Jan 2/2025 Lindsay Buziak Murder – a flawed investigation, secrecy, redacted documents, sealing orders, and justice denied.
No one can fully understand what has been going on behind the scenes in Lindsay’s case for the last 17 years,
but what we do know for certain is that Lindsay was murdered on February 2nd, 2008, and her murder remains unsolved. One press conference in October 2010, and since then nothing. However, in February 2021 Saanich Police did come forward with a brief statement to the public, talking about new DNA technology, got everyone excited, then not a word since then. Well, that was almost 4 years ago Saanich Police, whatever happened to that new DNA technology story you had us believing? No answers as to why Lindsay’s murder has not been solved, no arrests, and no indication that there will be arrests anytime soon. Is there really an active investigation going on or is the file sitting high on a shelf gathering dust.
In 2021/2022 the Capital Daily went to the Supreme Court of Canada
in an attempt to have sealing orders terminated, which then would allow the Capital Daily to gain access to police files that might give them some insight into what was happening in the investigation, and answers to why Lindsay was murdered and who might be responsible. Zander Sherman, Capital Daily’s key journalist was successful in having some of the sealing order information terminated, but despite his hard efforts, what was released was very limited. Even though the legal Dagenais/Mentuck analysis clearly favored terminating the sealing orders in this case, the Crown sought to uphold the sealing orders and won their case.
During this court battle there were 18 judges involved in the decision making. Others involved of course were Crown Counsel and police officers from the Saanich Police Department, all fighting to ensure that the Capital Daily never got the documents they had filed applications for. Just imagine the financial cost on both sides for that 2-year ordeal.
The Crown’s argument was that they did not want to compromise the identity of a confidential informant, compromise the nature of an on-going investigation, or prejudice the interest of an innocent person. Of course, their last reason says it all. “For any other sufficient reason”. In other words, Crown had the power to reject the Capital Daily’s request for whatever reason they deemed in their favor.
since 2008, there have been 45 police officers involved in the Buziak investigation, several judges, Crown Counsel, and a multitude of other agencies involved in this case.
How many friends, family members and others did that group talk to about what they knew? It is only human nature to want to share what you might know about a murder. You can be damn sure that there are hundreds of people associated with this case that know exactly what went on, who is involved and yet the Saanich Police, Vancouver Island Integrated Homicide Unit, the FBI are still hell bent on making sure the public is kept in the dark.
This may have made sense 5 years after the murder, but once we passed that 10-year mark, people began to question the integrity of the Saanich Police Department and why they had not released any new information since 2010. Actually, that 2010 press conference was for one purpose only, and that was to clear the entire Zailo family of having any involvement in Lindsay’s murder. After that press conference the silence has been deafening.
What we have here is a tunnel-vision flawed investigation with a litany of missteps, where things just didn’t go to plan. Certain individuals the police trusted, turned out to be liars, which send the Saanich Police down a path of no return & blind alleys. Once they got back on track (if they have) they were starting at ground zero again, trying to figure out where it all went wrong. As I said earlier, here we are 17 years later, and the silence continues.
Why all the secrecy? Isn’t it time the Saanich Police stepped forward and updated the public on what is going on in the Lindsay Buziak murder investigation. 17 years is a long time for Lindsay’s family to be kept in the dark, not to mention all her close friends and people who so deeply cared about her.
Where is the justice in any of this?
POSITION OF THE SAANICH POLICE DEPARTMENT AND THE CROWN
POSITION OF THE APPLICANT CAPITAL CITY NEWS GROUP LTD.
[10] Despite a continuing police investigation and the passage of over 14 years, no charges have been laid in the murder of Lindsay Buziak. Her death has attracted substantial media attention, both within Canada and internationally. It is understandable there is such public interest in the murder and the lengthy investigation as no charges have been laid and resolution of the crime remains outstanding.
