Riot police in Vancouver June 15, 2011.JOHN LEHMANN
It was called the dawn of a new era, and video cameras were about to become a courtroom staple. Public interest sparked the innovation, and people from Kamloops to Pouce Coupe could see what was happening in front of a judge all the way over on the B.C. coast.
Before Vancouver's Stanley Cup riot trials became the focus of the debate over broadcasting court proceedings, a B.C. Supreme Court judge allowed closing arguments in the Victoria trial of nine Korean sailors accused of human smuggling to be shown on television more than a decade ago.
The new era that appeared to be on the brink in July of 2000 has been delayed – and then some. Broadcast proceedings remain few and far between in this province. But that could soon change, courtesy of what opposition politicians call Premier Christy Clark's Riot TV. The Crown will next week make the first of its applications to a judge hearing a riot case for the proceedings to be broadcast publicly, following through on a pledge in the government's Throne Speech.
The decision could propel the B.C. courts into that new era.
The Attorney-General has said the application is part of the government's plan to make the courts more accessible to the public, but hasn't said whether it would do the same with future crimes. Media that have long argued for cameras are wondering if the Crown will take over that role.
Ms. Clark has been lambasted from all sides over the broadcast order – the Criminal Justice Branch dissented until prosecutors were bluntly told to forge ahead. Defence lawyers and political rivals have derided the order as a populist stunt.
But is now the right time for a revival of the debate on cameras in the courts, even if, as critics contend, it's for the wrong reasons?
"It's naive to say that it's totally appropriate to televise every trial. It is appropriate to televise aspects of trials. Certainly, I'm in support of that, depending on the circumstances," B.C. Supreme Court Chief Justice Robert Bauman said in an interview inside his third-floor office.
Chief Justice Bauman has stressed he can't talk about riot cases specifically. Those that have come up so far have been heard at Provincial Court, none have reached Supreme Court, and it would be improper for him to wade in. But he is unequivocal in his assertion that judges need to consider ways to improve courtroom accessibility.
He knows full well what it's like to step – or more accurately, sit – in front of the camera. Chief Justice Bauman resided over the polygamy reference case, the closing submissions of which were broadcast online last year.
He'd heard concerns that cameras in courtrooms could transform the proceedings into U.S.-style show trials. But he notes that lawyers in the polygamy case did nothing to bring disrepute to the court.
"I didn't have any concerns," he recalled. "The cameras were very small. I saw myself turning towards them once in a while. I wouldn't normally do that. But I got used to it very quickly. I thought counsel were extremely restrained. In fact, I thought they were more restrained with the cameras than they might normally be."
Premier's pledge
The morning after the riot, which was sparked by the hometown hockey team's loss in Game 7 of the Stanley Cup final and the seemingly free flow of alcohol in downtown streets, Ms. Clark toured the carnage. "I promise you this," the Premier sternly told rioters, "you won't be able to live in anonymity."
Four months later, before any charges had been laid as a result of the Vancouver police investigation, the Liberal government used the Throne Speech to call for television and radio access to riot-related court proceedings.
"When it comes to the Stanley Cup riots, those guys had no problem doing their crimes quite in public with all kinds of people taking pictures and doing videos all around them, so I think they should have no problem being tried in public either," the Premier told reporters on Oct. 4.
The first of the broadcast applications will be heard on Feb. 10 in Vancouver Provincial Court, for the sentencing hearing of Ryan Dickinson. Mr. Dickinson last month became the first person charged in connection with the riot to enter a guilty plea. He faced one charge of participating in a riot and one of breach of recognizance connected with an earlier assault charge. In exchange, the Crown agreed to drop two counts of mischief over $5,000. Eric Warren, Mr. Dickinson's lawyer, has said even with the plea deal, his client expects to serve jail time.
Mr. Warren said his client would oppose any application to have his image broadcast. (Other lawyers have followed suit, although their clients have pleaded guilty.) Supreme Court guidelines say written consent of named parties is necessary for a broadcast application to be approved. The Provincial Court is free to make its own decision, although it can use the Supreme Court as a reference point.
The early broadcast applications are expected to set a precedent.
