SPECIAL REPORT: HOW COURTS KEEP EYES OFF SEARCH WARRANTS

Courthouses Throw Up Roadblocks To Prevent Scrutiny Of Documents

B.C. courthouses are routinely breaking rules designed to let the
public keep a watchful eye on searches and seizures done by their
local police departments, the Times Colonist has found.

Six of 10 courthouses on Vancouver Island and the Lower Mainland
investigated by the Times Colonist do not provide a binder of recent
unsealed search warrants for the public to view -- even though it is
provincial policy to do so. A seventh courthouse offered a binder
three months out of date.

Instead, the registries placed onerous, and sometimes insurmountable,
hurdles in the way of accessing documents.

The roadblocks all but prevent ordinary British Columbians from
scrutinizing how police search homes and businesses and what
arguments they are using in court to convince a judge or justice of
the peace that such searches are necessary.

According to a 2001 circular to all B.C. courthouse staff, each of
B.C.'s 44 provincial courthouses is required to maintain a free
public file that displays copies of recent unsealed search warrants
in chronological order, within 24 hours of those warrants being
deemed public documents by a court.

The policy is supposed to increase convenience at courthouse
registries, free the public from having to ask for individual
warrants, and bring B.C.'s justice system into line with a 1982
Supreme Court of Canada ruling that said courthouses should have
their records available for easy inspection by the public.

But there are no such binders for search warrants in courthouses in
Victoria, Western Communities, Duncan, Nanaimo, Port Alberni and
Vancouver. Courtenay, Surrey and North Vancouver do follow the rules
and provide the files. New Westminster does too; however, its file
hasn't been updated since October.

The uneven policy can dramatically affect the public's access to
information about the court system, and cases that are in the public interest.

Indeed, search warrants have provided crucial information for several
recent high-profile news stories.

When the story of a major privacy breach in the B.C. government broke
last year, it took court documents to shed light on the real story
the provincial government wasn't telling.

Sensitive personal information from 1,400 income assistance clients
was found inside the Victoria home of a government supervisor who was
under RCMP investigation.

The province moved quickly to downplay the incident, but the

Times Colonist used court files and a search warrant to reveal the
true scope of the breach, including the supervisor's criminal record
for fraud, and police allegations the employee had used a fake
identity to obtain his government job.

Two simple court documents was all it took to blow holes in the
government's official story. But it almost didn't happen.

Times Colonist reporters were confronted with an uphill battle at
Victoria's courthouse registry. Staff there require you to have a
precise street address and the exact date a warrant was processed in
order to run a search.

Not only is this precise requirement not backed up in provincial
rules, but it's also a hurdle that's frequently insurmountable
because police no longer release the specific addresses where crimes
or police raids take place due to what they say are privacy restrictions.

In addition, if court staff are unable to find a warrant, it's often
unclear whether your date and address are slightly off, whether the
employee did the search wrong, or whether the warrant doesn't exist.

As a result, unless you have inside information or stumble across a
raid in progress, you're likely to face rejection when asking for a
warrant at Victoria's courthouse counter.

The requirement to produce a date or address to see a warrant "is
totally the invention of some bureaucrat," said Dean Jobb, author of
Media Law for Canadian Journalists and associate professor at the
School of Journalism, University of King's College in Halifax.

"There is nothing in the law that says, 'Oh, it's open if you
basically know what's in it. OK, you can see the search warrant if
you happen to be walking down the street when the officers moved in,'
or 'You can see the warrant if you have good enough police sources
that someone tipped you off.' Come on. I mean this is ludicrous.

"If it's open, it should be easily open. There shouldn't be wheels
within wheels. There shouldn't be little hoops you have to jump
through. It shouldn't be who you know."

Such a policy can be abused because police can keep quiet about
sensitive searches, and release details about others when they want
publicity. "So the police start leaking stuff in their own interest,
and that's in nobody's interest," Jobb said.

In the case of the government privacy breach, the Times Colonist had
obtained, through unofficial channels, the date of the police raid
and the man's address.

STILL, GETTING ACCESS WAS ANYTHING BUT EASY:

- - On the first visit, the registry staff said they couldn't find a
warrant listed under the date and address provided.

- - We double-checked the date and address. The information was
correct. We returned to the courthouse and complained. The clerk's
supervisor ran another search, using the same information, and found
the warrant. But instead of providing the entire file, as requested,
the supervisor only gave us part of the information.

- - On our third visit, we asked for the rest of the package, which
included crucial information that showed what police seized in the
employee's home. The supervisor gave us the information, but couldn't
explain why the public file was initially denied, then partially withheld.

The information inside the RCMP search warrant contained sworn
statements by a police officer that contradicted the government's
official line, prompted a number of news stories, and pressured the
government to launch an internal review that returned with a
blistering critique on its own failure to properly handle the scandal.

Without access to court records, the government's questionable story
might have been allowed to stand for months, perhaps years.

Yet, just a short ferry ride away from Victoria, in Surrey, the free
binder of unsealed warrants is standard reading for curious court
reporters and public watchdogs. That's how a CBC Radio reporter shed
new light on another government scandal last year. He was doing a
routine check of the binders when he came across a 99-page warrant
detailing an alleged 2007 kickback scheme involving a top bureaucrat
in the Ministry of Health.

Though some of the details had been reported earlier, the government
had managed to keep a lid on the extent of the allegations. The
search warrant blew that lid off.

It revealed RCMP allegations that Dr. Jonathan Burns double-billed
the ministry tens of thousands of dollars while he was both the head
of a company trying to sell electronic health software to provincial
health authorities, and also a consultant on the government's
multimillion-dollar electronic health records program. The warrant
also alleged that Burns offered favours to former assistant deputy
health minister Ron Danderfer, who oversaw the e-health program, in
turn for Danderfer inflating Burns' government expenses. A special
prosecutor is overseeing whether criminal charges will be laid in the case.

Numerous questions about who is responsible for bringing B.C.'s
courthouses into line on search warrant policies received conflicting
replies from B.C.'s Ministry of Attorney General.

At first, ministry spokesman Shawn Robins said binders for search
warrants were part of "local practices" decided by individual
courthouses. Robins could point to five of 44 courthouses in B.C.
that have binders. But, overall, it is B.C.'s independent judiciary
- -- the province's judges -- that handles access to records, he said.

Not quite, replied the judiciary. A spokesman in the chief judge's
office of the provincial court pointed the Times Colonist back to
rules drafted by the Court Services Branch of the Attorney General's
Ministry in 1994 and 2001.

Eventually, the provincial government admitted it was their rulebook.
But they didn't explain what, if anything, they are doing to bring
courthouses onto the same page.

It's not the first time the provincial government has found itself
under pressure to align the various courthouses into a single policy
on search warrants.

The Vancouver Sun fought, and won, better access to warrants in the
1980s by lobbying the assistant deputy attorney general. The Sun
argued that the right of access to public documents was effectively
being denied because warrants were handled by justices of the peace
and they were generally reluctant to share the information. In
response, Vancouver provincial court began keeping a binder of
publicly available search warrants under its front counter. Other
courts were expected to follow.

Two decades later, the Supreme Court of Canada is as firm as ever on
the public's right of access to search warrants. But the Vancouver
provincial court no longer keeps its binder.

Instead, unchecked over time, Vancouver has reverted to a system that
requires the public to submit a form at the registry with their name
and telephone number and as many details as possible about a warrant
before a justice of the peace will even look at the request.