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Lawyers for the two media outlets also filed a notice of constitutional question that challenged the court’s access policy, arguing that it infringed the right to freedom of expression and freedom of the press.
Supported by other media outlets who intervened in the case, they said the access policy contained blanket restrictions on access to material filed with the court and amounted to a sealing order.
The Crown denied that there was a blanket restriction on access and argued that the court had a supervisory and protective role over its records. The attorney-general’s ministry largely adopted the Crown position.
On Wednesday, a three-judge panel of the court rejected the media submission that their rights had been violated by the access policy.
In his reasons for judgment, B.C. Court of Appeal Chief Justice Robert Bauman said that while the broad principle of open courts cannot be doubted, unfettered public access to the records is not the promise of the open court principle.
“I conclude that the access policy does not have the effect of displacing a judge’s discretion to limit court openness,” said Bauman, B.C.’s top judge. “It describes a process by which the factors that may inform a decision on access are put before the court. It does not, at any point, purport to prescribe a result.”
Bauman noted that the media applicants took the view that the open court principle mandated that the public may inspect any court file at any time, except where a sealing order had been applied for and granted.
“Once again, unfettered access to exhibits is not the rule — the jurisprudence belies the suggestion that the public and the media have an automatic and immediate right of access to court records,” he said. “There is a presumption of openness and access but that does not mean there cannot be a process put in place by which Charter rights are exercised and the interests competing with openness are properly weighed in a judicial determination.”
Justice Lauri Ann Fenlon and Justice John Hunter agreed with Bauman.
