R. v. Hart

R. v. Hart
Collection
Supreme Court Judgments
Date
2014-07-31
Neutral citation
2014 SCC 52
Report
[2014] 2 SCR 544
Case number
35049
Judges
McLachlin, Beverley; LeBel, Louis; Abella, Rosalie Silberman; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard
On appeal from
Newfoundland and Labrador
Subjects
Courts
Criminal law
Notes
SCC Case Information: 35049
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544
Date: 20140731
Docket: 35049
Between:
Her Majesty The Queen
Appellant
and
Nelson Lloyd Hart
Respondent
- and -
Director of Public Prosecutions of Canada, Attorney General of Ontario, Directeur des
poursuites criminelles et pénales du Québec, Attorney General of British Columbia, Association in Defence of the Wrongly Convicted, British Columbia Civil Liberties Association, Criminal Lawyers’ Association of Ontario, Canadian Civil Liberties Association and Association des avocats de la défense de Montréal
Interveners
Coram: McLachlin C.J. and LeBel, Abella, Cromwell, Moldaver, Karakatsanis and Wagner JJ.
Reasons for Judgment:
(paras. 1 to 151)
Concurring Reasons:
(paras. 152 to 163)
Concurring Reasons:
(paras. 164 to 243)
Moldaver J. (McLachlin C.J. and LeBel, Abella and Wagner JJ. concurring)
Cromwell J.
Karakatsanis J.
r. v. hart, 2014 SCC 52, [2014] 2 S.C.R. 544
Her Majesty The Queen Appellant
v.
Nelson Lloyd Hart Respondent
and
Director of Public Prosecutions of Canada,
Attorney General of Ontario,
Directeur des poursuites criminelles et pénales du Québec,
Attorney General of British Columbia,
Association in Defence of the Wrongly Convicted,
British Columbia Civil Liberties Association,
Criminal Lawyers’ Association of Ontario,
Canadian Civil Liberties Association and
Association des avocats de la défense de Montréal Interveners
Indexed as: R. v. Hart
2014 SCC 52
File No.: 35049.
2013: December 3; 2014: July 31.
Present: McLachlin C.J. and LeBel, Abella, Cromwell, Moldaver, Karakatsanis and Wagner JJ.
on appeal from the court of appeal for newfoundland and labrador
Criminal law — Evidence — Admissibility — Confessions — “Mr. Big” confessions — Accused confessing to murdering his two young daughters at end of lengthy Mr. Big operation — Whether new common law rule of evidence should be developed to determine admissibility of Mr. Big confessions — Whether accused’s confessions should be excluded.
Courts — Proceedings — Open court principle — Accused requesting to testify with public excluded from courtroom — Trial judge refusing request — Whether exclusion order in interests of proper administration of justice — Whether failure to accommodate request necessitates new trial — Criminal Code, R.S.C. 1985, c. C‑46, s. 486(1) .
H’s twin daughters drowned on August 4, 2002. The police immediately suspected that H was responsible for their deaths. However, they lacked the evidence needed to charge him. As a result, two years after the drowning, undercover officers began a “Mr. Big” operation by recruiting H into a fictitious criminal organization. At the time, H was unemployed and socially isolated — he rarely left home and when he did, he was in the company of his wife. After he was recruited to the organization, H worked with the undercover officers and was quickly befriended by them. Over the next four months, H participated in 63 “scenarios” with the undercover officers and was paid more than $15,000 for the work that he did for the organization. As part of that work, H was also sent on several trips across Canada — to Halifax, Montreal, Ottawa, Toronto and Vancouver. H often stayed in hotels and occasionally dined in expensive restaurants during these trips, all at the fictitious organization’s expense. Over time, the undercover officers became H’s best friends and H came to view them as his brothers. According to one of the undercover officers, during this time frame, H made a bald statement in which he confessed to having drowned his daughters.
The operation culminated with a meeting akin to a job interview between H and “Mr. Big”, the man purportedly at the helm of the criminal organization. During their meeting, Mr. Big interrogated H about the death of his daughters, seeking a confession from him. After initially denying responsibility, H confessed to drowning his daughters. Two days later, H went to the scene of the drowning with an undercover officer and explained how he had pushed his daughters into the water. He was arrested shortly thereafter.
