A Surrey provincial court judge has decided to have all information available to the public scrubbed from Court Services Online concerning "pending or future" court dates related to a sexual assault case after the accused's lawyer applied for this.
"I have concluded that the order sought by the accused is appropriate," Judge Michael Libby decided on June 13, ordering that all information accessible through Court Services Online regarding pending or future court dates in this case "be removed from the Court Services Online website and that no further information about the matter be added without leave of the court."
The accused is identified in Libby's ruling on the application only as T.S. The accused successfully applied for an order that all upcoming dates in the matter, including new trial dates to be confirmed, not be posted on electronic service. The Crown opposed the application, Libby noted, having argued that "in large part that such an order would be contrary to the well-established open court principle."
"As best I can tell, the specific nature of this application is unique in British Columbia and has not before been addressed by our courts," the judge noted.
"I conclude that the minimal impairment to the open court process that may be created by the proposed order is greatly outweighed by its salutary purpose and that the proportionality assessment clearly favours granting the application."
The case was scheduled for trial earlier this year but about a week prior to it starting an adjournment was granted related to the accused's safety, partly related to a social media post now attached to a sealed affidavit.
"The post appears to consist of images taken from CSO, and in particular, the name of the accused, the charge against him, and a listing of his court dates including the trial dates that were adjourned," Libby noted. "Superimposed over top of these images are a number of words which I elect not to specify in these reasons at the request of counsel."
Libby said he's satisfied he had jurisdiction to make the order. The Crown conceded this but argued that it "should not be made as it unduly interferes with the open court principle."
The judge said he's "prepared to conclude" words superimposed over the CSO image on the post are "threatening in nature" but he didn't comment further on them.
The accused's position was that the use of his CSO record in the social media post was a misuse of the records that could be "reasonably curtailed by the order sought" while the Crown argued such an order violates the open-court principle.
Explaining this principle, the Crown cited case law which Libby summarized as follows: "Court openness is protected by the constitutional guarantee of freedom of expression and is essential to the proper functioning of our democracy" and "reporting on court proceedings by a free press is often said to be inseparable from the principle of open justice," and further, that "access to courts is fundamental to newsgathering, and in turn, freedom of the press."
That said, Libby noted he must consider if, in seeking to limit a means of accessing court records, the accused established that court openness "poses a serious risk to an important public interest; that the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and, as a matter of proportionality, the benefits of the order outweigh its negative effects."
Libby said it's his view "that court openness – here in the form of publishing the trial dates on CSO – poses a serious risk to an important public interest because the CSO records themselves appear to have been subject to misuse for improper purposes."
The Surrey judge added that the limitation on publication "is a minimal one. It does not foreclose public inquiry or access to information about this case. Rather, it simply closes off one of several means of public access to this information" and it "does not come anywhere close to rendering this a 'secret trial.'"
