Canadian Lawyer

But Holmes says judges can easily work around sensitive witnesses by obscuring images or distorting voices where they deem it appropriate. "That's fair because there are valid excuses and reasons for limiting it in some contexts," he says. Burnett agrees that the judge should have control over what can be broadcast, and says concerns about witnesses are "overblown." "It isn't as if you turn on the camera and there's no turning back," he says. "The reality is high-profile cases attract lot of attention, and you're going to have a packed gallery, sketch artists, camera crews outside doing reports, the judge sitting up at an imposing- looking desk, and people being cross-examined aggressively. The idea that this one little camera sitting on a tripod at the back of the room is going to be the thing that suddenly makes a witness unable to testify properly is a bit of a stretch as far as I'm concerned." Chaffe doesn't object as strongly to the potential broadcast of appeal court proceedings. Live witnesses there are not an issue, which may help account for the Supreme Court's pioneering position on this area. Its decision in the 1981 Patriation Reference case was the first in the country to be televised live. From 1993 to 1995, the court allowed cameras in three times to cover cases involving the tax deductibility of nanny expenses, the right to assisted suicide, and the tax deductibility of spousal support payments, before CPAC began regularly broadcasting from the court. Since 2009, the court has branched out even further, launching live webcasts and archiving video footage of hearings. Ironically, that puts the Canadian Supreme Court at odds with its American counterpart, which has traditionally eschewed television cameras, despite their widespread use in state-run courts. All 50 states allow cameras in their courtrooms. The U.K.'s experience broadly mirrors Canada's, where the only court that allows cameras is the Supreme Court. Appeal courts have also been at the heart of provincial experi- ments with cameras in court. Nova Scotia invited applications to broadcast hearings from its appeal court for two years from 1996 to 1998. Meanwhile, in Ontario, the province's 2006 Panel on Justice and the Media, including luminaries from the legal and media spheres, recommended an amendment to the province's ban on cameras in the Courts of Justice Act, to allow them for proceedings in the Court of Appeal and the Divisional Court, as well as motions and applications in Superior Court that involved no witness examination. "In such cases, televising should be broadly permitted. The court should always have discretion to exclude television, but only after giving due consideration to the value of openness," the panel wrote. "Some may see this as a small step. We do not think so. . . . The people of this province will have an opportunity to be eyewitnesses to important aspects of the justice system in action. Whether they watch for inspiration, edu- cation, or even entertainment, they will be observers of a historic process, which is a critical element of our democratic system." A three-month pilot followed in late 2007, when one court- the province's Court of Appeal was outfitted with room at cameras and microphones. The $365,000-project saw 21 cases streamed online across 20 court sessions. Only one of the cases, an appeal by a man wrongly convicted of killing his young niece, garnered much media coverage, but the court's web site logged ntitled-1 1 160 Elgin StreetSuite 2600OttawaOntarioK1P 1C3T 613-233-1781 montréalottawatorontohamiltonwaterloo regioncalgaryvancouverbeijingmoscowlondon 18,000 visits, and 95 per cent of those interviewed for an evalu- ation report said the pilot enhanced openness, while 85 per cent called for an expansion to other courts. The 2008 report on the pilot was only released in March last year after a freedom-of-information request, and then-attorney general Chris Bentley said he was open to revisiting the issue. Brendan Crawley, a spokesman for the Ministry of the Attorney General, tells Canadian Lawyer that privacy issues remain a concern, but that consultations are underway with chief justices of all three of the province's courts. "We need to ensure that we approach this in a thoughtful and comprehensive manner. These are informal consultations, and we have not placed any firm timelines for them to be completed," says Crawley. In the meantime, there are no cameras in Ontario's courts. John Honderich, the former editor and publisher of the Toronto Star, was a member of the 2006 panel on justice and the media. He says he was advocating to have cameras present at all levels of court, but has been disappointed at the lack of action even on the panel's watered-down recommendations. "This was a compromise that everyone was supposed to be able to live with, but I think they just weren't prepared to take on the legal establishment," says Honderich. "The establishment in this province has been very strongly imbued, and I guess the government just didn't see this as a battle they wanted to fight. For Turko, the problem with the focus on appeal proceed- ings is that they are the ones of least interest to the public at large. "It's like watching paint dry," she says. "From an academic point of view, there are certainly things to be learned, but the exercise doesn't really go anywhere if nobody watches it. It comes down to the quantum of what you're going to get for costs that could be put elsewhere in the system." In the B.C. context, Chaffe says he would rather see the money and court time being spent on applications to televise instead being used towards dealing with inadequacies in the court system there. "They've got 2,500 cases over 18 months waiting for trial, and they're 20 judges short of full complement at the provincial court level. This is going to hamper the ability of the justice system to react to other cases that the public may very well regard as a higher priority, like sexual assaults and homicides, which we think is harmful," he says. PROFESSIONAL DIRECTORY Supreme Court of Canada Counsel and Agency Services Henry S. Brown, QC Brian A. Crane, QC Guy Régimbald Graham Ragan Matthew Estabrooks Eduard J. Van Bemmel, Law Clerk www.CANADIAN Lawyermag.com M A RCH 2012 35 12-01-17 10:50 AM

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