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Ian Mulgrew: Down the rabbit hole with Reza Moazami

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OPINION: “The administrative machinery created by the Record Access Policy erects substantial and substantive barriers between the public and presumptively public records.”

Reza Moazami in court. Felicity Don / THE CANADIAN PRESS

Details about alleged misconduct in the landmark Reza Moazami human-trafficking case remain under wraps as the Crown seeks to restrict access to documents filed in his appeal four months ago on a bail application.

Postmedia and CBC requests in May to obtain presumptively public material filed in the B.C. Court of Appeal have been in limbo despite the absence of a publication ban or sealing order.

As a result, those applications for access have spurred a media notice to the attorney-general filed with the high bench that a constitutional question arises that strikes at the heart of the court’s access policy.

“The administrative machinery created by the Record Access Policy erects substantial and substantive barriers between the public and presumptively public records,” argued lawyer Scott Dawson, of Farris LLP, in court filings.

“That, in turn, can add significant cost to the process by which the public is meant to assert their right of ‘presumptive access’ to what are prima facie public records. … The effect of the Record Access Policy is often an institutional sealing order on every criminal appeal file without any party having applied for that relief.”

One issue for the court to consider now is whether the access policy is a violation of constitutional guarantees of a free media, the right to gather news, and open courts.

Dawson’s filings argue that the access policy allowed parties, particularly the Crown, to file material without seeking any restriction on access, and then oppose the release of information when access was subsequently requested by reporters.

In my opinion, this cloaked process is an affront to the open court principle and has become symptomatic in cases involving bent cops or scrutiny of the administration of justice.

This approach, along with gag orders and closed hearings, have been used too often to cloak information about Air India, the Robert Pickton serial killings, the Surrey Six massacre, the Canada Day terror plot …

Last year, Postmedia was forced to go to court on Vancouver Island to gain access to documents exposing allegations of police and prosecutorial misconduct that derailed the Kristy Morrey murder trial.

Now, the media again are forced to pay legal fees and fight for access in Moazami’s appeal of his multiple convictions for human trafficking, living off the avails of prostitution, assault and sexual exploitation.

Arrested and jailed in 2011, Moazami was sentenced in 2015 to 48 years in prison for more than two dozen counts of pimping and sexual interference with victims ranging in age from 14 to 19 — a term reduced by the judge to 23 years to give him some hope.

The 34-year-old later received an additional three years for attempting in 2012 to bribe a witness, one of the young women.

The investigation was the largest ever undertaken by the Counter Exploitation Unit and was proclaimed a huge victory for the Vancouver Police Department and its once star detective Jim Fisher.

In 2014, Fisher received a Community Safety and Crime Prevention Award for his work as lead investigator.

Nevertheless, the 60-year-old highly decorated former detective pleaded guilty in August 2018 and received a 12-month jail sentence for breach of trust offences against two child victims of pimps.

Then-active Vancouver Police Department Det. Const. Jim Fisher (right) receives an award from B.C. Attorney General Suzanne Anton at an October 2014 event in Burnaby. Fisher is currently suspended and facing charges including sexual exploitation, sexual assault and obstructing justice.


Then-active Vancouver Police Department Det. Const. Jim Fisher (right) receives an award from B.C. Attorney General Suzanne Anton at an October 2014 event in Burnaby.

Handout / Canadian Press files

Those crimes happened after Moazami’s trial.

But at a stunning bail application in May, Moazami’s lawyer Tom Arbogast made new and equally serious allegations of misconduct by Fisher before and during those proceedings that throw a pall over the convictions.

In May, in accordance with the court’s policy, Postmedia and CBC applied to see the documents filed in support of those allegations.

It has been an Alice-down-the-rabbit-hole journey since the applications did not seek to pierce any court order protecting victims or minors who testified.

After the media requests, again, in accordance with the court’s policy, the registrar enquired of the other parties if anyone opposed access.

Moazami initially proposed a few restrictions, but abandoned them.

The Crown provided a submission to the registrar advocating broad restrictions on access and requested that opinion be shared with Justice David Frankel, who is managing the Moazami’s appeals and who presided over the bail application.

The Crown declined to provide those submissions to the media.

Postmedia and the CBC argue the court access policy has calcified to the point where there was no longer a presumption of access, but a presumption of secrecy.

At issue is whether it has shifted a burden and expense onto the public and the media rather than seeking justification from the Crown or those who would restrict access.

It also may require a hearing before a justice and perhaps a full three-justice division of the high bench to resolve contested requests, even when the Crown as in this case wants to restrict access without making an application.

Here’s the current situation: two others convicted in cases involving Fisher have also applied for access to the file.

A senior prosecutor representing the attorney-general has suggested the court get its own lawyer!

Frankel has not ruled out appointing an amicus.

The attorney-general’s office is concerned with unfettered access to untested allegations.

It said it was working to get the victims counsel to advance their privacy rights and has been in touch with Fisher’s lawyer, too.

Frankel now is conferring with Chief Justice Robert Bauman about how to convene a hearing.

Stay tuned.

[email protected]

twitter.com/ianmulgrew

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