MISSISSAUGA JUDICIAL INQUIRY –Commissioner J. Douglas Cunningham’s decision: “In balancing these three considerations, I conclude that citizen journalists should have access to unedited, raw footage of the Inquiry proceedings.”

April 26th, 2010  

YES! YES! YES! I’m so happy!

My favourite part is Commissioner Cunningham writing:

In balancing these three considerations, I conclude that citizen journalists should have access to unedited, raw footage of the Inquiry proceedings. This access will promote freedom of expression, and allow Mr. Barber and Ms. Bennett to report on aspects of the Inquiry that may not be covered by the accredited media.

That means he got my part about there not being any media in MYTHissauga.

The Mississauga News just came out with Split decision for citizen journalists. Not for me it wasn’t. I didn’t really want to videotape! I’d be forced to change batteries and I wouldn’t have a complete unaltered record that way. Plus I wanted to draw/sketch in court and you can’t do that and videotape too. All I wanted was the Rogers feed for historical records and got it!

This leaves me free to be court sketcher. Like this sketch I made on April 2, 2007 when Donald Barber had to fight off the Misstapo (rhymes with Gestapo) and the evil empire at Brampton Courthouse.


Commissioner J. Douglas Cunningham just helped UNstick public inquiries!

Thank you to Commissioner Cunningham but also to “friend of the court”, media specialist/lawyer Peter Downard, for speaking up on behalf of us-citizens and yet still providing that crucial “balance” that I define as “Canadian” and anti-evil-empire.

Okay. Enough from me.

Here’s Commissioner Cunningham’s decision letter.

You can access it directly at the Mississauga Judicial Inquiry website:  Decision of Commissioner Cunningham on Motion by Citizen Journalists for Permission to Record Inquiry Hearings (April 26, 2010)  (1,306Kb / 3 pages).

We’ve scanned the pdf file so Google can access it as HTML, people can do word searches in this document and of course, for ease of cut-and-paste. (The Commissioner’s words are a thing of Beauty.)

Last, if an eagle-eye spots an error, I’d appreciate being advised. Thanks.

[Decision Letter Begins]

City of Mississauga Judicial Inquiry

The Honourable J. Douglas Cunningham, Commissioner

Decision of Commissioner Cunningham

Motion by Citizen Journalists for Permission to Record Inquiry Hearings

The open court principle is a “hallmark of a democratic society”1. Public access to our courts allows all those who are interested to see that justice is administered in a non-arbitrary manner and according to the rule of law. As Mr. Downard explained in his submissions as amicus curiae, it enables justice to be done, and to be seen to be done. This principle is particularly important for public inquiries: open and public hearings instill confidence in the fact-finding, thoroughness and objectivity of a judicial inquiry.

While all who are interested can enter an open court, the reality is that most people will not be able to attend in person. This Inquiry will occupy many weeks and hearings will be held during regular business hours, making it prohibitive for the majority of people to observe the testimony themselves. As a result, they will depend on news organizations to report on the Inquiry’s events and progress.

Representatives of a range of accredited media organizations have attended and reported on the preliminary hearings to date. In addition, two Mississauga residents have been attending and reporting on the Inquiry. Donald Barber of the Democratic Reporter and Ursula Bennett of Mississauga Watch have demonstrated an interest in following and reporting on the Inquiry.

Non-accredited “citizen journalists” can play an important role in the reporting and analysis of events. As both Mr. Downard and Commission Counsel Mr. McDowell explained, the advent of social media and the proliferation of blogs have expanded the role of non-traditional journalists. Indeed, in 2007, the Supreme Court of Canada noted that in this age of electronic media and the blogosphere, it has become increasingly difficult to distinguish between media representatives and ordinary citizens.2 I recognize, of course, that this development is not without its dangers.3

The question before me today is whether, as citizen journalists, Mr. Barber and Ms. Bennett should be permitted to videotape the Inquiry proceedings. To date, Inquiry staff have arranged for Rogers Communications to videotape the entire Inquiry, on the condition that it provides feed to all journalists and media representatives with access to the media room.

In light of this, and in response to the request from Mr. Barber and Ms. Bennett, I must answer two questions. First, should Mr. Barber and Ms. Bennett be permitted to tape the Inquiry? Second, if not, should they be provided access to the Rogers feed? I answer these questions pursuant to the Rules of Procedure for the Inquiry, which provide that television cameras or other recording electronic or photographic equipment are permitted in the hearing room at my discretion.

The courts have identified three interests that I must balance to decide whether citizen journalists can record the proceedings. First, the interest in freedom of expression; second, the interests of the individuals directly involved in the proceedings; and third, the integrity of the process itself.

