R. v. Moazami
- Citation
- 2020 BCCA 350
- Status
- Judgment
- Jurisdiction
- Canada
- Court
- British Columbia Court of Appeal
- Decision
- 9 December 2020
- Posture
- Criminal Appeals; Constitutional Challenge to Court Access Policy / Court of Appeal Judgment on Constitutional Challenge to Access Policy
- Language
- English
More details
- Court
- British Columbia Court of Appeal
- Decision
- 9 December 2020
- Posture
- Criminal Appeals; Constitutional Challenge to Court Access Policy / Court of Appeal Judgment on Constitutional Challenge to Access Policy
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The Access Policy's requirement that media/public submit a brief access request does not infringe s.2(b); it is an administrative measure consistent with the court's supervisory power and the Dagenais/Mentuck balancing regime, does not displace the substantive onus on those seeking restrictions, and therefore the constitutional challenge to those provisions is dismissed.
Court disposition
Constitutional challenge dismissed; impugned sections of the Access Policy upheld
Orders
- Constitutional challenge to the Court of Appeal Record and Courtroom Access Policy dismissed
02
Material facts
Parties
Regina
Respondent Counsel: L.A. Ruzicka, M.G. ScottReza Moazami
Appellant Counsel: T.M. Arbogast, A. GrewalAmounts and remedies
- Total Access Requests (2015 2020): 58
- Formal Court Applications Resulting From Appendix C Requests: 3
- Requests Where Applicant Received Access to All Requested Records: 38
- Requests Where Applicant Received Access to Some Requested Records: 15
- Requests Where Applicant Received No Access to Requested Records: 0
03
Procedural history
Posture
Criminal Appeals; Constitutional Challenge to Court Access Policy / Court of Appeal Judgment on Constitutional Challenge to Access Policy
04
Questions and positions
Legal issues
- 01
Whether the Court of Appeal Record and Courtroom Access Policy (Access Policy) infringes s.2(b) of the Charter
- 02
Whether the Access Policy subverts the open court principle by requiring pre-access administrative requests
- 03
Whether the court's supervisory power over its records may be exercised administratively or only via Dagenais/Mentuck applications
- 04
Whether any infringement is justified under s.1 of the Charter
- 05
Whether procedural delay inherent in the Access Policy unconstitutionally impairs timely media access
Party arguments
- Applicant
- Postmedia and CBC argued the Access Policy operates as a de facto sealing regime that shifts the burden to the media to justify access, requires prior administrative applications for presumptively public court records, and thereby infringes the open court principle and s.2(b); they contended access should be prima facie available absent a sealing order and that restrictions must be imposed only via the Dagenais/Mentuck framework with the onus on those seeking closure.
- Respondent
- The Crown, AGBC and the Court defended the Access Policy as an administrative mechanism consistent with the court's common law supervisory and protecting power over its records (MacIntyre). They said the policy does not alter the substantive onus on those seeking to restrict access, facilitates informed balancing under Dagenais/Mentuck, protects privacy and administration of justice, and does not constitutionally impair freedom of expression.
05
Court’s reasoning
Legal principles
- 01
A.G. (Nova Scotia) v. MacIntyre, [1982] 1 S.C.R. 175
Courts have a common law supervisory and protecting power over their records; access can be denied where disclosure would subvert justice or be used for improper purpose
- 02
Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; Vancouver Sun (Re), 2004 SCC 43
Open court principle is constitutionally protected and linked to s.2(b) freedom of expression and freedom of the press; public access enables scrutiny and confidence in judicial processes
- 03
Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Mentuck, 2001 SCC 76
Publication bans and other restrictions on openness must be justified by balancing rights under the Dagenais/Mentuck test: necessary to prevent a serious risk to the proper administration of justice and salutary effects must outweigh deleterious effects on rights
- 04
Dagenais/Mentuck; MacIntyre; CBC v. Canada, 2011 SCC 3
The burden of displacing the presumption of openness lies on the party seeking the restriction; procedural mechanisms facilitating informed judicial supervision do not shift that substantive burden
06
Ratio, limits and disposition
Ratio decidendi
The Access Policy's requirement that media/public submit a brief access request does not infringe s.2(b); it is an administrative measure consistent with the court's supervisory power and the Dagenais/Mentuck balancing regime, does not displace the substantive onus on those seeking restrictions, and therefore the constitutional challenge to those provisions is dismissed.
Obiter and limits
- Immediate unfettered access to all court records is not guaranteed by the open court principle; access is subject to judicial supervision to protect social values of superordinate importance
- Administrative processing of access requests may cause delay but such delay is not per se unconstitutional absent evidence it defeats the objective of public scrutiny
- Statistical evidence showed most Appendix C requests were resolved informally and resulted in access to all or some records, supporting the efficacy of the policy
- Proposed procedural innovations (eg. online push notifications) may be useful but are not required for Charter compliance
Court disposition
Constitutional challenge dismissed; impugned sections of the Access Policy upheld
- Constitutional challenge to the Court of Appeal Record and Courtroom Access Policy dismissed
Source and reliance status
British Columbia Court of Appeal · 9 December 2020
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