Commercial Litigation and Dispute Resolution Blog

On September 9, 2016, the B.C. Supreme Court issued the first decision to consider the court’s new practice directive concerning the often contentious question of whether to permit a trial to be recorded for broadcasting.

In British Columbia, like other provinces in Canada, trials and other court proceedings are not typically recorded for the purpose of media broadcasts. In contrast to the American experience, the public cannot watch even high profile civil or criminal trials on television. An exception is the broadcasting of proceedings before the Supreme Court of Canada, which are typically available.

In 2015, the B.C. Supreme Court issued Practice Direction 48 (the “PD-48”), which describes the procedure for applications for authorization to video record or broadcast court proceedings. PD-48 states that video recordings or broadcasts are prohibited unless authorized by the court. It prescribes a form of notice of application to be used by media organizations and requires that such an application be filed not more than 90 days and not less than 14 days prior to the start of the hearing. PD-48 provides that the argument in support of the application must address (a) fair trial rights, (b) privacy rights, (c) witnesses who will testify, and (d) the court and the administration of justice. PD-48 also addresses other matters, such as the physical criteria for recording equipment personnel, specific restrictions on what may be recorded, and a mandatory delay in broadcasting.

In Cambie Surgeries Corporation v. British Columbia (Medical Services Commission), 2016 BCSC 1686, Justice Steeves considered the first application brought under PD-48. The applicant, Pacific Newspaper Group, sought to set up a daily feed to host recordings of all proceedings in the trial for the purpose of recording or broadcasting. The underlying case has attracted immense public interest because it involves a constitutional challenge to BC’s ban on private health care for medically necessary services covered by the public health system.

Justice Steeves dismissed the application, and his reasons for doing so give some helpful guidance for those bringing future applications on behalf of the media. His decision demonstrates the following:

1. The application must be brought in a timely way. Steeves J. made clear at several points in his decision that the 14-day deadline imposed by PD-48 must be respected.
2. The court will ensure that any order made under PD-48 presents a fair and objective portrayal of the proceedings. He rejected an earlier attempt to have the application heard because of concerns with “an issue of objectivity” in the initial materials. He dismissed the application to broadcast the opening statements because the plaintiff had already completed its opening, and it would not be balanced if the public saw only the opening statement of the defendants.
3. The court will be sensitive to the privacy interests of parties and witnesses. Steeves J. dismissed the application to record testimony in the trial because individuals will be testifying about “very personal matters” regarding their health, their medical histories and issues of diagnosis and treatment. The application to record expert evidence on historical and policy matters was also dismissed because the cross-examination of those experts may involve putting individual cases to them.

Justice Steeves adjourned the application to record the closing submissions because the court would not hear those submissions for some time.