September 13, 2016
R v Derbyshire 2016 NSCA 67

Undercover police officers posed as members of an outlaw motorcycle gang. They confronted the respondent in a dimly lit underground garage. They ordered her to get back into her car. They demanded that she tell them details of a homicide and her involvement in helping the suspect to escape. She told them, and then travelled with the officers for the remainder of the day, where more details were obtained. She also pointed out to the officers where certain things were done. The police charged the respondent with being accessory after the fact to murder.

Prior to trial, the respondent brought a motion to stay the proceedings under the Canadian Charter of Rights and Freedoms or that the police conduct amounted to an abuse of process. The trial judge found that the respondent had cooperated with the undercover police officers out of fear; in particular that there had been a very strong implied threat of physical harm to her if she did not give the “gangsters” what they were after. The trial judge dismissed the Charter motion, but found there had been an abuse of process. Instead of staying the proceedings, he excluded the evidence. The Crown offered no evidence and the respondent was acquitted.

The Crown asked a justice of the Nova Scotia Supreme Court to order a publication ban on information that could identify the undercover police officers for a period of one year. The ban expired in May 2015. At the time that this motion was brought, there had been no restriction on publication for almost a year. The information now sought to be banned for a further period of two years has been in the public domain with no identified or suggested real and substantial risk of harm from use of the officers’ names.

The Crown then applied to the Nova Scotia Court of Appeal for a new order.

On April 28, 2016, the Crown filed a motion for an order pursuant to s. 486.5 of the Criminal Code restricting publication of any information that could identify the undercover and cover officers involved in this case for a period of two years. The motion was supported by the affidavit of Sgt. Rob Jodrey. A draft order requested a ban on the publication of any information that could identify the undercover and cover police officers P.I., D.P. and D.C. pursuant to s. 486.5 of the Criminal Code. It also requested that the order direct: “No publication, transmission or broadcast of any evidence taken in this trial shall be linked or cross-referenced to any previously published document, broadcast or transmission which identified P.I., D.P. and D.C. by name or image.”

The motion was to be heard by a justice in chambers on May 5, 2016. The presiding justice referred the motion to this panel. The respondent takes no position on the motion, and no media representatives came forward to voice opposition.

…in these particular circumstances, the requested ban of “any information” that could tend to identify the officers is unwarranted, as is a mandated use of initials. To do so would tend to keep from public light the identity of the officers who were found by the trial judge to have coerced inculpatory statements and conduct by fear and intimidation.

It is not in the interests of the administration of justice to create an anonymous police force. I am not satisfied that the request for a further ban is necessary in order to prevent a serious risk to the proper administration of justice or is in the interest of the proper administration of justice. I would therefore decline to order the requested ban.