2015 QCCA 1517, 2015 QCCA 1517

Laflamme v. R. 2015 QCCA 1517 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL N° : 500-10-004590-103 (750-01-028300-083) DATE: September 21, 2015 CORAM: THE HONOURABLE ALLAN R. HILTON, J.A. LORNE GIROUX, J.A. JACQUES DUFRESNE, J.A. MICHEL LAFLAMME APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT [ 1 ] THE COURT: - On the appellant’s appeal from a guilty verdict on a charge of first degree murder rendered on February 10, 2010, by a jury of the Superior Court, Criminal Division, District of Saint-Hyacinthe, at which the Honourable Mr.

Justice James Brunton presided; [ 2 ] For the reasons of Dufresne, J.A., with which Hilton and Giroux, JJ.A. agree, THE COURT : [ 3 ] ALLOWS the appeal; [ 4 ] SETS ASIDE the verdict of conviction; [ 5 ] ORDERS a stay of the proceedings against Michel Laflamme file number 750-01-028300-083. ALLAN R. HILTON, J.A. LORNE GIROUX, J.A. JACQUES DUFRESNE, J.A. First hearing: Mtre Maude Pagé-Arpin For the appellant Mtre Magalie Cimon Mtre Julie Desbiens For the respondent Date of hearing: November 6, 2013

New hearing: Michel Laflamme In person Mtre Julie Desbiens Mtre Magalie Cimon For the respondent Date of hearing: April 17, 2015 REASONS OF DUFRESNE, J.A. [ 6 ] The appellant appeals from the verdict of conviction on a charge of first degree murder rendered by a jury for having caused the death of his wife, Carmen Waltz, thirty-one years ago, on December 4, 1976, in Beloeil. [ 7 ] The charge was brought following an undercover police operation known as a “Mr. Big” operation, which took place between November 28, 2007, and April 9, 2008.

A broad outline thereof follows. [ 8 ] Double agents from a joint task force of the Royal Canadian Mounted Police, the Sûreté du Québec, and the Montreal police department approached the appellant and led him to believe that he was being recruited by a criminal organization directed by a big boss (”the Organization” or “the Criminal Organization”). Obviously, the Organization was fictitious, but the appellant believed it to be real. The objective of this type of operation or investigation is to obtain confessions or, as the case may be, denials from the person suspected of committing a crime.

For it to succeed, it is important to gain the person’s trust and to forge a relationship with him. [ 9 ] To lead the appellant to believe that the Criminal Organization was serious, he was invited to witness or to play a supporting role in criminal offences that were staged but that he believed were authentic. Gradually, over time and through various scenarios of simulated offences, a relationship was forged between the appellant and the double agent with whom he collaborated most closely, whose first name was Vince. He was told that if everything went well, he would eventually meet Mr.

Big, who would decide whether to officially accept him within the Organization. During this meeting, which the appellant had fervently hoped for, Mr. Big asked him to reveal his entire past to him, including any crimes he may have committed that could eventually come back to haunt him. To encourage him to confide, Mr. Big told him that the Organization had to know to be able to help him if things went wrong or the incident became known. [ 10 ] This meeting with Mr. Big took place about four months after he began performing tasks that appeared to be related to the commission of indictable offences.

The appellant participated in forty scenarios before the staged meeting with Mr. Big (the forty-first scenario), during which he made a compromising confession. [ 11 ] This is how the appellant came to confide in Mr. Big on April 9, 2009, telling him that he killed his wife by strangling her from behind. Mr. Big then affirmed that he was satisfied with the appellant. He then asked the appellant to bring Vince, the double agent with whom he had forged close ties to the home where the crime had been committed and then to the Montenach Mall in Beloeil.

That was where he was arrested and charged with murder. [ 12 ] The appellant testified at trial to explain that his confessions were not true and that he had lied because he feared Mr. Big and the Criminal Organization. [ 13 ] Before going any further, a few explanations are in order. [ 14 ] Initially, the appeal concerned essentially the prejudicial effect of the evidence of the various scenarios of Mr. Big investigation and the impossibility of adducing certain pieces of evidence that might have suggested that a third person committed the crime contemplated in the indictment.

The appellant also argued that the fairness of the trial was compromised by the length of the pre-charge delay, the disappearance or destruction of some of the prosecution’s evidence, and the limited independent memory of some of the witnesses. [ 15 ] Later, while the present appeal was under advisement, the Supreme Court rendered two seminal judgments in Hart [1] and Mack , [2] on July 31 and September 26, 2014, respectively. These cases significantly modified the analytical framework to determine the admissibility in evidence of confessions obtained when police officers have relied on a Mr. Big operation.

Given this context, this Court decided to order a new hearing. With the agreement of the parties, a deadline was set for them to file a new factums limited to the impact of the recent Supreme Court judgments on this case and to subsequently lead their new arguments. On April 17, 2015, judgment on the appeal was again reserved. [ 16 ] A brief outline of the main facts follows. 1. BACKGROUND [ 17 ] The appellant and the victim, Carmen Waltz, were married in 1973.

The day of the tragic event, December 4, 1976, the appellant, who was 23 years old at the time, and his wife lived in a house that the appellant had built in Beloeil. They had a daughter who was eighteen months old, and Ms. Waltz was eight months pregnant.

[ 18 ] On the day of the murder, the victim was seen shopping between 2 p.m. and 3 p.m. at Zellers in the Montenach Mall in Beloeil, a shopping centre located less than two kilometres from their residence. The respondent admits that at 3:58 p.m., the victim phoned her parents from her home and spoke to her mother. The call lasted two minutes. Then, a little before 5 p.m., the appellant was the Canadian Tire store, also in the Montenach Mall. [ 19 ] Around 5 p.m., the appellant alerted passers-by in the parking lot of the Montenach Mall and asked for help for his wife, who was unconscious in his car.

A passer-by who approached the vehicle saw an open purse on the back seat and observed that its contents had been spread out over the seat. She also noted a handkerchief stained with blood that looked to her to be fresh. [ 20 ] Around 5:10 p.m., ambulance technicians arrived at the scene. According to the statement of one of them, Henri-Paul Descormiers, the victim was partially reclined in the front passenger seat, her head hanging towards the driver’s seat. A fur coat had been placed on top of her. The ambulance technician lifted the coat and observed that she was bleeding slightly from the nose.

Her face was blue and the technician saw a red mark on her neck. He observed that her sweater and bra had been pushed above her chest and that her trousers were slightly lowered. He observed that the victim’s pulse was weak. Once the victim was in the ambulance, he tried to revive her, without success. [ 21 ] A crime scene technician, David Rémillard, seized a cheque and a package of cigarettes from the back seat of the appellant’s automobile. He lifted a fingerprint from each object. After his analysis, he indicated that they were [ translation ] “good for identification”.

In his opinion, the characteristics of this print were insufficient to forward to the RCMP in Ottawa for comparison. He was nevertheless able to carry out a personal identification of the prints on the cheque: they belonged to the appellant. He was not able to identify the partial print on the pack of cigarettes. At the time, neither the appellant nor the victim smoked. [ 22 ] That night, the detectives examined the couple’s residence but found nothing abnormal. [ 23 ] Two days later, on December 6, 1976, Dr.

André Lauzon carried out an autopsy on the victim and concluded that the cause of death was asphyxiation by strangulation by means of a ligature. He was unable, however, to identify the type of ligature that had been used. [ 24 ] The detectives met with the appellant five times in the days after the incident. Although the appellant was a suspect at the time, he was never charged. A coroner’s inquest was held on March 10, 1977, but it did not lead to the identification of the murderer. [ 25 ] More than thirty-two years later, charges were brought upon the culmination of the Mr.

Big operation, after the appellant admitted his crime to the head of the fictitious organization on April 9, 2008. [ 26 ] The appellant’s confession was to the effect that he strangled his wife inside their residence, placed her in the automobile, which was in the garage, then brought her to the parking lot of the Montenach Mall with their daughter (who, it should be remembered, was only a year and a half old at the time).