[11] The SPD and the Crown oppose granting access to unredacted materials on undertakings submitting such is not legally or factually justified. While they acknowledge access to sealed material on undertakings has in other cases been permitted, they submit in this instance this Court lacks jurisdiction to make such an order as the undertakings in previous cases were utilized in very different factual circumstances.
They submit the applicant’s reliance on the Dagenais/Mentuck test, based on Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835 and R. v. Mentuck, 2001 3 SCC 76, while applicable to the substantive test for access, does not establish a process or procedure for unsealing for the purpose of counsel’s use at the Application.
[12] The applicant submits that release of the unredacted information can be accomplished on the appropriate undertakings and under the terms of a court order. The latter they submit assures even a more secure arrangement given that, in many cases, sealed materials have been released on undertakings alone.
[13] They note in particular the lawyer for SPD is in private practice yet has had access to the unredacted materials. Therefore, they want to “level the playing field” for the purposes of the proposed submissions. They submit that “normally” these applications are consented to. They rely primarily on the Dagenais/Mentuck test.
[28] The SPD and the Crown argue that the Dagenais/Mentuck test does not apply to this motion (as opposed to the Application itself) as this is purely a procedural issue. Specifically, they submit counsel should not have access to unredacted material before the actual substantive hearing addresses what can and cannot be disclosed. Further, they submit that undertakings are not employed nor appropriate at this stage, given the interests at stake.
[77] The substantive Application should be resolved and only then, if ordered, any Sealed Material released. The motion of the applicant is dismissed.
2022 BCSC 1899 (CanLII) | Capital City News Group Ltd. v British Columbia | CanLII
66 (RULES 16- (2) AND 21-5 (14)
Filed: Victoria Registry March 04, 2020
No. 20 1010
___________
Victoria Registry
In the Supreme Court of British Columbia
CAPITAL CITY NEWS GROUP LTD.
Petitioner
and
HER MAJESTY THE QUEEEN IN RIGHT OF THE PROVINCE
OF BRITISH COLUMBIA
Respondent
PETITION TO THE COURT
ON NOTICE TO:
Assistant Deputy Attorney General – Peter Juk QC
The proceeding is brought for the relief set out in Part 1 below by Capital City News
c/o BC Prosecution Services – Headquarters
PO Box 9276 STN PROV GOVT
Victoria, British Columbia V8W 9J7
Legal Services Branch 6th Floor, 1001 Douglas StreetP.O. BOX 2980, STN PROV GOVT
Victoria, British Columbia V8W 9J7
The proceeding is brought for the relief set out in Part 1 below by Capital City News Group Ltd. (the petitioner)
If you intend to respond to this petition, you or your lawyer must
a) File a response to petition in Form 67 in the above-named registry of this court within the time for response to petition described below, and
b) serve on the petitioner (s)
- 2 copies of the filed response to petitioner, and
- 2 copies of each filed affidavit on which you intent to rely at the hearing
Orders, including orders granting the relief claimed, may be made against you, without any further notice to you, if you fail to file the response to petition within the time for response.
Time for response to petition.
a) if you were served with the petition anywhere in Canada, within 21 days after service, b) if you were served with the petition anywhere in the United States of America, within 35 days after that service,
c) if you were served with the petition anywhere else, within 49 days after that service, or
d) if the time for response has been set by order of the court within that time.
CLAIM OF THE PETITIONER
Part 1: Orders sought
1 The petitioner seeks an order:
a) Terminating the sealing orders listed in Appendix “A” to this petition (the “Sealing Orders”) which seal records relating to a number of production orders. search warrants, and other judicial authorizations) collectively. the “Judicial Authorizations”.
b) Requiring the Victoria Registry of the Provincial Court of British Columbia to give the petitioner and its counsel access to the entire contents of its court files in relation to the Judicial Authorizations, including the Judicial Authorizations and the Sealing Orders, and such copies as the petitioner requests.
