2015 QCCA 694, 2015 QCCA 694

Perreault c. R. 2015 QCCA 694 COURT OF APPEAL CANADA PROVINCE OF QUÉBEC QUÉBEC REGISTRY No. 200-10-002629-116 (200-01-142666-100) DATE: April 27, 2015 CORAM: THE HONOURABLE FRANCE THIBAULT J.A. DOMINIQUE BÉLANGER J.A. CLAUDE C. GAGNON J.A. ALAIN PERREAULT APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT* [ 1 ] The appellant is appealing a verdict returned by a jury in the District of Québec on February 11, 2011, convicting him of the first degree murder of Lyne Massicotte, following a trial presided by the Honourable Jean-Claude Beaulieu; [ 2 ] For the reasons given by Thibault J.A., with which Bélanger and C. Gagnon JJ.A. agree;

THE COURT: [ 3 ] ALLOWS the appeal; [ 4 ] SETS ASIDE the conviction; and [ 5 ] ORDERS a new trial. (

s) France THIBAULT J.A. (

s) DOMINIQUE BÉLANGER J.A. (

s) CLAUDE C. GAGNON J.A. Mtre. Stéphane Beaudoin Mtre. Julien Bolduc Beaudoin Robert For the appellant Mtre. Pierre Bienvenue Mtre. Lyne Morais Criminal and Penal Prosecutors For the respondent Date of hearing: March 23, 2015

REASONS OF THIBAULT J.A. [ 6 ] The appellant is appealing a verdict rendered on February 11, 2011 by a jury that convicted him of the first degree murder of Lyne Massicotte (hereinafter referred to as the victim) after a trial presided by the Honourable Jean-Claude Beaulieu J.S.C. [1] [ 7 ] This case raises the question of the admissibility in evidence of the confession made by the appellant to “Mr.

Big” following a complex police infiltration operation in which undercover officers gradually induced the appellant to want to be part of a criminal organization. [ 8 ] On May 7, 2013, the Court dismissed the appeal brought by the appellant, who argued in particular that his confession had been made in circumstances that were [TRANSLATION] “coercive to the point of compromising its reliability”. [2] The Court was of the opinion that a number of evidentiary elements ensured that the confession was sufficiently reliable. [3] [ 9 ] The appellant brought an appeal to the Supreme Court.

On October 23, 2014, [4] the Supreme Court remanded the case to this Court for disposition in accordance with R. v. Hart . [5] That decision, which was rendered after this Court’s decision of May 2013, changed the law with regard to the admissibility of a confession obtained further to a police operation of the Mr. Big type. Such a confession is henceforth presumptively inadmissible.

This presumption of inadmissibility may be overcome where the Crown can establish, on a balance of probability, that the probative value of the confession outweighs its prejudicial effect. 1- The facts [ 10 ] The appellant and the victim became acquainted over the Internet. They agreed to meet in Quebec City on July 17, 2003, at the appellant’s apartment. Before leaving for Quebec, the victim took her 12-year-old daughter to a babysitter with whom she left her contact information. During the evening, the babysitter called the appellant’s apartment.

She wanted to talk to the victim to know if the latter was returning home to Chambly for the night. The appellant told the babysitter that the victim had gone out to buy some cigarettes, but that she had not come back. [ 11 ] Around 10:30 p.m., the babysitter contacted Francine Massicotte, the victim’s sister, to tell her that she had not heard from the victim. Francine Massicotte then contacted the appellant, who told her the same story. [ 12 ] The victim was never seen again. [ 13 ] The appellant was questioned by police on July 21, 22, 24 and 29, 2003.

There was no serious indication connecting him to the disappearance of the victim. However, the police harboured suspicion in his regard, since he was, to their knowledge, the last person to have seen the victim alive. [ 14 ] In 2009, a Sûreté du Québec special unit decided to use a special investigation technique called Mr. Big. The operation, which started on September 29, 2009 and ended on January 13, 2010, consisted of 41 scenarios.

They were designed to implant in the appellant’s mind the idea that the criminal organization he was dealing with was powerful, violent and capable of procuring him financial well-being, provided he was loyal and honest. At first, no criminal activities were involved. [6] The appellant was sporadically asked to do small jobs for which he was remunerated. The appellant was gradually led to commit simulated crimes that he believed were real. The scenarios were also designed to forge a bond between the appellant and the primary police operative, whom he considered his best friend and whom he trusted completely.

[ 15 ] In order to become a member of the criminal organization and enjoy all the financial and social benefits laid out before him, at the end of the 41 scenarios the appellant was subjected to an interview of sorts that would decide the fate of his acceptance into the criminal organization. It was then that Mr. Big told the appellant that he had obtained information on his past, that he had [TRANSLATION] “heard about certain things”, that [TRANSLATION] “things were not looking good [for him]”, but that he was [TRANSLATION] “ready to help”.

He insisted on honesty and told him to leave if he could not comply with that rule. He demanded that the appellant give him the details of his crime so that the organization could erase any incriminating evidence left behind and accept him as a member without any risk to the organization. [ 16 ] The appellant initially denied having committed the murder. Mr. Big called him a liar. He repeated that the organization’s help depended on his honesty and told him to leave if he was not prepared to tell the truth. It was then that the appellant told Mr. Big that he would confess everything. He gave Mr.

Big more and more detailed information as Mr. Big guided him with relevant questions. I will come back to the interview process and the content of the confession later on. 2. The issues in dispute [ 17 ] In his factum, the appellant raises only one issue. Did the trial judge err in admitting in evidence the confession made by the appellant at the end of the Mr. Big operation? The appellant contends that this was the case. First, he argues that the reliability of the confession is insufficient. Second, he contends that the conduct of the police in the Mr. Big operation amounts to an abuse of process.