He then went inside the Canadian Tire store with his daughter, and upon returning to his car, simulated the discovery of his wife’s inanimate body. [ 27 ] At trial, the appellant categorically denied that he murdered his spouse. He stated that he lied to Mr. Big under the influence of fear. His counsel at the time tried in vain to raise a doubt in the minds of the jurors as to the possibility that a third party had committed the crime. On February 10, 2010, the jury handed down a guilty verdict and the appellant was convicted of the first degree murder of his wife, Carmen Waltz. 2.

ISSUES [ 28 ] The outcome of the appeal is largely dependent on the analytical framework established by the Supreme Court in Hart and Mack , supra . It is therefore important to begin with a consideration of the grounds argued by the appellant regarding these leading cases before addressing the five grounds of appeal he initially raised. [ 29 ] In his supplementary factum, the appellant identified the following question he intended to argue, which flows directly from these two leading cases: Did the trial judge err in law by rejecting the motion to exclude the statement obtained through the Mr. Big operation?

His answer is affirmative. [ 30 ] In his supplementary factum and at the new hearing, he set out his position on this substantive issue as follows: The behaviour of the police officers in the Mr. Big operation constituted abuse of process justifying a stay of proceedings or, in the alternative, the exclusion of the confession; the prejudicial effect of admitting the scenarios of the Mr.

Big operation into evidence outweighed the probative value of the confession, thus justifying its exclusion. [ 31 ] The respondent, for its part, highlighted the factual differences between the evidence adduced in Hart and in the present case. It pointed out, among other things, the smaller number of scenarios and the fact that the appellant was less vulnerable and less dependant, while admitting that he is an introverted person and that he had become friends with Vince. It also argued that the advantages the appellant enjoyed (remuneration and reimbursement of expenses) were not considerable.

In its view, the contents of the confession were not inconsistent with the evidence gathered at the scene or earlier versions. It contended that his description of the crime scene and description of how he got rid of the ligature used to strangle the victim are plausible, adding that he imitated the crime for Mr. Big, and providing details about how the body of a person being strangled reacts. As a sign of its reliability, it notes that in the same interview, the appellant denied that he killed a couple from whom he had bought a dog some time before, although he did admit to killing his wife.

It argues that his motive, which he volunteered to reveal even though the Mr. Big never asked him, was unique but not farfetched (he said he did not want to make his parents, who were very religious, sad by telling them he was getting divorced). [ 32 ] The basic issue now before the Court must be decided before the five grounds of appeal originally raised by the appellant are addressed, to the extent that it may be necessary to do so. The first and fifth of these grounds essentially reiterate the arguments concerning the principles in Hart and Mack , supra . They are as follows:

[ translation ] 1. Did the trial judge err by dismissing the appellant’s motion to stay proceedings? In the alternative, did the trial judge err by refusing to consider the alternative remedy sought in the motion to stay proceedings, i.e. the exclusion of the appellant’s statement to Mr. Big? 2. Did the judge err by denying the appellant the right to cross-examine the police officers on the circumstances surrounding the destruction of the police investigation notes, thereby depriving the applicant of the possibility of challenging the reliability and thoroughness of the investigation? 3.

Did the judge err by admitting significant evidence of bad character that was prejudicial to the appellant by way of the Mr. Big operation scenarios that were adduced? 4. Did the judge err by dismissing the Grandinetti application seeking to establish the fact that, during their investigation of the murder at the time, the detectives had become interested in a third person, who moreover had admitted to committing the crime? 5.

Did the judge err by dismissing the second application for a stay of proceedings, since, despite the lesser relief granted, the appellant’s rights to a fair trial and to make full answer and defence had been violated during his trial, thereby giving rise to the possibility of an error of law? [ 33 ] During the initial hearing of the appeal, the appellant consolidated the first three any the fifth ground in his oral arguments, drawing attention to the judge’s errors and the elements that in his view compromised the fairness of the trial to the point that the curative proviso in sub-paragraph 686(1)( b )(iii) of the Criminal Code could not apply.

On the basis of these grounds, he concluded that the only correct outcome in the circumstances was a new trial. With regard to the fourth ground (the Grandinetti application), he referred the Court to the arguments in his factum. 3. ANALYSIS [ 34 ] All Mr. Big operations are similar. In Hart and Mack , supra , Moldaver J., for the judges in the majority, set out a two-pronged analytical approach to preserve the right to a fair trial and ensure the integrity of the justice system.

The admission of the confession into evidence and “a more robust conception of the doctrine of abuse of process” [3] are the constituent principles of this new analytical framework. The recommended approach “is also consistent with the demands of the principle against self-incrimination. The principle against self-incrimination has two purposes: protecting against abusive state conduct, and guarding against unreliable confessions”. [4] [ 35 ] In short, does the probative value of the confession outweigh its prejudicial effect and, if so, was the police conduct abusive?

A negative answer to the first question leads to the exclusion of the evidence, while an affirmative answer to the second question may result in the exclusion of the confession or in a stay of proceedings. The order of analysis of these questions may be reversed. [ 36 ] It is common ground in this case that, if the confession is excluded, the remaining evidence is insufficient to obtain a guilty verdict. Indeed, the judge stated as much in his charge to the jury: [ translation ] For the Crown to be successful, you must conclude beyond any reasonable doubt that you believe his confessions.

If you have a doubt that the confessions... and if you have a reasonable doubt that the confessions are true, it is your duty to acquit Mr. Laflamme because there was not enough evidence gathered at the time to justify a conviction. [ 37 ] The respondent also acknowledged this in appeal. It stated that if the Court concluded that the confession was inadmissible (because of its unreliability or due to abuse of process), there should be an acquittal because there is [ translation ] “nothing else”.

Nevertheless, it added that if the instructions to the jury are found to be insufficient, a new trial should be ordered. [ 38 ] Our analysis follows. 3.1 The applicable law [ 39 ] In the two cases referred to above, the Supreme Court described the main components of the analytical approach it established: the first is a new rule of evidence to determine whether a confession resulting from a Mr.

Big operation is admissible, and the second is a more robust concept of the doctrine of abuse of process to address the problem of reprehensible behaviour on the part of police officers. [5] It is important here to repeat large portions of the two prongs of this approach, although I believe appropriate in this case to reverse the order and consider first whether there was abuse of process arising from the police conduct. Moldaver J. refers to this possibility in his reasons: [89] In practice, this two-pronged approach will necessitate that a voir dire be held to determine the admissibility of Mr. Big confessions.

The Crown will bear the burden of establishing that, on balance, the probative value of the confession outweighs its prejudicial effect, and it will be for the defence to establish an abuse of process. Trial judges may prefer to begin their analysis by assessing whether there has been an abuse of process.

A finding of abuse makes weighing the probative value and prejudicial effect of the evidence unnecessary . [6] [ 40 ] But first, we must review the applicable principles. 3.1.1 The new rule of evidence [ 41 ] The first prong of the approach enshrines a new rule of evidence to determine whether a confession obtained through a Mr. Big operation is admissible ( Hart at para. 87). Confessions obtained this way are presumed to be inadmissible. This presumption may be rebutted, however, if the Crown establishes, on a balance of probabilities, that the probative value of the confession outweighs its

prejudicial effect: [85] The first prong recognizes a new common law rule of evidence for assessing the admissibility of these confessions. The ruleoperates as follows: Where the state recruits an accused into a fictitious criminal organization of its own making and seeks to elicit aconfession from him, any confession made by the accused to the state during the operation should be treated as presumptivelyinadmissible. This presumption of inadmissibility is overcome where the Crown can establish, on a balance of probabilities, that theprobative value of the confession outweighs its prejudicial effect.

