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Court limits scope of publication bans

'Our country is not a police state,' ruling says in allowing coverage of police sting


Neal Hall

Vancouver Sun


Friday, November 16, 2001

Saying Canada is not a police state, the Supreme Court of Canada ruled Thursday in favour of The Vancouver Sun's argument that the media should be free to report after the fact the details of undercover police operations.

In a unanimous decision, the nation's highest court overturned a ban on publication of a undercover police scenario used to obtain a confession from a teenage girl suspected of murder.

The nation's highest court found the media should be able to report details of undercover operations, especially those involving such deceptive tactics as police posing as "crime bosses."

"Our country is not a police state," the court said. "Restricting the freedom of the press to report on the details of undercover operations that utilize deception, and that encourage the suspect to confess to specific crimes with the prospect of financial and other rewards, prevents the public from being informed critics of what may be controversial police actions.

"The improper use of bans regarding police conduct, so as to insulate that conduct from public scrutiny, seriously deprives the Canadian public of its ability to know of and be able to respond to police practices that, left unchecked, could erode the fabric of Canadian society and democracy."

"This is a really big win," said Robert Anderson, the Vancouver lawyer who represented The Sun at the appeal last June in Ottawa. "We're very pleased."

The court clearly found the courts should lean toward openness and be careful not to limit press freedom without properly weighing the deleterious effects, he added.

The decision also clarified the legal test to be met when bans on publication are sought in criminal trials for reasons other than an accused's right to a fair trial, he said.

The Sun's challenge of the ban involved a police scenario revealed at the B.C. murder trial of a teenage girl who can be identified only as O.N.E.

The court overturned a decision made by B.C. Supreme Court Justice Terry Edwards at the trial of O.N.E., who was acquitted on Aug. 25, 2000 of a charge of second-degree murder in the death of Zachariah Steudle.

The trial judge imposed a ban on the scenario used in the undercover operation that resulted in a confession from O.N.E., who was 15 at the time Steudle died. His body was found 50 metres below a West Vancouver bridge on Sept. 21, 1997.

He had apparently fallen, but a laceration on Steudle's ankle led police to believe he had been stabbed and his death was a murder.

The court was told -- but the media was banned from reporting --that police posing as criminals offered O.N.E and her lesbian partner $50,000 US for their participation in a drug deal, then threatened to withdraw the offer unless she provided sufficient details of the Steudle killing to enable a dying member of their criminal organization to confess to the crime to prevent her being arrested on a murder charge.

The Sun tried during the trial to vary the ban imposed by Edwards, but the judge rejected The Sun's argument that the public should be informed of the police conduct so it could determine whether it viewed the conduct as shocking.

The trial judge decided the conduct of the police would not have that shock effect, so the public did not need to second-guess him.

The Sun appealed to the nation's top court, where Anderson argued that the trial judge erred in failing to conclude that the deleterious effects of preventing an informed public from being able to debate or criticize such important aspects of the criminal justice system would outweigh any salutary effects of the ban on publication.

"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," Supreme Court of Canada Justice Frank Iacobucci said in written reasons for the decision in the O.N.E. case.

"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," the judge wrote.

"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."

O.N.E.'s lawyer, Phil Rankin, said he hopes the decision will cause police to think twice before using an undercover scenario on such a vulnerable teen as his client, who was one of 13 kids born to an alcoholic mother and was emotionally disturbed.

"She was a street kid who had never seen $50 at one time, let alone $50,000," he said, referring to the $50,000 payoff that police offered the teen.

Rankin said he is not against police using such tactics but believes there should be judicial scrutiny --similar to a judge approving a wiretap operation -- in such cases.

"The courts have basically abandoned the public by allowing the RCMP to engage in reverse stings without judicial scrutiny," the defence lawyer said.

Rankin opposed the ban at trial because he wanted the public to know the type of coercive tactics used by police against his client.

"They got her to confess to a murder that never took place," he said. "There was no physical evidence of a murder, just the theory of one officer."

The O.N.E. case was heard in the Supreme Court of Canada along with a Manitoba case known as R. vs. Mentuck, which also involved the RCMP seeking a ban on publication of details of an undercover police operation used to gain a murder confession.

The Supreme Court of Canada decisions were disappointing for the RCMP, which has routinely sought bans on publication for several years at trials involving undercover police scenarios used to obtain incriminating statements from suspects.

The RCMP has successfully solved dozens of unsolved murders in recent years using undercover police scenarios to gain confessions.

Vancouver RCMP spokesman Sergeant Grant Learned said Thursday that out of 120 such undercover operations in B.C. between 1997 and 2000, there was a success rate of S2 per cent.

RCMP classify a success as an undercover operation that gathers evidence for a prosecution or eliminates someone as a suspect, he said.

He explained that RCMP legal advisers and undercover operations managers are reviewing the O.N.E. and Mentuck decisions to see what impact they will have on future undercover operations and the force's ability to ask for court bans on details of undercover scenarios.

"At face value, it's going to be a lot more work to ensure officer safety," Learned said. "We may consider not entertaining some scenarios."

He noted that undercover operations can be dangerous work because the targets are "potentially the most dangerous people on our streets."

Lawyers for the RCMP had argued in both O.N.E. and Mentuck that a ban was necessary to protect the safety of undercover officers involved in active or future undercover operations.

But the Supreme Court of Canada decided the ban imposed at the B.C. murder trial was wrong because it limited press freedom and thereby public scrutiny of police.

In O.N.E., the top court overturned the ban on the scenario details but kept in place for a year the ban on the names of the officers involved in the undercover operation.

"The identity of police officers should not be, as a matter of general practice, shrouded in secrecy forever, absent serious and individualized dangers," Iacobucci wrote.

"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."

Anderson said while the court overturned the ban in the O.N.E case, bans already imposed at other trials will remain in place but can be challenged by the media. The trial courts should be hesitant in imposing similar bans in light of the Supreme Court of Canada ruling, he added.