Editorial Introduction

Other than jury trials, it is difficult to  justify any ban on media reporting of a law case, whether it is ongoing or not. Judges are fiercely independent and the law does not belong to them anyway: it belongs to the people. The people, through the media or directly, should have every right to discuss - even extend an opinion on - any case before the courts.

That view appears to be Utopian as the reality is quite different.

The ability of the media to report on a case is first determined by any order that may have been issued by the presiding judge in regards to confidentiality of the litigation.

Then, a lawyer will want to read their rules of conduct of their law society to see if there is any deviation from the general rules set out herein.

As for the general public, in their reporting of active litigation, the primary tool of the Court's disposal is contempt proceedings, which is very rarely invoked.

The "Wisdom"

In a common law world, law is often set not by the legislature but from the mouth of the courts. And courts can be as self-serving as the next special interest group when it comes to setting law.

Court in Session signIf there words to live by when it comes to transparency of justice, it is those of Justice Louis Brandeis (USA, 1856-1941) who wrote, in  1914 (Other People's Money and How Banker's use It):

"Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman."

There is some wisdom behind a policy of extreme caution when a lawyer or litigant seeks to speak to the media in their ongoing case. That wisdom was best expressed by Lord Denning in A.G. v Times Newspaper:

"It is undoubted law that, when litigation is pending and actively in suit before the court, no one shall comment on it in such a way that there is a real and substantial danger of prejudice to the trial of the action, as for instance by influencing the judge,the jurors, or the witnesses or even by prejudicing mankind in general against a party to the cause.... Even if the person making the comment honestly believes it to be true, still it is a contempt of court if he prejudges the truth before it is ascertained in the proceedings.

"We must not allow trial by newspaper or trial by television or trial that any medium other than the courts of law.

"But in so stating the law, ... it applies only when litigation is pending and is actively in suit before the court.... There must appear to be a real and substantial danger of prejudice to the trial of the case or to the settlement of it. And when considering the question, it must always be remembered that besides the interest of the parties and a fair trial or a fair settlement of the case there is another important interest to be considered. It is the interest of the public in matters of national concern, and the freedom of the press to make their comment on such matters. The one interest must be balanced against the other....

"Our law of contempt does not prevent comment before the litigation is started nor after it has ended. Nor does it prevented when the litigation is dormant and is not being actively pursued.... No person can stop comment by serving a bit and let it lie idle.... it is active litigation which is protected by the law of content, not the absence of it."

The Canadian Encyopedic Digest (2010) states the law as follows:

"The press has a right to report civil and criminal proceedings in a proper and factual way and to comment fairly after a case has finished. The press may not, however, while the matter is sub judice, publish comments which would prejudice the fair trial of the matter."

Muzzle The Lawyers

Even in a pre-Internet world, the courts have systematically been against media comment on their ongoing cases.

No single fact better exemplifies the paranoia the courts have of the media than that few jurisdictions allow cameras in their courtrooms even though current technology would permit the transmissions of proceedings with virtually no disruption of the Courtroom.

Judicial councils rarely dare take on the media directly so, instead, they first control what they can: lawyers.

Rules of conduct for lawyers, as a rule, discourage discussion of an active case with the media. In some jurisdictions, British Columbia, for example, the law society outright prohibits any public comment “on the validity, worth or probable outcome of a legal proceeding in which the lawyer acts” so any debate on whether to do it or not is either career death wish or a moot exercise.

Other jurisdictions model their rules on those proposed by the Canadian Bar Association (CBA). Those rules caution lawyers to withdraw if their client: “... attempt(s) ... to influence the decision or actions of a tribunal or any of its officials by any means except open persuasion as an advocate.”

That extends the rule from lawyers onto litigants as if they speak to the media of an ongoing case, they risk losing their lawyer.

And:

“When acting as an advocate, the lawyer should refrain from expressing personal opinions about the merits of the client’s case.”

The authors of Canadian Legal Practice write:

“It is good practice for a lawyer to avoid comment on the merits of any specific case until after it is finally determined and becomes a matter of public record....”

At first glance, a straight-forward no-contact rule for lawyers.

On the other hand, the CBA rules also include this:

“This Rule should not be construed in such a way as to discourage constructive comment or criticism.”

The total avoidance rule is mis-stated. It is safe practice but not always good practice from the perspective of the client’s best interests although it is, admittedly, good practice when considered solely from the perspective of lawyer liability.

The Canadian Legal Practice treatise continues:

“A lawyer may comment on the issues and implications of a case before the court so long as the comment is reasoned, informed and made bona fides....”

The future looked promising when the chief justice of Canada’s Supreme Court, in a speech he gave to the Canadian Bar Association in 1984, invited both the courts and lawyers to get to know the media better and to not shy away when called upon to explain the law.

A year previously, in Ontario v Toronto Buildings, Justice Van Camp of the Ontario Supreme Court wrote:

"I recognize the problems that confront a Court in giving a fair trial to anyone whose case is being tried in the media. It is difficult to see that the freedom of the press is impaired by the delay in reporting a matter until it is completed. But there will be at certain times, certain matters that require report by the press and the knowledge by the public of what is occurring in the Court. The absence of authority shows that the press has recognized its responsibility in the majority of the cases.

"The question of when counsel may speak to the media cannot be governed by an absolute rule.... The Court must step in when the result of the communication is that a fair trial is hindered and the parties are not protected adequately."

