International Law

?Breaking the Fourth Wall?: Cameras at the Supreme Court

By Daniel Del Gobbo

Weighing in on the Webcasts

Visitors to the Supreme Court of Canada?s website in recent months will have noticed that they can newly access webcasts of oral arguments before the bench, as first reported here by Rebecca Ross for TheCourt.ca. Since February 9, 2009, the Supreme Court has streamed all counsel?s submissions and judges? questioning in permitted cases.

This development is an exciting one, as it offers court-watchers adverse to Ottawa?s climes or impatient to order videos through more official channels a convenient alternative in reviewing oral arguments. Now the Main Courtroom at 301 Wellington is but a few mouse clicks away.

In my view, the Supreme Court does well to illuminate part of the reasoning process behind its decisions. In doing so, however, the SCC revives popular debate surrounding cameras in the courtroom. And while much of the clamour concerns the effects of recording defendants, victims, and laywitnesses in criminal trials ? all moot issues in our high court, which does not hear live testimony ? arguments against the webcasts seem largely without merit.

Affecting How We Perceive Justice

The judiciary seems by many accounts a relatively impenetrable branch of government. Staffed by life appointees who are afforded little media exposure in their interpretations of law and policy, Canadians are often unwilling to engage or feel unable to engage productively with the courts. However, by recording oral arguments and questioning online, the Supreme Court invites potential observers, especially those working or otherwise unavailable during its actual sessions, to experience the judicial decision-making process on their own time.

If only in some small measure, informing popular perceptions of justice may actually help increase access to justice. Observers may be emboldened by the transparency of the Supreme Court?s new initiative, the comprehensibility of oral arguments, or the sensitivity of justices in asking questions. Further, observers may better understand that the process by which the court?s decisions are made involves an intricate weighing of opposing arguments and mitigating social, operational, and policy factors. This understanding may engender an appreciation for the process which runs deeper than that which they could feel reading case commentary, whether it be in one of Kirk Makin?s columns, the Canadian Abridgment Digest, or even ? dare I say it ? on TheCourt.ca. For these reasons, transmitting oral arguments via webcast cannot help but instill greater public confidence in the judiciary.

Improving Quality of Legal Education

Perhaps more tangibly, these newly accessible materials will be of practical utility to academics. In developing their own skills, teachers and students of many legal subjects, and especially trial advocacy may draw from the Supreme Court?s video reserve of counsel exemplifying the finer points of persuasion.

(In what may be equally useful to academics, these newly accessible materials will create a similar video reserve of ineffective approaches to trial advocacy. Seek out a recording of the province?s counsel in Vriend v. Alberta, [1998] 1 S.C.R. 493 for an extraordinary example ? his grilling by the court is quite unlike anything I have ever seen.)

A Note of Apprehension?

As I mentioned earlier, the most familiar objections to cameras in the courtroom surround complications arising the recording of defendants, victims, and laywitnesses in criminal trials. These include that criminal defendants? unnecessary exposure builds prejudice before a verdict is rendered, victims and witnesses are exploited by a sensationalist media, and victims and witnesses may be disinclined to testify because their painful recapitulations would be recorded and published, among others.

I concede that these concerns militate very strongly against video recording testimony in certain trials, notwithstanding any improvements in access to justice or the quality of legal education flowing from the recordings. However, as the Supreme Court only ever hears oral arguments delivered by counsel, these concerns are not triggered and I am able to recall only one other applicable objection to its webcasts. Rebecca Ross contends that a comprehensive video record of all arguments and questions may unduly circumscribe the high court in future, apprehensive that its decisions do not accord with the tone of legal questioning or discussions it adopts during session.

I must admit that at first rub, this objection seems fruitless. There exists no expectation that in deciding cases, Supreme Court justices adhere to the same lines of reasoning they entertained when questioning counsel. Rather, the expectation is that they entertain all arguments, considering and perhaps espousing one before refining or disregarding it, until reasons are developed upon continued research and reflection with other justices. I do not believe that their performance during questioning will result, or has resulted in “less candid discussion and more cautious judgments from the court.”

Commending the Court

As an aspiring trial advocate and avid court-watcher, I cannot but commend the Supreme Court for its positive strides toward improving access to justice and our quality of education, if only in some small way, by posting webcasts of oral arguments. It may be yet too early to tell their precise impacts, but let us at least hope they accord with the court?s intent.

Full post as published by The Court on July 15, 2009 (boomark / email).