IN THE PROVINCIAL COURT OF NOVA SCOTIA
Citation: Hyde (Re), 2009 NSPC 34
Date: July 20, 2009
Registry: Halifax
Re An Inquiry Under the Fatality Investigations Act, S.N.S. 2001, c. 31 into the death of Howard Hyde
DECISION ON AN APPLICATION BY THE CANADIAN BROADCASTING CORPORATION FOR ACCESS TO THE SURVEILLANCE VIDEO EVIDENCE
Judge: The Honourable Judge Anne S. Derrick
Heard: July 15, 2009
Decision: July 20, 2009
Counsel: David G. Coles, Q.C., Counsel for the Canadian Broadcasting Corporation
Daniel MacRury, Q.C., Inquiry Counsel
Edward Gores, Q.C., and Dana MacKenzie, Counsel for the Attorney General
Kevin C. MacDonald, Counsel for Joanna Blair and Dr. Hunter Blair
David Roberts, Counsel for the Nova Scotia Government Employees’ Union
Sandra MacPherson, Q.C., and Elizabeth Buckle,
Counsel for the Halifax Regional Police
Rory Rogers, and Matthew Pierce, Counsel for Capital District Health Authority
Thomas Donovan, Q.C., and Loretta Manning, Counsel for Dr. Janet MacIntyre
Michael Wood, Q.C., and Jennifer Ross, Counsel for Dr. Stephen Curry
Blair Mitchell, and Angela Byrne, Counsel for the Schizophrenia Society of Nova Scotia
Carol Tooton, Executive Director,
Canadian Mental Health Association, and Simon Li and Mallory Treddenich, pro bono students at law
By the Court:
Introduction
[1] This decision addresses the application by the Canadian Broadcasting
Corporation (CBC) for an Order to copy the video surveillance exhibits at the Inquiry for broadcast purposes. The essence of CBC’s request is found in the Affidavit of Nancy Waugh, sworn on July 9, 2009 where she states:
5. That process [of filming the video surveillance footage during the Inquiry proceedings and live streaming to the internet] does not produce broadcast quality video of the standards which would usually be relied on by CBC in its work. In effect, we are requesting a mechanism which will give us better quality footage of the same material the Inquiry has determined to release in its live stream to the internet.
6. We intend to broadcast only those portions which we believe are newsworthy and it is likely not all of the material played by the Inquiry and streamed to the internet will be broadcast by CBC.
7. We are therefore seeking a copy of the video exhibits and undertake to broadcast only those portions which are played by the Inquiry.
8. If after reviewing the exhibits, we become aware of footage not played at the Inquiry which we would like to air, we undertake to return to the Inquiry for permission before broadcasting anything in addition to that broadcast by the Inquiry.
[2] Ms. Waugh has submitted a supplementary Affidavit (“Affidavit #2") sworn
on July 13, 2009 in which she indicates as follows:
3. CBC does not have the technology to present a split screen of the surveillance video together with the live stream video feed.
4. I have examined the video being shown by the Hyde Inquiry, and to date, when portions of the surveillance tape are shown, there is no evidence being given when the video is playing. Because the video is shown without accompanying evidence, there is no “context” to be offered by having a blank second screen.
5. If the video is accompanied by evidence, we can certainly add a date to the video display to reference that fact.
6. I am not aware of any efforts to take contents streamed by the Hyde Inquiry and distort it.
[3] Presumably, Nancy Waugh’s second Affidavit is intended to address concerns
about context and possible distortion of the evidence presented at the Inquiry. CBC will have anticipated these issue as they were referenced in a decision I rendered on July 6, 2009. I will address these issues as they bear on CBC’s application in due course.
Background - My Decision of July 6, 2009
[4] On July 6, 2009 I handed down my decision on the issue of direct downloading
of the video surveillance evidence to the internet. (Hyde Re, [2009] N.S.J. No. 308) In that decision I prohibited the direct downloading of the video surveillance evidence to the internet independent of the webcasting of the Inquiry.
[5] Although my decision referred specifically to the video surveillance from the Central Nova Scotia Correctional Facility (CNSCF), when I rendered it I was asked by counsel for the Halifax Regional Police to clarify if the prohibition against direct downloading also covered the video surveillance obtained from the Halifax Police station and I confirmed that it does. My decision specified the CNSCF video surveillance because the application I was addressing had been advanced by the union for those employees, supported by their employer, the Attorney General of Nova Scotia. The factors that lead to my prohibition against direct downloading are the same for all the video surveillance, although the issue of prisoner privacy rights is less pronounced in the case of the HPD video surveillance.
[6] In my July 6 decision I noted that I was not ruling on whether the media are
entitled to some form of access to the video surveillance evidence for the purpose of broadcast or whatever other purposes might be identified. (paragraphs 33, 48, 51) It would not have been appropriate for me to adjudicate an application that had not yet been made.
