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!
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:
- 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.
- Mr. Rehak will arrange an official photographing opportunity. Photographs are not to be taken in the Inquiry courtroom at any other time.
- No video recordings may be taken in the courthouse hallways, nor of individuals entering and exiting the courthouse.
- 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.
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,  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; firstname.lastname@example.org
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
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.
The Mississauga Muse