Tuesday, November 30, 2010
Day 5 of the Canadian Case
Thank you, Nancy Mereska with Stop Polygamy in Canada for these terrific updates!
Background: It appears that one of the witnesses whose video (excerpt) interview was appended to the Vancouver Sun article last week has lodged a complaint saying they did not know the video interviews were going to be broadcast publicly. The videos have been distributed to several media and the Regina Leader-Post has posted some on their website.
Craig Jones argued that these witnesses have volunteered. There are 14 affidavits with attached videos. The Court considered the videos to be personal information. There was no permission obtained to broadcast the videos. Copies have been distributed to several other media. No advance notice was given to the participants that the material would be broadcast. Mr. Burnett (lawyer for the Vancouver Sun) takes the position that access equals publication rights. The property of the exhibit remains with the owner of the exhibit. There has to be a distinction between access and publication.
Chief Justice Robert Bauman interjected and said “. . .when they are filed in the Court, they are the property of the Court.”
Mr. Craig Jones disagreed and cited the Dagenais/Mentuk ruling in which it was said that there should be generous access to evidence; the court should be fully open to the public; the media should be able to describe what happened in the video. Craig made reference to the CBC ruling of earlier in the week. He said that the video supporting evidence is coming before the court as an exhibit. Should the content be downloaded to the internet with unregulated and unlimited use?
Chief Justice Bauman said he made ruling on CBC application to video the proceedings relating to the press broadcasting evidence before it is processed in court. He is not ruling on any suggestion that the press misrepresented itself.
Mr. Craig Jones argued that we are on the cusp of an age where we may have attempts by parties to put in competing video evidence and have it published. . .There has to be a distinction between a person’s videoing their evidence and it being broadcast to the world. No permission was given for this.
Chief Justice Bauman reiterated that evidence is property of the court.
Mr. Jones said that the court is the custodian of ecidence. There is an accountability question. What is the extent of public access? Is there re-victimization of those who are volunteering their evidence?
Chief Justice Bauman asked if not the onus is on the person supplying the information to apply for a publication ban? Where does the law say that the media have to ask permission to publish evidence they have in hand?
Mr. Jones brought up “privacy.”
Chief Justice Bauman said that the Vancouver Sun has lawfully obtained copies of the evidence. That no conditions were inposed on the Vancouver Sun and use of the videos. Here we are doing the expo facto—after the fact—argument.
Craig Jones said that there was no notice given to the witness. Where is the fairness in that? The witness must be able to consent to being broadcast. The media have access but not publication rights to videos. Any authorized recording may be used for another purpose but the applicant must obtain permission of those being videoed. The affidavit of Karen Horsman speaks to the difficulty of getting permission.
Chief Justice Bauman wanted to know the distinction between video and actual appearance. Is that the question.
Craig Jones said that the privacy issue is the issue. These witnesses should not be penalized because they willingly assisted the court.
There was discussion of other types of “media” evidence appended to affidavits such as books, research papers and copyright issues. I lost track because, of course, I am not familiar with the court decisions involved, etc.
Mr. Burnett argued before the court on behalf of the Vancover Sun. He argued that the person who brought the complaint has been very open about their involvement with the FLDS culture in the past even appearing the the Dr. Phil show and being quoted in various media. This person has talked openly on other media about under-aged girls being married, even revealing the number of wives an FLDS leader had.
Mr. Burnett went on to say that if a publication ban is put in place on the videos, certain factors have to be weighed such as if there is some rist to a fair trial with open publication of evidence; what is the reality of how publication will affect the witness; the privacy argument must be addressed; and, that openness and transparency in the court is important especially in a case of national significance such as this.
Mr. Jones rebutted with the fact that no one can underestimate the value of seeing and hearing a witness. All discretionary orders denying freedom of the press must meet a two-part test: absence of harm and consent rules. He emphasized that the witnesses were not informed that excerpts of their video testimonies were being broadcast.
Chief Justice Bauman said he would reserve his judgment until Monday.
Mr. Jones asked if he could make an interim injunction on any further publishing of the videos.
His Lordship Chief Justice Robert Bauman said he was not going to make any interim orders.
So, given that court does not resume until Tuesday, at 10:00, in room 55 of the Supreme Court of British Columbia, we will have to wait and see what the ruling will be.