Her Majesty The Queen Appellant v. Nelson Lloyd Hart, 2014 SCC 52

SUPREME COURT OF CANADA Citation: R. v.

Hart, 2014 SCC 52, [2014] 2 S.C.R. 544 Date: 20140731 Docket: 35049 Between: Her Majesty The Queen Appellant and Nelson Lloyd Hart Respondent - and - Director of Public Prosecutions of Canada, Attorney General of Ontario, Directeur des poursuites criminelles et pénales du Québec, Attorney General of British Columbia, Association in Defence of the Wrongly Convicted, British Columbia Civil Liberties Association, Criminal Lawyers’ Association of Ontario, Canadian Civil Liberties Association and Association des avocats de la défense de Montréal Interveners Coram: McLachlin C.J. and LeBel, Abella, Cromwell, Moldaver, Karakatsanis and Wagner JJ.

Reasons for Judgment: (paras. 1 to 151) Concurring Reasons: (paras. 152 to 163) Concurring Reasons: (paras. 164 to 243) Moldaver J. (McLachlin C.J. and LeBel, Abella and Wagner JJ. concurring) Cromwell J. Karakatsanis J. r. v. hart, 2014 SCC 52, [2014] 2 S.C.R. 544 Her Majesty The Queen Appellant

v. Nelson Lloyd Hart Respondent and Director of Public Prosecutions of Canada, Attorney General of Ontario, Directeur des poursuites criminelles et pénales du Québec, Attorney General of British Columbia, Association in Defence of the Wrongly Convicted, British Columbia Civil Liberties Association, Criminal Lawyers’ Association of Ontario, Canadian Civil Liberties Association and Association des avocats de la défense de Montréal Interveners Indexed as: R. v. Hart 2014 SCC 52 File No.: 35049. 2013: December 3; 2014: July 31.

Present: McLachlin C.J. and LeBel, Abella, Cromwell, Moldaver, Karakatsanis and Wagner JJ. on appeal from the court of appeal for newfoundland and labrador Criminal law — Evidence — Admissibility — Confessions — “Mr. Big” confessions — Accused confessing to murdering his two young daughters at end of lengthy Mr. Big operation — Whether new common law rule of evidence should be developed to determine admissibility of Mr. Big confessions — Whether accused’s confessions should be excluded.

Courts — Proceedings — Open court principle — Accused requesting to testify with public excluded from courtroom — Trial judge refusing request — Whether exclusion order in interests of proper administration of justice — Whether failure to accommodate request necessitates new trial — Criminal Code , R.S.C. 1985, c. C-46 , s. 486(1). H’s twin daughters drowned on August 4, 2002. The police immediately suspected that H was responsible for their deaths. However, they lacked the evidence needed to charge him. As a result, two years after the drowning, undercover officers began a “Mr.

Big” operation by recruiting H into a fictitious criminal organization. At the time, H was unemployed and socially isolated — he rarely left home and when he did, he was in the company of his wife. After he was recruited to the organization, H worked with the undercover officers and was quickly befriended by them. Over the next four months, H participated in 63 “scenarios” with the undercover officers and was paid more than $15,000 for the work that he did for the organization. As part of that work, H was also sent on several trips across Canada — to Halifax, Montreal, Ottawa, Toronto and Vancouver.

H often stayed in hotels and occasionally dined in expensive restaurants during these trips, all at the fictitious organization’s expense. Over time, the undercover officers became H’s best friends and H came to view them as his brothers. According to one of the undercover officers, during this time frame, H made a bald statement in which he confessed to having drowned his daughters. The operation culminated with a meeting akin to a job interview between H and “Mr. Big”, the man purportedly at the helm of the criminal organization. During their meeting, Mr.

Big interrogated H about the death of his daughters, seeking a confession from him. After initially denying responsibility, H confessed to drowning his daughters. Two days later, H went to the scene of the drowning with an undercover officer and explained how he had pushed his daughters into the water. He was arrested shortly thereafter. At trial, H’s confessions were admitted into evidence. The trial judge denied H’s request for permission to testify with the public excluded from the courtroom. A majority of the Court of Appeal allowed H’s appeal and ordered a new trial.

The Court of Appeal unanimously held that the trial judge erred in refusing to allow H to testify outside the presence of the public. A majority of the court also concluded that the Mr. Big operation had breached H’s right to silence under s. 7 of the Charter . The majority excluded two of H’s confessions, the one to Mr. Big and the one to the undercover officer at the scene of the drowning. However, the majority concluded that H’s bald confession was admissible and ordered a new trial. Held : The appeal should be dismissed.