B.C.'s Legal Services Society has retained criminal lawyer Greg DelBigio to handle broadcast arguments for those using legal aid, such as Mr. Dickinson. Mr. DelBigio declined to be interviewed ahead of next week's hearing.
He wasn't alone in that regard. When a Globe and Mail reporter asked about the riot cases this week, Ms. Clark walked away. Attorney-General Shirley Bond turned down repeated interview requests.
Case opened the door
Dan Burnett was the media lawyer who successfully argued for cameras in the courts in 2000. The Korean sailors were eventually found not guilty of smuggling Chinese migrants into Canada.
In an interview, Mr. Burnett said he's somewhat surprised at the slow pace of the debate since then. The rest of the world has embraced the electronic age, he said, while B.C. courts toil in the pencil and paper era.
"Like most things in the court system, there's a whole lot of tradition and a whole lot of resistance to changing the way we do things, so it can take a long time for a change in the way the world works outside the courts to be reflected inside," he said.
Mr. Burnett, who also argued for the broadcast in the polygamy reference, said one of the ways for change to occur might be for the Crown, as it will in the riot cases, to ask for it.
Whatever the outcome, he expects much more progress in the coming decade when it comes to technology in the courts than in the preceding one.
"Ultimately, it's going to change. It has to. It's just the way the world is these days," he said.
Privacy is a concern
The Supreme Court of Canada has permitted television coverage of all its hearings since the mid-1990s. But, as Chief Justice Beverley McLachlin remarked during a speech at Carleton University this week, an appellate court's proceedings are much different from those of a trial court.
Chief Justice McLachlin said one concern is the privacy of victims and witnesses "who may be transformed from quiet citizens to dinner-table topics overnight." Witnesses might also be tempted, consciously or unconsciously, she said, to tailor their evidence to be viewed in a more favourable light.
"The Supreme Court's experience with television and webcasting has been positive," the chief justice said. "However, this does not mean that other courts ought necessarily to follow our lead. … We hear no witnesses. With our fixed cameras, there is no possibility of disrupting the decorum of the court, nor, given the nature of the debate before the court, any real risk of sensationalization or trivializing the hearings."
Bentley Doyle, communications director for the Trial Lawyers Association of B.C., said the group's members are split on cameras in the court. Mr. Doyle said more members might accept riot cases being broadcast if the Crown was asking for only sentencing to be public. Prosecutors will request other parts of trial proceedings be broadcast as well.
Chief Justice Bauman agrees privacy interests must be carefully weighed.
He reiterates he has no problem with parts of trials being televised, opening the courts up in a way rarely seen since 2000.
"Speaking personally, because I can't tell judges what to do, I can see a role for television in opening statements, in closing statements, possibly with the approval of an accused person in a bail application," he said. "I can see it on the civil side, in important constitutional cases, perhaps the whole thing being televised because there aren't these privacy issues involved and it's more like the Supreme Court of Canada. I think there's lots of room to advance the cause for cameras in the courtroom."
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If you broadcast it, will they watch?
For all the debate about cameras in courtrooms, the lingering question is whether people will actually tune in. The statistics from last year's polygamy reference case say yes – at least at first.
The first day that closing submissions were streamed online, Monday, March 28, B.C. Supreme Court said 2,616 people watched at least part of the proceedings. That number dipped to 2,308 a day later.
By the next Monday, the total dropped significantly, to 1,177. On April 11, the number of visitors was down to 597. On April 15, the final day of submissions, just 384 people tuned in.
"People want their news in bits and pieces quickly … so we shouldn't be surprised that the numbers weren't great," says Chief Justice Robert Bauman. "But if you're talking about an open court, that's what an open court is. There it is, people. Watch the whole stream, tune in when you like."
The riot cases would likely draw more viewers than the constitutional reference. The riot had a significant online presence, with websites appearing almost instantly to identify those involved and organize a clean-up.
But Leonard Krog, the NDP's justice critic, says he hasn't heard people clamouring for televised proceedings.
"I must tell you, I'm now in my 11th year as an MLA, and people have not been beating down my doors to have trials publicized," he said. "They beat down my doors about lenient sentencing, about the slow court system. They don't beat down my doors around the issue of whether or not criminal trials are televised."