Content Regulation / Censorship, Defamation / Reputation, Privacy, Data Protection and Retention
Cheshire West and Chester Council and others v. Pickthall
Closed Mixed Outcome
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The Supreme Court of Canada dismissed an appeal and restored a one-year ban on the identities of undercover police officers involved in a murder investigation. Clayton George Mentuck, who was charged with second-degree murder, was targeted by the Royal Canadian Mounted Police in an undercover operation. To protect the identities of the officers and their operational methods, Her Majesty the Queen moved for a publication ban, but the accused and two intervening newspapers opposed the motion. The Court reasoned that the publication of the officers’ identities would pose a “serious risk to the efficacy of current, similar operations” and that there is no other alternative, thus the one-year ban was necessary.
The appellant is Her Majesty The Queen and the respondent is, Clayton George Mentuck. Amanda Cook, age fourteen at the time, disappeared on July 13, 1996 from the Rossburn Harvest Fair and her body was discovered on July 17, 1996. The respondent was then charged with second-degree murder for the death of Amanda Cook on March 11, 1997 and on his first trial in March 1998, a stay of proceedings was entered after crucial evidence was ruled inadmissible.
After the first trial, the respondent was targeted by the Royal Canadian Mounted Police in an undercover operation code-named Operation Decisive. The undercover operation followed a pattern commonly employed by Canadian police. The respondent was invited by undercover officers to join a fictitious criminal organization. He was then asked to undertake certain tasks, which included counting large sums of money and delivering parcels. The respondent was then told to be honest about his involvement in the murder of Amanda Cook. When he denied involvement, he was told that the “Boss” of the organization was angry with the person who had recruited the respondent since the respondent was a liar. The respondent was still encouraged to discuss the murder honestly and that the criminal organization would arrange for a person dying of cancer to confess to the crime, and thereafter would provide assistance to the respondent in suing the government for wrongful imprisonment.
The indictment was reinstated on January 28, 1999 and the second trial commenced on January 24, 2000, before a judge and jury. In the course of opening statements, the Crown’s counsel referenced a lot of the information now sought to be suppressed. “During the trial the Crown brought a motion before the trial judge to prohibit the publication of certain facts that were to be tendered in evidence. The motion sought a ban on the publication of: (a) the names and identities of the undercover police officers [involved] in the investigation of the accused,including any likeness of the officers, appearance of their attire and physical descriptions; (b) the conversations of the undercover operators in the investigation of the accused to the extent that they disclose the matters in paragraphs (a) and (c); (c) the specific undercover operation scenarios used in
investigation. . . .” 
The respondent opposed the application for a publication ban. The trial judge refused to order the ban as to operational methods on February 2, 2000, but granted a ban as to identity limited to a period of one year. Pending the resolution of this appeal, the Supreme Court of Canada ordered a stay of the trial judge’s decision on February 7, 2000, and made an order granting the requested publication ban in full and an order sealing the affidavits filed with the trial judge. The Supreme Court of Canada also ordered that the application for leave to appeal be expedited, and leave was granted on May 25, 2000. On February 18, 2000, the trial judge ordered a mistrial as a result of a hung jury. On September 11, 2000, a third trial was commenced before a judge alone and on September 29, 2000 the respondent was acquitted of the murder of Amanda Cook.
 Pg. 448 of the decision, https://scc-csc.lexum.com/scc-csc/scc-csc/en/1917/1/document.do.
The appellant moved for a publication ban to protect the identity of the officers and the operational methods employed by those officers in the investigation during the trial. 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 remained in effect and orders granting the requested publication ban in full and sealing the affidavits filed with the trial judge were granted. A mistrial was declared in the second trial due to a hung jury and the respondent was acquitted during the third trial.
The Supreme Court of Canada (“the Court”) dismissed the appeal and restored the one-year ban regarding the identity of the undercover police officers. Furthermore, the Court stated that “[t]he ban ordered by the trial judge was properly issued and was of the appropriate scope in light of the requirements of the Charter.”  The Court reasoned that a publication ban is only necessary when it is used “to prevent a serious risk to the proper administration of justice, because reasonable alternative measures will not prevent the risk, and when the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.” 
In explaining its analysis, the Court said that the concept of necessity consists of several factors, including: “(1) the risk in question must be well-grounded in the evidence and must pose a serious threat to the proper administration of justice; (2) ‘the proper administration of justice’ should not be interpreted so widely as to keep secret a vast amount of enforcement information the disclosure of which would be compatible with the public interest; and (3) in order to reflect the minimal impairment branch of the Oakes test, the judge must consider whether reasonable alternatives are available, but he must also restrict the order as far as possible without sacrificing the prevention of the risk. Under the second branch of the analysis, the effect of the ban on the efficacy of police operations, the right of the public to freedom of expression, and the right of the accused to a public trial must be weighed.” 
In applying this analysis and reviewing these elements, the Court decided that “in this case, publication of the names and identities of the officers in question would create a serious risk to the efficacy of current, similar operations. The ban as to identity is necessary and there is no reasonable alternative. The ban was properly restricted to a period of one year but, as the circumstances of the case may change, that order will be made subject to further order of the issuing court.” 
 Pg. 443 of the decision, https://scc-csc.lexum.com/scc-csc/scc-csc/en/1917/1/document.do.
 Pg. 462 of the decision, https://scc-csc.lexum.com/scc-csc/scc-csc/en/1917/1/document.do.
 Pg. 444 of the decision, https://scc-csc.lexum.com/scc-csc/scc-csc/en/1917/1/document.do.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The outcome is mixed because while the ruling expands freedom of expression when it states that “[a] publication ban as to operational methods is unnecessary,” it also still gives limitations that (although deemed valid by the Supreme Court) contract freedom of expression regarding the publication of the names of the officers in question. 
 See quotations on page 444 of the decision, https://scc-csc.lexum.com/scc-csc/scc-csc/en/1917/1/document.do. “A publication ban as to operational methods is unnecessary. Although police operations will be compromised if suspects learn that they are targets, media publication will not seriously increase the rate of compromise. Republication of this information does not constitute a serious risk to the efficacy of police operations, and thus to that aspect of the proper administration of justice. This ground by itself is sufficient to dispose of the ban as to operational methods.” “Publication of the names and identities of the officers in question would create a serious risk to the efficacy of current, similar operations. The ban as to identity is necessary and there is no reasonable alternative. The ban was properly restricted to a period of one year but, as the circumstances of the case may change, that order will be made subject to further order of the issuing court”.
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