What should we do when the main legislative branch of government is routinely breaking the law?
In early February, the Victoria Times Colonist published a series of investigative articles by Louise Dickson, Lindsay Kines and Rob Shaw which upset and impressed me. But in the end, I wondered if even they really understood the significance of their discoveries.
The reporters went incognito to ten courthouses across Vancouver Island and the lower mainland. They asked to see basic information like court transcripts, records of charges and unsealed warrants—documents anyone should be able to easily obtain in any democratic society where courts are open and all are equal before the law.
What they found was Kafka-esque. Almost without exception, the clerks, supervisors and Justice of the Peace employees of the BC Ministry of Attorney General’s Court Services Branch frequently made arbitrary decisions controlling access, cited non-existent regulations, and engaged in blatant contraventions of the law.
One employee claimed a requested file couldn’t be shown because it was under a ban which she wasn’t sure she was even allowed to name.
Another employee started asking probing questions about why the requester wanted to see a file, and then added, “If you are not forthcoming with me, I may not be as forthcoming with you.”
Access to a court file was refused, and later given, without explanation.
Access to a court file was given and then suddenly retracted because the employee said she felt certain the Crown would soon apply to seal it, anyway.
In some courthouses, the requester had to fill out intimidating reams of unnecessary personal information, or show precise knowledge of case details like charge status or addresses of police searches—things most people would only learn after accessing the court file.
When it was explained that the Vancouver courthouse was making decisions about access differently from New Westminster, a Vancouver employee even blithely justified this disregard for the law: “They have their way of doing things and we have our way of doing things.”
When the TC contacted the BC Ministry of Attorney General, their senior spokesperson explained there were no overarching policy guidelines. “The reality is that there is no ‘one size fits all’ policy for access to court records,” he enlightened the TC in an email.
This has far-reaching implications. Media accessed court records to discover our minister in charge of traffic safety had a suspended driver’s licence, and our assistant deputy health minister was under investigation for embezzlement. Landlords, tenants, investors, businesses, victims of crime, environmental, development, health and poverty groups and many others often need access to court records for everything from exposing polluters to understanding how trade agreements affect municipal decision-making. Our government is suggesting AG bureaucrats have the right to arbitrarily and without rationales restrict all this?
When legal experts expressed horror and the TC presented policies governing public access to court records from other provinces, the AG’s office promptly changed its story: The government is “working on” policy guidelines but, in the meantime, the ministry told the TC, provincial judges are responsible for court records.
A perplexed spokesperson for our provincial judiciary responded that records handling is actually the legal and practical responsibility of the AG, and presented policy guidelines issued by the AG to BC’s courthouse employees in 1994 and 2001.
Abruptly, the AG’s office conceded that they do have court records access policies and are indeed accountable for courthouse employees.
When then asked about controversial new fees for searching online court records, the AG’s office again foisted blame on the provincial judiciary for asking government to impose the fees. Chief judges of the BC Supreme Court and Provincial Court promptly stated the government was, again, lying.
By then I was thinking, ‘By jove: This! This is is what a community newspaper should be doing!’ It was shaping up to be the kind of journalism that both disturbs you profoundly and makes you want to stand up and cheer—and could even bring down a government.
But then something pathetic happened.
The provocative series was topped off with a facile, sycophantic article, credited to all three journalists, featuring Attorney General Mike de Jong.
“B.C.’s attorney general has promised sweeping changes to improve public access to the province’s court system in the wake of a Times Colonist investigation,” the article began, aptly encapsulating how the main purpose seemed to be to make both the Minister and the TC look good.
The Minister was allowed to wax on in politico-speak about the grandiosities he “hopes” to perform in future, and all of it thanks to the TC‘s fine work. His imminent plans were hardly “sweeping” (in fact, they basically amounted to finishing that policy guide the ministry had said it was working on, once they’d been forced to acknowledge they had a policy), while not a single other source was included and no critical perspective was provided.
By then I was thinking, ‘This. This is the epitome of everything that is wrong with mainstream journalism today.’
Evidently, the TC journalists hadn’t grasped the true significance of their own discoveries—or were reluctant to follow them to their logical conclusions.
After all, their articles had already made it clear that none of this was news to the government.
Lawyers, unions, watchdogs and others have been complaining of worsening problems in our courthouses for years. Even the AG’s communications director eventually acknowledged awareness: “I know it came up and they were talking about giving people better training…” De Jong himself eventually admitted he’d seen this improper “culture of protectiveness” within the AG’s Court Services Branch “developing over the years” (emphasis added, and note that de Jong, a lawyer, has been a minister in the BC Liberal government since 2001).
So what had the TC’‘s articles really exposed, then?
First: The Attorney General’s office, the highest-level rule of law in our province, essentially argued, in writing, that it was reasonable that the very foundations of our legal system—the right to know the charges against you, the right to witness how laws are applied and legal decisions are made, the right to monitor how our daily lives and world are being policed by the state—have been operating on a capricious, ad hoc basis.
Second: The Attorney General’s office has until now apparently been largely ignorant of the laws pertaining to courthouse work and our provincial court records system.
Third: The Attorney General’s office had the staggering audacity (and sheer stupidity) to simply make up legal references and legislative authorities and twice inform the media that the province’s judges were responsible for activities central to the operations of our legal system, which the ministry itself was actually responsible for.
These are facts that can’t be simply wiped out by the Attorney General promising a new policy guide. These are facts that show this government—this government’s legislative branch—has little fundamental respect for the rule of law. These are facts that boggle the imagination, when we consider that, if our legal system is operating so far outside the law, then how much more cowboyish and authoritarian must decision-making be right now in areas of our government and civil service where people are not being explicitly trained to work in the law?
These are facts that should bring down this government.
Originally published in Focus, April 2010.