Court File and Parties

COURT FILE NO.: CR-19-45 (Kingston) DATE: 20220315 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: R. v. Michael Wentworth (also known as Michael Verney)

BEFORE: Lacelle J.

COUNSEL: Holly Chiavetti and Fraser Kelly, for the Crown John Kaldas and Raymond Wong, for the Defendant

HEARD: February 8, 2022, at Kingston

Endorsement

Introduction

[1] The Crown applies for an order to protect the identities of a civilian police agent and an undercover officer involved in the investigation of this case.

[2] The accused is not opposed to the order. While notice of the request for a publication ban and the hearing date was provided to the media by the Crown on December 14, 2021 (as required by the Consolidated Provincial Practice Direction for the Superior Court of Justice), no member of the media has filed any responding material or appeared at the hearing.

[3] On February 8, 2022, I granted the order on the terms sought by the Crown. These are brief reasons for that order.

Background

[4] The accused is charged with manslaughter (one count), first degree murder (two counts), robbery (one count) and arson (one count). The charges relate to five separate events between the years 1995 and 2001, most of which occurred in Kingston, Ontario.

[5] The alleged homicide victims include a 92-year-old woman who died some months after being beaten in her home during a robbery. The alleged victims also include two associates of the accused. The Crown’s theory is that the motive for the killings of the accused’s associates included the accused’s belief that these individuals were dangerous to him because of what they might disclose about his criminal offending to others.

[6] The intended target of the arson (in the form of a car bombing) was an individual in Toronto. The allegation is that the accused set a pipe bomb under the target’s car and detonated it while the target was in his home with his children. The Crown alleges the accused was acting on instructions from the principal in a marijuana grow operation who wanted the target to be abducted or killed.

[7] The investigation in this case included an undercover operation. A police agent and undercover officer were the main actors in that operation. The order sought by the Crown seeks to protect their identities.

The relevant Criminal Code provisions

[8] In addition to its common law jurisdiction, the court has the authority to make the orders requested by the Crown pursuant to ss. 486.31(1) and 486.5(1) of the Criminal Code.

[9] Section 486.31(1) of the Criminal Code provides the following:

486.31 (1) In any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, make an order directing that any information that could identify the witness not be disclosed in the course of the proceedings if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

[10] Section 486.5(1) of the Criminal Code provides the following:

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

The evidence on the application

[11] The Crown’s application includes an affidavit from Sgt. Dean Matthew Pauli of the Ontario Provincial Police. Sgt. Pauli confirms that both the police agent and the undercover officer are requesting the order sought by the Crown.

[12] The affidavit addresses the circumstances in which undercover operations are conducted and the nature of the risks they pose. It outlines information obtained by police about the accused (only some of which forms part of the evidence to be adduced at trial). Sgt. Pauli states that this information suggests that the accused is dangerous and likely poses a significant threat even though he is currently in custody.

[13] The affidavit further describes the impact of the internet and virtual testimony and the risks to the safety of the undercover officer and police agent presented by that manner of proceeding. For instance, there are now websites devoted to posting images or identifying details of undercover agents and/or confidential informers.

[14] Finally, Sgt. Pauli’s affidavit outlines with specificity his view of the risks to the police agent and undercover officer if their identity information is disseminated.

Discussion and order issued

[15] The affidavit of Sgt. Pauli amply supports the order sought by the Crown. The accused is not opposed to the order, and no member of the media has presented any position in respect of the order sought.

[16] The affidavit sets out a compelling basis to conclude, and I do conclude, that safeguards are required to protect the safety and security of the police agent, the undercover officer, and anyone close to them from intimidation or retaliation.

[17] The evidence before me satisfies me that the order should issue pursuant to ss. 486.31(1) and 486.5(1) of the Criminal Code.

[18] In respect of s. 486.31, I have considered and weighed the factors set out in s. 486.31(3). I find that it is in the interest of the proper administration of justice to make an order directing that any information that could identify the police agent and undercover officer not be disclosed in the course of proceedings.

[19] The order sought does not affect the fairness of the trial and impacts the open court principle as little as possible given the need to protect the security of the police agent, undercover officer and those close to them. I can see no effective alternatives to making the proposed order that adequately achieves the level of protection required given the risks posed to the police agent and undercover officer as a result of their involvement in the case.

[20] I am also satisfied that it is in the interest of the proper administration of justice to make an order pursuant to s. 486.5(1) directing that any information that could identify the police agent and undercover officer shall not be published in any document or broadcast or transmitted in any way. In arriving at this conclusion I have considered the factors set out in s. 486.5(7). These factors additionally include consideration of the impact of the proposed order on the freedom of expression of those affected by it, which I have considered and weighed in determining that the order should issue.

[21] Similarly, I find that the order sought does not affect the fairness of the trial and impacts the open court principle and freedom of expression as little as possible given the need to protect the security of the police agent, undercover officer and those close to them. I can see no effective alternatives to making the proposed order that adequately achieves the level of protection required given the risks posed to the police agent and undercover officer as a result of their involvement in the case.

[22] To be clear, the order does not foreclose public scrutiny of the proceedings, or publication of the substance of the evidence. I agree with the Crown that the order sought achieves a “middle ground” by allowing public scrutiny of the proceeding while protecting other interests at play.

