2019 QCCA 1227, 2019 QCCA 1227

Bernard c. R. 2019 QCCA 1227 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-006047-151 (460-01-019526-098) DATE: July 11, 2019 CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q. MARIE-JOSÉE HOGUE, J.A. JOCELYN F. RANCOURT, J.A. PATRICE BERNARD APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT * [ 1 ] The appellant appeals the verdict of murder in the second degree rendered against him on November 11, 2015 by a jury presided over by the Honourable Mr.

Justice Martin Bureau of the Superior Court, District of Bedford. [ 2 ] For the reasons of Chief Justice Nicole Duval Hesler, with which Hogue and Rancourt, JJ.A. concur, THE COURT : [ 3 ] GRANTS the motion for leave to appeal; [ 4 ] ALLOWS the appeal; [ 5 ] SETS ASIDE the guilty verdict; and [ 6 ] ORDERS that a new trial be held. NICOLE DUVAL HESLER, C.J.Q. MARIE-JOSÉE HOGUE, J.A. JOCELYN F. RANCOURT, J.A. Mtre Maxime Hébert Lafontaine LATOUR DORVAL For the appellant Mtre Maxime Hébrard DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the respondent Date of hearing: March 27, 2019

REASONS OF THE CHIEF JUSTICE * [ 7 ] The appellant appeals the verdict of murder in the second degree rendered against him on November 11, 2015 by a jury presided over by the Honourable Mr. Justice Martin Bureau of the Superior Court, District of Bedford. [1] [ 8 ] The appellant argues that the trial judge committed three errors: First, he erred in law by concluding that the out-of-court statement the appellant made on September 1, 1987 was free and voluntary. [2] Second, he erred in law by concluding that the judgment in Hart , [3] which deals with “Mr.

Big” confessions, was not the appropriate legal framework for deciding the admissibility of the out-of- court statement the appellant made on May 15, 2009, some 22 years later. Third, the trial judge erred in law in his charge to the jury because he failed to give a Mack instruction. [4] [ 9 ] For the following reasons, I would grant the motion for leave to appeal, allow the appeal and order a new trial.

THE FACTS [ 10 ] On August 31, 1987, Alain Bernard, the appellant’s uncle, was found dead in his home from a bullet wound. [ 11 ] On September 1, 1987, Sûreté du Québec investigators met with the appellant in order to find out what he had been doing the day of the murder. They obtained a statement. [ 12 ] In November 1988, the investigator in charge of the file retired. Given the paucity of physical evidence and the lack of direct evidence, no one was arrested in connection with the crime for over twenty years. [ 13 ] In 2009, a “Mr. Big” operation targeting Alain Béliveau was initiated.

At the end of the operation, Alain Béliveau confessed to Mr. Big that the victim’s daughter, Chantal Bernard, now known as Anthony Tristan Bernard, who is the appellant’s cousin, had organized the murder in order to collect her inheritance and, in particular, the proceeds of a one-million-dollar life insurance policy. [ 14 ] Alain Béliveau told Mr. Big that it was the appellant who had shot the victim while he himself, being aware of what was going on, had stood guard outside the victim’s home.

The three accomplices, Alain Béliveau, Anthony Tristan Bernard and the appellant Patrice Bernard, had then agreed on an alibi. [ 15 ] On May 12, 2009, Alain Béliveau once again met with Mr. Big. Mr. Big told Alain Béliveau that someone in the circle of family and friends of Anthony Tristan Bernard, the victim’s heir, was talking and that he, Alain Béliveau, had to meet with Anthony Tristan Bernard to get his version of the facts regarding his father’s murder.

Alain Béliveau and the undercover agent, who went by the name of Vince, were unsuccessful in getting Anthony Tristan Bernard to talk, so they turned to the appellant, who was now living in Kuujjuaq. [ 16 ] On May 15, 2009, Alain Béliveau, Vince and a third undercover agent flew to Kuujjuaq. Alain Béliveau and Vince intercepted the appellant as he was leaving work. They then had a conversation in the appellant’s vehicle that lasted a little over one hour. Vince sat in the back of the vehicle, the appellant sat in the driver’s seat and Alain Béliveau sat in the passenger seat.

During the exchange, which was recorded and transcribed, the appellant implicated himself in the commission of the murder. [ 17 ] Alain Béliveau, Anthony Tristan Bernard and the appellant were tried separately. [5] In 2016, this Court ordered a new trial in Alain Béliveau’s case. [6] It will soon hear Anthony Tristan Bernard’s appeal. [ 18 ] The appellant’s trial on a charge of murder in the first degree began on October 19, 2015. On that date, a first voir dire was held regarding the out-of-court statement the appellant made on May 15, 2009.

The appellant opposed the introduction of this statement into evidence on the ground that it was presumptively inadmissible and that the Crown had the burden of proving that its probative value exceeded its prejudicial effect, in accordance with the Supreme Court decision in Hart . The trial judge, however, ruled that Hart did not apply to the 2009 statement. [ 19 ] That same day, the appellant filed a motion to stay the proceedings, which the trial judge dismissed. [ 20 ] A second voir-dire was then held regarding the admissibility of the statement the appellant made on September 1, 1987.

