Peter Downard (Lawyer/media specialist) addresses Mississauga Judicial Inquiry –On: citizen journalism

April 24th, 2010  

Apologies all.

It took far too long to post media specialist lawyer, Peter Downard’s excellent presentation on citizen-journalism which he gave at the April 12, 2010 Mississauga Judicial Inquiry hearing. Here it is, complete with court/video transcript.

Video: Peter Downard (Lawyer/media specialist) addresses Mississauga Judicial Inquiry –On: citizen journalism

Click here to go directly to the clip on MISSISSAUGAWATCH Vimeo


 23                 MR. WILLIAM MCDOWELL:  I would ask that we
 24  now hear from Mr. Peter Downard who's here acting as
 25  amicus on this suite of media issues.


  1                 COMMISSIONER DOUGLAS CUNNINGHAM:   Thank
  2  you.  Mr. Downard, thank you very much for assisting us.
  5                 MR. PETER DOWNARD:   I hope I can,
  6  Commissioner.  Thank you.  Good morning.
  7                 Commissioner, the -- the law in this area
  8  primarily involving the openness of public proceedings
  9  has been subject to much careful review and analysis in
 10  the twenty-five (25) years, since the -- the courts have
 11  been rethinking issues of freedom of expression and
 12  public access to -- to justice under the Charter.
 13                 And I think it's fair to say that, in
 14  summary, the jurisprudence identifies that in such cases
 15  there are, essentially, three types of interests that
 16  have to be balanced in any particular situation.
 17                 Those are, first, the interests in freedom
 18  of expression; second, the legitimate individual
 19  interests of those directly involved in the process; and
 20  third, the integrity of the process itself.
 21                 And if I may first speak to the subject of
 22  freedom of expression briefly.  It is very clear that
 23  freedom of expression in our democracy includes the
 24  freedom to know what is going on in public proceedings
 25  and to communicate with others about it.  And to be able


  1  to communicate about that, it is necessary for there to
  2  be access to the proceeding.
  3                 Now, the reality is that the public at
  4  large necessarily depends on reporters to obtain that
  5  access for them and to re -- report what goes on to them
  6  because they just can't do it for themselves.
  7                 And in the modern world it is clear that
  8  access to means of mass communication has been extended
  9  far beyond the limits of traditional media organizations.
 10  To -- it has [correction: is] extended to -- to bloggers, to users of --
 11  of social media, the people who have websites.  And if
 12  freedom of expression is to be truly democratic and alive
 13  in the modern world, it must give way to their interests
 14  too.
 15                 Now next, though, I turn to the individual
 16  interests that have to be balanced in this sort of a
 17  situation.  And it was very interesting to -- to hear the
 18  references to 1984 in the submissions today and -- and
 19  the great Orwell since he is one (1) of the great writers
 20  about how the individual may become lost in -- in the
 21  wake of mass interests.
 22                 And in a democratic society, it's clear
 23  under our law that the interests of individuals directly
 24  involved in public proceedings can also never be
 25  forgotten, and reputation is of vital importance, and it


  1  is reputation that is often put at risk in public
  2  inquiries in particular.
  3                 Reputation is -- is so important in our
  4  society because it is closely linked to the building of
  5  people to participate in society itself.  And secondly,
  6  there is respect for the emotional security, the dignity
  7  of people involved in a -- in a process, which needs to
  8  be respected.
  9                 And there can be circumstances where a
 10  public process may intrude upon areas of life, of
 11  individual life, where there is a reasonable expectation
 12  of privacy, and that has to be considered too.
 13                 And third, after freedom of expression and
 14  individual interest, one has to consider the integrity of
 15  a process.  And it is indeed clear, and I think it's been
 16  said once today, that the principle that public
 17  proceedings should generally be [sic] open exists so that
 18  justice will be done and can be seen to be done.

MISSISSAUGAWATCH (whispers in unison): “Seen to be done, that’s right.”

 19                 An open process allows the public to
 20  scrutinize and, if they see fit, to criticize the process
 21  and its participants.  It allows the public also to be
 22  assured about the fair conduct of the process because
 23  they can see it for themselves.
 24                 Now that being said, a public inquiry is
 25  not a public scrum.  First, it is a legal process.  It's


  1  appropriate for the Commission to take appropriate steps
  2  to ensure suitable decorum of the proceedings, a suitable
  3  tone.
  4                 Second, witnesses must be respected as
  5  individuals and not be subjected to undue intrusions or,
  6  at worst, intimidation.
  7                 Third, as it is a legal process there is
  8  going to be much that occurs in the hearing room that is
  9  properly private.  There will be written communications
 10  or oral communications which -- among counsel that are
 11  privileged.
 12                 There will be a lawyer's documentary work
 13  product that is also properly confidential.  And any
 14  inadvertent or even intentional intrusion upon those --
 15  those rights of confidentiality should be prevented.
 16                 So those, in my submission, are three (3)
 17  general areas of considerations that have to be weighed
 18  in the balance, and -- and, of course, in this area what
 19  -- what the Supreme Court has said repeatedly is that one
 20  must try to give a reasonably equal weight to all of
 21  those values and not -- not privilege some over -- over
 22  others.
 23                 And in -- in my submission, I -- I would
 24  suggest -- I would suggest that as a -- as a
 25  recommendation perhaps that -- that it would be an


  1  appropriate balancing of these principles if persons
  2  could be allowed access to a single video feed, which I
  3  understand can be prepared, an unaltered videotape of the
  4  proceedings, to use words that have been used with you
  5  this morning, so that not only established media
  6  organizations but individuals acting responsibly can
  7  exercise their appropriate rights of freedom of
  8  expression.
  9                 With respect to the cameras, I would
 10  suggest that it will be consistent with decorum for --
 11  for there only to be one (1) video camera, one (1) video
 12  feed, and that there should not be roaming video cameras
 13  or roaming audio devices in the courtroom.  There may, on
 14  occasion, be times in a public inquiry when -- when any -
 15  - any reporter, any member of the media, will be allowed
 16  to take photographs for a brief time and it should be one
 17  (1) rule for all in my -- my submission.
 18                 And with respect to audio recording, there
 19  is a precedent for allowing unobtrusive audio recording
 20  in courtrooms.  One (1) solution that might be adopted
 21  there that would respect confidentiality interests would
 22  be that if audio recording were to be allowed, it would
 23  be -- to be from a stationary position and should be at a
 24  distance, a reasonable distance, away from counsel tables
 25  to avoid any inadvertent intrusion upon matters of


  1  confidentiality.