In this context, the confession’s probative value turns on an assessmentof its reliability. Its prejudicial effect flows from the bad character evidence that must be admitted in order to put the operation and theconfession in context. If the Crown is unable to demonstrate that the accused’s confession is admissible, the rest of the evidencesurrounding the Mr. Big operation becomes irrelevant and thus inadmissible.

This rule, like the confessions rule in the case ofconventional police interrogations, operates as a specific qualification to the party admissions exception to the hearsay rule. [Footnoteomitted.][7] [42] To decide whether the confession is reliable, the circumstances leading up to it must be considered: [102] Confessions derive their persuasive force from the fact that they are against the accused’s self-interest. People do not normallyconfess to crimes they have not committed (Hodgson, at para. 60). But the circumstances in which Mr. Big confessions are elicited canundermine that supposition.

Thus, the first step in assessing the reliability of a Mr. Big confession is to examine those circumstances andassess the extent to which they call into question the reliability of the confession.

These circumstances include — but are not strictlylimited to — the length of the operation, the number of interactions between the police and the accused, the nature of the relationshipbetween the undercover officers and the accused, the nature and extent of the inducements offered, the presence of any threats, theconduct of the interrogation itself, and the personality of the accused, including his or her age, sophistication, and mental health.[8] [43] There are two ways to establish reliability: [100] What factors are relevant in assessing the reliability of a Mr. Big confession?

A parallel can perhaps be drawn between theassessment of “threshold reliability” that occurs under the principled approach to hearsay. Under the principled approach, hearsaybecomes admissible where it is both necessary and reliable. Reliability can generally be established in one of two ways: by showing thatthe statement is trustworthy, or by establishing that its reliability can be sufficiently tested at trial (R. v. Khelawon, 2006 SCC 57, [2006]2 S.C.R. 787, at paras. 61-63).

The latter route to reliability is often met through an opportunity to cross-examine the hearsay declarant,but this has no application in the present context because the accused is not a compellable witness.[9] [44] Finally, indications of reliability must be sought in the confession itself: [105] After considering the circumstances in which the confession was made, the court should look to the confession itself formarkers of reliability.

Trial judges should consider the level of detail contained in the confession, whether it leads to the discovery ofadditional evidence, whether it identifies any elements of the crime that had not been made public (e.g., the murder weapon), or whetherit accurately describes mundane details of the crime the accused would not likely have known had he not committed it (e.g., the presenceor absence of particular objects at the crime scene). Confirmatory evidence is not a hard and fast requirement, but where it exists, it canprovide a powerful guarantee of reliability.

The greater the concerns raised by the circumstances in which the confession was made, themore important it will be to find markers of reliability in the confession itself or the surrounding evidence.[10] [Emphasis added.] [45] Such are the parameters of the first prong of the analytical approach established by the Supreme Court.

The framework of thesecond prong of this approach will now be considered. 3.1.2 The doctrine of abuse of process [46] The police conduct must be thoroughly examined to ensure that it was not reprehensible and did not result in an abuse of process.No matter how reliable a confession is, in the context of a Mr.

Big operation, it cannot be held against an accused if state action, such asthe use of violence, compelled the suspect to confess. [47] In Hart, supra, Moldaver J. describes the function of the doctrine of abuse of process: [111] The rule of evidence I have proposed goes a long way toward addressing all three of the concerns raised by Mr. Big operations. Itsquarely tackles the problems they raise with reliability and prejudice.

And it takes significant account of the concern regarding policemisconduct 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. [112] I should not, however, be taken as suggesting that police misconduct will be forgiven so long as a demonstrably reliableconfession is ultimately secured. That state of affairs would be unacceptable, as this Court has long recognized that there are “inherentlimits” on the power of the state to “manipulate people and events for the purpose of . . . obtaining convictions” (R. v.

Mack, (SCC), [1988] 2 S.C.R. 903, at p. 941). [113] In my view, this is where the doctrine of abuse of process must serve its purpose. After all, the doctrine is intended to guardagainst state conduct that society finds unacceptable, and which threatens the integrity of the justice system (R. v. Babos, 2014 SCC 16,[2014] 1 S.C.R. 309, at para. 35).

Moreover, the doctrine provides trial judges with a wide discretion to issue a remedy — including theexclusion of evidence or a stay of proceedings — where doing so is necessary to preserve the integrity of the justice system or thefairness of the trial (ibid., at para. 32). The onus lies on the accused to establish that an abuse of process has occurred. [114] I acknowledge that, thus far, the doctrine has provided little protection in the context of Mr. Big operations. This may be due inpart to this Court’s decision in R. v.

Fliss, 2002 SCC 16, [2002] 1 S.C.R. 535, where Binnie J., writing for the majority, described the Mr.Big technique as “skillful police work” (para. 21). But the solution, in my view, is to reinvigorate the doctrine in this context, not to

search for an alternative framework to guard against the very same problem. The first step toward restoring the doctrine as an effective guard against police misconduct in this context is to remind trial judges that these operations can become abusive, and that they must carefully scrutinize how the police conduct them. [115] It is of course impossible to set out a precise formula for determining when a Mr. Big operation will become abusive. These operations are too varied for a bright-line rule to apply. But there is one guideline that can be suggested. Mr. Big operations are designed to induce confessions.

The mere presence of inducements is not problematic ( Oickle , at para. 57). But police conduct, including inducements and threats, becomes problematic in this context when it approximates coercion. In conducting these operations, 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. [116] Physical violence or threats of violence provide examples of coercive police tactics.

A confession derived from physical violence or threats of violence against an accused will not be admissible — no matter how reliable — because this, quite simply, is something the community will not tolerate (see, e.g., R. v. Singh , 2013 ONCA 750 , 118 O.R. (3d) 253). [ 48 ] Violence and threats of violence are two forms of unacceptable coercion, but they are not the only ones.

For example, an operation preying on a suspect’s vulnerabilities in certain respects may also constitute unacceptable coercion equivalent to abuse. [11] [ 49 ] Now that the characteristics of the analytical framework are clearly defined, they may be applied to the facts of the case, after first considering whether the conduct of the police officers in the Mr.

Big operation constituted or amounted to abuse of process. 3.2 Application to the facts 3.2.1 Conduct of the police officers [ 50 ] An application of these principles to the facts of the case makes it clear that a stay of proceedings is the appropriate remedy. Here is why. [ 51 ] The Mr. Big operation took place over four months. During that time, the appellant took

part in forty scenarios before meeting with the head of the Organization, which had all the appearance of a criminal organization. It was during the forty-first scenario, the final situation staged to obtain a confession that the appellant confessed to murdering his wife thirty-one years earlier. [ 52 ] As is customary in this type of secret police investigation, the appellant was encouraged to gradually forge increasingly close ties with an undercover agent, who in this case went by the fictional name of Vince.

The objective of the first scenarios was to establish contact with the appellant and, most importantly, to create a relationship of trust between the two men. At first, Vince asked the appellant to do jobs that were not particularly important, such as deliver documents. The appellant, who was low in funds and had the ambition – if not the financial means – to set up a business, was paid for his services, receiving about $12,000 in five months. [ 53 ] Then, little by little, the services he was asked to render for the Organization for remuneration started to include criminal elements.

He essentially ignored activities that were clearly suspect. Occasionally, he witnessed members of the Organization, including Vince, threatening debtors or members of the Organization with violence, or was present when violent acts were or appeared to have been committed, and he did not object. In some cases he even agreed with the reasons Vince or the Organization gave for resorting to intimidation or violence. [ 54 ] As the operation continued, the appellant increasingly considered Vince to be a true friend, something he had never really had in his life.

His desire to be part of the same organization as Vince, his trusted friend, gradually increased. By the time he met Mr. Big, this friendship clearly meant a lot to him. [ 55 ] Described in broad strokes, the operation carried out in this case resembles many others in several respects. The type is well known and the modus operandi is essentially the same, with only a few slight variations. [ 56 ] While a Mr.

