R. v. Mentuck, [2001] 3 S.C.R. 442, 2001 SCC 76, 2001 SCC 76 (2001)

R. v. Mentuck, [2001] 3 S.C.R. 442, 2001 SCC 76

Her Majesty The Queen Appellant v.

Clayton George Mentuck Respondent and

The Attorney General of Canada,

the Attorney General for Ontario,

the Attorney General of British Columbia,

the Winnipeg Free Press,

the Brandon Sun, and the Canadian Newspaper Association Interveners

Indexed as: R. v. Mentuck

Neutral citation: 2001 SCC 76.

File No.: 27738.

2001: June 18; 2001: November 15.

Present: McLachlin C.J. and L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.

on appeal from the manitoba court of queen's bench

Courts - Supreme Court of Canada - Jurisdiction - Publication bans - Criminal proceedings - Trial judge granting one-year ban as to identity of undercover police officers and refusing ban as to operational methods used in investigating accused - Whether Supreme Court of Canada has jurisdiction to hear Crown appeal from trial judge's order - Supreme Court Act, R.S.C. 1985, c. S-26, s. 40(1), (3).

Criminal law - Publication bans - Appropriate scope of publication ban - Undercover police investigation - Crown seeking publication ban protecting identity of police officers and operational methods used in investigating accused - Trial judge granting one-year ban as to identity of officers and refusing ban as to operational methods - Whether trial judge erred in ordering ban.

The accused was charged with second degree murder. At his first trial, a stay of proceedings was entered after crucial evidence was ruled inadmissible. The accused was then targeted by the RCMP in an undercover operation. The undercover operation followed a pattern commonly employed by Canadian police. As a result of evidence gathered during this operation, the indictment was reinstated. In the course of opening statements at the second trial, the Crown referred to much of the information now sought to be suppressed. Newspapers reported most of the information. During the trial the Crown moved for a publication ban to protect the identity of the officers and the operational methods employed by those officers in the investigation. The accused and two intervening newspapers opposed the motion. The trial judge granted a one-year ban as to the identity of undercover police officers, but refused a ban as to operational methods used in investigating the accused. Pending the resolution of this appeal, that order was stayed and orders granting the requested publication ban in full and sealing the affidavits filed with the trial judge were granted. Meanwhile, a mistrial was declared in the second trial due to a hung jury. At the accused's third trial, he was acquitted.

Held: The appeal should be dismissed. The order granting a one-year ban as to the identity of the undercover police officers is restored, but the one-year period commences at the date of this judgment.

As Parliament has not seen fit to amend the Criminal Code to provide for clear avenues of appeal in publication ban cases, the reasoning in Dagenais and Adams governs the appeal process. This Court has jurisdiction under s. 40(1) of the Supreme Court Act to hear a direct appeal from the trial judge's order for a publication ban. This order is ancillary to any issues relating to the guilt or innocence of the accused, and thus the appeal is not barred by s. 40(3) of the Act. No other route of appeal is open to the parties in the case, and the appeal is not explicitly barred by statute.

The ban or...

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