|
Article Excerpt
[The purpose of this article is to identify and analyse, from the perspective of the principle of open justice, the response of courts in Canada and Australia when requested by the police to suppress publication in the mass media of evidence given in open court concerning a particular police method that has been used to solve cold cases. Part One discussed the source of the courts' power to make non-publication orders and compared the tests that are used in these two jurisdictions to determine whether such orders should be made. It then identified several practical, procedural and technical issues posed by non-publication orders that were highlighted in these cases, as well as some unresolved issues of statutory interpretation, and considered how these issues impacted on open justice. Part Two will deal with the substance of the decisions of courts and will evaluate them from the perspective of open justice.]
CONTENTS I Open Justice and Suppressing Evidence of Police Methods and Identities: The Substantive Issue A The Position in Canada 1 The Ban on Operational Methods 2 The Ban on Police Identities B The Position in Australia 1 The Connection between the Orders and the Statutory Powers in Sections 18 and 19 2 The Principle of Open Justice 3 The Practical Utility of the Orders C Admissibility of the Evidence versus Publication of the Methods II Conclusion III Editors' Note
I OPEN JUSTICE AND SUPPRESSING EVIDENCE OF POLICE METHODS AND IDENTITIES: THE SUBSTANTIVE ISSUE
A The Position in Canada
1 The Ban on Operational Methods
In R v Mentuck ('Mentuck'), the Crown claimed that it was not seeking a complete suppression of the hallmarks of the operational methods, (1) only that they should be kept out of the mass media, (2) the assumption being that the types of person selected as targets of the crime boss scenario were more likely to access newspapers and television news programmes than law reports and legal journals. The bans sought in R v ONE ('ONE') were described as 'effectively identical'. (3) However, in ONE, the trial judge worded the ban in such a way that it went beyond publication in the mass media and prohibited outright 'publication in print'. (4) The Supreme Court of Canada did not comment on this apparent discrepancy. The same situation occurred in Victoria in Re Applications by Chief Commissioner of Police (Vic) for Leave to Appeal ('Re Applications 2004'), (5) and is discussed below. (6) It demonstrates that the way in which a publication ban is worded has a significant impact on the extent to which open justice is abridged.
Pursuant to the first limb of the modified Dagenais v Canadian Broadcasting Corporation ('Dagenais') test, (7) the Supreme Court of Canada in Mentuck had to ascertain whether a ban prohibiting publication of operational methods was necessary in order to prevent a serious risk to the administration of justice. (8) Despite urging caution in deciding what can be regarded as part of the administration of justice, the Court thought it 'obvious' that the use of police operatives and informers is part of the administration of justice, (9) and was satisfied that the administration of justice was at risk insofar as it accepted that police operations would be compromised if suspects learned that they were targets. (10) However, the stumbling block for the Crown was that it had failed to establish that there was a serious risk that the efficacy of present and future police operations would be reduced by the publication of the hallmarks of the technique. The Court took the view that there are a limited number of ways that undercover operations can be run, and that criminals who might extrapolate from a newspaper story that their own situation could be a police construct might arrive at the same conclusion using their common sense or by reference to similar situations depicted in popular books or films. (11) Since suspects could learn of the types of undercover operation employed by police from other sources, the risk that media reports alone would tip them off and jeopardise police operations was not regarded as a serious one. Thus, publication of the methods in the mass media would not 'seriously increase the rate of compromise'. (12) The police had only been able to point to one instance in which media reports had arguably resulted in the compromise of an operation. (13) The same reasoning was adopted in ONE, where the Court reiterated that neither the efficacy of ongoing police investigations nor the safety of officers in the field would be significantly compromised by the publication of information about undercover investigative techniques. (14)
Having concluded that the Crown had not demonstrated that a ban on the publication of the operational methods was necessary in order to prevent a serious risk to the administration of justice, there was no real need for the Court to consider the second limb of the test. Nevertheless, the Court bolstered its conclusion by stating that, in any event, the salutary effects of a publication ban would be outweighed by its deleterious effects. The problem was that the salutary effects--namely, protecting officers in the field and ensuring that the targets of the operation continued to provide useful information--were not substantial. Given that in this type of operation the one suspect is surrounded by many police officers, the risk to officer safety was regarded as speculative and not compelling. The Court also thought it unlikely that a ban would have a significant effect on the likelihood that suspects would realise that they were being targeted in undercover operations. At most, the ban would produce speculative and marginal improvements in the efficacy of undercover operations. (15)
By contrast, the deleterious effects were regarded as substantial. First, the freedom of the press would be seriously curtailed in respect of an issue that lies at the core of freedom of expression, namely, discussions of the proper role and acceptable activities of the police. In the words of the Court:
A fundamental belief pervades our political and legal system that the police should remain under civilian control and supervision by our democratically elected officials; our country is not a police state. The tactics used by police, along with other aspects of their operations, is [sic] a matter that is presumptively of public concern. 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. (16)
The Court proceeded to state that if publication bans were improperly used to insulate police conduct from public scrutiny, the Canadian public would be seriously deprived of its ability to become appraised of and respond to police practices that, left unchecked, 'could erode the fabric of Canadian society and democracy'. (17) The case for public exposure of police methods is even stronger now that the reliability of the confessions extracted via these methods is being increasingly questioned in Canada. (18)
Secondly, the Canadian Charter of Rights and Freedoms right of the accused to a 'fair and public hearing' would be deleteriously affected by the ban. (19) The Court emphasised that in cases where the accused is known to have made admissions yet is acquitted, the public might not appreciate why the accused had been acquitted. In this case, the public are reliant on the advantage of a full explanation. If the facts surrounding the police operation were made available to the public, they could make an informed judgement about the reasonableness of the acquittal, and the accused could feel vindicated to some extent. By contrast, where a publication ban prevents the public from being made aware of the facts leading to an acquittal, a public perception may emerge that the acquittal was gained on a technicality rather than because there were serious doubts about the authenticity of the confession. Identical reasoning was adopted in ONE. (20)
2 The Ban on Police Identities
Although the Supreme Court of Canada refused to impose a publication ban on the police methods, in both Mentuck and ONE, the Court upheld a ban in respect of the officers' names and identities for a one-year period. Applying the 'necessity test', (21) the Court held in both cases that publishing the identities of the undercover police would involve a serious risk to the efficacy of current, similar operations. (22) The officers concerned were using their real names in the course of their undercover work, so publishing their names could very easily alert targets that their apparent criminal associates were in fact police officers. This would almost certainly compromise the operation. Moreover, the Court found that there were no reasonable alternatives to a publication ban. (23) In both cases, the ban was restricted to one year, when current operations would be expected to have concluded. (24) In respect of operations not yet commenced, the Court indicated that since reasonable alternative measures such as the use of pseudonyms and the use of different officers and scenarios would be available to the police, future non-publication orders may not be necessary.
Regarding the proportionality component of the test, the Court in each case regarded the salutary effects of the ban as significant. (25) Preventing the names and descriptions of officers in the field from reaching the attention of current targets would avoid potential harm to those officers and would assist in ensuring the efficacy of those ongoing operations. The deleterious effects were not as substantial and were outweighed by the salutary effects. (26) Public debate about police tactics and the manner in which police...
|
