Sunday, May 27, 2012

To Twitter or not to Twitter that is the question?

"Twitter" the CyberSmokeBlog cat!

Good Day Readers:

While we're at it you might as well meet our other poster cat "Grover." That's him checking out our blog - he's curious likes to keep an eye on us.
Finally, there's "Butch the Butcher" our third mascot we like to bring out for special occasions especially after someone or a group has annoyed us. He's a tad psychotic but a well-intentioned fellow, that is, when he's not off again on one of his tangents..
The Chair: Now, I'm sorry, there is someone else who wishes to speak?

Ms. Dragani: I'm Marisa Dragani with CBC National Television News, and we are going to consider putting forth an application with respect to what you mentioned about using electronic devices namely Twitter and I just need to contact our legal counsel.

The Chair: All right. And what's your name again?

Ms. Dragani: Marisa Dragani.

The Chair: Jordani?

Ms. Dragani: D-R-A-G-A-N-I (page 28 lines 10-23)

This seemingly innocuous request with an interesting history.

We have not done the research to determine whether reporters where allowed to twitter in real time during the Oliphant Public Inquiry (April-May 2009) with which Independent Counsel Mr. Guy Pratte is quite familiar having served as counsel to The Right Honourable Brian Mulroney. The Commission was looking into those envelopes stuffed with about $225,000 worth of cash Mr. Mulroney received from a German businessman/lobbyist. To the best of our recollection there was no real time twittering.

While it is recognized the ACJ Douglas Inquiry will be a quasi-judicial body, nevertheless, The Canadian Judicial Council is and had been struggling for a while to achieve a uniform policy for the use of handheld devices in Canadian federal courtrooms. Reference our posting, Responsible Courtroom tweeting 101! (February 11, 2012) in which we reproduce the article from, The Lawyers Weekly (Tweeting too trivial for some - Cristin Schmitz, February 17, 2012 Issue)

Fast forward to our posting, Manitoba courts need "handheld device policy! (March 10, 2012). Our point? The Manitoba Law Courts policy as it currently stands is too limiting and inadequate.

Exhibit "A"

At The Law Courts in the main lobby beside one of the elevators the following notice is posted:

Camera and cellphone use in The Law Courts Complex
Cameras, including cell phones may not be used anywhere in the Law Courts Complex. Failure to comply may result in your removal from the building.

The problem

(1) The definition is far too limiting because it does not discuss e-mailing, texting or twittering live from a courtroom which, if not done properly, could trigger a mistrial - it already has in American jurisdictions and elsewhere. But one example. Reporting arguments in real time by both sides on a point(s) of law or admissible evidence while a jury has been excused by the presiding Justice but the public is allowed to remain Doing that is clearly out of bounds

Exhibit B

The policy as duly constituted at the Manitoba Law Courts fails to distinguish the use of handheld devices by the media versus the general public. During the recently concluded Marke Stobbe high profile second degree murder trial, while media reporters were busy e-mailing, texting or twittering - whatever it is they do - a member of the public was quietly asked by a sheriff to turn off her held hand device. She seemed uncomfortable with the order so during a break in the proceedings we approached her. Seems she was a family member of Beverly Rowbotham the victim of the crime.

During that same trial, presiding Queen's Bench Justice Chris Martin had to ask a witness before testifying to turn off their handheld device (in their hand) obviously in active mode.

Exhibit C

During a Manitoba Provincial Court trial, a dummy in the audiance left their device in active mode. It rang once at which time they were asked to turn it off. Happened again shortly thereafter. Same result. We were hoping upon hope for a third so the person could be shown the door.

As it currently stands, it's possible to enter one courtroom in Manitoba and be told your handheld device must be turned off while in another it can be left activated and used - as already noted, especially by the media. The ultimate decision is left with individual Justices and Judges which places them in a difficult position that could lead to an uneven application of policy

We hope the CBC will pursue their request to twitter during the Douglas Inquiry in real time because it speaks to the larger issue of handheld device in Canadian federal courtrooms. A ruling by the Inquiry could be another step in bringing clarity to a situation that requires it.


We mistakenly reported earlier that the CBC was also seeking intervener status. The problem began when Ms Dragani addressed the Review Panel. It was brief and given the acoustics of the Federal Court of Canada's Winnipeg courtroom where the pre-Inquiry hearing was held, we did not adequately hear the presentation.

The Error was compounded when discussing the Inquiry later with a lawyer who suggested our request for intervener status would face the same major hurtle as that of the CBC's - both were not "touch" or impacted directly by the alleged actions of Associate Chief Justice Douglas. So it seems we were not the only one who misheard.

It was not until the transcript was released that we realized the error of our ways. Again, sorry!


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