Academic journal article Canadian Public Administration

Navigating the Principle of Open Court in the Digital Age: The More Things Change, the More They Stay the Same

Academic journal article Canadian Public Administration

Navigating the Principle of Open Court in the Digital Age: The More Things Change, the More They Stay the Same

Article excerpt

Introduction

The principle of open court is a key element of access to justice. Open court is fostered by allowing the public to attend court, and through media reporting on court activities. Despite the integration of technology in many political institutions, the courts have not only been very slow adopters, in some instances they have actively resisted technological change. The Supreme Court of Canada provides live online streaming of its proceedings, yet it is exceptionally rare for lower trial and appellate courts to do so, and television cameras and live photography are often expressly prohibited (see R v. Stanley [2018] S.J. No. 95, paras 53-61). The lack of technological openness of the lower trial and appellate courts merits further scrutiny considering that most legal matters are not appealed to the Supreme Court of Canada and most individuals who access the justice system do so at the lower courts. While it was once thought that Canada was "poised to allow cameras into its courtrooms" (Metz 1996: 683), Canadian courts have all but missed the broadcast age. But what of the digital age? There is a normative debate in the legal studies literature about the extent to which Canadian courts should embrace digital technologies. Digital technologies in the courtroom bring to the fore tensions between the open court principle and administrative independence of the judiciary.

Digital technologies could impact the functioning and administration of courts in a variety of ways, including the use of electronic records, (1) the admissibility of electronic documents, the ethics of the social media accounts of judges and courts, and live-tweeting by journalists (Eltis 2011; Coughlan and Currie 2013; Sossin and Bacal 2013; Harada and McGuire 2016). While all of these areas are understudied, we explore one use: "live text-based communication." Live text-based communication refers to the use of an internet-enabled device (e.g., smartphone, tablet or laptop) to transmit text-based information, in real-time, from inside the courtroom to audiences outside of it. This would include live-tweeting, live-blogging or live-posting on Facebook. For instance, journalists have live-tweeted high-profile criminal trials such as R v. Ghomeshi (2016) (Small and Puddister 2018), and law professors frequently live-tweet Supreme Court cases (Dodek 2016). In the digital age, it might seem archaic to focus solely on text-based communication. Cell phones and digital cameras alongside apps such as YouTube, Instagram and Snapchat have made it extremely easy create and share audio and video. We focus on text-based communication because the courts do so. The term live text-based communication comes from the document Practice Guidance The Use of Live Text-Based Forms of Communication (Including Twitter) from Court for the Purpose of Fair and Accurate Reporting (Lord Chief Justice of England and Wales 2011) which explicitly excludes audio and video. Moreover, audio and video are rarely permitted by Canadian courts (McFeat 2010; Scotti 2016, CBC v. Canada [2011] 1 SCR 19), and court policies tend to separate audio and video from live text-based communication.

Through a systematic review of policies administering live text-based communication, we consider the extent to which Canadian courts have embraced digital technologies within the context of open court. We argue Canadian courts have and have not responded to the changing digital landscape. Our analysis of the policies shows that most courts have established a "presumptive right" of the traditional media to use live text-based communication. That is, journalists are able to live-tweet and live-blog trials without seeking permission from a judge or courthouse staff. In this sense, Canadian courts have responded positively to digital technologies. However, open court is not just about the media, it is also about the public. Digital technologies have the capacity to open the court by making it possible for new actors, not members of the media, to engage with judicial proceedings in ways not possible in the pre-internet age. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.