At trial, H’s confessions were admitted into evidence. The trial judge denied H’s request for permission to testify with the public excluded from the courtroom. A majority of the Court of Appeal allowed H’s appeal and ordered a new trial. The Court of Appeal unanimously held that the trial judge erred in refusing to allow H to testify outside the presence of the public. A majority of the court also concluded that the Mr. Big operation had breached H’s right to silence under s. 7 of the Charter. The majority excluded two of H’s confessions, the one to Mr. Big and the one to the undercover officer at the scene of the drowning. However, the majority concluded that H’s bald confession was admissible and ordered a new trial.
Held: The appeal should be dismissed.
Per McLachlin C.J. and LeBel, Abella, Moldaver and Wagner JJ.: There is agreement with the Court of Appeal that, in the circumstances of this case, H should have been allowed to testify outside the presence of the public.
The Mr. Big technique is a Canadian invention. Although a version of the technique appears to have been used more than a century ago, its modern use began in the 1990s and, by 2008, it had been used by police across Canada more than 350 times. The technique, used only in cases involving serious unsolved crimes, has secured confessions and convictions in hundreds of cases. The confessions wrought by the technique are often detailed and confirmed by other evidence.
However, the Mr. Big technique comes at a price. Suspects confess to Mr. Big during pointed interrogations in the face of powerful inducements and sometimes veiled threats — and this raises the spectre of unreliable confessions. Unreliable confessions provide compelling evidence of guilt and present a clear and straightforward path to conviction. In other contexts, they have been responsible for wrongful convictions — a fact we cannot ignore.
Mr. Big confessions are also invariably accompanied by evidence that shows the accused willingly participated in “simulated crime” and was eager to join a criminal organization. This evidence sullies the accused’s character and, in doing so, carries with it the risk of prejudice.
Experience in Canada and elsewhere teaches that wrongful convictions are often traceable to evidence that is either unreliable or prejudicial. When the two combine, they make for a potent mix — and the risk of a wrongful conviction increases accordingly. Wrongful convictions are a blight on our justice system. We must take reasonable steps to prevent them before they occur.
Mr. Big operations also run the risk of becoming abusive. Undercover officers provide their targets with inducements, including cash rewards, to encourage them to confess. They also cultivate an aura of violence by showing that those who betray the criminal organization are met with violence. There is a risk these operations may become coercive. Thought must be given to the kinds of police tactics we, as a society, are prepared to condone in pursuit of the truth.
Under existing law, Mr. Big confessions are routinely admitted under the party admissions exception to the hearsay rule. Attempts to extend existing legal protections to Mr. Big operations have failed. This Court has held that Mr. Big operations do not engage the right to silence because the accused is not detained by the police at the time he or she confesses. And the confessions rule — which requires the Crown to prove an accused’s statement to a person in authority is “voluntary” — is inoperative because the accused does not know that Mr. Big is a police officer when he confesses.
In sum, the law as it stands provides insufficient protection to accused persons who confess during Mr. Big operations. A two-pronged response is needed to address the concerns with reliability, prejudice and police misconduct raised by these operations.
The first prong requires recognizing a new common law rule of evidence. Under this rule, where the state recruits an accused into a fictitious criminal organization and seeks to elicit a confession from him, any confession made by the accused to the state during the operation should be treated as presumptively inadmissible. This presumption of inadmissibility is overcome where the Crown can establish, on a balance of probabilities, that the probative value of the confession outweighs its prejudicial effect.
The probative value of a Mr. Big confession is a function of its reliability. In assessing the reliability of a Mr. Big confession, courts must first look to the circumstances in which the statement was made. These circumstances include — but are not strictly limited to — the length of the operation, the number of interactions between the police and the accused, the nature of the relationship between the undercover officers and the accused, the nature and extent of the inducements offered, the presence of any threats, the conduct of the interrogation itself, and the personality of the accused, including his or her age, sophistication and mental health. The question for the trial judge is whether and to what extent the reliability of the confession has been called into doubt by the circumstances in which it was made.
