Tuesday, January 17, 2012

Should the Stanley Cup riot hearings be televised?

Michael Sporer
The Canadian Press reported today that the lawyer of a Stanley Cup rioter is fighting an application by the B.C. government that would allow the proceedings to be televised. Michael Sporer, an instructor in the Legal Studies program at Douglas College, gives his take on whether or not cameras belong in the courtroom.

By Michael Sporer

“Those guys had no problems doing their crimes in public ... they should have no problem being tried in public either.” –Premier Christy Clark

While the premier should be commended for re-igniting an important debate about the nature and limits of our open courts in this era of advanced technology, neither half of her observation should be embraced by free citizens.

As to the first half of the passage, whether television cameras should be in the courtroom has little to do with whether the alleged crimes were committed in public. It matters not whether an accused is alleged to have kicked in the window of a store in full public view, or is alleged to have secretly and quietly placed a bomb on a commercial jet. The public nature of the alleged act is a distinction that should make no difference. A person who serially kills women behind closed doors on a farm has no sound basis for arguing some higher moral right to privacy during his criminal trial.

Indeed, we ought to be very careful here: anything that smacks of an ad hoc approach to this important matter, particularly one guided by the whims and preferences of political rulers, may violate an important foundation of the rule of law: the notion that state action ought to be subject to rules of general application that are equally applicable to all. 

The second half of the premier’s passage indicates that accused persons should not be heard to complain. But so what if they do? If television cameras and modern recording devices are consistent with our longstanding tradition of open trial courts, the choice of whether to have television cameras in the courts ought not to be left to the accused.  

The real question is: how do we apply our important and longstanding tradition of open courts in this technologically advanced age, in the presence of an increasingly powerful criminal class, and a sometimes irresponsible and often superficial electronic media?

The answer: we should apply our open court principles, and apply them robustly. Jeremy Bentham’s (1748-1832) arguments in favour of open courts remain essentially sound and should be applied to permit television cameras in the courts. While the result will not be perfect, critics would be wise to remember the words of Karl Popper (1902-1994), who wrote in The Open Society and Its Enemies:

“Our dream of heaven cannot be realized on earth …. we must try to fortify ourselves with a clear understanding of the simple decision before us. We can return to the beasts. But if we wish to remain human, then there is only one way, the way into the open society. We must go on into the unknown, the uncertain, and insecure ….”

Importantly, the inclusion of television cameras will anchor our courts to their traditional openness at a time when many institutions that protect our free and open society face powerful emerging internal enemies. 

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