R. v. C.L., 2022 BCPC 266

Citation: R. v. C.L. 2022 BCPC 266 Date: 20221114 File No: 95846-1-K Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REX v. C.L. RULING ON APPLICATION OF THE HONOURABLE JUDGE A. TAM Counsel for the Crown: J. Hatherly and N. Wiberg Appearing in person: C.L. Place of Hearing: Kelowna , B.C. Date of Hearing: October 4, 2022 Date of Judgment: November 14, 2022

Introduction [1] Mr. C.L. was before the Court earlier this year when the Crown had applied pursuant to s. 810 of the Criminal Code for Mr.C.L. to be bound by a recognizance. The matter proceeded to a hearing at the end of which I dismissed the Crown’s application. Mr. C.L.is now before the Court, asking that the Court Services Online information be made inaccessible to the public.

Court Services Onlinehttps://justice.gov.bc.ca/cso/index.do (“CSO” hereafter) is an electronic service of the Ministry of Attorney General which in partprovides online access to the public to some court record information from the Provincial Court. For most criminal files this includes theaccused’s name, the charges they are facing, their court dates, the sentences that resulted, etc. Position of the Parties [2] Mr. C.L. says that, since the s. 810 (commonly referred to as a peace bond) was dismissed, there should not be any publiclyaccessible record online that he was even the respondent in such an application.

The concern is that it unfairly depicts him in the eye ofthe public that such a proceeding even took place. Depending on the sophistication of the person armed with this information, allmanners of unreasonable inferences could be drawn. Mr. C.L.’s reputation would suffer thereby. [3] The Crown is opposed to Mr. C.L.’s application, citing the general principle that court processes should presumptively be openand transparent to the public. It is contrary to one of the fundamental principles of our democracy to conceal the fact that such a hearingtook place.

Preliminary Question of Jurisdiction [4] In the course of the hearing, I raised the issue of jurisdiction with the parties. What power do I, as a Provincial Court Judge, havein controlling the management of records kept by the Court Services Branch (CSB), an entity that falls under the Ministry of AttorneyGeneral? While the matter was on reserve, Mr. C.L. brought to my attention the case of R. v. Thakor, [2015] B.C.J. No. 3031. In Thakor,the applicant was convicted of a provincial regulatory offence and was therefore not eligible for a federal pardon.

As such, theinformation remained available through the CSO portal. In assuming jurisdiction, my brother Judge Low said this in para. 1, citingAttorney General of Nova Scotia v. McIntyre, (SCC), [1982] 1 S.C.R. 175: 1 Well, my view is that I do have jurisdiction in this matter and I rely on the case, the Attorney General of Nova Scotia v. MacIntyre, (SCC), [1982] 1 S.C.R. 175, at page 189 where the court stated: Undoubtedly every court has a supervisory and protecting power over its own records.

Access can be denied when the ends of justicewould be subverted by disclosure or the judicial documents might be used for an improper purpose.

The presumption, however, is infavour of public access and the burden of contrary proof lies upon the person who would deny the exercise of the right. [5] The Canadian Judicial Council’s paper “Model Policy for Access to Court Records in Canada” https://cjc-ccm.ca/cmslib/general/news_pub_techissues_AccessPolicy_2005_en.pdf at page 11 also comments on the judiciary’s supervisory power over court records stating: Any access policy developed by the judiciary on the basis of this model policy will be founded upon the inherent jurisdiction of thejudiciary to maintain supervisory and protective power over its own records. [6] In fact, this Court has already dealt with this issue.

In July 2015, the Office of the Chief Judge published a ConsultationMemorandum https://www.provincialcourt.bc.ca/downloads/Archive/Provincial%20Court%20Post-Consultation%20Memorandum%20-%20CSO%20Criminal%20Information.pdf identifying the need to properly balance the two competing interests that are engaged in thepresent application (privacy vs. openness). On page 15 of the Memorandum (Appendix A page 8), the Office of the Chief Judgecommented: As noted earlier, CSO is operated by CSB.

However, since CSO reports court record information, and, by law, the judiciary has asupervisory and protecting power over court record information, CSO looks to the judiciary for policy direction about the content ofinformation on CSO. Thus, the Chief Judge made the decision a number of years ago to have Provincial Court criminal court informationmade available on CSO when CSB was able to provide the infrastructure and resources to make it happen. [7] Accordingly, this Court clearly does have jurisdiction to manage its own records.

And it is the Court that gives directions to CSBas to what and when information may be made available to the public on CSO. [8] In so doing, the Court balances the principle of openness that allows access to court records in order to make the law moreaccessible and understandable to the public and to enhance confidence in the administration of justice, with the need to address otherimportant but sometimes competing interests such as privacy of the individual and the proper administration of justice.