At the end of that voir dire , the trial judge ruled that the statement was admissible. It was never filed, but was used to cross-examine the appellant. [ 21 ] At the end of the trial, the jury convicted the appellant of murder in the second degree. THE JUDGMENTS UNDER APPEAL Judgment on a voir dire regarding the out-of-court statement the appellant made on September 1, 1987 ( voir dire no. 2) [ 22 ] The essential parts of the trial judge’s reasons are contained in the following paragraphs: [7]

( translation ) [13] The only evidence offered regarding the circumstances of this statement result from the testimony of the investigator who obtained it and from the admission that his colleague had no recollection of the circumstances or even of the statement, except that he recognized his signature on it in a few places. [14] The defence did not provide any evidence regarding the circumstances surrounding this statement. [15] It appears from the evidence that the accused was met as a witness and not a suspect on September 1, 1987.

There is nothing in the evidence indicating that he was being detained or was threatened or coerced into giving his version of certain facts as a witness. [16] There is nothing in the statement that can be considered a confession or prejudicial to the accused. There is no evidence from the voir dire indicating that the investigator used any deception.

He disclosed his role, used police documentation, and met with the person as a witness, not a suspect. [17] Although the evidence of the circumstances is not detailed, in no manner whatsoever does it show circumstances that could raise a reasonable doubt as to the fact that the statement was made freely and voluntarily by a witness who was not under suspicion at that time. [18] The lack of a police warning is not important here and, indeed, could confirm that, at the time, the accused was not at all a suspect, but merely a witness regarding certain facts.

Judgment on a voir dire regarding the out-of-court statement obtained from the appellant on May 15, 2009 ( voir dire no. 1) [ 23 ] The trial judge concluded that the factors justifying the creation by the Supreme Court of a new admissibility rule for a “Mr.

Big” confession did not apply, given the circumstances surrounding the manner in which the appellant’s statements were obtained: [8] ( translation ) [24] Can one consider that Patrice Bernard was tempted to give a false confession due to a promise of financial security, due to social acceptance resulting from his admittance into the organization or due to friendships he had developed with members of the organization? [25] The answer is no. [26] Can one consider that he made the false confession believing that it would bring him benefits other than those resulting from the fact that someone else might assume responsibility for the crime? [27] Here, too, the answer is no. [28] Moreover, can one consider that Patrice Bernard feared for his safety or the safety of his family or friends if he did not give a false confession? [29] Again, the answer is no. [30] Lastly, given the nature of scenario 47 created by the police officers to get Patrice Bernard’s confession, can one consider that evidence of his participation in that scenario could risk tarnishing his reputation, a highly likely risk when a target is shown to have participated in Mr.

Big operations or scenarios? [31] Once again, the answer is no. Final instructions to the jury [ 24 ] The following were the final instructions to the jury regarding its assessment of the reliability of the appellant’s out-of-court statements: [9] ( translation ) I will now give you certain instructions regarding out-of-court statements that were made or were reported to have been made. When a witness describes a conversation he allegedly had with the accused or he describes things he allegedly heard Patrice Bernard say, you must first determine whether or not those things were actually said in whole or in part.

No matter who is the witness describing the words in question, it is up to you to determine whether or not Patrice Bernard said those things. To do that, you must use logic. Consider the state in which Patrice Bernard and the witness were at the time they had the conversation. You must also consider the circumstances surrounding the conversation. Keep in mind any evidence that might make this testimony more or, conversely, less reliable. You must first determine whether the remarks or statements the witness described were actually made before considering this evidence in your deliberations.

Some or even all the remarks described to you during these discussions could help Patrice Bernard’s defence.

You must consider these remarks within the context of all the evidence, unless you conclude that these remarks were not really made. If you are uncertain whether or not these remarks were made, you must nevertheless consider them insofar as these remarks can help Patrice Bernard’s defence.

If you conclude that Patrice Bernard made these remarks that can help his defence or if you are uncertain whether or not these remarks were made, but you are unable to conclude otherwise, you must consider them within the context of all the evidence in order to determine whether or not you have a reasonable doubt regarding Patrice Bernard’s guilt. When you deliberate, you will be free to determine the weight to be given to the remarks you consider that Patrice Bernard made. However, your conclusions regarding what Patrice Bernard did or did not say are but one piece of evidence among the others.

You must treat this piece of evidence as any other and consider it within the context of all the evidence. You should note that these instructions regarding the accused’s statements could apply more specifically to three (3) pieces of evidence that were presented to you. First, the statement Patrice Bernard made to the police officers on September first (1st) nineteen eighty-seven (1987). This statement was not filed into evidence, but was referred to during Patrice Bernard’s cross-examination. These instructions could also apply to the statement Patrice Bernard allegedly made to Mr.

