Canadians are gripped. But it couldn’t happen here.
A “staggering” number of viewers north of the border are watching the ugly Virginia defamation battle between movie star Johnny Depp and actress Amber Heard, a weeks-long court spectacle that’s putting the volatile former couple’s dirty laundry on display, live, for the world to see.
The COVID-19 pandemic has triggered a technological revolution in Canada’s justice system. Zoom trials are commonplace and most courts in Ontario are now equipped with cameras. But the Depp trial underscores this fact: Canadians are still far likelier to see what unfolds in an American court than in any courtroom here.
The Depp case “brings into pretty sharp relief the absurdity of the principle of supposedly allowing public access to courtrooms,” said Sonia Verma, Global News editor-in-chief. She oversees Global’s online platform, which has live-streamed some of the Depp trial on its news website along with ET Canada, also owned by Corus Entertainment.
She won’t disclose specific audience metrics. But during Depp’s testimony from her, hundreds of thousands of Canadian viewers were watching in numbers that are “quite staggering.” Verma and other proponents favoring expanded camera coverage in Canadian courts question why, if courts truly belong to the people, this country persists in electronically closing doors to the justice system.
“The world has evolved since these laws were created, and it’s worth taking another look,” she said. “We’re not sharing information that isn’t already in the public domain, we’re basically just amplifying it, and why shouldn’t the public be able to see what’s happening?”
In 2016, Ottawa defense lawyer Michael Spratt wrote a CBC opinion piece opposing televised coverage of court proceedings.
He and other skeptics argue that cameras have the potential to prejudice trial outcomes, diminish court decorum and lead to grandstanding by participants, depriving defendants of fair trials.
Five-and-a-half years later, Spratt said he has “modified” his position. He attributes that to his participation in a number of high-profile zoom court proceedings, as well as following the bail hearings for leaders of the Ottawa trucker protest earlier this year.
“Having court proceedings accessible to members of the public, I think, is much more representative of the open court principle,” which is enshrined in the Charter. That principle provides that the public has the right to observe the court process, and is one of the hallmarks of a democratic society.
“It is sort of a privileged and narrow view of the open court principle to say ‘anyone can come down to our courts and watch a case, as long as you can afford to take the day off work, afford transportation, afford child care, that you don’t have physical disabilities, or other issues, that may impede your ability to attend physically.’”
In the United States, the debate about cameras in courtrooms stretches back to the 1930s in the trial of the man accused of the kidnapping and murder of aviator Charles Lindbergh’s baby son, according to the non-profit The Free Speech Center.
As of 2006, all 50 US states had allowed some camera presence in courtrooms, according to centre’s website. That doesn’t mean the Depp trial is typical — the vast majority of cases don’t feature salacious content about Hollywood’s rich and famous. Also, US judges can ban television coverage from their courtrooms.
Cameras weren’t permitted to cover former movie mogul Harvey Weinstein’s sex assault trial in Manhattan in 2020 nor British socialite Ghislaine Maxwell’s procurement trial last year, also in New York City.
But many important American cases, such as the trial of Kyle Rittenhouse in Wisconsin last year, are broadcast live on television, giving the public “direct access to proceedings in order to draw their own conclusions,” the Los Angeles Times wrote in an editorial after the judge criticized media coverage. Rittenhouse was the armed Illinois teenager acquitted of shooting three people.
Meanwhile, here in Ontario, the Courts of Justice Act prohibits photographs and video recording of court hearings, nor are any recordings allowed in courthouses.
It’s not that Canada doesn’t have attention-worthy cases centered around important issues — and sometimes involving prominent people, such as the boating trial last summer leading to the acquittal of Linda O’Leary, wife of TV star and businessman Kevin O’Leary . The case was conducted in person in Ontario’s cottage country and observers watched online — if they had the “call-in” details obtained in advance. That continues to be how the majority of remote court proceedings are conducted in Ontario. (Unlike the Depp case, where anyone with a computer can find a streaming link on YouTube.)
Another example is the upcoming sex assault trial of Jacob Hoggard, former frontman of the pop band Hedley. His case is set to get underground in Toronto next week. Currently, the plan is for all parties to appear in person in downtown Superior Court. Still undecided—at least publicly—is whether media and or spectators can attend virtually.
Court administrators — and members of the judiciary — can’t pretend logistics are the issue.
In June 2020, with the pandemic shutting down access to courts across the country, Ontario permitted the YouTube broadcast of Justice Joseph Di Luca’s verdict in the case of an off-duty Toronto police officer found guilty of assaulting a black teenager.
More than 20,000 people watched the live stream while the judge read his decision from court in Oshawa. Proponents for Canadian court broadcasting called it a win for the open court principle and urged the expanded use. Soon after, Ontario Attorney General Doug Downey said “now we are seeing what is possible.”
In as of February 2021 reporta Canadian Bar Association task force concluded while the shift to online court proceedings has presented challenges it has also created “opportunity.”
“The easy access of court proceedings online (eg broadcast on YouTube or Zoom) is a boon to transparency and the open courts principle,” the report said. However, that doesn’t mean the CBA is prepared to endorse a plan to make entire civil and criminal trials accessible to the public via YouTube, so that anyone with a computer can tune in.
While the cameras in trial courts have “a public education value, and can improve public confidence in the justice system,” the CBA also recognizes the risks, such as inhibiting witnesses, invading personal privacy, and compromising the personal security of those interacting with the justice system, CBA Stephen Rotstein wrote in an emailed response to the Star’s questions.
A June 2021 report prepared by the Advocates Society survey found 70 per cent of respondents agree that the open court principle can be preserved in virtual hearings. Yet some stakeholders expressed concern about “mass viewing” of notorious or high-profile trials. “This could be a new and troubling form of reality television, especially when online bullying and trolling is widespread on the internet,” the report warns.
Online comments on the Depp trial bear out such concerns, with Heard taking the brunt of the abuse. She has yet to take the stand, but scores of doctored images and audio of Depp, who finished testifying this week, have been turned into memes and gone viral.
The YouTube coverage has also captured the carnival atmosphere outside the Virginia courthouse, which, inarguably, would exist with or without the internet coverage. One morning, after emerging from a large black Cadillac Escalade, reggae artist Bob Marley blasting behind him, Depp walked into the building smiling and waving to female fans yelling “We love you, Johnny.”
Nevertheless, the case is provoking discussion about the serious issue of domestic abuse. It’s also exposing millions of viewers to how a US civil court case operates. The trial shows “how grueling being in court … actually is,” wrote one poster. “I feel by watching it I am learning about human behaviour, psychology, the legal system, relationships,” stated another. Yet another added: “The trial is more entertaining than any movie I’ve ever seen.”
The Canadian Judicial Council, made up of chief justices and associate chief justices, did not respond to requests for an interview on its current position about broadcasting or live-streaming court proceedings. The most recent statement on the subject appears to be from 2002, when the CJC said while it remained concerned “about the potential impact television may have on witnesses, jurors and trial court proceedings generally,” that concern didn’t extend to courts of appeal .
For Spratt, the Ottawa lawyer who has “come around to the position that with proper controls, people should be able to access courts virtually,” there are still “too many questions and pitfalls of the wild west, free-for-all” of some highly publicized US court cases, for that to happen here.
“There is something not only unseemingly but highly dangerous to the administration of justice by turning a court proceeding, which should be the search for the truth, into the search for entertainment.”
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