R. v. O.N.E., [2001] 3 S.C.R. 478, 2001 SCC 77

Vancouver Sun Appellant

v.

Her Majesty The Queen, O.N.E. and the Attorney General of Canada Respondents

and

The Attorney General for Ontario, the British Columbia Civil Liberties Association and the Canadian Newspaper Association Interveners

Indexed as: R. v. O.N.E.

Neutral citation: 2001 SCC 77.

File No.: 28190.

2001: June 18; 2001: November 15.

Present: McLachlin C.J. and L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.

on appeal from the supreme court of british columbia

Courts – Supreme Court of Canada – Jurisdiction – Publication bans – Criminal proceedings – Trial judge granting publication ban on operational methods and identity of undercover police officers – Whether Supreme Court of Canada has jurisdiction to hear third party newspaper's appeal from trial judge's order – Supreme Court Act, R.S.C. 1985, c. S-26, s. 40(1), (3).

Criminal law – Publication bans – Appropriate scope of publication ban – Undercover police investigation – Crown successfully seeking publication ban protecting identity of police officers and operational methods used in investigating accused – Whether trial judge erred in ordering ban.

The police launched an undercover investigation against a murder suspect. During the investigation, the suspect confessed to a role in the death. She was charged with second degree murder. At the voir dire held on the admissibility of the confession, the RCMP applied for a publication ban to protect the identity of the officers involved in the operation and the nature of the undercover investigative techniques employed. The motion was not opposed by the Crown or defence counsel, and although notice was given of the requested publication ban, no media representatives appeared. The publication ban was granted and was appealed directly to this Court. In the meantime, the accused was acquitted by a jury.

Held: The appeal should be allowed. The scope and duration of the publication ban should be restricted.

For the reasons given in R. v. Mentuck, [2001] 3 S.C.R. 442, 2001 SCC 76, the publication ban should not have been ordered by the trial judge in light of the appropriate common law test for a publication ban. The ban cannot be regarded as "necessary" in the interests of the administration of justice. Neither the efficacy of ongoing police investigations nor the safety of officers in the field are significantly compromised by the publication of the information about undercover investigative techniques. Furthermore, the salutary effects of the ban are outweighed by the deleterious effects. Despite a publication ban on the investigative techniques, suspects could learn of the types of undercover operations employed by police from other sources, but such a ban would abridge freedom of the press in respect of discussions that lie at the core of freedom of expression and the accused's right to a public trial would be seriously compromised by such a ban. By contrast, the ban on publication of information tending to identify the officers involved in the operation, including their names, likenesses and physical descriptions, is necessary in order to further the proper administration of justice. It does not seriously affect the accused's right to a public trial, nor does it implicate the purposes of the guarantee of freedom of expression. However, the ban on publication of information tending to identify the officers involved in the operation should be restricted to a period of one year from the date on which this judgment is released. The identity of police officers should not, as a matter of general practice, be shrouded in secrecy forever, absent serious and individualized dangers.

Cases Cited

Followed: R. v. Mentuck, [2001] 3 S.C.R. 442, 2001 SCC 76; referred to: Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), 1996 CanLII 184 (SCC), [1996] 3 S.C.R. 480.

Statutes and Regulations Cited

Supreme Court Act, R.S.C. 1985, c. S-26, s. 40(1), (3).

APPEAL from an order of the British Columbia Supreme Court, [2000] B.C.J. No. 1922 (QL), 2000 BCSC 1200, granting a publication ban. Appeal allowed.

Robert S. Anderson and Ludmila B. Herbst, for the appellant.

John M. Gordon, for the respondent Her Majesty the Queen.

Philip C. Rankin, for the respondent O.N.E.

Cheryl J. Tobias and Malcolm G. Palmer, for the respondent the Attorney General of Canada.

Christopher Webb, for the intervener the Attorney General for Ontario.

Paul S. McMurray and Jason B. Gratl, for the intervener the British Columbia Civil Liberties Association.

Paul B. Schabas and Tony S. K. Wong, for the intervener the Canadian Newspaper Association.

The judgment of the Court was delivered by

[1] Iacobucci J. – This appeal raises substantially similar issues to those considered by the Court in R. v. Mentuck, [2001] 3 S.C.R. 442, 2001 SCC 76, the decision and reasons in which are being released herewith. Because of the discussion of the applicable principles at play on the issue of publication bans in that case, the reasons in this appeal may be grounded substantially on the reasoning in Mentuck. As in that case, I conclude here that the publication ban sought and, in this case, ordered, should not have been ordered by the trial judge in light of the appropriate common law test for a publication ban. The appeal is therefore allowed.

