Appeal Court Refuses to Order Release of Unedited Reasons

Olga Routkovskaia and Michael Gibson represented themselves in a 14-day trial before Provincial Court Judge Steinberg. In a decision handed down on September 7, 2018 the judge made orders for joint guardianship of their 12-year-old child, parenting time for Mr. Gibson to include every second weekend from Thursday to Monday, regular telephone time, and an equal division of holiday parenting time. He also ordered a review of his orders in April 2019.

Ms. Routkovsaia appealed the order to the British Columbia Supreme Court alleging that the trial judge wrongly applied the best interests test and incorrectly assessed family violence. Her appeal was heard by Mr. Justice Ball who after reviewing the transcript of Judge Steinberg’s Reasons, dismissed it, on the basis that it was an interim order, not subject to appeal. Ball J. also said:

“The recorder had difficulty recording reasons because there were often two persons speaking. What is clear from the transcript is that there was a conversation between Ms. Routkovskaia and Judge Steinberg. Judge Steinberg is a very experienced member of the court, he would not have tolerated the kind of consistent interruptions which took place here while he was giving reasons. It is difficult enough to give reasons without being repeatedly interrupted with references to bits of evidence and statements to the effect that “I disagree with this, and I disagree with that”. This is simply a conversation intending to lead to a further hearing which occurred and not a final order.”

Ms. Routkovskaia appealed Justice Ball’s decision to the BC Court of Appeal submitting that he erred in law by finding that the trial order was an interim order. She also alleged a reasonable apprehension of bias and requested the appeal court to order the release of Justice Ball’s unedited Reasons. Ms. Routkovskaia maintained that the edited Reasons failed to reflect evidence of bias and that she needed the unedited transcript to prove her allegations. She deposed that after listening to the audio recording of the Reasons she noted differences between what the judge said in court and what he later released as his Reasons.

Madam Justice Garson, sitting in Court of Appeal chambers, advised Ms. Routkovskaia that according to the Court Record Access Policy she had the right to receive a transcript of the audio recording and that she should first contact the Registry to obtain the transcript. With Garson J’s order in hand she approached the Registry who advised her that they could only release the judge-approved transcript and that she required a court order for the unedited version. She then sought a review of Madam Justice Garson’s order by a panel of the Court of Appeal.

The appellate panel held there was no prohibition against trial judges editing their Reasons. Judges can do so, whether or not they advise litigants that they reserve the right to do so, although notice is preferable. Trial judges cannot edit or change their Reasons “in an attempt to defeat an appeal” but where words are misspoken or require clarification, edits and changes are permissible. The onus is on an applicant to establish that it is in the interests of justice for an unedited transcript to be released. See Alers-Hankey v. Solomon et al 2000 BCCA 196.

The Court found that Ms. Routkovskaia had failed to meet the onus upon her. Routkovskaia v. Gibson 2020 BCCA 8