After considering the circumstances in which the confession was made, the court should look to the confession itself for markers of reliability. Trial judges should consider the level of detail contained in the confession, whether it leads to the discovery of additional evidence, whether it identifies any elements of the crime that have not been made public, or whether it accurately describes mundane details of the crime the accused would likely not know had he or she not committed it. Confirmatory evidence is not a hard and fast requirement, but where it exists, it can provide a powerful guarantee of reliability. The greater the concerns raised by the circumstances in which the confession was made, the more important it will be to find markers of reliability in the confession itself or the surrounding evidence.
Weighing the prejudicial effect of a Mr. Big confession is a more straightforward and familiar exercise. Trial judges must be aware that admitting Mr. Big confessions creates a risk of moral and reasoning prejudice. With respect to moral prejudice, the jury learns that the accused wanted to join a criminal organization and committed a host of “simulated crimes” that he believed were real. Moral prejudice may increase with operations that involve the accused in simulated crimes of violence, or that demonstrate the accused has a past history of violence. As for reasoning prejudice — defined as the risk that the jury’s focus will be distracted away from the charges before the court — it too can pose a problem depending on the length of the operation, the amount of time that must be spent detailing it, and any controversy as to whether a particular event or conversation occurred. However, the risk of prejudice can be mitigated by excluding certain pieces of particularly prejudicial evidence that are unessential to the narrative, or by providing limiting instructions to the jury.
In the end, trial judges must weigh the probative value and the prejudicial effect of the confession at issue and decide whether the Crown has met its burden. Because trial judges, after assessing the evidence before them, are in the best position to conduct this exercise, their decision to admit or exclude a Mr. Big confession will be afforded deference on appeal.
This new common law rule of evidence goes a long way toward addressing the concerns with reliability, prejudice, and police misconduct that are raised by Mr. Big operations. It squarely tackles the problems with reliability and prejudice. In addition, it takes account of police misconduct both by placing the admissibility onus on the Crown and by factoring the conduct of the police into the assessment of a Mr. Big confession’s probative value. However, the common law rule of evidence I have proposed does not provide a complete response to the problems raised by Mr. Big operations. On its own, it might suggest that abusive police conduct will be forgiven so long as a demonstrably reliable confession is ultimately secured.
The second prong of the response fills this gap by relying on the doctrine of abuse of process. The doctrine of abuse of process is intended to guard against state misconduct that threatens the integrity of the justice system and the fairness of trials.
Trial judges must be aware that Mr. Big operations can become abusive. It is of course impossible to set out a precise formula for determining when a Mr. Big operation will reach that threshold. But there is one guideline that can be suggested. In conducting an operation, the police cannot be permitted to overcome the will of the accused and coerce a confession. This would almost certainly amount to an abuse of process. While violence and threats of violence are two forms of unacceptable coercion, operations can become abusive in other ways. Operations that prey on an accused’s vulnerabilities, such as mental health problems, substance addictions, or youthfulness, can also become unacceptable.
Unsurprisingly, the trial judge did not apply this two pronged framework in determining the admissibility of H’s confessions. Nor did the parties address it in the courts below or before this Court. Nonetheless, this Court is in a position to decide whether the respondent’s confessions were properly admitted. Although a new rule has emerged, the issues have not changed: the reliability of H’s confessions, their potential for prejudice, and the conduct of the police in carrying out this Mr. Big operation have been in issue from the outset. The parties have addressed these issues, and there is a substantial record before us. These proceedings have also been difficult and protracted. More than a decade has passed since H’s daughters died. Ordering a new trial and leaving the admissibility of H’s confessions to be determined by a new trial judge would be tantamount to sending this case back to square one. That would not be in the interests of justice.
Applying the new common law rule to the three confessions attributed to H, it is apparent that their probative value does not outweigh their prejudicial effect. At the time the operation began, H was unemployed and socially isolated. The operation had a transformative effect on his life, lifting him out of poverty and providing him with illusory friendships. These financial and social inducements provided H with an overwhelming incentive to confess — either truthfully or falsely.