Per McLachlin C.J. and LeBel, Abella, Moldaver and Wagner JJ.: There is agreement with the Court of Appeal that, in the circumstances of this case, H should have been allowed to testify outside the presence of the public. The Mr. Big technique is a Canadian invention. Although a version of the technique appears to have been used more than a century ago, its modern use began in the 1990s and, by 2008, it had been used by police across Canada more than 350 times. The technique, used only in cases involving serious unsolved crimes, has secured confessions and convictions in hundreds of cases. The

confessions wrought by the technique are often detailed and confirmed by other evidence. However, the Mr. Big technique comes at a price. Suspects confess to Mr. Big during pointed interrogations in the face of powerful inducements and sometimes veiled threats — and this raises the spectre of unreliable confessions. Unreliable confessions provide compelling evidence of guilt and present a clear and straightforward path to conviction. In other contexts, they have been responsible for wrongful convictions — a fact we cannot ignore. Mr.

Big confessions are also invariably accompanied by evidence that shows the accused willingly participated in “simulated crime” and was eager to join a criminal organization. This evidence sullies the accused’s character and, in doing so, carries with it the risk of prejudice. Experience in Canada and elsewhere teaches that wrongful convictions are often traceable to evidence that is either unreliable or prejudicial. When the two combine, they make for a potent mix — and the risk of a wrongful conviction increases accordingly. Wrongful convictions are a blight on our justice system.

We must take reasonable steps to prevent them before they occur. Mr. Big operations also run the risk of becoming abusive. Undercover officers provide their targets with inducements, including cash rewards, to encourage them to confess. They also cultivate an aura of violence by showing that those who betray the criminal organization are met with violence. There is a risk these operations may become coercive. Thought must be given to the kinds of police tactics we, as a society, are prepared to condone in pursuit of the truth. Under existing law, Mr.

Big confessions are routinely admitted under the party admissions exception to the hearsay rule. Attempts to extend existing legal protections to Mr. Big operations have failed. This Court has held that Mr. Big operations do not engage the right to silence because the accused is not detained by the police at the time he or she confesses. And the confessions rule — which requires the Crown to prove an accused’s statement to a person in authority is “voluntary” — is inoperative because the accused does not know that Mr. Big is a police officer when he confesses.

In sum, the law as it stands provides insufficient protection to accused persons who confess during Mr. Big operations. A two-pronged response is needed to address the concerns with reliability, prejudice and police misconduct raised by these operations. The first prong requires recognizing a new common law rule of evidence. Under this rule, where the state recruits an accused into a fictitious criminal organization and seeks to elicit a confession from him, any confession made by the accused to the state during the operation should be treated as presumptively inadmissible.

This presumption of inadmissibility is overcome where the Crown can establish, on a balance of probabilities, that the probative value of the confession outweighs its prejudicial effect. The probative value of a Mr. Big confession is a function of its reliability. In assessing the reliability of a Mr. Big confession, courts must first look to the circumstances in which the statement was made.

These circumstances include — but are not strictly limited to — the length of the operation, the number of interactions between the police and the accused, the nature of the relationship between the undercover officers and the accused, the nature and extent of the inducements offered, the presence of any threats, the conduct of the interrogation itself, and the personality of the accused, including his or her age, sophistication and mental health. The question for the trial judge is whether and to what extent the reliability of the confession has been called into doubt by the circumstances in which it was made.

After considering the circumstances in which the confession was made, the court should look to the confession itself for markers of reliability. Trial judges should consider the level of detail contained in the confession, whether it leads to the discovery of additional evidence, whether it identifies any elements of the crime that have not been made public, or whether it accurately describes mundane details of the crime the accused would likely not know had he or she not committed it.

Confirmatory evidence is not a hard and fast requirement, but where it exists, it can provide a powerful guarantee of reliability. The greater the concerns raised by the circumstances in which the confession was made, the more important it will be to find markers of reliability in the confession itself or the surrounding evidence. Weighing the prejudicial effect of a Mr. Big confession is a more straightforward and familiar exercise. Trial judges must be aware that admitting Mr. Big confessions creates a risk of moral and reasoning prejudice.

With respect to moral prejudice, the jury learns that the accused wanted to join a criminal organization and committed a host of “simulated crimes” that he believed were real. Moral prejudice may increase with operations that involve the accused in simulated crimes of violence, or that demonstrate the accused has a past history of violence.

As for reasoning prejudice — defined as the risk that the jury’s focus will be distracted away from the charges before the court — it too can pose a problem depending on the length of the operation, the amount of time that must be spent detailing it, and any controversy as to whether a particular event or conversation occurred. However, the risk of prejudice can be mitigated by excluding certain pieces of particularly prejudicial evidence that are unessential to the narrative, or by providing limiting instructions to the jury.

In the end, trial judges must weigh the probative value and the prejudicial effect of the confession at issue and decide whether the Crown has met its burden. Because trial judges, after assessing the evidence before them, are in the best position to conduct this exercise, their decision to admit or exclude a Mr. Big confession will be afforded deference on appeal. This new common law rule of evidence goes a long way toward addressing the concerns with reliability, prejudice, and police misconduct that are raised by Mr. Big operations. It squarely tackles the problems with reliability and prejudice.

