R. v. Ryan, 2011 ABQB 10

Court of Queen ’ s Bench of Alberta Citation: R. v. Ryan, 2011 ABQB 10 Date: 20110107 Docket: 071371843Q1 Registry: Edmonton Between: Her Majesty the Queen In Right of Canada, As Represented by the Attorney General of Canada Applicant - and - Gerald Robert Ryan Respondent Restriction on Publication: By Court Order, information that may identify the persons described in this judgment as the Complainant and the Witnesses may not be published, broadcast, or transmitted in any manner.

There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application. See the Criminal Code , s. 486.5. Corrected judgment: A corrigendum was issued on January 13, 2011; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice R.A. Graesser _______________________________________________________ Nature of application

[1] Mr. Ryan is charged with second degree murder arising out of the death of a Fort McMurray man. During the course of hisjudge-alone trial, the Federal Crown sought to ban publication of the identities of four RCMP officers, three of whom were to testify atthe trial. The three that testified were specifically referenced in Sgt. Marcichiw’s affidavit in support of the application. [2] The context of the application was that the officers were part of a Mr. Big or Crime Boss undercover operation thatattempted to recruit Mr. Ryan. The officers were all part of the RCMP’s uncover operations.

One was a full time operative; the otherswere part time operatives, available to a national RCMP pool of undercover operatives. [3] The Crown relied on s. 486.5 of the Criminal Code and the following cases: ∙ R. v. McArthur, (ON SC), [1984], 13 C.C.C. (3d) 152 ∙ R. v. Mentuck, 2001 SCC 76 , [2001] 158 C.C.C. (3d) 449 ∙ R. v. Valliere, 2004 BCSC 1457 ∙ R. v. Osmond, Oral Ruling November 18, 2005, Docket 30441-2 ∙ R. v. Black, 2006 BCSC 2040 ∙ R. v.

Hennessey and Cheeseman, Transcript 23 January 2009 [4] The Crown also referred to a number of unreported publication ban orders from Alberta, British Columbia andSaskatchewan. Basis for Application [5] The Crown cites several grounds for the application: 1. Safety of the police officers involved in the undercover operations; 2. Integrity of the undercover operations; 3. Integrity of other undercover operations the police officers may be involved in; 4. Availability of trained undercover operators for other operations. [6] Notice to the media was given in accordance with the Criminal Practice Notes.

Counsel for the Edmonton Journal and theCBC appeared to make representations on the application. The represented media were not opposed to a one year publication ban beinggiven, banning publication of the names of the RCMP officers and any information which might tend to identify them to others (similarto the bans under the Youth Criminal Justice Act relating to the identities of youths). However, the Crown sought a three year ban, withleave to extend on notice to the media. Counsel for the represented media urged the Court to impose a one year ban, with leave to extendon notice to the media.

Any order would be reviewable on notice to the other party, enabling the media to make an application to varythe ban before the expiry date, on sufficient grounds. [7] Mr. Kozak, for the media, cited the 1 year ban granted in Mentuk and in R. v. Hennessey and Cheeseman, No.0708455441Q1.

[ 8 ] Mr. Hughson, for the Crown, referred to recent bans in British Columbia (3 years to indefinite), in Alberta (1 - 3 years) and Saskatchewan (1 year renewal, 3 - 4.5 years original bans). [ 9 ] In support of the application, the Crown filed an affidavit of Sgt. Murray Michael Marcichiw of the RCMP. He is responsible for “reviewing, recommending, providing services for, and monitoring all aspects of RCMP undercover operations occurring within Alberta. [ 10 ] He oversees the undercover operators who were to testify at the trial.

He described them as Pool Operators (in the case of two of them) and a Full Time Operator in the case of the third. As at the date of the affidavit (November 16, 2010), none of the three was presently assigned to an undercover operation, but all three remained National Pool Operators (available for assignments across Canada). He deposed that the three officers were expected to continue acting as Pool Operators “for the remainder of their careers, anticipated to be another ten to fifteen years.” [ 11 ] Sgt.

