Canadian Lawyer

"In a way it's been coming. Obviously, attitudes have changed, and probably for the better in terms of openness of the courts. It's just an opportunity, as I see it, to use technology to expand the courtroom gallery." Dan Burnett, Owen Bird Law Corp. live out of town. Even if they could come, there's very limited seating, so only a tiny fraction of the public can actually see the court firsthand. Having the open door and the gallery seats there is, in many cases, nothing more than symbolic openness." The B.C. government's push for cameras met with an unenthusiastic response from the Crown attorneys who were forced to make the applications to televise. Six prosecutors are working on the riot file, recommending charges against about 80 individuals. "They have concerns around their personal security. Their position is that they're not going to consent to their own images being televised, which is something the court needs to consider," says Jamie Chaffe, president of the Canadian Association of Crown Counsel. And while the attorney general may be able to impose her will on the Crown's office, the ultimate decision-makers, the judiciary, are another matter altogether. De Jong's successor in the office, Barry Penner, was forced to shelve his sentencing pilot after running into stiff resistance from provincial court judges, while the Canadian Judicial Council's official position on televised trials is that it "is not in the best interests of the administration of justice." In mid-February, however, B.C. Attorney General Shirley Bond was forced to scale back her plans after Provincial Court Justice Malcolm MacLean denied the first application to televise, in the sentencing of a rioter who had pleaded guilty. MacLean rejected an argument that the application was politically motivated, but said there were too many unanswered questions around the safety of court personnel and the re- broadcast of footage, instead suggesting the appointment of an amicus curiae to study his concerns in greater detail. That prompted Bond to rescind her direction to Crown counsel, citing the delays MacLean's approach would cause, but reaffirmed her commitment to cameras in court. "In the mean- time, we will carefully consider Judge MacLean's decision, and we will continue to look for opportunities to make the justice system more transparent to all British Columbians," Bond said in a statement. But some had already dismissed the government's move as a gimmick, and some advocates fear that what may have been seen as a leap forward, may in fact have set back the campaign for televised court proceedings. Robert Holmes, president of the B.C. Civil Liberties Association, has suspicions about the provin- cial government's long-term commitment to the idea. "If this is meant to be a test run, as a precursor towards a broader use of cameras in the courtroom, then all power to it," says Holmes. "On the other hand, if the government is solely doing this to add an extra degree of stigmatization to a particular group, and they plan on never letting cameras in again, then I'm not sure I want 34 M A RCH 2012 www. CANADIAN Lawyermag.com them on my side, because their motives are suspect." Paul Burstein, the former president of Ontario's Criminal Lawyers' Association, concedes that the time may have come for cameras in the courtroom, but is unimpressed by the intial approach of the B.C. government. "It should be for the right rea- sons, and this is clearly for the wrong reasons. It promotes public shaming and potential vigilantism, which is just wrong," he said prior to MacLean's ruling. "I think it's appalling. Not only is the intention to shame, but the subtext seems to be that the govern- ment wants people to know the faces of those responsible, so that if the courts don't mete out enough punishment, the public can sit in judgment as to what else should appropriately be admin- istered to these individuals by way of public ridicule, spitting on the street, and so on. I'm exaggerating to some extent, but what else is the purpose?" Donna Turko, a Vancouver criminal lawyer and former tele- vision journalist, earned her MA in sociology and anthropol- ogy a decade ago with a thesis that examined the deep-seated division between legal and media professionals over cameras in the courts. She says it was never likely judges would grant appli- cations to televise riot trials, especially over the objections of defence counsel. "In general, the legal profession doesn't trust the media, because there's an innate sense that for the media, it's about making money, and not protecting rights," she says. According to Burnett, the more judges see cameras in action, the more comfortable they will become with the idea. He says judges who have led commissions of inquiry, which are often televised, rarely come away opposed to the idea. "Generally what they see is that it all works in a pretty civilized way, and it's not such a big deal. The fear of the bogeyman disappears." Chaffe says he's keen to see courts retain the final say on whether or not to allow cameras, and says that view is backed up by the January 2011 Supreme Court decision Canadian Broadcasting Corp. v. Canada (Attorney General). In that case, the top court upheld the constitutionality of a Quebec Superior Court directive that limited journalists' use of cameras and recording equipment to certain areas of the courthouse. But it's another critical courtroom player that is central to his organization's opposition to cameras in court — the witness. "One of the real challenges, particularly with serious criminal offences, is whether or not we can actually get witnesses to come forward and testify. It's a challenge that gets much more difficult when witnesses feel that not only will they be in open court facing the accused, and possibly media in the courtroom, but that their image could be projected on a daily basis across the country contemporaneous with the trial," says Chaffe. "Television may actually inhibit access to justice and access to the court if witnesses or victims don't want to speak out."

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