R. v. J.S.G. Date:, 2011 BCPC 34

Citation: R. v. J.S.G. Date: 20110211 2011 BCPC 0034 File No: --------- Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. J.S.G. RULING ON APPLICATION OF THE HONOURABLE JUDGE K. D. SKILNICK Counsel for the Crown: S. C. Thomson Appearing in person: J.S.G. Place of Hearing: Abbotsford , B.C. Date of Hearing: February 7, 2011 Date of Judgment: February 11, 2011 Background [ 1 ] The Government of British Columbia maintains a website for members of the public to access information about cases taking place in courtrooms around the province.

The website is operated by the Court Services Branch of the Ministry of the Attorney General and is called Court Services Online (CSO for short). Its web address is: https://eservice.ag.gov.bc.ca/cso/index.do [ 2 ] The courts of this province assist in furnishing information for the CSO website on matters of public record concerning cases before the court.

It is an extension of the idea that court proceedings are public proceedings and that there should be no secrecy about what business the court is transacting, save and except for good cause (such as protection of young persons, protection of victims of crime, protection of informants, avoidance of interference with police investigations and other valid reasons.) A disclaimer on the opening page of the CSO website warns users that, while every effort is made to provide accurate information, no guarantee or warranty of accuracy is made regarding the information on the website.

The webpage’s introduction link sets out what services are offered in more detail. [ 3 ] The Applicant was charged with common assault, as set out in an information that was sworn on November 9, 2006. A trial was held on this charge on March 26, 2007, at which time the Applicant was found not guilty and acquitted. According to the Applicant, members of the public can access the information that the Applicant faced this charge. From my own navigation of the website I have

determined that, without cost, members of the public can enter the Applicant’s name and learn that the Applicant was charged withassault under

section 266 of the Criminal Code, that the offence was alleged to have happened on July 1, 2006 (actually the informationitself alleges a continuing offence between July 1 and October 10, 2006), the information number, as well as the dates of all courtappearances in the matter. On the last appearance date, the abbreviation “ACQ” appears under the “finding” column. [4] The Applicant has brought an application to have this information removed from the CSO website.

He states in his applicationthat he is a corrections officer, and is concerned about inmates getting access to this information. [5] When the Applicant appeared to make this application, the Crown was sympathetic to the Applicant’s position, but both theCrown and I had some concerns. Firstly, because the case had concluded and the appeal period had expired, does this court have anyjurisdiction to make any further orders? Secondly, this court is a court of statutory jurisdiction and can only make orders for which thereis express authority to make. What is the authority for making the order requested? 1.

Authority to Make Orders After a Case Has Concluded [6] As a general rule, when a judge has discharged his or her duty in a particular case by rendering judgement, the judge ceases tohave power to reconsider the matter. The technical term for this is the Latin maxim functus officio, which literally means “a taskperformed.” This concept only applies to a reconsideration of the matter decided. It does not apply to such matters, for example, asamending the terms of a probation order. In R. v.

Adams (SCC), [1995] 4 S.C.R. 707, the Supreme Court of Canadastated that there is much more flexibility afforded in amending discretionary or procedural orders after the matter has been decided. Mr.Justice Sopinka stated (at para. 29) that orders which are discretionary and are not required to be drawn up as a formal order may beamended or varied even after the judgement has been rendered. He said: For instance, if the order is a discretionary order pursuant to a common law rule, the precondition to its variation or revocation will beless formal.

On the other hand, an order made under the authority of statute will attract more stringent conditions before it can be variedor revoked. This will apply with greater force when the initial making of the order is mandatory. [7] Assuming that there is some power to order that the Applicant’s information be removed from the CSO website, such an orderwould be a discretionary order and a procedural matter. It is unconnected to the determinative issues at the trial itself. Therefore I findthat this court is not prohibited from making this type of and order simply because the matter has concluded. 2.

Authority to Order Removal of This Information [8] The CSO website contains an information page entitled “About CSO” which states that a search will not provide any informationon a criminal file in a case where there is “any Provincial or Supreme Court file subject to a judicial order restricting access.” Themaintainers of the website appear to be saying that they will abide by any order of this court banning the publication of information,which they are of course obliged by law to do. [9] The Criminal Code contains a number of provisions which permit the court to make an order banning publication of certaininformation.

These include the following: (

a) Section 276.3 prohibits publication of court materials concerning applications for disclosure of third party records in sexual offencecases; (

b) Section 486.4 allows a judge to make an order prohibiting the publication of any information which could identity a complainant orwitness in certain cases where a sexual offence is being alleged; (

c) Section 486.5 allows a judge to make an order prohibiting the publication of any information which could identity a victim, witnessor justice system participant where such an order is necessary for the proper administration of justice; (

d) Section 487.2 prohibits the publication of certain information contained in search warrants; (

e) Section 517 allows a judge to make an order banning publication of evidence presented at a bail hearing; (

f) Section 539 allows a judge to make an order banning publication of evidence taken at a preliminary hearing; (

g) Section 542 makes it an offence to publish information that a confession was tendered in evidence at a preliminary hearing; (

h) Section 631allows a judge to order banning the publication of the name or names of jurors or of information which might identify ajuror; (

i) Section 672.501 and 672.51 concern orders made by a Review Board for non-publication of certain information. [10] The Youth Criminal Justice Act also contains sections which contain a ban on publication in certain cases. The CSO website doesnot contain access to information on files for young persons, so I will not review these provisions. [11] None of the potential orders for non-publication available in the Criminal Code are applicable in this case. None of these ordersare of a nature that would permit the Applicant to apply to have his identity protected in this case, with the possible exception of an orderunder

section 486.4. While corrections officers fall within the definition of “justice system participant” in

section 2 of the Code, it has notbeen suggested that the charge against the Applicant occurred while he was acting in such capacity or that the criteria required for themaking of this order (as set out in subsection (7)) are present. [12] This court also has the power at common law to make an order banning publication of information, but only in circumstanceswhere this is necessary to protect an accused’s right to a fair trial. The Supreme Court of Canada in CBC v. Dagenais(SCC), [1994] 3 SCR 835 held that a publication ban should only be ordered when (

a) such a ban is necessary in order to prevent a real

and substantial risk to the fairness of the trial, because reasonably available alternative measures will not prevent that risk; and (

b) the beneficial effects of the publication ban outweigh the harmful effects on the free expression of those affected by the ban. In this case, given that the trial has already been held and the Applicant has been acquitted, it can not be said that a publication ban is necessary for trial fairness. [ 13 ] On a review of this court’s authority to ban publication of the Applicant’s name, I am unable to find that I have any authority or grounds to make an order requiring the Ministry of the Attorney-General to remove the Applicant’s name from its website.

Order [ 14 ] For the foregoing reasons, the Application brought by the Applicant is dismissed. [ 15 ] Although I have found that I do not have the authority to require the Court Services Branch to remove the entry on this file from the CSO website, the Applicant’s request does not strike me as an unreasonable one. I would encourage him to forward a copy of these reasons to the Ministry of the Attorney General, Court Services Branch, and request that, as a policy matter, they remove this entry from their website.

It would seem to be a reasonable course of action in the case of persons like the Applicant who work as corrections officers. In exercising this court’s discretion regarding publication of reasons for judgement, I will direct that the Applicant be identified only by initials when these reasons are posted on the Provincial Court judgement database. Dated at the City of Abbotsford, in the Province of British Columbia this 11 th day of February, 2011. _______________________ K. D. Skilnick, P.C.J.