Freedom of expression includes the freedom to know what is happening in public proceedings, and to communicate about them. As well, as Mr. Barber noted in his submissions, for freedom of expression to be meaningful, members of the public should have access to a broad range of opinions and coverage. To ensure that a variety of perspectives is presented, journalists should have access to the raw footage of the Inquiry, and not only to edited videos.

Second, I must consider the interests of the individuals directly involved in the process. A public inquiry puts individual reputations at risk, and the procedures following at the Inquiry should manage these risks. Personal dignity and privacy should be protected. For example, while a witness’ evidence is a key part of the Inquiry and should be accurately recorded, it is not necessary to record that witness’ facial reactions throughout the other weeks of testimony .4

The third interest is the integrity of the inquiry process itself. This is a legal process, requiring appropriate decorum. Witnesses should not feel targeted or intimidated, and counsel’s written and oral communications should remain privileged. Our procedures should strive, to the extent possible, to prevent even inadvertent capturing of documents or conversations.

In balancing these three considerations, I conclude that citizen journalists should have access to unedited, raw footage of the Inquiry proceedings. This access will promote freedom of expression, and allow Mr. Barber and Ms. Bennett to report on aspects of the Inquiry that may not be covered by the accredited media. While the transcripts for each day’s proceeding will be posted on the Inquiry website, usually within five hours of the conclusion of that day’s hearing, I recognize that video footage is often more compelling and journalists have a legitimate interest in accessing it.

Citizens journalists will not, however, be permitted to record the proceedings with their own devices. Rogers has experience recording judicial inquiries, and is familiar with the protocols for doing so. As an accredited news organization, Rogers will be held to the standards of decorum and journalistic integrity that must govern the recording of any inquiry.

Mr. Barber and Ms. Bennett, the only two citizen journalists who requested permission to record these proceedings, are to be granted access to the media room and to the Rogers feed. They will make arrangements with Rogers to accept the raw footage, and they are encouraged to contact the Inquiry Communications Officer, Peter Rehak, for assistance with the technological requirements.

Rogers will provide its feed to the media room. All accredited news organizations, Mr. Barber and Ms. Bennett will have access to the media room and to the feed. For all news organizations and journalists, this privilege is subject to the following restrictions:

  1. All journalists and news organizations must comply with the Inquiry rules and with rulings that I may make during the course of the proceedings, including publication bans.
  2. Mr. Rehak will arrange an official photographing opportunity. Photographs are not to be taken in the Inquiry courtroom at any other time.
  3. No video recordings may be taken in the courthouse hallways, nor of individuals entering and exiting the courthouse.
  4. It is my hope that all journalists will report on the Inquiry in a fair and accurate manner. Our courts have developed guiding principles for responsible publication, and I encourage anyone not familiar with these principles to learn about them. By way of example, I note that to be protected under our law of defamation, a fair and accurate report must be balanced and must reflect both sides of an issue. It cannot leave out important information that would give a different view of what transpired, embellish with circumstantial detail or select only fragments of material for their “spiciness”. While I cannot prevent biased reporting, it is not protected by our law of defamation, and will not be condoned in this Inquiry.

If any citizen journalist or news organization fails to abide by these restrictions, I will entertain submissions as to whether I should cancel their access to the media room and the Rogers feed. (Of course, I recognize that individuals could record from the Rogers feed at home, albeit without the sanction of the Commission.)

It is a privilege to conduct this Inquiry in a democracy where citizens are engaged and eager to report on the events. I am grateful for the interest and involvement of citizen journalists, and believe that this ruling strikes an appropriate balance of the interests at stake.

1 Vancouver Sun (Re) [2004] 2 S.C.R. 332 at para. 23.

2 Named Person v. Vancouver Sun, [2007] 3 S.C.R. 252 at para. 153 (in dissent).

3 See, e.g., Crookes v. Wikimedia Foundation Inc., 2009 BCCA 392.

4 In this regard, see Justice Sopinka’s analysis in New Brunswick Broadcasting Co. v. Nova Scotia, where the Court upheld a restriction on hand-held cameras in the Nova Scotia legislature’s public gallery although the restriction may “on occasion detract from the atmosphere of what is going on and no doubt may from time to time deprive the public of a considerable source of amusement”. New Brunswick Broadcasting Co. v. Nova Scotia, [1993] 1 S.C.R. 319 at para. 163.

Cunningham, A.C.J.O. (Commissioner)
April 26, 2010

[Decision Letter Ends]

Oops. This just in from the Mississauga Judicial Inquiry.

