CAN COURTS BE OPEN WITHOUT BEING ONLINE?
Provincial chief judge’s report supports restricting public access
The B.C. Provincial Court is continuing its paternalistic ways, protecting us from the evils of gossip and vigilante justice on the Internet.
Once again we have an example of how Canadian courts are great at touting the open court principle, not so good about living up to it.
Provincial Chief Judge Thomas Crabtree doesn’t think we deserve ready online access to public court files: We can’t be trusted.
He has produced a report that concludes we should be forced to visit the courthouse if we know where a case was heard to learn about its outcome — modern technology be damned.
“On balance, the need to protect individuals who have not been convicted from misuse of court record information outweighs the desirability of broad online public access to information about such cases and the individuals affected,” Crabtree said.
During the summer and fall last year, the chief judge asked for submissions about criminal case information available through Court Services Online and he got 60 responses from media and others. He calls that “a broad public consultation” and “a broad range of opinions with respect to how privacy interests should properly intersect with the open court principle.”
I’d say it sounds like the deck was stacked.
First, the open court principle includes both the right to be present in the courtroom and the right to access court records and docket information; second, the right to open criminal courts trumps privacy interests outside of exceptional and very specific circumstances where a concrete harm can be identified.
The court has been blocking electronic access to information about cases where there has been a withdrawal of charges, an acquittal or dismissal of a charge; where a stay has been entered, no information is available online after a year.
As a result, for instance, reporters couldn’t learn online that years before being charged with the pig farm murders, Robert Pickton had been accused of a violent offence and that charge was stayed.
There was strong public interest in that information but unless you knew the case existed, and the registry, as a journalist you were out of luck uncovering it.
The only argument against online access is a scare tactic — that it would fuel gossip, feed busybodies and fan concerns about de facto vigilante justice. But has that ever happened? Can anyone name a case?
Imagine, too, Crabtree said, some landlords were using the online system to determine the suitability of potential tenants. Again, some examples would be useful.
The chief judge says he is concerned about the negative inferences that could be drawn from a criminal charge regardless of outcome. But is the chance that some people might misuse information reason enough to block those with a legitimate interest from gaining ready access to it?
We have a panoply of defamation, slander and libel laws in Canada to protect people’s reputations.
If Crabtree thinks they need updating, then let’s talk about that, but why would we compromise the open court principle because someone might abuse it?
To me the issue is a no-brainer — if it’s a public document, it should be available electronically; I shouldn’t have to travel a considerable distance to physically visit a court registry.
Individuals and organizations, Crabtree said, “provided spirited and compelling arguments … that proceedings in public courts should be made available in the broadest way possible with existing technology.”
But he swept those submissions aside.
Let’s be clear — you can go down and inspect the criminal case file, take notes and do what you will with the information; all Crabtree is limiting is ready access via the Internet.
After a lot of lip service to the open court principle, Crabtree sided with those who would
restrict public access to information under the banner of protecting privacy.
He decided to continue blocking information on criminal acquittals, dismissals and withdrawals after 30 days, access to stays of proceedings after one year from issuance of the stay, and access to information on peace bonds after they have expired.
The 17 registries across the province will continue to provide in-person access.
Instead of proposing increased penalties if needed for those misusing court information, Crabtree hobbled public access for those with a legitimate interest.
Respect for the open court principle? Hardly.