Thursday, December 17, 2009
The Supreme Court of Canada promotes open access, but are the lower courts following its lead?
I found this article while searching for background information about Supreme Court Justice Anne MacKenzie. It does talk about her a little, yes, but more interestingly it talks about the difficulties of finding out what happens in courtrooms ... about something called "the open court principle" ... and the media's role in making the courts open, and understandable. I couldn't help but think of Robin Mathews, who (without assistance, without pay) attends most hearings then puts his great intellect to work understanding and explaining the trial. As part of those efforts, Robin has battled the issue of obtaining court transcripts, or police investigations, or in fact, the curriculum vitae of the judge who presides over the most important trial ever to come before a high court in British Columbia. - BC Mary.
Courts pay 'lip service' to open access
A statue of Themis: Goddess of Justice
By Shannon Kari,
National Post - January 07, 2008
When the trial of three alleged Hells Angels members resumes this week in the Vancouver Law Courts, an observer of the proceeding need only take a few steps outside the fifth-floor courtroom to look through the sloping glass roof that distinguishes the Arthur Erickson-designed building.
From an architectural standpoint, the building conforms to the view of the Supreme Court of Canada that "the administration of justice thrives on exposure to light -- and withers under a cloud of secrecy," as it said in a 2006 decision.
However, B.C. Supreme Court Justice Anne MacKenzie has thrown the equivalent of a judicial tarp over the glass by issuing a publication ban on the entire trial, which she is hearing without a jury.
Citing "the inherent jurisdiction of the court," she issued the ban in a one-sentence ruling.
As a result, the public will not learn about the second of four trials connected to a multi-million-dollar RCMP investigation into the activities of the Hells Angels in B.C. that was dubbed E-Pandora.
Nearly 20 people were arrested in July, 2005, following an investigation the RCMP described as a "national priority" and which involved the controversial use of an alleged steroid trafficker and "enforcer" as a police agent.
For nearly 100 years the Supreme Court of Canada has stressed the importance of truly open court proceedings. In the past 25 years, the principle has been strengthened by the high court, requiring real evidence of a risk to a trial to justify a ban or restrictions on access to public documents.
The lower courts are bound by these principles, yet trial judges often manage to find the exception to these rules.
While the ban imposed by Judge MacKenzie is unusually sweeping, the instinct to issue publication restrictions is not uncommon among her fellow judges in B.C. and in other parts of the country.
The constant tension between the media asserting the public's right to know and a judge's inclination to hold back information if it could potentially have a negative impact on a trial is in sharp contrast to established practices in U.S. courts.
Even in states where cameras are not allowed in the courts, public documents in both criminal and civil proceedings can often be accessed online. It is very rare for judges to impose publication bans at any stage of a criminal trial and jurors are permitted to talk about deliberations and how they reached their verdict. In Canada, the situation is quite different.
"The vast majority [in Canada] pay lip service to the open court principles, but they are resistant," said Michael Skene, a Vancouver lawyer who often acts for the media. "The law has changed and unfortunately many judges have not changed with it."
If courts are truly open, which includes granting access to exhibits that may be broadcast by the media, "the public can make informed comment about the process," Mr. Skene said.
He pointed to the release of the amateur video that showed Polish immigrant Robert Dziekanski when he was Tasered by police at Vancouver airport in October.
The incident led to a public outcry over the use of Tasers by police.
If the video had not been released and the officers had faced criminal charges, Mr. Skene said it likely would have been difficult for the media to obtain a copy to broadcast because of speculation that it could impact the right to a fair trial.
But in one of the few rulings that have touched on a jury's obligations, Ontario Superior Court Justice Brian Trafford explained why he decided to allow certain pre-trial information to be published in the notorious Just Desserts murder trial in Toronto.
"Jurors in our society are intelligent persons who are capable of ignoring irrelevant information in accordance with the instructions of the trial judge," said Judge Trafford in the 1997 decision.
"They are presumed to act in accordance with the oath administered to them," he wrote.
Judge Trafford is considered to be one of the top judges in Ontario on the issue of adhering to the open court principle.
But many of his colleagues often invoke an unspecified fear of the jury being tainted to deny or delay access to exhibits during trials, especially in a high-profile proceeding.
The more than three-dozen rulings that Justice James Williams issued during the recent trial of Robert Pickton, many of which had to do with whether certain evidence would be admissible, are still subject to a publication ban. A videotaped police interrogation of Pickton when he was arrested in 2002, also has not been made public.
Another judge is expected to hear submissions from the media on this issue in late January.