Nor do the confessions themselves contain any markers of reliability that are capable of restoring faith in their reliability. The confessions contain internal contradictions, and there is no confirmatory evidence capable of verifying any of the details contained within the confessions. When the circumstances in which the respondent’s confessions were made are considered alongside their internal inconsistencies and the lack of any confirmatory evidence, their reliability is left in serious doubt.
On the other hand, these confessions — like all Mr. Big confessions — carried with them an obvious potential for prejudice. The jury heard extensive evidence that for four months H devoted himself to trying to join a criminal organization and that he repeatedly participated in what he thought were criminal acts. It is easy to see how the jury could come to view H with disdain. Here was a man who bragged about killing his three-year-old daughters to gain the approval of criminals. The potential for prejudice in these circumstances was significant.
On balance, the Crown has not met its onus. The probative value of H’s confessions does not outweigh their prejudicial effect. Put simply, these confessions are not worth the risk they pose. It would be unsafe to rest a conviction on this evidence. It is accordingly unnecessary to decide whether the police conduct amounted to an abuse of process.
Having excluded H’s confessions from evidence, it is doubtful whether any admissible evidence remains upon which a jury, properly instructed and acting reasonably, could convict H of murder. However, the final decision on how to proceed rests with the Crown.
Per Cromwell J.: There is agreement with the majority’s analysis of the legal framework that ought to apply to statements obtained from accused persons as a result of Mr. Big operations. However, the admissibility of H’s statements to the undercover officers ought to be determined at a new trial where the judge and the parties would have the benefit of the new framework set out in the majority’s reasons.
Per Karakatsanis J.: Confessions to state agents raise particular dangers for the criminal justice system. The very structure of Mr. Big operations creates circumstances that (1) compromise the suspects’ autonomy, (2) undermine the reliability of confessions, and (3) raise concerns about abusive state conduct. Yet, Mr. Big confessions are not caught by the traditional rules governing confessions to the state, such as the confessions rule or the right to silence. The common law rule proposed by the majority fails to consistently take into account broader concerns that arise when state agents generate a confession at a cost to human dignity, personal autonomy and the administration of justice. The principle against self-incrimination, under s. 7 of the Charter, provides comprehensive and flexible protection in such circumstances.
The principle against self-incrimination provides the appropriate analytical framework for several reasons. First, Mr. Big operations directly engage the individual privacy, autonomy and dignity interests that the principle is meant to protect. Second, this approach draws on existing jurisprudence concerning the principle against self-incrimination, making it unnecessary to create a new rule. Third, the principle provides an opportunity to weigh intertwined concerns about reliability, autonomy and state conduct together in a nuanced way. Finally, it addresses suspects’ rights both during the operation and at trial.
In R. v. White, [1999] 2 S.C.R. 417, this Court identified four factors for determining whether the principle against self-incrimination has been violated by the production or use of a suspect’s statements: adversarial relationship; coercion; reliability; and abuse of state power. While these factors should be considered together, each emphasizes a particular legal interest.
The onus will be on the accused to establish a prima facie breach of the principle against self-incrimination. To do so, the accused must show that concerns about autonomy, reliability, and police conduct exist, as they will in nearly every Mr. Big operation. In such circumstances, the burden will shift to the Crown to establish that there is no breach.
As concerns the first factor, the relationship between H and the state was adversarial. As in any Mr. Big operation, the police deliberately set out to obtain a confession from him.
As for the second factor, coercion is primarily concerned with the autonomy and dignity of the suspect and asks whether the suspect had a choice to speak to the authorities. There will almost always be some degree of coercion in a Mr. Big operation. The court should consider: the magnitude and duration of the operation, any explicit or implied threats used, any financial, social or emotional inducements applied, and the characteristics of the suspect, including any mental, physical, social or economic disadvantages. This approach protects the autonomy of the suspect.
In this case, the trial judge concentrated on the lack of violent coercion during the operation, but did not consider the effect of the financial and social inducements on H. These inducements were significant by anyone’s measure, but must be viewed as more seriously infringing H’s autonomy interests, given his extreme poverty and social isolation as well as his lack of education. The deceit employed was extensive. By preying on his vulnerabilities to such a degree, the police deprived H of meaningful choice about whether to give an incriminating statement to Mr. Big.
