TELEVISION CAMERAS IN CANADIAN TRIAL COURTROOMS-DISCLOSURE

1. Introduction

   Few Canadian trial judges allow television cameras into their courtrooms. Some provinces may have legislation outlawing that practice. Those statutory provisions may offend the Charter since they interfere with judicial independence.
  It seems that criticism of the 1995 televised O.J. Simpson trial persuaded most Canadian courts not to follow its example.  Others say that the O.J. cameras were just recording the proceedings as they unfolded and there is no evidence that the cameras influenced the ultimate verdict. The main objection to the trial was the finding of not guilty. Many thought it wrong.
   For different reasons, this posting contends that cameras should be allowed into Canadian courtrooms, subject to any restrictions imposed by the trial judge.

2. Public courtrooms

   Courthouses and courtrooms belong to the public. It paid for them. They do not belong to the government, the judges or the lawyers. As owners, members of the public have the right to know what takes place in these courtrooms by observing trial and appeal court proceedings. Few do so because they either must be at work or they have other things to do.
  Should they ever venture into a courtroom they often have to sit on hard wood benches. Antiquated public address sound systems make it difficult for spectators to hear judges, witnesses and lawyers. After a few minutes most leave.

3. Informing the public by television

   There is no evidence that properly organized and installed, TV cameras affect the quality of justice. Locating pin point swivel cameras in the ceiling corners of a few court rooms is unobtrusive. Judges would retain the right to control them if, for example, witnesses object to being televised.

4. American experience with televising court proceedings

   Many American states allow television cameras in their courtrooms. There are few objections from judges, lawyers or witnesses. Some say it improves the quality of justice since participants tend to act more professionally.

5. Extent of televised broadcasting

   Only a few pay for TV Channels broadcast American trials from beginning to end. Even then, they seldom broadcast all of a civil trial.
   Some local and network cable channels occasionally broadcast clips of criminal proceedings. Usually, these are confined to less than 60 second transmissions of such things as arraignment proceedings (pleas), judges’ decisions on guilt or innocence and sentencing.
   Channels such as American Justice on A&E frequently include clips of criminal trials and even interviews with jurors after the trial.

 6. American courtroom TV dramas

   Apart from a few local “court watchers” Canadians get their impression of criminal trial jury trials from fictionalized American TV programs such as Law and Order.
   In the first half hour of a Law and Order program, NYPD police officers usually solve the most serious and complicated crimes. In the second half hour, New York trial juries usually find the defendants guilty. Sentences rarely are discussed except at pre-trial plea bargaining conferences where in exchange for a guilty plea the prosecutor may offer a sentence of say 15 to 20 years for attempted murder.

7. Canadians’ understanding of their justice systems

   Many Canadians use TV or the internet as a news source. Without cameras in Canadian courtrooms, the public is left with two sources for their better understanding of a criminal justice system. One is the fictionalized American TV presentations of its criminal justice system. The other is viewing an occasional real world TV clip from an American TV channel.
   Reading about what happens in Canadian courtrooms does not carry the same message – a picture is worth a thousand words! As I have tried to point out on this site, Canadian judges and lawyers are handicapped in presenting a case as efficiently as their American colleagues because of Canada’s ancient rules of procedure and evidence or the lack thereof.
  Revealing this differences to the public by way of TV might help drag Canada’s criminal justice system from the 19th century into the 21st century.

8. New revelations on prosecutorial disclosure/discovery 

   Elsewhere on this site and I have tried to describe the many improvements that could be made to Canada’s criminal justice system. They would not only save taxpayers’ money, they would also result in fairer and more efficient trials.
   By constantly trying to improve my research techniques I sometimes run across new material. The following is an example. It relates to the pre-trial disclosure of information that prosecutors must reveal to defendants. And, it compares the American criminal trial system with Canada’s. 
  The subject does not fit neatly into the previous discussion of TV in the courtroom, but it is important enough to mention now.

9. American criminal law discovery/disclosure

   American police forces are not encumbered by any vaguely defined constitutional right of disclosure. They call it discovery. Most states have legislated discovery rules that police and prosecutors must follow. California is one example: California Penal Code: ss. 1054.1 – 1054.8: http://law.justia.com/california/codes/pen/1054-1054.10.html
   The codification of these disclosure/discovery rules makes it easier for California judges and lawyers to decide what should be disclosed and what need not be disclosed. And, they seem able to complete the disclosure process and trials within their case disposition standards. American courts have criminal trial case disposition standards that they strive to meet of 90% within 120 days of arrest; 98% within 180 days and 100% within 12 months
   Besides that all states have legislated speedy trial commitments. American defendants can insist upon receiving a jury trial within three months of arrest or the case against them will be dismissed.

10. Canadian criminal law disclosure/discovery 

   Canadian police forces carry the burden of “constitutional” disclosure rules whose details are not codified in any legislation. Instead, they are loosely defined by the Supreme Court of Canada on a case by case basis. On average it may take police about six to nine months to collect the evidence in a serious criminal jury trial case and then send it to the prosecutor. After that, prosecutors may require a few more months to decide whether the evidence is strong enough to proceed.
   Canadian criminal trial courts do not have speedy trial provisions or case disposition standards. Generally speaking, a Canadian defendant’s trial must start within about 18 to 24 months of arrest unless defendants are responsible for some or all of the delays. Then, it will take longer.
   Because of these differences, Canadians may better understand why serious criminal cases take so long to complete a trial after an arrest. Political and judicial leaders seldom offer any explanation.

