BarTalk October 2000
Volume 12, Number 5

Media and the courts

by The Honourable Mr Justice Selwyn Romilly

The raison d’être of the free press in a liberal democracy is the opening of the vaults of power to the citizen’s inspection. This is unquestionably integral to the judicial system. It is essential to the removal of fear, distrust, and suspicion; it is security against corruption; it is the safeguard of its integrity and respect. Lord Atkin said in Ambard v. A-G for Trinidad & Tobago, [1936] A.C. 322 at p. 335: “justice is not a cloistered virtue: She must be allowed to suffer the scrutiny and be respectful, even though outspoken, comments of ordinary men [and, I add: women]”.

Many have come to expect a free press, assume its presence and function, and apathetically ignore its role. Even worse, many have come to shudder at its power, cringe at its crudeness, and cower from its spotlight.

The press and those who have come to use it masterfully, awoke one morning, late in the twentieth century, with the dawning realization that the press holds the balance of power. It can largely create its own causes, effectively lobby governments, cripple and create industry, shape public perceptions, and set the public agenda. The free press, as essential as it is to liberal democracy, has, in recent times, shown more of an ugly side in using its own power for ends that may not justify the means. For this it must be held to account.

I am not suggesting that the popular media is now creating more cause for concern than in the past. I believe, however, that technology has compounded the impact of the media by extending to it, power it never heretofore imagined.

Technology anointed the press with a power that is being exercised in new and bolder ways. The power of the press, oft-referred to as the unofficial opposition, unlike the other, more formal branches of government, no longer buys into the same principles, values, or objectives as the legal order. The press no longer requires or even desires government approval, philosophical backing, or logical underpinnings. All it needs is the “vote” of the remote control, the subscription, and the advertising dollar to continue its reign of power.

One of the results of this transition of power to the press is the change it has wrought in the public perception of the legal order. The Honourable Mr. Justice Taylor aptly described this point:

“The media, of course, are always on safari. What the media have discovered in recent times is that when there are no political lions and tigers in view, sport can still be had of flushing some judicial giraffe out of cover. Lacking fangs and claws, and being ill-designed to putting its ear to the ground, this hapless herbivore can not only be caught unawares, but closely pursued without risk of effective retaliation.”

An example of my point is “victim’s rights” which has grasped hold of the tail of justice and is shaking it with vigour. No longer is the neutrality of the judicial system viewed as a positive and essential ingredient of a liberal judiciary. The fire of retribution is ravaging the public, the bar, and the bench, and is eagerly stoked by the press who has seized on it as the “issue” of the day.

In an editorial in The New Republic, April 17, 1995, the following comment was made:

“The celebration of emotionalism in criminal trials is part of a broader, Oprahesque trend in public life, whose creed, as Yale law professor Paul Gerwirtz argues, is “I feel, therefore I may judge.” But criminal trials are designed to resist the talk-show creed. Judges and juries, unlike television viewers and victims, must decide guilt on the basis of reason rather than emotion, and punishment on the basis of public values rather than private rage. Perhaps the liberal state can’t be saved from the hydraulic pressure of emotionalism. But a liberal legal system cannot survive it.”

Mr. Justice Rand of the Supreme Court of Canada eloquently stated why the courts must not and cannot be seen to bow to such pressure:

“The courts in the ascertainment of truth and the application of laws are the special guardians of the freedom of unpopular causes, of minority groups and interests, of the individual against the mass, of the weak against the powerful, of the unique, of the non-conformist – our liberties are largely the accomplishments of such men.”

And, one might add, “women”.

The judicial system’s salvation from the increasingly negative perception of the judicial system and the spiraling impact of the media is, in my opinion, four-fold. First, a more open judiciary; second, a more united and inspired response from the bar; third, increasing independence from traditional media-based sources of information and communication; and, fourth, listening, communicating, and reforming.

