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Ian Mulgrew: Fake news no excuse to keep cameras out of court

A B.C. justice has again thumbed her nose at the public by blocking video-recording of the extradition hearing for U.S. fugitive and celebrity Chinese capitalist Meng Wanzhou, a.k.a. Cathy Meng and Sabrina Meng.

Associate Chief Justice Heather Holmes of the B.C. Supreme Court maintained broadcast or streamed recordings would create too great a risk because they could be manipulated and used to discredit the administration of justice.

“The key concern is Ms. Meng’s right to a fair trial in the U.S.A., should she be extradited,” Holmes insisted. “For portions of these extradition proceedings to be broadcast — even the double criminality hearing — would in my view put that right at serious risk by potentially tainting trial witness testimony and the juror pool.”

Given the U.S. has very liberal pretrial publicity laws compared to Canada, what’s the risk?

“The very height and intensity of the public interest that motivates the media consortium’s application suggest that the risk of context-less ‘sound bite’ rebroadcasts by other media organizations or by individuals will be extremely high,” Holmes wrote in the ruling published on Tuesday.

“Also, what the media consortium describes as the ‘politicized’ nature of the case suggests a real risk that distorted representations would be created and broadcast by others for purposes contrary to the proper administration of justice.”

In other words, legitimate coverage might be bastardized and turned into satire or worse, fake news, misleading people.

Who’s Holmes kidding? America’s entire judicial process is exponentially more open than Canada’s and just about every major case is fodder for Netflix or prime-time television from bail hearing on.

And what do amorphous trial-fairness issues down south have to do with blocking Canadians, most of whom can’t attend the court, from seeing what happens at the hearing of the Huawei telecom executive?

Especially when Michael Kovrig and Michael Spavor, our citizens, are likely to be subjected to a Chinese show trial after being held in abominable solitary confinement, so far for more than a year, in retaliation for Meng’s arrest on Dec. 1, 2018?

This was a perfect opportunity to let Canadians see how their justice system actually works and show them, if nothing else, that our judges don’t use gavels.


An ankle monitor is seen on Huawei Chief Financial Officer, Meng Wanzhou as she leaves her Vancouver home to appear in British Columbia Supreme Court in Vancouver on September 30, 2019.

DON MACKINNON /

AFP via Getty Images

Thirteen organizations formed a media consortium — everyone from CNN to the South China Morning Post — and applied for authorization to video record and broadcast (by webcasting, online streaming, and televising) the portion of the committal hearing concerning “double criminality.”

Set to start Monday for up to five days, those proceedings will address whether the conduct alleged in the U.S. extradition request is also a crime in Canada.

The argument for broadcast is compelling — this case engages domestic and international political and economic issues, attracting significant interest locally, nationally and internationally.

Although the courtroom is open, most people cannot attend; online streaming and broadcasting of the proceedings is necessary to make the court realistically accessible.

Increased access to the court’s process and decision-making would, in turn, improve the public’s understanding and confidence in the administration of justice while fostering public debate and participation in our democracy.

Not surprisingly, Meng and the federal government opposed the application.

Still, instead of a cogent ruling expressing concrete concerns, Holmes conjured fears that streaming or broadcast reports could be such fodder for mischief, that they threaten Meng’s trial.  

In 2015, the court suggested it was open to video recording and broadcasting by issuing a practice directive that purported to provide rules and guidelines. Significantly, the footage could not be broadcast in any way for at least two hours after the event to allow time for any concerns to be raised and addressed by the court about specific content.

The double criminality portion of Meng’s extradition involves only a question of law, and, as the judge noted, will not directly engage Meng’s fair trial rights since it does not pertain to her guilt or innocence.

Counsel are experienced and able. No party is under a legal disability. No graphic material will be presented. The recording would be done without any disturbance of courtroom proceedings.

Yet Holmes couldn’t bring herself to let the public watch on a screen because of a hypothetical concern.

This is out-of-control judicial paternalism and only confirms my suspicion that for far too many B.C. judges, the open court principle deserves lip service, little more.

It’s the same the-public-can’t-handle-the truth attitude that has seen routine publication bans and courtrooms closed.

Premier Christy Clark promised to televise the trials of Stanley Cup rioters — didn’t happen. Former attorney general Mike de Jong wanted to allow cameras in courthouses to televise sentence hearings, as Manitoba did a few years ago — fat chance. In 2001, there were calls to televise former premier Glen Clark’s trial. …

It’s been more than half a decade since the B.C. Court of Appeal streamed arguments in the right-to-die legal battle as a proposed pilot project and nine years since the B.C. Supreme Court televised the polygamy constitutional question as a similar experiment. At the turn of the century in Victoria, cameras recorded part of the trial of nine South Korean men accused of human smuggling as a so-called pilot project.

These have been rare events.

Canadians were able to watch the drama at Oscar Pistorius’s murder trial in South Africa and can daily catch proceedings from across the U.S. The British, who routinely broadcast Supreme Court and some appeal court proceedings, later this year will start broadcasting the sentencing of convicted offenders in high-profile criminal cases in England and Wales, including murders and rapes.

The reason? To enable greater public understanding and scrutiny of courtroom hearings.

The Supreme Court of Canada has broadcast its proceedings since the 1990s.

In 2016, when Postmedia and The Vancouver Sun applied to broadcast portions of the landmark constitutional challenge over the protection of medicare, the judge found a way to dismiss the application, too.

After four years of bad trial management and squabbling, I can understand why the bench doesn’t want the public watching.

imulgrew@postmedia.com

twitter.com/ianmulgrew

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