Peter Downard (Lawyer/media specialist) addresses Mississauga Judicial Inquiry –On: citizen journalism
April 24th, 2010
It took far too long to post media specialist lawyer, Peter Downard’s excellent presentation on citizen-journalism which he gaveat 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
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.
24 1 COMMISSIONER DOUGLAS CUNNINGHAM: Thank 2 you. Mr. Downard, thank you very much for assisting us. 3 4 SUBMISSIONS BY MR. PETER DOWNARD: 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
25 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
26 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
27 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
28 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
29 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
30 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
31 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