Media and the Courts: In Pursuit of Rights
Abella, Rosalie Silberman, Canadian Speeches
Justice, Court of Appeal for Ontario
The news media and the courts are both seen as central to a properly functioning democracy. Both have been vital in advancing rights. But there are differences. The media is said to have greater power, more freedom to illuminate whatever issues it chooses, but less independence. The courts are not accountable to public opinion, but are accountable to public interest. The argument that courts should interpret but not make law is rejected: the very act of interpreting is said to make law. Also rejected is the argument that the courts are becoming politicized as a result of the Charter of Rights and Freedom: the courts are said to be what they have always been, reviewers and interpreters of society's rules as established by legislation. Address to the Canadian Club of Toronto, The Empire Club of Canada, and the Canadian Journalism Foundation, Toronto, April 21.
What I have to say will necessarily contain generalizations that will give new meaning to the word "sweeping," all to accommodate limitations of time and expertise. So I ask for your indulgence in advance and hope that the wide brush strokes I use to fill my canvass don't offend your sense of perspective too much. I acknowledge too that there are varieties of media, courts, and even publics, but because I tend to treat them in this talk as monoliths, I accept in advance any criticism flowing from my failure to make distinctions between them.
There are many ways to approach this topic, most of which I'm not allowed to talk about. The question of gag orders, prior restraint, cameras in the courtroom, fair trial versus free press--all of these are the classic aspects of a media-court relationship and have been much written about. Since there is nothing I can offer about these high-profile preoccupations without attracting the attention of the Judicial Council, I had to find another way to address the issue. The second tier in the relationship is the one which acknowledges the importance of the media to the courts and focuses on how best to keep the relationship open and healthy. This is the layer that addresses the need for more co-operation from the judiciary; a greater willingness to make more accessible its systems and its language; a greater role in training journalists who cover the courts, as Chief Justice Lamer suggested several years ago; and better clarification of the permissible limits of media conduct while a case is before the courts. All these are approaches I agree with, but all these too have been canvassed extensively and enjoy, I think, a healthy consensus from the judiciary. It is, after all, hard to quarrel with the theory that justice must not only be done, it must be seen to be believed.
It is to the third layer that I want to address myself; the foundational one that examines the respective institutional roles of the media and the courts.
For me, any discussion of the relationship between the media and the courts makes no sense unless we start with first priorities. Without this intellectual grid, any discussion of the other two layers takes place without context and we are left in a perpetual and frustrating state of adversarial misunderstanding.
In many ways, the media and the courts perform analogous functions. We both watch the public; we both judge it; and we both attract criticism when our observations or judgments offend someone's alternative perspective. We are both expected to be fair, impartial, and independent of the persons we are observing or judging. We are both accepted as being central to a properly functioning democracy and we are both, from time to time, resented for this centrality.
But there are also fundamental differences. The courts operate according to accepted legal standards and principles and can be judged accordingly; the media, which regrettably under-reaches by treating itself as a trade rather than a profession, operates according to no overriding code and cannot as easily therefore be held to account. …