire murder trial in Kingston.  The resulting documentary was part of CBC's "Lawyers" series. The project was approved on the basis of its being considered "educational".

One other Ontario experience is worth mentioning here.  In the summer of 1983 the RTNDA was able to organize television, radio, and still photographic coverage of Ontario's Royal Commission into baby deaths at Toronto's Hospital for Sick Children.63   All the pictures seen came from one or two pool cameras in fixed positions at the side or back of the public seating area of the hearing room.  The Commission recently concluded 15 months of hearings with over 60 witnesses.  Pictures of the proceedings were part of daily local reports, and frequent national reports.  The proceedings were also shown live on cable television.  They were almost always low key and even at times boring.  The participants behaved exactly as they would have if the public and reporters were there without the camera.  They knew they were speaking for the public record.

With one exception, none of the witnesses asked that that the camera be turned off for their testimony.  None objected to the use that the electronic media made of the recorded material.  And there was no suggestion by anyone that the presence of the camera affected any witness's ability to tell the truth.  Susan Nelles' lawyer, John Sopinka, objected to the camera at the beginning of the hearing.  The Commissioner, Mr. Justice Grange, overruled his objection at the time indicating that if he wanted to raise it just before his client testified it would be considered then.  When the time did come, months later, Mr. Sopinka did not raise the issue.

5. A CANADIAN LEGAL PERSPECTIVE

The U.S. and Canadian experience demonstrate beyond any doubt that electronic public access can be achieved without physical disruption of court proceedings and, indeed, with full respect for the calm atmosphere required for the resolution of difficult disputes.  The questions that must now be addressed do not revolve around technological issues.

Canadians can stand back from the extensive U.S. court experience and put it in perspective.  The history of the U.S. experiment in this area began haltingly.  An immature electronic media working with primitive and bulky equipment to communicate to an as yet unsophisticated audience gave the fears of the U.S. bench and bar real meaning.  Early electronic coverage led to a strong negative reaction.  Recent electronic coverage, court rules and case law have developed in part in response to that initial negative reaction.  Canadians have the opportunity to consider the issues objectively and in a very different context, the context of  Canadian media working within the Canadian legal system.

The U.S. courts have developed their rules for electronic public access in the context of a legal system that began without many of the safeguards for the court process that we take for granted. As a result they have had to add some of those safeguards to their electronic access rules.  Our judges and legislators have already considered most, if not all, of the sensitive issues raised by the U.S. jurisdictions and have offered solutions that now apply to all the media.

(a) Existing Restrictions on Publication of Canadian Court Proceedings

Our courts may now restrict public access to their proceedings in one of three ways.  First, they may proceed in camera where they have power to do so at common law or by statute.  Second, in any case where they may proceed in camera, they may use other means to permit limited public access, for example, restrictions on the identification of a witnesses or disclosure of certain evidence.64  Finally, they may issue a ban on publication of parts of a proceeding when they are specifically authorized by statute to do so.65

The common law rule of openness will bend when openness would preclude justice from being done. Viscount Haldane summarized the common law position well in his judgment in Scott v. Scott:

While the broad principle is that the courts of this country must, as between parties, administer justice in public, this principle is subject to apparent exceptions, such as those to which I have referred.  But the exceptions are themselves the outcome of a yet more fundamental principle that the chief object of courts of justice must be to secure that justice is done.  In the two cases of wards of court and of lunatics the court is really sitting primarily to guard the interests of the ward or the lunatic.  Its jurisdiction is in this respect parental and administrative, and the disposal of controverted questions is an incident only in the jurisdiction.  It may often be necessary, in order to attain its primary object, that the court should exclude the public.  The broad principle which ordinarily governs it, therefore, yields to the paramount duty, which is the care of the ward or the lunatic.  The other case referred to, that of litigation as to a secret  process, where the effect of publicity would be to destroy  the subject matter, illustrates a class which stands on a  different footing.  There it may well be that justice could not be done at all if it had to be done in public.  As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield.  But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration.  The question is by no means one which, consistently with the spirit of our jurisprudence, can be dealt with by the judge as resting in his mere discretion as to what is expedient.  The latter must treat it as one of principle, and as turning, not on convenience, but on necessity.66