c) In the alternative, varying the Sealing Orders and requiring the Registry of the Provincial Court of British Columbia in Victoria to give the petitioner and its counsel access to those contents of its court files in relation to the Judicial Authorizations as permitted by the varied Sealing Orders, and such copies as the petitioner requests.
d) In the event the Crown seeks to uphold the Sealing Orders, in whole or in part, an order permitting counsel for the petitioner, and anyone working at his direction, access to unredacted copies of the court files relating to the Judicial Authorizations, on an undertaking not to make further disclosure of the records, so that they may effectively respond to the Crown’s arguments for why the Sealing Orders should not be terminated or varied.
e) An order that time be abridged as necessary to hear this petition on a date convenient to counsel; and
f) Such further orders as this Honourable Court considers necessary and just.
PART 2: Factual Basis
2. The petitioner, Capital City News Group Ltd (Capital City”) is an independent media company based in Victoria, British Columbia. It publishes an independent news site, The Capital, at http://www.capnews.ca.
3. A small team of experienced investigative journalists is working on behalf of The Capital to investigate and report on the unsolved murder of Lindsay Buziak (the “Buziak case”) and the police investigation into this case.
4. Ms. Buziak was 24 years old and working as a real estate agent when she was stabbed and killed while showing a home in Victoria in February 2008. Charges have never been laid in the case.
5. There has been significant media coverage of the Buziak case since 2008 but relatively little-in-depth investigative reporting about the matter. Very few new details about the case or the associated police investigation have emerged since 2010.
6. The Capital’s objectives in investigating and reporting on the Buziak case include (i) better understanding the facts and circumstances surrounding Ms. Buziak’s death and leading up to her death; and (ii) better understanding the steps that were (or were not) taken to investigate Ms. Buziak’s death, as well as the effectiveness and completeness of those investigative steps.
7. In late 2019, The Capital requested from the Victoria Criminal Registry of the Provincial Court of British Columbia court documents related to the Judicial Authorizations issued and executed in the course of the police investigation into Ms. Buziak’s murder. The reason for requesting such documents was the expectation that they would contain information highly relevant to the Capital’s investigative journalism into this matter.
8. The Capital was advised by courthouse staff that the records relating to the Judicial Authorizations are covered by the Sealing Orders and thus could not be disclosed. At least 31 such Sealing Orders that appear to be in force and related to the Buziak case have been disclosed to the petitioner.
PART 3: Legal Basis
General Principles: Executed Judicial Authorizations are Presumptively Public
9. A court’s power to seal information relating to a judicial authorization comes from s.487.3 of the Criminal Code, R.S.O. 1990. c. C-46, which reads in part as follows:
Order denying access to information
487.3 (1) On application made at the time an application is made for a warrant under this or any other Act of Parliament, an order under any of sections 487.013 to 487.018 or an authorization under section 529 or 529.4, or at a later time, a justice, a judge of a superior court of criminal jurisdiction or a judge of the Court of Quebec may make an order prohibiting access to, and the disclosure of, any information relating to the warrant, order or authorization on the ground that
(a) the ends of justice would be subverted by the disclosure for one of the reasons referred to in subsection (2) or the information might be used for an improper purpose; and
(b) the reason referred to in paragraph (a) outweighs in importance the access to the information.
REASONS FOR NOT TERMINATING THE SEALING ORDERS:
(2) For the purposes of paragraph (1) (a), an order may be made under subsection (1) on the ground that the ends of justice would be subverted by the disclosure.
(a) if disclosure of the information would
(i) compromise the identity of a confidential informant.
(ii) compromise the nature and extent of an ongoing investigation
(iii) endanger a person engaged in particular intelligence-gathering techniques and thereby prejudice future investigations in which similar techniques would be used or.
(iv) prejudice the interests of an innocent person; and
(b) for any other sufficient reason.
10. Section 487.3 (4) of the Criminal Code provides that a sealing order issued under s. 487.3 (1) may be terminated or varied.
