Media's challenge to limits of open court principle rejected

The B.C. Court of Appeal has rejected a constitutional challenge by two media outlets to the court's policy regarding public access to criminal appeal records.

The issue arose in connection with an appeal launched in the high-profile case of Reza Moazami, who was convicted of 30 sexual and prostitution-related offences as well as wilfully attempting to obstruct justice and breach of a no-contact order.

The appellant is claiming that former Vancouver police detective Jim Fisher, who pleaded guilty to breach of trust and sexual exploitation, had engaged in misconduct with complainants and witnesses in the Moazami case that amounted to a miscarriage of justice.

Moazami's lawyers filed about 3,500 pages of disclosure provided by the Crown from the investigation into Fisher's alleged misconduct in support of Moazami's bail pending the appeal.

In May 2019, reporters with The Vancouver Sun and CBC applied for access to those records through a process set up by the court, but Moazami's lawyers and the Crown opposed the media's complete access to the files.

Lawyers for the two media outlets also filed a notice of constitutional question that challenged the court's access policy, arguing that it infringed the right to freedom of expression and freedom of the press.

Supported by other media outlets who intervened in the case, they said the access policy contained blanket restrictions on access to material filed with the court and amounted to a sealing order.

The Crown denied that there was a blanket restriction on access and argued that the court had a supervisory and protective role over its records. The Attorney General's Ministry largely adopted the Crown position.

On Wednesday, a three-judge panel of the court rejected the media submission that their rights had been violated by the access policy.

In his reasons for judgment, B.C. Court of Appeal Chief Justice Robert Bauman said that while the broad principle of open courts cannot be doubted, unfettered public access to the records is not the promise of the open court principle.

“I conclude that the access policy does not have the effect of displacing a judge's discretion to limit court openness,” said Bauman, B.C.'s top judge. “It describes a process by which the factors that may inform a decision on access are put before the court. It does not, at any point, purport to prescribe a result.”

Bauman noted that the media applicants took the view that the open court principle mandated that the public may inspect any court file at any time, except where a sealing order had been applied for and granted.

“Once again, unfettered access to exhibits is not the rule — the jurisprudence belies the suggestion that the public and the media have an automatic and immediate right of access to court records,” he said. “There is a presumption of openness and access, but that does not mean there cannot be a process put in place by which charter rights are exercised and the interests competing with openness are properly weighed in a judicial determination.”

Justice Lauri Ann Fenlon and Justice John Hunter agreed with Bauman.