In addition, it takes account of police misconduct both by placing the admissibility onus on the Crown and by factoring the conduct of the police into the assessment of a Mr. Big confession’s probative value. However, the common law rule of evidence I have proposed does not provide a complete response to the problems raised by Mr. Big operations. On its own, it might suggest that abusive police conduct will be forgiven so long as a demonstrably reliable confession is ultimately secured. The second prong of the response fills this gap by relying on the doctrine of abuse of process.

The doctrine of abuse of process is intended to guard against state misconduct that threatens the integrity of the justice system and the fairness of trials.

Trial judges must be aware that Mr. Big operations can become abusive. It is of course impossible to set out a preciseformula for determining when a Mr. Big operation will reach that threshold. But there is one guideline that can be suggested. Inconducting an operation, the police cannot be permitted to overcome the will of the accused and coerce a confession. This would almostcertainly amount to an abuse of process. While violence and threats of violence are two forms of unacceptable coercion, operations canbecome abusive in other ways.

Operations that prey on an accused’s vulnerabilities, such as mental health problems, substanceaddictions, or youthfulness, can also become unacceptable. Unsurprisingly, the trial judge did not apply this two pronged framework in determining the admissibility of H’sconfessions. Nor did the parties address it in the courts below or before this Court. Nonetheless, this Court is in a position to decidewhether the respondent’s confessions were properly admitted.

Although a new rule has emerged, the issues have not changed: thereliability of H’s confessions, their potential for prejudice, and the conduct of the police in carrying out this Mr. Big operation have beenin issue from the outset. The parties have addressed these issues, and there is a substantial record before us. These proceedings havealso been difficult and protracted. More than a decade has passed since H’s daughters died. Ordering a new trial and leaving theadmissibility of H’s confessions to be determined by a new trial judge would be tantamount to sending this case back to square one.

That would not be in the interests of justice. Applying the new common law rule to the three confessions attributed to H, it is apparent that their probative value does notoutweigh their prejudicial effect. At the time the operation began, H was unemployed and socially isolated. The operation had atransformative effect on his life, lifting him out of poverty and providing him with illusory friendships. These financial and socialinducements provided H with an overwhelming incentive to confess — either truthfully or falsely.

Nor do the confessions themselves contain any markers of reliability that are capable of restoring faith in their reliability. The confessions contain internal contradictions, and there is no confirmatory evidence capable of verifying any of the details containedwithin the confessions. When the circumstances in which the respondent’s confessions were made are considered alongside theirinternal inconsistencies and the lack of any confirmatory evidence, their reliability is left in serious doubt. On the other hand, these confessions — like all Mr.

Big confessions — carried with them an obvious potential forprejudice. The jury heard extensive evidence that for four months H devoted himself to trying to join a criminal organization and that herepeatedly participated in what he thought were criminal acts. It is easy to see how the jury could come to view H with disdain. Herewas a man who bragged about killing his three-year-old daughters to gain the approval of criminals. The potential for prejudice in thesecircumstances was significant. On balance, the Crown has not met its onus.

The probative value of H’s confessions does not outweigh their prejudicialeffect. Put simply, these confessions are not worth the risk they pose. It would be unsafe to rest a conviction on this evidence. It isaccordingly unnecessary to decide whether the police conduct amounted to an abuse of process. Having excluded H’s confessions from evidence, it is doubtful whether any admissible evidence remains upon which a jury,properly instructed and acting reasonably, could convict H of murder. However, the final decision on how to proceed rests with theCrown.

Per Cromwell J.: There is agreement with the majority’s analysis of the legal framework that ought to apply to statementsobtained from accused persons as a result of Mr. Big operations. However, the admissibility of H’s statements to the undercover officersought to be determined at a new trial where the judge and the parties would have the benefit of the new framework set out in themajority’s reasons. Per Karakatsanis J.: Confessions to state agents raise particular dangers for the criminal justice system. The very structureof Mr.

Big operations creates circumstances that (1) compromise the suspects’ autonomy, (2) undermine the reliability of confessions,and (3) raise concerns about abusive state conduct. Yet, Mr. Big confessions are not caught by the traditional rules governingconfessions to the state, such as the confessions rule or the right to silence. The common law rule proposed by the majority fails toconsistently take into account broader concerns that arise when state agents generate a confession at a cost to human dignity, personalautonomy and the administration of justice.

The principle against self-incrimination, under s. 7 of the Charter, provides comprehensiveand flexible protection in such circumstances. The principle against self-incrimination provides the appropriate analytical framework for several reasons. First, Mr. Bigoperations directly engage the individual privacy, autonomy and dignity interests that the principle is meant to protect. Second, thisapproach draws on existing jurisprudence concerning the principle against self-incrimination, making it unnecessary to create a newrule.

