The Saturday Debate: Should cameras be allowed in Canadian courtrooms?

YES Taylor C. Noakes Public historian

While there’s nothing like a televised celebrity defamation trial to bring about the doomsayers lamenting the end of Western Civilization, the debate over television cameras in the courtroom need not be restricted to the interests of television tabloids and their legions of viewers. Many of us have an interest in allowing courtroom proceedings to be recorded and broadcast for public consumption.

The public demand for law enforcement and justice system accountability and transparency is at an all-time high, brought on because our faith in the justice system is at an all-time low.

Where we once suspected the police of incompetence, corruption, and all too often using brutality as a first resort, we now have a seemingly endless supply of audio-visual proof our initial suspicions were correct. Though this new reality hasn’t led to the wholesale overhauling of police forces that reformers would like, there has been a noticeable drop in public confidence in the police, both in Canada and the United States, since 2020. Perhaps more significantly, there is now a broad societal conversation about defunding police forces and addressing inherent bias in law enforcement, corrections, and the justice system in general.

Allowing cameras into Canada’s courtrooms is the next logical step in the effort to bring accountability, transparency, and hopefully reform to Canada’s justice system. Television cameras in the courtroom would make the halls of justice far more accessible to the very public the judicial branch of government is supposed to serve. Furthermore, it would allow members of the public — particularly reformers and those who fight to overturn wrongful convictions — to critically analyze the conduct of prosecutors, judges, juries, and witnesses. There is an immense public good to be had here.

If recording and televising trials reveals evidence of bias, perjury, and/or ineffective council that ultimately results in overturned convictions and innocent people regaining their freedom, it will be worth it. Some of Canada’s most high-profile wrongful convictions — including those related to the disgraced pathologist Charles Smith — might not have occurred were the trials televised and more open to public scrutiny.

Moreover, knowing as we do that Black Canadians, Indigenous Canadians and other Canadians of colour routinely face harsher sentences than white Canadians, demands that courtroom conduct of judges, prosecutors, and police witnesses, be placed under the microscope. Broadcasting trials for the public’s benefit may serve to prevent misconduct in the first place.

While cameras should be allowed in the courtroom, certain precautions would have to be taken. In cases where children are involved, trials could be videotaped for use by accredited professionals subject to a judge or review board’s approval, but would be prohibited from broadcast. Sexual crimes of any kind would likely face similar restrictions to protect the identities of witnesses and victims, as well as to prevent such cases from becoming lurid and exploitative spectacles.

Certain provisions would have to be taken to prevent the actual presence of cameras themselves from exerting any kind of influence on the proceedings of the court, such as witnesses modifying their testimony to appeal to public sentiment.

First, small, discrete cameras, more like the ones you might find connected to a home security system than those you would find in a television studio, would be preferable. The point is to have a clear record of the proceedings of the trial, not dramatic close-ups of witnesses or defendants reliving moments of pain, anguish or embarrassment tailored for the viewing public.

Second, the cameras ought to be hidden from sight.

Third, the defendant ought to retain the exclusive right to veto broadcasting the court proceedings, given that there’s an inherent societal bias against defendants. To ensure the defendant’s choice to veto broadcasting of the trial wouldn’t be interpreted as a sign of guilt, the decision would have to be kept from the jury, and possibly from both the prosecutor and the presiding judge as well.

This shouldn’t be about ratings: accountability and achieving a higher degree of justice are the goals.

The challenges posed by cameras in the courtroom are not so great that they cannot be overcome, particularly when doing so would give us our best shot at identifying, and hopefully overcoming, the pervasive injustice a lack of transparency creates.

Taylor C. Noakes is an independent journalist and public historian from Montreal.

NO Pam Hrick and Rosel Kim Women’s Legal Education and Action Fund

This spring, a captivated — and often vicious — audience watched the televised defamation trial between Johnny Depp and Amber Heard unfold in real time. Clips of testimony were “memeified” and became ubiquitous on social media, along with mocking and often degrading commentary that treated the trial as entertainment, rather than a solemn court proceeding.

The virality of this trial has led some to suggest it may be time to allow cameras in Canadian courtrooms. As representatives of a national non-profit organization advocating for gender justice through litigation, law reform, and education, we have serious concerns.

In Ontario, taking photos or video recordings of a court hearing is prohibited under the Courts of Justice Act. This also applies to taking screenshots or rebroadcasting Zoom trials. Exceptions are limited.

A notable one is the June 2020 livestreaming of Justice Joseph Di Luca’s judgment in R. v. Theriault. Over 20,000 viewers tuned in to watch, which speaks to the public’s interest in the administration of justice.

Proponents of cameras in courtrooms argue that cameras enhance the open court principle by making court proceedings more accessible to the public.

However, this increased access would come at a prohibitive cost for trial-level proceedings, particularly those involving witnesses, jurors, defendants, and/or self-represented litigants. There is a real risk that broadcasting proceedings will contribute to the growing threat of disinformation that is rooted in systemic oppression like misogyny by creating footage that can be edited and distorted for audiences online.

Broadcasting a trial is different from broadcasting a judgment or appeal. A trial often involves parties and witnesses sharing sensitive, private, and/or traumatizing evidence. For this reason, the trial process can be another source of trauma for survivors of sexual and intimate partner violence, where they are asked to recount the violations they experienced in painstaking detail, then have their accounts and credibility questioned and picked apart in cross-examination.

Adding cameras in the courtroom would result in survivors being further disempowered. Their evidence and demeanour would be distributed widely for deep scrutiny and invasive commentary — especially if their cases involve high-profile parties and disturbing details — thanks to the broad reach of social media platforms. These platforms have long been central sites of violence, harassment, and abuse against women, trans, gender-diverse, and racialized people.

The Depp v. Heard trial demonstrated the extent of social media’s toxic and distorting impact, with content creators using the trial to boost their own influence at the expense of the truth-finding process and the parties’ well-being.

Her conduct on the stand was also scrutinized and ridiculed as evidence that she lacked credibility, while, hashtags like #AmberHeardLiar and #AmberHeardisanAbuser trended on social media. This not only threatened the truth-finding aspect of the trial, but the safety and well-being of someone who came forward with intense accounts of trauma.

Broadcasting trials could also incentivize some witnesses to play to the camera. We saw Depp acknowledging and effectively performing during the trial, leading to viral clips being circulated. We cannot overstate how this performative conduct undermines the seriousness of a trial.

Finally, the popularity of the true crime genre has created a new norm of people weighing in on current and closed cases, attempting to determine innocence or guilt on their own and share theories about what “really” happened. Having cameras in courtrooms would intensify this phenomenon to the point of impacting the fairness of the trial.

We live in a time where tragedies and traumas are turned into viral content for entertainment at survivors’ expense. Adding cameras to court proceedings would make this worse. The benefits of cameras simply do not outweigh the costs.

Pam Hrick is the executive director and general counsel of the Women’s Legal Education and Action Fund (LEAF). Rosel Kim is a staff lawyer at LEAF.