DOHM'S COURTROOM A LAW UNTO ITSELF

The people are being denied the right to crucial information;
fundamental freedoms are continuing to be infringed

Rarely has a judge held so much power. And rarely has a judge wielded
that power in so cavalier a manner.

The judge with the power is B.C. Supreme Court Justice Patrick Dohm,
presiding over matters related to the search warrants that were
executed on the B.C. legislature in late December. The raids were
conducted as part of two separate, but intertwined, investigations: a
drug probe and a commercial crime probe.

On Jan. 2, The Sun applied for access to the warrants, which had been
sealed by Justice Dohm. Gaining access isn't usually that difficult,
since the Supreme Court of Canada has affirmed the public's right to
access.

In the leading case of Attorney-General of Nova Scotia v. McIntyre,
Justice Brian Dickson said that "after a search warrant has been
executed ... a member of the public is entitled to inspect the warrant
and the information upon which the warrant has been issued."

Nevertheless, Justice Dohm denied our application on the grounds that
it could reveal the identity of innocent people or compromise the
police investigation.

Those are legitimate concerns, and courts must weigh the various
interests to decide what to release. But the law operates under the
presumption that court documents are public, and just last week, the
B.C. Court of Appeal affirmed the importance of granting the public
access to summaries of search warrants.

In the case of Phillips v. Vancouver Sun, the court acknowledged the
warrants are sometimes sealed "to protect the confidentiality of
informants and to preserve the ongoing investigation." But the court
also noted that "given the editing of the warrant materials ... these
considerations no longer apply."

In other words, the interests of the public, the police and people
named in warrants can all be protected by releasing an edited summary
of the materials.

So last week we again asked Justice Dohm to release the warrant
information and again he refused. This past Thursday, despite the
federal Liberals' argument that speculation was impeding good
governance, he said he wouldn't make a decision on the warrants
relating to the commercial crime probe until March 2.

As bad as that sounds, it's not the end of the story. On Thursday, the
Crown said it was ready to release an edited copy of the warrant
materials relating to the drug probe, but certain lawyers -- some of
whom were not even required to identify their clients -- objected. So
Justice Dohm decided to grant those parties access to the materials
and said he would hear arguments on Friday.

Astonishingly, Justice Dohm did not give access to the Liberal party
- -- which favours the release of information -- or the media, which
also argues for disclosure.

So let's review. The Sun, other media outlets and the federal Liberal
party apply to have the warrants unsealed. Justice Dohm says those who
want them to stay sealed can review the documents. But those applying
to have them unsealed cannot.

On Friday, Justice Dohm began hearing arguments, but not before
dismissing the lawyers for the media and the Liberal party from the
courtroom. After all, they never had access to the materials, so they
certainly couldn't make any informed arguments, now could they?

Thanks to Justice Dohm, The Sun was thereby prevented from making
submissions on its own application while the parties responding to
that application were given full audience before the court!

Things would be bad enough if the story ended there, but it doesn't.
Since the Crown unilaterally edited the materials, there's no way of
telling whether certain information was improperly edited out of the
them. Normally, courts give all interested parties access to unedited
materials with the proviso that they not release any of the
information.

But "normal" -- along with judicious -- appears to be a concept beyond
Justice Dohm's grasp. His decision Friday was based on material The
Sun and the other applicants did not see and arguments they did not
hear because they were made in secret.

Access to the documents is essential so the parties can argue that the
information should be released or withheld. It's also necessary so the
court can balance the competing interests in an informed way, as the
Criminal Code, the Charter of the Rights and the Supreme Court of
Canada all dictate.

But in Justice Dohm's courtroom, no one gets access to unedited
materials. And those for the release of information don't get any
access at all.

Ultimately -- and despite the fact that both prosecutor Johannes van
Iperen and the RCMP have no objections to the release of edited
materials -- Justice Dohm decided Friday that he would wait until
March 2 to make a decision about the warrants relating to the drug
probe.

In doing so, he made it clear his decision was made on the basis of
material and argument reviewed behind closed doors in the absence of
those applying to have the warrants unsealed.

That means that in addition to denying the public its right to access,
there will be more speculation that the federal Liberal party and
employees of the provincial government might be linked to money
laundering and organized crime.

Justice Dohm himself has added fuel to the fire, by noting Friday in
court that the commercial crime investigation and the drug
investigation are so closely linked that information cannot be
released on one of them alone.

The result of the learned judge's courtroom antics?

More people will be calling on Prime Minister Paul Martin to delay the
impending federal election until matters are resolved. The provincial
government will continue operating under the cloud of not one but two
crimin al investigations, along with mysterious but ominous comments
from police about organized crime's infiltration into government.

In response to the delays, federal Liberal party lawyer Irwin
Nathanson said, "Fundamental freedoms are being impinged."

Indeed. And it looks like they'll continue to be infringed a little
while longer. So much for justice.