A legal battle over audio and video recordings of court proceedings has attracted the attention of lawyers in Ontario, and may be headed to the Supreme Court of Canada. A recent ruling by the Court of Appeal for Ontario focused on “whether parties in this court are entitled to obtain and disseminate audio recordings of proceedings in this court on their own terms.”
“The answer is no,” said the ruling.
Michail is a former employee with the London District Catholic School Board, and became embroiled in a dispute with her former employer, in 2010.
Her union, the Ontario English Catholic Teachers’ Association, represented her.
However, Michail was unhappy with the union and filed an application with the Ontario Labour Relations Board “complaining of unfair representation.” The application didn’t succeed, and led to a course of proceedings the ruling described as “complex and irregular.”
In 2018, Michail had brought a motion before a Court of Appeal for Ontario judge to nix the requirement that she sign a standard undertaking to get two audio recordings released, of court motions that had happened in 2018.
She also sought to have a decision by Justice David Paciocco from September 2018 published on the court website. After that motion was dismissed, Michail had pursued a motion to review at the Court of Appeal for Ontario, which she also wanted video-recorded.
“Ms. Michail took the position that the constitutional principle that proceedings of the courts be open to the public (the 'open courts' principle) requires the court to permit video recording of its proceedings and dissemination of those recordings, subject to exceptions where justified. Accordingly, she argued, she was not required to provide any reason or justification for her request,” said the ruling. The ruling also noted that Michail had said the recording was needed “to keep judges and lawyers accountable to the public,” and that “publication of the recording is necessary for public education.”
“She argues that the open courts principle requires that video recording, streaming and archiving be permitted,” said the ruling.
Ultimately, however, the court disagreed with her.
Justices Paul Rouleau, Bradley Miller and Michal Fairburn described her motion as being “at root a dispute between private parties with little if any broader significance.”
“The open courts principle is one constitutional principle among many and is not automatically dispositive. Judicial discretion in this instance, like all exercises of judicial discretion, must be exercised in a manner that conforms to the requirements of the rule of law. . .,” said the ruling.
“This includes the requirement that the exercise not be arbitrary, and that it respect authoritative precedents and rules established in advance by other institutions.”
Michail told Law Times on May 13 she plans to seek leave to appeal to Supreme Court of Canada.
“Judges who are entrusted to uphold the law should not trample on fundamental rights of the vulnerable, obstruct justice, prohibit openness and free speech, conceal decisions and impede evidence/information gathering,” she says.
“The status quo is simply an egregious attack on our democracy, the integrity and transparency of the legal system and the rule of law in our country.”
Addison Cameron-Huff, a lawyer in Toronto who specializes in Blockchain technology, says the case illustrates the need for the courts to modernize.
“While the judge may be correct about the law, I think the rules that bar video recording in court should be updated to reflect the public’s expectations and technical capabilities of 2019,” says Cameron-Huff.
“Not allowing litigants to record proceedings means they have to rely on transcripts that are expensive and there’s almost no chance that a member of the public will get to see whether justice was done.”
Cameron-Huff says Ontarians “expect to be able to see how justice is made.”
“Courts should provide this as a part of their operations, the same way that our legislatures and the Supreme Court do,” he says.
“But as a first step, if people want to record their own hearings then they should be able to do so. Ontario should change the law, to show that justice is being done in the justice system.”
However, Brooke MacKenzie of MacKenzie Barristers in Toronto says the Court of Appeal’s decision was appropriate.
“While my personal view is that loosening the restrictions on recordings in court and their dissemination would improve public understanding of the administration of justice, I think the Court of Appeal’s decision got it right,” she says.
That being said, she says certain risks remain.
“For example, care will have to be taken to guard against recordings being disseminated out of context or in a misleading way . . . I think any reform needs to happen at an institutional level through amendments to the Courts of Justice Act and changes to the court’s practice directions, rather than through discretionary decisions seeking exemptions from the general rule,” she says.
Brian Gray, a spokesman for the provincial Ministry of the Attorney General, said he could not comment on the ruling.
“As this matter is still within the period to seek leave to the Supreme Court of Canada, it would be inappropriate to comment,” he said.