MISSISSAUGAWATCH (whispers): “This guy is good.”

  2                 So those are the suggestions I would make
  3  in light of the balancing of those factors.  And I -- I
  4  suggest also that it would be appropriate for -- for the
  5  Commission to -- in -- in seeking to provide appropriate
  6  scope for free expression is to -- it would be helpful to
  7  remind members of nonprofessional media -- who -- who may
  8  be more or less experienced in these matters, I'm not
  9  sure -- but it may be appropriate to remind them that in
 10  the modern law of reporting on proceedings such as this,
 11  there are important limitations upon what people can say
 12  properly.
 13                 There is a civil liability in defamation
 14  which can result in matters of -- in statements of
 15  opinion or comment.  In matters of public interest,
 16  they'll be broadly protected as long as they are based on
 17  fact and made without malice.  But if they are not based
 18  on fact and not made without malice, those expressions of
 19  opinion or comment can lead to civil liability.
 20                 And, similarly -- similarly, statements of
 21  fact on matters of public interest are protected as long
 22  as they are responsibly published, and in this sort of
 23  situation [cell phone rings] -- I beg your pardon.
 24                 In this sort of situation, it is very
 25  important to bear in mind that the legal protection for


  1  reports of public proceedings has had a fundamental
  2  principle, which is, that those reports of public
  3  proceedings must be fair and accurate [cell phone rings again]. They must be
  4  balanced.  Can you put that somewhere for me, please? They must be -- be balanced.  They must
  5  reflect both sides of an issue.  If someone is going to -
  6  - whether they're a large organization or a single
  7  individual, if they're going to report an allegation,
  8  they have to identify it as an allegation.  If it is
  9  disputed, or if it may be disputed, they have to say
 10  that.  They have to be fair.
 11                 And there -- there's no licence for
 12  biassed reporting.  If someone engages in biassed
 13  reporting to the public because of an axe to grind or --
 14  or a -- a malicious intent, that falls outside the law.
 15                 And so -- and, as well, one has to bear in
 16  mind in the age of the Internet, the audience for the --
 17  the Internet in a -- in a particular matter may, in fact,
 18  be very small, but it is always potentially very large.
 19  And if we have an -- an example of an Internet --
 20  Internet publication that somehow becomes terribly
 21  popular, or goes viral in the popular term, the damage,
 22  if it is a wrongful publication, can be very significant.
 23                 So, in light of all of that, I would
 24  suggest -- I put it -- I'd have to put an asterisk on the
 25  recommendations I -- I submitted previously.  I would


  1  suggest that the Commission reserve a discretion to deny
  2  any reporter, organized or not, in the -- in the business
  3  sense, access to the video feed if that were to be abused
  4  in any future interest.
  5                 And so, subject to any questions you may
  6  have, Sir, those are essentially my submissions.
  7                 COMMISSIONER DOUGLAS CUNNINGHAM:   Thank
  8  you, Mr. Downard.
  9                 Does any other... audio fade...

Court transcript cut-and-pasted from Mississauga Judicial Inquiry website and modified as a video transcript.

Just wish to highlight Mr. Downard’s words:

It is very clear that freedom of expression in our democracy includes the
freedom to know what is going on in public proceedings and to communicate with others about it.  And to
be able to communicate about that, it is necessary for there to be access to the proceeding. Now, the reality
is that the public at large necessarily depends on reporters to obtain that access for them and to re -- report
what goes on to them because they just can't do it for themselves.

The Reality is that throughout my Judicial Inquiry submission, I blasted with:

For the record, there are no media in MYTHissauga… As for MYTHissauga’s only newspaper? Coverage of City Hall is a joke.

And boy, did the Mississauga News ever prove that coverage of their Mississauga Judicial Inquiry is an even worse joke. In their article that was supposed to cover citizen journalists’ access to media, the Mississauga News chose as their title, ‘Layers’ of land deal probed.

And what did the Mississauga News write about my appearance and that of Donald Barber?

“Both made their cases today, arguing freedom of expression.”

No, I argued that “there are no media in MYTHissauga… As for MYTHissauga’s only newspaper? Coverage of City Hall is a joke.” I also said, “Mississauga accredited media do not respect history enough to be Guardians of the Truth. As far as reporters at the National level, well… some of them are little more than stenographers.”

What I didn’t say to Commissioner Cunningham is that citizen-Bloggers can make better journalists than the paid crowd as I didn’t want to come off sounding arrogant and/or obnoxious.

I am saying that now: citizen-Bloggers can make better journalists than the paid crowd… and I submit the local media article ‘Layers’ of land deal probed as evidence once again that it’s tough to have Freedom of Expression when citizenry is hobbled by The Missing News.


The Mississauga Muse

The Mississauga Muse at the Mississauga Judicial Inquiry

One Response to “Peter Downard (Lawyer/media specialist) addresses Mississauga Judicial Inquiry –On: citizen journalism”

  1. Anonymous Says:

    Ground breaking stuff