As of today, there will be no electronic communications allowed from Québec courtrooms. Just like in the Middle Ages.
First off, I recognize that this is not an internet law story per se. But it’s a story about where the internet and the law meet, so I think I can write about it. As a former (and still occasional) litigator, I have been in many a courtroom (as a lawyer, smartass) so I have some strong views on the topic of courtroom decorum, which is ostensibly what this is about, according to the powers that be. I’m not so sure.
Let’s take a step back. A few weeks ago, the Courts of Québec issued a policy called “Directives concerning the use of technology in the courtroom” (PDF, and I’m translating this and all following quotes as it’s only in French). Those directives came into effect today. Let’s take a look at what it says:
Principle: The judge has discretion to make any order to ensure the respect of decorum, of the good order and the smooth proceeding of the hearing.
See, this is good. There is nothing more frustrating as a lawyer, or as a litigant, than distractions in the courtroom. It’s like a golfer standing over a putt trying to win the Masters (congrats, Adam Scott!). You need silence, you need no distractions. You need to be able to focus. Keeping decorum and solemnity is also important in the courtroom to keep the dignity of the process intact. So good on the courts of Quebec for recognizing that.
But how does the new policy accomplish this? Well, here is the big one for us:
It is always prohibited to broadcast or to communicate text messages, observations, information, notes, photographs, or audio or video recordings from inside the courtroom to anywhere outside the courtroom
Well lah dee dah. As we can see from the generality of the language, this would not be just Tweets, but any sort of electronic communication from inside the courtroom. No more posting on Facebook that the judge seems to be pants-less under his robe.
The policy also bans the use of electronic devices generally. Devices include laptops, smartphones, tablets, and any similar equipment. This is not necessarily a bad thing. The click-clack of Blackberries and laptops in a courtroom is very distracting. Quiet please, I’m putting.
BUT HERE’S THE THING. Lawyers, parties, and journalists have an exception – they may use electronic devices “for the needs of the case”, like writing notes, checking jurisprudence or laws, that kind of thing. So the click-clacking will go on. Decorum takes a beating.
BUT HERE’S THE MOST IMPORTANT THING. In Canada we have something called the “open court principle”. Here’s a nice little primer on that. Basically it boils down to the fact that court hearings are open, and people have the right to know what’s going on inside the courts (with exceptions). The open court principle was nicely summed up by the Supreme Court of Canada in their most recent case on the issue:
The open court principle requires that court proceedings presumptively be open and accessible to the public and to the media. This principle has been described as a “hallmark of a democratic society” and is inextricably tied to freedom of expression.
So how does the public hear about important court cases now? Well, the internet, duh. We’re not waiting for a raven to deliver the news, we’re getting it much faster. That’s a good thing. People need to know what’s going on inside the courtroom, and reporters tweeting about it is the way we know in 2013.
The policy does not target directly the open court principle, but in practice, by making it harder for journalists to get the word out, they have effectively hampered it. That’s, uh, not good.
And here’s the worst part – by banning communicating from inside the courtroom, you’re asking for chaos. You can (for the most part) go in and out of a courtroom at will. Any time a reporter feels the need to tweet something, he’ll get up (making noise), walk to the back of the room (a distraction for everyone), open the door at the back (more noise), Tweet from the hallway, then cause all the disruptions and noise in reverse when he comes back. For a big important case, multiply that by dozens of reporters. It becomes Peel and Ste-Catherine Streets at 5 P.M.
No loss of decorum at all.