Roger Clemens and certain others in Kuujjuaq during the nineteen nineties (1990s). Lastly, these instructions could or must apply to the statement that appears or is described through audio evidence of the meeting that took place in Kuujjuaq on May fifteenth (15th) two thousand and nine (2009).

You will have to consider these three (3) statements carefully because of the explanations provided with respect to these three (3) statements, all the more so given that, although Patrice Bernard acknowledged the existence of two (2) of the three (3) statements, namely the one made to the police officers in nineteen eighty-seven (1987) and the one made in Kuujjuaq in two thousand and nine (2009), he nevertheless stated that several elements of these two (2) statements were invented by him, are false, because of the circumstances he explained to you that relate to his fear or concerns.

As regards the statement allegedly made in the nineteen nineties (1990s) to Roger Clemens in the presence of others, Patrice Bernard denies having said what Mr. Clemens described and he provided an explanation that you will have to assess. A little later on, I will give you additional instructions regarding the fact that Patrice Bernard has invoked fear, violence or threats of violence to explain certain of the statements he made or allegedly made. During the trial, witnesses described certain things Patrice Bernard said. The evidence also provides the circumstances in which these things were said.

These circumstances require me to give you specific instructions regarding your use of those remarks during your deliberations. Some of the evidence could lead you to conclude that these statements were extracted from Patrice Bernard through violence or threats of violence. Any statement extracted through violence or threats of violence may not be the genuine expression of a willingness to confess. These statements could merely result from the violence Patrice Bernard experienced or from threats or other similar treatment.

Such statements, if they were obtained through violence, threats or another similar treatment, could very well be unreliable or downright false. In order to determine to what extent these statements are the genuine expression of a confession and in order to determine how much weight to give them, you must consider the circumstances in which these things were said. If you conclude that these statements or part of them were obtained through violence or the threat of violence, you must not give them any weight, or very little during your deliberations. It’s up to you to decide.

I’m going to you give certain instructions regarding statements that are or might appear contradictory. As with any witness, the accused can be cross-examined on what he may have told others, including police officers, regarding matters about which he testified before you.

The fact that an accused said something different about certain matters prior to testifying before you is one element among several others that you must consider in order to determine to what extent his testimony is reliable and the weight you will give this testimony during your deliberations. It will be up to you to determine whether there are in fact differences between the statements Patrice Bernard made regarding certain matters before his trial and his testimony before you on those same matters.

If you conclude that the two (2) versions differ, it will be up to you to determine to what extent these differences do or do not decrease the reliability of Patrice Bernard’s testimony or the weight you will give this testimony during your deliberations. You must consider the nature and extent of the differences as well as any explanation Patrice Bernard offered to explain them. You must also consider the points on which the two (2) versions differ. Are they important matters or minor details? Use logic and common sense.

You may, however, consider Patrice Bernard’s prior statements in order to determine what really happened in this case, even if Patrice Bernard did not acknowledge these prior statements as being true when he testified. This rule applies only to the testimony of the accused, not the other witnesses. It will be up to you to determine to what extent Patrice Bernard’s prior statements are reliable and the weight you will give them in order to establish what really happened at the time of the events that led to the charges.

I’m referring more specifically to Patrice Bernard’s differing testimony regarding the evening and night of August thirtieth (30th) nineteen eighty- seven (1987), the testimony Patrice Bernard gave at the trial and the one he gave the police officers on September first (1st) nineteen eighty-seven (1987) and the statements he made in Kuujjuaq on May fifteenth (15th) two thousand and nine (2009). Patrice Bernard acknowledged that he made those remarks or statements in nineteen eighty-seven (1987) and in two thousand and nine (2009), but he denied that what he said then was true. He gave explanations.

You will have to evaluate them and assess the statements based on the rules I have just given you and give them the weight you decide based on all the rules I have given you. [ 25 ] The trial judge also gave instructions regarding the assessment of evidence of post-crime conduct, which includes the appellant’s out-of-court statements: [10] ( translation) […] You heard evidence that after committing the alleged offences, Patrice Bernard, according to his own words, made false or inaccurate statements to the police on September first (1st) nineteen eighty-seven (1987) and made false statements to Vince and Alain Béliveau on May fifteenth (15th) nineteen eighty-nine (1989).

You must ask yourselves whether these things were said or done because Patrice Bernard had committed the offence or for another purpose, that is, to protect his cousin or Alain Béliveau or to protect himself, given what he said about the threats made against him. You must be careful not to immediately jump to the conclusion that he did or said these things because he was aware of having committed the alleged offence.

In order to determine the reasons why Patrice Bernard did or said what he did or said after the offence was committed, you must consider all the evidence, particularly evidence that offers another explanation for his conduct and remarks, that is, that he doesn’t remember, his desire to protect himself against Alain Béliveau, his desire to protect himself against his father, against Vince. [ 26 ] Lastly, the trial judge reminded the jury that it had to consider the appellant’s out-of-court statements based on all the evidence: [11]

( translation ) So, it’s Exhibit P-19-A as regards the recording and it’s the testimony of Mr. Vince. So, this evidence contains acknowledgements of facts, admissions, words spoken by various individuals. After having determined the statements that Patrice Bernard made, you must assess whether these words, these admissions, analyzed on the basis of all the evidence that was presented to you by each party and particularly by examining the circumstances of this meeting, shows beyond a doubt that Patrice Bernard is the person who caused Mr. Alain Bernard’s death. Listen carefully to the recording of that meeting.