Statutes, such as the Criminal Code68, also permit in camera proceedings.  A preliminary inquiry may be held behind closed doors if it appears to the presiding justice "that the ends of justice will be best served by so doing" or if it appears desirable to him in regulating the course of the inquiry.69   Members of the public may also be excluded from a trial if the court

is of the opinion that it is in the interest of public morals, the maintenance of order or the proper administration of justice.70

The Criminal Code provides for a number of specific bans on what may be broadcast  A justice may ban broadcast of evidence tendered at a judicial interim release hearing or a preliminary inquiry;76  there is an automatic ban on broadcast of the fact that a confession was tendered in evidence at a preliminary inquiry;77  no part of a voir dire may be broadcast during a trial unless the jury is sequestered;78  jury members may never discuss their deliberations outside the courtroom;79   it is an offence to publish "any indecent matter or indecent medical, surgical, or physiological details" which, if published would tend "to injure public morals"';80   in proceedings for dissolution or annulment of a marriage, judicial separation, or restitution of conjugal rights it is an offence to publish more than the names, addresses, and occupations of the parties and witnesses as well as a concise summary of the case;81  in a trial for certain sexual offences the court may order a ban on the broadcast of the identity of the complainant and any information that could disclose her identity.82  A voir dire to consider whether the complainant's prior sexual conduct with a person other than the accused should be admitted into evidence can never be the subject of a broadcast.83

Young offenders, their young victims, and young witnesses are offered protection by section 38 of the Young Offenders Act.84   They cannot be identified in a published report.  Section 39 also permits a court to hold parts of the proceedings without the presence of a person "unnecessary to the conduct of the proceedings" where evidence would be "seriously injurious" or "seriously prejudicial" to the young people referred to above or where it would be "in the interest of public morals, the maintenance of order or the proper administration of justice to exclude any or all members of the public from the court room".  Finally, every youth court has the same contempt power as a superior court of criminal jurisdiction in the province.85   Similar provisions can be found in the Official Secrets Act,86  the Winding Up Act,87  the Bankruptcy Act,88  the Federal Court Act89  and the Income Tax Act.90
 
Civil proceedings can be held in camera on the basis of the common law exceptions to open court.91   A few provinces have passed legislation to extend the common law exceptions generally.92   Ontario's Courts of Justice Act, for example, provides that a

court may order the public to be excluded from a hearing where the possibility of serious harm or injustice to any person justifies a departure from the general principle that court hearings should be open to the public.93

(4)...representatives of the press, radio and television media not exceeding two in number as agreed upon by all such representatives who present themselves, may be present at a hearing under this Part, except a hearing under section 52, but the judicial officer holding the hearing may exclude any or all such representatives from all or any part of the hearing or may prohibit the reporting of all or any part of the case by such representatives who are present at the hearing where the judicial officer is of the opinion that the presence of the representative or representatives, as the case may be, at the hearing or the reporting would be injurious to the emotional health of any child before the court and the judicial officer shall give reasons for the exclusion.

(5) Where the representatives referred to in sub-section 4 who are entitled to be present at the hearing are unable to agree as to who shall be present at the hearing, the judicial officer holding the hearing may designate representatives who are entitled to be present.

(6) The presence at the hearing of more than two representatives of the press, radio or television media may be allowed by the judicial officer holding the hearing.