Third, the principle provides an opportunity to weigh intertwined concerns about reliability, autonomy and state conduct togetherin a nuanced way. Finally, it addresses suspects’ rights both during the operation and at trial. In R. v. White, (SCC), [1999] 2 S.C.R. 417, this Court identified four factors for determining whether theprinciple against self-incrimination has been violated by the production or use of a suspect’s statements: adversarial relationship;coercion; reliability; and abuse of state power. While these factors should be considered together, each emphasizes a particular legalinterest.

The onus will be on the accused to establish a prima facie breach of the principle against self-incrimination. To do so, theaccused must show that concerns about autonomy, reliability, and police conduct exist, as they will in nearly every Mr. Big operation. Insuch circumstances, the burden will shift to the Crown to establish that there is no breach. As concerns the first factor, the relationship between H and the state was adversarial. As in any Mr. Big operation, thepolice deliberately set out to obtain a confession from him.

As for the second factor, coercion is primarily concerned with the autonomy and dignity of the suspect and asks whether thesuspect had a choice to speak to the authorities. There will almost always be some degree of coercion in a Mr. Big operation. The courtshould consider: the magnitude and duration of the operation, any explicit or implied threats used, any financial, social or emotional

inducements applied, and the characteristics of the suspect, including any mental, physical, social or economic disadvantages. Thisapproach protects the autonomy of the suspect. In this case, the trial judge concentrated on the lack of violent coercion during the operation, but did not consider the effectof the financial and social inducements on H. These inducements were significant by anyone’s measure, but must be viewed as moreseriously infringing H’s autonomy interests, given his extreme poverty and social isolation as well as his lack of education. The deceitemployed was extensive.

By preying on his vulnerabilities to such a degree, the police deprived H of meaningful choice about whetherto give an incriminating statement to Mr. Big. The reliability enquiry focuses on the trustworthiness of any statement obtained. The court must execute a gatekeeperfunction in assessing the risk of a false confession and corroborating evidence will usually be a prerequisite to admission. This functionis important because juries often struggle to properly assess the ultimate reliability of Mr. Big confessions.

They find it difficult tobelieve that someone would confess to a crime that he or she did not commit and are loath to disregard a confession even where it isknown to be coerced. This danger is compounded by the criminal propensity evidence generated during a Mr. Big investigation. Anaccused must either let the confession stand or explain that he or she made it to continue their new criminal lifestyle. Thus, confessionsmade to Mr. Big are particularly hazardous and the judge must evaluate their threshold reliability to satisfy the principle against self-incrimination.

Generally, an uncorroborated, unverified confession will not be sufficiently reliable and will be inadmissible. However,the inverse does not necessarily hold. The principle against self-incrimination is not solely concerned with ensuring reliable statements;even true statements may be excluded if they were obtained through coercion that overrode the suspect’s autonomy interest. In this case, H had every incentive to confess, whether he committed the crime or not. Not only was his final confessionuncorroborated, but it contained inconsistencies with the other known facts of the case.

Likewise, H’s April 10 confession carries manyof the same reliability concerns. Under the fourth and final factor, the conduct of the state is examined with a view to determining whether the authoritiesused their position of power in an unfair, abusive, or shocking manner. State conduct throughout a Mr. Big operation must be scrutinizedto determine whether it unfairly, unnecessarily or disproportionately manipulated the suspect. This inquiry will also consider otherobjectionable police tactics such as involving the suspect in dangerous conduct or exposing him or her to physical or psychologicalharm.

The entrapment doctrine assists by identifying factors which may be considered in examining the conduct of the state. In this case, the police conduct was egregious and this factor especially weighs in favour of exclusion. The extreme lengthsto which the police went to pursue H, exploiting his weaknesses in this protracted and deeply manipulative operation, is troubling. Thiswas not the usual undercover investigation where police join an existing criminal organization to witness criminals in action. This caseis more akin to entrapment.

The court should consider these factors collectively, attaching weight to them, depending on the degree to which they arepresent in the individual case. The four factors above clearly point to a s. 7 violation. Statements obtained in violation of the principleagainst self-incrimination will almost always be excluded under s. 24(2). This case is no exception; both the risk of a miscarriage ofjustice and the abusive police conduct call for exclusion.

The abuse of process doctrine always remains independently available to provide a remedy where the conduct of the staterises to such a level that it risks undermining the integrity of the judicial process. In this case, the threshold is met. Cases Cited By Moldaver J. Distinguished: R. v. White, (SCC), [1999] 2 S.C.R. 417; referred to: Canadian Broadcasting Corp. v.New Brunswick (Attorney General), (SCC), [1996] 3 S.C.R. 480; R. v. Todd (1901), (MB CA), 4C.C.C. 514; R. v. Hathway, 2007 SKQB 48, 292 Sask. R. 7; R. v. Copeland, 1999 BCCA 744, 131 B.C.A.C. 264; R. v. Bates, 2009ABQB 379, 468 A.R. 158; R. v.

