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will always be up to the presiding
judge to decide whether tweeting
or the use of wireless devices will
be permitted in his or her courtroom during proceedings.
In the report, Justice Heeney,
one of the first judges to permit
live tweets by the media during the
2009 Bandidos trial in London,
Ont., noted his “grave concerns” as
to whether tweeting is worth associated risks (for his trial, journalists tweeted from a nearby room
with an audio-visual feed).
He said one significant risk is
the potential for mobile devices to
interfere with digital recording of
the court proceedings. “The court
record is sacrosanct and anything
that might compromise that record must not be permitted,” Justice Heeney stressed in the report.
Moreover, instantaneous live
texting ramps up the risk that
statutory bans, or court orders
relating to the evidence, might
be circumvented. “These risks
are real, [but] these concerns
virtually disappear if the pro-
ceedings in question do not
involve the taking of evidence,”
Given that the current system works so well
to fully inform the public, is twittering really
worth the many risks that it presents?
Ontario Superior Court Justice Thomas Heeney
cial officer but that, in principle,
permits live updates by anyone in
the courtroom, subject to exceptions, including: statutorily closed
proceedings such as preliminary
inquiries, child protection proceedings and, in some provinces,
family law proceedings; enforcing
a trial judge’s order excluding witnesses; where the use of electronic
devices interferes with courts’
digital recording; and any other
circumstances where necessary to
ensure a fair trial.
As that debate unfolds, the 34
judges of the Federal Court are
already out in front with an expansive media policy that permits
tweeting. Since the Ottawa-based
itinerant court adopted the policy
in 2010, there have been no problems, the court says.
The media policy stipulates
that “for the purpose of note-tak-
ing or electronic communication,
laptop computers, Blackberries
and similar devices are generally
permitted in court provided they
do not cause any disturbance to
the proceedings. This applies to
members of the media, counsel
and members of the public.”
The Federal Court’s tweet-
friendly stance, adopted under the
leadership of the court’s former
chief justice, Allan Lutfy, and
spearheaded by Justice James
O’Reilly, chair of the court’s media
relations committee, is part of a
larger media policy, which actively
promotes the open court principle
by facilitating radio, TV and web-
based coverage of proceedings.
The policy states that “if written
notice has been given within a
reasonable time, the court will
generally grant requests to record
(audio or video) or photograph
judicial review proceedings for
publication or broadcast.”
“For us it’s a question of access,”
Federal Court Chief Justice Paul
Crampton said. “It’s a question of
transparency…of openness. So we
see this as something that enhan-
ces all of those things.”
The new chief justice, who suc-
ceeded Chief Justice Lutfy in
December, said his fellow judges
want to help Canadians better
understand the court’s role. But he
also pointed out that the Federal
Court differs from other trial courts,
such as the Ontario Superior Court,
for example, in that it mostly does
judicial review—without wit-
nesses, and under rules similar to
those found in appellate courts.
You be the judge.
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