Monday, February 15, 2010

Howland Directive - Recording Court Proceedings

Update: May 17, 2012 (Sunday)
Called Chief Justice of Ontario Office, left voice message to ask for the status of the Court Signage review referred to in the Ministry letter at the bottom of this post. I'll post their response here:


On April 10, 1989 the Chief Justice of the Ontario's courts, Chief Justice W. G. C. Howland issued what is called a "Practice Direction" (an order to those in the legal profession) as approved by the Ontario Courts Advisory Council which gave specific instruction on how to audio record a court proceeding you are involved in as a party or a solicitor, or if you are monitoring the proceeding as a journalist without having to first seek permission from the presiding judge.

It basically says the following:

If you make an audio recording of a court proceeding under section 136 of the Courts of Justice Act;

1. If you are a party acting in person, or a lawyer, you can not publish the recording or any part of the recording. You can only use it to supplement your notes. (See item 6 below). However, if you are a journalist, you can not publish the recording itself, nor any part of it, however you can report on the hearing as you normally would using the recording to supplement your notes, but you are still subject to not referring to the parts of the recording/hearing that the judge has made non-publication orders about in that proceeding.

2. You must obey any directions the judge has given at any time in the court proceeding regarding THE WAY IN WHICH YOU CAN RECORD. It does not say you can not record.

3. The recording must be made in an unobtrusive way (must not interrupt the court proceeding)

4. Must be made from the body of the court room

5. Must be made by a solicitor, a party acting in person (self-represented), or a journalist

6. Must be made for the sole purpose (only purpose) of supplementing or replacing their handwritten notes.

7. That it is to be considered as being approved already, without asking the presiding judge orally or in writing

This Practice Direction is available by making a Freedom of Information Request from the Ministry of the Attorney General, or more easily and readily available if you purchase a law book at a College or University book store in the law section titled "Ontario Annual Practice" ( Click Here to See - Canada Law Book )

The Practice Directions reads as follows:

"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 section 146 [now section 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 hand written notes may be considered as being approved without an oral or written application to the presiding judge."

The Foster Care Council of Canada's John Dunn is currently asking the Ministry of the Attorney General's Office to clarify who is responsible for misleading signs in public court houses regarding electronic recording devices.

See the letter below:


From: John Dunn (johndunn@afterfostercare.ca)

Sent: April 26, 2010 4:14:44 PM

To: jackie.mahon@ontario.ca

Cc: Andre Marin (amarin@ombudsman.on.ca); Horwath - QP, Andrea (ahorwath-qp@ndp.on.ca); Peter KormosMPP (pkormos-qp@ndp.on.ca); MPPSylviaJonesPCChildWelfareCritic MPPSylviaJonesPCChildWelfareCritic (sylvia.jonesqp@pc.ola.org); MinCYS MinCYS (lbroten.mpp.co@liberal.ola.org); MPPBobChiarelliOttawaWestNepean MPPBobChiarelliOttawaWestNepean (bchiarelli.mpp.co@liberal.ola.org)

Jackie Mahon
Communications / Issues Co-Ordinator / Media Relations
Ministry of the Attoney General


I am in the process of drafting a press release regarding section 136 of the Courts of Justice Act and the Howland Directive from former Chief Justice of Ontario regarding the use of recording devices in the courts in Ontario for the purpose of supplementing the notes of lawyers, parties acting in person and journalists.

Can you please let me know who is responsible for ensuring the courts in Ontario do not have misleading information to the public such as the misleading signs telling all citizens and court security that no person shall have recording devices in the body of the court during their trial.

People are being stopped at the security stations of court houses and told they can not bring the devices into the court despite section 136 of the Courts of Justice Act which says otherwise, as supported by Chief Justice Howland's "Howland Directive".

Again, to be clear, I would like to ask who is responsible at the Ministry of the Attorney Genral for ensuring that signs at the various court houses across the province are not misleading or contrary to the existing law.


Sincerely
John Dunn
Executive Director
The Foster Care Council of Canada
613-220-1039
http://www.afterfostercare.ca

RACAS - Ride for Accountability of Children's Aid Societies
http://www.racas.wetpaint.com

===========================
SECOND ATTEMPT
===========================

I sent a follow up letter as I have not yet recieved a response

RE: Court Administration‏

From: John Dunn (johndunn@afterfostercare.ca)

Sent: May 15, 2010 5:28:50 AM

To: jackie.mahon@ontario.ca

Cc: Andre Marin (amarin@ombudsman.on.ca); Horwath - QP, Andrea (ahorwath-qp@ndp.on.ca); Peter KormosMPP (pkormos-qp@ndp.on.ca); MPPSylviaJonesPCChildWelfareCritic MPPSylviaJonesPCChildWelfareCritic (sylvia.jonesqp@pc.ola.org); MinCYS MinCYS (lbroten.mpp.co@liberal.ola.org); MPPBobChiarelliOttawaWestNepean MPPBobChiarelliOttawaWestNepean (bchiarelli.mpp.co@liberal.ola.org)

Jackie Mahon
Communications / Issues Co-Ordinator / Media Relations
Ministry of the Attoney General

I have still not received a response from the enclosed request dated Monday the 26th of April.

