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Publication Bans (2001)

Court-ordered publication bans significantly modified by Supreme Court

R. v. Mentuck, Nov. 15, 2001 CBC Disclosure piece featuring George Mentuck and Olivia Edgars tapes (14 minutes) The program Disclosure has been cancelled and this excellent video is no longer available online.

The CBC reports on illegal techniques used by police to elicit confessions. After spending a year and a half in jail on a murder charge that was thrown out for lack of evidence, George Mentuck became the focus of a police sting to get him to confess to the same crime. Posing as a gang, the police set Mentuck up with a house and had him run small errands for them. When Mentuck again insisted on his innocence, police offered up another scheme -- to which Mentuck finally confessed. Once again a judge threw out the charge, saying that Mentuck had no choice but to confess under the circumstances the police engineered.


Criminal - Criminal law - Publication bans - Statutes - Interpretation - Jurisdiction - Limited publication ban granted with respect to information identifying undercover police officers - Publication ban denied with respect to police operational methods - Whether this Court has jurisdiction under Supreme Court Act s. 40(1) - Whether the trial judge erred in refusing to grant the publication ban and in concluding that the public interest in effective law enforcement was not a factor to be considered in determining whether to grant the ban - Whether the trial judge erred in failing to give proper effect to his findings that the security and well being of the police officers involved in this investigation would be subjected to bona fide risk if they were identified.

In a trial that ended in a mistrial due to a deadlocked jury on February 18, 2000, the Respondent stood accused of the second degree murder of Amanda Cook on July 13, 1996 near Rossburn, Manitoba. On September 11, 2000, a third trial commenced before a Queen's Bench Judge sitting alone. On September 29, 2000, the Respondent was acquitted.

Part of the evidence against the Respondent was obtained by virtue of a covert operation by the Royal Canadian Mounted Police. Before introduction of all the evidence, the Appellant Crown brought a motion for a publication ban covering print and the broadcast on television, film, video, radio and internet of: (a) the names and identities of the undercover police officers in the investigation of the Respondent, including any likeness of the officers, the appearance of their attire and their physical descriptions; (b) the conversations of the undercover operators in the investigation of the Respondent to the extent that they disclose the matters in "paragraphs (a) and (c)" and (c) the specific undercover operation scenarios used in the investigation of the Respondent.

As of February 2, 2000, the officers involved in this case continued to be involved in covert operations, and the Crown argued that if they were identified in the media by name, photograph or general description, their safety and well-being would almost certainly be jeopardized.

Menzies J. dismissed the application with respect to the specific undercover operation scenarios used in the investigation of the Respondent. However, he granted the ban with respect to the names and identities of the undercover police officers for one year from February 2, 2000. This ban applied to the officers' likeness, the appearance of their attire, physical descriptions or any other evidence that may tend to identify the officers.

In this Court, the Appellant's application to have exhibit "B" of the affidavit of Randy Randell sealed and for a publication ban on the information at issue pending decision on the leave application, and, if leave is granted, pending decision on the appeal, was granted.

Origin of the case:  Manitoba

File No.:  27738

Judgment of the Court of Appeal:  February 2, 2000

Counsel:  Leonoff Q.C./Darrin R. Davis for the Appellant
             Timothy J. Killeen for the Respondent

Disclosure Episode 2 (Nov. 20, 2001) Dirty Tricks?

The following is a transcript of a report from CBC News: The National (broadcast November 16, 2001)

Supreme Court rules on publication bans

PETER MANSBRIDGE: Well, two important decisions today about freedom of the media and publication bans. The Supreme Court of Canada has ruled just how much can be reported about undercover police operations. The answer is a lot. The CBC's Rick Boguski explains.

RICK BOGUSKI (Reporter): At the Winnipeg Free Press, reporters are working on a story the paper has wanted to publish for a long time, details of two undercover RCMP operations that police hoped to keep secret. But today, the Supreme Court of Canada said no.

NICHOLAS HURST (Editor, Winnipeg Free Press): This is a great decision for Canada as a democracy.

