Recording for Justice

December 13, 2011 permalink

Vern Beck profiles the late Justice Howland, who directed Ontario's courts to allow recording devices in the courtroom.

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It’s time for the legal establishment to end its disrespect for one of Ontario’s greatest jurists, former Ontario Chief Justice W.G.C. Howland

By Vernon Beck – December 13, 2011

William Goldwin Carrington Howland (March 17, 1915 – May 13, 1994) was a respected lawyer, judge and the former Chief Justice of Ontario.

Born and raised in Toronto, Justice Howland attended Upper Canada College in his earlier years and graduated from the University of Toronto in 1936.

Shortly afterwards he attended Osgoode Hall to study for his law degree and afterwards was called to the Bar of Ontario in 1939.

In 1975, Howland was appointed a Judge to the Court of Appeal, Supreme Court of Ontario and two years later was appointed as the Chief Justice of Ontario where he remained in this position until his retirement in 1992.

This photo of Howland was taken sometime in the 1930’s before he was called to the Ontario Bar in 1939.

Justice Howland believed in transparency in the administration of Justice

Throughout his active legal career, Justice Howland gained widespread recognition for his strong belief in the rule of law and his dedication to the advancement of the administration of justice for the benefit of all.

After faithfully serving the people of Ontario for approximately 20 years as the Chief Justice of Ontario, in a bold and decisive decision on April 10, 1989, Chief Justice Howland issued a historic Practice Directive to all Ontario Courts which reaffirmed the right of the citizens of Ontario to audio record their own court hearing under Section 136(2)(b) of Ontario's Courts of Justice Act which even today reads, “nothing prohibits a lawyer, a party acting in person or a journalist from unobtrusively making an audio recording at a court hearing, in the manner that has been approved by the judge, for the sole purpose of supplementing or replacing handwritten notes. R.S.O. 1990, c. C.43, s. 136 (2); 1996, c. 25, s. 1 (22).”

Justice Howland’s directive to his fellow jurists and to all court administrators was clearly intended to bolster the public’s respect for the administration of Justice by promoting greater openness and transparency in the courts of Ontario.

In his Directive to all courts, Chief Justice Howland ordered Ontario’s courts to stop harassing the citizens of Ontario in respect to audio recording and to respect the right of the citizens granted under section 136(2)(b) of Ontario’s Courts of Justice Act to audio record their own court proceedings using their own audio recording devices without having to make oral or written arguments before the presiding judge.

Howland’s Directive stated, “Subject to any order made by the presiding judge as to non-publication of court proceedings, and to the right of the presiding judge to give such directions from time to time as he or she may see fit as to the manner in which an audio recording may be made at a court hearing pursuant to s. 146 [now s. 136] of the Courts of Justice Act, the unobtrusive use of a recording device from the body of the courtroom by a solicitor, a party acting in person, or a journalist for the sole purpose of supplementing or replacing handwritten notes”

The only discretion that judges were to have under the Courts of Justice Act was with the manner in which citizens before the court could audio record their own court hearings.

Back at the time when the Courts of Justice Act was made law, recording devices were bulky, heavy and required power cords in order to operate, so it was not unreasonable for judges to be given some discretion with the “manner” of recording so that equipment and power cords could be physically located in a manner so as to not obstruct court proceedings.

Many at the time considered Justice Howland's directive to the courts as one of his most notable contributions to promoting transparency in the courts and protecting the rights of self represented individuals before the courts in Ontario.

Over his career, Justice Howland made so many notable contributions to society and the advancement of the administration of justice that two years after he issued his historic practice directive to the courts about audio recording, he was awarded the Order of Ontario in 1991, and a year later in 1992, the Order of Canada.

Howland received many awards and honours during his career including international recognitions as the National President of the United Nations Association in Canada.

Many in the legal system have lost their understanding of the law

Tragically today, many in the legal system do not even know who Justice Howland is or know of his great contributions to the legal community and to the people of Ontario and of Canada during his career.