See below for original request


Sincerely
John Dunn
Executive Director
The Foster Care Council of Canada
613-220-1039
http://www.afterfostercare.ca

RACAS - Ride for Accountability of Children's Aid Societies
http://www.racas.wetpaint.com


From: johndunn@afterfostercare.ca
To: jackie.mahon@ontario.ca
CC: amarin@ombudsman.on.ca; ahorwath-qp@ndp.on.ca; pkormos-qp@ndp.on.ca; sylvia.jonesqp@pc.ola.org; lbroten.mpp.co@liberal.ola.org; bchiarelli.mpp.co@liberal.ola.org
Subject: Court Administration
Date: Mon, 26 Apr 2010 16:14:43 -0400

Jackie Mahon
Communications / Issues Co-Ordinator / Media Relations
Ministry of the Attoney General

I am in the process of drafting a press release regarding section 136 of the Courts of Justice Act and the Howland Directive from former Chief Justice of Ontario regarding the use of recording devices in the courts in Ontario for the purpose of supplementing the notes of lawyers, parties acting in person and journalists.

Can you please let me know who is responsible for ensuring the courts in Ontario do not have misleading information to the public such as the misleading signs telling all citizens and court security that no person shall have recording devices in the body of the court during their trial.

People are being stopped at the security stations of court houses and told they can not bring the devices into the court despite section 136 of the Courts of Justice Act which says otherwise, as supported by Chief Justice Howland's "Howland Directive".

Again, to be clear, I would like to ask who is responsible at the Ministry of the Attorney Genral for ensuring that signs at the various court houses across the province are not misleading or contrary to the existing law.


Sincerely
John Dunn
Executive Director
The Foster Care Council of Canada
613-220-1039
http://www.afterfostercare.ca


=============================================
Ministry of the Attorney General's Response
=============================================

On May 26th, 2010, the Ministry of the Attorney General responded with a letter through Ann Merritt, Assistant Deputy Attorney General, Court Services Division.

The Ministry's letter refers to section 136 of the Courts of Justice Act, more specifically how it states that lawyers, parties acting in person (unrepresented by a lawyer), and journalists can audio record their proceedings "in a manner that has been approved by the presiding justice, solely for the purpose of supplementing or replacing handwritten notes."

The letter also asserts that "pursuant to the Courts of Justice Act, the presiding justice determines if audio recording devices are allowed during a court proceeding.

This letter from the Ministry refused to acknowledge the existence of the Howland directive previously mentioned in this post which clearly states that permission is not required from the presiding justice for lawyers, parties acting in person, or journalists to audio record court hearings.

The Ministry's letter also states that the wording on signage in the courthouses is currently under review.

In order to seek further clarification on these important matters I have sent the following letter to the Ministry's Ann Merritt.

Ann Merritt
Assistant Deputy Attorney General
Court Services Division

July 15, 2010

Ann Merritt

In your letter to me dated May 26, 2010 (Ref: M10-03350) you did not make any mention of the "Howland Directive" which allows lawyers, parties acting in person, and journalists to audio record court hearings without first seeking permission from the presiding justice.

Your letter also mentioned that the Ministry is currently conducting a review of the wording on signage in the court houses pertaining to the recording of proceedings.

The Act or the Directive?
On April 10, 1989 Chief Justice of the Ontario's courts, Chief Justice W. G. C. Howland issued a Practice Direction, as approved by the Ontario Courts Advisory Council, which was very clear about ensuring that parties acting in person, solicitors, and journalists can record their proceedings without having to first seek permission from the presiding judge. Specifically it says the following:

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 section 146 [now section 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 hand written notes may be considered as being approved without an oral or written application to the presiding judge.

It appears there is a conflict between the existing statute under section 136 of the Courts of Justice Act, and the Howland Directive in that

a) the statute gives the presiding judge/justice the power to prevent an audio recording from being made by the appropriate persons, and

b) the Howland Directive does not give the presiding justice/judge the power to prevent the audio recording from being made by the appropriate persons, but rather only gives the judge/justice the power to determine "how" a recording of a court proceeding can be made by the appropriate persons and that those recordings be subject to any publication bans which may have been ordered in relation to the matter.

Training of Court Security Personnel:
Citizens have complained about Court Security Personnel refusing to allow them to bring their recording devices into the common area of the court house and even from letting them enter the court house as a citizen despite the fact that neither the statute as written, nor the Howland Directive prevent persons from carrying these devices on their person and despite the fact that certain individuals are clearly permitted to use them for the purpose of audio recording their court hearings to supplement their notes.

Ministerial Signage Review
Your letter mentioned that there is currently a review being conducted by the Ministry regarding the wording of signs in the court houses across Ontario.


Questions:

1. Can the Ministry please clarify whether or not the practice direction (Howland Directive) allows parties acting in person, solicitors, or journalists to record their hearings without seeking permission from the presiding judge/justice and if all court house security are going to be properly instructed/trained as to the rights of parties, solicitors and journalists to enter into and record hearings as permitted by the statute and by the Howland Directive without interference from Security Personnel.

2. Approximately how long has the court house signage review been going on, does the Ministry intend to inform the public about this review, and when can the public expect to hear of any progress regarding the signage review.

Sincerely

John Dunn


The Ministry's response: (Click on image below, and then again for full size)