Big operation does not in itself constitute an abuse of process, as the Supreme Court decided in Hart and Mack , supra , it may become abusive if the conduct of the police officers is so reprehensible as to be intolerable. In this case, the use of physical violence against a member of the Organization even though that person had provided good service, as well as Mr. Big’s barely veiled threat of violence against Vince if the appellant was not transparent, are two particularly striking incidents leading to the conclusion that the murder confession was obtained by coercion.

To paraphrase Moldaver J. in Hart , however reliable the confession may be, the courts – or in this case, this Court – cannot condone such state conduct. [12] The account of the actions of the undercover agents that eventually drew out the confession justifies the conclusion that they have brought the administration of justice into disrepute. I also consider it necessary to provide a more detailed narrative of these events to place them in the context of the conditioning that took place through the forty scenarios preceding the final meeting with Mr. Big. [ 57 ] The first scenarios were not serious.

Their primary purpose was to forge a connection between Vince and the appellant and, most importantly, to allow Vince gain the appellant’s trust. Vince easily achieved his goal, as the appellant strongly identified with him. He hung on his every word and soon became his companion. Eventually, he began sharing the values of the organization to which the man he considered his new friend belonged. He openly professed this to Mr. Big. [ 58 ] The first scenario was simply to establish contact. Vince, who pretended that his car had broken down, asked the appellant for help.

He soon mentioned that he was looking for temporary storage. The appellant apparently suggested that Vince use his stable for this purpose. On several occasions after that, Vince asked him to transport merchandise from one city to another, which the appellant happily agreed to do. He did not always know what was in the truck or, later, the briefcase he was given. [ 59 ] The ninth scenario comprised two separate episodes. First, he transported air conditioners that had been stored in his stable near Drummondville to Saint-Jérôme.

Then, at Vince’s request, he agreed to observe from a distance the reactions and behaviour of one of Vince’s new clients, who was in a bar at the time. During this scenario, the appellant said to Vince, [ translation ] “Maybe you’ve killed

somebody or other, but I don’t care, it doesn’t bother me, it’s none of my business”. This is a sign suggesting that the appellant had already perceived that Vince’s activities were illegitimate. [ 60 ] The following scenarios, in which the appellant carried out Vince’s orders, are of the same nature: the transportation of merchandise or documents, the storage of merchandise at the appellant’s residence, the movement of vehicles, and on one occasion the collection of a vehicle from a bad debtor, which he picked up in Quebec City and brought to Laval.

During the tenth scenario, the appellant and Vince discussed weapons. Two scenarios later, he saw one of Vince’s employees give him $12,000. During the fifteenth scenario, in the appellant’s presence, Vince gave a client two hours to pay him the $15,000 he owed. The debtor made the payment. At Vince’s request, the appellant counted the money to be sure it was all there. On that occasion, they discussed tax evasion.

During their conversation, the appellant told Vince that his wife was murdered in 1976, that he had nothing to do with her murder, and that he had not been charged with the crime. [ 61 ] One of the activities during the seventeenth scenario is important, particularly in light of subsequent scenarios, one of which involved a scene of violence and serious threats against someone working for the Organization. In this staged scenario, this person, a supposed bank employee named Caroline – but in reality an undercover agent – carried out a credit card transaction with Vince in the appellant’s presence.

She was obviously a collaborator with the Organization. [ 62 ] In the following scenario, the appellant picked up the car belonging to Mr. Big’s wife in Montebello and drove it to Pierre Elliot Trudeau Airport in Montreal. In the twentieth scenario, Vince told him that he was about to carry out a more delicate operation involving the transportation of fifty cases of cigarettes to Rivière-du-Loup. The appellant counted the proceeds from this transaction, which amounted to $50,000. In the following scenario, he witnessed Caroline hand Vince three hundred credit cards.

Vince gave them to one of the Organization’s clients in exchange for $300,000, which the appellant counted. Caroline was then paid $60,000. [ 63 ] The appellant, a big hockey fan who did not have the money to buy tickets to a game at the Bell Centre, was invited to attend a Canadiens match. In addition, when he met Mr.

Big, the latter told him that he thought he would be able to offer him the use of a loge to watch hockey games the next season, which must have been an attractive offer for the appellant. [ 64 ] The appellant then picked up a truck containing alcoholic beverages, which he brought from Mont-Laurier to Mascouche. On that occasion, the appellant and Vince once again had a conversation about weapons. The appellant confessed that he was interested in weapons. During the following scenarios, at Vince’s request, he replaced a member of the Organization during a surveillance operation. He then transported some diamonds.

On that occasion, he stated that he would like to get a weapon and that he used to have one. During the following scenario, he witnessed the sale of weapons that he had carried by bus between Longueil metro station and Gatineau. His interest in weapons was thus renewed. [ 65 ] The twenty-ninth scenario involved the first scene of violence. The appellant was with Vince, who was paying a visit to a bad debtor. The appellant had to keep watch outside a motel room as he listened to Vince beating up the bad debtor.

In his testimony, Vince explained that this scenario was planned to make the simulated violence credible, using blood, among other things. The undercover agent playing the role of the bad debtor had told Vince that he could give him a real punch. Vince put a bit of blood on his hand so that the appellant would see it, making the staged event appear even more serious. An excerpt from Vince’s testimony reveals the level of violence used in this episode: [ translation ] So Éric opened the door and at that moment, I jumped on Éric.

I jumped on him, I grabbed him by the throat, I hit him in the face and then we fell to the ground together. ... So I sat top of him, and I screamed at him, I insulted him. I don’t have the exact words, but I said something like, “Hey asshole, you owe me money. I found you. You thought we weren’t gonna find you”, et cetera, et cetera. I was yelling at him really loud and then, as I was yelling at him, well, we were checking that... Michel’s door wouldn’t open. We had ... we took some blood in a... in a little vial. So Éric put some on himself. I put a bit on my hands. ... Michel came in... came inside with a bag.

I said, “Look inside”. So he looked, he saw that there was money in there. At that moment, Éric was on the ground, in a ball, as if... like a guy who’d been beaten up. And then, at that moment, I said...

I told Michel, “Watch him while... while I wash my hands”. [Unedited reproduction of transcript.] [ 66 ] During his testimony, the handler, i.e. the undercover agent directing the undercover operation by drawing up scenarios and managing the agents, among other tasks, explained that this scenario was used to demonstrate that the Organization could use violence against its debtors: [ translation ] What were the goals of this scenario? A.

It was to increase the relationship of trust and to elevate the level of activities; to show him that we did more than just transport stuff, when people owed us money, we used methods, we took measures to... people who owed us money, we took measures to get paid. [ 67 ] Finally, during this episode, the appellant collected $20,000 from the bad debtor’s vehicle. Although it was established that the debtor owed only $15,000, Vince and the appellant left with all of the money they retrieved from the vehicle.

[ 68 ] The following scenarios involve, in one case, the transportation of weapons near the border and their surveillance and, in the other, the transportation of explosives and detonators. Clearly, the appellant must have known that he was being paid to take

part in the illegal activities of the Organization to which Vince belonged. It was increasingly obvious that he very much wanted to be part of this organization, but the people directing the operation had not yet finished setting the stage. [ 69 ] Events began to unfold quickly. During scenario 35, which included scenes of violence and serious threats, the appellant once again met Caroline, the bank employee who collaborated with the Organization, who had previously provided the Organization with credit cards. Vince claimed that she owed the Organization money and that she had [ translation ] “started talking”.

During this scenario, the appellant was driving the car, and Vince was sitting in the back seat with Caroline beside him. Vince suddenly grabbed her by the throat, made serious threats, and pointed a 9 mm gun at her face. He then brutally threw her from the vehicle. This extremely violent scene did not go unnoticed by the appellant. Here is the description of the scenario Vince provided at trial: [ translation ] I said, “look, exactly, we are going to go see... we are going to see a princess”. I told him, “She owes us money, and she’s started talking”. ...