Analyze the testimony of Patrice Bernard and undercover agent Vince as regards the actions and circumstances surrounding this meeting. Based on the rules I have given you and that you must follow, you will have to decide whether, in light of all the evidence, you conclude that the Prosecution has demonstrated to you, beyond a doubt, that Patrice Bernard is the one who caused the death of his uncle, Alain Bernard, on August thirtieth (30th) nineteen eighty-seven (1987).

Although, according to the Prosecution, certain evidence it submitted, such as the testimony of Roger Clemens and the recording of the meeting on May fifteenth (15th) two thousand and nine (2009), shows that Patrice Bernard confessed, don’t forget to consider his testimony regarding his confessions and the circumstances surrounding these statements made in nineteen eighty-seven (1987) and two thousand and nine (2009).

THE ISSUES IN DISPUTE [ 27 ] On appeal, the appellant raises the following questions: Did the trial judge err in law by concluding that the out-of-court statement the appellant made on September 1, 1987 was free and voluntary? Did the trial judge err by concluding that the legal framework of the admissibility rules established by the Supreme Court of Canada for out-of-court confessions made during a “Mr. Big” operation did not apply?

Did the trial judge err in law in his instructions regarding the assessment of the reliability of the appellant’s out-of-court statements? [ 28 ] It should be noted that the third ground of appeal was not included in the notice of appeal. It is under

section 69.4 of the former rules of this Court in criminal matters that the appellant is invoking this new legal argument. 1.

ANALYSIS Did the trial judge err in law by concluding that the out-of-court statement the appellant made on September 1, 1987 was free and voluntary? [ 29 ] Under the common law confessions rule, an out-of-court statement made by an accused to a person in authority, whether inculpatory or exculpatory, [12] is in principle inadmissible at his trial, unless the prosecution shows, with proof beyond a reasonable doubt, that it was made voluntarily. [13] This rule applies even if the declarant has not been arrested or is not being detained. [14] The analysis of the free and voluntary nature of the statement must be contextual. [15] The court must strive to understand the circumstances surrounding the confession and ask whether they give rise to a reasonable doubt as to the confession’s voluntariness. [16] To decide the matter, the presence or absence of a warning is an important factor, without necessarily being conclusive. [17] [ 30 ] Where the trial judge considers all the relevant circumstances and properly applies the law, deference is owed to the judge’s determination of the free and voluntary nature of the statement at issue, because the matter will be a question of fact, or of mixed fact and law. [18] In this situation, only proof of a palpable and overriding error in the judge’s assessment of the evidence will be grounds for appellate intervention. [19] A disagreement with the trial judge regarding the weight to be given various pieces of evidence is not grounds to reverse a finding on voluntariness of a confession. [20] [ 31 ] The appellant essentially argues that the trial judge erred in law in his application of the burden of proof during the voir dire .

More specifically, he ( translation ) “submits that the trial judge’s reasoning is tantamount to saying: since the witnesses have no recollection of the circumstances surrounding the statement made on September 1, 1987, the respondent has met its burden of proof, because there is no evidence of the involuntariness of the statement.” [21] Indeed, the evidence that was presented, namely, the testimony

of the former investigator in question, is quite thin, particularly because, at the time of the meeting, he did not take any notes. Thus, hewas unable to give the court any basic information, such as the location where the exchange took place and its duration.

The only thingabout which he was certain is that he met the appellant as a witness and did not inform him of his right to counsel for that reason. [32] During its arguments before the trial judge, the respondent submitted that (translation) “[i]t would have been sufficient if Mr.Bernard had taken the witness stand and told you, listen, when I made that statement, I was - - this is a voir dire, you know, there is a minimum after all.”[22] The prosecution is clearly mistaken regarding the burden to be met.

It is well recognized that a confession will notbe ruled inadmissible if it was made under circumstances that do not raise a reasonable doubt of its voluntariness, but the prosecutionmust present at least some evidence of those circumstances.

Likewise, the trial judge’s decision merits deference insofar as he considered all the relevant circumstances and correctly applied the law.[23] [33] In the case at bar, the trial judge found that (translation) “[t]here is nothing in the evidence indicating that he was being detainedor was threatened or coerced into giving his version of certain facts as a witness” and that “[t]here is no evidence from the voir direindicating that the investigator used any deception.” The judge was not wrong, because the evidence presented by the respondent revealsvery few circumstances surrounding the manner in which the statement was obtained.

The respondent itself concedes that (translation) “[o]fficer Houle fully recalled certain elements of the statement, although what he remembers is limited”.[24] [34] The trial judge’s reasoning, however, reduces the confessions rule to a negative inquiry, that is, one that consists in merely determining whether there were any explicit threats or promises,[25] when, what is needed is evidence that allows for a real contextual analysis.[26] In Sankey v.

