Public access to court proceedings and court documents is vital to our democracy. Any restrictions to that access should be imposed with extreme caution, and only if they serve the greater good. Once the doors of openness start to close, it is difficult to open them again.
Thomas Crabtree, the chief judge of the Provincial Court of sa国际传媒, has decided to limit online access to cases that do not result in convictions. He announced the policy in a recent memorandum that arose from consultations last year regarding an online database, Court Services Online. He said information regarding acquittals, dismissals and withdrawals will be only available through the database for 30 days after the information is entered.
The information will still be public, but access to it can be obtained only by visiting a courthouse or one of sa国际传媒鈥檚 17 court registries. That erects a barrier to the information for people who cannot get to a courthouse or registry because of such factors as disability or distance.
Crabtree鈥檚 concerns are not trivial. A person charged with a criminal offence but not convicted can still reap some of the consequences that come with a conviction. The chief judge quoted from a 2014 report by Elizabeth Denham, sa国际传媒鈥檚 information and privacy commissioner:
鈥淚t is trite that the presumption of innocence is a core value and principle in our system of criminal justice. 鈥� It is not merely the formal penal consequence of a criminal allegation that represents the punishment for criminal behaviour. Often, it is the social stigmatization and public condemnation that are the worst implications for a convicted criminal.
鈥淭o disclose the status of an individual as having been a suspect, charged or acquitted of a criminal offence is to heap on them much, if not all, the suspicion and wariness the public feels toward those convicted.鈥�
Crabtree said he received information that showed the court database had been used by landlords vetting potential tenants, and that even if a person was acquitted or a charge withdrawn, the information could still be used to draw negative inferences about an applicant.
Given the state of the housing market on the Lower Mainland and southern Vancouver Island, that is no small thing. And for such information to be used in that manner is unfair, but there鈥檚 nothing stopping a property manager, other than a little inconvenience, from obtaining the information at the courthouse or a court registry.
鈥淥n balance,鈥� wrote Crabtree, 鈥渢he need to protect individuals who have not been convicted from misuse of court-record information outweighs the desirability of broad online public access to information about such cases and the individuals affected.鈥�
The chief judge鈥檚 remarks are in line with the stand of the sa国际传媒 Freedom of Information and Privacy Association, which advocated that non-conviction information not be available through Court Services Online.
Those are compelling arguments, not made lightly. It is indeed a difficult balancing act.
But the openness of the justice system is so vital, any restriction is dangerous. That openness carries with it risks, but democracy is a risky business. There are greater risks, though, in limiting transparency and openness.
The concept of an open court is a cornerstone of common law. Transparency is vital to the administration of justice. It holds judges, juries and lawyers accountable and helps maintain public trust. When that trust diminishes, so does the motivation to abide by the rules that govern the system.
Any freedom can be abused, but that is not reason enough to restrict it. The chief judge鈥檚 concerns about misuse are legitimate, but not great enough to justify secrecy or a two-tiered level of access to information.