Evans, (SCC), [1993] 3 S.C.R. 653; R. v. Osmar, 2007 ONCA 50, 84 O.R. (3d) 321; R.v. McIntyre, (SCC), [1994] 2 S.C.R. 480; R. v. Hebert, (SCC), [1990] 2 S.C.R. 151; R. v. Grandinetti,2005 SCC 5, [2005] 1 S.C.R. 27; R. v. Creek, ; R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3; R. v. Handy, 2002 SCC56, [2002] 2 S.C.R. 908; R. v. Hodgson, (SCC), [1998] 2 S.C.R. 449; R. v. Harrer, (SCC), [1995] 3S.C.R. 562; R. v. Mohan, (SCC), [1994] 2 S.C.R. 9; R. v. McIntyre, ; R. v. Abbey, 2009 ONCA 624, 97O.R. (3d) 330; R. v. Humaid (2006), (ON CA), 81 O.R. (3d) 456; R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R.298; R. v.

Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787; R. v. Bonisteel, 2008 BCCA 344, 259 B.C.A.C. 114; R. v. Mack, (SCC), [1988] 2 S.C.R. 903; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309; R. v. Fliss, 2002 SCC 16, [2002] 1 S.C.R. 535; R. v.Singh, 2013 ONCA 750, 118 O.R. (3d) 253; RWDSU v. Dolphin Delivery Ltd., (SCC), [1986] 2 S.C.R. 573; Rothman v.The Queen, (SCC), [1981] 1 S.C.R. 640; R. v. Jones, (SCC), [1994] 2 S.C.R. 229; R. v. S. (R.J.), (SCC), [1995] 1 S.C.R. 451; British Columbia Securities Commission v. Branch, (SCC), [1995] 2 S.C.R. 3. By Karakatsanis J. Referred to: R. v.

McIntyre, (SCC), [1994] 2 S.C.R. 480, aff’g (1993), (NB CA), 135N.B.R. (2d) 266; R. v. Hodgson, (SCC), [1998] 2 S.C.R. 449; R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27; R. v.Hebert, (SCC), [1990] 2 S.C.R. 151; R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3; R. v. White, (SCC), [1999] 2 S.C.R. 417; R. v. Jones, (SCC), [1994] 2 S.C.R. 229; R. v. P. (M.B.), (SCC), [1994] 1S.C.R. 555; Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486; Thomson Newspapers Ltd. v. Canada (Director ofInvestigation and Research, Restrictive Trade Practices Commission), (SCC), [1990] 1 S.C.R. 425; R. v.

Harrer, (SCC), [1995] 3 S.C.R. 562; Rothman v. The Queen, (SCC), [1981] 1 S.C.R. 640; R. v. S. (R.J.), (SCC), [1995] 1 S.C.R. 451; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787; R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R.720; R. v. Osmar, 2007 ONCA 50, 84 O.R. (3d) 321, leave to appeal refused, [2007] 2 S.C.R. vii; R. v. Bonisteel, 2008 BCCA 344, 259B.C.A.C. 114; R. v. Mack, (SCC), [1988] 2 S.C.R. 903; R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411; R.

v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309; R. v. Therens, (SCC), [1985] 1 S.C.R. 613; R. v. Grant, 2009 SCC 32,[2009] 2 S.C.R. 353. Statutes and Regulations Cited Canadian Charter of Rights and Freedoms, ss. 7, 10(b), 11(d), 24. Criminal Code, R.S.C. 1985, c. C-46, s. 486(1). Authors Cited Black’s Law Dictionary, 6th ed. St. Paul, Minn.: West, 1990, “coercion”. British Columbia. RCMP. “Undercover Operations” (online: http://bc.cb.rcmp-grc.gc.ca/ViewPage.action?siteNodeId=154&languageId=1&contentId=6941). Dawson, Wendy E. “The Use of ‘Mr. Big’ in Undercover Operations”, in Criminal Law: Special Issues, Paper 5.2.

Vancouver: Continuing Legal Education Society of British Columbia, 2011. Garrett, Brandon L. “The Substance of False Confessions” (2010), 62 Stan. L. Rev. 1051. Kassin, Saul M., et al. “Police-Induced Confessions: Risk Factors and Recommendations” (2010), 34 Law & Hum. Behav. 3. Keenan, Kouri T., and Joan Brockman. Mr. Big: Exposing Undercover Investigations in Canada. Halifax: Fernwood Publishing, 2010. Martin, G. A. “The Admissibility of Confessions and Statements” (1963), 5 Crim. L.Q. 35. Moore, Timothy E., Peter Copeland and Regina A.