The King, the Supreme Court stated, as early as the beginning of the previous century, that a minimum amount of evidence of all the circumstances in which the statement was taken must be presented:[27] We feel, however, that we should not part from this case without expressing our view that the proof of the voluntary character of theaccused’s statement to the police, which was put in evidence against him, is most unsatisfactory. That statement, put in writing by thepolice officer, was obtained only upon a fourth questioning to which the accused was subjected on the day following his arrest.

Threeprevious attempts to lead him to “talk” had apparently proved abortive—why, we are left to surmise. The accused, a young Indian, couldneither read nor write. No particulars are vouchsafed as to what transpired at any of the three previous “interviews”; and but meagredetails are given of the process by which the written statement ultimately signed by the appellant was obtained.

We think that the policeofficer who obtained that statement should have fully disclosed all that took place on each of the occasions when he “interviewed” theprisoner; and, if another policeman was present, as the defendant swore at the trial, his evidence should have been adduced before thestatement was received in evidence.

With all the facts before him, the learned judge should form his own opinion that the tenderedstatement was indeed free and voluntary as the basis for its admission, rather than accept the mere opinion of the police officer, who hadobtained it, that it was made “ voluntarily and freely.” It should always be borne in mind that while, on the one hand, questioning of the accused by the police, if properly conducted and afterwarning duly given, will not per se render his statement inadmissible, on the other hand, the burden of establishing to the satisfaction ofthe court that anything in the nature of a confession or statement procured from the accused while under arrest was voluntary always rests with the Crown.

The King v. Bellos ( (SCC), [1927] S.C.R. 258); Prosko v. The King ((1922) (SCC), 63 Can. S.C.R. 226).

That burden can rarely, if ever, be discharged merely by proof that the giving of the statement was precededby the customary warning and an expression of opinion on oath by the police officer, who obtained it, that it was made freely andvoluntarily. (Emphasis added) [35] In light of the foregoing, it appears that the trial judge erred in law by admitting the out-of-court statement the appellant madeon September 1, 1987. [36] Since the respondent was of the opinion that this first ground of appeal would fail, it did not invoke the curative proviso.

Giventhat the respondent’s evidence was very largely based on the appellant’s out-of-court statements, it is worthwhile noting that the trialjudge allowed the appellant’s September 1, 1987 statement to be used against him during his cross-examination without that statement having been filed into evidence,[28] which would argue in favour of a new trial. I nevertheless consider it necessary to address the othergrounds of appeal. Did the trial judge err by concluding that the legal framework of the admissibility rules established by the Supreme Court ofCanada for out-of-court confessions made during a “Mr.

Big” operation did not apply? [37] The purpose of a “Mr. Big” police operation is to obtain a confession from an individual for a serious crime that was committed several years earlier and that has not yet been solved.[29] The technique involves luring a suspect into a fictitious criminal organization.[30] Generally over several weeks or months, but in this case, during a single meeting, he is shown the benefits of cooperating with the organization.[31] The suspect’s membership in the organization, however, depends on the goodwill of Mr.

Big, who ultimately attempts to make the suspect understand that he will be accepted into the organization if he confesses to the crime.[32] [38] In Hart, the Supreme Court examined the legal protection afforded to confessions obtained through a “Mr. Big” operation.

As aresult, such confessions are now governed by a specific admissibility rule: The confession will be presumptively inadmissible unless,during a voir dire, the prosecution is able to show, on a balance of probabilities, that its probative value, which is a function of itsreliability, outweighs its prejudicial effect, which stems from the harmful character evidence that is necessarily revealed by placing the confession within its context.[33] In the course of these operations, the suspect is often placed under great pressure and sometimessubjected to veiled threats from the gang or Mr.

Big, while, at the same time, various inducements are held out to him, all of which gives

rise to known risks regarding the confession’s reliability.[34] It is important to acknowledge that juries usually place great weight on the accused’s confession, because people do not normally confess to crimes they have not committed.[35] [39] In light of the foregoing, the appellant submits the following:[36] (translation) [64] Based on the foregoing, the appellant submits that, through the “Mr.

Big” operation, the state undermined the appellant’sautonomy by making him believe that if he did not confess, the fictitious organization could not help him and he would not have thebenefit of the scenario involving the AIDS victim who would claim to have committed the murder. These were substantial, if notirresistible, inducements, that he would be shielded from the police, which the trial judge did not consider when making his decision.This is an error that justifies review by this Court. The appellant was lured by a fictitious criminal organization.

There was no need forthe state to develop a long-standing relationship with the appellant, given his partnership with Alain Béliveau, a friend and so-calledaccomplice in the alleged crime committed more than thirty (30) years earlier.

The latter’s presence and participation in the scenario arerevealing in that regard. [65] Even though the appellant was not led into becoming directly involved in a fictitious criminal organization, as in Hart, supra, thefact remains that the state, via a fictitious criminal organization, not only approached the appellant in order to offer him protection andshield him from the police and a murder charge, in particular, it pressured him to confess with the ultimate inducement: that he would notbe charged with murder.

