Electronic Public
Access to Court
British Columbia
On December 2, 2002, the Supreme Court of Canada surprised
everyone in the Clark appeal by agreeing to a motion by the
lawyer for Mr. Pilarinos that the appeal was now moot. When
the case was first brought to the Court, it held that an expedited
hearing could not be held as the trial was getting close.
Then, granting leave to appeal, it scheduled the appeal for
a date after the trial had to be over. After factums were
filed, and six weeks before the hearing date, they pulled
the plug. It's hard to read between the lines when there are
so few lines to read between.
On January 17, 2002 the Supreme Court of Canada granted leave
to appeal the decision of the trial judge in R. v. Clark
not to permit television camera access to the trial proceedings.
The hearing is scheduled for January 14, 2003. The media's
appeal factum is a compelling argument.
On September 24, the trial court in R.
v. Clark dismissed the application of the national
and local media to televise the trial. Within a week, a media
coalition sought leave to appeal the decision to the Supreme
Court of Canada on an expedited basis, but the Arbour J. ruled
that the Court would not expedite the application because
that would interfere with the defendants' preparation for
trial.
The trial court's ruling holds that, while there is a s.2(b)
right to gather news, there is no right under that section
to record court proceedings for transmission to the public.
It makes one wonder what the words in that section "freedom
of the press and other media of communication"
mean. The court finds that the studies on the effects of camera
coverage are "inconclusive", yet holds that not
knowing the effect is sufficient reason to keep the camera
out to preserve the right of fair trial. The court concludes
that experimentation is the best way to proceed, and, not
surprisingly, supports the approach of the BC Supreme Court
in that regard. Among the findings that are troubling:
- filming is not expressive activity (contrary to the Supreme
Court of Canada in R. v. Butler)
- a restriction on filming is not a publication ban, subject
to the analysis of the Supreme Court of Canada in Dagenais
v. CBC
- restricting filming in court does not infringe s. 2(b)
(contrary to the Ontario Court of Appeal ruling in R.
v. Squires)
- courts are not places "of public debate aimed at
promoting the truth"
- the public will get "much less information on television
than they presently get in the newspaper coverage"
(this despite evidence that the entire proceedings would
be made available to the public on the new CourtTV digital
channel and the internet, as well as
extensively on CBC Newsworld), and
- there is a right to privacy in court which, presumably,
applies in the circumstances to a former Premier and his
conduct while in office.
In April, the B.C. Supreme Court announced the adoption
of a policy
permitting camera access to courts on consent. In R.
v. Clark, the former Premier denied his consent. The B.C.
Attorney General opposed the media's application, and, in
an unusual move, the Supreme Court retained a lawyer of its
own in this case to defend its policy position.
A detailed paper
expanding upon the court's policy is online. Unbelievably,
the paper sets out, among other things, "the view of
the court that the public educational and informational value
of media-driven camera access is dubious at best." It
is disappointing, to say the least, coming from a body whose
members are regularly called upon to rule on cases involving
that very right, e.g. R. v. Clark.
The Supreme Court has developed guidelines
to be used for television access applications.
Ad IDEM was one of the media applicants in R. v. Clark.
Its position is that the Charter of Rights mandates camera
access unless compelling evidence exists to suppress it. Consent,
as a precondition to camera access, is inconsistent with public
access to court. A public proceeding that is not harmed by
camera coverage should not be rendered inaccessible to the
public at large on the basis that such coverage does not fit
into the public relations strategy of a party denying consent.
In the Squires case, the issue was television camera
access to court, and the Crown denied its consent to television
coverage there. A consent requirement in B.C. last year would
have prevented the successful television coverage of the Cho
case. In Ontario, where there has been a statutory consent
provision since 1974, there has been little television coverage
of courts.
See also: Electronic Public
Access to Court - Background
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