Marcichiw deposes that these are highly trained officers, and once a candidate for undercover work has been selected, “it usually takes from three to five years of training and combined police and undercover experience for an RCMP member to meet the qualifications necessary to work as a Full-Time Undercover Operator.

Fewer than 0.5% of the K division RCMP members are Full Time Undercover Operators; less than 2.5% of Alberta RCMP members are Pool Operators. [ 12 ] His affidavit describes the risks of compromised identity including personal safety risks to the officer, risks that the investigation may be compromised, and risks that future or related investigations may be compromised.

He gave examples of situations were identities were compromised and the impact those circumstances had on the operator and the investigations. [ 13 ] Further, he deposes that “the loss of an undercover operator has a significant impact on the functioning of the RCMP’s Divisional and National undercover program due to the time it will take to replace the resource.” [ 14 ] The order sought was for a publication ban of the “given name and surname, pseudonym, physical descriptors or likenesses, including vocal and speech characteristics, visual images an all other information that could reveal the identity of the undercover officers”. [ 15 ] There was no issue before me that there should be a publication ban in the form applied for.

The only issue was as to the length of the ban. [ 16 ] Counsel for the accused, Mr. Ryan, took no position on the application. [ 17 ] On the evidence before me, and in reviewing the cases, there is no particular magic in either one year or three years. In Mentuk , Iacobucci J. stated at para. 47: “I also agree that the ban should be restricted to a period of one year. After ongoing operations have been completed, reasonable alternative measures such as the regular use of pseudonyms, the use of different officers, and the use of different scenarios will become available to the police.

Should the circumstances of a particular case change, of course, the ban may need to be shortened or extended. For that reason it will be prudent for such orders of publication bans to be made subject to further order of the court.” Analysis [ 18 ] Apart from the information provided as to the type of operator (full time or pool), no specific information was provided as to the extent of undercover operations that these officers had been involved in. The risks of disclosure were dealt with in a generic way, and not made officer specific. None of the officers were presently involved in undercover operations.

1. Safety of the police officers involved in the undercover operations [ 19 ] Because none of the officers was presently undercover, the risks to their personal safety were not made out in the context of their cover being blown during an operation. With past operations, they are presumably witnesses, waiting to testify. With pre-trial disclosure, it is highly likely that the identities of the undercover operatives and the nature of their testimony will have been disclosed to the accused with no restrictions on publication.

Thus if there is a fear of witness interference (including violence) that risk has materialized long before the trial. [ 20 ] In the case of completed investigations where there has been no disclosure to the accused (either because charges have yet to be laid, or disclosure has not yet been made), there may well be heightened risks to such undercover officers because of the serious crimes they are usually investigating. [ 21 ] It seems to me that unless an operator is in the latter scenario - waiting for charges to be laid and disclosure given - the heightened personal safety risks are present during operations, but not after. [ 22 ] It may well be that the security of an undercover operator’s person is protected under s. 7 of the Charter , and becomes a competing Charter value with the accused’s right to a fair trial and freedom of speech and freedom of the press. [ 23 ] Sgt.

Marcichiw deposes that disclosure of an undercover operator’s identity may expose previous undisclosed investigations such as intelligence probes, and that “the integrity of ongoing or future related operations may also be compromised”. That is somewhat vague and speculative, and not supported by the compromise scenarios actually reported by undercover operators. [ 24 ] Whether or not this is a real risk is unclear. What is clear is that this does not pose a present safety or security risk for the RCMP officers involved in this matter. 2.

Integrity of the undercover operations [ 25 ] The Crown argues that publishing the identity of the undercover officers, or otherwise identifying them may harm undercover operations that the officers may have been involved in which may not be complete. The officers’ roles may be complete, but the investigation has not yet been finalized and no charges have been laid.