Pickton was convicted on Dec. 9 of six counts of second-degree murder and faces a second trial on 20 more murder charges.
The belief that the release of rulings and exhibits might jeopardize Pickton's right to a fair trial on the other charges is "completely artificial," Mr. Skene suggested.
There are academic studies that show pre-trial publicity does not affect a defendant's right to a fair trial, said Edmonton lawyer Fred Kozak, who frequently represents the media.
True public access means the media should be able to show "what you would see and hear if you were in the courtroom," he said.
The concept of access requires "timely access," Mr. Kozak also said.
In the recent trial of a Toronto police officer acquitted of assaulting an anti-poverty protester, Ontario Superior Court Justice Frank Newbould would not deal with media requests for a key videotaped exhibit during the trial. He ultimately released the tape, which had been seen by the jury, after its verdict was issued.
These types of delays are common and are a "practical obscurity" to the open courts principle, Mr. Kozak said.
While there may be resistance among some judges to the open-courts principle, especially in Ontario and B.C., Mr. Kozak suggested there has been progress, especially in Alberta.
Media are routinely granted access to exhibits in criminal trials in the province.
As well, the mandatory ban on publication of bail hearing proceedings was found to be unconstitutional in 2007, by Alberta Court of Queen's Bench Justice Scott Brooker.
The Alberta government is appealing the decision.
Mr. Kozak, who acted for the Edmonton Journal in the case, said it makes no sense to ban reporting on bail hearings when 95% of criminal trials are ultimately heard by a judge alone.
"If you were to ask, what determines whether someone gets out on bail, no one would have a clue, because we can't tell readers about the bail process," Mr. Kozak said. "It creates speculation and mistrust of the justice system."
The obligation to inform the public is one of the reasons the Criminal Justice Branch in B.C. created the role of Communications Counsel, which is unique among the provinces.
Stan Lowe, a senior prosecutor, is Communications Counsel with duties that include responding to media requests for information about specific cases. Mr. Lowe will also attend high-profile proceedings, so there is someone to speak on behalf of the Crown.
"We believe we have an obligation to inform the public of our decisions, educate the public as to our role and the justice system as a whole," Mr. Lowe said. "The adage 'if people want to know about a case, they should come to court' is unrealistic and not acceptable," he said.
The frequently invoked theme that the "justice system has failed," especially in reporting on notorious criminal cases, would be less common if the courts were more open, Mr. Kozak said.
"For the most part, our justice system works very well. Why wouldn't you want the public to know that?"
"Open court principle", I came across that phrase as well in the last two days. Justice Elizabeth Bennett used it in the matter of secret informer in one her Rulings.....
Here's a shortened version from Bill Tieleman's writings as well in 2007:
But it was the issue of excluding even defence lawyers from an in-camera hearing that drew the most attention in court.
The "Paragraph 46" that Special Prosecutor Berardino referred Justice Bennett to was almost certainly from Named Person v. Vancouver Sun. That paragraph and the ones immediately before and after, read as follows:
D. The Procedure to Be Followed
45 The interface between the informer privilege rule and the open court principle in the context of a hearing where a party claims to be a confidential police informant must at the same time allow for the protection of the identity of the informer from any possibility of disclosure and the maintenance of public access to the courtroom to the greatest extent possible." Snip
However, there's this:
"The Open Court Principle in the Age of Google"
Council of Canadian Administrative Tribunals Annual Conference
Privacy Issues – Panel Presentation
Halifax, Nova Scotia
June 2, 2009
".....my colleague David Loukidelis, the Information and Privacy Commissioner for British Columbia, said in a speech to the Canadian Bar Association last November: “No one suggests that privacy should defeat the vital principles of openness and accountability in tribunal processes. That said, where individuals are caught up in tribunal processes, their privacy deserves respect and protection. This is not a zero sum game.”....
Department of Justice Canada
"Victim Privacy and the Open Court Principle"
The challenge seems to be, however, can you find out where and when Madam Justice MacKenzie was born, where does she call "home", where did she attend school, what kind of law did she practise and for how long, etc.?
Doggoned if I can find it, but I'll watch for you as I keep following her trail.
Is it really important to the case at hand?
We've seen overnight how Justice MacKenzie has gone from siding with the Crown to that of defending the Defense's right that she should be deeming what is relevant or irrelevant. Tomorrow morning we'll know for sure.
Now you may think that this is a trivial matter, to have an E or not to have an E, but as stated in the British Columbia Press Council Code of Practice ins Sections 1, 3 and 4
1 1. ACCURACY
A newspaper's first duty is to provide the public with accurate information. Newspapers should correct inaccuracies promptly.
