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| John L. Hill |
In Canada, we have been eager to hear the latest testimony of E.M. in a London, Ont., courtroom as she gave testimony of allegedly being sexually assaulted by five former members of Canada’s 2018 world junior hockey team.
Several cases have been brought to the Supreme Court of Canada that have upheld the public’s right to know what transpires in our courtrooms (Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2). The courts have consistently maintained that the connection between freedom of expression and the political process is perhaps the linchpin of s. 2(b) Charter protection.
Many can remember being glued to their TV sets as the O.J. Simpson murder trial progressed. It became “must-
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On the other hand, many have watched the TV depiction of trials. Rarely does a cinematic portrayal of what goes on in court reflect the actual practice, which is often tedious and boring. Seldom are there moments like the presentation of a glove and the words, “If it doesn’t fit, you must acquit.” More often, time is taken up in the argument of whether an object or a letter that only has a tangential impact on guilt or innocence should be made an exhibit.
There are several good arguments for continuing to exclude television and radio reporting from all court actions. Witnesses, jurors and even judges may feel intimidated, leading to changes in behaviour or reluctance to testify. This could be an essential consideration where a prosecution depends on an informer.
The “in camera” testimony of a police informer that led to a conviction had the Quebec Court of Appeal declare the matter a “secret trial.” However, a unanimous decision of the Supreme Court stated that secret trials do not exist in Canada (Canadian Broadcasting Corp. v. Named Person, 2024 SCC 21). The court established procedures, including the allowance of redactions to preserve the public’s right to know.
Live coverage might encourage grandstanding or theatrics by lawyers or witnesses seeking attention. Such coverage could interfere with the privacy rights of victims and witnesses, especially when sensitive issues such as sexual assault or abuse of minors are a concern. It might deter victims from reporting horrendous crimes and expose their identities to the public.
We have also seen in the Donald Trump trials that TV coverage can lead to threats and harassment of trial participants, including judges.
Technical problems can arise. Reconfiguring a courtroom for TV could lead to disruptions impacting the space’s overall functioning.
Perhaps the most serious shortcoming of televised trials is the danger that the media coverage could influence public opinion, which could affect a jury’s impartiality, especially when retrials are necessary. We cannot turn our courts of law into courts of public opinion.
However, as local newspapers are rapidly disappearing and the print media has a lesser impact on news dissemination, it might be worthwhile to re-examine our reluctance to have trials conducted publicly. COVID-19 has allowed trials to proceed and be viewed by participants and observers on home computers.
The democratic principle of open courts could be advanced. We would not be dependent on an individual reporter’s inaccurate and perhaps biased reporting. Most importantly, the law must be seen to work, and allowing public oversight would ensure that justice is carried out fairly and openly. The public can be better educated about legal procedures and courtroom behaviour.
The decision to allow TV cameras in courtrooms often involves balancing the public’s right to know with the rights of defendants and witnesses to a fair and dignified process. Some jurisdictions allow them under strict rules, while others restrict them to protect the integrity of the trial.
Our courts have carved out an acceptable middle ground that preserves our constitutional right to freedom of expression and the press without opening the process to the extent allowed in the United States. Ultimately, our courtrooms are essential centres for the administration of justice. They are not auditoriums for public entertainment any more than hospital operating rooms should be arenas for the public to observe the delicate balance between life and death.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the [True Crime] Story (AOS Publishing). The Rest of the [True Crime] Story has been shortlisted for a prestigious Brass Knuckles Award, which is the Crime Writers’ of Canada’s prize for best nonfiction crime book of the year. Contact him at johnlornehill@hotmail.com.
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