COURT RULING LEAVES PUBLIC IN THE DARK

Open-Court Principle Takes A Hit As Judge Denies Press Access To
Police Affidavits For Wiretaps

B.C. Supreme Court Justice Selwyn Romilly has blocked public access
to lengthy legal documents filed as exhibits in a drug-smuggling trial.

In a ruling that obscures judicial transparency, Romilly dismissed a
Vancouver Sun application to inspect some 2,000 pages of police
affidavits used to gain wiretap warrants.

Although no specific evidence was cited of concrete harm that would
flow from the release of the material, the judge said he was troubled
so many people were named in the documents.

"There is substantial potential for invasion of privacy of these
innocent persons," he wrote in a 55-page decision.

"This presents a serious harm and one that I find cannot be
practically mitigated.... I thus find that withholding access is a
reasonable and proportional limitation in this case."

I believe his reasoning, however, flies in the face of the Supreme
Court of Canada's view that public access is paramount in all but
exceptional cases and should be circumscribed for only the most
serious and specific of purposes.

Privacy rights -- which seem to be Romilly's biggest bugbear in this
decision -- have not met the high court's threshold as far as I can tell.

But Romilly turning thumbs down on the press did not surprise me.

As I mentioned last week, in the past he has expressed a dim view of
the media and acute concern for the damage we can do.

In this case, he is presiding over what is the last trial resulting
from twin, sprawling cross-border, law-enforcement operations known
as Project Exacto and Project Exacto-Two.

They had their roots in the murder back in August, 1996 of guerrilla
marijuana grower John Bayer Jr. and the simultaneous disappearance of
his partner Lani Sheldon.

In the documents sought by The Sun, RCMP officers outlined their
concerns about large-scale, sophisticated illegal narcotic
activities, a planned contract killing and other criminal activity.

A handful of independent crime organizations were identified.

Numerous individuals who were targeted by the Mounties in these
probes have already been convicted and sentenced, some to substantial
prison terms.

Those on trial before Romilly are charged with conspiracy to export
and traffic in marijuana.

The material sought by The Sun was filed as part of a voire dire -- a
trial within a trial -- held to determine the admissibility of evidence.

Although the alleged offences occurred half a decade ago, legal
proceedings have been drawn out for many reasons, not least of which
was the assault by defence lawyers on the propriety of the
investigation and the process of obtaining the wiretap warrants.

That's one of the reasons The Sun wanted to inspect the police affidavits.

Vancouver Sun lawyer Barry Gibson argued the presumption of openness
of judicial proceedings means materials before the court should be
released unless it can be demonstrated that serious and
disproportional harm to the administration of justice would result.

The Crown and defence lawyers countered that the primacy of
transparency did not extend to wiretap materials.

And Romilly agreed because of his concerns about privacy rights and
the secrecy regime imposed by the wiretap law.

That legislated cloaking scheme, though, seems to me intended to
protect continuing police investigations, informers and police
techniques. None of those issues were a concern in this case.

As well, freedom of expression and the open-court principle
overwhelmingly have been interpreted to favour public and media
access to exhibits and other materials before a court except in rare
and exceptional circumstances.

Individual reputations don't weigh as much as our right to see that
justice is done.

In terms of search warrants, the Supreme Court of Canada says the
rule of thumb is the public is entitled to review and inspect such
documents and the information upon which they were issued once they
are executed -- with very few exceptions, again, usually only to
protect police informants or other express investigative needs.

Those warrants and their supporting affidavits contain the same kind
of information in the documents sought by The Sun -- the same
hearsay, same innocent third-party references, same police speculation.

Still the high court specifically rejected the view that allowing
public access to such material constitutes an unreasonable invasion
of privacy or would hamper the administration of justice.

The B.C. Court of Appeal has also found that although it's an
important consideration, harm to innocent parties does not preclude
disclosure of material before the court.

Romilly canvassed thoroughly those precedents.

He decided, however, that such jurisprudence doesn't apply when you
are dealing with wiretaps.

"Such affidavits are presumptively confidential, and while in most
cases freedom of expression necessitates the release of court
materials, it is not so in the context of wiretap authorizations," he
concluded.

I think he erred: The material sought by The Sun is spent -- it has
been edited for the usual police concerns by the Crown, distributed
to the accused and filed as an exhibit before the court.

I see no reason in Romilly's judgment to keep it secret -- save an
overweening penchant for privacy.