BOGUSKI: Nicholas Hurst is editor of the Free Press. His paper, as well as two others, argued before the Supreme Court that the public has a right to know. While the crown argued revealing such details would hurt future investigations.

But the Supreme Court said public scrutiny is better, that "police practices left unchecked could erode the fabric of Canadian society and democracy". The first case involved Clayton Mentuck. He was charged with the murder of a fourteen year old Manitoba girl found beaten to death in 1996.

In this video obtained by the CBC program Disclosure, the police set up an elaborate undercover operation in the hopes of getting a confession. They posed as criminals, paying Mentuck and promising him more if he would confess to the organization all the bad things he had done. Three trials later, Mentuck with acquitted.

TIM KILLEEN (Mentuck's Lawyer): In my view, the problem with this operation was that it was designed to have him confess. It wasn't designed to get at the truth.

BOGUSKI: The second case involved a fifteen year old BC runaway. Police believe she was responsible for the murder of a Vancouver teen found dead beneath this bridge in 1997. Again, police posed as criminals, promising her fifty thousand dollars. That's if she could prove she was bad enough to join them in crime. She, too, was acquitted. Her lawyer has long believed the public should know exactly what police did.

PHIL RANKIN (Lawyer): I want them to know, I want them to see how this young girl, fifteen year old girl was completely manipulated into a false confession.

BOGUSKI: But those details, RCMP insist, should never have been made public.

SERGEANT STEVE SAUNDERS (RCMP): We still truly feel that once this is published throughout the mass media, it will, in fact, put ongoing undercover investigations at risk.

BOGUSKI: That's because these types of sting operations are used over and over again by police. Now the RCMP say they'll have to change their strategy. But whatever they do, it's unlikely it will be much of a secret. The Supreme Court says publication bans should be reserved for special cases.

Court scraps publication bans

OTTAWA (CP) -- Details of undercover police tactics used to coax confessions from murder suspects in Manitoba and British Columbia now can be published, the Supreme Court of Canada says.

In two separate 9-0 judgments, the court ruled Thursday that the Crown did not adequately show how publication of those details would undermine the administration of justice.

Only the identities of the police officers involved in the cases are barred from publication for one year, starting Thursday. The first case involves Clayton George Mentuck, charged in the 1996 murder of Manitoba teen Amanda Cook.

He was tried three times. The first trial ended when the Crown stayed the charge after a judge ruled that police overstepped themselves in the investigation.

Mentuck was released after 20 months in custody.

Undercover Mounties then attempted to gather more evidence and Mentuck was subsequently charged and tried again.

During the trial the Crown asked for a ban on disclosing the identities of the undercover policemen, their conversations with Mentuck and the techniques they used.

Although the judge only banned the media from identifying the police, nothing has actually been published pending the outcome of the Supreme Court appeal.

The second trial ended in a hung jury.

At a third trial before a judge sitting alone, Mentuck was acquitted last year.

The Winnipeg Free Press and the Brandon Sun challenged the publication ban and were supported by Mentuck's lawyer, who said his client wants the public to know why he was acquitted.

"It is in the public interest to fully explore in the media the police conduct during the investigation of this crime," defence lawyer Tim Killeen wrote in his submission to the high court.

The federal government, along with Manitoba, British Columbia and Ontario intervened in the case, saying RCMP undercover tactics, which are used as a last resort in cases across the country, must be kept secret.

Government lawyers argued that police must be allowed to use every possible weapon in fighting crime and must keep some of these weapons confidential.

The second case also involves a murder and an acquittal.

A 15-year-old girl was charged with the murder of another British Columbia teen after the RCMP conducted an undercover investigation.

A sweeping ban on identifying or describing the policemen, or reporting the conversations and techniques they used, was requested by the Crown and approved by the trial judge.

The Vancouver Sun applied for a partial lifting of the ban but was refused.

After a trial by judge and jury, the accused was acquitted last year.

Unlike most cases weighed by the Supreme Court, these did not come up through an appeal court. Current law prevents intermediate courts from reconsidering publication bans, making the top court the only avenue for such challenges.