The Hamilton Spectator
Everyone is allowed to take notes in court.
But the other day a Toronto justice of the peace decided to make up his own rules. He banned “note-taking” in his Etobicoke courtroom where bail hearings were being held for G20 protesters.
It was the latest — and most ridiculous — in a series of bizarre steps taken by court officials to build a big fat wall around the whole judicial process for accused demonstrators.
So much for an open and transparent court system. So much for accountability.
On Tuesday I went to the Etobicoke courthouse for the bail hearing of Peter Hopperton, a Hamilton guy facing charges related to the summit. He is accused of being a leader of the Southern Ontario Anarchist Resistance, planning violent and destructive activities during the protests. He was arrested for conspiring to commit mischief and conspiring to assault and obstruct police.
Before going, I knew it was not going to be a routine day at court.
Toronto journalists who had already been covering some of the protesters’ court appearances had reported on the far-from-normal proceedings. For instance, at one hearing, the media and public were banned from the courtroom. They were, however, allowed to sit in a room right next door and watch the bail hearing unfold on a fuzzy closed-circuit TV screen.
It is as though the judiciary is trying to discourage people from watching justice happen.
In Etobicoke, I was puzzled by the tiny courtroom chosen for Hopperton’s hearing. An hour before it was to begin there was already a considerable crowd of family, supporters and media waiting in the hall. Too many to squeeze into the small room.
The same thing happened five years ago for the so-called Toronto 18 homegrown terrorist case. Nearly 200 journalists descended upon the Brampton courthouse, only to find the room set aside wouldn’t even hold all the lawyers. Court administrators quickly moved the case to the largest courtroom in the building, but even then only a quarter of us — I was one of the lucky ones — made it in.
In Etobicoke, though, no provisions were made. We were forced to sit nearly on one another’s laps. A few supporters standing at the back of the court were told they needed to find a seat or leave.
Once things got under way, the media was reminded of the publication ban put in place earlier. It is Section 517 of the Criminal Code of Canada and is fairly standard for bail hearings, although not automatic. What it says, essentially, is that you can’t publish, broadcast or otherwise disseminate evidence heard at the bail hearing.
The reasoning behind that publication ban, according to top media lawyer Brian Rogers, is to “protect the future jury trial of the accused from prejudice.”
What that means to the media is that we still take notes on everything. But we only publish the parts not covered by the ban: the outcome of the hearing, the bail conditions, the description of the courtroom and the people in it. Later, after the charges have been dealt with through a trial or a plea, the media can go back to their notes from the bail hearing and publish them, because the ban no longer applies.
So, as per usual, I took notes at Hopperton’s hearing. (It is against the law to take visual or audio recordings in a courthouse.) So did the other journalists. But after the morning break, we came back into court to have the clerk announce that Mark Conacher, appointed a JP in 2003, was ordering that no note-taking would be allowed in the courtroom.
I exchanged a bewildered look with Peter Small, court reporter from the Toronto Star.
When the JP returned to court, Peter was on his feet in a heartbeat asking about taking notes.
“The ban doesn’t apply to the media,” Conacher answered before resuming the hearing.
Whew. I could still take notes.
But what about Hopperton’s friends? And family? And the guy sitting near me who occasionally writes for an alternative newspaper?
Conacher offered no explanation. Cited no law.
Because there is no good explanation. And there is no law. The publication ban doesn’t prevent taking notes. It only limits what you can do with them afterward.
“Publication means showing it to somebody else,” says Rogers. He has never heard of a JP or judge banning note-taking.
“There’s nothing in the section (of the Criminal Code) he’s relying on to impose that order. This is something the JP has come up with on his own.”
Court security took Conacher’s no-note-taking decree to heart. I was asked if I was “with the media” several times that day by officers who eyed my notebook as if it was contraband.
I have since left a message with Conacher’s office hoping to interview him about the note-taking. He has not returned my call.
The whole thing is enough to leave one questioning the logic and order of things. Even those of us who aren’t anarchists.