To achieve this, the fictitious criminal organization psychologically attacked the appellant in a subtle way,which is akin to a form of violence. These are the principles that underlie the rule and justify the application of the new legal frameworkdeveloped in Hart. (Emphasis added, references omitted) [40] In the case at bar, the appellant was not the target of a classic “Mr. Big” operation. Moldaver, J., writing for the majority of the Supreme Court in Hart, explained, in a footnote, the scope of the newly created rule:[37] [5] This rule targets Mr. Big operations in their present form.

A change in the way the police use undercover operations to elicitconfessions may escape the scope of this rule. However, it is not for this Court to anticipate potential developments in policing. To do sowould be speculative.

Time will tell whether, in a future case, the principles that underlie this rule warrant extending its application toanother context. (Emphasis added) [41] The trial judge was therefore correct in asking himself whether, in the present case, the undercover operation was liable topresent the three risks identified in Hart, that is, an unreliable confession, the introduction of bad character evidence, and police misconduct.[38] I believe, however, that he was mistaken in concluding that there was no reason to apply the new rule. [42] The risk of an unreliable confession.

The respondent argues that, unlike the inducements associated with membership in acriminal organization, which could lead a suspect to lie in order to join the organization, in the case at bar, the inducement instead led the appellant to tell the truth and provide reliable information so that the “truth verification strategy”[39] could work.[40] To support its position, it cites the Court of Appeal of Alberta in R. v. Yakimchuk:[41] [63] The manner in which the interrogation is framed can affect the analysis. In a typical Mr.

Big operation, the target must confess tothe boss or risk losing his position in the organization and its benefits: Hart at para 32; Perreault at para 15; Laflamme at para 86.However, in some operations, there is an event that triggers a discussion about the crime under investigation, and Mr. Big offers to helpthe problem disappear. Courts have recognized a difference between a “truth verification strategy” (we can help cover this up if we knowwhat happened) and a strategy which might induce false bragging (are you tough enough for our organization?): R v Campeau, 2015ABCA 210 , 602 AR 140; M(M).

The latter involves greater potential for coercion. (Emphasis added) [43] It should be noted that, in this excerpt, the Court was discussing the probative value of the accused’s statements while applyingHart when reviewing the trial judge’s voir dire decision. Without opining on the advisability of importing the distinction between thetwo types of inducements into our jurisprudence, I am of the opinion that the reasoning does not apply here, given the particularcharacteristics of the scenario.

It seems to me that the appellant, who was stuck for over an hour in his car with two members of acriminal organization whose fictitious nature he was unaware of, could reasonably have believed that it was not his version of the factsthat was being sought, but rather a corroboration of the version already obtained from Alain Béliveau, the target of the classic “Mr. Big”. [44] Indeed, the transcript of the May 15, 2009 meeting shows a rather ambiguous discussion.

From the outset of the exchange,Alain Béliveau insists on several occasions on knowing whether the appellant (translation) “talked to someone about something” because“[s]omething was leaked… ”. The latter firmly denies it and replies: (translation) [45] “I don’t know what to tell you, I can’t help you.” It is at that point that the undercover agent enters the conversation and says:(translation) “I’m gonna explain so you’ll understand” and “I’m gonna explain so you’ll understand properly…”.

And then he explains:(translation) “No, no, no, we’re like a kind of team, Axel (Alain Béliveau) works for me…okay… and, you know, Axel is in deep shitbecause one of you couldn’t keep your trap shut.. so he’s in deep shit, the heat is on, some pigs came to see him”. He continues:(translation) “Because of that. And then, you know, at some point, he didn’t have a choice, he talked to me about it and I’m helpinghim”. Alain Béliveau then adds: (translation) “Oh, it doesn’t matter … We know from a reliable source that … it was you who talked …(inc.) .. but it’s who you talked to .. (inc.)”.

[ 46 ] It is true that when the undercover agent leaves the car, Alain Béliveau says this to the appellant: ( translation ) “No, no, it’s alright, it’s alright, it’s alright, it’s alright, he’s here to help .. help us … not just me … if something happens, he came to help us.” When the undercover agent comes back, he repeats: ( translation ) “It’s just that I want to be sure .. you know .. someone .. I’m telling you .. we’re stuck … someone talked … my purpose, listen, fuck, I don’t have a choice to, I’ve got to end up shooting holes in the story (phon) because, fuck, I have to help Axel”.

Then Vince has the appellant listen to an audio recording to prove to the appellant that they’re ( translation ) “stuck” and says, in passing: ( translation ) “In passing .. we’re just talking, you know .. that cost my boss about five thousand (5000) … okay … to get that, no that”.

Shortly after they listen to the CD, he explains the plan, which consists in giving all the details of how the crime was committed to a terminally ill ( translation) “AIDS victim” who will take the blame, to which the appellant reacts by saying: ( translation ) “In any case, I’m, I’m ..(inc.) I’m nervous, nervous.” He then states that it was Anthony Tristan Bernard (also known as Tony, and formerly known as Chantal Bernard) who picked up the shell casing.