If the identity of the undercover operators is made known, those operations may be compromised. [ 26 ] The issues involved here are at least fourfold: the Charter rights of the accused to a fair trial, the Charter rights of the press, the public interest in the administration of justice and the open court principle. [ 27 ] At the outset, it would be unusual for Charter rights to yield to non- Charter rights in the absence of a full

section 1 analysis. In this particular case, the accused has not asserted a concern over his fair trial. Since the Crown’s fears under this head relate to investigations where there have not yet been charges laid, there is essentially no accused person. In any event, it is difficult to conceive of how a suspect’s right to a fair trial may be compromised if the identity of undercover operators is made known to him or her or others. [ 28 ] The essence of the concern is wasted police resources, and the compromise of investigation into criminal activities.

The public certainly have an interest in the investigation and prosecution of crime. And the administration of justice is an important public concern. But freedom of speech and freedom of the press are important values as well, and are Charter -protected. The open court principle was ensconced in the common law long before the Charter and has been enshrined thereafter. The Ontario Court of Appeal recently noted in R. v.

Canadian Broadcasting Corporation , 2010 ONCA 726 at paras. 20 - 24 : 20 For the Supreme Court’s post- Charter test that applies to all discretionary decisions limiting freedom of the press in relation to court

proceedings, it is to Dagenais and Mentuck that one must turn. The Dagenais/Mentuck test, as restated in Toronto Star Newspapers Ltd.v. Ontario, 2005 SCC 41 , [2005] 2 S.C.R. 188 at para. 26, reflects the importance of the open court principle and the rights offreedom of expression and freedom of the press in relation to judicial proceedings. Restrictions on the open court principle and freedomof the press in relation to judicial proceedings can only be ordered where the party seeking such a restriction establishes throughconvincing evidence that: (

a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternativemeasures will not prevent the risk; and (

b) the salutary effects of the restriction outweigh the deleterious effects on the rights and interest of the parties and the public, includingthe effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration ofjustice. 21 While the Dagenais/Mentuck test was developed in the context of publication bans, the Supreme Court has stated that it applies anytime s. 2(

b) freedom of expression and freedom of the press rights are engaged in relation to judicial proceedings: “[T]heDagenais/Mentuck test applies to all discretionary court orders that limit freedom of expression and freedom of the press in relation tolegal proceedings”: Toronto Star at para. 7 (emphasis in original).

See also Vancouver Sun (Re), 2004 SCC 43 , [2004] 2 S.C.R.332 at paras. 30-31. 22 The open court principle, permitting public access to information about the courts, is deeply rooted in the Canadian system of justice.The strong public policy in favour of openness and of “maximum accountability and accessibility” in respect of judicial or quasi-judicialacts pre-dates the Charter: A.G. (Nova Scotia) v. MacIntyre, (SCC), [1982] 1 S.C.R. 175 at p. 184.

As Dickson J. statedat pp. 186-187: “At every stage the rule should be one of public accessibility and concomitant judicial accountability” and “curtailmentof public accessibility can only be justified where there is present the need to protect social values of superordinate importance.” 23 Now recognized as a fundamental aspect of the rights guaranteed by s. 2(

b) of the Charter, the open court principle has taken onadded force as “one of the hallmarks of a democratic society” that deserves constitutional protection: Canadian Broadcasting Corp. v.New Brunswick (A.G.), (SCC), [1996] 3 S.C.R. 480 at para. 22. 24 The open court principle and the rights conferred by s. 2(

b) of the Charter embrace not only the media’s right to publish or broadcastinformation about court proceedings, but also the media’s right to gather that information, and the rights of listeners to receive theinformation. “[T]he press must be guaranteed access to the courts in order to gather information” and “measures that prevent the mediafrom gathering that information, and from disseminating it to the public, restrict the freedom of the press.”: CBC v. New Brunswick atparas. 23-26.

In Vancouver Sun (Re) at para. 25, the Supreme Court of Canada described the openness of the courts and judicialprocesses as being “necessary to maintain the independence and impartiality of courts”, “integral to public confidence in the justicesystem” and “a principal component of the legitimacy of the judicial process”. [29] In Mentuk, the Supreme Court noted that reasonable alternative methods would become available to the police after ongoingoperations were completed.

