There currently exists a patchwork of policies among provinces — some have no policy at all — and the Canadian Centre for Court Technology's proposed guidelines go farther than them all.
It is suggesting that anyone attending an open court hearing be allowed to use electronic devices set to silent or vibrate mode unless the presiding judge specifically rules otherwise. The user would bear the onus of abiding by any publication bans.
It's an attempt to create a standard set of rules for courts across the country at a time when judges are grappling with how to handle the still relatively new phenomenon of services such as Twitter and Facebook.
Like it or not, they are here to stay and growing numbers of people depend on them for information, said Stephen Bindman, who was part of the court technology centre's committee that drafted the guidelines.
"Public confidence in the judicial system is critical to the proper administration of justice," he said at the centre's conference in Montreal. "We saw this as a further means of advancing the open court principle."
British Columbia and Saskatchewan both brought in new policies last month allowing "accredited journalists" and lawyers to use electronic devices in trial courts, with Saskatchewan even specifying that they may tweet from the courtroom.
Many provinces allow anyone to use such devices in appeal courts, as fears about witnesses and juries are largely moot there. Nova Scotia expressly allows tweeting from its Appeal Court, but not from the lower courts by anyone without the judge's permission.
Ontario has seen judges in several high-profile cases attempt to tackle the issue, but still there is no provincewide policy. Tweeting was allowed at the trial of former Ottawa mayor Larry O'Brien, who was ultimately acquitted of influence peddling. It was allowed in London, but only in an overflow courtroom, at the trial of Michael Rafferty, who was convicted of abducting, sexually assaulting and murdering eight-year-old Victoria Stafford. It was banned outright in Kingston at the so-called honour killing trial of the Shafia family.
When discussing the guidelines the committee concluded that though there are risks to allowing social media in courts — disruption to the proceedings, violating publication bans and security of witnesses — practicality, as well as the open courts principle, steered them away from an outright ban.
The reality is that if tweeting is not allowed inside the courtroom, journalists will just step into the hallway to do it, making them miss potentially important evidence and context as well as causing disruptions, said Bindman, himself a former journalist.
"A prohibition that requires users step outside to push the send button makes courts seem a little out of step with modern reality," he said. "Better the devil you can see than the devil running outside every few minutes."
Lynn Smith, a judge of the B.C. Supreme Court who retired last month, said they decided to allow the use of social media only for lawyers and accredited members of the media because it minimizes the risk a publication ban will be violated. When members of the public attend a court hearing they would not necessarily ask if there are publication bans in place, she said.
"There's always a risk, but it probably tends to mitigate it a little more than if it didn't exist if you restrict members of the public," she said. "It's an incremental step. By permitting accredited journalists and counsel now to use the devices in the courtroom we can see what happens."
The phrase "accredited" journalist has the potential itself to cause problems. Amid a growing number of online news outlets, alternative media publications and blogs, the notion is drifting into a grey area.
The B.C. courts tried to head off any disputes about who was deemed accredited by putting the issue right to journalists. The court formed a committee of newspaper and broadcast journalists in the province and they were given the task of deciding who to accredit, based on questions such as whether the applicants subscribe to an ethical code of conduct. If the committee recommends the court accredit a journalist, that person must also then read a document about the law on contempt of court and publication bans.
But the policy is just a few weeks old and already Smith could cite at least one instance in which an independent blogger applied to be accredited and was turned down.
Bindman suggested journalists should be considering whether tweeting, sending snippets of information no more than 140 characters long, is adding value to their reporting at all.
"I didn't think their job was to deliver a transcript of the day's proceedings," he said. "I thought they were supposed to apply their education, training, expertise and knowledge to the evidence they hear then distill it in to a readable, interesting, accurate summary complete with context that provides the big picture.
"I fear that Twitter turns journalists into mere stenographers."