The Office of the Chief Justice
Supreme Court of British Columbia
The Law Courts
800 Smithe Street
Attention: Chief Justice Brenner
Re: Draft Guidelines for Television Coverage of Court Proceedings
I am writing on behalf of the British Columbia Civil Liberties Association (the “BCCLA”) in response to your invitation to make comments or submissions regarding the Draft Guidelines for Television Coverage of Court Proceedings (the “Guidelines”). This letter expresses the concerns and submissions of the BCCLA.
The BCCLA appreciates that the Guidelines appear to be the product of a sustained and careful effort to tackle the difficult issues surrounding the recording of images inside courtrooms in British Columbia. The Office of the Chief Justice has clearly canvassed a wide range of sources and authorities in the quest for a codification of the appropriate balance of the competing interests.
Nonetheless, the BCCLA is concerned that the Guidelines threaten to undermine constitutionally protected freedom of expression. In our view, the Guidelines impose limits on freedom of expression which are inconsistent with the relevant constitutional principles and the framework for the adjudication of constitutional issues developed by the courts.
The Significance of Limits on Freedom of Expression
Canadian courts have long held the view that freedom of expression is integral to the proper functioning of democracy. As Cory, J. stated in Edmonton Journal v. Alberta (AG),
It is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression. Indeed a democracy cannot exist without the freedom to express new ideas and put forward opinions about the functioning of public institutions. The concept of free and uninhibited speech permeates all true democratic societies and institutions….
The BCCLA believes that the right to free expression enhances the administration of justice in all its forms. Freedom of the press is the vehicle by which citizens in a democracy retain the ability to observe, deliberate on, and call into account those who exercise public authority, including police, prosecutors, and the judiciary. As a right belonging both to those who express and those who receive (and deliberate on) the expression, the freedom of expression provides citizens with a transparent and accountable government.
The beneficial effects of free expression specific to the judiciary are noted by the Supreme Court of Canada in C.B.C v. New Brunswick (A.G.), where it is affirmed that
Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice… Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity.
On this formulation, the more publicity, the greater the benefit to the judicial administration of justice. Likewise, any decrease in the amount of publicity will bring with it a diminished quality of justice.
Limits on Cameras are Limits on Expression
The BCCLA believes that the limits on filming contemplated by the Guidelines would constitute limits on the freedom of expression. The limits contemplated by the Guidelines include the following:
Requiring the consent of the parties. In our view, this requirement makes one individual’s freedom of expression contingent upon the permission of another.
Requiring the consent of a witness. This requirement makes a witness’ lack of desire to have their image recorded and/or broadcast an automatic bar to that record or broadcast, and hence an automatic bar to freedom of expression.
Application by the camera operators. The requirement forces camera operators or broadcasters to request judicial permission to act on their expression rights.
Judicial Censorship. The procedural mechanisms contemplated by the Guidelines include judicial control over the use to which recordings are put. These mechanisms appear to establish a classic form of ‘prior restraint’ or pre-emptive censorship. As such, these procedural mechanisms constitutes a limit on the freedom of expression.
Our submissions are informed by our view that both the recording and the editing and broadcast of images and sounds constitute expressive activity. On this basis, the Guidelines propose to limit the freedom of expression of participants in courtroom proceedings, those who would wish to record those proceedings and those who would wish to view those proceedings. The BCCLA is concerned about the resulting diminution in the benefits conferred on the administration of justice by the bright light of publicity.
Detrimental Effects Inside the Courtroom
The BCCLA acknowledges that the potential for detrimental effects caused by recording and broadcast of images and sounds in courtrooms has been the subject of debate. It would be futile for these brief submissions to attempt a resolution of those debates.
However, in our view, these effects are within the jurisdiction of individual judges determining individual cases, and are not questions of the administration of courthouses and judges generally. The specific issues that will arise before individual judges are to some extent unknowable in advance, and should be adjudicated on a case by case basis by individuals through the finding of facts and by the application of the proper juridical principles prescribed by law.
Detrimental Effects Outside the Courtroom
The BCCLA is concerned that the Guidelines attempt to limit potential detrimental effects outside of individual proceedings. In particular, the requirement that recordings may be used only for news or educational purposes appears an unwarranted restraint that falls outside the inherent jurisdiction of individual judges.
The BCCLA suggests that a distinction should be drawn between restrictions intended to minimize detrimental effects within a proceeding, and restrictions intended to minimize detrimental effects outside a proceeding. Inside a proceeding, the proper administration of particular disputes could possibly be affected by recording or broadcast. For example, the presence of a camera may have an effect on a witness, or a broadcast may have an effect on a jury.