At para. 60, the Court stated: They should be lifted when the undercover operation comes to an end, or when it may be reasonably expected to end. It would be unwisefor this Court to countenance the establishment of a permanently anonymous

section of the police force in the absence of more evidenceof serious and long-term danger to the security of particular officers. [30] The type of ban sought by the Crown here appears to fall within the category expressly rejected by the Supreme Court: ananonymous

section of the police force. The Supreme Court had earlier in the decision (at para. 50) noted that our country is not a policestate, and any police tactics using deception as one of its strategies are matters of public concern. An informed public and potentially acritical public is important in supervising the actions of the police. [31] Having regard to the admission by Mr. Kozak that a one year ban is not opposed by his media clients, it is unnecessary for meto consider whether any ban on the basis of wasted resources or future operations is supportable. For the purposes of this case, however,

I do not see that a publication ban beyond one year is supportable under this ground, if at all. [ 32 ] I would observe that once the accused has been charged as a result of undercover operations, he is aware of the first names or cover names or aliases of the undercover operators involved in his case. He will be aware of their identifying features. It would, in my view, be naive to think that an accused person will have no opportunity to describe these operators to others, whether he is in jail or whether he is on judicial interim release.

There is no publication ban on him (at least until a preliminary inquiry as to information learned there), or anyone he disseminates information to, until an application like the present one is made at trial. [ 33 ] The real target here is the press and other media of mass communication. They can be readily controlled by court order whereas others who may disseminate information have little risk of detection. [ 34 ] The examples of compromise identified in Sgt.

Marcichiw’s affidavit relate to dissemination of information about police techniques and a breach of a specific publication ban, and not situations where operations were impacted by the identification of specific operators, or operator safety was impacted by publication after the fact of their identities (other than situations of a breached ban). 3. Integrity of other undercover operations the police officers may be involved in [ 35 ] To the extent that the security of other police officers may be compromised or threatened by identification of the officers involved in this case, this is a relevant concern.

That is satisfied by a one year ban with the opportunity for the Crown to seek to extend it. [ 36 ] To the extent that the concern is for the operations themselves, I do not see that a publication ban to protect those operations, at the expense of infringing on freedom of speech, freedom of the press and the open court principle, is a justifiable infringement, and would not warrant and a ban beyond the one year ban imposed in Mentuk , if at all 4.

Availability of trained undercover operators for other operations. [ 37 ] As with fears of compromise of operations where officer safety is not involved, it is in my view doubtful that a publication ban can be imposed on the press for the purpose of police efficiency, economy or the length of time a trained undercover operator may be able to effectively continue to perform undercover roles. [ 38 ] While these are all matters of valid public interest and concern, it is difficult to see that these interests trump freedom of speech and freedom of the press.

It does not seem to me to be justifiable from a constitutional perspective to interfere with the press’s rights so that the state does not need to spend more resources training other undercover operators. Sgt. Marcichiw refers to difficulties with undercover operators’ careers if they are “blown”. Absent safety risks resulting from identification by the media, there are many other functions that a trained police officer can perform that do not involve undercover operations.

Further, there may be other strategies such as the use of aliases that may be employed on an ongoing basis (as suggested in Mentuk ) to help satisfy the Crown’s concern over its resources. [ 39 ] As to concerns for the RCMP operators’ careers, as deposed by Sgt. Marcichiw, only 0.5% of the K Division officers are full time undercover operators, and only 2.5% of Alberta RCMP officers are pool operators.

That indicates that 97% of K Division’s work is policing other than undercover work, suggesting that there is plenty of opportunity for work for former undercover operators. [ 40 ] These concerns are not a valid basis in my view to justify infringing on the press’s rights and the open court principle. [ 41 ] With respect, I decline to follow the decisions of the British Columbia Supreme Court in R. v. Valliere , R. v. Osmond , BCSC Docket 30441-2, and R. v. Black , where longer bans were ordered on the basis of concerns for undercover operators in future operations.

The courts in these cases distinguished between pool operators and full time undercover operators, and imposed indefinite or permanent bans with respect to the full time operators and limited bans with respect to the pool operators. While there is a logic in making such a distinction, and legitimate resource issues involved, these decisions are not, in my view, consistent with the concerns in Mentuk against the establishment of an anonymous branch of the police force.

[ 42 ] The ban in R. v. Casement, 2009 SKQB 105 was not opposed by the media. The ban there would appear to have been permanent. The facts supporting the granting of such a ban were not reported. The decision on that point is of no precedential value. [ 43 ] In R. v. Hathaway , 2009 SKQB 6 , Allbright J. considered the evidence before him and concluded that a lengthier ban than one year was not warranted.

His decision is in my view consistent with Mentuk and is on all fours with the case at bar, and I have come to a similar conclusion. [ 44 ] The remaining cases cited by the Crown give no reasons for extending the dates or differentiating between pool operators and full time undercover operators. They have no precedential value. Decision [ 45 ] Counsel for the Edmonton Journal and CBC did not oppose a one year ban in the form requested by the Crown. That will protect the names and identifying features of the four RCMP undercover operators from disclosure for a period of 1 year.

The Crown may apply to extend the ban if circumstances warrant. [ 46 ] On the evidence before me, the one year ban satisfies the Crown’s concerns for the safety of the operators involved in this particular operation and satisfies any concerns for the integrity of this particular operation. [ 47 ] No specific information about the fourth officer was provided to me, and he did not testify, nor was he specifically identified at trial other than by his initials. Counsel for the media did not oppose his inclusion in a one-year ban. TP, DL and RC are not involved in any ongoing operations.

It is not clear whether they were involved in operations that have not yet proceeded to charges, or where disclosure has not been provided in those other operations. Concerns over the integrity of any such other operations would seem to be satisfied by a one year ban, with leave to apply to extend the ban if appropriate. [ 48 ] Protecting the officers’ future availability to act as undercover operators is not something that justifies, on the facts before me, a ban beyond one year. If any of them becomes involved in future undercover operations, that may be a circumstance that would justify extending the ban.

However, in my view, there needs to be an appropriate evidentiary basis to warrant granting a ban in the first instance beyond one year. Mentuk invites longer bans in appropriate circumstances (at para. 59), but in my view, one year should be the starting point. A departure from the one year ban in Mentuk should be justified on the specific facts or the case, or the specific circumstances of the undercover operators involved. The possibility of future undercover operations (as opposed to ongoing undercover operations) would not appear to be a valid basis for granting longer bans.

Publication bans are unusual, and should not be considered to be the “norm”. Each ban must be justified under Dagenais and Mentuk and the length and specifics need to be determined on the unique facts in each case. [ 49 ] As recently noted by the Ontario Court of Appeal in R. v.

Canadian Broadcasting Corporation (at para. 50 ), any ban must be justified constitutionally, and not by a judge’s opinions: With respect, absent any finding of potential harm or injury to a legally protected interest, there is nothing in the law that permits a judge to impose his or her opinion about what does not need to be broadcast to the general public. That would be inconsistent with the constitutional protection our legal order accords freedom of expression and freedom of the press.

In this case, there is no finding of harm or injury capable of overriding a constitutional guarantee, and I would set aside that part of the application judge’s order.

Heard on the 22 nd day of November, 2010. Dated at the City of Edmonton, Alberta this 6 th day of January, 2010. R.A. Graesser J.C.Q.B.A. Appearances: Bruce F. Hughson Department of Justice Canada for the Applicant Kent Teskey Royal Teskey for the Respondent Frederick R. Kozak, Q.C. Reynolds Mirth Richards & Farmer LLP for the Edmonton Journal and Canadian Broadcasting Corporation _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Mr. Justice R.A. Graesser _______________________________________________________ The docket number has been corrected and a publication ban has been added.