So we were parked and I asked Michel, I said, “Look underneath the driver’s seat...- I said - ... give me the bag that’s there”. Michel gave me the bag. Inside the bag, in the back seat I took out a handgun, a 9 millimetre, a firearm. I got into the back seat and I cycled the 9 millimetre as though I was loading the handgun. Obviously, there were no bullets in it, but I simulated loading the 9 millimetre. So we waited... we waited a few moments. And then, after that, the girl... the girl from the bank arrived and I signalled that she should come sit in the back.

At that moment, I asked Michel to drive, I said, “Drive, just drive around”. So, right away, she sat in the back, she said, “Hey! I’m sorry, I know that I owe you money...” Right away, I said to her, I stopped and I said, “Shhh, don’t talk”. Then we started moving. We parked... At a certain point, Michel parked a little further away. I signalled... I signaled the girl, I said, “Look... - I said - ... Ssh, don’t talk, don’t talk, come closer”. I put myself at an angle that Michel could see in the rear view mirror. I looked, I saw Michel’s eyes and then I made...

I made a signal to come, I said, “Come closer, closer, closer”. She came very close to me and then I grabbed her by the throat. I took her by the throat, I pushed her into the corner of the car and then... and then I insulted her, I swore at her. In short, whatever could be said, well... I don’t have the exact words, but overall, I called her a “bitch”. I said, “You bitch, you owe us money. And you’re blabbing, you need to shut your mouth”, et cetera, et cetera. I insulted her, I pushed her to the corner of the car, I grabbed her by the throat, and then at a certain point, I went to get my gun. I took my gun.

And then, I was at an angle, that... Michel, he was in the front, he was still at the wheel. I got into position, I grabbed her throat again, then at a certain point I said, “You like having a (inaudible) of metal in your mouth, you bitch?” And then I insulted her. And then I said, “You’re going to stop talking. You owe us money, you bitch”, and then... Then she screamed, she screamed; she acted like she couldn’t speak. Then I went even further, I told Michel, “Find a place. Go a little further”. Then Michel started driving; he went beside an industrial… beside a factory.

Then, at that moment, I opened the door and then I threw her out of the car and then she closed the door. So that meant now, we were parked there. Then I told Michel, “Hurry, go, go, go”. [Unedited reproduction of transcript.] [ 70 ] The handler in turn explained the objectives of the violent scenario: [ translation ] Yes, it was to increase the relationship of trust, because for sure, when you bring someone to that kind of level, it’s because you really trust them, you are showing that you trust that person.

Also, you’re showing that... this scenario was showing that our organization didn’t have any preferences, whether it was a woman or a man, if we had to be violent with someone, if it was a woman we didn’t have any hang-ups about that and...

And if the individuals that spend time with us see that we are violent and or if they have been violent themselves, we don’t judge anyone for what they did because we can do the same, if not worse. [Unedited reproduction of transcript.] [ 71 ] In addition, it should be noted that during the four months of the operation, Vince made sure that he painted the appellant a picture of the Organization that revealed its power and the ramifications of that power: [ translation ] Q.

And at that moment, in that context, I understand that there were also references on your part to the effect that, “In our organization, we are able to find a guy”.

A. Yes. Q. That’s accurate, right? So I understand that it was to demonstrate the range or the ... the reach of the organization, right? There’s that. Those sentences, they are not insignificant sentences that you said... A. No. Q. ...right? R. ... to demonstrate... Q. So, it’s.... R. ... that we have a lot of contacts, that’s the objective. Q. To demonstrate that you have a lot of contacts, that if you want to find someone, you can find someone, right? It’s … it’s in fact... A. Yes, I mention it. ... Q. OK. So, I understand that, also, when you told Mr.

Laflamme that you were able to find out if someone is listening to you, I understand that, at that moment, you wanted to let him know that there was a mole inside the police... A. Yes. Q. ... That is correct. And you went even further, at the point you were going to... in connection with the event where there was a fight at the motel, you said that you were able to find the person through credit card statements. A. That’s right. Q. So, I understand that what you wanted to show him was that, even in credit card statements, you are able to find someone? A. That’s right. Q.

So, all that, it was in order to demonstrate the power of the organization, is that accurate? A. That’s accurate. [Unedited reproduction of transcript.] [ 72 ] In scenario 36, the appellant, after transporting a suitcase from Quebec City to Montreal, was present for the creation of a false alibi for a member of the Organization, a certain J.F. The scenario unfolded as follows: after learning that J.F. was in trouble because he killed someone, Vince contacted the boss, after which he told J.F. that the Organization could help him. To do so, he brought the appellant and J.F. to the casino.

Once there, he had a conversation in an out-of-the-way place with one of the casino’s security guards, who was in fact an undercover agent. He then gave J.F. and the appellant an amount of money and asked them to bet it at the slot machines for about an hour.

Later, when the three men were in the parking lot, Vince spoke with the casino security guard, then returned to the car with a CD, telling J.F. that the timestamps on the casino’s video surveillance had been modified to create an alibi for him on the date the murder was committed. [ 73 ] During the next scenario – scenario 37 – the appellant went to Ottawa to pick up a suitcase, which he then had to bring to Mr. Big, with Vince. That was why Vince and the appellant went to a fancy restaurant, where the appellant met Mr. Big for the first time. The aim of this scenario was to show that Mr.

Big was angry that the appellant had seen him before they had checked into his situation: [ translation ] After that, Vince sat with us at the table and I kind of pretended that I was still a little angry, just in case Mr. Laflamme was watching us, with my fingers, you know. I was pointing with my fingers, you know, what was he doing bringing him in front of me, then... so it was a bit of that.

The aim of the scenario, really, was to show that I was not happy that he had brought someone to me and also to give me a reason to go get his documents... his identification later to do research on this person who was in front of me. [Unedited reproduction of transcript.] [ 74 ] During the scenario immediately after one in which Mr. Big got angry, he transported $50,000 inside a safety deposit box.

He was asked to count out the amount that apparently corresponded to what he would receive for the [ translation ] “big job”, that Vince had been telling him about for some time, if he was accepted as a member of the Organization. The next scenario involved the surveillance of a truck, as part of the plan for the [ translation ] “big job” (scenario 39). In scenario 40, the one immediately preceding the meeting with Mr. Big, he was asked to deliver a suitcase to Toronto and then to bring one back to Montreal. When he returned from Toronto, Vince told him that he was going to meet Mr.

Big. [ 75 ] When he arrived before Mr. Big for the interview, the appellant was fully imbued with the image of the Organization that had been drawn for him over the last few months. Members of the Organization did not hesitate to use violence and threats of violence against other members or third-party debtors. They were so powerful that they had no trouble locating a person. He was told that they

had multiple contacts, even among the police. They were also able to create an alibi to protect a member who had committed a murder. [ 76 ] The meeting with Mr. Big was critical for the appellant to stay in the Organization. At that moment, it was clear that he was convinced that he had taken

part in several illegal activities led by the Organization. Although he very much wished for it, he also had every interest in being accepted into the Organization, especially since he had been well remunerated and told that he would be paid even more in the near future. Moreover, he was told unequivocally that Vince had taken a risk by bringing him into the Organization because if he was not accepted, Vince would probably pay a price.

This was the context in which Vince gave him the following warning: [ translation ] I said, “Listen, pay careful attention, because sometimes, he asks questions but he already knows the answer. So whatever happens there, the important thing is that you have to be honest”. I said... I explained to him, I said, “Look, I gave you rave reviews. I put my head on the chopping block for you. We come in together and ... and then that’s it”. [Unedited reproduction of transcript.] [ 77 ] During the final scenario, Mr. Laflamme was searched by a bodyguard and his cell phones were taken away from him. Then, Mr.

