Thursday, February 04, 2010
Access Denied: Court disclosure rules inconsistent across B.C.
By Lindsay Kines, Rob Shaw and Louise Dickson
Canwest News Service - February 4, 2010
The full report is HERE.
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.
She was a well-known musician on Hornby Island. Her body was found in 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?
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 . . . "
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 a 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 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.
Here's the link to the much better coverage from today's Times-Colonist:
And today's T-C spread (Feb 4) is just the first of a four-part investigative series that the Times-Colonist will be running. Stay tuned -- here's a taste of what's to come over the next several days:
- TODAY: 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.
- TOMORROW: 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.
- SATURDAY: 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.
- SUNDAY: 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.
COURT RECORDS: WHAT YOU CAN SEE AND WHAT YOU CAN'T
It's no easy task finding out what documents you're entitled to see at B.C. courthouses.
While every other province west of the Maritimes has a clear policy on access posted to the government website, B.C. relies on a 1994 internal document that its own staff had trouble locating.
The Attorney General's Ministry initially told the Times Colonist that there were no hard and fast rules on what documents British Columbians can or cannot see. "The reality is that there is no 'one size fits all' policy for access to court records," the ministry said in an e-mail.
Later, after we provided copies of access policies in other provinces, the ministry said it was working on one of its own.
Finally, after we learned of the 1994 policy, the ministry admitted that, yes, it was still in effect, and released a copy to us.
The 16-year-old document, prepared by the ministry's court service branch, gives policy direction for court registry staff dealing with public requests for court records.
It was intended to be a quick reference for court staff "to provide guidance for situations where caution must be exercised and more difficult distinctions might be referred to a court manager or senior person for further discussion, or, if necessary, a judge in court."
Based on this document, as well as discussions with media law lawyers, this is what the public and reporters are entitled to see:
then they go on to describe whatever policy they were able to cobble together based on what is supposed to happen today. The Chief Justice of BC also issued a press release yesterday in response to this Times-Colonist in-depth investigative series. Yada, yada, but at least he felt compelled to say something. Poked his head up a couple days' late for Groundhog Day :)
And, it's very interesting to read the comments posted on the main T-C article. Former court house employees and attorneys confirm the mess, and the corruption, that is BC's justice system.
Can't wait to read today's Times-Colonist.
Shame on all those who voted Liberal in the last election! There were better choices-but they all played their greed card instead.
I've just written to Les Leyne, responding to his column today in which he is wondering if people care about justice ... [jeez, give me strength!]:
The courthouse series has been welcomed with open arms by everybody I know. What a break, for those of us who have had to struggle day by day, year by year, even to find out when the next Basi Virk pre-trial hearing is scheduled. Over the past 4 years, obstruction has been a recurring theme on the blog set up to cover the BC Rail affair.
My question is: what about CanWest? As you know, there has been only sporadic coverage of the most important trial in BC history. Pickton and his pigs, we got plenty about that. But I know of one Basi Virk hearing in which a CanWest reporter was assigned to the courtroom, and his story never saw the light of day. When I asked, Lucinda Chodan told me that "nothing happened" but that "when there's news, we plan to print it."
And yet this turned out to be untrue. When the man who police tracked right into the Legislature on Dec. 28, 2003 went on trial, not a word appeared in a BC daily. I can vouch for that, because I was watching closely.
Jasmohan Singh Bains, cousin of Dave Basi, had been tried (June 2008), found guilty (Aug 2008), and sentenced to 9 years (Sept. 28) in Victoria Courthouse which, as you know, is a brief walk down Blanshard Street from Times Colonist. Not a word printed.
Only by a lucky fluke did I get that story ... when a citizen in the public gallery at a December 2008 Basi Virk hearing overheard lawyers mentioning the Bains trial and the 9-year sentence. This caring citizen looked around, saw no journalists, and decided to tell me what he had heard in open court.
Frankly, I couldn't believe it. So I took extra care and did manage to obtain the Reasons for Judgment on Bains. And with that, I broke the story on my blog in December 2008. Only one journalist ever mentioned that trial, and it was Ian Mulgrew (who credited me and my blog) in Vancouver Sun on Feb. 17, 2009 -- 8 months after the Bains trial -- DRUG DEALER LINKED TO LEGISLATURE RAID IMPRISONED, RCMP oddly silent about key victory against cocaine ring.
Today, your column starts off by, in my view, planting an opinion that "nobody will care" about justice in BC courts. I worry about this. CanWest never asks if people want to read the lurid details about Pickton pigs. So what's this big concern about people not "caring" about justice? Most of us don't even think of it, until we need justice for ourselves. So there's a question about why CanWest turned away from the Basi Virk case when we all know its importance. It's not every day that a major public asset slips from public ownership into private pockets. And similar assets have been slipping away ever since. Somebody should be asking why, how, and whodunnit.