But still, individual lawyers have a few hurdles - and one that should they trip, could result in severe discipline by their law society. That hurdle is client confidentiality. Any lawyer out to talk to the media about his client’s past, ongoing or prospective case without the prior encouragement and consent of the client should look for another job.

Lawyers must also ensure that whatever public comment they make is in their client’s best interests. And this is where the hiccup is with 99% of the lawyers. They would never be called to task by their law society for not speaking to the media. Such a closed-mouth approach cannot possibly harm their client’s litigation since judges don’t consider public opinion when rendering judgment.

In R v Basha, Justice Gushue wrote:

“I was appalled when it was brought to my attention that while the matter was sub judice there was editorial comment in the press and participation by Counsel in a media program on this matter. I have not read or viewed the editorials or program as a matter of deliberate policy, nor does it affect or influence my decision in any way. However, I intend to pursue the matter when sentencing is over and bring it to the attention of the Director of Public Prosecutions so that a decision can be made whether or not to institute contempt proceedings. Whether it is contempt or borders on contempt, lawyers are presumed to know better.”

What some would call imminent wisdom, and others, tunnel-vision, is a policy of silence while a case is sub judice.

What About the Client?

More often than not, it is the client who wants to excite the media about their case. Ask any barrister and they will tell you that in their case load at any given time is one or two keaners just dying to line up CBC News or the New York Times or even the local rag. They can’t wait for their day in court and instead, try to assemble volunteers for a public tar and feathering of the other side.

Media contact can do more than scratch a client’s eczema. However, the effect will not be felt in the courtroom. Judges in almost all free and democratic societies are not going to render a decision based on the number of slogans being chanted at the steps of the courthouse.

The media can be useful is allowing the general population to know of an active case, and to consider the issues being raised and of the very real possibility that in this case, the law is outdated. While we can rely on our elected officials to modernize the law, they need a few reminders from the rank and file; a few reminders from those people who live the shortcomings of the law. Without that, the law changes only as fast as Jane Doe, public servant, in her pin stripe suit, can fathom modernization.

Can you spell molasses in January?

Consider this from the Canadian Bar Association Code of Professional Conduct:

“The lawyer is often called upon to comment publicly on the effectiveness of existing statutory or legal remedies, on the effect of particular legislation or decided cases, or to offer an opinion on causes that have been or are about to be instituted. It is permissible to do this in order to assist the public to understand the legal issues involved.”

In Manitoba v Quebecor, the Court brought out its biggest cannon: contempt. The court spoke of "... contempt ex facie, which would embrace a publication likely to prejudice the fair trial of an accused person.”

The trial of two persons accused of attempted murder and other related crimes was before the Manitoba Court of Queen's Bench . At the time of the alleged offence, the two accused and the victim were in custody in Stony Mountain Penitentiary. The Winnipeg Free Press published an article in which they mentioned the crime for which one of the accused was serving a sentence at the time of the offence as well as the fact that the other accused had been transferred from another penitentiary after the death of a convict.

Justice Philp:

“What is alleged here is ... contempt ... in prejudicing mankind against persons before the cause is heard. What is complained of here happened outside of the courtroom, and, indeed, before proceedings were even pending before a court. The circumstances raise the conflicting public interest of protecting a fair trial and preserving freedom of speech....

“I am satisfied that the impugned news stories were calculated to interfere with the proper administration of justice; that their publication ... created a real risk of prejudice to the accused persons.”

The focus of most of the law reports on this topic relate to criminal law with the obvious danger to a trial of extensive reporting by the press of an accused person's criminal record or other dealings portrayed in a negative way.

In civil cases, media reporting initiated by the client (or the lawyer) will normally antagonize the judge, if anything. You'll not see a judge earning six digits annually and excellent working hours, render judgment because of a headline in the Toronto Star; in Canada, anyway.

In some cases, media excitement caused by a litigant may be used against the litigant overtly, as in the case of a trial involving an infant or some other vulnerable person under the authority of the court. Unfortunately, this is a double-edged sword because justice would often be well-served if some of the unusual decisions made by judges in guardianship cases were well-publicized.

Can't Help But Can Hurt

So convoluted is the body of law that deals with the sub judice rule and the reporting on ongoing litigation that it forms the bulk of any course on media law.

For the average litigant anticipating rejection in the courts, or seeking some support (or a second opinion!) from the community by reaching out to tell the story to the media, the reality of such an initiative is that it can never help a court case but it can always hurt it.

REFERENCES:

  • Attorney General v Times Newspaper, [1973] 1 Q.B. 710
  • Dodek, Adam and Hoskins, Jeffrey, Canadian Legal Practice (Toronto: LexisNexis, 2009), page 3-64
  • Law Society of British Columbia, Professional Conduct Handbook, Chapter 8, Rule 23
  • Manitoba (Attorney General) v. Groupe Quebecor Inc., 45 D.L.R. (4th) 80 (1987, MBCA)
  • Ontario v Toronto Apartment Buildings Co., 42 C.P.C. 314 (1983)
  • R v Basha, 61 A.P.R. 286 (1979, NFCA)
  • R. v. Carocchia, 14 CCC (2d) 354 (1972)
  • Smith, Beverley, Professional Conduct for Lawyers and Judges, 3rd Ed. (Fredericton: Maritime Law Book, 2007)