Schuller. “Deceit, Betrayal and the Search for Truth: Legal and PsychologicalPerspectives on the ‘Mr. Big’ Strategy” (2009), 55 Crim. L.Q. 348. Paciocco, David. “Charter Tracks: Twenty-Five Years of Constitutional Influence on the Criminal Trial Process and Rules of Evidence”(2008), 40 S.C.L.R. (2d) 309. Paciocco, David M., and Lee Stuesser. The Law of Evidence, 6th ed. Toronto: Irwin Law, 2011. Stewart, Hamish. Fundamental Justice:

Section 7 of the Canadian Charter of Rights and Freedoms. Toronto: Irwin Law, 2012. APPEAL from a judgment of the Newfoundland and Labrador Court of Appeal (Green C.J.N.L. and Harrington andBarry JJ.A.), 2012 NLCA 61, 327 Nfld. & P.E.I.R. 178, 1015 A.P.R. 178, 267 C.R.R. (2d) 29, 97 C.R. (6th) 16, [2012] N.J. No. 303(QL), 2012 CarswellNfld 400, setting aside the accused’s convictions for first degree murder and ordering a new trial. Appealdismissed. Frances J. Knickle, Q.C., and Elaine Reid, for the appellant. Jamie Merrigan and Robby D. Ash, for the respondent. James C. Martin and Natasha A.

Thiessen, for the intervener the Director of Public Prosecutions of Canada. Michael Bernstein, for the intervener the Attorney General of Ontario. Pierre L. Bienvenue, for the intervener Directeur des poursuites criminelles et pénales du Québec. Lesley A. Ruzicka, for the intervener the Attorney General of British Columbia. Russell Silverstein and Michael Dineen, for the intervener the Association in Defence of the Wrongly Convicted. Michael Sobkin, for the intervener the British Columbia Civil Liberties Association.

Philip Campbell and Jonathan Dawe, for the intervener the Criminal Lawyers’ Association of Ontario. Written submissions only by Frank Addario and Megan Savard, for the intervener the Canadian Civil Liberties Association. François Dadour and Harout Haladjian, for the intervener Association des avocats de la défense de Montréal. Marie Henein and Matthew Gourlay, for the amicus curiae. The judgment of McLachlin C.J. and LeBel, Abella, Moldaver and Wagner JJ. was delivered by Moldaver J. — I.

Introduction [1] When conventional investigations fail to solve serious crimes, police forces in Canada have sometimes used the“Mr. Big” technique. A Mr. Big operation begins with undercover officers luring their suspect into a fictitious criminal organization oftheir own making. Over the next several weeks or months, the suspect is befriended by the undercover officers. He is shown thatworking with the organization provides a pathway to financial rewards and close friendships. There is only one catch. The crime boss

— known colloquially as “Mr. Big” — must approve the suspect’s membership in the criminal organization. [ 2 ] The operation culminates with an interview-like meeting between the suspect and Mr. Big. During the interview, Mr. Big brings up the crime the police are investigating and questions the suspect about it. Denials of guilt are dismissed, and Mr. Big presses the suspect for a confession. As Mr. Big’s questioning continues, it becomes clear to the suspect that by confessing to the crime, the big prize — acceptance into the organization — awaits.

If the suspect does confess, the fiction soon unravels and the suspect is arrested and charged. [ 3 ] This case provides us with an opportunity to take an in-depth look at Mr. Big confessions and the principles that should govern their admissibility. While such operations have a long history in this country, courts have yet to create a legal framework that addresses the unique issues which accompany such confessions.

As we undertake that task in this case, we must strive to achieve a just balance — one which guards against the risk of wrongful convictions that stem from false confessions but which ensures the police are not deprived of the opportunity to use their skill and ingenuity in solving serious crimes. [ 4 ] To be sure, the Mr. Big technique has proven to be an effective investigative tool. It has produced confessions and secured convictions in hundreds of cases that would otherwise have likely gone unsolved. The confessions elicited are often detailed and confirmed by other evidence.

Manifestly, the technique has proved indispensible in the search for the truth. [ 5 ] But the technique comes with a price. Suspects confess to Mr. Big during pointed interrogations in the face of powerful inducements and sometimes veiled threats — and this raises the spectre of unreliable confessions. [ 6 ] Unreliable confessions present a unique danger. They provide compelling evidence of guilt and present a clear and straightforward path to conviction. Certainly in the case of conventional confessions, triers of fact have difficulty accepting that an innocent person would confess to a crime he did not commit.

And yet our experience with wrongful convictions shows that innocent people can, and do, falsely confess. Unreliable confessions have been responsible for wrongful convictions — a fact we cannot ignore. [ 7 ] The concern about Mr. Big confessions does not end there. The confessions are invariably accompanied by evidence that shows the accused willingly participated in “simulated crime” and was eager to join a criminal organization. This evidence sullies the accused’s character and, in doing so, carries with it the risk of prejudice.