(7) Where a hearing is held under this Part, whether upon an application or by way of a trial or appeal, no person shall publish or make public in respect of the proceedings any information that has the effect of identifying,

(a)     any child or a parent or foster parent of the child or a member of the child's family present at the proceedings whether as a party, witness or otherwise; and
(b)    any person charged with an offence in the proceedings.94

The court may exclude the public from a hearing, or any part thereof, where, in the opinion of the presiding judge, the desirability of protecting against the consequences of possible disclosure of intimate financial or personal matters outweighs the desirability of holding the hearing in public and the court may by order prohibit the publication of any matter connected with the application or given in evidence at the hearing.95

(b) New Publication Restrictions in Honour of Electronic Public Access are Unnecessary

We thus have in place a system of laws to protect those requiring protection from the glare of a public process.  The judges and legislators responsible for its creation were quite properly concerned with the question of what information ought to be made public.  How it is made public is in the final analysis irrelevant.

As long as electronic public access does not physically disrupt the process or record elements of it that are not public, such as conferences between counsel and client, it can and should be treated as just another method of publicising what takes place in court.  In all my research I have found no evidence to overcome that basic notion.  In fact there is considerable merit in the development of a single body of Canadian law on public access to and publication of proceedings held in open court.

The reaction of Canadian court participants to electronic public access would likely be much the same as that found in the United States.  The Florida survey found little adverse effect.  There were, however, isolated cases which the Florida Supreme Court thought should be addressed.  While it adopted rules with a strong presumption in favour of electronic access, it formulated a test to guide the exercise of judicial discretion.   During the few years this test has been in force, only one ruling has denied electronic coverage.  In Florida v. Green, a trial court permitted electronic coverage of the conviction of an attorney on charges of embezzling the funds of two of her former clients but the conviction was reversed because a full evidentiary hearing on the defendant's objections to electronic coverage had not been carried out.  At the retrial the court accepted psychiatric testimony that while Mrs. Green was otherwise competent to stand trial,

it appears that her mental condition is fragile at best, and there is an extreme likelihood that the presence of the electronic media in the courtroom during the trial could cause her to become incompetent….99

If these cases were to occur in Canada, our courts now have sufficient authority to deal with them without the adoption of a "qualitatively different" test or any similar test which might encourage the development of a new line of authority separating what may be made public by the print and electronic media.  The electronic media did not create the sensitivity of witnesses or parties to public observation.  Existing Canadian solutions like in camera proceedings and bans on identification should apply equally to all of the public's media.

If proceedings are held in camera or there is a complete ban on the broadcast of evidence, there is no need for separate rules prohibiting electronic access. Where a ban only precludes identifying a witness, there is also no such need.  The entire trial can be broadcast except for those parts that would contravene the ban.  A witness' testimony  could be broadcast without a picture and if his voice  is distinctive, with electronic alteration of the audio recording.

It is the function of the court operating within its powers at law, to determine what of its proceedings may be made public.  Both the print and electronic media should be able to publish in accordance with their abilities.  There is no support in Canadian law for allowing parties, counsel, witnesses, or jurors to control the flow of information about the judicial system to the public.

A large number of the states permitting electronic public access do so without the consent of anyone other than the presiding judge.  There is a sound basis for this.  There is no reason why any participant in a proceeding should be anointed with the dubious authority to determine if publicity helps or hurts his reasons for being there.  Consent rules constitute a serious abdication of judicial discretion in the conduct of a court proceeding.  They also pose a real risk of distorting electronic coverage of a proceeding by allowing the public to see only those parts that somehow filter through.  If electronic public access is to improve the information flow to the public, then the courts should not inadvertently facilitate distortion of their work through consent rules that will randomly affect the electronic presentation of it.