One of the best voices reporting from the Basi Virk courtroom is that of Professor Robin Mathews, whose column always appears on my blog. He's your answer to whether or not people care about justice in B.C. I hope you'll drop in and look him up. (Oh. His salary? Like mine: zero.)
My blog carried a heartfelt THANK YOU to Rob Shaw, Louise Dickson, Lindsay Kines, and yes, to CanWest News Services yesterday for a much-needed investigation to the justice system in B.C.
The Legislature Raids
If anyone wishes to e.mail any of these big Media folk, their addresses are: first firstname.lastname@example.org, as in:
email@example.com, firstname.lastname@example.org, etc.
That's a remark which is intended to hurt and which helps nobody. It says much more about you, than it says about Robin Mathews.
I wonder if you have read all the reports and analyses Robin has made after he has actually attended the Basi-Virk pre-trial hearings. I don't think so. In other words, you don't know what you're talking about.
Nobody is being asked to agree or disagree with the information posted on this blog. You're back on that greasy slope sliding into partisan politics again.
The information on this blog is presented for readers as an aid to understanding what happened to BC Rail. If we achieve that -- we'll also understand much else that has happened in BC.
I've been grateful to Professor Mathews for that very reason. He has opened doors for us. He has gathered the facts of Case #23299 first-hand, analysed them, and shown us whether or not the court system is serving the public well. He then presents these findings in terms which most of us can understand and appreciate.
His contribution to the benefit of the public interest has been enormous. His columns are being picked up and re-published far and wide, for which I am also thankful.
Les Leyne was wondering if people care about justice. My reply -- which you also got wrong -- was One of the best voices reporting from the Basi Virk courtroom is that of Professor Robin Mathews, whose column always appears on my blog. He's your answer to whether or not people care about justice in B.C.
You are right, I havent read ALL reports and anlyses of the Mathews.
But those I have read, the ones you have published, I find to be long-winded rant with conclusions based on conjecture and fantastic speculation. That the prosecution was somehow motivated by racism. Thats a good one.
Again, I agree with everything you said, but when you refer to Mathews as having one of the best reporting voices in BC ... I am sorry; I will not drink the Kool Aid.
At the house of BC Mary, the Halo Effect is at full boil in respect of all things Mathews. That much I can see.
I was expecting, as was found, news on things the mainstream cant or wont report, for whatever reason (incompetence? Lack of resources? Intentional?)ie the Bains prosecution and conviction, something not found anywhere else, something you brought to light. Thank you.
I did expect some dialogue, often colorful. I expected some outlandish opinions, ie Mathews. I expected to be informed, amused and humoured; I find all of the above.
I've looked for another source over the past two years, and have found no one with the dedication that Robin has shown in trying to be in court for every proceeding. For that matter, I've found no other site (other than this one) that has shown any interest at all, in sharing the results of ANY proceeding in this case! Not professional, or otherwise. Why? Because the miscarriage of justice taking place doesn't appear to matter to the majority of BC's citizens? Or because mainstream news media can't be bothered to do their job...so that private citizens don't have to do it for them. After all, if nothing (never mind the truth) is printed or voiced about this trial, if no one knows what's going on the agenda can "keep on keepin' on."
Perhaps you're not happy with Robin because he's not saying what your itching ears want to hear...which appears to be BVB are guilty - but no one else is. Don't worry, I wouldn't be surprised to see the BCSC say the same thing, in spite of a mountain of evidence that says the opposite.
Thanks for your words. In respect of no one else other being found guilty or not guilty, I was unaware of anyone else charged with a crime...???
Were there others who took money and laundered it?
IN respect of the goverment saying one thing then doing another, I agree, they are not to be trusted. Which is why I didnt vote for them.
If one person is charged with accepting money as a bribe, shouldn't the one who handed it over also be charged? The answer to that question has to be yes, because the one handing the money over is the one with the most to hide...or gain. Yet no one has been charged with it, why? It will be interesting to see how they manage to keep a light from shining on that information!
I didn't vote for them...nor did the greater majority of the province vote for them - directly. Let's hope they've learned a lesson in how to lose your democracy.
as in Case #134750-1-D in Supreme Court today,
where Dave Basi is accused of accepting a bribe
and Anthony Young & James Duncan are accused of offering a bribe.
But in the bigger gaming-table surrounding BC Rail (Case #23299), these are bargaining chips ... as we will probably see when those allegedly offering the bribes are called to the witness stand to give testimony as the Crown's star witnesses.
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