OPINION: The principal of open courts and freedom of the press is not trivial

It’s one thing when criminals seek to keep process secret but Crown and the B.C. Prosecution Service?

To say the criminal justice system is unsatisfactory to victims is like saying a punch in the face is unpleasant.

We frequently hear how victims are overlooked in our courts, courts that are focused on prosecution of, defence of, and judgment of people accused of crimes.

The victims? Sometimes they are witnesses, sometimes not. They often appear at court hearings of their own accord, but they are also often given short shrift by the system.

The BC Prosecution Service is focused on those accused of crimes and their concerns. There is little attention paid to victims.

And from what I’ve learned recently, opacity over the workings of the court is the desired goal over transparency.

I can’t count the number of times I’ve had the victim of a crime contact me to find out the status of court proceedings for charges against an alleged offender or how the process works. I help with looking up court dates and tell victims what little I know about process.

And I don’t work for the courts, I’m just an observer.

So when one of the few entries in the criminal code dedicated to victims is not only ignored but is actually used against the wishes of a victim, I join in the growing cynicism in criminal justice.

A recent case has me baffled that a Chilliwack Crown counsel would accede to an order from their bosses at the BC Prosecution Service to apply for an expanded publication ban over the name of an accused for no reason other than that the accused complained. His lawyer came to court, knickers in a knot, shocked that the media was covering the case of his client’s sexual abuse.

Publication bans on criminal proceedings are regular at court. There are standard bans on preliminary inquiries and other hearings prior to BC Supreme Court trials so as not to prejudice possible jurors. There are also standard bans under Section 486 of the Criminal Code that prohibits identifying victims of crimes who are under the age of 18.

These are put in place and are respected by media outlets. But imagine a scenario where such a publication ban is put in place, asked for by the lawyers and granted as a matter of course. The victim is protected. Then imagine the accused cries foul that his name was printed in the paper because, why? He is worried about the victim? No. He’s worried about his name in print.

It is understandable that a defence lawyer would stoop to such depths to violate the principle of openness in the courts and to try to violate the constitutional guarantee of the freedom of the press. And yet the irony is that the victim in the case in question has no quarrel with the printing of the name of the accused. I know this, yet the BC Prosecution Service went out of its way to attempt to stifle the public’s right to know. Last week I got a call to request that I voluntarily stop publishing his name. I politely refused since the publication ban in place was not violated. The next day, local Chilliwack Crown counsel was ordered to apply for the expanded ban.

Why would the BC Prosecution Service pander to a defence lawyer who has no legitimate legal claim to stop the printing of his client’s name? Hard to say. I asked and was told the application was made to ensure the identity of the victim was not revealed, and the Crown did not accede to pressure from defence.

In an emailed response (received after this column went to press), Dan McLaughlin, communications counsel for the B.C. Prosecution Service reiterated the claim that the legal justification to expand the ban is under the Criminal Code regarding mandatory publication bans on the names of victims.

”As the matter remains before the court the BC Prosecution Service will have no further comment.”

Needless to say, I received no response when I pointed out the fact that the public knowing the name of the man convicted in this case does nothing to identify the victim.

It makes no sense.

The openness of our criminal justice system is not trivial, and the fact that the Crown here wants to err on the side of opacity over transparency isn’t just frustrating as a journalist, it isn’t just annoying as a citizen, it is a fundamental violation of the constitutional freedom of the press.

The defence lawyer in question might hate the fact that his sex offender client’s name was in the press, yet here we are trying to unring bells.

His name is —————————.

If the publication ban is not extended to include his name, I’ll replace those dashes in the paragraph above with his name after the next court date on May 30.

If the ban is extended, sorry, but that is how our system works.

• RELATED: Black Press Media challenges publication ban on name of B.C. school stabbing victim

• RELATED: Publication ban on name of girl killed in Abbotsford school lifted


@PeeJayAitch
paul.henderson@theprogress.com

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