The Court’s“Access Policies – Introduction” https://www.provincialcourt.bc.ca/downloads/public%20and%20media%20access%20policies/ACC-0%20-%20Public%20and%20Media%20Access%20Policies.pdf and “Access to Court Records”https://www.provincialcourt.bc.ca/downloads/public%20and%20media%20access%20policies/ACC-2%20-%20Access%20to%20Court%20Records.pdf policies further comment on these principles.

Existing Policy and Application to the Case at Bar [9] After a thorough consultation with various stakeholders, the Office of the Chief Judge released a Post ConsultationMemorandum in March 2016. https://www.provincialcourt.bc.ca/downloads/Archive/Provincial%20Court%20Post-Consultation%20Memorandum%20-%20CSO%20Criminal%20Information.pdf

[ 10 ] On page 5, the document identifies exactly the competing interests and the considerations that come to bear: 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. A person who has not been the subject of an adverse conclusion in a criminal proceeding should not be exposed across the internet on CSO to the stigma identified in the submissions and described above.

While it may properly be suggested that identifying those who have been convicted of offenses before the courts is consistent with the public interest, on balance, it cannot be fairly suggested that the public interest requires the ongoing exposure of individuals to public scrutiny through CSO when the criminal justice system has not sustained a criminal charge against them. Nevertheless, there remains a public interest in information about events that occur in public court proceedings, including events such as acquittals, withdrawals of charges and stays of proceedings.

That information will continue to be available by attendance at the relevant court proceedings or by requesting information about proceedings related to individuals at the Court Registry. In addition, at 17 Court Registries across British Columbia (see list in Appendix “B” to this memorandum) the Court Services Branch of the Ministry of Justice provides Justice Public Access Terminals (JPATs) which will continue to provide in-person access to court record information regarding the acquittal, dismissal, withdrawal or stays of charges for any Provincial Court adult criminal proceeding in British Columbia.

However, subject to the comments in the next paragraph, such information will not otherwise be accessible through online remote electronic searches on CSO. We heard compelling submissions from the media indicating that it would harm their coverage of court proceedings if they were unable to obtain Court results for matters they had been following if that result is an acquittal, dismissal or withdrawal of charges. They were concerned the case would simply disappear from CSO upon an acquittal being entered.

In order to address this understandable problem, this office is directing CSB to continue to provide information through CSO for acquittal/dismissal/withdrawal cases for a period of 30 days after the acquittal/dismissal/withdrawal has been entered. [ 11 ] This memorandum goes on to consider specifically the treatment of peace bonds, paying particular attention to the fact that they are non-criminal in nature. Ultimately, the Office of the Chief Judge decided as follows on page 6: A compromise position has been expressed by a number of parties consulted, including some journalists.

Many of those making submissions could understand the desirability of limiting information about peace bonds to the period when the peace bond remains in effect. A sensible and fair balancing of the public interest and the privacy interests of those bound by peace bonds suggests that peace bond information should be available on CSO during the term of the peace bond order but not thereafter.

In other words, once the peace bond has expired, the information should no longer be available on CSO. [ 12 ] In the case at bar, since the s. 810 application was never granted, it stands to reason that file information should not be available on CSO at this time. [ 13 ] The above should have been sufficient to dispose of the matter. Per the direction and policy of the Office of the Chief Judge, the file should not be accessible through CSO at this time.

However, the Court has since learned that the code used for data entry purposes in this case was “RNG” (reasonable grounds not satisfied), rather than “dismissed”. Apparently, that makes a difference in terms of whether the file remains accessible or not. Had it been coded as “dismissed”, the file would no longer be accessible. [ 14 ] It is not clear to this Court the legal difference between “reasonable grounds not satisfied” and “dismissed” in the context of a s. 810 application.

But in any event, it is evident that, when one approaches the issue on a principled basis, with an understanding of the balance the policy aims to achieve, Mr. C.L.’s application ought to be granted. The Court has had an opportunity to review what was actually said at the conclusion of the original hearing. I referenced my conclusion that the grounds did not exist, and that the application was, in fact, dismissed. [ 15 ] For the above reasons, Mr. C.L.’s application is granted and I direct the clerk of the court to enter a “dismissed” code on the original s. 810 application.

In conformity of existing policy, I direct that the file information not be accessible on CSO. Lastly, and so that I do not cause the very prejudice that Mr. C.L. seeks to avoid, I also direct that the reporting of this case will simply refer to him as Mr. C.L. [ 16 ] The Court wishes to express its thanks to Ms. Caroline Berkey from the Office of the Chief Judge for her knowledgeable assistance throughout this case. ___________________ The Honourable A. Tam Provincial Court Judge