The reliability enquiry focuses on the trustworthiness of any statement obtained. The court must execute a gatekeeper function in assessing the risk of a false confession and corroborating evidence will usually be a prerequisite to admission. This function is important because juries often struggle to properly assess the ultimate reliability of Mr. Big confessions. They find it difficult to believe that someone would confess to a crime that he or she did not commit and are loath to disregard a confession even where it is known to be coerced. This danger is compounded by the criminal propensity evidence generated during a Mr. Big investigation. An accused must either let the confession stand or explain that he or she made it to continue their new criminal lifestyle. Thus, confessions made to Mr. Big are particularly hazardous and the judge must evaluate their threshold reliability to satisfy the principle against self-incrimination. Generally, an uncorroborated, unverified confession will not be sufficiently reliable and will be inadmissible. However, the inverse does not necessarily hold. The principle against self-incrimination is not solely concerned with ensuring reliable statements; even true statements may be excluded if they were obtained through coercion that overrode the suspect’s autonomy interest.
In this case, H had every incentive to confess, whether he committed the crime or not. Not only was his final confession uncorroborated, but it contained inconsistencies with the other known facts of the case. Likewise, H’s April 10 confession carries many of the same reliability concerns.
Under the fourth and final factor, the conduct of the state is examined with a view to determining whether the authorities used their position of power in an unfair, abusive, or shocking manner. State conduct throughout a Mr. Big operation must be scrutinized to determine whether it unfairly, unnecessarily or disproportionately manipulated the suspect. This inquiry will also consider other objectionable police tactics such as involving the suspect in dangerous conduct or exposing him or her to physical or psychological harm. The entrapment doctrine assists by identifying factors which may be considered in examining the conduct of the state.
In this case, the police conduct was egregious and this factor especially weighs in favour of exclusion. The extreme lengths to which the police went to pursue H, exploiting his weaknesses in this protracted and deeply manipulative operation, is troubling. This was not the usual undercover investigation where police join an existing criminal organization to witness criminals in action. This case is more akin to entrapment.
The court should consider these factors collectively, attaching weight to them, depending on the degree to which they are present in the individual case. The four factors above clearly point to a s. 7 violation. Statements obtained in violation of the principle against self-incrimination will almost always be excluded under s. 24(2). This case is no exception; both the risk of a miscarriage of justice and the abusive police conduct call for exclusion.
The abuse of process doctrine always remains independently available to provide a remedy where the conduct of the state rises to such a level that it risks undermining the integrity of the judicial process. In this case, the threshold is met.
Cases Cited
By Moldaver J.
Distinguished: R. v. White, [1999] 2 S.C.R. 417; referred to: Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; R. v. Todd (1901), 4 C.C.C. 514; R. v. Hathway, 2007 SKQB 48, 292 Sask. R. 7; R. v. Copeland, 1999 BCCA 744, 131 B.C.A.C. 264; R. v. Bates, 2009 ABQB 379, 468 A.R. 158; R. v. Evans, [1993] 3 S.C.R. 653; R. v. Osmar, 2007 ONCA 50, 84 O.R. (3d) 321; R. v. McIntyre, [1994] 2 S.C.R. 480; R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27; R. v. Creek, 1998 CanLII 3209; R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3; R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908; R. v. Hodgson, [1998] 2 S.C.R. 449; R. v. Harrer, [1995] 3 S.C.R. 562; R. v. Mohan, [1994] 2 S.C.R. 9; R. v. McIntyre, 1993 CanLII 1488; R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330; R. v. Humaid (2006), 81 O.R. (3d) 456; R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787; R. v. Bonisteel, 2008 BCCA 344, 259 B.C.A.C. 114; R. v. Mack, [1988] 2 S.C.R. 903; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309; R. v. Fliss, 2002 SCC 16, [2002] 1 S.C.R. 535; R. v. Singh, 2013 ONCA 750, 118 O.R. (3d) 253; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Rothman v. The Queen, [1981] 1 S.C.R. 640; R. v. Jones, [1994] 2 S.C.R. 229; R. v. S. (R.J.), [1995] 1 S.C.R. 451; British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3.
By Karakatsanis J.
