January 9, 2012
R. v. Schertzer et al

The Toronto Star and the CBC applied for various relief related to their intended coverage of this trial, proposing the use of electronic devices by journalists, to record portions of the proceedings in which they were interested, for the purpose of supplementing or replacing handwritten notes.

At paragraph 2, Justice Pardu cites Section 136 of the Courts of Justice Act which prohibits the making of audio recordings at a court hearing but goes on to cite Section 136 (2)(b), which provides that this prohibition does not extend to: b) “a lawyer, a party acting in person or a journalist from unobtrusively making an audio recording at a court hearing, in the manner that has been approved by the judge, for the sole purpose of supplementing or replacing handwritten notes.”

Pardu J. goes on to cite Section 136(1)(b) of the Courts of Justice Act, at paragraph 4, which prohibits the broadcast or reproduction of such recordings made to supplement or replace handwritten notes.

In addition, Justice Pardu finds that a Practice Direction approved by the Ontario Courts Advisory Council on April 10. 1989, continues to be in force. This practice direction regarding recordings of Court proceedings by a Solicitor, a party acting in person or a journalist permits recordings:

[5] Subject to any order made by the presiding judge as to non-publication of court proceedings, and to the right of the presiding judge to give such directions from time to time as he or she may see fit as to the manner in which an audio recording may be made at a court hearing pursuant to s. 146 [now s. 136] of the Courts of Justice Act, the unobtrusive use of a recording device from the body of the courtroom by a solicitor, a party acting in person, or a journalist for the sole purpose of supplementing or replacing handwritten notes may be considered as being approved without an oral or written application to the presiding judge.

While defence counsel objected to the transmission of information from inside the courtroom, ie. “blogs”, on the grounds that it would make an order for exclusion of witnesses futile, Justice Pardu finds that:

Para 7 The reality is that the trial is an event open to the public. There is nothing to prevent any person from telling others what he or she heard witnesses say in the courtroom, and there is an expectation that any matters which take place in front of the jury may be reported in as much detail and at such time as the journalist thinks appropriate. Whether the journalist steps into the hall for a moment to transmit the information, or does so unobtrusively in the courtroom will make no difference to the degree of publicity the trial receives. Provided that the proceedings are not disrupted, I authorize transmission of data from within the courtroom. There is a qualitative difference in the nature of the reporting, in this era of newspapers accessible on the internet, but I see no reason why this should be treated differently as a matter of principle.

On the issue of journalists right of access to exhibits, Justice Pardu rules that private and personal information shall not be published, however, journalists have the right to a copy of the exhibits:

Paragraph 13 … upon their undertaking not to publish the content of those documents before the jury retires unless there is sufficient evidence determined by me to admit the document into evidence before the jury.