I. Background

[2] The accused in the case which gives rise to this appeal, O.N.E., was charged with the second degree murder of Zachariah Steudle. The body of the deceased was found beneath a bridge from which he had apparently fallen a distance of some 50 meters. There was a laceration on the ankle of the deceased. This laceration led the officer investigating the case to the conclusion that Steudle had been stabbed, and therefore that his death was a murder.

[3] The accused was 15 years of age at the time of Steudle's death. She had a record as a young offender and was at that time a runaway from a facility where she had been placed by the British Columbia Ministry of Children and Families. The accused has an I.Q. between the 10th and 13th percentiles and has been diagnosed with a borderline personality disorder.

[4] The accused was initially linked to the case because she and her lesbian partner, Jessica Kilpatrick, had abandoned Steudle's car near Sorrento, B.C., shortly after he disappeared. The police therefore began an investigation of O.N.E. and Kilpatrick in November 1997. After repeated interrogations of the accused and further investigations produced inconclusive results, an undercover investigation was launched in November 1998. This investigation was primarily carried out by officers of the Royal Canadian Mounted Police, in cooperation with the West Vancouver police.

[5] The investigation took a form very similar to the investigation in Mentuck. It involved the use of the "crime boss" scenario, in which suspects are initiated into a purported criminal organization. O.N.E. and Kilpatrick bought and sold cigarettes they were told were illegally obtained, were led to believe they were to take part in a major drug deal which would pay them US$50,000, had food, clothes and hotel rooms paid for by undercover operatives, and witnessed feigned anger and violence, including a severe beating staged for the consumption of O.N.E. The accused and Kilpatrick were progressively allowed to feel more involved in the organization and eventually were introduced to the "boss" of the organization, for whom they had been directed by the undercover operatives to show great respect.

[6] The "crime boss" informed O.N.E. that Vancouver police were preparing to arrest her for the second degree murder of Steudle. To that end, the "boss" produced bogus internal police memoranda discussing the intended arrest. He told O.N.E. that he could have a dying former member of the organization confess to Steudle's murder and thus exonerate O.N.E. if she could provide him with sufficient details to make the confession credible. The accused repeatedly denied any involvement in Steudle's death. The "crime boss" implied that she would no longer be permitted to remain with the organization and that she would lose the opportunity to be paid the US$50,000 cash that she had earlier been shown. Furthermore, the undercover officer playing the "boss" made clear that any help in the purported second degree murder charge would be withdrawn without an adequate response to the boss's inquiries. After continued pressure, she eventually confessed to a role in Steudle's death.

[7] Owing to the unusual circumstances under which the accused's confession was obtained, a voir dire was held on its admissibility. At the outset of the voir dire, the RCMP applied for a publication ban to protect the identity of the officers involved in the operation and the nature of the undercover investigative techniques employed. The motion was not opposed by the Crown or defence counsel, and although notice was given of the requested publication ban, no media representatives appeared. The trial judge granted the following publication ban ([2000] B.C.J. No. 1922 (QL), 2000 BCSC 1200):

This Court orders a ban on and prohibits the publication in print and the broadcasting on television, film, video, radio and the Internet of:

(a) any information tending or serving to publicly identify the undercover police officers in the investigation of the Accused, including, but not limited to, any likeness of the officers, the appearance of their attire and their physical descriptions;

(b) the conversations of the undercover police officers in the investigation of the Accused to the extent that they disclose the matters in sub-paragraphs "(a)" and "(c)";

(c) the specific undercover operation scenarios used in investigation of the Accused.

The Vancouver Sun applied to have the ban set aside in part, but the trial judge denied the application: [2000] B.C.J. No. 1923 (QL), 2000 BCSC 1220. The publication ban was appealed directly to this Court. In the meantime, the trial of O.N.E. was concluded and she was acquitted by the jury.

II. Relevant Law and Analysis

[8] Like Mentuck, supra, this case comes before us by way of direct appeal from the order of the trial judge. For the reasons given in Mentuck, this Court has jurisdiction under s. 40(1) of the Supreme Court Act, R.S.C. 1985, c. S-26. The order for a publication ban is an order ancillary to any issues relating to the guilt or innocence of the accused, and thus the appeal is not barred by s. 40(3) of the Supreme Court Act. No other route of appeal is open to the parties in the case, and the appeal is not explicitly barred by statute. Therefore s. 40(1) gives this Court jurisdiction to hear the appeal.

[9] The question, then, is whether under the test set out by Lamer C.J. in Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835, and refined in Mentuck, supra, this publication ban was properly issued. The test was restated in Mentuck, at para. 32, thus:

A publication ban should only be ordered when:

(a) such an 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 publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.