Consequently, he is requesting that the confession be excluded. [ 18 ] A preliminary review of the case led the Court to invite the parties to examine a second issue. If the appellant’s confession appears sufficiently reliable to be admitted in evidence further to the application of Hart , were the judge’s instructions to the jury consistent with the teachings of the Supreme Court in R. v. Mack ? [7] 3- CONTENTIONS OF THE PARTIES 3.1 Reliability of the confession [ 19 ] The appellant describes the similarities between this case and that of Nelson Lloyd Hart, whose Mr.

Big confession was declared inadmissible in evidence by the Supreme Court. [8] He insists on the similarities with regard to the material and psychological impacts of his integration into a pseudo criminal organization. He contends that the accused in both cases had struck up a friendship with their primary operatives, and that they were both offered the prospect of a dream life and made to believe that the organization would not hesitate to resort to violence to achieve its ends. [ 20 ] The appellant claims that, like Mr. Hart, he was vulnerable, socially isolated and a social aid recipient.

The fictitious criminal organization transformed his life by allowing him to forge strong friendship bonds, by substantially enhancing his lifestyle and by leading him to expect substantial financial benefits. By treating him as a liar and making him understand that he was either to confess to a crime or leave the premises, Mr. Big provided him with an overwhelming incentive to confess , either truthfully or falsely. [ 21 ] The appellant concludes that, given the circumstances, his confession is unreliable. He examines the indicators of reliability raised by the Crown and attempts to discredit them.

I will come back to this. [ 22 ] The appellant points out that there is no material evidence to corroborate his confession, despite searches conducted by the forensic identification technicians in his apartment, in the vehicle found and on the potential sites where the victim’s body could have been abandoned. Her body has not been found. He was unable to guide the undercover officers to the place mentioned in his confession where he said he had disposed of the body. [ 23 ] The appellant concludes that his confession is inadmissible because its probative value is low, whereas its prejudicial effect is significant.

In the case of a Mr. Big operation and particularly in his case, the jury heard lengthy evidence establishing that he wanted to join a criminal organization and that he actively participated in criminal activities. The jury then watched a video in which he gave a detailed incriminating statement about a sordid murder.

[ 24 ] For its part, the respondent first insists on two elements that, in its opinion, could only be known to the murderer and that the appellant told the boss in his confession: the fact that the trunk of the victim’s car was full and that the doors had been left unlocked when the vehicle was abandoned near the Château Frontenac.

The respondent contends that the explanations given by the appellant to justify his knowledge of those elements were provided late – he did not mention them during his questioning by police nor when he testified on the voir dire – and implausible. [ 25 ] The respondent lists ten additional indicators that, again in its opinion, attest to the reliability of the appellant’s confession: 1. the rape scene pictures found on the appellant’s computer, regarding which the respondent states that some [TRANSLATION] “foreshadow the modus operandi used in the murder”; 2. the fact that the appellant had previously told undercover officer Richard that if he assaulted a woman, he would strangle her with just one arm; 3. the testimony of Steve Martel, who, at 11 p.m., saw a person similar to the appellant get behind the wheel of a vehicle identical to that of the victim; 4. the positioning of the driver’s seat to fit a tall person whereas the victim was five feet tall; 5. the place where the victim’s car was found, i.e. where the appellant parked two or three times a year; 6. the presence of red shale on the right fender of the victim’s car, which indicates that the car travelled in proximity to the St.

Lawrence; 7. the times at which the appellant’s computer was used, which were not in keeping with his habits and which corroborate the sequence of events described in the confession; 8. the consultation of the website of the Ministry of Justice and the erasing of [TRANSLATION] “remarkable” quantities of files in the period from July 15 to 20; 9. the identification by the police of a place on the shores of the St.

Lawrence that [TRANSLATION] “perfectly matches” the place described in the confession and where the body could have been swept away by the spring tides; 10. the disappearance of the victim, who has never been heard from since July 17, 2003. [ 26 ] The respondent also points out that the detailed nature of the appellant’s confession and its coherence are incompatible with an improvised story. It adds that, during the confession, the appellant smiled, joked and seemed quite at ease.

He looked the boss in the eye and gave a sigh of relief when he said that the boss was the first person to whom he had revealed what really happened. In the respondent’s opinion, what incited the appellant to confess was not his fear of the organization but his desire to obtain help in eradicating all incriminating evidence and guaranteeing him impunity. 3.2 Abuse of process [ 27 ] Subsidiarily, the appellant contends that the conduct of the police renders his confession inadmissible. The police drew him into a criminal world by taking advantage of his social isolation and poverty.

The police officers exploited his emotional dependence on them. During the scenarios, it was demonstrated to him that the pseudo criminal organization was powerful and could even provide an alibi for a person suspected of murder. [ 28 ] The appellant concludes that the manipulation he was subjected to compromises the integrity of the justice system and is tantamount to police entrapment aimed at forcing a person who is vulnerable and presumed innocent to incriminate himself. [ 29 ] The respondent reviewed the judgments applying the Hart decision, i.e. R. v. Derbyshire , [9] R. v. Balbar , [10] R. v.