Big sent Vince and the bodyguard away, but ordered the latter not to go too far. The appellant later said that he felt as though he had been caught in a mousetrap. [ 78 ] Mr. Big quickly let him know in no uncertain terms that Vince’s fate was tied to his acceptance in the Organization. He clearly suggested that something would happen to Vince if the appellant was not accepted into the Organization: [ translation ] We’re honest, and uuuuuhhh.. we don’t have a problem. You hide something from me, you will hang out to dry on your own, you hide nothing from me, I’ll use all my resources to help you.

As simple as that. And now I consider you to be a guy like that because Vince, by bringing you there, he put his head on the block for you, you understand? If things don’t work out with me and you, it’s highly likely that Vince, even though I know his father and all that, he won’t be able to stay with me. As simple as that.

And I’m not taking any chances for the other guys, you got that? [Unedited reproduction of transcript.] [ 79 ] Later, when he was urging the appellant to tell him the truth about the circumstances of his wife’s death, he repeated the indirect threats about the fate that awaited Vince if the appellant was not accepted into the Organization: [ translation ] OK. I want to help you, and I’ll use all my resources to... because I don’t want to lose Vince... ...

I don’t want to lose him and I really like that guy, you know... because of the connection... what I want to know is exactly what happened that day and ke... between me and you, what you say here stays here... it doesn’t go beyond that door, and I want to be able to help you with that. And if you want my help, you got it Michel... you got it... [Unedited reproduction of transcript.] [ 80 ] I find that the facts demonstrate that the Organization did more than prompt the appellant to obtain his confession.

The violence used in the scenarios and the threats were clearly intended to demonstrate the power of the Organization and the few scruples of its members when it came to violence or threats, whether compelling someone to pay a debt or making people remain silent if they had “started talking”. In this case, deliberately subjecting the appellant to these scenes of violence with the avowed goal of making him aware of the power and seriousness of the Organization, together with the barely veiled threats about Vince’s fate if the appellant was not accepted into the Organization and the fact that Mr.

Big would [ translation ] “lose” two guys if he did not tell him what he wanted to hear, reveals unacceptable coercive tactics. [ 81 ] It is no doubt significant that, at the beginning of the interview with Mr. Big, the appellant at was first vague and imprecise when referring to the death of his wife. This is how he first expressed himself: [ translation ] Well what happened is that... she died... and... nobody, nobody, nobody, nobody, nobody can say anything... never... nobody can say anything... listen: I did it or someone else did because... it’s it’s ...

It’s a thing that... there is no one implicated... other than... nothing either verbal or in any way that’s... Later, however, he made a full confession that he murdered his wife, after the boss repeated that he did not want to [ translation ] “lose” Vince. [ 82 ] The pressure this created, which was coercive, was also undue in that it placed the appellant in a situation where he knew that his and Vince’s safety were potentially compromised if he was not accepted into the Organization. Through the scenarios, it had been hammered into him that Mr.

Big was powerful and capable of anything, which is what Vince told him and what he himself witnessed. For example, the creation of a false alibi Mr. Big authorized and his attitude during the restaurant incident both clearly demonstrated his authority. In addition, the boss’s identity was never revealed to him during the four months that he worked for the Organization. He was

now alone with him, although Mr. Big asked his bodyguard not to go too far away. Mr. Big repeatedly told him that Vince, one of his best employees, had put his head on the chopping block by having him take

part in the Organization’s activities. In this context, the appellant’s free will was sorely tested. [ 83 ] As counsel for the respondent remarked, the appellant appeared calm and looked Mr. Big in the eyes for the entire interview during which he confessed to killing his wife thirty-one years earlier. The self-assurance he appeared to display in no way mitigates the reprehensible conduct of the police officers.

The characterization of the techniques or tactics used to obtain the desired confessions calls for an attentive examination of the modus operandi of the double agents. [ 84 ] The use of inducements cannot in itself be condemned, since the very objective of the operation was to obtain a confession. Participation in scenes of violence and threats, however, can become problematic when they are equivalent in practice to undue coercion of the person targeted by the secret investigation for the purpose of drawing out a confession.

There is abuse of process if the police officers use coercive tactics that actually or potentially undermine the suspect’s will. [13] Physical violence or threats of violence provide examples of coercive police tactics that can render a confession obtained in such a context inadmissible. [14] In my view, that is the case here. [ 85 ] The undercover agents compromised their investigation, which was otherwise going well and having the desired effect, as it appeared that the appellant quickly felt trustful and clearly wanted to become a member of the Organization.

The undercover operation was effective, but the police officers chose to stage quite remarkable scenes of violence and threats. [ 86 ] The coercive tactics to which the appellant was subjected cannot be tolerated. They tarnish the police investigation and throw the administration of justice into disrepute. Considerable weight and undue pressure was placed on the appellant by the combined effect of the violent treatment of Caroline even though she was a loyal collaborator of the Organization and the extremely clear connection Mr.

Big established at the beginning of his meeting with the appellant between the latter’s performance in the interview – his transparency in particular – and the fate reserved for his friend Vince if the interview was unsatisfactory. [ 87 ] After saying that he had made several checks on him and learned many things, Mr. Big told the appellant, [ translation ] “Vince told me everything about you. He put his head on the chopping block for you”. The words used by the Mr. Big clearly suggested that Vince, the appellant’s best friend, a person with whom he had forged close bonds, was at serious risk if Mr.

Big was not happy with the interview. In this case, the use of simulated violence and serious threats towards not only debtors of the Organization but also its own members goes beyond the tolerated threshold of conduct for undercover agents pretending to belong to an illegal or indeed criminal organization to persuade the suspect to confess to a past crime. The coerciveness of the violent episodes and the threats the undercover agents staged cannot be ignored.

The behaviour of the police officers in this case is intolerable in that it compromises the integrity of the justice system and constitutes an abuse of process, the consequence of which in this case is a stay of proceedings. [ 88 ] Because I find that the abuse of process gives rise to a stay of proceedings in this case, the weighing of the probative value against the prejudicial effect of the confession to determine its reliability is not necessary. It nevertheless appears appropriate to add a few words about the charge to the jury. 3.3.

Instructions to the jury [ 89 ] At the outset, it is important to point out that the evidence adduced at trial is not based solely on the confession. It also concerns events that took place at the time about which several witnesses testified, including the police officers who took

part in the initial investigation, experts whose testimony concerned, among other things, the type of cord or ligature that might have been used to commit the crime, and forensic pathology experts. [ 90 ] The trial judge did not have the benefit of the judgments in Hart and Mack , supra , when he gave his jury instructions in this case. In Mack , Moldaver J. pointed out that, “there is some guidance – short of a prescriptive formula – that can be provided to trial judges who must instruct juries in cases where a Mr.

Big confession has been admitted into evidence”. [15] He then stated that the judge must explain to the jurors that it falls to them to decide the reliability of the confession. The judge must examine the relevant factors with them to weigh the confession and the relating evidence by recalling that, “[a]s explained in Hart , the reliability of a Mr. Big confession is affected by the circumstances in which the confession was made”. [16] Finally, Moldaver J. defined the warnings that must accompany the instructions to the jury when the evidence is based on a confession obtained in a Mr.

Big operation: [51] However , there is some guidance — short of a prescriptive formula — that can be provided to trial judges who must instruct juries in cases where a Mr. Big confession has been admitted into evidence. ... . [53] Moreover, the trial judge should discuss the fact that the confession itself may contain markers of reliability (or unreliability).

Jurors should be told to consider the level of detail in the confession, whether it led to the discovery of additional evidence, whether it identified any elements of the crime that had not been made public, or whether it accurately described mundane details of the crime the accused would not likely have known had he not committed it (see Hart , at para. 105). [54] This is not to suggest that trial judges are required to provide a detailed catalogue of every piece of evidence that might bear on the reliability of the confession.