Application for variance of order
(4) An application to terminate the order or vary any of its terms and conditions may be made to the justice or judge who made the order or a judge of the court before which any proceeding arising out of the investigation in relation to which the warrant or production order was obtained may be held.
11. Sealing orders may be terminated or varied on application to a superior court, even if the orders at issue were made by a provincial court.
12. Once a judicial authorization has been executed, the authorization and the information on which it was based must be made available to the public, unless the party seeking to deny public access to this information proves that the public assess would subvert the ends of justice.
13. In other words. following execution of a search warrant or other judicial authorization, the party seeking to maintain the sealing order has the onus of proving that it is necessary to do so. Covertness is the exception and openness is the rule.
14. An order to maintain a sealing order should only be made —- and should only be maintained —- where the stringent requirements of the Dagenais/Mentuck test are met. The party seeking to maintain the sealing order must show that:
(a) the sealing order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and
(b) the salutary effects of the order outweigh the deleterious effects on the parties and the public (including the right to free expression)
15. The Dagenais/Mentuck test is a difficult one to meet, “but that is as it should be in our open court system”.
16. For a risk to satisfy the first part of the Dagenais/Mentuck test, it cannot be speculative or hypothetical. Rather, it must be “real, substantial, and well-grounded in the evidence; it is a serious danger sought to be avoided that is required, not a substantial benefit or advantage to the administration of justice sought to be obtained.
17. With respect to the Buziak investigation, the Judicial Authorizations have been executed and there is a presumption that the documents should be accessible to the public.
18. Terminating the Sealing Orders would not subvert the ends of justice in this case and there is no evidence that maintaining the Sealing Orders is necessary to prevent a serious risk to the proper administration of justice. Almost all of the Judicial Authorizations subject to the Sealing Orders were made in 2008 or 2009, with the most recent of the Judicial Authorizations being issued in 2012.
This suggests that the investigation is stale and there is no real risk of it being compromised with the disclosure of these historic court documents. Because no charges have been laid in respect of the murder of Ms. Buziak, no fair trial rights are implicated. There is no indication the Judicial Authorizations implicate informants or “innocent persons”.
19. Moreover, and in any event, whatever salutary effects the Sealing Orders may have been outweighed by the deleterious effects of maintaining the Sealing Orders that the petitioner can pursue complete and accurate reporting on matters of intense public interest relating to the unsolved murder of Ms. Buziak.
20. This reporting will advance the public interest, including by (i) shedding additional light on a murder that remains unsolved more than a decade after it occurred; (ii) allowing the public to examine the functioning of the justice system, including law enforcement. In this matter; and (iii) providing a public account and explanation, and perhaps some degree of closure and healing. with respect to what may have happened to Ms. Buziak.
21. It is also possible that the additional reporting by the petitioner brings forward fresh evidence and information that advances any law enforcement investigation into this matter.
22. The Dagenais/Mentuck analysis clearly favours terminating the Sealing Order in this case.
23. In the event the Crown seeks to uphold a partial sealing order over any of the records at issue, the Crown bears the onus of setting out the precise sections it seeks to keep under seal and of explaining, why the Crown believes the Dagenais/Mentuck test is met with respect to those sections: See R. v. Canadian Broadcasting Corporation, 2008 ONCA 397, at para. 47-53.
24. The Crown should provide the Court with an unredacted version of the records for the purpose of a contested application. Counsel for the petitioner should also be provided with an unredacted copy of the records subject to the Sealing Orders (on an undertaking not to make further disclosure of the records), so they may effectively respond to the Crown’s arguments for why the Sealing Orders should not be terminated in their entirety: see R. v. Canadian Broadcasting Corporation, 2008 ONCA 397, at paras 47-53.
25. In the event the Crown refuses to provide counsel for the petitioner with an unredacted copy of the records subject to the Sealing Orders, then the petitioner requests an early motion date so that the issue can be addressed before the Court.
