Reply #89: oh, well!

[iverglas]

Wrong they haven't lost - have 10 days to file briefs

It wasn't wrong when I wrote it now, was it?

On the issue itself, it's a tough one. Regola's arguments have some merit: that making the warrant info public can taint the process.

That's why, up here, there is a fairly routine publication ban issued at preliminary hearings, for instance. (A preliminary hearing is our counterpart of a grand jury proceeding -- except that here, the prosecution is required to present a sufficient case for prosecution in open court, i.e. with the public and media present, and to obtain the judge's authorization to proceed; the accused ordinarily does not call evidence. The judge may commit the accused for trial or discharge him/her then and there.)

Here, it is generally felt that the right of the accused to a fair trial by an impartial court overrides the broad public's right to know the prosecution case. Publishing the evidence presented by the prosecution could taint the jury pool, for instance.

There is a downside, of course, and it exists in cases like this one: the public does have more of an interest in knowing what it is alleged that its elected representatives are getting up to, and how good the case is, than in knowing what the evidence against yer average accused is. Two reasons: to ensure that no special favour is being shown but also to ensure that no excess zeal is being applied, for political motives.

This was a problem here last year when the media sought to have the warrant info revealed in the case of some senior aides to politicians in British Columbia. There had been raids on the offices of Cabinet ministers, there were rumours of drug money funding political campaigns, including eventual and now former Prime Minister Paul Martin's run for the Liberal leadership, there was talk of the bidding process for a huge govt asset having been corrupted by pay-offs. And then there was an election coming. The judge had promised to open the files on a date about 2 months in future, allowing time for police to complete their investigation but then making an exception to the non-disclosure rule, in the public interest. However ... in the meantime, a provincial election was called ... and the judge reneged on the deal, which meant that the public was still in the dark about the allegations against employees, friends and relatives of prominent members of the governing party when it went to the polls. Ew. Smelly.

I think that an arrangement like that is probably best, myself. Give the prosecution a deadline for doing its work, based on whatever reasonable case it makes for needing time (e.g. to get forensic analysis done so it knows what it needs from witnesses, and firm up witness statements) and then open the file.

That may be what will eventually happen here, informally -- the prosecution now has its 10 days, and by then may be in a position where it doesn't need time and thus cannot present a strong enough case to counter the special public interest in disclosure in this instance.