Hales [11] and R. v. Ledesma . [12] Only R. v. Derbyshire led to the application of the doctrine of abuse of process and the exclusion of the evidence. In that case, which involved a single scenario, two undercover officers posed as outlaw bikers. They intimidated the accused and confined her to a restricted space, making sure that she could not communicate with anyone, so as to deprive her of the freedom to choose whether or not to provide a confession. [ 30 ] The respondent contends that the advantages offered to the appellant in the Mr.

Big operation did not change his life: he saved the money received, he expected to receive a substantial inheritance from his mother, he was not socially isolated, he had three or four friends and he saw his daughter every other weekend. He even began a romantic relationship during the police operation. 3.3 Application of Mack [ 31 ] The respondent contends that the Court’s competence is limited in this appeal by reason of the terms of the judgment rendered by the Supreme Court on October 24, 2014.

Specifically, it contends that the Court must concentrate solely on the question of the admissibility in evidence of the appellant’s confession. [ 32 ] To the extent that the Court decides that the confession is sufficiently reliable to be admitted in evidence and subject to the jury’s assessment, the appellant is asking that the judge’s instructions regarding its reliability and prejudicial effect be declared inadequate,

pursuant to the Supreme Court explanations in Mack . Consequently, he is asking the Court to order a new trial. 4- Analysis 4.1 Introduction [ 33 ] The state of the law in matters of confessions obtained further to a Mr. Big operation was modified by Hart referred to above.

Moldaver J. proposed a two-pronged analysis intended to protect the right to a fair trial and to preserve the integrity of the justice system. [13] Hart creates a new rule of evidence combined with “a more robust conception of the doctrine of abuse of process”. [14] The new rule of evidence indicates that such confessions should be treated as presumptively inadmissible. This presumption 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 the confession turns here on an assessment of its reliability. [15] The Supreme Court stated that Mr. Big operations are all similar in nature, and that concerns about prejudice are likely to be similar from case to case. As a result, a large part of the analysis must be devoted to assessing the reliability of the confession. [ 34 ] To assess the reliability of a confession, the judge must first examine the circumstances in which the confession is made: 102 Confessions derive their persuasive force from the fact that they are against the accused’s self-interest.

People do not normally confess to crimes they have not committed ( Hodgson , at para. 60). But the circumstances in which Mr. Big confessions are elicited can undermine that supposition. Thus, the first step in assessing the reliability of a Mr. Big confession is to examine those circumstances and assess the extent to which they call into question the reliability of the confession.

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 . [16] [Emphasis added.] [ 35 ] The judge must then look to the confession itself for markers of its reliability.

Lastly, the judge must take into account the whole of the evidence in the case to determine whether there are elements corroborating the confession: 105 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 had not been made public (e.g., the murder weapon), or whether it accurately describes mundane details of the crime the accused would not likely have known had he not committed it (e.g., the presence or absence of particular objects at the crime scene). 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 . [17] [Emphasis added.] [ 36 ] Reliability within the meaning of this new rule of evidence may be understood by means of an analogy with reliability as conceived under the principled approach to the admissibility of hearsay: 100 What factors are relevant in assessing the reliability of a Mr. Big confession?

A parallel can perhaps be drawn between the assessment of “threshold reliability” that occurs under the principled approach to hearsay. Under the principled approach, hearsay becomes admissible where it is both necessary and reliable. Reliability can generally be established in one of two ways: by showing that the 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. [18]

[Emphasis added.] 4.2 Admissibility of the confession 4.2.1 Circumstances of the confession [ 37 ] The circumstances in which the confession was made must be examined in order to determine how they affect reliability. In Hart , the Supreme Court set the guidelines allowing an appeal court to apply the new common law rule of evidence to the facts of a given case. [19] [ 38 ] Mr. Hart was socially isolated. He was on social assistance. The Mr. Big operation transformed his life. The undercover officers closest to him became his only friends. Mr.

Hart devoted most of his time to the work given to him by the organization. The operation was lengthy and intense (63 scenarios over four months). It comprised non-negligible financial inducements. Mr. Hart was paid over $15 000, which lifted him out of poverty. He was also promised much greater financial awards if he was admitted into the organization. He was made to count hundreds of thousands of dollars in cash. He was promised a $25 000 reward for participating in an upcoming big job. His lifestyle was considerably enhanced (new clothes, meals in good restaurants). [20] Mr.

Hart attested to the impact of the financial inducements by expressing his gratitude at the very beginning of his meeting with Mr. Big. [21] [ 39 ] Moldaver J. pointed out that for Mr. Hart, the promise of friendship was at least as enticing as the financial inducements. He was isolated and, from the outset of the operation, the undercover officers sought to become “his best friends”. When he met with Mr. Big, Mr. Hart knew that “his ticket out of poverty and social isolation was at stake.” [22] The undercover officers clearly told him that he had to be honest, which Mr.

Big also repeated at the beginning of the interview. When he initially denied having killed the girls, Mr. Big called him a liar. The circumstances left Mr. Hart “with a stark choice: confess to Mr.

Big or be deemed a liar by the man in charge of the organization he so desperately wanted to join.” [23] [ 40 ] Moldaver J. concluded that “these circumstances, considered as a whole, presented the respondent with an overwhelming incentive to confess—either truthfully or falsely” [24] and that they cast serious doubt on the reliability of the confession. [ 41 ] As I have previously written, a number of these elements are also found in the appellant’s case. Even if he was not as isolated as Mr.

Hart, the appellant developed strong ties with the primary operative and received substantial amounts of money, with the prospect of making even more money. He counted substantial sums of money. He was supposed to be paid $50 000 for his

part in an upcoming operation. Throughout the operation, it was made clear to him that his loyalty and honesty were essential. Mr. Big repeated this demand at the beginning of the interview. The appellant wanted to be a member of the criminal organization. He wanted to keep his relationships and get out of poverty. When he refused to confess to the crime, the boss called him a liar and told him to leave the premises.