It also creates credibility hurdles that may be difficult to overcome for an accused who chooses to testify. [ 8 ] Experience in Canada and elsewhere teaches that wrongful convictions are often traceable to evidence that is either unreliable or prejudicial. When the two combine, they make for a potent mix — and the risk of a wrongful conviction increases accordingly. Wrongful convictions are a blight on our justice system and we must take reasonable steps to prevent them before they occur. [ 9 ] Finally, Mr. Big operations run the risk of becoming abusive.

Undercover officers provide their targets with inducements, including cash rewards, to encourage them to confess. They also cultivate an aura of violence by showing that those who betray the criminal organization are met with violence. Thought must be given to the kinds of police tactics we, as a society, are prepared to condone in pursuit of the truth. [ 10 ] Against that background, I am of the view that a principled rule of evidence is required to assess the admissibility of Mr. Big confessions.

For reasons that follow, I would propose that where the state recruits an accused into a fictitious criminal organization of its own making and seeks to elicit a confession from him, any confession made by the accused to the state during the operation should be treated as presumptively inadmissible. This presumption of inadmissibility will be overcome where the Crown can establish, on balance, that the probative value of the confession outweighs its prejudicial effect. In this context, the confession’s probative value is a function of its reliability.

Its prejudicial effect stems from the harmful character evidence that necessarily accompanies its admission. If the Crown is unable to demonstrate that the accused’s confession is admissible, the rest of the evidence surrounding the Mr. Big operation becomes irrelevant. [ 11 ] Trial judges must also carefully scrutinize the conduct of the police to determine if an abuse of process has occurred. No matter how reliable the confession, the courts cannot condone state conduct — such as physical violence — that coerces the target of a Mr. Big operation into confessing.

Where an accused establishes that an abuse of process has occurred, the court can fashion an appropriate remedy, including the exclusion of the confession or a stay of proceedings. [ 12 ] In this case, at the end of a lengthy Mr. Big operation, the respondent confessed to murdering his two young daughters. At trial, his confessions were admitted into evidence.

A majority of the Newfoundland Court of Appeal concluded that two of the three confessions should have been excluded, but allowed a third confession to be introduced and, on that basis, ordered a new trial. [ 13 ] Applying the framework I propose here, I would exclude all three of the respondent’s confessions. Each of them came about in the face of overwhelming inducements. This calls into question their reliability — and there is no confirmatory evidence capable of restoring our faith in them. As such, they carry little if any probative value.

On the other hand, the bad character evidence accompanying the confessions carries with it an obvious and serious potential for prejudice. In these circumstances, the prejudicial effect of the respondent’s confessions outweighs their probative value. [ 14 ] Accordingly, I would dismiss the appeal. II. Background Facts [ 15 ] The facts in this case are important. I propose to review them in some detail. A. The Deaths of Karen and Krista Hart

[ 16 ] The respondent’s three-year-old twin daughters — Karen and Krista Hart — drowned on August 4, 2002. Their deaths triggered a three-year-long investigation that culminated with the respondent confessing to their murder at the end of a protracted Mr. Big operation. [ 17 ] The respondent was the last person to see his daughters alive. On the morning of August 4, 2002, he took them to play on the swings at a park near their home in Gander, Newfoundland. There was a lake adjacent to the park.

According to his wife, the respondent returned home 30 to 45 minutes later, in a panic, and told her that Krista had fallen into the water. When his wife asked where Karen was, the respondent claimed to have forgotten her at the park. [ 18 ] The respondent and his wife raced back to the park and an ambulance was called. First responders found Karen and Krista floating in the lake several hundred meters apart from each other. By then, it was too late to save their lives. [ 19 ] The respondent’s unusual behaviour provoked the suspicion of the police. They questioned him that evening.

The respondent said that when he got to the park and removed his daughters from their car seats, they ran onto a dock and Krista fell into the water. The respondent said he panicked because he could not swim, so he ran back to his car and drove home to get his wife, forgetting Karen on the dock. The police remained unconvinced and asked the respondent why he did not call for help using either of the cell phones that were found in his car. The respondent explained that his phone did not have any minutes on it, and that the other phone did not belong to him.

He also said that he never thought of stopping at a nearby restaurant or hospital for help instead of driving all the way home to get his wife. When the police confronted him directly, the respondent denied that he had drowned his daughters. [ 20 ] The police were convinced that the respondent killed his daughters and lied to them during his first interview. They questioned him again on September 12, 2002. During the interrogation, which lasted approximately eight hours, the police told the respondent they had no doubt about his guilt and urged him to confess.