[7] This application by CBC represents the application I thought might be made
once the hearing of the evidence at the Inquiry got underway. The written submissions by CBC indicate that permission is being sought “to duplicate the video exhibits so that it [CBC] will have better quality video footage of the portions of the video shown at the Inquiry.” If permission were to be granted CBC intends “to show those portions we consider newsworthy on television and on CBC.ca.” (Letter dated July 8, 2009 from David G. Coles, Q.C., counsel for CBC, to Inquiry Counsel)
The Video Surveillance of Mr. Hyde in Custody - At the Inquiry and In the Media
[8] The video surveillance evidence being tendered at the Inquiry is from the
Halifax Regional Police Service (HRPS) and the Central Nova Scotia Correctional Facility (CNSCF) The footage, which I understand totals approximately sixteen hours, is stored on DVD’s. In the last couple of weeks, the Inquiry has been viewing some of the DVD evidence from the Halifax Regional Police station booking area. This footage contains images of police officers struggling with Mr. Hyde and tasering him. Some of the footage has sound. Some of it, the video surveillance of police officers struggling with Mr. Hyde in a hallway leading from the booking area, does not.
[9] The Halifax Regional Police Service video surveillance is being played in the
courtroom on a large flat-screen television. The cameras in the courtroom live streaming the Inquiry proceedings are filming the footage while the DVD’s are played. Witnesses have been and will continue to be examined about the video surveillance. The examinations of witnesses by Inquiry counsel and counsel for the parties are also being live streamed. As I noted in my July 6 decision, subject to the quality of the webcast, when the video surveillance is playing in the courtroom, the viewing public sees and hears, by way of the live streaming, the surveillance images and any recorded sound.
[10] Images from the live streaming of the video surveillance have been appearing
in the print, broadcast and online media. Media outlets, including CBC, have been accessing the images from both the live streaming and the archived portions of the Inquiry’s webcast proceedings. No disclaimers have been posted to advise viewers that the images are, in the opinion of the media, of poor or substandard quality.
[11] To this point, none of the video surveillance from the Central Nova Scotia
Correctional Facility has been shown at the Inquiry. The proceedings have not reached the point of inquiring into the events that occurred when Mr. Hyde was in the custody of provincial correctional officials.
The CBC Application
[12] In CBC’s submissions, obtaining a duplicate copy of the video surveillance
for their broadcast and internet purposes is necessary to enable the Corporation to properly discharge its constitutional right to report on the Inquiry. CBC argues that the general public’s understanding of the Inquiry’s proceedings and the matters being examining by the Inquiry will be enhanced by video images that are of a superior quality than those available through the live streaming process I described earlier. CBC says it is simply looking for the opportunity to provide better public access to the proceedings, in keeping with what the webcasting is achieving. This, CBC submits, best satisfies the requirements of open justice. CBC wants to duplicate the video exhibits to ensure that “television journalists enjoy the same benefit which print and radio reporters already enjoy.” CBC states in its written submissions: “The existing practice of the Inquiry - to live stream from the television screen to the internet - may be satisfactory for print media and radio broadcast purposes, but it disadvantages television journalists who work in a visual medium.”
[13] In advancing its case for permission to copy the video surveillance DVD’s,
CBC emphasizes its role as a facilitator of the public’s access to and understanding of court proceedings, a role described by the Supreme Court of Canada in Edmonton Journal v. Alberta (Attorney General), [1989] S.C.J. No. 124: “It is only through the press that most individuals can really learn of what is transpiring in the courts.” (paragraph 10) CBC submits that live streaming does not replace the benefit accorded the listening and watching public by CBC’s news services on television, radio and the internet. CBC provides its consumers with predictable opportunities for obtaining encapsulated reports of newsworthy events. CBC submits it offers a unique service, distinct from the webcasting, to members of the public interested in the proceedings but too busy to sit through the live streaming of the evidence. Producing the best quality news product requires CBC to have copies of the video surveillance. In the words of its counsel: “CBC wants a good quality picture” to ensure meaningful access to the Inquiry’s proceedings and enhance the media reporting about them.
[14] Although CBC’s application is not buttressed by any jurisprudence to support
the right to better quality access to evidence than is available to other forms of media, CBC’s argument is that good “visuals” are the lifeblood of television journalists.
Positions of the Parties
[15] A number of parties have taken no position on the CBC application. These are:
Joanna and Dr. Hunter Blair, Dr. Janet McIntyre and Dr. Stephen Curry, the Capital District Health Authority, the Schizophrenia Society of Nova Scotia and the Canadian Mental Health Association.
[16] The Nova Scotia Government Employees Union (NSGEU), the Attorney
General of Nova Scotia (AGNS), and the Halifax Regional Police Service (HRPS), are opposing the CBC application. There are no parties that are expressly in support of CBC’s request.