Referred to: R. v. McIntyre, [1994] 2 S.C.R. 480, aff’g (1993), 135 N.B.R. (2d) 266; R. v. Hodgson, [1998] 2 S.C.R. 449; R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27; R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3; R. v. White, [1999] 2 S.C.R. 417; R. v. Jones, [1994] 2 S.C.R. 229; R. v. P. (M.B.), [1994] 1 S.C.R. 555; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. Harrer, [1995] 3 S.C.R. 562; Rothman v. The Queen, [1981] 1 S.C.R. 640; R. v. S. (R.J.), [1995] 1 S.C.R. 451; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787; R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720; R. v. Osmar, 2007 ONCA 50, 84 O.R. (3d) 321, leave to appeal refused, [2007] 2 S.C.R. vii; R. v. Bonisteel, 2008 BCCA 344, 259 B.C.A.C. 114; R. v. Mack, [1988] 2 S.C.R. 903; R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309; R. v. Therens, [1985] 1 S.C.R. 613; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7 , 10 (b), 11 (d), 24 .
Criminal Code, R.S.C. 1985, c. C‑46, s. 486(1) .
Authors Cited
Black’s Law Dictionary, 6th ed. St. Paul, Minn.: West, 1990, “coercion”.
British Columbia. RCMP. “Undercover Operations” (online: http://bc.cb.rcmp‑grc.gc.ca/ViewPage.action?siteNodeId=154&languageId=1&contentId=6941).
Dawson, Wendy E. “The Use of ‘Mr. Big’ in Undercover Operations”, in Criminal Law: Special Issues, Paper 5.2. Vancouver: Continuing Legal Education Society of British Columbia, 2011.
Garrett, Brandon L. “The Substance of False Confessions” (2010), 62 Stan. L. Rev. 1051.
Kassin, Saul M., et al. “Police‑Induced Confessions: Risk Factors and Recommendations” (2010), 34 Law & Hum. Behav. 3.
Keenan, Kouri T., and Joan Brockman. Mr. Big: Exposing Undercover Investigations in Canada. Halifax: Fernwood Publishing, 2010.
Martin, G. A. “The Admissibility of Confessions and Statements” (1963), 5 Crim. L.Q. 35.
Moore, Timothy E., Peter Copeland and Regina A. Schuller. “Deceit, Betrayal and the Search for Truth: Legal and Psychological Perspectives on the ‘Mr. Big’ Strategy” (2009), 55 Crim. L.Q. 348.
Paciocco, David. “Charter Tracks: Twenty‑Five Years of Constitutional Influence on the Criminal Trial Process and Rules of Evidence” (2008), 40 S.C.L.R. (2d) 309.
Paciocco, David M., and Lee Stuesser. The Law of Evidence, 6th ed. Toronto: Irwin Law, 2011.
Stewart, Hamish. Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms. Toronto: Irwin Law, 2012.
APPEAL from a judgment of the Newfoundland and Labrador Court of Appeal (Green C.J.N.L. and Harrington and Barry JJ.A.), 2012 NLCA 61, 327 Nfld. & P.E.I.R. 178, 1015 A.P.R. 178, 267 C.R.R. (2d) 29, 97 C.R. (6th) 16, [2012] N.J. No. 303 (QL), 2012 CarswellNfld 400, setting aside the accused’s convictions for first degree murder and ordering a new trial. Appeal dismissed.
Frances J. Knickle, Q.C., and Elaine Reid, for the appellant.
Jamie Merrigan and Robby D. Ash, for the respondent.
James C. Martin and Natasha A. Thiessen, for the intervener the Director of Public Prosecutions of Canada.
Michael Bernstein, for the intervener the Attorney General of Ontario.
Pierre L. Bienvenue, for the intervener Directeur des poursuites criminelles et pénales du Québec.
Lesley A. Ruzicka, for the intervener the Attorney General of British Columbia.
Russell Silverstein and Michael Dineen, for the intervener the Association in Defence of the Wrongly Convicted.
Michael Sobkin, for the intervener the British Columbia Civil Liberties Association.
Philip Campbell and Jonathan Dawe, for the intervener the Criminal Lawyers’ Association of Ontario.
