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Lights, Camera, Adjudication

When criminal cases get the media spotlight, the code of ethics demands that legal professionnals balance the accused’s right to a fair trial with the public’s right to know. Enter the fray on Quebec’s Media v. Law debate.

By Susan Kelly

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Les carrières du droit
Édition 2007

It’s a jostle of paparazzi as reporters and television cameras swarm the accused in a high-profile court case. Such a scene may make for exciting shots on the six o’clock news, but it also can create chaos in a courthouse. Just ask Joanne Marceau, the Quebec crown prosecutor who acted as court spokesperson and press liaison during the release hearing for Karla Homolka in June 2005.

Homolka was nearing the end of a 12-year sentence for having helped her husband rape and murder her sister and other teenage girls. “It was still a very sensational case,” says Marceau. “Everyone wanted to see what she looked like after her time in prison. We wanted journalists and the public to be able to attend because they have the right to do so, but we knew that it had to be managed. Otherwise it would turn into a circus.”

In accordance with a new directive from the federal Superior Court in early 2005, cameramen and photographers were confined to specified sections of the courthouse corridors. As well, any audiotaping that reporters conducted during the hearing could not be aired. For this proceeding, major international and national media outlets were granted one seat each inside.

A separate pressroom was set up to accommodate an additional 300 people. There, journalists could view a simulcast of the proceedings and receive written summaries. An additional room was made open to the public in general.

In her role as official spokesperson, Marceau explained the rigorous security and accreditation procedures to the press and fielded their questions. She also arranged the press conference that took place after the judge handed down Homolka’s strict release conditions, when both the prosecution and defence could speak more freely.

Marceau continues to serve as a communications officer for the Crown — she currently holds the title of spokesperson for the deputy minister’s office — and considers it an important duty to build public awareness of the judicial system. Public awareness became a hot issue in 1997, when the Quebec Bar first permitted lawyers to discuss their cases with the press [see Did You Know?]. “Historically, justice personnel have always been very private,” says Marceau. “Now things are very open, and we have to maintain this transparency if people are to have confidence in the system.” As she sees it, greater confidence in the system will allow more victims to seek the justice that is their due.

LOOSE LIPS SINK SHIPS

The public may have a right to know, but lawyers such as Guy Cournoyer continue to stress an opposing obligation to protect their clients. Cournoyer served as associate counsel to the Gomery Commission, assisting and guiding their inquiry into irregular federal sponsorship spending, and he practises criminal law as a partner in a Montréal law firm. To him, the responsibility of lawyers is clear: they should not discuss their cases with the press. “The public’s right to know, from a defence counsel perspective, can only be vindicated by the public trial,” he says, meaning that an accused should be tried before the courts, rather than the media.

In the case of a man or woman charged with murder, reporters will ask the defence counsel to outline their strategy. Because solicitor–client exchanges are strictly confidential, there really isn’t much that can be divulged. Cournoyer points out that many criminal cases remain protected by publication bans, which preclude counsel from commenting at all on their client’s case.

“When a lawyer becomes involved in a case, he has no way of knowing whether it will eventually go before a jury or not,” he adds. By broadcasting statements about their client at the outset, the defence may expose potential jurists to the case. They would then have to be excused because of the bias this creates.

Finally, Cournoyer cites the media’s hunger for sensationalized “event” trials. When reporters hype a trial, Cournoyer feels, it’s rarely in support of the accused. “My personal rule is that when I argue a case, I don’t give interviews,” says Cournoyer. “This rule of mine is nothing against the media, but rather a bias toward the court. If I have something to say, I will say it to a judge.”

THE CASE FOR SPEAKING OUT

In the eyes of Stéphane Giroux, a reporter who often covers the courts beat for CFCF/CTV News in Montréal, lawyers like Cournoyer take an unnecessarily narrow view of the code of ethics. “It asks them to exercise caution, not remain silent,” he says. “Lawyers are merely required to show reserve in front of the media. Some judges and lawyers interpret this to mean we should be excluded almost entirely from the process.”

Giroux once studied law at McGill University. He never lost his fascination with the subject, even though he has made his career in journalism for the past 16 years. To say the courts are open just because the public can attend is “hypocritical at best,” he feels. “How many people can take a day off and go sit in a courtroom through a trial that may last months? Lawyers and prosecutors should be prepared to give the media at least the basics.”

The journalist does understand that solicitors can be concerned about how the press will summarize their remarks. (The usual unhelpful dodges: a hurried “no comment,” or an answer that is purposely vague.) Still, Giroux believes that when legal professionals refuse to give information on a case, they deny the public their right to a better understanding. “All we ask for or require in most cases is a brief summary,” says Giroux. “We don’t ask them to plead their case, merely give the how and why.”