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The fight for the hallways

Legal Report: Litigation
|Written By Andi Balla
The fight for the hallways
Illustration: Victor Gad

Before 2004, Quebec journalists wanting to take photos or film had for years enjoyed several freedoms inside the province’s courthouses that went beyond many other North American jurisdictions. Journalists with cameras could roam the corridors of courthouses, shoot and take photos anywhere, as long as they didn’t do so inside individual courtrooms while proceedings were going on. “As long as I can remember, practising for about 36 years, the media was always present in courts, in the public areas, and that’s just how things are here,” says Barry Landy, a partner at Spiegel Sohmer in Montreal. “It’s different from the rest of Canada, and other than for a handful of isolated cases, it has never posed a serious problem.”

It was the type of freedom journalists — who in most jurisdictions end up camped on the cold sidewalk in front of the courthouse — would like to see everywhere in Canada. But Quebec courts grew uneasy with the arrangement and started to see the ever-increasing journalistic presence as disruptive. The problem was that a few high-profile cases attracted extensive media coverage. In the main Montreal courthouse, as many as 30 or 40 journalists would vie for footage at the same time. There were stories of photographers standing on top of furniture to get the shot, and of cameramen peeking into ajar courtroom doors.

So in 2004, the new Quebec Superior Court Rules of Practice were approved mandating that “in order to ensure the fair administration of justice, the serenity of judicial hearings, and the respect of the rights of litigants and witnesses, interviews and the use of cameras in a courthouse shall only be permitted in the areas designated for such purposes by directives of the chief justices.” In essence, it meant journalists would be restricted to certain areas in each floor of the courthouse. The new rules also cemented the ban on broadcasting audio recordings of court proceedings. Media had been allowed to record audio in the courtroom for reporting purposes, but were prohibited from broadcasting what they recorded.

Only a few months after the new rules were approved, several media organizations, led by the Canadian Broadcasting Corp., challenged them in court, saying they violated s. 2(b) of the Charter of Rights and Freedoms, which guarantees fundamental freedoms, including the freedom of the press and other media of communication. Landy, who represented CBC and the other appellants in the case — Groupe TVA Inc., La Presse Ltée., and the Quebec professional federation of journalists (Fédération professionnelle des journalistes du Québec) — says the few incidents in high-profile cases were limited and sporadic and did not justify a blanket rule limiting the media to certain areas.

Quebec media’s appeal went all the way to the Supreme Court of Canada after years spent first fighting in the lower courts, both of which upheld the new rules as constitutional. In January, the SCC also decided the rules restricting the media were constitutional because they were justifiable under s. 1 of the Charter.

But while the Quebec media organizations technically lost the challenge, in bringing the case to Canada’s highest court they have opened the door for media in other provinces to be granted the same freedoms enjoyed in Quebec — access to designated areas of courthouses where they can conduct interviews and get footage. Christian Leblanc, a partner at Fasken Martineau DuMoulin LLP in Montreal, who represented several Canadian media associations that intervened at the SCC, says the fact the top court recognized the right of cameras to be inside courthouses as part of s. 2(b) is very important. “It can open up courthouses in the rest of Canada,” says Leblanc. That means the media can cover a courthouse as a public place where there are public interest matters being debated every day. “If that wasn’t the case, it would have been very dangerous,” he says. “For example, it would have allowed legislation that would have not allowed cameras in the courtroom altogether. . . . It would have also possibly said that the act of taking pictures or videos of somebody is not . . . protected by s. 2(b), which also would have been, I think, very dangerous.” In Ontario, journalists have already approached at least one court, the Court of Appeal, about the possibility of setting up a designated area inside Osgoode Hall to conduct interviews.

The SCC was unanimous in its decision, with Justice Marie Deschamps writing the opinion in Canadian Broadcasting Corp. v. Canada (Attorney General). “The fair administration of justice is necessarily dependent on maintaining order and decorum in and near courtrooms and on protecting the privacy of litigants appearing before the courts, which are measures needed to ensure the serenity of hearings,” Deschamps wrote. “In my opinion, it was therefore reasonable to expect that the measures would have a positive effect on the maintenance of the fair administration of justice by fostering the serenity of hearings and decorum and by helping to reduce, as much as possible, the nervousness and anxiety that people naturally feel when called to testify in court.”

Deschamps noted the reasons behind only allowing journalists in designated areas are based on evidence that “the presence and the conduct of journalists outside courtrooms had a negative effect on the decorum and serenity of hearing.”

For advocacy groups like the Canadian Association of Journalists, the decision was disappointing. Recognition of the need to protect the court’s decorum and the fair administration of justice should be kept in balance with the need to make courts as open and transparent as possible, it says. “Instead of blanket rules, the Supreme Court could have advocated for more flexibility, such as publication bans tailored to a specific case,” says the association’s president, Mary Agnes Welch.

However, the high court also noted that according to the Quebec rules, journalists are expressly authorized to ask a person who is heading toward or exiting a courtroom if he or she would agree to give an interview while being photographed or filmed in an area provided for that purpose. Such areas are designated on every floor, near places participants must go through in order to enter and exit the courthouse, according to the rules cited by the SCC. “The impugned measures are a way to assure courthouse users that they will not be taken by surprise or harassed by journalists and that they will be interviewed, photographed, or filmed only with their full consent,” Deschamps noted.

Although the SCC did not grant the media organizations what they asked for, there is a silver lining in the decision because the court affirmed the freedom for the cameras to be inside courthouses. “While the Supreme Court of Canada maintained that the rules of practice were constitutional, they took care to say that freedom of expression does apply in the courthouse and in the public areas of the courthouse,” says Landy. The previous decisions in the Quebec Court of Appeal had not made that clear. “So from that perspective, the judgment was one that the media felt necessary to obtain.”

Landy adds the media had been disappointed by the second aspect of the case too, the top court’s affirmation of a ban on broadcasting court recordings. “Voice transmits meaning that words don’t transmit,” he says.

It’s also important to note that the ban on camera access inside court proceedings themselves was not part of the Quebec case, and so was not addressed by the SCC decisions. It remains an open question, according to the Canadian Media Lawyers Association (Ad IDEM). It’s a point Landy says is very important to make. “It’s an easy, but erroneous, jump to make because cameras in the courtroom is a hot-button issue, so there is a tendency to want to make a link,” he says, adding the point was not argued at all in the Quebec case.

In the end, advocates for full media access into courthouses did not get a victory at the SCC, but it wasn’t a total loss either. “It’s somewhere in between, because ultimately, the goal of this case was to invalidate the sections that were limiting the access of cameras,” says Leblanc. “I can’t say that I wasn’t disappointed by the judgment, but I saw that there was a lot of positive aspects to it too.”


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