Pub Bans and Sealing Orders

R v Darling 2018 BCSC 1327

Kristy Morrey died in Port Alberni on 20 August 2006. The RCMP investigated and considered her death a homicide. At the time, Larry Darling was cleared as a suspect. Years later, the RCMP revived the investigation; in 2013, it was overseen by S/Sgt Laura Livingstone but S/Sgt Greg Mainman assumed the team commander position during her secondment to another post from October 2014 to January 2016.

Under S/Sgt Mainman’s supervision, the RCMP conducted “E-Nacreous”, a Mr. Big operation targeting Mr. Darling. This undercover operation comprised 109 scenarios between February and September 2015, and culminated in Mr. Darling being charged with first-degree murder on 11 September 2015. Mr. Darling made his first appearance in Court in September 2016.

The BC Prosecution Service directed a stay of proceedings of the charge against Larry Darling on June 13, 2018. The BC Prosecution Service decided to stay the charge after further information was received by the prosecutors with conduct of the file. After reviewing this information and the rest of the file materials the prosecutors concluded the charge approval standard could no longer be met.

Justice Thompson applied the Dagenais/Mentuck test in determining whether access to the requested documents should be granted to the media. In doing so, he granted a request that the name of an undercover RCMP operator(s) continue to be redacted.

However, Thompson J. rejected the request for redaction of the name of Deputy Regional Crown Counsel, David Kidd, from the documents:

Mr. Kidd argues that his name is a mere “sliver of information” and that a ban on publishing information that could lead to disclosure of his identity only minimally impairs the public interest in open court proceedings. Given his important role, I do not think that in these circumstances Mr. Kidd’s name is properly characterized as a sliver of information. Moreover, it would be misleading the public to identify Mr. Kidd as “a prosecutor” or as “a senior prosecutor” — he, in fact, is in a leadership position and part of his role is to supervise both senior and junior prosecutors. And, other alternative quasi-identifiers are not practical. A publication restriction that mandates description of Mr. Kidd as “a Deputy Regional Crown Counsel” would be unfair to other occupants of that office in the BC Prosecution Service. Describing him as “the Deputy Regional Crown Counsel in Nanaimo” would effectively identify him.

Thompson, J. also denied the redaction request of RCMP S/Sgt Mainman:

Like Mr. Kidd, S/Sgt Mainman was in a position of important public responsibility at all material times. As the Morrey investigation team commander, S/Sgt Mainman bore ultimate responsibility for ensuring that all appropriate material was collected and retained for eventual disclosure, and seeing to it that this information was passed on to the Crown in a timely way. S/Sgt Mainman oversaw the centrepiece of the investigation: the Mr. Big undercover operation that spanned many months and involved many undercover operators. In its planning and execution, the operation surely involved significant police resources and the expenditure of a significant amount of public money.

…the public ought not to be shielded from being able to learn about what may have led to the Crown’s decision to direct a stay of proceedings, and (that) public servants ought not to be shielded from scrutiny in a case such as this.