Newspapers should strive to balance an individual's desire for privacy with the requirements of a free press. Privacy concerns, therefore, must not unduly inhibit newspapers from publishing material or making inquiries about an individual's private life when it can be shown that these are, or are reasonably believed to be, in the public interest.
4. COMMENT AND FACT
Newspapers should defend their hard-won right to exercise the widest possible latitude in expressing opinions, no matter how controversial or unpopular the opinions may be, and to give columnists, editorial cartoonists and others the same latitude in expressing personal opinions. However, newspapers and journalists shall strive to avoid expressing comment and conjecture as established fact.
So, BC Mary, if you have been searching for Ann with an E, as you have published on your blog here, that might be one reason why you can't find her.... on the internet.... and maybe she prefers not to have her private life as an open book, ready to be scanned into Google.........
"The Open Court Principle in the Age of Google"
Excuse me, friend 3:25 ... are you seriously suggesting that we have no right to know what the judge's credentials are?
I said nothing about the judge's personal life.
But please ask yourself: would it be smart for BC to bring in a judge from the U.K., or Germany, or the USA, or Russia? And maybe we did (speaking hypothetically here, as I'm fairly sure we didn't). But you're telling us we have no right to know these things
about the person we must entrust to preside wisely over the most important trial in BC history?
Good grief, 3:38 ... have we come to the point where we're squabbling over a typo in Mark Hume's excellent column?
Fine. Search until you're blue for "Ann" MacKenzie. Let us know if you find that she's our own Supreme Court Judge and we've been abusing her name in every other published report for the past 3 months.
And then, oh yes, let us know her c.v.
Is a Judge still a lawyer?
And if that is true then there is not a single Anne MacKenzie as a lawyer in British Columbia, BUT there is an Ann MacKenzie, to be specific Mary Ann Mackenzie.... at BC Law Society. You can enter Mary MacKenzie and Mary Ann MacKenzie will still come up.
Go ahead fill in the blanks at their search engine... and they'll even give you her address.....for the lawyer for MacKenzie Smith.
Maybe the Judge wants to go home for the trial.
Well, actually, I think it's pretty clear if we did do that for trials like Basi-Virk, then justice might actually (finally) be served.
But isn't it curious that the NP can devote a lengthy article on publication bans and court secrecy without mentioning the ALR case, and involves a lot more money than the HA case?
You just don't read things, do you.
I've already talked about Mary Ann MacKenzie ...
and once when Justice MacKenzie first showed up on Basi Virk.
And I say again:
I don't think it's "our" Judge MacKenzie. Look at the date of birth.
I will honour your request that your latest comment is not for distribution.
However, others should be aware that you have sent me a warning.
A warning of what, I do not know.
I leave you with one question: do you know of any employer who sits with a bag over his head, not caring to know anything about the background, scholarship and training of the people he hires (at very high salary) to do important, sensitive work?
She has a smile that goes from ear to ear,not saying she has a big mouth, lol,tahts what I know, also Andrea Mckay again beautiful.
You're a public celebrity in your own right BC Mary, what does the public know about you AND do we have the right to know when you were born, where you were born and where you live now.
EM says that Judge MacKenzie has a smile from ear to ear... do you, do you ever smile...... just joking.
As you know I am on dialup. But I believe we are talking here about Anne W MacKenzie and I am downloading a UBC file right now. I'll let you know what I find. Unless my comp shuts down in the middle of downloading which sometimes happens.
Can't help it ... that's what the message said in plain language: "but a word of warning here ..."
You raise a point. You seem to think that BC Mary is someone you hired to work for you. If so, I'd fully expect that you'd want an application with full work history.
There's no parallel between me, choosing to run this web-site as a public service ...
as compared to a lady named Anne who is on the public payroll as a BC Supreme Court Justice.
Now, make us laugh: tell us why you've got your knickers in a knot on the topic of Anne Mackenzie's cv.
law section of the Canadian Bar Association
is Roderick M. MacKenzie, LLB’72, who
ended his tenure as city solicitor in New
Westminster, B.C., and entered private practice
in Vancouver. Wife, Anne W. MacKenzie,
BA’73, LLB’77, currently practises law as federal
crown counsel with the department of justice
From UBC Alumni. Hope this helps.
I dunno. What do you think?
If it is "Our Anne", this info. seems a bit outdated.
UBC Law School 1977 (32 years ago)?
Because that's what you're demanding of a public servant, that there's a distinction that has to be made between those who serve, and you.