One final reason not to permit consent rules is that they make electronic public access meaningless.  Florida tried unsuccessfully for over a year to get consent from trial participants to carry out its initial plan for experimentation.  California's experience clearly demonstrates the effect of consent rules on the quality and quantity of cases covered using electronic access.101   In the first quarter of the study period there were 98 requests for electronic coverage, evenly split between civil and criminal cases.  Because of the consent requirement almost all of the criminal case requests were denied;  civil case requests, which only required the consent of the judge, were approved in 40 of the 46 cases.  The researchers attributed the media interest in the first quarter to the "novelty effect" of electronic access.  In the second quarter the activity slowed to a trickle.  Interest in civil cases diminished considerably with only 10 cases being covered out of a total of 14 requests.  Only 5 of 15 requests led to coverage of criminal cases in this quarter.  The researchers concluded that "the media tired of failing to gain access in criminal case events and virtually gave up trying".102

One month into the third quarter, February 1, 1981, the party consent requirement for criminal cases was removed.  In January there were few requests but volume picked up considerably in February and March.  Over that quarter, 59 of 89 requests resulted in coverage of criminal cases.  By contrast, in that same period 12 of 16 requests resulted in coverage of civil cases.  In the fourth quarter the number of criminal cases covered was 62 of a total of 96 requests as compared to the number of civil cases covered which was 5 of a total of 9 requests.

The RTNDA Ontario experiment proved the same point.  The Judicature Act required participant consent, and on a number of occasions consent was denied.  Clearly, if electronic public access is to be  meaningful, only the court should be allowed to restrict it in accordance with established legal principle.  Existing Canadian law can deal with the concerns of participants in court proceedings to which there is electronic public access.  No special accommodations should be made over and above the many that now exist.  No proceedings need receive special treatment.  Electronic public access can be implemented today.

(c) The Impact of the Charter of Rights and Freedoms

Section 2(b) states:

          Everyone has the following fundamental freedoms…

(b) freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication….

There can be no doubt that the openness of the courts to the public is one of the hallmarks of a democratic society.  Public accessibility to the courts was and is a felt necessity; it is a restraint on arbitrary action by those who govern and by the powerful…

The Charter as part of a constitutional document should be given a large and liberal construction.  The spirit of this new "living tree" planted in friendly Canadian soil should not be stultified by narrow technical, literal interpretations without regard to its background and purpose; capability for growth must be recognized….Although said in a very different connection, it is apposite here; "For the letter killeth but the spirit giveth life."…

 It is true, as argued, that free access to the courts is not specifically enumerated under the heading of fundamental freedoms but, in my view, such access, having regard to its historic origin and necessary purpose already recited at length, is an integral and implicit part of the guarantee given to everyone of freedom of opinion and expression which, in terms, includes freedom of the press.  However the rule may have had its origin, as Mr. Justice Dickson pointed out, the "openness" rule fosters the necessary public confidence in the integrity of the court system and an understanding of the administration of justice.104

Electronic access would serve all the purposes and provide all the benefits ascribed by the courts to public access.  When our courts deny electronic public access to their proceedings they undermine their expressed desire to foster public confidence in and understanding of their processes and ignore both the realities of communicating information to the public today and the information needs of an extremely large segment of the public they serve.  It has been decades since newspapers were the only mass communication vehicle available to the public; yet our courts act as if they still are.

Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate.  Where there is no publicity there is no justice.  Publicity is the very soul of justice.105

The Charter provides additional and perhaps more explicit support for public access to the courts through electronic means.  There is a distinction in section 2(b) between the press and other media of communication.  Clearly the unique attributes of the electronic media are recognized.  If those in the electronic media have freedom of expression, surely wherever they are they have the freedom to use the tools of their trade to express themselves, that is, freedom to use pictures and sounds in conveying information.  That freedom coupled with the right of free access to courts must add up to electronic public access to courts.  It too is a fundamental freedom.