[23] In view of the foregoing, I have issued an order on the following terms:

a. Court Proceedings. Pursuant to section 486.31 of the Criminal Code: i. UC #196 shall be permitted to use the pseudonym “Denis [phonetically Denny]” while testifying. Exhibits with that name are permitted and may also include “Frenchie”, “UC #196” or “undercover officer #196.” ii. The police agent shall be permitted to use the pseudonym “Barney” while testifying. Exhibits and pleadings with that name are permitted and may also include “Police Agent L” and “Police Agent #11880” or “Agent #11880”. iii. Counsel, the accused and witnesses shall not state any information that could identify of the police agent “Barney” or the undercover officer “Denis (phonetically Denny)” by any name other than the pseudonyms, whether during oral or written submissions or questioning, subject to the following: The undercover officer “Denis (phonetically Denny)” may also be called “Frenchie”, “UC #196” or “undercover officer #196.” Counsel shall not tender documents containing other names except that both full names will be written down and be made sealed exhibits at trial. If documentary exhibits contain identifiers they will also be sealed, but a court-approved summary of that sealed exhibit will remain public where feasible. iv. No person shall be permitted to ask questions of any other witness that elicit personal identifying information of the police agent “Barney” or the undercover officer “Denis.” This includes information about current residence and/or employment locations and about persons with whom they may live, if any.

b. Publication and Broadcast. Pursuant to section 486.5(1) of the Criminal Code: i. All information that tends to reveal the real identities of “Denis” or “Barney” shall not be published, broadcast, transmitted or disseminated in any way. Publication means transmission or dissemination in any way including but not limited to blogging, broadcasting, posting online and print. Information includes viva voce testimony, electronic exhibits, documentary exhibits and written submissions. ii. There shall be no sketches made of “Denis” or “Barney” inside the courtroom and no photography of either of them entering or exiting the courtroom and/or courthouse. There will be no publication of descriptions of their physical appearances. iii. This order applies to identification information obtained from proceedings and from outside the courtroom. iv. Media may publish etc. the name “Barney” or “Police Agent L.” and, for the undercover officer “Denis (phonetically Denny)” or “Frenchie” or “Undercover Officer 196” or “UC #196”

c. Access to Exhibits. All audio and/or video recordings of either the undercover officer “Denis” or the police agent “Barney” that are filed as exhibits during the trial including pretrial motions shall be sealed and be prohibited from access to the public including journalists, subject to further order of this court. This does not include paper transcripts which are filed with the court as exhibits during trial which shall remain unsealed in the normal course.

d. Official Recording. Subject to the terms of this order or further order of this court, the official audio recording of the testimony of either or both witnesses shall be sealed. Furthermore, any official audio recording shall not be accessed by anyone except by the court reporter (including at the request of the litigants). The court reporter may access it for the purpose of creating official transcripts of the proceedings. Official transcripts shall be prepared using the pseudonyms “Barney also known as Police Agent L” and “Denis (phonetically Denny)”. Upon completion of the transcripts, the official audio recording must be re-sealed. The court reporter is authorized to release recordings of testimony to Crown and Defence counsel during trial for their use, but counsel shall not distribute those without a further order of the court.

e. Recording by others. Whether testimony is delivered in person or remotely, no person, except for the court reporter, shall make an audio or video recording of the testimony of the undercover officer “Denis” (phonetically Denny) or, if he testifies, the police agent “Barney” subject to the following: Counsel for the Crown and defence may make recordings for their exclusive use during the trial. Only those counsel may record the witness’ testimony. Those recordings shall not be distributed without a further order of the court.

f. Recording devices in court. Subject to further order of this court, all members of the public including journalists shall be prohibited from carrying or using any electronic devices capable of making an audio or video recording inside the courtroom during the testimony of the undercover officer “Denis” or, if he testifies, the police agent “Barney” whether either of them testify in person or remotely.

g. Testimony to be seen in a courtroom. Testimony will not be publicly broadcast real time or after-the-fact, whether that testimony is done in person or remotely. In the event either witness testifies remotely, the public including journalists may only listen to and watch that remote feed by physically attending inside the courtroom.

h. Posting. A copy of this order shall be posted on the courtroom door and shall include the text of s. 136 of Ontario’s Courts of Justice Act, which makes it an offence to take a photograph, or make a video or audio recording, of a court proceeding, unless prior judicial authorization has been granted.

Courts of Justice Act, R.S.O. 1990, c. C.43

Prohibition against photography, etc., at court hearing

136 (1) Subject to subsections (2) and (3), no person shall,

(a) take or attempt to take a photograph, motion picture, audio recording or other record capable of producing visual or aural representations by electronic means or otherwise, (i) at a court hearing, (ii) of any person entering or leaving the room in which a court hearing is to be or has been convened, or (iii) of any person in the building in which a court hearing is to be or has been convened where there is reasonable ground for believing that the person is there for the purpose of attending or leaving the hearing;

(a) publish, broadcast, reproduce or otherwise disseminate a photograph, motion picture, audio recording or record taken in contravention of clause (a); or

(b) broadcast or reproduce an audio recording made as described in clause (2) (b).

Exceptions

(2) Nothing in subsection (1),

(a) prohibits a person from unobtrusively making handwritten notes or sketches at a court hearing; or

(b) prohibits a lawyer, a party acting in person or a journalist from unobtrusively making an audio recording at a court hearing, in the manner that has been approved by the judge, for the sole purpose of supplementing or replacing handwritten notes.

Exceptions

(3) Subsection (1) does not apply to a photograph, motion picture, audio recording or record made with authorization of the judge,

(a) where required for the presentation of evidence or the making of a record or for any other purpose of the court hearing;

(b) in connection with any investitive, naturalization, ceremonial or other similar proceeding; or

(c) with the consent of the parties and witnesses, for such educational or instructional purposes as the judge approves.

Offence

(4) Every person who contravenes this section is guilty of an offence and on conviction is liable to a fine of not more than $25,000 or to imprisonment for a term of not more than six months, or to both.

Lacelle J. Date: March 15, 2022