The task is simply to alert the jury to the concern about the reliability of the confession, and to highlight the factors relevant to assessing it. [55] With respect to the bad character evidence that accompanies a Mr. Big confession, the challenge is a more familiar one. The trial judge must instruct the jury that this sort of evidence has been admitted for the limited purpose of providing context for the confession. The jury should be instructed that it cannot rely on that evidence in determining whether the accused is guilty.

Moreover, the trial judge should remind the jury that the simulated criminal activity — even that which the accused may have eagerly participated in — was fabricated and encouraged by agents of the state.

[ 91 ] The trial judge’s warnings at the outset of the trial and his instructions to the jury were inadequate and contained gaps that would justify a new trial, if not for the stay of proceedings. [ 92 ] As was his duty, both at the beginning of the trial and in his instructions before the jurors withdrew to deliberate, the trial judge warned them against the danger of drawing a conclusion about the appellant’s criminal propensity based on his participation in the scenarios staged by the police officers.

He gave the “standard limiting instruction” regarding the use that may be made of evidence of the appellant’s bad character or criminal propensity. [17] He explained to the jury that this block of evidence could be used only to [ translation ] “...determine whether or not you believe Mr. Laflamme’s confession”. [ 93 ] The judge departed from the Supreme Court’s guidance in Mack , supra , however, particularly where he stated the following in his charge to the jury: [ translation ] An investigative method was revealed to you during this trial.

Perhaps there are those among you who believe it is an ingenious investigative method. Perhaps there are others who believe it is an investigative method that raises a few questions. It is very interesting to have such thoughts. But that will not help you reach a decision in this case. It is the evidence that counts, it is the testimony that you have heard, the exhibits, the confessions that were presented during this trial. So bias and sympathies must be set aside.

Speculation and conjecture must be set aside. [ 94 ] Although he correctly placed the burden of proving the appellant’s guilt beyond any reasonable doubt on the Crown, he strayed from the essential elements of the rule of evidence as later defined by the Supreme Court in Hart and more particularly in Mack , supra . On several occasions in his instructions, the judge told the jury that the burden of proof was to establish [ translation ] “the truth of the confessions”, to decide whether the Crown had established beyond any reasonable doubt [ translation ] “that these confessions were truthful, were true”.

As illustration, here is an excerpt from the instructions to the jury on the burden of proof: [ translation ] The first warning concerns this investigative method, which is referred to as a Mr. Big investigation. As I told you at the very beginning of the trial, you may arrive at the conclusion by considering this evidence if you accept the testimony of Vince, Pat, Mr. Big, that during a three- or four-month period, Mr. Laflamme willingly participated in a series of acts that he believed to be criminal. This entire block of evidence is relevant to determining an issue that you have to resolve in this case.

Were the confessions made to Mr. Big during the forty-first scenario on April 23, 2008, true? This entire block of evidence is relevant to determining this question. Of course, all of the evidence presented is relevant to determining this question. But that block in particular may be used only for this purpose. You may not, you must not, use this evidence as propensity evidence. You cannot use this evidence to say, “Laflamme was the kind of guy to get involved in anything that he believed were criminal acts. He must be the kind of person who murdered his wife in ’76”.

If you adopt this method or way of analyzing, you will be making a serious error. You cannot use this evidence as propensity evidence. This evidence is relevant. It’s relevant. You must look at all this evidence.

You must look at all the evidence adduced in this case to determine whether the confessions are true. [ 95 ] The instructions are defective in that the judge, who did not have the benefit of Mack , was not able to “alert the jury to the concern about the reliability of the confession [or] to highlight the factors relevant to assessing it”. [18] [ 96 ] This new rule of evidence is based on different analytical premises from those put to the jury in this case.

In Mack , [19] the Supreme Court noted that even though the instructions were rather brief, they referred to the possible unreliability and prejudicial nature of the evidence, which was not the case here.

Without going into further detail, given our conclusion that a stay of proceedings should be ordered, it is sufficient to state that, at the very least, it would have been necessary to order a new trial. 3.4 The five grounds initially argued [ 97 ] Given the Court’s finding, I will deal briefly with four of the five grounds of appeal initially raised in the notice of appeal, sometimes combining them and sometimes changing the order. The third ground was refocused in the additional outline and has already been discussed here. There is therefore no reason to return to it.

As for the four other grounds, it is important to state more generally that had the new rule of evidence on the admissibility of the confession been known, it should have been taken into consideration when the time came for the judge to measure the impact of the destruction or disappearance of some of the evidence gathered by the detectives in the initial police investigation. [ 98 ] This evidence could have been used to corroborate the confession and thereby provide a guarantee of reliability, just as, on the contrary, it might have raised doubts as to its reliability. [20] [ 99 ] Having said that, I will now address these grounds of appeal.

The errors committed by the judge and other elements that allegedly compromised the fairness of the trial. - The applications to stay proceedings (grounds of appeal 1 and 5). [ 100 ] The judge rejected the application for a stay of proceedings ( voir dire number 1), but not without granting certain remedies, including the right to cross-examine some witnesses about the evidence on the pre-charge delays and the destruction or loss of some of the evidence gathered at the scene of the crime or later on during the investigation. In addition, the judge reserved the appellant’s right to

file a similar application again, once the case was closed. [ 101 ] This decision ruling on the first application is no longer challenged on appeal. [ 102 ] The appellant nevertheless considered the remedies awarded to re-establish the fairness of the trial to be insufficient. Once the case was closed, he renewed his application for a stay of proceedings. The judge dismissed this application, but not before offering a few explanations.

First, he reiterated the reasons for the judgment rendered on the first application and second, answered the arguments advanced in support of the second application for a stay of proceedings. It may be useful to summarize the thrust of this judgment, which was rendered on February 3, 2010. [ 103 ] As the judge observed, the appellant successfully established the destruction or loss of some of the evidence and the witnesses’ limited independent memory of events that had taken place thirty years earlier.

The judge then set out the legal principles that would guide his analysis, particularly with respect to the fairness of the trial and the threshold required to justify a stay of proceedings. More generally, after reviewing every point raised by the appellant concerning the various pieces of evidence, the judge found that the fairness of the trial and the appellant’s defence were not compromised. [ 104 ] The judge recognized that there had been [ translation ] “small ‘a’ abuse”, as he put it, referring to the loss of clothes, a pack of cigarettes, and the fingerprints lifted from the pack.

The judge nevertheless found that, even taking into account the accumulated effect of the elements raised by the appellant, it was not one of the clearest of cases in which a stay of proceedings must be granted.

Without necessarily needing to decide this issue, the answer to this question could have been different if the judge had been familiar with the analytical framework recommended by the Supreme Court in Hart , supra . [ 105 ] He then went on to consider certain pieces of evidence that are no longer available, including the hairs on the victim’s face that had been observed by the pathologist, and concluded that [ translation ] “the importance of this piece of evidence is so speculative”, especially since it is not known whether they were analyzed at the time and they obviously cannot be now. [ 106 ] As for the disappearance of the pack of cigarettes, which the judge characterized as [ translation ] “more problematic”, he nevertheless found that, together with the evidence he authorized by partially allowing the Grandinetti application, the appellant could draw an inference therefrom.

The judge thus admitted the contents of an anonymous call to the police from someone claiming that they saw a third party approaching the automobile occupied by the victim and arguing with her. The judge found that this evidence could be a benefit to the appellant, who could use it to support his argument by suggesting to the jury that the pack belonged to a third party who committed the crime.

The loss of this evidence does not, in his view, compromise the possibility of making full answer and defence. [ 107 ] Similarly, he found that the destruction of the victim’s clothes, her sweater in particular, did not compromise his defence because the fact that Dr. Lauzon, the pathologist who examined the sweater at the time, observed nothing on its collar could have been used to the appellant’s advantage. If Hart had been rendered at the time, the judge would undoubtedly have assessed the impact of the destruction of this evidence on the admissibility of the confession.