[17] Inquiry Counsel also opposes the application.
Parties’ Reasons for Opposing the Application
[18] The parties that oppose the CBC application do so on the basis that granting
permission to CBC to copy the video surveillance and use the duplicated footage for broadcast and posting to the CBC website would “entirely undermine” my decision of July 6, 2009 prohibiting direct downloading of the video surveillance to the internet. (Submissions of the NSGEU by email, July 12, 2009) The NSGEU submits that the “posting of surveillance video on the internet [by CBC] would be no different from the posting of surveillance video [to the internet] by the Inquiry...” Inquiry Counsel and the other parties opposing the application advance the same submission. The Attorney General for Nova Scotia submits that the copying by CBC of the video surveillance for the purpose of broadcast and web posting is contrary to the reasons and spirit of my July 6 decision. (Submissions of AGNS, letter dated July 14, 2009) Counsel for parties opposing CBC’s application elaborated their positions in their able oral submissions.
Analysis
Right to “Good Visuals”
[19] Relying on Edmonton Journal, CBC notes that most people are unable to free up the time to attend court proceedings and therefore depend on the media to keep them informed about specific cases and the administration of justice more broadly. CBC submits that good quality visual images are crucial to facilitating public understanding of the justice system and satisfying the objective that its participants and institutions be held accountable.
[20] As I noted in my decision of July 6, this Fatality Inquiry is publicly accessible
to an unprecedented extent. (Hyde Re, paragraphs 20, 35, 77) My decision dealt with the issue of whether the video surveillance evidence - evidence which is the focus of this application by CBC - should be directly downloaded to the internet. I will not review my reasons for deciding that would not be appropriate and should not occur. I am unable to see how CBC’s request to duplicate the video surveillance DVD’s for broadcast and posting to its website is any different from what I have already prohibited. My decision prohibiting the direct downloading of the surveillance video evidence to the internet would be rendered meaningless if CBC was able to copy the DVD’s and post them to its website. This would, in effect, be a direct downloading to the internet, albeit on the website of a responsible media institution. The fact that the downloading would be to the CBC webpage would not eliminate any of the concerns I articulated in my earlier decision.
[21] As a matter of law, the media are not entitled, in my view, to the same quality
of image as is available to the Inquiry. There is no “format entitlement” to use the term employed in several cases as noted in my decision of July 6. (paragraphs 53 - 54) As I have already found, there is no constitutional right of the media to the clearest images, what might also be termed, the best “visuals.” (Hyde Re, paragraph 78) Indeed, I am satisfied that the images available to the media, while apparently not as pristine as CBC would prefer, are very effective for the purpose of providing the public with an understanding of the matters being discussed at this Inquiry. That was the hope embedded in the decision by the Inquiry to live stream its proceedings. I believe webcasting is offering meaningful access to the general public including as an aid to the media reports on the proceedings that are utilizing the live streaming and its archive. In my opinion, CBC cannot make out a persuasive case that without access to the copies of the video surveillance for broadcast and downloading to its website it is disadvantaged in discharging its media role or suffering a diminution of its constitutional rights.
Image-manipulation, Context and Privacy - Has Anything Changed?
[22] CBC has urged me to re-examine, through the lens of its application, issues I
confronted in my July 6 decision. CBC assures me that its application does not plough the same ground I have already decided and submits that concerns identified by me when considering the direct downloading issue, such as the risk of image-manipulation, decontextualization of the evidence, and privacy rights, do not deserve the same prominence or influence in my reasoning on this application. CBC argues for my re-visiting these factors with the following points: (1) any exhibit that is copied for media broadcast can be manipulated by an unscrupulous third party, a fact that should not prejudice CBC who is not responsible for this happening if it does; (2) the video surveillance evidence is being shown at the Inquiry at least some of the time without witness commentary; and, (3) surrender of privacy is the cost of doing democratic business.
[23] I have a short answer to the manipulation and privacy arguments. I dealt with
them on July 6. Downloading by CBC of video surveillance evidence to its website exposes that evidence to unlimited potential for manipulation on the internet. There are more and better opportunities to manipulate and distort DVD video surveillance on the internet than any other evidence, even if permission is given to copy other exhibits, such as photographs or documents, for media broadcast purposes. The DVD evidence downloaded to the internet cannot be regulated. I made this point previously. (Hyde Re, paragraphs 39, 40, 72, 73 ) And I have emphatically rejected the notion that employees and prisoners must sacrifice their privacy rights to the infinity of the internet. (Hyde Re, paragraphs 59 - 66)
[24] Furthermore, there is not only the problem of regulating evidence that is posted
to the internet. It is relevant to also note that the Inquiry will not be able to police the use of the video surveillance, if duplicated, certainly not once the Inquiry has concluded its mandate. When the Inquiry has discharged its statutory role there will be no one to respond to the future requests CBC undertakes to make if it wishes to use footage that is not played at these proceedings.