Alain Béliveau once again makes ambiguous statements: ( translation ) “I know, but, look, I’m here to help US,” and then, “Because, you know, I’m in deep shit here .. and, you know, we’re trying to find a way to get me out of this shit,” followed by, “It’s not me, I didn’t say a fucking thing. We’re here now to find out if you said anything.” Finally, the appellant implicates himself in the crime, saying he was the one who picked up the shell casing.

He refers to himself later, in veiled terms, as being the shooter. [ 47 ] In short, the scenario operated on the basis of the presence and confessions of Alain Béliveau, confessions that were obtained through a genuine “Mr. Big” operation, [42] notwithstanding that it was a derivative scenario in which the state took advantage of the relationship between the two men and put the appellant under the full weight of a criminal organization of its own making.

Given the circumstances, I cannot agree with the respondent’s position that this was simply a “truth verification” strategy that would have less of a negative impact on the reliability of the confession. [ 48 ] The prejudicial effect of the confession . In the case at bar, the effect is subtle. The respondent argues that the introduction into evidence of the appellant’s out-of-court statement would not be accompanied by evidence of his bad character. [43] As for the appellant, he does not mention this point in his brief.

As a general rule, the impression that the accused has a bad character results from the fact that, as the target, the accused is willing to commit crimes to become a member of a criminal organization. Here, this element resulted instead from the fact that the target was willing to have someone else take the blame. [ 49 ] The risk of police misconduct . Since the scenario in the case at bar was derived from the main operation, which was a “Mr. Big” operation, I am of the view that the risk of police misconduct must be assessed in light of all the scenarios.

The respondent is right in saying that listening to recording P-19a) does not reveal an atmosphere of violence as such, but one must also consider that the risk of misconduct is intrinsic to the original operation, as the Supreme Court acknowledged in Hart .

Indeed, this is why the trial judge considered all of the scenarios, and not just scenario 47 targeting the appellant, when he had to rule on the motion to stay the proceedings based on sections 7 and 24(1) of the Canadian Charter . [44] [ 50 ] In a sense, undercover operations allow the state to skirt the application of the confessions rule, because, absent unusual circumstances, the undercover agent is not a person in authority within the meaning of that rule. [45] And yet the purpose of the rule is to dissuade state agents from using coercive tactics to get an accused to make an involuntary statement. [46] In any event, the confessions rule requires the court to ask itself whether at the time the accused made the statement, the accused thought the confidant held some power over him or her. [47] It is hard to believe that a presumably innocent citizen faced with demands from the head of a criminal group or an important member of that group is not precisely in that frame of mind.

In the case at bar, the appellant was placed in a position of weakness from the very start of the meeting, when, notwithstanding his denials and refusal to cooperate, he was repeatedly asked if he was the source of the leaked information. In fact, on several occasions, he invited the persons with whom he was speaking to go for a beer, as if he were trying to get out of the situation. Instead, he was made to understand the great lengths to which the criminal organization did not hesitate to go. The presence of Alain Béliveau, the target of “Mr.

Big”, is also decisive, both because of his relationship with the appellant and because of his relationship with Vince, which was established over the course of the scenarios. In the appellant’s mind, the situation could very well have seemed to focus on Alain Béliveau.

In my opinion, such circumstances raise questions regarding the reliability of the statement, questions that should have been addressed in a voir dire . [ 51 ] In its brief and at the hearing, the respondent argued that the appellant could have invoked abuse of process, which he did, and could have asked the trial judge to use his discretionary power to set aside evidence whose prejudicial effect outweighed its probative value.

This argument is not convincing, because it skirts the issue, which is who should bear the burden of proof in a voir dire . [ 52 ] The prosecution seeks the application of the curative proviso to counter the possibility that this Court may allow the appeal on this ground. It argues that the evidence shows, beyond the shadow of a doubt, that the appellant’s statement would have been admitted even if it had been presumptively inadmissible. [48] In support of this claim, it points out that in Béliveau c.

La Reine , [49] this Court found that none of the grounds of appeal addressing the admissibility of Alain Béliveau’s confessions was founded. It seems to me that, even if the respondent were correct on this point, the instructions to the jury might nevertheless have been incomplete, because no Mack warning was given. This is the basis for the appellant’s third ground appeal on a point of law.

In fact, these two grounds of appeal appear to be related, in that if Hart does not apply, the third question cannot stand on its own. [ 53 ] With all due respect for the trial judge, I conclude that he erred when he found that the analysis proposed by the Supreme Court in Hart did not apply to the case at bar. On the contrary, there were many analogies between the “Mr. Big” approach and the general description of these types of operations in Hart : [50] [60] Once the stage is set, the operation culminates in a meeting, akin to a job interview, between the suspect and Mr. Big.