They have no Privacy rights.... like birthplace, home place address, parents, marriage status, children, grandchildren, siblings.
Why don't you just accept the Judge's credentials, that she has been recognized by her peers and by what she has done and will continue to do........
LLB in 1977 could mean she was born around 53-55. And 55 makes her 55. And I know a lot of women who look years younger than they actually are.
Well, I guess you aren't going to look it up,
So here it is: "Curriculum vitae" means a summary of one's education, professional history and job qualifications.
In other words, 7:25, the judge's credentials.
It's a perfectly normal, natural thing to expect to see the curriculum vitae (cv) of anyone working in positions of great responsibility and trust.
Nothing was said here about wanting to know her home address, siblings, etc. Nothing. The announcement Gary found has already been okayed and published by UBC's alumnae. So I think you're on shaky ground, 7:25.
Gary ... I'm not going anywhere near the question of age or good looks or high fashion etc. I just want to know ... (sigh) Anne MacKenzie's cv ... her JOB QUALIFICATIONS.
As you can see if you scroll down a bit: Robin Mathews made a formal request to the Court Clerk for MacKenzie's cv. and was told (very strangely) that the court doesn't have one. Now that's odd.
Not that "We'll get one and send it to you later."
Now we have 7:25 getting upset because of things that weren't mentioned.
I don't know how anybody else sees it, but the question of Anne MacKenzie's credentials is looking rather thorny.
has been appointed judge of the
Provincial Court of BC. Her
husband Roderick M. MacKenzie
LLB’72 continues to practice law as
a partner in MacKenzie Murdy &
McAllister. They have 3 children
From UBC Alumni Chronicles Fall 1992.
Take it from there folks.
I don't particularly give a damn about who she's married to, how many kids she has...or which elite enclave she resides in. Whether she's pretty, or would lose a beauty contest to fence post with hair makes no difference to the outcome of this trial - whether or not she has extensive experience in criminal trials involving business and commerce does. That's what I want to know - what is her judicial experience in those types of trial? That's a valid question, it's an intelligent question...and it deserves an answer from those that hired her.
Sincere thanks to Anonymouse 9:23,
You have put the conversation back on track.
Very much appreciated.
Now I think I'll dig up a little item I've been saving about the Special Prosecutor's work history ... it surprised me, and I think it may surprise you, too.
And it does make a big difference, having some idea how a key player works in a given set of circumstances.
"The Supreme Court and Court of Appeal are the province’s “superior” courts, which means that the judges of these courts are appointed by the federal government. The federal government pays the salaries, pensions and allowances of the Supreme Court and Court of Appeal judges."
"How do judges get their jobs? What qualifications are necessary and what recourse do citizens have if they are not satisfied with the way a judge is doing his or her job? These are some of the questions answered in the Backgrounder."
"Appointment of Superior Court Judges"
"The federal Judges Act  provides that a person interested in becoming a judge on a superior court must be a lawyer in good standing with a provincial law society and have practiced law for a minimum of 10 years, although typically those selected as judges have practiced law for longer than 10 years. The majority of appointments to the Court of Appeal are current Supreme Court judges, although some people have been appointed directly to the Court of Appeal from practice as lawyers."
How Gary E has pegged our Anne as being someone who has been on the payroll of the Federal Justice system in Vancouver so its more than likely the same person..... right.
The question is does she "have extensive experience" and I believe the answer is a resounding YES. Just do a search on her title as BC Supreme Judge Anne MacKenzie and you'll see how many years she has been in that position, then tack on another TEN years (that's the conditions set in place by those who appointed her)...... Twenty years minimum.
EM thinks OUR judge is 45, minus the 20 = 25.... I think she's closer to 50....+ once you add in the length of time for studying.
Now based on my calculations, it was a FEDERAL Liberal government who appointed her to be OUR judge........
And here's the form that has to be filled in by OUR Anne so that she can be checked out by the RCMP to make sure she's a great person to have as a JUDGE.
I'll thank an anonomous poster not to tell me what I must or must not do.
Further, it is a trap to try to get people to speak in absolutes. Sheesh!
But, in the spirit of the season, I will answer the spirit of your question. I have very nearly no faith in Harper's nor Campbell's caring about average people. They seem to be ultra-right wing, power mongering, privatizing idealogues. Transparency and accountability lead to believeability.
Speaking of faith: I could have more faith in you if you would use a moniker; preferably one that you use elsewhere (such as on the Tyee). The way you phrase things leads me to believe I know you through posts you have made at other sites.
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