B.C. court rules make reporting on polygamy case almost impossible
Winston Blackmore’s constitutional challenge to Canada’s polygamy law begins Tuesday in B.C. Supreme Court in Cranbrook.
The outcome has potentially sweeping ramifications for fundamentalist Mormons and other religious groups whose faith allows for multiple wives, and for the larger debate about what limits, if any, the state can place on the guaranteed right to religious freedom.
I’d like to report on what arguments are going to be made, what remedies are being sought and what Canada’s most notorious polygamist has said in his sworn affidavit.
But I can’t.
In many jurisdictions, all of this information would be online and publicly available.
But not here.
The court’s 42-page record access policy opens with the statement that “British Columbia’s court system is based on fundamental principles of openness and accessibility.” But the “default access policy” is that a great deal of the material that would make it easier to report on trials requires an application to the court for an order to gain access.
The process isn’t spelled out in the rules and it’s complicated enough that I nearly gave up in frustration. But it also made me mad.
I reached out to Bruce Cohen, a retired justice who is now the court’s communications officer. The policy is under review, he says.
Changing it can’t happen soon enough.
As Cohen confirmed, for now, the only way to get the information is to go to court.
He did what he could to help. He had a lawyer draft a notice of application for me as well as provide a step-by-step explanation of how to proceed and the assurance that the trial judge was amenable to a telephone hearing before Tuesday.
But I never made it past Step 1, which was getting consent from Blackmore’s lawyer as well as James Oler to hold a telephone hearing before Tuesday.
(Oler is Blackmore’s co-defendant in the criminal trial that sparked the constitutional application. Oler, who was also found guilty, has no lawyer.)
Finding lawyers’ phone numbers is easy. But try finding someone like Oler who, during the criminal trial, was said to be working in northern Alberta at the time of his arrest.
Cohen’s staff suggested that the court registry could help with contacts. But Cranbrook’s court clerk punted the question to the B.C. Supreme Court scheduling office in Kamloops. The scheduler provided the contact number for special prosecutor, Peter Wilson, but refused to give any other contact numbers.
Wilson acknowledged the notice by email, saying that his associate would handle it if it went ahead.
Voice and email messages to Blackmore’s lawyer, Blair Suffredine, got no response. Joe Doyle also didn’t respond. Doyle was appointed amicus or friend of the court because Oler was unrepresented.
A text sent to a cellphone number that several years ago was Oler’s went unanswered.
With consent, the next step would have been to fax the notice of application to the Cranbrook court. From there, it would be up to the court scheduler in Kamloops to set a day and time. And, to complicate things just a bit more, Cranbrook is on Mountain time, while Kamloops is on Pacific time.
There was no consent before the Cranbrook registry closed on Friday and I don’t expect to get it before I leave Vancouver on Monday afternoon to fly to Cranbrook. So, I’ll need to fax a notice of application to the clerk asking that the judge, lawyers and Oler agree to hear my request before they get down to business dealing with Blackmore’s constitutional challenge.
If they do, I will be invited to approach the bench from the public gallery and make my plea. Even though I’ve spent hours in that very courtroom covering the trial, it’s a daunting prospect to become a participant in it.
Even if the judge agrees, it will likely be hours before the information is available because the judge must sign the draft order (which Cohen’s staff prepared) and have it delivered to the registry.
Then, a clerk must get it from the files, which are in the courtroom with the judge, and copy it for me.
It’s important to emphasize that the process being followed in this case applies to every case. Because it’s onerous and timeconsuming and because many reporters don’t know until the day that the case is on that they’ll be covering it, few applications are ever made.
Without the documents, journalists can only report what they hear. Mistakes are more likely (but honestly made) because they’re left to rely on what they hear or mishear in courtrooms that almost always have terrible acoustics.
Of course, if journalists made access applications for every case they reported on, it would further clog an already overloaded and backed up court system.
But maybe that’s what we should be doing. Because without access to basic information about the very issue and question being decided by the court, it’s hard to take seriously the court system’s commitment to the fundamental principles of openness and accessibility.