My sincere thanks to my fellow law librarian Diane Crossley, and to the judicial staff at the BC Superior Law Courts for collaborating with me on this column.
In a recent tip about what’s on CanLII, we learned that “Most routine matters aren’t written up in decisions, so the information related to them is not generally publicly available online. This means that the information available on CanLII (or any source of caselaw) for subjects like sentencing is mostly for unusual matters and outcomes.”
In today’s tip, you’ll learn more about when and how criminal conviction and sentencing decisions are made public. I’m from BC so these details are specific to my jurisdiction.
The first thing to remember is that jury decisions will never include reasons for the conviction or acquittal; reasons for conviction are only prepared in a trial where an accused is being tried by judge alone. If a trial ends in a conviction, the judge must then sentence the offender so there will be a sentencing decision from a judge. If you are lucky in your legal research, these decisions may be found on the court’s website, or on CanLII, Westlaw, or Quicklaw. However, judges most commonly issue their sentencing decisions orally, and the decision may not get transcribed or published for you to find.
In the BC Provincial Court, oral sentencing decisions are not automatically transcribed and published.
In the BC Supreme Court, although all oral reasons for judgment on sentencing are transcribed, and most are published on the Court’s website, each judge does have the discretion to decide whether they will publish their sentencing reasons. Sometimes the judge will edit their sentencing reasons to remove certain information (i.e. identity of complainants or witnesses) in order to publish their reasons while still complying with publications bans. In cases where the judge has not allowed their reasons to be published, a copy of the reasons is in the court file and is available to the public if it is not subject to a sealing order.
In BC Supreme Court, criminal procedural reasons (i.e. voir dire) are sometimes published, but only at the conclusion of the trial. Whether these reasons have been given orally or in written form, the judge has the discretion to decide if and when these reasons are published.
In order to obtain copies of unpublished sentencing decisions in BC, researchers need to know that the court file exists (i.e. know the file number and court level) and then pay for a transcription of the decision from an authorized third party transcription company.
A common quandary for criminal law researchers is determining whether the courts have ever weighed in on a specific fact pattern and assigned a sentence. While the first step is to consult published decisions and a textbook on the topic, we also recommend looking at news archive databases for stories about court proceedings where decisions may not have been published. Newspapers will write stories on alleged crimes without reference to whether the eventual decision is published. If the news story seems promising for your fact pattern and includes the name of the accused, you can take that name to the likely local court registry and ask them to search for the file using that name. This approach to criminal justice legal research has served us well and regularly turns up helpful decisions that would otherwise be forgotten in the registry archives.
If you are interested in learning more about what the BC Courts say on this topic, I recommend the following pages: