Daniel Henry on lack of camera and electronic access to courts: ‘It’s just not good enough’

Media lawyer Daniel Henry was honoured with the Canadian Journalists for Free Expression 2012 Vox Libera award. In his acceptance speech, he called for journalists to keep pressing for camera access in court, saying that when the press – and by virtue, the public – is denied access to courts electronically, it is, quite simply, not good enough.

Media lawyer Daniel Henry was honoured with the Canadian Journalists for Free Expression 2012 Vox Libera award. In his acceptance speech, he called for journalists to keep pressing for camera access in court, saying that when the press – and by virtue, the public – is denied access to courts electronically, it is, quite simply, not good enough.

CJFE Gala co-chair Denise Donlon introduced Daniel Henry as the winner of the 2012 Vox Libera award. What follows is a transcription of his speech. 

Daniel Henry, 2012 Vox Libera Award acceptance speech

Thank you, Denise, for those very kind remarks. I’m going to put “Fearless Navigator of Legal Hurdles” on my new business cards.

I want to thank CJFE for this award.  I feel very honoured, truly, to receive it, especially among my fellow honourees tonight.

I didn’t get here by myself.  I want to recognize all my colleagues in the CBC law department, and particularly Gerry Flaherty, who hired me and set a fine example, and Michael Hughes, in the Toronto office, who provided constant, good humoured support in everything we faced together.  

At the time I joined CBC, in 4 B.C. (before the Charter), a colleague was helping Linden MacIntyre take a case all the way to the Supreme Court of Canada.  The court’s decision dramatically improved public access to search warrants.  Linden’s gumption—and the whole exercise—was inspirational to me.

I quickly discovered that at CBC, he was not alone.  There were, and are, many dedicated, courageous, and inspirational people there with whom I was proud to work, but am too afraid to start naming here.  I’d never stop. I enjoyed every day and every night I was privileged to be at CBC.

I see a lot of familiar faces here tonight.  I can’t tell you how many times I also found myself helping journalists working for other media organizations, who piggy-backed on our access applications, needed guidance in cases we were all caught up in, or cooperated in our common efforts to fix media law. 

I want to thank Brian Rogers and Marc-André Blanchard – now Justice Marc-André Blanchard – who co-founded Ad IDEM with me and the rest of the media lawyers across Canada who add their intellect, instinct and passion to the cases we’ve given them, and convince judges to make judgments that form a strong fabric of free expression law here.

At times like this, when we are confronted powerfully and directly by the heart-wrenching difficulties foreign journalists—like those honoured here tonight—face in other parts of the world, we know we’re blessed to be able to live in a country with the liberties we enjoy, and a strong judicial system to uphold and refine our constitutional rights.

But even our history has shown that we can’t take our rights for granted.  In practice, our system depends on citizens like us asserting our rights for serious consideration. 

The gala brochure describes me as an optimist, as if the fact that I’m still predicting camera access to court in my 30th year of fighting for it somehow qualifies me for that label.

I see myself very much as a realist.  I’ve read the Charter, and countless cases that interpret it.  Freedom of “other media of communication” is explicitly protected there, in s. 2(b).  And just last year, the Supreme Court of Canada confirmed in the CBC case that media reporting from court proceedings is protected expression.  Judges can simply no longer act as if the words are not there.

Here we are.  30 years after I began speaking about this. 

Supreme Court of Canada proceedings are now webcast and available on demand online.  Many appellate courts have done experiments, and all have been successful.  We’ve had cameras in a number of trial courts, here and there, again without incident.

What is needed is a routine and presumed audio-visual access to trial courts, where judges decide on the basis of a Dagenais test, whether it’s necessary – necessary – to limit that coverage, and only limit it to the extent necessary. 

That means continuing to protect the identities of vulnerable witnesses.  But it doesn’t mean giving parties and witnesses the power of consent, which is really the power of veto over public access to public proceedings.  

Cameras will come more often to trial courts.

Cameras are everywhere in our society.  There are probably 500 of them in this room tonight.  Smartphones and tablets, as you know, are a fact of modern life, and are not going away. 

I suspect some of you may be recording us tonight… without our permission. That’s ok.  That’s your right.

I’ve been asked to comment recently about using Twitter in court. It serves an important function, connecting people to each other, and to events of significance to them, in real time.  But this new debate brings me full circle, to where I began. 

Let me ask you. What’s better? 

Having a frenzied reporter in court limited to banging out the questions, answers and legal argument in 140 character bursts in coded and often confusing tweets? Or:

Freeing up that reporter from being a harried and hurried scribe, to being someone who lets an audio or audio-visual recording capture all that information accurately, and efficiently, in real time, while he or she listens, analyzes and crafts reports that cover the case well, and then links his tweets to those accurate recordings?

Historically, trials were designed to be a public forum, where all citizens could be the jury and determine justice.  That role was delegated to a 12-person jury, but citizens retained the right to see and hear what their fellow citizens have to say, under oath, as it’s being said. 

Today, when citizens can have direct access to that electronically, and the justice system denies that to them, it’s just not, in a modern sense, open justice.

And it’s just not good enough.

When we’re denied the ability to see and hear judges sentence an offender and give their reasons publicly, it’s just not good enough. 

When we’re denied the ability to see and hear legal arguments in any court, trial courts included, on matters of public interest, it’s just not good enough.

When we’re denied the ability to see and hear testimony of police officers who’ve investigated a crime and report to court – and to all of us, the public – on oath what they discovered, it’s just not good enough.

I don’t believe anyone applied to televise the testimony of mayor ford in his recent libel and conflict of interest trials, but when virtually everything else he says is available on camera, we should have been able to see and hear his testimony in the normal course too. 

We’ve had thousands of witnesses testify on camera in multiple inquiries on the most sensitive subjects over three decades. And no one is suggesting they didn’t tell the truth there.

Our judges have had a blind spot when it comes to the merits of audio-visual access.  At the recent Ryerson conference reviewing the Charter at 30 years old, Justice Gomery attributed this attitude to judicial cowardice.  He may be right.

Whatever the reason for it, it’s time—constitutionally and practically—for judges to take another look at making it happen.

My message to trial judges: you are masters of your own courts; you are independent. Let the public see and hear the great work that you do. End your audio-visual isolation. Connect to Canadians, and join the modern society you serve.  You’re presiding over public proceedings, after all.

Embrace and exploit the medium’s potential.  Webcast your own proceedings, at least those you consider to be of public interest.  The cost is now miniscule, and a working system is simple to set up.  Many of us here in this room can show you how. 

It’s in your interest, and the interests of justice.

And if you want, offer a familiar warning to all who participate in the proceedings: “you may be recorded for quality assurance and training purposes.”   We’ll all understand.

As for journalists: in every case you cover, every day, ask for audio-visual access, well in advance if you can; and if every journalist in Canada does this, judges will eventually grant that access to you.  Don’t be afraid to stand up for your rights.  If you don’t, who will?

Thank you again for this honour.