The appellant had to tell the truth, otherwise he would not be admitted into the organization. [ 42 ] I will examine the appellant’s confession before determining whether some of its elements or the whole of the evidence make it more reliable. 4.2.2 The search for markers of reliability in the confession [ 43 ] The interview was videotaped. The primary operative presented the appellant to the boss. The appellant said he was stressed. The boss reassured him, offered him food and drink and explained that he wanted to get to know the appellant. The boss asked him if he liked his experience in the organization.

The appellant answered that his morale had considerably improved since he became part of the organization. [ 44 ] The boss then asked the appellant to explain to him the organization’s values. The appellant did not hesitate to identify honesty as paramount. The boss agreed and went further. He explained that people taken into the organization must be as white as snow.

If need be, the organization can iron out difficulties, for example by providing an alibi, but for this, the organization had to know the truth. [ 45 ] The conversation turned to details of the appellant’s life, the machinist’s job he held in the past and his self-taught knowledge of

computer science. The boss asked the appellant to describe how he saw the future. The appellant expressed his desire to continue with the organization in the long term. He knew that if he failed to be honest, he would be excluded from the organization. The boss then came back to the question of honesty. He gave the example of “Tantinet”, an organization member for whom an alibi had been fabricated.

He explained to the appellant that because “Tantinet” had told him his story, he had been able to [TRANSLATION] “fix things up . . . mostly because he had been honest”. [ 46 ] The boss then started discussing luxury condominiums. He reiterated his offer to the appellant to live in one. The appellant expressed his gratitude. He described his difficult living conditions and how he had trouble making ends meet.

The boss evoked the possibility of [TRANSLATION] “putting him on the payroll”, providing him with a fixed income, car and cellphone. [ 47 ] The boss emphasized to the appellant that, before enjoying these advantages, [TRANSLATION] “things had to be cleared up”, that the appellant had to be [TRANSLATION] “white as snow”. The boss added that he had [TRANSLATION] “done some checking” and that he had [TRANSLATION] “learned certain things” that were not good.

He said to him [TRANSLATION] “things aren’t looking good for you”, but he offered to help him if, naturally, the appellant agreed to tell him [TRANSLATION] “the whole story”. The boss added that, if he did not want to tell the truth, he could leave the premises. [ 48 ] The appellant then gave the boss the version he had always given to the police. He met the victim on the Internet. She came to his place. They smoked some marijuana together. After, they decided to go to a restaurant. She asked him to drive. He sat in the driver’s seat, but did not feel fit to drive.

His refusal to drive angered the victim and she left. The appellant spent the evening alone at home. [ 49 ] The boss did not believe him. He told the appellant that he had [TRANSLATION] “paid some people” and done some checking and that he knew that the appellant was [TRANSLATION] “lying to him”. He finally reiterated his offer to help if the appellant told him the truth, and he repeated that the appellant could leave the premises. The appellant replied: [TRANSLATION] “You’ll be the first to know what really happened”, and he added [TRANSLATION] “it’s the first time I’ve told anyone”.

He explained that everything he said [TRANSLATION] “up to the part about the pot” was true. He continued as follows: [TRANSLATION] Alain: Then I wanted to snuggle up a bit, but she didn’t want to, so . . . Boss: Yeah, O.K., so what happened? Alain: I strangled her . [Emphasis added.] [ 50 ] The rest of the confession consists of sequences of events discussed several times by the boss and the appellant, who added details every time.

For the purposes of these reasons, I will summarize the appellant’s remarks by grouping them according to the chronology of the events. [ 51 ] The appellant explained that the victim came to his place, that they talked for a while and spent some time together browsing the Internet. The victim offered him a joint. The appellant took three puffs of marijuana, which he is not in the habit of using. After, they decided to go to a restaurant. He wanted to [TRANSLATION] “snuggle up” before leaving, but the victim refused. At that point, he [TRANSLATION] “picked her up” by the throat with one hand.

He held her against the wall for two or three minutes. She did not make a sound. Still holding her against the wall, he slid her toward the bed. The more he moved toward the bed, the less she reacted. They got to the bed. He undressed her. He tried to rape her, but unsuccessfully. Then, she [TRANSLATION] “fell next to the bed, sitting up”. The appellant confirmed that he attempted to have a sexual relation, but no sexual relation as such took place. [ 52 ] The appellant gave details on how he managed to get the body out of the apartment.

Around 11 p.m., he backed the victim’s car very close to the edge of the window of his basement apartment. He identified the victim’s car by means of the registration certificate he found in her handbag. He specified that he concocted an explanation should his fingerprints or DNA be found in the victim’s car, i.e. he had been seated in the vehicle that evening to go to the restaurant.

[ 53 ] He wore sneakers, jeans, a T-shirt, thin wool gloves to leave no traces, and a black, long-sleeved jacket with a [TRANSLATION] “hood”. [ 54 ] The appellant spoke to the victim’s sister over the phone. He explained that she asked him to check if her sister’s car was still outside. He stated that he actually went outside, pretending to check. The victim’s sister called back around 11 p.m. and threatened to call the police. That is when he searched the Internet for information on procedures in the case of a missing person.

By clicking on various links, he ended up on the website of the Ministry of Justice consulting the provisions of the Criminal Code concerning murder, but he explained that he did not actively search for that information. [25] [ 55 ] He wrapped the victim’s body in a [TRANSLATION] “blankie”. He got her out through the window of his basement apartment and put her on the backseat of the car because the trunk was full. He said that no one saw him, since there is a balcony above the window.