The respondent stood firm. [ 21 ] Two weeks later, however, the respondent changed his story. He contacted the police and volunteered that he had not been truthful in his previous statements. He told the police that he had a seizure at the park after he removed his daughters from the car. When the seizure passed and he “[came] to”, he was “dopey” but he could see one of his daughters “in the water”. His only thought was to drive home to his wife. He explained that he had lied in his earlier statements because he did not want to lose his driver’s licence.

The respondent suffers from epilepsy and his licence has been suspended on previous occasions because of his condition. [ 22 ] The police remained convinced of the respondent’s guilt, but they did not have sufficient evidence to charge him. The investigation went cold. B. The Mr. Big Operation [ 23 ] Two years later, the police rekindled the investigation after deciding to target the respondent in a Mr. Big operation. The preliminary stages of the undercover operation began in December 2004 when officers conducted several weeks of “lifestyle” surveillance on the respondent.

The surveillance revealed that the respondent was on social assistance and that he was socially isolated — he rarely left home, and when he did he was accompanied by his wife. [ 24 ] Undercover officers made their first move in February 2005. An officer, whom I will call “Jim”, approached the respondent outside of a convenience store. [1] Jim asked the respondent to help him look for his missing sister. The respondent obliged and was paid $50. During the day, Jim told the respondent that he owned a trucking company and that he needed a driver.

The respondent volunteered for the job. [ 25 ] The goal of the operation over the next several weeks was to develop a relationship between the respondent and the undercover officers. The respondent worked for Jim and drove truckloads of goods for him from one location to another.

He was introduced to another undercover officer, whom I will call “Paul”, whose role was to work with him and become his “best friend”. [2] Initially, the respondent sought to bring his wife with him when he did deliveries, but early on, Jim and Paul forbade him from doing so. [ 26 ] Around the same time, Jim and Paul revealed that they were part of a criminal organization and that there was a “boss” who headed up their operations.

Thereafter, the respondent participated in simulated criminal activity with the officers, delivering trucks that purportedly contained smuggled alcohol and packages with stolen credit cards. [ 27 ] The financial rewards that flowed from working with the organization quickly became apparent. In February and March, the respondent travelled to St. John’s and Halifax, spending several nights in hotels paid for by his benefactors and enjoying frequent dinners with Jim and Paul.

In the two month period, he was paid approximately $4,470 for his work. [ 28 ] By the beginning of April, the respondent was fully immersed in his new fictitious life. The respondent would “constant[ly]” tell Jim that he loved him. At a dinner with Jim and Paul, he told both officers that they were “brothers” to him and that there was nowhere else in the world he would rather be. He raised a toast to the boss. [ 29 ] On April 10, 2005, according to Jim, the respondent confessed to murdering his daughters. That night, the respondent had dinner with Jim.

Jim told the respondent that their organization was involved with prostitution in Montreal, and that if prostitutes were dishonest, the organization had to deal with them. Jim claimed that he had assaulted a prostitute himself, and that bad things sometimes had to be done. The respondent informed Jim that he had no problem getting his hands dirty. He too had done terrible things in the past. At that point, he produced a picture of his daughters from his wallet and told Jim that they were both dead.

He confided that he had planned their murder and carried it out. [3] [ 30 ] The operation continued over the next two months. Jim and Paul constantly preached the importance of trust, honesty and loyalty within the organization. Those who were not trustworthy were met with violence. On one occasion, Jim slapped another undercover officer across the face in front of the respondent, ostensibly because he had spoken to others about their business dealings.

[ 31 ] In the middle of May 2005, the operation began building towards the climatic meeting with Mr. Big. During a trip to Vancouver, Jim told the respondent that there was a “big deal” coming in the future that would “set [the respondent] financially”. The respondent was told he would be paid between $20,000 and $25,000 if he participated. Later on, while on a trip to Toronto, the respondent was shown $175,000 in cash. The money was said to be a down payment toward the impending deal. [ 32 ] Jim informed the respondent that he would only be allowed to participate in the deal if Mr. Big gave his approval.

Jim took the respondent’s licence and social insurance number so the organization could perform a background check to see if he had any “heat” on him or was a “rat”. In early June, while in Montreal, Jim told the respondent that Mr. Big had checked into him and that he had found a problem. The respondent would not be allowed to work with the organization until the issue was resolved. The respondent did not know what the problem was, but he became very concerned that he would not be involved in the impending deal. [ 33 ] The respondent met with Mr. Big on June 9, 2005. Jim told the respondent that Mr.

Big was going to question him about the problem that had been uncovered during his background check. Jim urged the respondent to be honest with Mr. Big. [ 34 ] At the beginning of the meeting, the respondent expressed his gratitude to Mr. Big, telling him that his life had turned around since he started working for the organization. Mr. Big shifted the topic of the conversation to the death of the respondent’s daughters. He told the respondent that there might be some “heat” coming regarding their deaths and he asked the respondent why he killed his daughters.

The respondent replied that he had suffered a seizure, implying that their deaths were accidental. Mr. