R. v. J.B., 2022 BCPC 254

Citation: R. v. J.B. 2022 BCPC 254 Date: 20220922 File No: 35763-2, 35763-3 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. J.B. PUBLICATION BAN Pursuant to s. 486.5(1) and 486.5(9) of the C.C.C. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M. STANFORD Counsel for the Attorney General of Canada on behalf of the RCMP: K. Elvin-Jensen Counsel for the Public Prosecution Service of Canada: D. Peltier Counsel for the Defendant: T. Zipp Place of Hearing: Williams Lake , B.C. Date of Hearing: July 19, 2022 Date of Judgment: September 22, 2022

[ 1 ] J.B. is charged by Indictment 35763 with four counts of trafficking in a controlled substance, namely Fentanyl and Heroin between the dates of February 29, 2020, and June 22, 2020, in [omitted for publication], B.C.

The preliminary inquiry on these alleged charges is scheduled to commence December 29, 2022. [ 2 ] The Attorney General of Canada (the “AGC”) on behalf of the RCMP has filed two Notices of Application, one under s. 486.31 of the Criminal Code seeking an order that the undercover operators REDACTED and REDACTED (the “Undercover Operators”) give evidence under their respective pseudonyms and an indefinite publication ban of this hearing and trial pursuant to ss. 486.5(1) and 486.5(9) of the Criminal Code . [ 3 ] The Federal Crown supports the AGC on both applications. [ 4 ] Defence is opposed to both applications.

I am advised that notice of the Publication Ban application was served to the media July 8, 2022, and as of the date of hearing, there has been no reply indicating their position and I note they are not in attendance today for decision. [ 5 ] Both applications are supported by the affidavit of Staff Sergeant Peter Dodds who is in charge of Undercover Operations for “E” Division (British Columbia). The applications relate to the Undercover Officers, who gathered evidence in the criminal investigation of J.B. concerning trafficking in the related Indictment.

AGC SUBMISSIONS ON BEHALF OF THE RCMP [ 6 ] With respect to both applications, Crown submitted that the use of pseudonyms and a publication ban prevents dissemination of the Undercover Operators’ names thus preserving the safety and integrity of future and ongoing investigations they are involved in and enhances the proper administration of justice.

As well, any reasonable alternative would not prevent the risk to those factors. [ 7 ] AGC relies on the evidence of Staff Sergeant Dodds’ affidavit that states the safety of the undercover officers and families are at risk should the targets learn their identity and make attempts to locate them personally to harm or intimidate the officers.

As well, the effectiveness of the undercover operations are at risk should the investigations and tactics of undercover operations be publically disclosed, as potential targets may become “suspicious” they are being targeted under the same “ruse.” [ 8 ] It was argued the accused’s right to a fair trial is not hindered because he is still in possession of all relevant disclosure including any McNeil history.

Additionally, the Undercover Operators are still available to testify and be available for cross examination during the hearing. [ 9 ] It was argued further that the order sought will only marginally effect the open court principle and freedom of expression when balanced against the need to protect the security of the Undercover Operators.

SUBMISSIONS OF THE DEFENCE [ 10 ] Counsel for the defence emphasized the “open court” principle is the rule and that the orders sought should not be “automatic.” Counsel argued that these orders should be determined on a fact specific analysis that considers evidence on the deleterious impact to the proper administration of justice or safety of the undercover operators that outweighs the impact of banning publication of their names. [ 11 ] It was argued that the s. 539 of the Criminal Code publication ban under Preliminary Inquiries provides a reasonable alternative and protection of the Undercover Operators’ identities. [ 12 ] It was submitted that the risk to the Undercover Operators was “speculative at best” given the charges are related to trafficking of controlled drugs and substances with no suggestion of violence or threat from J.B.

This was underscored by examples that the charges have been outstanding since 2020 with J.B. remaining in the community without any protective conditions related to the Undercover Operators on his Release Order, suggesting the RCMP do not have any safety concerns related to them. [ 13 ] Defence also argued procedural concerns namely: 1. His ability to conduct a defence has already been “severely restricted” by Crown denying certain disclosure and witnesses for this preliminary inquiry; 2.

That a ban on the full names of the Undercover Operators limited his ability to conduct his own investigations about them not captured by a McNeil history; and 3. Defence had no assurances that Federal Crown would not decide to proceed with a “paper hearing” instead of calling the Undercover Operators for viva voce evidence, thus eliminating the ability to cross examine them. [ 14 ] It was argued there exists a jurisdictional limit on the Provincial Court from making an indefinite publication ban.

Submitting any ban ordered ends with committal or dismissal of the accused at the end of the Preliminary Inquiry. [ 15 ] And lastly, it was submitted there is no direct evidence before the court from the Undercover Operators indicating any particular concerns related to their safety and security and notably, they are not currently involved in any other investigations according to Staff Sergeant Dodds’ affidavit. [ 16 ] As for Staff Sergeant Dodds’ affidavit, defence argued his evidence is frequently relied on by the AGC in a number of similar authorities before the court.

He submitted that Staff Sergeant Dodds’ affidavit was filled with dated examples of undercover operations involving much more serious offences to the one at bar and suggested the affidavit was pro forma and contrary to protecting a free and democratic society.

EVIDENCE OF STAFF SERGEANT DODDS [ 17 ] Staff Sergeant Dodds deposed that undercover operators are part of a select group of specially trained members of the RCMP. They typically work on undercover operations for their entire service and can work multiple operations concurrently and that the length of an undercover operation varies from weeks to years. [ 18 ] He explained in his affidavit that undercover operators that work for “E” Division (of which the Undercover Operators are currently posted), fall into two categories: “full time” operators and “pool” operators.

Pool Operators have other full-time duties but participate from time to time in undercover operations. (Dodds affidavit at para 4, 5) [ 19 ] He deposed the Undercover Operators, used their actual first names as pseudonyms. This is frequently done for a number of reasons including practical ones: it would be difficult to remember multiple pseudonyms in concurrent operations and because using one’s name is “easy and foolproof” and is second nature to respond to in stressful situations.

In particular he stated, the Undercover Operators are “also likely to perform secondary undercover operator roles several times within the next year and for an indefinite numbers of years thereafter” utilizing the same pseudonyms. [ 20 ] The undercover status of both Undercover Operators are as “active Pool Operators currently not involved in any ongoing undercover operations” (Dodds affidavit at para 11) [ 21 ] As to the danger of undercover operations, Staff Sergeant Dodds deposed that these operations are by their nature “extremely dangerous” to the lives of the undercover operators involved”: the targets are often suspected, or have committed violent crimes; they are alone with the target the majority of the time; the operators rarely carry firearms for protection; and notwithstanding backup, he deposed that the team is rarely in a position to intercede quickly enough should the target intend to kill the undercover operator. [ 22 ] He stated at paragraph 14 of his affidavit that “if an undercover operation were exposed or suspected, the undercover operator would be at risk of serious harm or death.” [ 23 ] He described a number of examples he was personally and indirectly aware of including a circumstance where the target became suspicious of the undercover operation and physically attacked the undercover operator causing injury, and after an operation was concluded, a target learned the true names of the undercover operators and threatened to harm them by hiring a third party. [ 24 ] Staff Sergeant Dodds outlined an example where he was aware the identity of an undercover operator was connected to their personal residence after the undercover operator’s true name and covert identity had been revealed in unrelated court records.

Through an intercept it was learned a target conducted internet searches of RCMP news releases attempting to associate the first name of undercover operators to “known” RCMP members identified in the news releases.

Another undercover operator received threatening emails to their work address from a former target who used the undercover operator’s real name and the standardized RCMP email format. [ 25 ] With respect to the danger caused by disclosure and public dissemination of undercover operators, Staff Sergeant Dodds deposed disclosure of the full names of the undercover operator not only poses a significant risk to them, but also could undermine the integrity of any ongoing investigations they are involved in.

This is primarily related to the risk associated with the practice of using their actual first name as a pseudonym and rarely changing it throughout their undercover career as stated above. AUTHORITIES [ 26 ] The AGC provided a book of authorities. Although I do not make specific reference to all of the case authorities, I have read and carefully considered each in coming to my conclusions and decisions in this matter. [ 27 ] The relevant Criminal Code provisions are as follows: [ 28 ]

Section 486.31 of the Criminal Code permits the judge or justice in any proceedings against an accused, on application of the prosecutor in respect of a witness, or on application of a witness, to make an order directing that any information that could identify the witness not be disclosed in the court of the proceedings if the judge or justice is of the opinion that the order is in the best interest of the proper administration of justice. [ 29 ] As it specifically relates to peace officers,

section 486.31(3) (

e) of the Criminal Code adds when considering an order under s. 486.31 , the judge or justice shall consider whether the order is needed to protect the identity of a peace officer who has acted, is acting or will be acting in an undercover capacity, or of a person who has acted, is acting or will be acting covertly under the direction of a peace officer. Other factors to consider under s. 486.31 include: a. The right to a fair and public hearing; b. The nature of the offence; c. Whether the witness needs the order for their security or to protect them from intimidation or retaliation; d.

Whether the order is needed to protect the security of anyone known to the witness; e. Whether effective alternatives to the making of the proposed order are available in the circumstances; and f. The salutary and deleterious effects of the proposed order. [ 30 ] Regarding a publication ban,

section 486.5(1) of the Criminal Code permits on application of the prosecutor in respect of a victim or a witness, or on application of a victim or witness, that 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 best interest of the proper administration of justice.

[31] And s. 486.5(9) of the Criminal Code strictly prohibits publication of any document or broadcast or transmission in any way. a. The contents of the application; b. Any evidence taken, information given or submissions made under subsection (6); or c. Any other information that could identify the person to whom the application relates as a victim, witness or justice system participantin the proceedings. [32] Factors the judge or justice must consider in ordering a publication ban are set out under s. 486.5(7) of the Criminal Code, andfor the most part, mirror those set out under s. 486.31, but in particular includes under s. 486.5(7)(

g) the “impact of the proposed orderon the freedom of expression of those affected by it.” [33] The most recent reformulation of the legal principles are set out in the Supreme Court of Canada case of Sherman Estate v.Donovan, 2021 SCC 25, in which the court adopted the two-step inquiry involving necessity and proportionality of the proposed order inthe previous longstanding authorities of Dagenais v.Canadian Broadcasting Corp., (SCC), [1994] 3 S.C.R. 835 and R. v.Mentuck, 2001 SCC 76 , 2001 3 S.C.R. 442, but added this test or inquiry rested upon “three core prerequisites” the personseeking the order must show.

The party must establish: 1. court openness poses a serious risk to an important public interest; 2. the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will notprevent this risk; and 3. a matter of proportionality, the benefits of the order outweigh its negative effects.

Only where all three of these prerequisites have been met can a discretionary limit on openness – for example, a sealing order, apublication ban, an order excluding the public from a hearing, or a redaction order – properly be ordered… (at para. 38) [34] Beginning with Dagenais supra and adopted in all authorities following, it is established that the “[t]he burden of displacing thegeneral rule of openness lies on the party making the application.” (Mentuck, supra at para. 38) ANALYSIS [35] In following the Sherman Estate, supra analysis, I must consider whether the AGC has met the burden of affirmativelyestablishing all three core pre-requisites of the test: A.

Important Public Interest [36] I am satisfied and accept that the evidence set out in Staff Sergeant Dodds’ affidavit comprehensively describes the safeguardsrequired to protect the safety and security of the Undercover Operators and anyone close to them from intimidation and retaliation. [37] The court in R. v. Nuttal, 2021 BCSC 1924 at para 56 adopted the reasoning of the Supreme Court in Sherman Estate supra thatcharacterized “physical safety to be an important public interest.” I need not hear direct evidence on this point.

As stated further in Nuttalsupra at para 56 citing Sherman Estate, the harm need only be “objectively discernible.” [38] I have no difficulty in finding that the harm described in his affidavit is real and not generalized or speculative during and after aninvestigation is closed.

I accept his evidence establishes that the nature of the offence of trafficking attracts and is inherently “extremelydangerous” to the lives of these Undercover Operators. [39] I accept that whether the accused before me is, as submitted by the defence to be a low level player that in and of itself does notinvolve violence and or threats of violence, I have no doubt that if proven in court, he would be directly or indirectly connected to a largersophisticated operation involving the serious crimes known to be associated with drug trafficking. [40] Further, I accept and rely on the evidence of Staff Sergeant Dodds regarding the risk of serious harm with the dissemination ofinformation on the internet through the prevalence of social media.

The internet also allows easy access to information that may identifyan undercover operator through archived images of the operators from past media coverage. [41] Additionally, I accept and rely on Staff Sergeant Dodds’ evidence in support of a public interest in protecting and maintaining theintegrity and effectiveness of existing and future investigations involving these Undercover Operators and others. B.

Necessity and No Reasonable Alternative Measure to Prevent Risk [42] In this case, the Undercover Operators used their actual first names a pseudonyms which for a number of safety reasons asalready stated above is a common practice and “consistent with the majority of cases involving undercover officers,” as deposed by StaffSergeant Dodds at para 12.

For these reasons, I accept that changing their pseudonyms would be dangerous and impractical. [43] As well, I accept these Undercover Operators are likely to be re-deployed in primary or secondary operator roles in futureoperations “within the next year and for an indefinite number of years thereafter.” (Dodds affidavit @ paras 5 and 13). [44]

Section 539 of the Criminal Code is restricted only to the preliminary inquiry and therefore does not offer the breadth ofprotection as contemplated under s. 486.31(3)(

e) including those peace officers who have operated in the past, currently operating orpotentially re-deployed in an undercover capacity. Accordingly, I reject the proposed alternative that s. 539 of the Criminal Code wouldreduce the significant risk to the public interest to an acceptable level. I am satisfied a ban on information that could identify theundercover officers is the only effective method that would protect the public interest and accordingly, find that it is necessary in this

case and that there is no reasonable alternative. C. Proportionality [ 45 ] In this case, I am satisfied the benefits, or salutary effects, of the use of pseudonyms and a publication ban significantly outweigh any deleterious effects. [ 46 ] I am mindful that as stated in Nuttal , supra, citing Vancouver Sun (Re), 2004 SCC 43 at para 18 : …as a general rule, all court proceedings are presumed to be open and transparent.

The principle known as the open court principle has been describes as a “hallmark of a democratic society” applicable to all judicial proceedings. [ 47 ] I have also considered that the media was unrepresented at this application. However, I am satisfied and adopt the reasoning by the court in R. v.

Wentworth , 2022 ONSC 1660 at para 22 when considering the use of pseudonyms and a publication ban, that …the order does not foreclose public scrutiny of the proceedings, or the publication of the substance of the evidence…the order sought achieves a “middle ground” by allowing public scrutiny of the proceeding while protecting other interests at play. [ 48 ] I adopt the reasoning in Sherman Estate , supra when determining whether restricting court openness will pose a serious risk to public interest.

This determination is case specific and it “is a fact-based finding that, for the judge considering the appropriateness of an order, is necessarily made in context.” (at para 42). [ 49 ] As stated above, I am satisfied that any investigation involving trafficking of a controlled substance is inherently dangerous. I accept and rely on Staff Sergeant Dodds’ evidence that undercover operators and those close to them are at risk during and after an investigation is closed.

A publication ban and use of pseudonyms in this case will assist in keeping these Undercover Operators and those close to them safe from intimidation and serious harm now and in the future. [ 50 ] I am also satisfied that a publication ban will prevent future undercover operations from being undermined. I am not; however, prepared to order the publication ban indefinitely.

It is well established from the authorities, that the starting point in considering any restriction must be as little as possible without sacrificing the prevention of the risk. ( Mentuck , supra at para 36 ) [ 51 ] The authorities consistently and purposefully reiterated that the hallmark of a free and democratic society requires the presumption that courts remain open, uncensored with media reporting the court proceedings, and that any application to restrict this openness, must be grounded in a convincing evidentiary foundation. ( Mentuck , supra at paras 26, 38, 39, 51, 52 , Nuttal , supra @ para 18 ) [ 52 ] I am guided by and accept the reasoning by the court in Mentuck , supra at paragraph 59 in addressing the appropriate length of a proposed publication ban. …Different cases will involve different considerations, and there may well be times when the danger to officers or to the importance of the administration of justice of police operations rises to a level of seriousness sufficient to justify the deleterious effect inherent in publication bans of a longer duration. [ 53 ] It should not be assumed that all undercover operations carry the same level of risk.

Each are fact specific and the length of time of the publication ban should be proportionate to that risk. In my view, the concept of open court is presumptive and there is a strong societal interest in preserving the Charter protected freedom of expression.

Accordingly, further fact specific evidence beyond the inherent danger of these operations in trafficking offences is required to make that determination when considering an indefinite restriction on publication. [ 54 ] In this case, there was no evidence before the court including the nature of J.B.’s involvement in the charges, why he was targeted for this undercover operation for which he was ultimately charged in 2020, the nature of the investigation involving the Undercover Operators and the specific and long term danger to these particular Undercover Operators.

Other than the inherent serious risks to the Undercover Operators associated with nature of this offence, absent evidence of specific and long term danger, I find on the evidence before me, as stated by Mr. Justice Iacobucci in Mentuck , supra at para 58 “this is not a substantial enough risk to justify permanent concealment.” DECISION [ 55 ] The AGC has discharged their onus and accordingly, I will grant the order sought by the AGC on behalf of the RCMP for an order pursuant to s. 486.31 of the Criminal Code directing Undercover Operators testify under their respective pseudonyms.

The form of the order will be drafted by the AGC. [ 56 ] Further, I grant the AGC’s application pursuant to s. 486.5(1) and s. 486.5(9) of the Criminal Code in part and impose a publication ban for a period of three years. I am satisfied that this length of time addresses the general inherent danger to the Undercover Operators as deposed by Staff Sgt. Dodds, and the facts before this court with respect to the nature of this particular matter.

The form of the order will be drafted by the AGC. [ 57 ] Lastly, I reject the defence submission that this court does not have the jurisdiction to order a publication ban beyond the conclusion of the preliminary inquiry. No authority was provided for this argument. I find this submission without merit and dismiss it summarily.

The Honourable Judge M. Stanford Provincial Court of British Columbia