In spite of former Chief Justice Howland’s notable It time for the legal establishment to end its disrespect to Justice W.G.C. Howland contributions to the administration of justice, many judges, lawyers and court administrators, outright defy and make of mockery of Section 136(2) of the Courts of Justice Act by misleading and routinely threatening the citizens of Ontario who attempt to exercise their rights under the law. Some examples include:

• In Hamilton, Ontario, a judge permitted a self represented party to audio record but ordered that the tape recorder be surrendered to court staff at the end of the court hearing until the resumption of proceedings at the next scheduled court proceeding.
• In London, Ontario, a citizen was arrested, handcuffed right in the courtroom and taken out like a criminal when he brought his recording device into the court to supplement his notes in his own hearing. The man was later released and charges dropped after the Crown Attorney admitted that the man was wrongfully arrested and detained.
• A number of citizens have reported being harassed and threatened by Peel Regional Police security staff at the Brampton, Ontario court. Self represented citizens were turned away and told to take their audio recording devices back outside and to leave them in their cars.

There are many examples over the past decade where the citizens of Ontario have been threatened and intimidated by courthouse security forces and by judges over the simple right to audio record.

In spite of the fear of recording devices by many jurists some such as Justice Craig Perkins and Justice Backhouse have in the past respected the law and allowed recording in their courts.

Even today, signs posted by the Attorney General at most courthouses continue to intentionally mislead the public by stating that recording devices are prohibited but conveniently do not inform the public of their rights under section 136(2)(b) of the Act.

Police officers at some courthouses are routinely misdirected about the law by senior court administrators and instructed that recording devices are banned and to not allow the devices in the courtroom.

Rather than upholding the law and protecting the citizens as they are supposed to do, many police officers are mindlessly breaking their oath and helping those administering the courts with an iron fist to obstruct justice and to violate the lawful rights of the citizens.

By misinforming and harassing the citizens of Ontario the legal establishment is in effect bringing disrepute to the Administration of Justice and tarnishing the reputation and good work of former Chief Justice Howland who made it very clear when he was in charge that the rights of the citizens of Ontario under law was not to be obstructed by anyone, not even the judges.

Signs that positive changes are coming

With the advancement in personal recording technology, the discretion of a judge over the “manner” in which a recording is done in the courtroom has become redundant in today’s world.

Digital recorders are very tiny and unobtrusive, silent, will record for hours without changing batteries and have microphones built right in to them.

High quality recordings can be obtained just by placing the device on the table in front of the parties.

Recently, on December 6, 2011 I attended the Huntsville, Ontario court to hear a case involving a self represented person who was in court against a senior Crown Attorney.

Outside of the courtroom door was one of the same signs posted at most courthouses intended to mislead the public which states that audio recording was prohibited but with no mention of Section 136(2)(b) of the Act.

However, in spite of the shamefully misleading sign posted at the courtroom door, I was pleasantly surprised inside when The Honourable Justice George Beatty refused to accept the lame objections of the senior Crown Attorney from Muskoka, Ted Carlton, and made it clear that the right of the self represented parties under Section 136(2)(b) of the Courts of Justice Act to audio record the proceeding would be respected in his court.

Compared to some of the shenanigans that other judges and lawyers have displayed in the courts over the issue of audio recording, it was refreshing to see Justice Beatty give his unwavering respect to the law and to protect the rights of a self represented person before him in his court.

In light of what appears in recent years to be a renewed resistance to audio recording in the courts and the revelation that official court transcripts are being tampered with, the importance of recording devices for accurate note taking is even more important.

The Attorney General should immediately order that all of the misleading signs at the courthouses should be ripped down and effective steps taken to stop the blatant obstruction of Justice to the Courts of Justice Act.

Justice Howland knew back in 1989 what was just for the citizens of Ontario and he set the example by acting decisively on behalf of the people of Ontario.

Even today, the good name of Justice Howland lives on. Students who achieve excellence in their law studies are given generous scholarships though the Hon. William G. C. Howland Award of Excellence Entrance Scholarship fund which has been made possible through a gift from the estate of the late Justice Howland.

It’s time for judges, lawyers, court workers and all in the legal establishment pay their due respect to Justice W.G.C. Howland as well as to the people of Ontario by following Justice Howland’s lead to make the courts more open, transparent and affordable to the citizens of Ontario.

Source: Canada Court Watch