It seems everyone is talking about Steven Avery. Although many people in Canada had never heard of him, a Netflix documentary entitled Making a Murderer changed that when it was released in mid-December. The on-line content provider released its 10-part documentary series detailing the murder trials of Steven Avery and his nephew Brendan Dassy after the body of a young woman was found near Avery’s home. The program became a juggernaut, and it seemed impossible to go on to social media or congregate around a water cooler without people talking about it, and someone else pleading with them to keep the "spoilers" to themselves.

For those who haven’t seen it, the series explores the literal trials of Steven Avery who was wrongly convicted in 1985 for a sexual assault he did not commit. After serving 18 years in prison, Avery was released and launched a whopping $36 million (USD) lawsuit against the county and several of the people he said were responsible for his wrongful incarceration.

In November of 2005, the charred remains of young photographer Theresa Halbach were found in a so-called "burn pit" behind Avery’s trailer. The series provides a compelling view into the investigation of that murder and the almost immediate focus placed on Avery as the one responsible. It also raises questions about the correctness of the ultimate outcome of the trials of the two members of the Avery clan. For most people, the show is likely their first look inside the justice system, and in part, that is what makes it gripping. But, could such a program ever be made in Ontario?

Justice seen is justice done

In 2011, Justice Deschamps formerly of the Supreme Court of Canada confirmed that public access to the courts is an essential element in safeguarding the justice system. In a case involving the restrictions on the media’s right to broadcast court proceedings in Québec, she wrote, "Public access to the courts also guarantees the integrity of judicial processes as the transparency that flows from access ensures that justice is rendered in the manner that is not arbitrary, but is in accordance with the rule of law".

However, the court went on to find that the Québec Rules of Court which prohibit the broadcast of audio and visual recordings of court proceedings do not violate the Charter as they aim to protect the "serenity of the proceedings".

As a result, anyone in Ontario thinking that "Making a Murder – Canada" is in an editing suite somewhere just waiting to be released will have to wait a little longer it seems, as section 136 of the Courts of Justice Act expressly prohibits both audio and video recordings of a court proceeding. While the Act does theoretically permit recordings to be made, any recording requires authorization of the presiding judge, and the consent of both the parties and the witnesses.

A sad day for open justice

Daniel Henry is the former Senior Legal Counsel to the Canadian Broadcasting Corporation. He now advises clients on media law issues, and has been asked about making a documentary series similar to the Netflix hit. According to Henry, the consent provisions contained in the Courts of Justice Act provide a veto over public access to private individuals. "The public interest takes a back seat to private interest, regardless of how significant the public interest might be", he says.

Henry points out that a perfect example of where cameras should have been permitted into the court room was the recent trial of Senator Mike Duffy. He says, since the accused and most of the witnesses were public figures, and the issues were of both public and political interest, the lack of camera access was a wasted opportunity to provide real insight into the judicial process. "It was a very sad day for a supposedly open justice system, where the purpose is to get the information to the public, the way the public would normally receive it, which today includes audio-visual means".

"Confidence in the process is what [it’s] all about"

Henry has watched the full series of Making a Murderer and calls the controversy surrounding it "significant". He points to the many detractors who say the series left out critical information, but most importantly, he highlights the number of people talking about justice. "I agree that more information [in the program] would be better", he says. "Without the video, though, we wouldn’t even be discussing the case, and public discussion and eventual public confidence in the process is what open justice is all about".

While Canada does have its own brand of true-crime programming, it is missing that element of public engagement that comes with seeing the evidence, and hearing the witnesses first hand. So, to get a flavour of the inner workings of the justice system in Ontario, residents will have to be satisfied with watching old episodes of Street Legal – if it’s available on Netflix.

About the Author

Sean A. Moreman is Senior Legal Counsel at the Canadian Broadcasting Corporation.