Inquiry to hold hearing on Friday

City of Mississauga Judicial Inquiry to hold hearing on Friday, April 30, 2010, on Mississauga News motion

Mississauga, Ont., April 26 /CNW/– The City of Mississauga Judicial Inquiry will hold a hearing on Friday, April 30, 2010, to hear a motion by the Mississauga News newspaper for an order that the affidavit of Peter McCallion regarding his ability to pay for counsel at the Inquiry and the cross-examination on that affidavit be made part of the Commission’s record.

The hearing will commence at 10:00 a.m. in Courtroom 1 at 950 Burnhamthorpe Road West.

Mr. McCallion was granted standing at the Inquiry on December 14, 2009. He also requested funding for legal counsel for the Inquiry. Mississauga City Council approved funding of up to $100,000 , on the condition that he provide evidence of his inability to pay, and only covering the time that Mr. McCallion was testifying.  On March 4, 2010 Mr. McCallion brought a motion before the Commissioner, asking him to request the City of Mississauga to reconsider the limit in order to give him the ability to fully participate in the Inquiry. The Commissioner ruled that further evidence was required in order to enable him to make such a recommendation.  The Commissioner ordered that Mr. McCallion swear an affidavit as to his ability to pay for legal counsel, and that Commission Counsel cross-examine Mr. McCallion on that affidavit.  That cross-examination took place earlier this month.

The affidavit and cross-examination transcript are currently confidential and have been provided only to Commission Counsel.  The Commissioner will review the affidavit and the transcript of the cross-examination and make a recommendation to Mississauga City Council as to whether Mr. McCallion should receive additional funding for counsel.

The City of Mississauga Judicial Inquiry is an independent judicial inquiry that was established under Section 274 of the Municipal Act 2001 by a vote of the Mississauga City Council on November 11, 2009. The mandate of the Inquiry is to investigate issues in connection with the acquisition by the City of Mississauga of approximately 8.5 acres of land in the city centre. Mr. Justice J. Douglas Cunningham, Associate Chief Justice of the Superior Court of Justice of Ontario, has been appointed Commissioner.

Further information about the Inquiry is available on its web page: www.mississaugainquiry.ca


For further information:

William McDowell, Commission counsel: 416-865-9500; wmmcdowell@mississaugainquiry.ca

Last. Peter Downard’s presentation is just so Perfect that I want repeat it all and end today’s Blog with it.

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.


The Mississauga Muse

The Mississauga Muse at the Mississauga Judicial Inquiry

2 Responses to “MISSISSAUGA JUDICIAL INQUIRY –Commissioner J. Douglas Cunningham’s decision: “In balancing these three considerations, I conclude that citizen journalists should have access to unedited, raw footage of the Inquiry proceedings.””

  1. Nice reporting there, probably a onerous too Says:


    The News makes motion at inquiry

    Motion filed. A motion filed by The Mississauga News at the judicial inquiry calling for Peter McCallion’s affidavit, detailing intimate financial information showing why he needs taxpayers to foot his legal bill, to be made public is being considered by commissioner Douglas Cunningham.


    Related Topix: Canada,

  2. Michael Says:

    Just finished watching the Mississauga Inquiry today. The Commissioner and the Omers lawyer want to know why the Inquiry was asked to look at the Enersource Deal in addition to the Peter McCallion/ WCD deal.

    Are you kidding me?

    Omers benefited from the last-minute, veto clause that was slipped in to the Enersource deal. Hazel McCallion signed the Enersouce deal that gave Omers that veto. Councillors never saw the agreement that gave Omers that veto. Councillors approved a deal that did NOT have a veto. Hazel was given the agreement but says that for $200,000 in salary, she did not read the agreement that gave Omers a veto.

    It’s just coincidence and pure luck that Hazel’s son, Peter would meet with Omers (Nobrega) and ask to buy Omers’ land. It’s just coincidence that Omers would offer Peter a $14 million parcel of land but Peter would not have to come up with the money for years. Peter has said he earns $60,000 a year and spends $60,000 a year on his mortgage. Peter has said that he hasn’t filed or paid income taxes for years. But Omers was willing to hold a $14 million piece of land for Peter even though he couldn’t pass a basic credit check.

    I don’t think Omers would give that deal to anyone else. Was it a big thank you to Hazel for giving Omers that Enersource veto? If Hazel didn’t know about the veto, why would her son, who has no money even know that he could try to buy land from Omers? Mr. Commissioner—seems like that Enersource veto and the McCallions are linked.