The circus comes to town.

There's a marked difference between the American publish-it-all attitude towards testimony in the courts and what some see as the increasing tendency of judges in Canadian courts to restrict publication in certain circumstances

A scene in an American courtroom as a murder trial begins: after unloading thousands of dollars' worth of equipment, scores of technicians invaded the 82-year-old courthouse, installing lights and vying for camera angles that accentuated the high ceilings ...

But, the judge in this case told the camera crews to pack up and leave; he didn't want his courtroom turned into the set for a soap opera.

The O.J. Simpson double-murder trial in California confirmed some observers' fears about the impact of TV. The trial unfolded in the U. S. amidst what's been described as a roar of publicity. With allegations of police racism and frame-ups, and the lawyers' posturing for the television cameras, many thought the judicial system had been lastingly poisoned. The trial became what many saw as a grotesque form of entertainment, with the media stalking witnesses, the glut of pop books, and the glamourization of commentators.

"There (was) this sort of three-ring circus feeling around it," says Allan Young, a law professor at Toronto's York University.

In Canada, most media requests for televising trials have been rejected. In 1992, Ontario's highest court said laws barring cameras from courthouses, not just the courtroom, are a reasonable restriction on press freedom. The Canadian Judicial Council, made up of chief justices of federally appointed courts, is also against cameras in the courts.

The Supreme Court of Canada has allowed broadcasting of only a handful of appeals. For example, in 1993, it allowed cameras to record the final arguments in the Sue Rodriguez assisted-suicide case. Those hearings involved only legal arguments and no witnesses. In 1991, the CTV National News broadcast a report on Youth Court in Northern Alberta and the CBC aired a number of proceedings in Youth Court in Edmonton. The identities of the youths were protected. In 1989, cameras rolled as the Ontario Supreme Court overruled a lower-court injunction that prohibited Barbara Dodd, 22, from ending her pregnancy. And, the CBC in Newfoundland aired portions of several trials as part of a documentary on the province's first Native judge. But, these are exceptions. And many feel it should stay that way.

The head of the Canadian Bar Association, Gordon Proudfoot, thinks that live television coverage of criminal trials can only damage public faith in the judicial system. It gives viewers only sensational tidbits of horrific trials and little information of how courts really work, he says.

"They are only going to roll the cameras out in the most horrific or exceptional or bizarre trials. Then, you are lowering the image of the administration of justice."

On the side of the media is Ian Hanomansing, a reporter for CBC-TV National News. He wrote in a Globe and Mall article: "To try and keep lawyers' antics in cheek by banning the camera makes as much sense as holding a trial in secret because a flamboyant lawyer appears to be showing off to the spectators.

"One of the most troubling things about the critics of the camera is that they don't consider the possible benefits of televising [the O.J. Simpson trial]. People are getting the chance to see whether justice is being done. Most of us don't need to watch a court in action to feel secure that it is acting fairly and impartially; but the Simpson case has been clouded by allegations that race, money, and celebrity are tainting the process. These strike at the heart of the court's legitimacy, and that makes it crucial that the trial be open and easily accessible to those who want to judge for themselves."

Keeping trials off the tube is not the only concern of the legal community. Many also think there's a strong case to be made for restricting publication of court proceedings. The media argue that the public has a right to know, that there's a need for justice not only to be done but to be seen to be done, and that freedom of the press is the most important issue.

In 1993, the media protested restrictions in covering the manslaughter trial of Karla Homolka. Ms. Homolka received a 12-year jail sentence for her role in the slaying of two teenage girls. Her estranged husband, Paul Bernardo, faced charges (to which he was later found guilty) of first-degree murder in the two deaths. A judge's order barred the public from Ms. Homolka's trial. The media were banned from reporting much of the evidence in the Homolka trial to ensure a fair trial for Mr. Bernardo. The judge also wanted to protect the community and the families of the murdered girls from the mental anguish that publishing the gruesome details of the case would cause. The judge barred everyone except court officials, Canadian reporters, and relatives of Ms. Homolka and the victims from the trial Some feel such details should be public knowledge, particularly in horrifying cases. According to one media lawyer, not to inform the public "is a serious constitutional breach and undermines the integrity of the judicial system."

On the other side are those who believe that, in certain circumstances, temporarily restricting reporting of court proceedings is the only way to ensure a fair trial, uninfluenced by newspapers, television, or radio.

"In my view, the media have not been responsible enough to the sensitivities of the jury-trial process," said Edward Greenspan, a criminal lawyer and university lecturer, in an address to the Canadian Bar Association. "It has taken centuries of evolution to take the conduct of justice out of the hands of the multitude; away from the mob and the marketplace where rumour, hearsay, passion, prejudice, malice, and mass emotion so easily hold sway... and take it into the quiet chambers, surround it with rules and restrictions, conduct it with dignity and decorum...

"Far too often bystanders in the mob and in the marketplace even today influence the outcome of individual cases ... through the publication in the media of highly damaging information which, under the rules of our judicial system, should never reach the minds of the jurors. This problem -- trial by media -- threatens the very basis upon which our judicial system operates, because it brings into the courtroom the rumours and passions of the marketplace. These must inevitably imperil the constitutional right of every accused to a fair trial...

"While restraining lawyers may erode the news media's right to freedom of the press and, by extension, the public's, experts say, such orders do not necessarily stop others from leaking lurid details. And, opinions remain divided over whether pretrial publicity does influence a jury verdict.

"Certainly the era of the lawyer as press agent is in full swing in the U.S. with some defence lawyers seeking book and movie deals for clients as vigorously as they do material witnesses ... The harm, say legal experts, is that an unbiased jury will be extremely difficult to select..."

But, does pretrial publicity really contaminate justice? Many feel that, while it may make their job more difficult, jurors generally base their decisions on evidence rather than media portrayal of events. The public may be warier of the media than the media (and the judges who uphold publication bans) realize. Media ban opponents suggest a high-profile trial may even increase that caution.

And besides, they add, sequestering (isolating the members of a jury during a trial) and the judge's instructions can do a lot to lessen the media's impact on a trial.

"The fact is that openness is still the rule, and exclusions the exception," wrote Klaus Pohle, a media law teacher, in a Globe and Mail article in 1994. "At common law, the only exception to an open legal system is `when justice cannot be done otherwise,' generally meaning protection of a fair trial."

SUGGESTED ACTIVITIES:

1. As the scientist dealing with small nuclear particles knows, a thing observed is a thing disturbed; as society watches the processes of crime and punishment, it cannot avoid carrying extraneous material into what, in theory, must be a quarantined courtroom where processes are carried out by perfect and objective rules." Edward Greenspan, Toronto criminal lawyer. But, some think a thing observed is a thing improved. Studies in the United States, where more than 40 states allow cameras in courts, show fears of grandstanding by lawyers and undue stress on witnesses are largely unfounded. Some say the judges appear more alert, the jury more attentive, and the lawyers less, not more, flamboyant when under the camera's eye. Discuss which view you agree with and why.

2. During the Bernardo trial, the media tried to get access to the videotapes shown to the jury. (These tapes showed in graphic detail the sexual assaults on three teenage women). The families of the victims tried to block media access. The Supreme Court of Canada ruled that the audio portion of the tapes could be played in open court but not the video. Conduct your own Supreme Court hearing on this issue, with students role-playing lawyers for the medial the victims' families, and the Justices.