In addition, there were cars parked to each side of the window, concealing his actions from prying eyes. [ 56 ] He left in the car. He was looking for a place to abandon the victim’s body. In Lévis, he noticed the entrance to a small Hydro- Québec station. He drove down a winding, muddy road that brought him to the shore of the St. Lawrence. At the end of the road, he got out of the car. He left the body nearby, after sending it rolling down a [TRANSLATION] “slope” for roughly 15 paces. He said that [TRANSLATION] “the water was far away”, even at high tide, [TRANSLATION] “but the place was always a bit damp”.

He got back on the road. He got rid of the victim’s clothes and the [TRANSLATION] “blanket” by throwing them into a dumpster. He parked the car not far from the Château Frontenac. He did not lock the doors, hoping that the car would be stolen. He walked back home. He dropped the car keys down a sewer and threw his gloves into the St. Lawrence. 4.2.3. Corroboration of the appellant’s confession [ 57 ] A number of elements of circumstantial evidence establish the reliability of the confession. A.

Fabricated explanation to justify the presence of his DNA [ 58 ] In his confession, the appellant stated that he fabricated an explanation to justify the possible presence of traces of his DNA or his fingerprints in the victim’s car. [ 59 ] The evidence shows that Francine Massicotte (the victim’s sister) and Manon Lessard (friend of the victim, babysitter of victim’s daughter) each called the appellant in the evening of July 17, a Thursday. They stated that he told them that the victim had left, alone, to go buy cigarettes and that she never came back.

Subsequently, on the Saturday, the appellant gave another version to the police. He explained that he had gotten into the driver’s seat of the victim’s car to go to the restaurant. In the end, though, he didn’t go; his legs were weak because of his marijuana consumption. He alleged that the victim went to the restaurant alone and never came back.

At trial, the appellant denied the cigarette purchase version and maintained that he got into the driver’s seat to go to the restaurant. [ 60 ] Here is the relevant extract of the appellant’s confession: [TRANSLATION] Alain: They found my fingerprints in the car, but I had prepared an explanation for that. Boss: O.K. So what did you tell them? Alain: Well, since I was getting into the car with her to drive, it was normal for my prints to be there.

Boss: O.K. Alain: Or for them to find some DNA, some hair, like, in the car. [ 61 ] This element of the confession, i.e. that he fabricated an explanation to eventually justify the presence of his DNA, is supported by the evidence. B. Testimony of Steve Martel [ 62 ] The testimony of Steve Martel constitutes a second element attesting to the reliability of the appellant’s confession. Mr.

Martel explains that he was on his balcony at around 11 p.m. on the evening of July 17, 2003 when he saw a man about six feet tall, weighing some 180 to 200 pounds, wearing a white T-shirt, arrive from Mont-Thabor Street, where the appellant lives. The man opened the passenger door of a black, four-door Pontiac Sunfire parked in front of his house and placed something on the passenger-side seat. He then went around the vehicle and opened the driver’s door while using his sweater to keep his hand from touching the door handle.

The man then started the vehicle and left, two or three minutes later, with the headlights off. [ 63 ] The details given by Steve Martel correspond to the physical description of the appellant and the victim’s vehicle. They also match what the appellant said at the trial, i.e. that the car was parked about one street corner from his place, which situates it in front of Mr. Martel’s apartment.

In addition, police officer Richard Lachance, who met the appellant together with the main investigator, Sylvain Tremblay, on July 22, 2003, stated that the appellant told him that day [TRANSLATION] “that the vehicle was on the street out front, de la Lorraine Street, which is a street that ends in front of his apartment building”. [ 64 ] In his confession, the appellant explained that he was probably wearing a T-shirt at the time. He also stated that he moved the victim’s car around 11 p.m. in order to place the body in it. This concords with Steve Martel’s testimony.

We also know that the appellant’s computer was inactive from 11:28 p.m. to 4 a.m., which coincides, to within half an hour, with the time at which Mr. Martel saw an individual whose description corresponded to that of the appellant in the black Pontiac Sunfire and matches the departure time given by the appellant in his confession. [ 65 ] That testimony makes the confession considerably more reliable. A person whose appearance corresponded to that of the appellant moved a vehicle identical to that of the victim. The car was parked at the exact spot where the appellant testified that the victim had parked. C.

The detailed content of the confession [ 66 ] The confession is rife with details and explanations. It is hard to imagine how a person who did not commit the murder could give them. [ 67 ] The appellant precisely described how he got rid of the body without being seen in an environment consisting of an apartment building surrounded by neighbours. He backed the car up to the window of his apartment. He was under a balcony and there were cars parked on each side.

He wrapped the body in a blanket and got it out through the window of the apartment. [ 68 ] The fact that he indicated having parked the vehicle in reverse is a very precise detail. He probably did this because he intended to put the body in the trunk—a very logical expectation. It was only after parking the vehicle that he saw that the trunk was full and so he decided to place the body on the back seat. This is a specific detail, compatible with the theory that he committed the crime. He also gave another such detail when he talked about the blanket.

He explained that he could not remember its colour, but he stated that he could check, because he had a picture of his daughter showing the blanket in the background. [ 69 ] At Mr. Big’s request, the appellant described the sequence of events several times, without contradicting himself and with perfect coherence. For example, he twice stated that he strangled the victim with a single hand, despite Mr. Big asking him if he strangled her with two hands. When Mr. Big summarized the elements in the wrong chronological order, he corrected him.

