A request from a group of media companies to film and broadcast portions of Gerald Stanley’s second-degree murder trial was denied last month by the chief justice of Saskatchewan’s Court of Bench, who argued the trial was not the right case with which to experiment.
“This is not the right case to put in a petri dish for experimental purposes,” Justice Martel Popescul wrote in his decision.
Broadcasting, publishing or posting any form of photography or video of court proceedings is prohibited in almost all criminal cases in Canada.
Stanley, 56, was acquitted Feb. 9 of second-degree murder in the August 2016 shooting death of 22-year-old Colten Boushie.
A publication ban was put in place after a hearing on Jan. 16 — about two weeks before the trial started — in Battleford Court of Queen’s Bench. The ban prohibited the media from publishing the arguments and the decision regarding filming portions of the trial until after the jury was sequestered.
The application
Five media companies — CTV, CBC, Global News, Postmedia and Aboriginal Peoples Television Network — applied to record certain portions of the trial with three security-style cameras operated remotely.
The application requested the media be allowed to record and broadcast live the opening and closing remarks of the judge and lawyers, the judge's instructions to the jury, the verdict, remarks from the judge after the verdict and potential sentencing. Jurors and witnesses would not have been shown and Popescul, who presided over the trial, would have been able to turn the cameras off at any time.
Bill Johnson, the lawyer representing the media, argued the application is partly based on enhancing the administration of justice.
“They seek to assist this Court in fulfilling its responsibility to administer this important criminal case in the context of 2018 Saskatchewan society,” Johnson wrote in his submission.
He wrote the media has identified the case as important for the citizens of Saskatchewan and Canada and of major interest, both socially and judicially. Broadcasting parts of the trial supports the court’s principle of being open to the public, the submission also stated.
“This major interest and importance, the Applicants submit, present this Court with an excellent opportunity to explain to Saskatchewan citizens how this Court administers its processes in a criminal jury trial,” Johnson wrote.
Johnson also referenced the Charter of Rights and Freedoms and wrote that the media’s use of cameras is a method of expression.
The Boushie family was in support of cameras in the courtroom.
Arguments against the application
Scott Spencer, the lawyer who represented Stanley, argued for the application to be dismissed and stated the request is not about openness and education, but entertainment.
He said cameras would have a negative impact on Stanley’s right to a fair trial and argued the court’s function is about truth-finding and inquiry. Spencer said by broadcasting only select portions of the trial, the media will not be providing insight into how that’s accomplished.
“Filming and broadcasting edited and selected portions of counsel arguments in an entertaining manner to create a greater spectacle runs the risk of further division and anger within the province,” Spencer wrote.
When it comes to the freedom of expression argument, Spencer says there is no constitutional protected right to film and broadcast portions of a trial.
Crown prosecutor William Burge, on behalf of the attorney general, wrote the attorney general also disagreed with the media’s application. Burge said the decision shouldn’t be made on a case-by-case basis and was concerned only broadcasting portions of the trial would be a distortion of reality and put unnecessary pressure on the jury.
The decision
Other jurisdictions, including the United States, the United Kingdom, Israel, Scotland, South Africa and others, have experimented with broadcasting court proceedings, according to Popescul’s written decision.
“In Canada this question has been passionately debated, examined, discussed and analyzed for a long time,” he wrote.
Popescul denied the request and said allowing cameras would be “a marked departure from the long withstanding principle that cameras are not permitted in courtrooms.”
He said, in order to deviate from that, a thorough analysis informed by multiple entities is necessary to safeguard the key principles underlying the justice system and that sufficient time must be made available to consider concerns.
He said allowing the request could undermine the integrity and administration of Canada’s justice system and stated the Stanley trial was not the case to experiment with.
‘Likely illegal’ video surfaces
The Saskatchewan Ministry of Justice said a video of the courtroom when the not-guilty verdict was handed down surfaced online on Feb. 9. The ministry said a member of the public did not have the authority to video tape the proceedings, which were recorded from an overflow room set up for public viewing. The person took video of the court stream, which was playing on a screen inside the secure room in Battleford Court of Queen’s Bench, according to the ministry. Saskatchewan Minister of Justice Don Morgan said the move is likely illegal.
“It was a wrong thing to do. It probably was illegal and the RCMP are looking at it,” Morgan said.
The RCMP confirmed to CTV News it is investigating the incident.
