From OJ to Giesbrecht: Changing view of cameras in court

It was June 1995 and former pro football player OJ Simpson gave a dumbfounded look to a Los Angeles courtroom as he struggled to put on a blood-stained glove.

The image from inside the courtroom is seared in the memory of people around the world. But that kind of camera access to the courtroom remains elusive in Canada.

Media lawyers say that could be changing — with Manitoba at the forefront. 

On Monday, CBC News will livestream provincial court judge Judge Murray Thompson's verdict in the Andrea Giesbrecht trial.

Giesbrecht, 42, is charged with six counts of disposing of the dead body of a child with intent to conceal the fact its mother delivered it. On Oct. 20, 2014, staff at a U-Haul centre discovered the decomposing remains of the infants in a storage locker Giesbrecht rented.

​Giesbrecht has pleaded not guilty to the charges. Each charge carries a maximum sentence of two years.

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The first camera was allowed in a Canadian court in 1981, but the heavy camera, amount of equipment and bright lights involved in the technology at the time brought concerns of disruption.

"In the '80s and '90s the whole idea of this new technology that would allow people to effectively be in court when they couldn't be in court was coming live," said Jonathan Kroft, a media lawyer and partner at MLT Aikins.

"The cameras were getting smaller and you didn't have to set up the bright lights. So it became more and more practical to actually videotape what was going on in court."

The Supreme Court of Canada was leading the way and between 1993 and 1995, three high-profile cases were televised, including Sue Rodriguez's case for the right to assisted suicide. That court has allowed almost all of its proceedings to be broadcast by CPAC, the Cable Public Affairs Channel, and since 2009 they have been archived on the Supreme Court's website.

There was also a two-year pilot project with the Federal Court of Appeal in 1995, but it wasn't made permanent.

When the OJ Simpson trial became a spectacle watched and mocked around the world in the mid-'90s, inspiring last year's FX true crime series The People v. O.J. Simpson: American Crime Story, cameras in court hit a major setback, particularly in Canada, Kroft said.  

While there were a few pilot projects across the country, Kroft said the blanket ban against cameras remained for trial courts (each judge does have responsibility for their own courtroom and can choose to allow cameras).

The difference is that in appeal courts there are no witnesses, just lawyers arguing their points to a judge. Often, opponents of camera access say if trials are broadcast, witnesses may be reluctant to come forward, jurors could feel pressure and lawyers or judges may act differently.

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On the other side, media lawyers advocating for cameras say it is important because most people can't attend court in person and recorded trials will educate people about the justice system.

"When you look at it as a system, transparency is really everything," Kroft said.

"In the end the system only works if most people accept it and they won't accept it if it's a secret."

To their credit, Kroft said, Manitoba courts have been listening.

Manitoba courts take steps towards camera access

In 2014, Manitoba's Court of Appeal, Court of Queen's Bench and provincial court began a pilot project that allowed video recordings of some hearings.

Manitoba Chief Justice Richard Chartier told CBC News that year that justice must not only be done, "it must be seen to be done."

"Courts must be open to the public. This principle is a hallmark of a democratic society and has long been recognized as a cornerstone of the common law — so says the Supreme Court of Canada, so say we. That is the law."

There were some restrictions to the project: only proceedings with judges and lawyers presenting will be pre-selected for broadcast, cameras won't be allowed to record jury trials, witnesses giving testimony, or any case that could endanger a child.

When it comes to trials, TV cameras were allowed to broadcast a verdict, but only the judge reading it. That will be the case on Monday with Giesbrecht.

"I would say that in Manitoba, generally, the courts are open to this. I don't think that it is a huge priority from the court point of view right now to push it forward hard, but they've done more than any courts, that I'm aware, in Canada," Kroft said.

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Bob Sokalski, a media lawyer and partner at Hill Sokalski Walsh Olson, said Manitoba courts have been watching as the climate around cameras changes. 

There were requests to film the Brian Sinclair inquest, which were denied, and the Graham James case, which were also denied. The application to film Canadian Human Rights Tribunal hearing for the First Nations Child and Family Caring Society of Canada and Cindy Blackstock was initially denied, but later in a federal court in Ottawa precedent was set when a judge ruled cameras were allowed.

"It's been growing. It's been developing, and now, as of 2014, I'm delighted that we have this protocol as a move forward, a quantum move forward from where we were in the past," Sokalski said.

"[It's] tremendous leadership shown by our three levels of court by being the first in Canada to have a protocol that has a presumption of camera access in certain cases."

Slowing down

That first year of the pilot project was monumental, media lawyers say.

"Manitoba has been the leader in developing this access to open courts above and beyond all of the provinces," Sokalski said.

Cameras livestreamed the verdict in the second-degree murder trial of Cassandra Knott and the Court of Appeal's hearing of Denis Jerome Labossiere's three first-degree murder convictions in the deaths of his parents and brother in a farm house fire in 2005.

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There was also a live broadcast from provincial court for a number of cases involving drugs and weapon charges.  While the Court of Queen's Bench heard arguments for the Progressive Conservative Party related to the PST increase there was also a camera filming in the room.

But then cameras in court began to taper off. 

"It's really too bad that the media has not really taken … more advantage of this protocol to make use of it and to, quite frankly, prime the pump and get the court more accustomed to having cameras down there so that it becomes second nature," Sokalski said.

With technology once again moving from taped and edited television broadcasts to livestreaming, Sokalski said he is optimistic it won't stay slow for long.

"I think there is great opportunity for this protocol to move forward in a positive direction to allow Canadians greater access to their open courts," he said.

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Particularly when it comes to opponents of camera access, livestreaming means people will be able to see an unedited view of the courts and allows "gavel to gavel" coverage.

"Now you have an answer to those critics by saying, 'Look we are going to put two or three minutes on the six o' clock news but if the public wants to have the opportunity to see the whole thing they can get it livestreamed and see the whole thing,'" he said.

"Thus giving everyone the opportunity to see what they could see if they were in the courtroom."