Ontario's AG calls for debate on social media in courts
It may be time for a national discussion about the effect social media tools like Twitter and Facebook are having on the cases playing out in Canadian courtrooms, says Ontario's attorney general.
That conversation -- sparked by the tweets arising from the high-profile case of convicted sex killer Russell Williams -- must start with the judiciary, who make decisions every day about what's allowed in a courtroom, said Attorney General Chris Bentley.
Many provinces are grappling with the question of how they can keep their courtrooms open in an age where so much information is instantly accessible, while ensuring that fairness and impartiality aren't compromised, he said.
"That's a very important discussion and one we have to get right," Bentley told The Canadian Press.
"Because if we allow social media in for different reasons and then the limits placed on it are not respected, we can't protect the interests that need to be protected. The inevitable result will be that we go back into a much more closed situation."
A well-known criminal lawyer who represented Williams called for the debate after disturbing and unfettered details from the court case spread like wildfire over the Internet.
Journalists covering the case were permitted to bring their laptops, cellphones and audio recording devices into the courtroom -- equipment that is often not allowed in Ontario courts -- allowing them to report on the hearing as it unfolded.
Twitter and Facebook were flooded with bone-chilling details of Williams' sado-sexual crimes, from the disturbing pornographic photos of the disgraced ex-colonel posing in girls' stolen underwear to graphic descriptions of how he raped and murdered two women.
There needs to be a national debate about the impact of social media in Canadian courts and whether new ground rules should be laid for high-profile cases, said Michael Edelson, who represented Williams.
"We've come to the conclusion -- and we've done this after speaking to a number of senior journalists, many of whom share our view -- that the time has come to have some kind of public debate about this whole issue," he said.
The usually media-shy lawyer, whose Ottawa firm has represented many high-profile clients, said he's gone public with his views because the issue is too important to ignore.
Edelson said he'd like to see a forum where senior journalists, judges and lawyers could get together and "throw around ideas" about whether social media tools should be controlled inside the courtroom.
The context of what's being heard in court is often lost in Twitter posts, which are limited to 140 characters each, he said.
"The public interest is not served by where they don't properly understand court proceedings and they don't understand why a certain verdict or certain sentence emanates from the court, because they haven't been given enough information to make a decision for themselves," Edelson said.
"And certainly, getting 140 characters doesn't assist you in making a decision whether or not the judge got it right or lawyers were making silly submissions or whatever the case may be."
The amount of information available online has also made jury trials increasingly difficult, said John Struthers, a director of the Criminal Lawyers' Association.
The main problem is that judges, jurors and witnesses are getting information from sources that are not traditionally permitted, he said.
"You're supposed to decide the case solely on the evidence heard inside the four walls of the courtroom and nothing else at all," he said.
Judges will direct jurors not to do any independent research or investigate anyone involved in the case, but they'll still Google the scene, the lawyers and even the accused, Struthers said.
"I had a case recently in Brampton where a witness who was about to be called by the prosecution was sitting in the corridor on his Facebook account on a cellphone, changing his status and threatening the accused from the courtroom outside," he said.
It can also work the other way, said Edward Greenspan, a prominent criminal lawyer who has represented Conrad Black, Garth Drabinsky, Gerald Regan and Robert Latimer.
Social networking websites can be mined for information about potential jurors that "go way beyond what we're supposed to know about jurors," he said.
"It's very painless to do it. It's quick, it's very inexpensive and with the click of a mouse you can do it," he added.
"So you can know everything you need to know about potential jurors. All kinds of information, from education to their religious affiliation, political campaign donations probably, who knows?"
Holding a symposium where lawyers, journalists and judges can talk about these concerns may be "helpful," Bentley said. It could even lead to a list of best practices down the road.
"I think this conversation is going to require not only the best advice of the judiciary, but I think we're going to need the best from those who would want to use social media, who knows how it will be disseminated," he said.
"How can we allow as much freedom as possible, (and) at the same time have the strongest possible means of enforcing the interests that really do need to be protected?"
Courts should move with the times, but it may be difficult to come to an agreement on how to deal with Twitter and Facebook, said Don Stuart, a law professor at Queen's University in Kingston, Ont.
More bureaucratic rules could result in further delays, he said.
"I just think we've got to trust experienced judges," said Stuart.
"Maybe I would be critical of some of the things that happened in the Williams trial, but it's just a subject of opinion. Some people would say he did a fine job."
Ontario isn't the only province grappling with this debate.
A judge decided Wednesday to ban all electronic devices in court during a high-profile murder trial of an Edmonton filmmaker, citing concerns of trial fairness and limiting disruptions.
In January, a Calgary judge banned members of the public during the preliminary hearing of Dustin Paxton, who stands accused of mutilating, beating and starving his former roommate and sexually assaulting a teenage girl.
Judge Brian Stevenson made the ruling after Paxton's lawyer argued that numerous postings about the sensational case on networks like Facebook could jeopardize his client's right to a fair trial.
There are often restrictions on publishing information heard at preliminary hearings -- which determine if there is sufficient evidence for a trial -- to avoid tainting potential jurors.
Stevenson closed the court to the public, but allowed accredited journalists to remain.
Finding ways to control access to information without holding jurors hostage or closing the courts to the public may prove to be a very difficult task.
Greenspan said he's not sure how it could be done.
During one case he worked on in Nova Scotia, newspaper boxes were covered so that sequestered jurors couldn't read the headlines as they travelled from their hotel to the courthouse.
Information is more easily accessible these days, he said. But no defence lawyer wants a jury that's angry at their client because their cellphones and laptops have been taken away.
The reality is that most people have looked at social networking websites, except those who don't know how to use a computer or don't have one -- like himself, Greenspan added.
"What do you want to do? Eliminate them and just have Neanderthals like me on the jury?" he said.
"That's one of the downsides in terms of fairness in a jury trial of this whole new world we live in. If that's what it is, that's what it is."
Ultimately, we have to rely on jurors to listen to judges who instruct them not to do their own research, he said.
"You can't make the triers of facts' lives miserable," he said. "You can't do it. It's offensive."