Outside a proceeding, a recording or broadcast may have effects that might, in the personal opinion of a judge, be viewed as detrimental. However, the BCCLA submits that detrimental effects that occur outside a proceeding should not be used to justify restrictions on freedom of expression. Unless the expression at issue constitutes contempt of court or could otherwise detrimentally affect the proceedings themselves, images and sounds about judicial proceedings, however edited or broadcast, should be protected expression.
The freedom of expression is not (and cannot be) without pain. Trenchant social and political critique often involves the unflattering portrayal of persons in the public realm, including judges or parties to a proceeding. These unflattering portrayals are part of the exchange of ideas and insights, and the promotion of social and political values vital to a democracy.
Freedom of expression also serves to protect artistic expression, some of which may involve the manipulation of images and sounds in surprising and unanticipated ways. Diverse forms of expression, other than news or educational purposes, are valuable aspects of a flourishing society, and should not be restrained by judges except as required for the promotion of justice in individual proceedings by individual judges.
The BCCLA submits that the Guidelines should be confined to minimising only those detriments arising from recording and broadcast that have a negative effect on an individual proceeding over which an individual judge presides. To go further is to limit the social and political debate and artistic expression upon which democracy depends.
Constitutional Administration of the Freedom of Expression
The BCCLA considers that limits on the freedom of expression are properly the subject of constitutional adjudication. We are concerned that the Guidelines may have the effect of circumventing or undermining three basic constitutional principles protecting the freedom of expression.
The first constitutional principle which the Guidelines may interfere with is the independence of the judiciary, and specifically, the obligation of individual judges to decide issues before them on an individual basis, in accordance with the rule of law. The BCCLA is concerned that judges may consider themselves to be bound to decide applications for recording proceedings in strict accordance with the Guidelines, thereby fettering their own discretion to decide issues before them in accordance with the appropriate constitutional and other legal principles.
While we recognize that s. 8 of the Guidelines provides that “[t]he presiding judge may consider it appropriate to impose additional or different conditions in granting an authorization in any particular case”, most of the other provisions speak in the imperative, providing what “shall” or “shall not” be done. For example, the requirement that all parties consent to the recording of the proceedings appears on the face of the Guidelines to be an absolute prerequisite for permission to record being granted. Similarly, a witness who objects to being recorded appears to have an absolute right to prevent recording of their testimony. In the BCCLA’s view, this is wrong. These, and all other decisions to be made by a judge in respect of an application to record proceedings, should be within the judge’s discretion, to be exercised in accordance with the applicable constitutional principles.
The second of the basic constitutional principles which may be threatened by the Guidelines is the location of onus. The historical accident of the custom of excluding recording devices as unwanted novelties ought not be permitted to prejudge the onus issue. The Charter of Rights and Freedoms has been interpreted to state that authorities which seek to limit a constitutional right bear the onus of proving that the limitation can be justified in a free and democratic society. By requiring persons to bring an application for permission to record proceedings, the Guidelines may be seen to place the onus on the applicant to justify the exercise of their rights. The BCCLA appreciates that procedurally it is probably reasonable to require camera operators to make an application to record proceedings. However, in our view, the Guidelines must make it clear that the fact that camera operators are required to make an application does not place the onus on the operators to justify the exercise of their freedom of expression. Even where competing constitutional rights (such as the right to a fair trial) are placed into conflict with the right to freedom of expression, the party whose rights are infringed should not exclusively bear the onus.
The third constitutional principle threatened by the Guidelines is the familiar analytic framework for the resolution of constitutional disputes. Commonly known as the Oakes test, this framework allows for close scrutiny of the values alleged to be served by the infringement of the freedom of expression. In order to justify the limitation of constitutional rights, such as freedom of expression, the party seeking to uphold the limitation must establish that the objective of the limitation is of sufficient importance to warrant overriding a constitutionally protected right, and that the means selected to achieve the objective are proportional to the objective. The proportionality analysis requires the party seeking to uphold the constitutional limitation to establish that the measures adopted are carefully designed to achieve the objective, that the means chosen impair the right as little as possible, and that there is proportionality between the effects of the limiting measures and the objective.
In the BCCLA’s view, the rules and procedures proposed under the Guidelines are not consistent with this established analytical framework. In this regard, we are concerned that the Guidelines themselves do not evidence any indication that the Oakes analytical framework was taken into account in drafting the Guidelines. Again, and in keeping with our concerns regarding the fettering of judges’ discretion, the Guidelines must make it clear that judges retain their constitutional obligation to decide issues relating to the recording of proceedings in accordance with their judgment as to what the constitutional right to freedom of expression requires.
The BCCLA appreciates your attention and patience in giving consideration to our submissions.