Bottom Line:
1. Television is becoming the source of news for many Canadians who often do not have the time to read newspaper articles.
2. Televising portions of trials involving serious crimes or scandalous conduct would help educate the public on the workings of Canada’s criminal justice system.
3. There would then be a Canadian TV source of real life information for the public to consider as compared to the fictional sources coming from American TV programs.
4. This might bring pressure on Canada’s judicial and political hierarchy to institute reforms
5. All it would take is the installation of fixed cameras in two or three Provincial and Supreme (superior) Court courtrooms in each courthouse.
6. The federal Parliament should codify the disclosure process in our Criminal Code along the lines of the California Penal Code.
16 February 2009

CRIMINAL AND CIVIL JUSTICE SYSTEMS – A LACK OF LEADERSHIP

1. Introduction

   Over the past 10 or so years, media articles and public comments on the failure of our justice systems have increased in intensity. Without knowing who is to blame, public criticisms tend to focus on frontline trial judges and trial lawyers. Regrettably, leading politicians and senior judges usually tend to remain silent implying consent with the critics.
   This posting tries to point out that trial judges and trial lawyers do the best they can with the defective systems imposed upon them by the political and judicial hierarchies. In other words, the media and the public are shooting at the wrong targets.

VANISHING APPEALS – SUPREME COURT OF CANADA

1. Introduction

   Previous postings of 18 and 20 September 2007 discussed the vanishing civil and criminal trials in Canada’s superior courts. This one deals with vanishing appeals in the Supreme Court of Canada. Arguably, the main reason for the drop in the number of appeals heard by the Supreme Court of Canada resulted from significant reduction in civil trials and criminal jury trials.
   I will use B.C. as an example.

JUDICIAL INDEPENDENCE – CHIEF JUSTICES’ AUTOCRACIES – UNCONSTITUTIONAL PROVINCIAL LEGISLATION

1. Introduction’

   In a 1973 B.C. provincial statute, Chief Justices of the Supreme Court of British Columbia were given the power to directly and indirectly control their fellow trial judges. This posting contends that power effectively takes away the judicial independence of every other trial judge. It may result in new trials for criminal offenders tried and convicted since 1982 as well as for civil litigants since 1973.
   In 1993 I wrote an 81 page paper on this subject that remains unpublished. Some of the following observations can be found on this website under the Category “Court Organization” and dated 24 and 27 September 2007. Included here are a few of those previous comments for ease of understanding. Several times over the past 20 or so years I have approached provincial government officials and recommended they repeal the 1973 section. I was rebuffed.

ELECTING OR APPOINTING CANADIAN JUDGES?

1. Introduction

  Should Canada’s trial and appellate court judges continue being appointed by politicians or should they be elected by the people? This posting tries to sort out the pros and cons of both methods by examining the different systems in Canada and the United States.

REORGANIZING CANADA’S COURTS – PROVINCIAL APPELLATE COURTS

1. INTRODUCTION

The previous posting of 4 January 2008 dealt with restricting the Supreme Court of Canada to deciding constitutional issues raised in provincial appellate courts.This posting discusses the rearrangement of provincial appellate courts. It will preserve the present theoretical right of every appellant to have two possible appeals. At the same time, the new arrangement will concentrate more on developing the law to better meet the needs of the citizens in each province.

REORGANIZING CANADA’S COURTS – THE SUPREME COURT OF CANADA

1. Introduction
The organization of Canada’s courts comes from 1867 thinking when our Constitution was born. The arrangement no longer meets Canada’s’ needs. This posting deals with the Supreme Court of Canada (the SCC). Additional postings will look at Canadian provincial appellate courts provincial trial courts and constitutional reform.
The thrust of the following remarks is to reorganize all appeals from trial court decisions so that they stop at the level of every provincial appellate court unless they involve a constitutional issue or the interpretation of a federal statute.

A LETTER TO A FRIEND-REFORM OR STAGNATION

A short while ago a former colleague and dear friend of mine sent me a letter criticizing my Book "Exploding the Myths..." because it is "much too embarrassing." By that I think he means its revelations and recommendations are counterproductive because they disclose major flaws existing in our criminal and civil justice systems that are best not mentioned.

Instead he suggested I should be less confrontational and avoid using American justice systems as potential examples for the reform of Canada's criminal justice system and British Columbia's civil justice system.

If you choose to read further I copy the remarks I sent him in reply.

Chief Justices-Autocracies and Aristocracies-Part II

1.  Introduction

This is a continuation of the previous posting concerning the powers that Chief Justices exercise over their colleagues and the special advantages that go to those who are Chief Justices.

Chief Justices-Autocracies and Aristocracies-Part I

CHIEF JUSTICES AUTOCRACIES AND ARISTOCRACIES-PART I

This posting deals with the appointment of Chief Justices and their absolute control over the administration of the Supreme Court of B.C. For ease of reading, I usually try to keep postings within one to three pages. Due to the importance and length of this topic I am dividing it up into two postings.