JUDGE WEIGHS RELEASING MARIJUANA MATERIAL

Media Seeks Access To Affidavits Supporting Application For Wiretaps
Made Six Years Ago

B.C. Supreme Court Justice Selwyn Romilly is mulling an application
by The Vancouver Sun to gain access to some 2,000 pages of material
filed as exhibits in a marijuana smuggling trial.

The documents -- affidavits filed by RCMP officers to support
applications for wiretaps -- outline what police believed six years
ago as they launched a series of cross-border investigations into a
murder, a handful of drug-dealing organizations that spanned the
continent and lucrative money-laundering schemes.

Romilly listened last week to extensive legal arguments from defence
counsel, the Crown and a lawyer for an unindicted co-conspirator and
his ex-wife concerned about their privacy.

All opposed letting the newspaper and the public read the material,
although they were vague as to what specific harm might result other
than personal embarrassment.

Sun lawyer Barry Gibson said the documents should be available
subject to minimal vetting for the names of undercover police
informants or information that can be shown to have the potential to
cause real harm.

Names of innocent parties appear in the affidavits and those people
may experience a loss of privacy, but Gibson said such was the price
to be paid for an open judicial process.

This is the same kind of material the media sought access to in the
ex-premier Glen Clark influence-peddling trial and the more recent
investigation involving the B.C. legislature and accusations of
political bribery. In those cases, the media were given access once
the risk of jeopardizing a fair trial had passed irrespective of
privacy interests.

Romilly did not seem swayed by Gibson's argument, though, nor did he
appear persuaded that previous rulings by the Supreme Court of Canada
in similar situations were applicable.

"This whole issue is a new one," he said. "There is no case on point."

The judge is no stranger to these deep legal waters and is well aware
the country's high bench has long supported the public's right of
access in the interests of transparency.

But in those judgements, as he pointed out, it also has said that
right must be weighed against other societal and constitutional concerns.

It was that balancing act on which Romilly focused his attention.

A few years ago, he faced a similar application -- and in that case
he sided with the media, granting us access to audio tapes and other exhibits.

Still, he underscored then, too, that the media did not have an
unrestricted right -- it could be limited or denied.

When I re-read that ruling, I was struck by its tone and Romilly's
extra-legal commentary. It sounded to me as if he only grudgingly
acknowledged the media's constitutional role.

"The free press, as essential as it is to liberal democracy, has, in
recent times, shown more of an ugly side in using its own power for
ends that may not justify the means," Romilly wrote.

"The press is now creating its own victims in causes or crusades for
which it has very little mandate to pursue except for the right to
free press and the pocketbooks of a virtual monopoly of media moguls.
For this it must be held to account.

"The press and those who have come to use it masterfully, awoke one
morning, late in the 20th century, with the dawning realization that
the press holds the balance of power. It can largely create its own
causes, effectively lobby governments, cripple and create industry,
shape the public's perceptions, and set the public agenda . . . .

"Technology has handed to the press the magic wand of king-making and
back-breaking . . . . The press no longer requires or even desires
government approval, philosophical backing or logical underpinnings.
All it needs is the 'vote' of the remote control, the subscription,
and the advertising dollar to continue its reign of power."

This is not a very generous view of the media and it's hard to
believe Romilly was actually coming down on our side.

Little wonder he warned The Sun this latest case was "no slam-dunk."

He promised a written decision by next Monday.