Media restrictions in courthouses does not obstruct freedom of expression

Rules of practice implemented by the Superior Court of Québec three years ago that prohibit media from using cameras and conducting interviews except in designated areas of the courthouse as well as ban the broadcast of recordings of hearings were recently upheld by the Québec Court of Appeal.

In a case exceptionally heard by a panel of five, with four judges providing reasons, the Court unanimously held that media activities such as filming and performing interviews in the courthouse were not protected constitutional rights. The Court, however, was divided over whether the rule of practice that barred the broadcast of recordings made during hearings was constitutionally valid.

“The right to the most gripping news does not exist,” said Chief Justice Michel Robert. “I do not believe that the requirement of capturing images and holding interviews in designated areas in a courthouse obstructs freedom of expression.”

According to Raynold Langlois, counsel to Québec Superior Court Chief Justice François Rolland, the ruling is “very important” because it raises the “very delicate question” on the need to grant access to the courthouse to the public while ensuring that the administration of justice is not perturbed.

“By recognizing the validity of the rules of practice that adopted by Québec Superior Court judges, the Court of Appeal essentially recognizes that there was a problem that had to be settled,” said Langlois of Langlois Kronström Desjardins.

Before the rules of practice came in force, journalists, cameramen and photographers basically had “free rein,” and were allowed to use their equipment throughout the premises of Québec courthouses, with the exception of courtrooms.

Exasperated by the havoc wreaked by hordes of media covering high-profile trials, Québec Superior Court justices adopted during a general assembly in October 2004 a directive that amended the Rules of practice of the Superior Court of Québec in civil and criminal matters, a move that was emulated by the Québec government when it introduced on June 2005 a directive over decorum and keeping of order in courthouses. The directive, though, issued by the Québec Ministry of Justice does not forbid the broadcasting of recordings made during hearings.

A slew of media firms joined forces and contested the rules of practice on several fronts. The media contended that the directives were contrary to the principles of administrative law. In other words, it maintained that Superior Court did not have the power to enact rules of practice that oversaw conduct outside the courtroom, and nor did it have the legislative or inherent power to ban the broadcasting of recordings made during hearings. Further, it argued that the rules infringed the constitutional guarantee of freedom of expression, including freedom of the press and other media of communication set out in s.2(b) of the Canadian Charter of Rights and Freedoms (Charter), and s.3 of the Québec Charter of Human Rights and Freedoms. The communication firms sought to “set aside” the rules of practice, and at the very least introduce rules that would allow the broadcasting of recordings during hearings as is the case in Quebec Court.

“As the respondents willingly recognized, it is not that freedom of expression and freedom of the press are incompatible with courthouses, but rather certain modes, actions or means used by the appellants,” said Justice Robert. “Even if I am of the opinion that there is a place in courthouses for freedom of expression, this cannot be absolute, without limits and without restraint.”

The Court found that confining journalists to film within designated areas does not prevent journalists from reporting courtroom proceedings, and does not encumber democratic debate and the search for truth. As a result, the Court overturned the trial judge’s finding that the rules of practice contravened s.2(b) of the Charter but found that the provincial government and Superior Court had reasonable justification under s. 1 of the Charter.

In short, as points out Barry Landy, the Court determined that media activities in courthouses are not protected constitutional rights. “So the Superior Court did not have to justify itself that what they did was permissible because it is not a protected right under s.2(b) of the Charter,” explained Landy, counsel to the media companies.

That finding is a precedent, says Nathalie Benoit of the Attorney General of Canada. “That conclusion, while it has been held in many U.S. states, is new in Canadian jurisprudence.”

The ruling, besides “recognizing the powers of judges” to adopt rules of practice that can extend beyond courtrooms, also highlights the special nature of the courthouse, says Langlois. “The important feature of the judgment is the recognition that a courthouse is not public building in the sense you can do anything you want in that building,” said Langlois. “It is a public building with a special purpose – rendering justice. And it must be an environment which will allows justice to be done while ensuring that is open.”

The Court, however, was divided over the constitutional validity of the rule of practice that forbade the broadcast of recordings of hearings. In a dissenting opinion, Judge Marie-France Bich held that it was not. Judge Bich believes that certain witnesses, when testifying, should not come under the prohibition. Judge Joseph Nuss, who also would have allowed the appeal in part, says that the “reading down principle” should be applied as a constitutional remedy in this appeal.

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