Invariably during these meetings, Mr. Big expresses concern about the suspect’s criminal past and the particular crime under investigation by the police. As the meeting unfolds, it becomes clear that confessing to the crime provides a ticket into the criminal organization and safety from the police. Suspects may be told that Mr. Big has conclusive evidence of their guilt and that denying the offence will be seen as proof of a lack of trustworthiness. In another variation, suspects are told that Mr.

Big has learned from contacts within the police that a prosecution for the offence is imminent based on new evidence. The organization offers to protect the target through a variety of means

—by offering to eliminate a witness or by having someone else confess to the crime—if the suspect confesses to Mr. Big. Throughout the interrogation, any denials of guilt are dismissed as lies, and Mr. Big presses for a confession . [61] As indicated, the technique has proved valuable and has been used to secure convictions in hundreds of cases (see, e.g., R. v. Copeland , 1999 BCCA 744 , 131 B.C.A.C. 264, where a confession elicited through a Mr.

Big operation led the police to the victim’s previously undiscovered body). (Emphasis added) [ 54 ] In the case at bar, Vince expressed concerns about the crime under investigation, made the appellant feel as if he were about to be incriminated and, in particular, made him feel that if he admitted the crime, he could shield himself from the police.

Vince offered to protect the appellant by obtaining a confession from another person, the ( translation ) “AIDS victim”, provided the appellant confessed to his crime, a confession on which Vince insisted and which he ultimately secured because the “AIDS victim” had to be aware of the details of the crime in order for people to believe his confession. [ 55 ] There is no need to say more regarding the reasons—which were well described above and in Hart —why this type of confession may not be reliable, the inducement offered, that of eliminating the possibility of being charged with murder, being an irresistible one.

Did the trial judge err in law in his instructions regarding the assessment of the reliability of the appellant’s out-of-court statements? [ 56 ] ( translation ) “Ultimately, it is for the jury to decide on the reliability of a confession obtained in the course of a “Mr. Big” investigation” . [51] In Mack , a judgment rendered during the same period as the judgment in Hart , the Supreme Court provided details regarding the instructions the jury should receive in such cases.

While the Supreme Court dismissed the idea of a prescriptive formula and favoured a contextual approach on a case by case basis, [52] it nevertheless provided some guidelines: [53] [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. (Emphasis added) [ 57 ] In Béliveau c.

La Reine , this Court found that the instructions to the jury were problematic when viewed from the Mack perspective, because they conveyed the idea ( translation ) “ that a confession will be considered unreliable only if the jury concludes that it was obtained through inhuman or degrading treatment or through violence or threats of violence.” [54] Gagnon, J.A. further stated that ( translation ) “(…) the elements affecting the reliability of a confession obtained through a “Mr. Big” operation are more numerous and nuanced than simply inhuman, degrading or violent treatment.

The examples provided by the Supreme Court, to which I referred earlier, are an illustration thereof”. [55] [ 58 ] Based on these principles, the appellant submits the following: [56] ( translation ) [81] The trial judge then gave additional instructions regarding the out-of-court statements, to the effect that they may have been extracted through violence and threats of violence.

The appellant submits that this instruction has the same weakness as the one identified by this Court in Béliveau , supra , because it conveys the idea “ that a confession will be considered unreliable only if the jury concludes that it was obtained through inhuman or degrading treatment or through violence or threats of violence ”. Consequently, the jury could have wrongly concluded “ that absent evidence of this nature, which was not provided to it, the appellant’s out-of-court statements were therefore reliable ”.

This is particularly true in the case at bar, where the trial judge left this matter entirely in the jury’s hands, telling them, “ It’s up to you to decide ”. [82] As regards the assessment of the appellant’s out-of-court statements, particularly the one made on May 15, 2009, the appellant submits that, in his instructions to the jury, the trial judge did not go over the particular factors in the case at bar. When addressing the jury, he did not dwell on the evidence that might have allowed them to better determine the reliability of this out-of-court statement.

For example, the trial judge did not draw the jury’s attention to the more or less detailed nature of the May 15, 2009 statement, to the fact that it had not led to the discovery of other evidence, to the fact that several facts were public knowledge, to the relationship between the appellant and Alain Béliveau, to the position of weakness in which the appellant found himself when he made the May 15, 2009 statement, to the significant inducement promised to him if he confessed to having participated in the homicide of Alain Bernard, to the

character and tone the undercover agent used at the time the May 15, 2009 statement was made. (Emphasis added, references omitted) [ 59 ] I fully agree with this position. The scenario in the case at bar is not that of a simple undercover agent. The subtleties of the scenario, given its connection to the “Mr.

Big” operation targeting Alain Béliveau, to which the appellant has drawn our attention, should have been pointed out by the judge to the jury, such that the general Hodgson [57] instruction was insufficient. [ 60 ] That being so, it will be up to the judge who presides over the new trial to fashion instructions he or she considers appropriate in light of the evidence to be presented or, indeed, to rule on the admissibility of that evidence. CONCLUSION [ 61 ] For the foregoing reasons, I would grant the motion for leave to appeal; allow the appeal; set aside the guilty verdict and order that a new trial be held.

NICOLE DUVAL HESLER, C.J.Q.