26. The petitioner reserves the right to make further submissions in reply as part of this petition, should the Crown take the position that a partial or complete sealing order is appropriate, in response to any grounds, evidence or submissions the Crown may raise in support of that position.
27. The petitioner relies on s.487.3 of the Criminal Code and s. 2 (b) of the Canadian Charter of Rights and Freedoms.
PART 4: Material to Be Relied On
- Affidavid #1 of Zander Sherman, made March 2, 2020.Affidavit #2 of Zander Sherman, to be deliverered.
- Such further and other material as the petitioner may tender and the court may accept.
The petitioner estimates that the application will take 1 day.
Date: March 3, 2020
_______________________________________
Signature of Richard Neary, agent for
lawyer for the petitioner,
Justin Safayeni
APPENDIX A – The Sealing Orders and Judicial Authorizations
The petitioner seeks to terminate the following sealing orders relating to Saanich Police File No. #2008-2682. A sealing order granted on February 20, 2008 by Judge Blake, sealing all records relating to a production order issued on February 20, 2008.
1 A sealing order granted February 20, 2008 by Judge Blake, sealing all records relating to a production order issued February 20, 2008.
2 A sealing order granted March 17, 2008 by Judge Palmer, sealing all records relating to a production order issued March 17, 2008.
3 A sealing order granted March 20, 2008 by Judge Palmer, sealing all records relating to a production order issued March 20, 2008
4 A sealing order granted March 20, 2008 by Judge Chaperon, sealing all records relating to a production order issued March 20, 2008
5 A sealing order granted March 25, 2008 by Judge Harvey, sealing all records relating to a production order issued March 25, 2008
6 A sealing order granted March 26, 2008 by Judge Quantz, sealing all records relating to a production order issued March 26, 2008
7 A second sealing order granted March 26, 2008 by Judge Quantz, sealing all records relating to a production order issued March 31, 2008.
8 A sealing order granted March 31, 2008 by Judge Quantz, sealing all records relating to a production order issued March 31, 2008
9 A sealing order granted April 23, 2008 by Judge Neal, sealing all records relating to a production order issued April 23, 2008
10 A sealing order granted April 28, 2008 by Judge Macfarlane, sealing all records relating to a production order issued April 28, 2008.
11 A sealing order granted April 29, 2008 by Judge Blake, sealing all records relating to a production order issued April 29, 2008.
12 A sealing order granted May 12, 2008 by Judge Quantz, sealing all records relating to a production order issued May 12, 2008
13 A sealing order granted June 5, 2008 by Judge Blake, sealing all orders relating to a production order issued June 5, 2008
14 A sealing order granted June 24, 2008 by Judge Higinbotham, sealing all records to a production order issued June 24, 2008
15 A sealing order granted July 9, 2008 by Judge Smith, sealing all records relating to a production order issued July 9, 2008
16 A sealing order granted July 15, 2008 by Judge Blake, sealing all records relating to a production order issued July 15, 2008
17 A sealing order granted July 21, 2008 by Judge Smith, sealing all records relating to a production order issued July 21, 2008
18 A sealing order granted August 6, 2008 by Judge Harvey, sealing all records relating to a production order issued August 6, 2008.
19 A sealing order granted August 13, 2008 by Judge Higinbotham, sealing all records relating to a production order issued August 13, 2008.
20 A sealing order granted September 16, 2008 by Judge Hubbard, sealing all records relating to a production order issued September 16,2008
21 A sealing order granted October 27, 2008 by Judge Neal, sealing all records relating to a production order issued October 27, 2008
22 A sealing order granted October 27, 2008 by Judge Blake, sealing all records relating to a production order issued October 27, 2008
23 A sealing order granted November 10, 2008 by Judge Harvey, sealing all records relating to a production order issued November 10, 2008
24 A sealing order granted November 18, 2008 by Judge Smith, sealing all records relating to a production order issued November 18, 2008
25 A sealing order granted November 20, 2008 by Judge Neal, sealing all records relating to a production order issued November 20, 2008
26 A sealing order granted July 6, 2011 by Judge Wishart, sealing all records relating to a production order issued July 6, 2011.