In October 1994, Chief Justice Lamer of the Supreme Court of Canada was reported in The Globe and Mail as criticizing the media for reporting on judgments they have not taken the time to read or understand. Citing public attention as a healthy sign that the rule of law is a vibrant force in the community he nonetheless commented on media imbalance in over-reporting negative reaction to the court’s decisions. He stated a judge’s role is “to decide, not to please; to give judgment, not propaganda, and to be faithful to the rule of law, not to the rule of external pressure, whatever the source”.

I do not want to be misinterpreted as denigrating the media for facilitating or contributing to the criticism of the judicial system. In R. v. Kopyto (1987), 39 C.C.C. (3d) 1 (Ont. C.A.), Cory J.A. (as he then was) stated at pp. 14-15:

“As a result of their importance the courts are bound to be the subject of comment and criticism. Not all will be sweetly reasoned.... Some criticism may be well founded, some suggestions for change worth adopting. But the courts are not fragile flowers that will wither in the hot heat of controversy.... The courts have functioned well and effectively in difficult times. They are well-regarded in the community because they merit respect. They need not ear criticism about their operations or decisions.”

I am concerned, however, given what I see in the popular media, that we be ever vigilant in ensuring the health and longevity of the respect of which Cory J. speaks.

In a society where tradition is no longer sufficient grounds for demanding respect, where honour must be earned, where integrity is no longer presumed, where all the sacred veils have fallen from even the highest and most secret of places, and where inquiry and exposé have replaced unspoken reverence, the system of justice is in desperate need of public defenders – not necessarily to defend the status quo but to defend the principles of our legal order, to affect reform in a positive and constructive manner in accordance with those principles acceptable both to the defenders and critics of the current system, to initiate and maintain dialogue with the citizenry, and to keep open the lines of meaningful and constructive communication.

The neutered tongues of a silent judiciary mumble mute retorts to the ever expansive and increasingly bold malignment of a voracious media hungry for the next story or sensation to feed the insatiable appetites they themselves have created in their viewers and readers. In the age of communication and information, the public reasonably misinterprets the lack of judicial response to their cries for reform, their queries of misconception, and the criticisms of the media.

This judicial aloofness is often misinterpreted. Judicial “independence” is too-oft interpreted as “out of touch”. In a liberal democracy, which requires legitimacy from the acceptance and respect of its citizenry, the perception of justice is equally important as justice itself. In this era of de-constructionism and the demystification of our legal, political, and social orders, the concern over the perception of justice is overplayed by the critics yet underrated by the old-guard. The perception of justice often controlled by and through popular media, can no longer be ignored simply because we wish to avoid being perceived as pandering to the whims of public pressure. We must find ways to listen, communicate, and reform that both ensure the system’s legitimacy while preserving its independence and integrity.

The Bar, too, fails its calling if it stands idly by. As officers of the court and members of the system you were called to serve, it is with vigilance that you must work to preserve the integrity and respect for justice. Barristers cannot wash their hands of the system once they have presented their case.

It is important to note not only that the legitimacy of our legal order is being challenged, but that the media, with its new-found powers, is no longer necessarily buying into the same principles as the legal order. It is now up to us to communicate the principles, objectives, and values of the legal order and yet, for the most part, do so by using the media that no longer necessarily accepts it. The difficulty we now face is this lack of a common ethic. To the extent possible, communicating independent of the popular media as an intermediary resolves this conflict. Fortunately, with the rapidity of change in the communications industry, communicating directly with the public, by-passing the traditional media outlets, is becoming more plausible.

We must ensure that the courts are not left in the dust of these changes, written off or toppled by our own inadequacy to cope with change in the world around us. While the media definitely has its faults, and judicial independence is an essential component of democracy, the economies of the conglomerate-media dictate we do a better job of communicating to the public. This involves creating dialogue that is meaningful, relevant, and responsive to the citizen.

In summary, in my opinion, it is a start to say that the courts must appoint more effective liaisons, we all must interface more directly with the public, and our comments in the media must be constructive to the legal system and profession, sensitive to the popular public agenda, principled in its reaction, and honest in its delivery.

This article was published in the October 2000 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2005, all rights reserved.