B.C. Supreme Court refuses to lift publication ban on identities of undercover RCMP officers

The Supreme Court of British Columbia has dismissed an application filed by a journalist to set aside a publication ban on identities of RCMP officers involved in an undercover investigation.

In January 2015, B.C. Supreme Court Justice Catherine Bruce issued a publication ban indefinitely prohibiting the publication, broadcast or transmission of any information that could identify the RCMP officers involved in the undercover investigation that led to the terrorism-related charges against Amanda Marie Korody and John Stewart Nutall. Both accused were convicted of the charges in July 2015.

The applicant, Rafferty Baker, is a journalist with the CBC. For his upcoming podcast about the undercover investigation, he sought an order to set aside the publication ban or in the alternative, permit the broadcast of the recorded voices of the undercover officers without disclosing their names or pseudonyms. He contended that the passage of time, approximately six years, was a sufficient basis to justify the lifting of the publication ban.

 The Attorney General of Canada and the Crown opposed. They argued that while a publication ban may be set aside where the circumstances relating to its issuance have materially changed, the passage of time did not per se constitute a material change in circumstances. They submitted the affidavit of a non-commissioned RCMP officer in charge of B.C. undercover operations to support their defence.

In its decision, the B.C. Supreme Court held that the Attorney General of Canada and the Crown had satisfied all the prerequisites pronounced in Sherman Estate v. Donovan, 2021 SCC 38, before courts could exercise discretion in limiting the open court presumption. The prerequisites were the following:

• Whether court openness poses a serious risk to important public interest;
• Whether there are no reasonably available alternatives to the publication ban;
• Whether the benefits of the publication ban significantly outweigh its negative effects.

Relying on the evidence set out in the affidavit, the court determined that there was clearly an important public interest in maintaining the safety and security of undercover RCMP officers and their families and the operational integrity of the existing investigations as well as that of future operations that may require the deployment of any or all of the undercover officers covered by the publication ban.

The court found that there were no reasonable alternative measures that could safely address the dangers posed to the public interests at stake.

  “There is evidence that the use of pseudonyms is neither desirable nor safe. Once an [officer] has been identified by name, the risks to their safety and operational utility become real. A ban on the publication of identifying information is the only effective method that can be safely deployed to protect these public interests,” the court explained.

The court ascertained that the benefits of the publication ban significantly outweighed its negative effects. The publication ban, the court noted, would assist in keeping the undercover officers and their families safe and secure from harm and maintain the operational effectiveness of the undercover officers.

Since the media has never been and would never be prevented from reporting or commenting extensively on the case, the only negative effect of the publication ban was that the public still does not know the identities of the undercover officers, the court added.

The court also ruled that the passage of time was neither a material change in circumstances nor sufficient to tip the contextual balancing that resulted in the imposition of the publication ban.