27 A sealing order granted on September 27, 2011 by Judge Wisehart, sealing all records relating to a production order issued on September 27, 2011
28 A sealing order granted February 28, 2012 by Judge Chaperon, sealing all records relating to a tracking warrant, a number recorder warrant, a related order for the production of telephone records, and a related assistance order, all dated February 24, 2012.
29 A sealing order granted July 12, 2012 by Judge Higinbotham, sealing all records relating to a production order issued July 12, 2012.
30 A sealing order granted March 11. 2014 by Judge Smith, sealing all court records filed in support of the following search warrant and production record applications.
a. A search warrant application sworn by Sergeant Andrew Walsh and granted by Justice of the Peace Cyr on February 3, 2008
b. A production order application sworn by Sergeant Andrew Walsh and granted by Judge Chaperon February 9, 2008.
c. A production order sworn by Sergeant Andrew Walsh and granted by Judge Blake February 13, 2008
d. A production order application sworn by Sergeant Andrew Walsh and granted by Judge Blake on February 15, 2008
e. A production order application sworn by Sergeant Andrew Walsh and granted by Judge Quantz on February 22, 2008, to be served on Sheena Nelson of BC Ferries.
f. A production order application sworn by Sergeant Andrew Walsh and granted by Judge Quantz February 22, 2008, to be served on Sharon Barnes at Rogers Communications
g. A production order application sworn by Constable John Grennan and granted by Judge Blake on February 28, 2008
h. A production order application sworn by Constable John Grennan and granted by Judge Mackenzie on March 7, 2008
i. A production order application sworn by Constable John Grennan and granted by Judge Blake on March 11, 2008
j. A production order application sworn by Constable John Grennan and granted by Judge Blake on March 12, 2008.
k. A production order application sworn by Constable John Grennan and granted by Judge Mackenzie on March 13, 2008.
31. A sealing order granted on December 6, 2019 by Judge Rogers, sealing all court records relating to;
a. A production order granted by Judge Blake on February 6, 2008
b. A production order granted by Judge Higinbotham on August 13, 2008
In addition, the petitioner seeks to terminate the following sealing orders if such sealing orders exist:
32. A sealing order relating to a production order issued February 5, 2008
33. A sealing order relating to a production issued February 8, 2008
34. A sealing order relating to a production order issued on February 21, 2008
35. A sealing order relating to a second production order issued on February 21, 2008
If the records relating to the February 5, 2008, February 8, 2008 and the two February 21, 2008 production orders are not covered by a sealing order, the petitioner seeks disclosure of these records forthwith.
The petitioner has been informed that records related to this production order are covered by a sealing order. However, the only sealing order that the petitioner has received that applies to a production order issued February 8, 2008 expired February 9, 2009.
In conclusion, the public is disillusioned with the legal system in this province.
Not just in Lindsay’s case per say, but in all homicides in British Columbia that remain unsolved. The families of the victims are left to endure a lifetime of pain and suffering – the not knowing who murdered their loved one, and the why, destroys their emotional being every single day they have to carry that burden of not knowing.
Crown Counsel is responsible for many of these unsolved murders. Their approval standards are so high they can’t be met, police files submitted to Crown are rejected. Cases such as Lindsay Buziak, Samantha Sims Somerville, Treena Hunt, Arlene Westerfeld and so many other cases that should have been solved years ago aren’t. Instead, we have the men who murdered these women walking free amongst us and that seems to be perfectly acceptable to the Crown. Is it all about the money? Close the case, save the money you’d have to spend to get enough evidence to take these perpetrators to trial? How many more young women have to die before you realize we have a serious problem that needs to be dealt with.
EMAIL ADDRESS: murderondesousa@gmail.com