B.C.'s highest court rejects media's constitutional challenge seeking access to court files on ex-cop

The B.C. Court of Appeal has upheld its own policy on access to court records in the face of a constitutional challenge filed by two media organizations.

In reasons for judgment handed down Wednesday, Chief Justice Robert Bauman dismissed the challenge filed by CBC and Postmedia in connection with a bid for access to files concerning the investigation into disgraced former Vancouver detective James Fisher.

Writing on behalf of a unanimous three-judge panel, Bauman said the media organizations "significantly overreach" in their arguments, suggesting the court's access policy violates the open court principle enshrined in the Canadian constitution.

"They impugn a simple administrative mechanism that invokes the court's well-established supervisory role over its own records," Bauman wrote.

The constitutional challenge has its roots in a May 2019 bail hearing for Reza Moazami, a convicted pimp and human trafficker.

During that appearance, Moazami's lawyer raised shocking new allegations about the sexual and professional misconduct of Fisher, who was the lead investigator in his case. Moazami alleged that Fisher had sexual contact with at  least six of 11 victims and a key witness before, during and after the trial.

Reporters from CBC and Postmedia both visited the court registry shortly after the bail hearing to request access to thousands of pages of material filed by Moazami in connection with his appeal, including evidence uncovered during an investigation into Fisher's misconduct.

Crown's response to those requests said the journalists should be blocked from accessing extensive sections of the evidence in the case. Because of the court's access policy, the Crown did not have to file an application for a sealing order to protect those sections of the file, and it was up to the journalists to pursue greater disclosure.

Unique among courts in B.C., the appeal court's application process also asks those seeking access to documents to lay out "concerns that you might have" about the impact on the privacy of people whose personal information is contained in the files, and to "explain how you would mitigate the risk."

'Freedom of expression and the press is not compromised'

The challenge filed by CBC and Postmedia argued that the appeal court's access policy violates the open court principle enshrined in constitutional law.

That principle holds that, in order for the public to have full confidence in the legal system, the courts are presumed to be open to the public.

In opening arguments challenging the court's access policy, the media organizations argued that "these steps create a default rule of secrecy and shift the burden of justification away from the party seeking to restrict access … All of that turns the open court principle on its head," according to the appeal court judgment.

Bauman, however, said that argument "borders on hyperbole." 

"Freedom of expression and the press is not compromised by the requirement of an inquiring journalist to file an application essentially identifying for the court what records they seek so as to enable the court to conduct a proper assessment of the request and possibly sanction limits on access," the judge said.

"Throughout the process, the open court principle is acknowledged and the onus of 'closing' the court is never shifted from those who would seek it."

Meanwhile, Moazami's appeal of his convictions on dozens of criminal counts for running an underage prostitution ring is still underway, and new allegations against Fisher also continue to trickle out.

Fisher pleaded guilty in 2018 to breach of trust and sexual exploitation for kissing two young victims of sex crimes, including one young woman who testified in Moazami's trial. 

There have been allegations that Fisher sexually abused several other young women during the course of his investigations into Vancouver pimps.

Moazami has also alleged that Fisher provided the young women with drugs, counselled them on how to lie and cheat in court, gave them hundreds of dollars and obstructed police investigations into their activities.