He was categorical as to when he undressed the victim (after he strangled her or while he was strangling her, but not before). He also repeated that he did not

manage to have a sexual relation, even if Mr. Big suggested the contrary a number of times. [ 70 ] Certainly, one might well recognize that the appellant had time earlier to make up a story he expected to have to disclose someday, but the level of details and the coherence with which the story was told and repeated make it all the more reliable. D. Knowledge of certain characteristics of the victim’s vehicle [ 71 ] When Francine Massicotte first called the appellant in the evening of July 17, at 10:37 p.m., she asked him to check if her sister’s car was in the vicinity.

He asked her what the car looked like, intimating that he did not know where it was parked. Yet, according to the version given to the police, he was supposed to have seated himself in the car when leaving for the restaurant, i.e. before the telephone call. At the trial, he confirmed that the telephone call did indeed take place. He tried to justify himself by explaining that he did not know much about cars and therefore did not notice the make of the car when he sat down in it with the victim, around 5:50 p.m., to go to the restaurant.

He did not explain why he also allegedly forgot where the car was parked and what it looked like in general. His forgetfulness seems incongruous because at the trial, i.e. more than seven years later, he remembered where the car was parked, despite his claim that he did not see it when Francine Massicotte asked him to check whether it was there. [ 72 ] At this point, the truth of the appellant’s affirmations is questionable.

The contradiction is so striking that it throws discredit on his testimony according to which he got into the vehicle at 5:50 p.m., and tends to substantiate the theory that he moved it around 11 p.m. E. Confession indicating knowledge of undisclosed information [ 73 ] When confessing to Mr. Big, the appellant possessed information that had not been made public: 1 – the fact that the trunk of the victim’s vehicle was full; and 2 – the fact that it had been abandoned not far from the Château Frontenac with its doors unlocked. Only the murderer could know those facts.

The police had kept these facts secret until the appellant was arrested. [ 74 ] It was only at his trial that the appellant said that the victim had opened the trunk in his presence to put her handbag in it before leaving for the restaurant. It must also be remembered that, in the evening of July 17, he told Francine Massicotte that he did not know where the victim’s car was parked, well after the time he was supposed to have left for the restaurant. This indicates that he had not yet got into the car.

We can infer from this that the appellant was not telling the truth when he gave an explanation justifying his knowledge of the fact that the car’s trunk was full. [ 75 ] The appellant also possessed other information that he could not have known. During the confession, he knew that the vehicle had been left with its doors unlocked. The explanation given at trial, i.e. that a police office had inadvertently disclosed this information to him, constitutes a tardy and unlikely justification. F.

Consultation of certain Internet sites [ 76 ] The appellant’s post-offence conduct can also inform us as to what happened. [26] It constitutes circumstantial evidence that must be assessed with respect to the whole of the evidence. [27] In addition, this fact revealed by the appellant during his confession is corroborated by the expert evidence. [ 77 ] Alain Bouffard, a data retrieval expert, explained that a number of Internet pages were recorded on the appellant’s hard disc within a short period of time.

At 10:27 p.m. on July 18, 2003, i.e. the day after the victim’s visit, the appellant consulted the home page of the website of the Ministry of Justice. The page contains several links. Still at 10:27 p.m., he consulted a page containing links to a number of laws (constitutional texts, Income Tax Act , Criminal Code , etc.). At 10:28 p.m., the page concerning

Part V of the Criminal Code was consulted. The last offence discussed on that page is that of interference with a dead human body. At 10:30 p.m., he consulted the

section of the Criminal Code concerning sentences, particularly for first degree murder. At 10:33 p.m., the appellant visited the website [TRANSLATION] “What to do if a family member disappears”. [ 78 ] In his testimony, the appellant stated that he consulted a website concerning missing persons because of Francine Massicotte’s questions and that he went over the pages of the Criminal Code quickly, clicking on various links, but without deliberately searching for

information. [ 79 ] It may be thought that the appellant consulted the Criminal Code for information on the consequences for himself. This is another element of circumstantial evidence that can be added to the body of evidence to bolster the reliability of the confession. G. The place where the victim’s body was left [ 80 ] In his confession, the appellant explained to Mr. Big that he had taken a sinuous, muddy road leading to the St. Lawrence River and had left the body at a place where the soil was damp. As we know, the body was not found.

An expert heard at the trial expressed the opinion that it might have been swept away by the spring tides, which can flood the banks to a maximum distance of 225 metres. In addition, examination of the victim’s vehicle by experts revealed the presence of red shale, [TRANSLATION] “a rock that is abundant in the Quebec City region along the St. Lawrence River”.

The victim resided in Chambly and the evidence does not support the conclusion that she drove in that type of mud during the trip that led her to the appellant’s apartment on July 17, 2003. [ 81 ] Given these various elements, it must be concluded that the confession gives rise to “no real concern … because, in the circumstances, its truth and accuracy can nonetheless be sufficiently tested”. [28] In fact, certain elements tend to demonstrate that the appellant lied about important facts related to the victim’s disappearance, that a neighbour witnessed a scene supporting the inference that the appellant drove the victim’s vehicle at the time he admitted to have done so in his confession, and that he had information only the murderer could know.

The degree of detail in the confession, its coherence, and the appellant’s conduct after the facts must be added to this body of evidence, such that the threshold for reliability of the confession is adequately attained. Certainly, the appellant provided explanations and attempted to discredit the confirmatory evidence. At this point, the issue is that of deciding whether the probative value of the confession outweighs its prejudicial effect. It must be remembered that the assessment of ultimate reliability of the confession is the purview of the jury. [ 82 ] As is the case for all Mr.

