Nathan Gorham is a criminal defence lawyer and a doctoral candidate at the University of Toronto.
The Jian Ghomeshi trial is not accessible for the vast majority of Canadians. Those who would like to watch the trial need to wait in line for a ticket. Many are not admitted, as space is limited. Although the trial is being held in a large courtroom with an additional viewing room, there are not enough seats to accommodate every person who would like to watch.
This is unfortunate because the stakes surrounding this trial are high – both for Mr. Ghomeshi and for public confidence in the criminal justice system. In the end, those interested in the trial and what it says about the justice system are left to rely on media reports and social media commentary.
So far, Twitter has been a valuable source of information and discussion. In the days leading up to the trial, various commentators shared their views concerning unfairness in sexual assault trials. After day two, with each statement from the witness and question from the lawyer being tweeted in real time, this is how many Canadians are watching – through the lens of others, liking and retweeting and commenting on whether that was a smart line of questioning, whether the witness was lying or whether the defence lawyer was unnecessarily harsh. Two days into the trial, it's clear that live-tweeting from the courtroom is satiating Canadians' appetite for details.
But my fellow lawyers on Twitter had a different takeaway from the non-stop tweets. They felt live-tweeting leaves too much room for interpretation, something television would not do. Indeed, courts should reconsider using live TV in courtrooms – a far better medium for allowing the public to view the trial.
Television cameras are never used in Canadian criminal courts – they were used once in British Columbia for a constitutional challenge, and are used in Supreme Court proceedings – but the arguments for televised hearings are strong.
During a 2012 speech, Chief Justice Beverley McLachlin explained that live broadcasting of Supreme Court hearings had "opened the court to many citizens across the country" and had "contributed to public confidence." Amy Salyzyn, now a law professor at the University of Ottawa, has argued that having video and audio of courtroom proceedings "greatly enhances the journalistic coverage of court proceedings in electronic media forms."
The Ghomeshi trial vividly underscores the argument that live television broadcasting would promote better public understanding, enhance journalistic coverage and contribute to public confidence in the criminal justice system.
The public has now been exposed to two competing narratives concerning unfairness in Canadian sexual assault trials. One side argues that sexual assault complainants are routinely subjected to abusive defence strategies – "browbeating" (as one lawyer put it), invasions of privacy and questioning that is grounded in myths and stereotypes. These types of strategies, it is argued, deter victims from reporting the abuse to police.
The other side contends it is a myth that defence lawyers are permitted to treat sexual assault complainants unfairly. Breese Davies, a vice-president of the Criminal Lawyers' Association, argues that private records are seldom produced to the defence; abusive cross-examinations are rare "because most defence counsel see little to be gained by 'beating up' a complainant"; and questioning concerning prior sexual activity is precluded in all but rare cases.
It is surely difficult for the public to decide between these two competing views. But if the Ghomeshi trial were broadcast live, it would have provided a unique opportunity to foster public understanding of the process. Instead, the public is left to rely on immediate social media reporting.
Live-tweeting is useful, but reading a sentence on a screen, through the filter of another person, isn't the same as witnessing something for yourself.
If hearings were broadcast live, anyone who wanted to decide for themselves whether the criminal trial process is fair would not have to stand in long lines to compete for a ticket or try to decipher what is actually happening on social media. Instead, they could simply bear witness.