Access denied in BC’s open court system

Victoria Times Colonist
reporters Louise Dickson, Lindsay Kines and Rob Shaw found case after
case where B.C.’s courts routinely and wrongly deny access to
information that should be available to the public.

This article was originally published as part of a four-part series by the Victoria Times Colonist Feb. 4-7, 2010.

By Louise Dickson, Lindsay Kines and Rob Shaw

The open court is one of the cornerstones of our justice system, necessary to maintain the public’s confidence in the administration of justice. Yet, Times Colonist reporters Louise Dickson, Lindsay Kines and Rob Shaw found case after case where B.C.’s courts routinely and wrongly deny access to information that should be available to the public. Over the next four days, they will show how the province lacks any consistent policy about what the public has a right to see; how, increasingly, you have to pay to see information; and how court staff don’t have the training and the resources to provide proper public access.

See the results of our visits to 10 B.C. courthouses in an interactive Google Map here


– Today, Feb. 4: An investigation of 10 courthouses on the Island and Lower Mainland reveals a court system where the rules are wildly different from one jurisdiction to the next.

– Feb. 5: B.C. courthouses are routinely breaking rules designed to let the public keep a watchful eye on police searches, and the provincial policy on court files that have publication bans is at odds with most other provinces.

– Feb. 6: If you want to go online and search B.C.’s public court records, be prepared to open your wallet, again and again and again.

– Feb. 7: Amid long lineups and sometimes unruly crowds, the civilian employees of the court registry have near absolute control over who gets access — but in many cases they are understaffed and poorly trained.

– – –

He’s a two-time killer from Victoria, but his latest murder trial was moved to another city to ensure he gets a fair hearing.

It’s a case with the potential to reveal a fair bit about public safety in your community.

Want to know what happened in open court?

Sorry, only the judge can release the tapes from the trial and she’s away on holidays. Try back in a couple of weeks. Maybe you can order the transcripts then.

Next case.

She was a well-known musician on Hornby Island. Her body was found near a marina last November. A search warrant that describes the RCMP’s hunt for her killer is in a file labelled “public access” at the Courtenay courthouse. You have a right to a copy. Want one?

Sorry, the courthouse staff say you can look at the warrant, but only the suspect or his lawyer get a copy. By the way, are you the suspect? No?

Next case.

He’s a 44-year-old North Vancouver man facing charges for trying to use the Internet to lure a 13-year-old Colorado girl into a sexual relationship. There’s an unsealed search warrant in a public file over at the North Vancouver courthouse that explains what the police know. It might even give parents a few tips on how to better protect their kids. Want to see the warrant?

Sorry, the justice of the peace just removed it from the folder as you were looking at it. She figures the Crown forgot to seal the warrant, and she’s pretty sure they’ll want to put it under wraps — especially now that you’ve asked to see it.

“You could push it,” she says, “but …”

Next case.

It’s not supposed to work like this. We have an open court system in Canada. On most days of the week, you can walk into a courtroom, plunk yourself down, and watch our judges, prosecutors and defence lawyers at work.

Except in rare cases, nobody checks your ID at the door. Nobody demands to know why you’re there or what possible interest you have in a particular case.

“Openness is necessary to maintain the independence and impartiality of courts,” the Supreme Court of Canada wrote in 2004.

“It is integral to public confidence in the justice system and the public understanding of the administration of justice.”

The same principle applies to court documents — unless there’s a good reason to keep them sealed. But a Times Colonist investigation has found case after case — including the ones described above — in which B.C. court registries routinely deny access to public documents. Court transcripts, criminal charges, unsealed warrants, even the names of people accused of crimes have all been withheld.

From Victoria to Courtenay, Surrey to North Vancouver, we encountered a court system where the rules change from one jurisdiction to the next, where front-line courthouse staff often seem unsure what they can or cannot release, and where the public can expect to answer a number of personal questions before getting access to court records.

Other provinces have tried to ensure a more consistent approach by laying out policies for public access. Ontario struck a justice panel with the media and developed a 21-page policy manual now posted online and distributed to court staff.

Indeed, every province west of the Maritimes, except B.C., has similar policies, posted on the Internet, that make clear what the public has a right to see.

The B.C. Attorney General’s Ministry, however, initially denied even having a policy, let alone one readily available to the public. A “one size fits all” policy would be unworkable given that every case is different, the ministry’s Court Services branch said in an e-mail to the Times Colonist.

But after the newspaper learned of an internal 1994 provincial court policy, the ministry confirmed that it remains in effect, and released a copy.

Not that staff at courthouses appear to be following it with any consistency.

Our reporters surveyed 10 courthouses on Vancouver Island and the Lower Mainland in recent weeks and found a wide range of responses to requests for the same types of files at each registry.

The differing policies from one courthouse to the next were especially stark when we tried to get access to search-warrant information.

The Supreme Court of Canada decided 28 years ago that the public can look at warrants once the search is done and the police have reported what they found.

But in B.C., access varies. In Victoria, Duncan and Nanaimo, the public has to provide the date and address of a search before registry employees will even begin to look for a warrant.

Travel up the Island highway to Courtenay, however, and they’ll give you a binder containing two years’ worth of unsealed warrants to read at your leisure. Getting a copy of one those warrants is another matter.

The Courtenay registry allowed one of our reporters to read a search warrant that police obtained while investigating the homicide of Hornby Island musician Tempest Gale last fall. But when he asked for a copy, the registry said that only the person who was the target of the search — in this case a suspect — or his lawyer were entitled to a copy. The reporter was then asked if he was, in fact, the suspect.

In North Vancouver, a warrant on a recent child-luring case was pulled from the public file while a reporter was looking at it. The justice of the peace admitted the warrant was unsealed, but she said the Crown had likely made a mistake and would not want it released.

Getting access to criminal files wasn’t much better. We asked for a copy of the charge information from files — usually sexual-assault cases — where we knew a publication ban was in place. Judges impose the bans to prevent the media from publishing or broadcasting the names of sexual-assault victims, but policies in other provinces make clear that the bans are only on publishing — they are not supposed to bar the public from seeing the charge.

That’s not how it works in B.C. where, based on the 1994 policy, some court employees denied us access to criminal files if there was a ban on publishing the name of a victim or a witness. Others gave us copies of the charge with the victims’ names blacked out, while some read us the charge, but didn’t let us look at it.

A Western Communities court clerk, citing freedom of information rules, refused to even look for a charge because we only had the file number.

Other discrepancies occurred during routine court coverage.

Last year, the murder trial of Daniel Christopher Miles Aitken was moved to Vancouver to escape his notorious reputation in Victoria, where he’d already been found guilty of two previous killings.

Unable to attend the trial, the Times Colonist applied to get transcripts of the Crown and defence closing submissions.

The Supreme Court registry in Vancouver refused our request. Too late, they said. The tapes from the trial were locked away after the jury had found Aitken guilty of his third killing in 14 years. Only the judge could approve their release, and she was on holidays.

Several weeks later, J.C. Word Assist, the official court transcription contractor for the Attorney General’s Ministry, said they could go ahead with our order. But, by then, the story was long since published.

Too bad for us the case wasn’t heard in New Westminster, Victoria, Nanaimo or Port Alberni. Turns out none of those court registries require a judge’s OK to get a transcript prepared.

When we asked the Vancouver court registry about this, they told us every court handles files differently. “We differ from New West,” a registry employee told us. “They have their way of doing things and we have our way of doing things.”