Written submissions only by Frank Addario and Megan Savard, for the intervener the Canadian Civil Liberties Association.
François Dadour and Harout Haladjian, for the intervener Association des avocats de la défense de Montréal.
Marie Henein and Matthew Gourlay, for the amicus curiae.
The judgment of McLachlin C.J. and LeBel, Abella, Moldaver and Wagner JJ. was delivered by
Moldaver J. —
I. Introduction
[1] When conventional investigations fail to solve serious crimes, police forces in Canada have sometimes used the “Mr. Big” technique. A Mr. Big operation begins with undercover officers luring their suspect into a fictitious criminal organization of their own making. Over the next several weeks or months, the suspect is befriended by the undercover officers. He is shown that working with the organization provides a pathway to financial rewards and close friendships. There is only one catch. The crime boss — known colloquially as “Mr. Big” — must approve the suspect’s membership in the criminal organization.
[2] The operation culminates with an interview-like meeting between the suspect and Mr. Big. During the interview, Mr. Big brings up the crime the police are investigating and questions the suspect about it. Denials of guilt are dismissed, and Mr. Big presses the suspect for a confession. As Mr. Big’s questioning continues, it becomes clear to the suspect that by confessing to the crime, the big prize — acceptance into the organization — awaits. If the suspect does confess, the fiction soon unravels and the suspect is arrested and charged.
[3] This case provides us with an opportunity to take an in-depth look at Mr. Big confessions and the principles that should govern their admissibility. While such operations have a long history in this country, courts have yet to create a legal framework that addresses the unique issues which accompany such confessions. As we undertake that task in this case, we must strive to achieve a just balance — one which guards against the risk of wrongful convictions that stem from false confessions but which ensures the police are not deprived of the opportunity to use their skill and ingenuity in solving serious crimes.
[4] To be sure, the Mr. Big technique has proven to be an effective investigative tool. It has produced confessions and secured convictions in hundreds of cases that would otherwise have likely gone unsolved. The confessions elicited are often detailed and confirmed by other evidence. Manifestly, the technique has proved indispensible in the search for the truth.
[5] But the technique comes with a price. Suspects confess to Mr. Big during pointed interrogations in the face of powerful inducements and sometimes veiled threats — and this raises the spectre of unreliable confessions.
[6] Unreliable confessions present a unique danger. They provide compelling evidence of guilt and present a clear and straightforward path to conviction. Certainly in the case of conventional confessions, triers of fact have difficulty accepting that an innocent person would confess to a crime he did not commit. And yet our experience with wrongful convictions shows that innocent people can, and do, falsely confess. Unreliable confessions have been responsible for wrongful convictions — a fact we cannot ignore.
[7] The concern about Mr. Big confessions does not end there. The confessions are invariably accompanied by evidence that shows the accused willingly participated in “simulated crime” and was eager to join a criminal organization. This evidence sullies the accused’s character and, in doing so, carries with it the risk of prejudice. It also creates credibility hurdles that may be difficult to overcome for an accused who chooses to testify.
[8] Experience in Canada and elsewhere teaches that wrongful convictions are often traceable to evidence that is either unreliable or prejudicial. When the two combine, they make for a potent mix — and the risk of a wrongful conviction increases accordingly. Wrongful convictions are a blight on our justice system and we must take reasonable steps to prevent them before they occur.
[9] Finally, Mr. Big operations run the risk of becoming abusive. Undercover officers provide their targets with inducements, including cash rewards, to encourage them to confess. They also cultivate an aura of violence by showing that those who betray the criminal organization are met with violence. Thought must be given to the kinds of police tactics we, as a society, are prepared to condone in pursuit of the truth.
[10] Against that background, I am of the view that a principled rule of evidence is required to assess the admissibility of Mr. Big confessions. For reasons that follow, I would propose that where the state recruits an accused into a fictitious criminal organization of its own making and seeks to elicit a confession from him, any confession made by the accused to the state during the operation should be treated as presumptively inadmissible. This presumption of inadmissibility will be overcome where the Crown can establish, on balance, that the probative value of the confession outweighs its prejudicial effect. In this context, the confession’s probative value is a function of its reliability. Its prejudicial effect stems from the harmful character evidence that necessarily accompanies its admission. If the Crown is unable to demonstrate that the accused’s confession is admissible, the rest of the evidence surrounding the Mr. Big operation becomes irrelevant.