The burden of displacing the presumption of openness rests on the party bringing the application for the publication ban. There must also be a sufficient evidentiary basis in favour of granting the ban to allow the judge to make an informed application of the test, and to allow a higher court to review that decision (Mentuck, supra, at para. 38; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), 1996 CanLII 184 (SCC), [1996] 3 S.C.R. 480, at paras. 71-72).

[10] In applying the analysis, much of what was said in Mentuck applies with equal force to this appeal. I will not, therefore, reiterate the analysis in any detail. The ban sought in Mentuck and in the present appeal were effectively identical, and argument in the two appeals was heard together. As in Mentuck, the first branch of the test requires me to consider the necessity of the ban in relation to its object of protecting the proper administration of justice. Specifically, the ban is sought on the basis that revealing the information in question about police tactics used in the investigation of O.N.E. will threaten the efficacy of ongoing police investigations of other suspects, and potentially expose officers involved in those operations to danger. As in Mentuck, since the respondent O.N.E. opposes the ban and as her fair trial rights are not in issue, it is inappropriate to consider these fair trial interests in the first branch of the analysis. Under the second branch of the analysis, I must weigh the effect of the ban on (a) the efficacy of police operations, as above; (b) the right of the public to freedom of expression; and (c) the right of the accused to a public trial.

[11] For the reasons set out in Mentuck, I find that the publication ban issued in this case cannot be regarded as "necessary" in the interests of the administration of justice. I do not find that the efficacy of police investigative techniques, or the safety of officers in the field, is significantly compromised by the publication of the information at issue.

[12] Furthermore, although it is not strictly necessary to decide the point, I find that the salutary effects of the ban are outweighed by the deleterious effects. The salutary effects on the efficacy of police operations and the safety of officers are not serious. Given that suspects may learn of the types of undercover operations employed by police from other sources, such as popular films and novels, the risk that media reports alone will tip them off is not a serious risk. And given that this type of operation surrounds a suspect with many police officers, I consider the risk to officer safety speculative and not compelling.

[13] The deleterious effects, however, are substantial. The freedom of the press is abridged in respect of discussions that lie at the core of freedom of expression – discussions of the proper role and acceptable activities of the police. Furthermore, the accused's right to a public trial, and the vindication associated with public awareness of the nature of the evidence on which she was acquitted, are seriously compromised by the ban. An acquittal can be difficult to live with when the public believes that it was gained only on a "technicality", rather than because there were serious doubts about the authenticity of the confession at issue in this case. I take note that in this case media reports largely portrayed the accused as having been acquitted on such technical grounds, when in fact the credibility of the Crown's major evidence – the accused's confession – was the major issue of fact.

[14] However, again in accordance with the reasoning in Mentuck, I find that the ban on publication of information tending to identify the particular officers involved in the operation, including their names, likenesses and physical descriptions, can be regarded as necessary in order to further the proper administration of justice. Were the current targets of similar undercover operations to become aware that the names of their apparent criminal associates were in fact the names of undercover police officers, the likelihood that the operation would be compromised approaches certainty. I also find that the salutary effects of that limited ban do outweigh the deleterious effects. The right of the accused to a public trial is not seriously affected, and the purpose of the freedom of expression guarantee is not implicated by this ban. On the other hand, officers currently in the field may, indeed, find their operations ineffective if their identities and appearances are widely publicized. But I would still restrict the term of this ban to a period of one year from the date on which this judgment is released. The identity of police officers should not be, as a matter of general practice, shrouded in secrecy forever, absent serious and individualized dangers. A force of anonymous, undercover police is not the sort of institution the courts may legitimately, in effect, create; such would be the appearance of an order restraining publication of their identities in perpetuity.

III. Conclusion

[15] Accordingly, I would allow the appeal and strike out paragraph (c) of the order of Edwards J., delete the letter "s" from the word "sub-paragraphs" and the words "and (c)" from paragraph (b) of that order, and declare the remaining ban on publication effective for a period of one year following the release of this judgment. By that time, the operations in which these officers are currently involved should be completed. There will be no order as to costs as the appellant did not request them.

Appeal allowed.

Solicitors for the appellant: Farris, Vaughan, Wills & Murphy, Vancouver.

Solicitor for the respondent Her Majesty the Queen: The Attorney General of British Columbia, Vancouver.

Solicitors for the respondent O.N.E.: Rankin & Bond, Vancouver.

Solicitor for the respondent the Attorney General of Canada: The Attorney General of Canada, Vancouver.

Solicitor for the intervener the Attorney General for Ontario: The Attorney General for Ontario, Toronto.

Solicitor for the intervener the British Columbia Civil Liberties Association: Paul S. McMurray, Burnaby.

Solicitors for the intervener the Canadian Newspaper Association: Blake, Cassels & Graydon, Toronto.