Big operations, the evidence afforded by the confession and the various scenarios is liable to create a risk of moral harm or by faulty reasoning because the jury learns that the appellant wanted to be a member of a criminal organization and that he committed fictitious crimes he believed were real. The prejudice is more limited here because the appellant did not commit any fictitious crime involving violence on his part. In addition, it must be noted that nearly half of the Mr.

Big scenarios bore no relation to any real or fictional criminal activity. [ 83 ] If the probative value of the confession is weighed against the prejudicial effects of the evidence concerning the scenarios and the confession, it must be concluded that the value of the confession wins out. The circumstances of the confession show that the appellant was treated with civility by the boss during the interview. The tone was cordial. The overall context does not support the conclusion that the boss wrung a confession out of him.

In addition, the content of the confession itself was coherent, detailed and corroborated by many elements establishing its reliability. 4.3 Abuse of process [29] [ 84 ] Even if the confession is reliable, the appellant may obtain its exclusion or even a stay of charges where the police officers’ conduct was abusive. [30] Prior to Hart , the doctrine of abuse of process was recognized, but not successfully applied. [31] To date, it has never operated to exclude a Mr. Big confession, nor has it ever led to a stay of charges arising from one of these operations.

In Hart , Moldaver J. proposed a more robust application of the doctrine. [32] [ 85 ] The doctrine may be invoked in the clearest of cases, i.e. where the conduct of the police shocks the conscience of the community. [33] The doctrine is “intended to guard against state conduct that society finds unacceptable, and which threatens the integrity of the justice system”. [34] Therefore, a distinction must be made between inducements to confess that are not problematic, and overwhelming coercion, which is problematic: 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. [35] [ 86 ] In Mack , which came down shortly after Hart , the Supreme Court concluded that “overwhelming inducements” could constitute abuse of process. It affirmed that Mr. Mack was not subjected to overwhelming coercion because he had prospects for legitimate work that would have been better paid.

It added that there were no threats of violence; at most, the creation of an air of intimidation: 36 Nor did the undercover officers engage in any improper conduct which could ground an application for abuse of process. The appellant was not presented with overwhelming inducements . He had prospects for legitimate work that would have paid even more than the undercover officers were offering. Nor did the officers threaten the appellant with violence if he would not confess.

The most that can be said is that the officers created an air of intimidation by referring to violent acts committed by members of the organization. But the appellant was not coerced into confessing. This much is evidenced by the appellant’s initial refusal to speak with Ben and Liam about Mr. Levoir’s disappearance. Indeed, the undercover officers explicitly made clear to the appellant that he did not have to speak with them about Mr. Levoir, and that he could remain in his current role within the organization.

None of the undercover officers’ conduct approaches abuse. [36] [Emphasis added.] [ 87 ] In the present case, there were no threats of violence nor any actual violence. During the meeting, Mr. Big’s conduct was not intimidating or threatening. He was polite, wore a suit, offered the appellant a drink, etc. He also clearly told the appellant that he was free to leave the premises. The boss’s tone intimated cooperation in order to help the appellant. I emphasize that the Supreme Court has not disavowed Mr. Big operations that are suitably conducted.

The Court must strive to “guar[d] against the risk of wrongful convictions that stem from false confessions”, while ensuring “the police are not deprived of the opportunity to use their skill and ingenuity in solving serious crimes”. [37] It has given examples of more vulnerable persons with whom even more caution is required, i.e. persons with a deficiency or mental illness, and youths: 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 ). 117 Violence and threats of violence are two forms of unacceptable coercion. But Mr. Big operations can become coercive in other ways as well. Operations that prey on an accused’s vulnerabilities — like mental health problems, substance addictions, or youthfulness — are also highly problematic ( see Mack , at p. 963).

Taking advantage of these vulnerabilities threatens trial fairness and the integrity of the justice system. As this Court has said on many occasions, misconduct that offends the community’s sense of fair play and decency will amount to an abuse of process and warrant the exclusion of the statement. [38] [ 88 ] The appellant contends that the means employed by the police were [TRANSLATION] “extreme” and that the operation was [TRANSLATION] “long and profoundly manipulative”.

He claims that he was vulnerable and that the operation destroyed his life. [ 89 ] The appellant has not established that he was the victim of coercion such that the confession must be excluded from the evidence or that the charges must be stayed. Yes, the police used cunning and subterfuges to get him to confess a crime, but, on the one hand, he was not subjected to violence and, on the other hand, he did not appear to be in a manifest state of vulnerability. The overall state of the appellant must be taken into account, particularly his personality.

Indeed, he was a social aid recipient and had a solitary lifestyle although he was not socially isolated. But he is intelligent, wilful, determined, and has a strong personality. 4.4 Application of Mack [ 90 ] Once it is determined that the probative value of the confession outweighs its prejudicial effect, the confession may be admitted in evidence. This does not eliminate concerns as to its reliability and as to the prejudice that is susceptible to result from the bad character evidence linked to the confession.

The jury must still decide the matter of the ultimate reliability of the confession and must be mindful of its prejudicial effect. [39] Previously, in Hart , the Supreme Court had suggested elements likely to mitigate the risk of prejudice “by excluding certain pieces of particularly prejudicial evidence that are unessential . . . [and by providing] limiting instructions to the jury

. . .”. [40] This requires the judge to adequately instruct the jury. The Supreme Court has provided guidance for these instructions in R. v. Mack : [52] With respect to the reliability concerns raised by a Mr. Big confession, the trial judge should tell the jury that the reliability of the accused’s confession is a question for them. The trial judge should then review with the jury the factors relevant to the confessions and the evidence surrounding it. As explained in Hart , the reliability of a Mr.