[11] Trial judges must also carefully scrutinize the conduct of the police to determine if an abuse of process has occurred. No matter how reliable the confession, the courts cannot condone state conduct — such as physical violence — that coerces the target of a Mr. Big operation into confessing. Where an accused establishes that an abuse of process has occurred, the court can fashion an appropriate remedy, including the exclusion of the confession or a stay of proceedings.
[12] In this case, at the end of a lengthy Mr. Big operation, the respondent confessed to murdering his two young daughters. At trial, his confessions were admitted into evidence. A majority of the Newfoundland Court of Appeal concluded that two of the three confessions should have been excluded, but allowed a third confession to be introduced and, on that basis, ordered a new trial.
[13] Applying the framework I propose here, I would exclude all three of the respondent’s confessions. Each of them came about in the face of overwhelming inducements. This calls into question their reliability — and there is no confirmatory evidence capable of restoring our faith in them. As such, they carry little if any probative value. On the other hand, the bad character evidence accompanying the confessions carries with it an obvious and serious potential for prejudice. In these circumstances, the prejudicial effect of the respondent’s confessions outweighs their probative value.
[14] Accordingly, I would dismiss the appeal.
II. Background Facts
[15] The facts in this case are important. I propose to review them in some detail.
A. The Deaths of Karen and Krista Hart
[16] The respondent’s three-year-old twin daughters — Karen and Krista Hart — drowned on August 4, 2002. Their deaths triggered a three-year-long investigation that culminated with the respondent confessing to their murder at the end of a protracted Mr. Big operation.
[17] The respondent was the last person to see his daughters alive. On the morning of August 4, 2002, he took them to play on the swings at a park near their home in Gander, Newfoundland. There was a lake adjacent to the park. According to his wife, the respondent returned home 30 to 45 minutes later, in a panic, and told her that Krista had fallen into the water. When his wife asked where Karen was, the respondent claimed to have forgotten her at the park.
[18] The respondent and his wife raced back to the park and an ambulance was called. First responders found Karen and Krista floating in the lake several hundred meters apart from each other. By then, it was too late to save their lives.
[19] The respondent’s unusual behaviour provoked the suspicion of the police. They questioned him that evening. The respondent said that when he got to the park and removed his daughters from their car seats, they ran onto a dock and Krista fell into the water. The respondent said he panicked because he could not swim, so he ran back to his car and drove home to get his wife, forgetting Karen on the dock. The police remained unconvinced and asked the respondent why he did not call for help using either of the cell phones that were found in his car. The respondent explained that his phone did not have any minutes on it, and that the other phone did not belong to him. He also said that he never thought of stopping at a nearby restaurant or hospital for help instead of driving all the way home to get his wife. When the police confronted him directly, the respondent denied that he had drowned his daughters.
[20] The police were convinced that the respondent killed his daughters and lied to them during his first interview. They questioned him again on September 12, 2002. During the interrogation, which lasted approximately eight hours, the police told the respondent they had no doubt about his guilt and urged him to confess. The respondent stood firm.
[21] Two weeks later, however, the respondent changed his story. He contacted the police and volunteered that he had not been truthful in his previous statements. He told the police that he had a seizure at the park after he removed his daughters from the car. When the seizure passed and he “[came] to”, he was “dopey” but he could see one of his daughters “in the water”. His only thought was to drive home to his wife. He explained that he had lied in his earlier statements because he did not want to lose his driver’s licence. The respondent suffers from epilepsy and his licence has been suspended on previous occasions because of his condition.
[22] The police remained convinced of the respondent’s guilt, but they did not have sufficient evidence to charge him. The investigation went cold.
B. The Mr. Big Operation
[23] Two years later, the police rekindled the investigation after deciding to target the respondent in a Mr. Big operation. The preliminary stages of the undercover operation began in December 2004 when officers conducted several weeks of “lifestyle” surveillance on the respondent. The surveillance revealed that the respondent was on social