The Charter recognizes in Section 1 that there can be limits on a freedom provided they are "reasonable", "prescribed by law", and "can be demonstrably justified in a free and democratic society."  The onus is on those who would uphold existing limits on the media's freedom to convey information from court.  Given that these are limits on a fundamental freedom, the onus is heavy.  In the words of the Courts in Southam:

The wording imposes a positive obligation on those seeking to uphold the limit or limits to establish to the satisfaction of the court by evidence, by the terms and purpose of the limiting law, its economic, social, and political background, and, if felt helpful, by references to comparable legislation of other acknowledged free and democratic societies, that such limit or limits are reasonable and demonstrably justified in a free and democratic society.106

The same questions can be asked in respect of the absolute bans on electronic public access which are currently in effect, de facto or de jure, in every other province in Canada where the electronic blackouts are total.  The Charter may have its greatest impact in those jurisdictions.

6. A Proposal for Electronic Public Access Today

The RTNDA's Ontario experiment was conducted under guidelines which the RTNDA proposed, which the Ontario Bench and Bar Council permitted to be used and which in the end worked well.  They were based on the guidelines considered by the U.S. Supreme Court in Chandler v. Florida in the course of its decision to permit state experimentation with electronic access.107   The RTNDA has put the Ontario guidelines forward as a model to be adopted by any Canadian province permitting electronic public access.108
 
Electronic public access to court in accordance with guidelines similar to those suggested by the RTNDA, can be safely implemented in Canada today.  It is in keeping with the highest traditions of our law, the principles and provisions of our new Charter of Rights and Freedoms and the noblest tenets of democracy.  I am confident not only that justice will prevail, but that in the end it will be seen to prevail.

Endnotes:

1.    See Linden, "Limitations on Media Coverage of Legal Proceedings," supra at pp. 301-302.
2.     Scott v. Scott, [1911-13] All E.R. Rep. 1, 11 (H.L. 1913).
3.     Ibid. at 23.
4.     Ibid. at 30.
5.     448 U.S. 555 (1980).
6.     Ibid. at 564-69.
7.     Ibid. at 566, quoting T. Smith, De Republica Anglorum 101 (Alston ed. 1972).
8.     Ibid. at 571-72, quoting Offutt v. U.S., 348 U.S. 11, 14 (1954).
9.     (1982), 132 D.L.R.(3d) 385 (S.C.C.).
10.    Ibid. at 401-402, quoting from R. v. Wright, 8 T.L.R. 293, cited, (1909), 41 S.C.R. 339, 359 (S.C.C.), per Duff J.
11.    Gazette Printing Co. v. Shallow, supra note 10 at 342.
12.    C.B.S. News, Television News Reporting 116 (1958).
13.    Davis, "Courtroom Television on Trial: It's Here, It Works," 18 Television Quarterly 13, 13-15 (Fall 1981).
14.    Radio Television News Directors Association, Categorization of State Rules on Extended Media Coverage of Courts 1 (July 1, 1985).  This summary is taken from News Media Coverage of Judicial Proceedings with Cameras and Microphones: A Survey of the States (RTNDA July 1, 1985).  The study is included as Appendix 1, infra at p. 479.  One of the 43 states limits coverage to still photographs; ibid.  (Note: This study is not reproduced in the internet version of this paper.  For the latest information from RTNDA, see http://www.rtnda.com/foi/cc.shtml)
15.    381 U.S. 532 (1965).
16.    101 S. Ct. 802 (1981).
17.    Early U.S. experience is described in Kielbowicz, 'The Story Behind the Adoption of the Ban on Courtroom Cameras," 63 Judicature 14 (1979).
18.    62 A.B.A. Rep. 1134-35 (1937).
19.    Supra note 15 at 536.
20.    A.B.A., Code of Judicial Conduct, Canon 3A(7) (1972).
21.    Judicature Act, R.S.O. 1970, c.228, s.68a, adopted in S.O. 1974, c.81, s.3.  See also R.S.O. 1980, c. 223, s. 67.  Section 67 is reproduced infra at pp. 464-65.
22.    S.O. 1984, c.11, s. 146.  Section 146 is reproduced infra at p. 467.
23.    Supra note 16.
24.    Ibid. at 809.
25.    Ibid. at 811.
26.    See Revised Report of the Judicial C