Big confession is affected by the circumstances in which the confession was made and by the details contained in the confession itself.

Thus, the trial judge should alert the jury 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”—all of which play a role in assessing the confession’s reliability ( see Hart , at para. 102 ). [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. [41] [Emphasis added.] [ 91 ] In Mack , the Supreme Court was of the opinion that, in accordance with the functional method of viewing instructions to the jury, the judge “plainly addressed the two concerns raised by the . . . confessions. . .”.

His instructions therefore revealed no error. [42] [ 92 ] Based on these Supreme Court requirements, it is clear that, in the present case, the instructions to the jury were inadequate with regard to the reliability of the confession and its prejudicial effect, in particular given the context in which it was made. As concerns the video of the confession, the judge instructed the jury that that evidentiary item was admissible and that it was up to the jury to decide whether the appellant actually made the statements. He also instructed the jurors that it was up to them to decide its probative value.

He did not discuss the reliability of the confession. Consequently, he did not provide the jury with the tools it needed to address the concerns about reliability and prejudice that arose from the confession. [43] [ 93 ] In the discussions preceding the instructions given to the jury, counsel for the defence nevertheless insisted that the judge caution the jury about the reliability of the confession. The judge refused because, on the one hand, he had already decided that the confession was admissible and, on the other hand, that it was a question of law: [TRANSLATION] Mtre. STÉPHANE BEAUDOIN: . . .

Naturally, I understand your position on admissibility very well. There’s no going back on it. You made a decision: it’s admissible in evidence. We’ve moved on, but I submit to you that the instruction in question may be made concerning the reliability of the statement. So, for my part, what I’m submitting is that, from my point of view, since there is nonetheless an element of coercion that appears in the video and . . . THE COURT: Mtre. Beaudoin . . . Mtre. STÉPHANE BEAUDOIN: Yes.

THE COURT: . . . don’t talk to me of coercion, I found it admissible in evidence . . . Mtre. STÉPHANE BEAUDOIN: Yes. THE COURT: . . . and the instructions I am obliged to give them, is to tell them, effectively, that: “You must carefully consider the accused’s statement, eh, and decide whether or not he actually said those words. And if you conclude that he did say those words, what is the probative value you are going to assign to them?” . . . [Mtre. Baudoin insists.] THE COURT: Well, I’m not going to ask them if it’s reliable, I decided that it was reliable. It’s a question of law.

The jurors will have to decide if they do indeed accept the accused’s version.

They may reject it, they may accept it in part . [Emphasis added.] [ 94 ] As concerns the prejudicial effect of the confession, the judge told the jurors that they could not infer from the evidence of the appellant’s criminal behaviour—stemming from scenarios 1 to 40—that the appellant was guilty of murder, but he did say that the words spoken by the appellant during the scenarios could be used to assess and evaluate his credibility: [TRANSLATION] Remember, you cannot infer anything whatsoever [from the evidence that criminal acts were committed] in order to conclude that he is guilty of having murdered Lyne Massicotte.

However, considering the testimony of the accused, you may take into account the words spoken by the accused during the scenarios for the sole purpose of assessing and evaluating his credibility . [44] [ 95 ] Indirectly, the judge encouraged the jury to adopt a line of reasoning that increased the prejudicial effect of the confession, i.e. he invited the jury to take into account words spoken in the scenarios – during which the appellant did not confess anything, but showed that he was capable of committing various other unrelated crimes – to assess his credibility.

In a way, the judge invited the jury to use evidence of the appellant’s criminal propensity to conclude that the appellant may have lied in his testimony. [ 96 ] In the present case, the prejudicial evidence stemming from the various scenarios should have been admitted for the limited purpose of providing context for the confession. The judge should have instructed the jury that the evidence could not be used for any other purpose. [45] He could not go any further and tell the jury that it could use the abundant evidence of criminal propensity to assess the appellant’s credibility.

In practice, this amounts to encouraging the jury to adopt the prejudicial reasoning that the new rule of common law seeks to avoid. [ 97 ] In short, the judge’s invitation to the jury to take into account the propensity evidence for the purpose of assessing the appellant’s credibility overshadows the effect of the instruction not to use that evidence to conclude that the appellant was guilty. [ 98 ] At the hearing, Crown counsel argued that the jurisdiction of the Court with regard to the appellant’s appeal was limited to an assessment of whether or not the confession was admissible.

He based himself on the wording of the Supreme Court decision according to which the Court must dispose of the appeal in accordance with Hart . From his point of view, the Court is precluded from examining the adequacy of the instructions to the jury in relation to the admissibility in evidence of the confession resulting from a police operation of the Mr. Big type. [ 99 ] In my opinion, he is wrong. Hart and Mack are closely interrelated. Hart sets out the rules for the admissibility in evidence of a confession resulting from a Mr. Big operation.

Mack describes the substance of the instructions allowing a jury to decide the question of

the ultimate reliability of a confession and to be mindful of its prejudicial effect. [46] If the confession is admissible in evidence in accordance with Hart , the jury must be correctly instructed in accordance with Mack . [ 100 ] In the circumstances, given the shortcomings in the instructions, I propose that a new trial be held. (

s) FRANCE THIBAULT J.A. [6] Simulated criminal activities started with the 16th scenario.