Media access to the courts in times of COVID

  • August 19, 2020

Much has been written over the past few months about the effect court closures and the move to virtual hearings has had on judges, lawyers and those seeking justice in the courts’ hallowed halls.

Less has been written about the effect COVID-19 restrictions have had on the freedom of the media – and by proxy, the public – to gain access to court hearings and stand witness to what happens there.

Freedom of the press is guaranteed in the Charter. And under Canada’s open-courts principle the onus is on those who would restrict access to the public (or the public through the press) to show they have valid reasons for doing so.

This clear principle has become decidedly muddied with the introduction of COVID-19 social distancing restrictions and the move to virtual hearings, says David Hutt, a partner with Burchells in Halifax who sits on the executive of the CBA’s Entertainment, Media and Communications Section, and also represents Atlantic Canada on the board of the Canadian Media Lawyers Association.

Speaking in August to the CBA’s Task Force on Justice Issues Arising from COVID-19, Hutt said the open courts principle is important to maintaining public faith in the justice system.

“In the before times,” Hutt says, journalists could go to the courthouse on a Monday morning, take a look at the docket, decide which hearings they wanted to attend and then go sit in on them. If they changed their minds they could leave. If the question of a publication ban arose during a hearing, “reporters sitting in the bleachers” had standing to make submissions on the request in real time.

And then in mid-March, everything changed: a pandemic was declared, courts were closed as people were told to stay home, and the justice system was left scrambling to figure out how to continue.

Courts started coming back online, using a variety of platforms.

“Prior to March I think I’d heard of Zoom once,” Hutt told his audience. Everyone involved had different learning curves with the new technology.

Some courts are now holding in-person hearings but social-distancing restrictions apply, and even online some platforms restrict the number of people who can participate, depending on the licence.

Hutt says that from a media perspective the court response has been very good in general, but he pointed out five areas of concern:

  • Getting access to documents. “Lawyers across Canada are facing completely different circumstances but similar issues,” he says. Dockets are published online in some jurisdictions but not in others. There’s no way to give notice when emergency matters come up.
  • Some jurisdictions require media to file written requests to attend hearings, sometimes well in advance, and provide press credentials. “Having to ask to attend is different than having the right to walk in the door,” says Hutt.

“We can’t let openness and access become a permission-based system. We’re stuck with it now but it can’t become a permissive system” without eroding our right to openness. There’s also the question of who vets the requests – and what happens if they’re declined?

  • The question of cost – reliable access to technology is considerably more expensive than the steno pad reporters can take to court as a basic tool.
  • Journalists are muted on online platforms, usually by the host, so are unable to exercise their right to make a submission if the question of a publication ban arises.
  • Accessing court records – not all jurisdictions have electronic filing.

Media will be able to adapt to whatever platform the courts decide in the end to use, he said. Right now there are “multiplicities of ad-hoc solutions” which aren’t helping straighten out the general confusion.

Virtual hearings are here to stay, Hutt says, a thought echoed by Federal Court Chief Justice Paul Crampton, a member of the CBA Task Force. Justice Crampton acknowledged that given the investments courts have made and the convenience of virtual hearings – and decreased costs in some cases – there is likely to be increased demand for them.