[25] As for the issue of context, CBC submits that the video surveillance is already
going to the internet without any accompanying witness testimony in those segments of the Inquiry’s proceedings where the video surveillance footage has been played for a witness before the witness is asked to comment. It is accurate to say that the live streaming of certain segments of the proceedings shows just the video footage before the witness is questioned about it. I do not accept however that this method of presenting the evidence bleeds the life out of my reasoning on the issue of context as I discussed it in my earlier decision. The playing of the video surveillance footage before a witness is asked to comment is a very limited part of the presentation of this evidence. The DVD images are primarily shown in segments interspersed or sometimes even over-laid with witness commentary. Although a person viewing the live streaming might choose to just watch those moments of video surveillance before a witness comments, it is hard to accept that webcasting watchers will not access at least some of the witnesses’ testimony about the footage.
[26] CBC makes the point that its viewers and listeners rely on it to provide context and interpretation of the evidence. This acknowledges that the general public are looking to have events placed in their proper context. I think it is reasonable to assume that this interest in context and interpretation will exist amongst a majority of those viewers who are watching the live streaming. Furthermore, the video surveillance includes the sounds of events occurring off camera and the visual depiction of events with no sound. Witness testimony about what was happening where there is only sound or only images is both helpful to the viewer and fair to those involved in the events.
[27] The video surveillance is embedded in the Inquiry’s proceedings. Responsible presentation of such dynamic evidence requires that it not be divorced from its context, the context of accompanying witness commentary in response to questioning from lawyers endeavoring to assist the Inquiry discharge its mandate. Furthermore, broadcasting media-selected parts of the video surveillance, presumably with reporter commentary, is already available through the webcasting. CBC is not disadvantaged by the Inquiry retaining control over the public’s access to this evidence.
[28] It is my view that the video surveillance evidence in this Inquiry presents a
greater challenge when issues of access are being considered than does the videotaped evidence in criminal proceedings that has, on occasion been made available to the media for broadcast. In my earlier decision I referred to the successful media application to obtain the videotaped admissions of a murder suspect in a “Mr. Big crime boss” police sting operation. (Hyde Re, paragraph 55, referring to R. v. Black, [2006] B.C.J. No. 3522 (B.C.S.C.)) The court imposed strict conditions for the duplication of this evidence, but it was, in any event, evidence of a vastly different character than the video surveillance footage being considered by this Inquiry. The “Mr. Big” interviews speak for themselves. They constitute footage of the unwitting suspect providing incriminating information to police posing as crime figures. Such interviews are usually going to be of interest for what is said, not what is happening. There is a greater likelihood that such evidence can be understood without witness testimony, and the issues of context and fairness, related to providing those involved with the opportunity to explain the events, do not necessarily arise.
[29] It also seems likely to me that the case to be heard on appeal by the Supreme Court of Canada, R. v. Canadian Broadcasting Corporation, mentioned at paragraph 56 of my earlier decision, concerns issues that do not precisely track those that have had to be confronted in these proceedings.
Television Broadcast
[30] CBC has sought access to the video surveillance DVD’s for television
broadcast and internet posting purposes. I do not want to be thought to have overlooked CBC’s request to duplicate the video surveillance for television use. I note that CBC acknowledged in its written submissions that the live streaming by the Inquiry “may be satisfactory for print media and radio broadcast purposes”, but not for television. As I noted at the start of this decision, the issue is “good visuals.” However, even in the case of television broadcast the issue of context arises, as do the privacy and image-manipulation issues. Locating the evidence in its context of accompanying witness testimony and as part of the Inquiry’s proceedings provides the greatest likelihood that everyone seeing it, including the media, will consider the commentary of the witnesses who were involved in the depicted events. The Inquiry is permitting unprecedented access to its proceedings: releasing the DVD’s of video surveillance to CBC for its use in any of the formats proposed would surrender too much control over this evidence.
Conclusion
[31] CBC understandably would like the best visual images it can obtain and the
right to virtually unlimited use of those images. It does not regard any of the concerns raised in my July 6 decision as impediments to what it is seeking. I do. I am amply satisfied that CBC, and other media covering this Inquiry, have what is required to effectively report on the proceedings. CBC’s constitutional rights are not jeopardized or undermined by denying access to the video surveillance DVD’s. The views I expressed in my July 6 decision remain unchanged. Not releasing the video surveillance evidence for broadcast or downloading to the internet properly respects all the rights and interests affected by the technology that enables such wide distribution of these images. None of CBC’s arguments persuade me that I should permit access to the video surveillance so that it can be duplicated for television broadcast or website purposes. The application is dismissed.