Under a policy that came into force on February 1, journalist are now allowed to tweet and live-blog proceedings in the OntaTwitter-007rio Superior Court of Justice, the province’s court that hears civil and major criminal proceedings.  Although the policy has a number of limitations, it marks an important step forward for open courts in Ontario.

The Supreme Court of Canada has recognized that the open courts principal is a fundamental part of freedom of expression and democratic discourse and that, as a practical matter, the public relies on the media to be informed about what happens in court.  However, the right of the media to report on what happens in court is limited in a number of important ways.

Most importantly, trial courts in Ontario and across Canada are almost always closed to cameras.  In the absence of cameras or live audio coverage, live-tweeting offers the public a unique opportunity to find out what is happening in court in real time.

The Ontario policy follows similar rules enacted in a number of other provinces, including Nova Scotia, Alberta, British Columbia, and Saskatchewan.  Until it came into force, the issue was left up to individual judges.  While reporters were given permission to tweet in a number of significant cases, judges prohibited tweeting in other cases, including the widely-publicized Shafia “honour-killing” trial in 2011.  No clear rules emerged governing when tweeting would be allowed.

The new policy brings some clarity to what had been a rather inconsistent practice, but a number of questions remain unanswered.  Perhaps most importantly, the policy only applies to the Superior Court of Justice.  It remains unclear whether journalists may tweet in Ontario’s lowers courts, where most criminal trials take place, or in appellate courts.

The policy also does not apply to the general public.  It only applies to journalists, self-represented litigants, and lawyers and other legal personnel.  Unless the judge orders otherwise, members of the public are still prohibited from tweeting in court.  The policy’s distinction between a “journalist” and a “member of the public” may seem artificial, particularly in light of the role Twitter has played in encouraging and legitimizing citizen journalism.  Judges applying the policy will no doubt be faced with difficult decisions about who qualifies as a journalist.

It is also not clear how the distinction fits with the Supreme Court of Canada’s 2009 decision in Grant v. Torstar.  In recognizing for the first time Canada’s responsible communication libel defence, the Court wrote that “the traditional media are rapidly being complemented by new ways of communicating on matters of public interest, many of them online, which do not involve journalists. These new disseminators of news and information should, absent good reasons for exclusion, be subject to the same laws as established media outlets”.

On the other hand, without this limitation Twitter might never have made it into courtrooms at all.  Twitter’s appeal lies in the fact that it allows a user to communicate in real time, but opponents of tweeting from courtrooms emphasize the risks that come with instantaneous communication.  They suggest that complex testimony or argument cannot be summarized in 140 characters, or that someone tweeting in real time may, in the heat of the moment, violate a publication ban.  Recognized journalists are perhaps more likely than the average person to use Twitter responsibly in court, and more accountable if they do not.  Restricting it to journalists may offer a balance that addresses concerns about Twitter use while still allowing the public to learn about what happens in court through the media.

 Adam Lazier is an Associate at Blake, Cassels & Graydon LLP