This is not necessary, however, given the outcome of this appeal. [ 108 ] Finally, regarding the limited independent memory the witnesses to the events had preserved, the judge assigned low importance to this fact because most of the incriminating evidence concerned a time much more recent and contemporary, i.e. between the final months of 2007 and early 2008. He rejected the appellant’s application, convinced that he had been given a fair chance to support his argument that he did not kill his wife and establish why he had lied to Mr.

Big during the recent investigation. [ 109 ] Without necessarily reviewing, one by one, the many elements raised in support of this renewed application for a stay, I find that, taken solely in the context that existed prior to Hart , supra , the judge weighed them correctly and, where required, ordered appropriate and sufficient remedies to ensure the fairness of the trial, basing himself on then-known principles of law in cases involving stays of proceedings. [21] But the fact remains, he did not assess the impact of the loss or the disappearance of evidence on the admissibility of the confession obtained in the Mr.

Big operation. [ 110 ] Moreover, regarding the issues connected to the loss or disappearance of evidence, the Crown’s duty to disclose prevails over its duty to preserve evidence. [22] .

Thus, when evidence that should have been disclosed is lost, the Crown must explain why. [23] It is important to consider whether the loss was the result of “unacceptable negligence”. [24] To assess the reasonableness of the police conduct, one circumstance that must be considered is the perceived relevance of the evidence. [25] [ 111 ] Finally, while the actual prejudice to the fairness of the trial represented by the loss of evidence is generally considered only at the remedy stage of the analysis, [26] this is not the case when the confession the Crown wishes to adduce results from a Mr. Big operation.

The judge carried out the generally required assessments and, drawing the necessary distinctions, found that there was no actual prejudice likely to affect the fairness of the trial. Where necessary, he ordered the appropriate remedies. That said, he did not consider whether the probative value of the confession outweighed its prejudicial effect, which is a necessary analysis when determining the admissibility of the confession in accordance with the principles set out by the Supreme Court in Hart .

In my view, were it not for my conclusion to order a stay of proceedings, an order for a new trial would have been justified to permit a complete analysis of the impact of the loss of some of the evidence collected during the investigation. [ 112 ] Let me now review the main points raised by the appellant in this appeal: first, the issue of the pre-charge delay, and second, the loss or destruction of certain pieces of evidence collected during the police investigation after the murder. [ 113 ] Obviously, a pre-charge delay of thirty-three years is particularly long.

This entails its own set of restrictions. [ 114 ] Many of the witnesses no longer had independent memories of the events, a fact that the appellant argues prevented him from effectively cross-examining them. The mere passage of time is not a cause of actual prejudice in this case. The judge found that, without the appellant’s confessions, the other evidence from the initial police investigation would not have been sufficient to establish the appellant’s guilt beyond a reasonable doubt. This finding is accurate, especially in light of the particularly onerous burden of proof in criminal matters.

It is nevertheless necessary to be convinced that the appellant did not lose the benefit of evidence that might have ensured that he was able to make full answer and defence under the new rule of evidence set out in Hart . An examination of this issue,

however, was not possible. [ 115 ] First, it must be noted that several documents and other evidence from the first investigation were still available and were adduced. The appellant argues that the lack of some of the evidence compelled him to testify. It was, first and foremost, his confessions that compelled him to explain to the jury why he had lied to Mr. Big.

That said, it is not really possible to assess the impact of any of his decisions during the trial on his decision to testify on the basis of the principles set out in the leading cases rendered by the Supreme Court since then. [ 116 ] Moreover, the appellant argues that all of the evidence that could have been useful to him is no longer available. The investigation was never closed, especially since the conclusion of the coroner’s report recommended that the police officers continue investigating.

The appellant believes that the police had a duty to preserve the various pieces of evidence and prevent any of them from being destroyed. [ 117 ] In principle, the appellant is correct. That said, given the loss or disappearance of some of the incriminating evidence, the consequences of its absence must now be assessed, since the judge was generally satisfied with the reasons provided to explain its loss or disappearance. The judge did not discern bad faith or unacceptable negligence on the part of the police departments that would justify a stay of proceedings.

When, because of the passage of time, the loss or disappearance could not be explained, the judge assessed the impact of the loss but without the benefit of the new rule of evidence set out in Hart . In short, the same problem arises again.

In each case, the judge either found that there was no prejudice or took into account the benefit that the appellant may have gained from the absence of a piece of evidence, while also admitting other evidence which, taken together or cumulatively, allowed the appellant to raise a reasonable doubt in the mind of the jury in his oral arguments. [ 118 ] In particular, as noted above, this was the case with the disappearance from the automobile of the pack of cigarettes on which a fingerprint had been found but never sent to Ottawa for comparison, even though it was established that neither the appellant nor the victim smoked.

At trial, the judge allowed the appellant to cross-examine the police officers and Rémillard, the crime scene technician, on this subject. The appellant’s counsel also referred to it in his oral arguments and the judge mentioned it in his instructions.

The judge also noted in his judgment on the application to stay proceedings that it was open to the appellant to make the argument he had put forward, i.e. that an unknown person might have committed the murder, hence his conclusion that the unexplained absence of this evidence did not prevent him from making full answer and defence. [ 119 ] The good faith of the detectives is not questioned, despite the loss or disappearance of evidence.

For although the personal notes of the detectives no longer exist, their absence does not result from negligence but from the practice at the time of destroying notes once they were copied into a report. Some detectives destroyed them when they retired if they had not done so before. The most important parts of these notes had been transcribed and filed in the police report, which was still available at the time of the trial. [ 120 ] As for the destruction of the victim’s clothes, it was done in accordance with the practices and standards of the time.

Of the clothing that was destroyed, the sweater the victim was wearing at the time of the murder is no doubt the most relevant piece. The judge nevertheless assessed the impact of the destruction of the sweater and found that the appellant’s defence would not suffer. [ 121 ] The appellant argued that if the victim’s sweater had been available, he could have sought an expert opinion on the form, type, and width of the ligature used to strangle her and thus contradict what he told Mr. Big.

He suggests that a DNA test could have been performed, and while he acknowledges that it cannot be expected that the police officers at the time would have anticipated DNA research technology, this evidence should nevertheless have been preserved because the investigation file was still open. [ 122 ] Dr. André Lauzon, forensic pathologist at the police science lab at the time, testified before the trial judge, explaining that at the time it was considered pointless to preserve the clothing given the lack of traces of blood or semen and the scientific methods then available.

He also noted that an independent source of evidence existed, namely, the photos of the clothing. The expert for the defence, Dr. Claude Pothel, a pathologist, based his testimony at the trial on these photographs. [ 123 ] The judge found that this loss did not compromise the appellant’s ability to make full answer and defence. He noted that Dr. Lauzon said that he had observed nothing on the victim’s sweater. This explains why he did not send the sweater for any additional expert analyses. The judge pointed out that the appellant could use Mr.

Lauzon’s observation to support his argument and set aside two of the five samples adduced of twine that existed in the 1970s, since, [ translation ] “the way they are made suggests that these ropes would in fact have left traces on the sweater”.

Thus, the judge noted that because of [ translation ] “the fact that no trace was found, the jury may be invited to draw an inference that at least two (2) of these ropes or this type of rope could not have been used as a ligature in this specific case”. [ 124 ] The unavailability of the sweater is not a source of prejudice justifying a stay of proceedings unless the absence of this evidence is considered from the wider perspective of the search for facts corroborating or contradicting the facts stated in the appellant’s confession.

It should nevertheless be noted that, in the case of the sweater, its importance is less obvious because the testimony of the Dr. Lauzon, a pathologist, who had analyzed the clothes, was clear-cut: there was absolutely nothing on the sweater. And finally, the photos of this clothing, including the sweater, are still available and were filed into evidence at trial. [

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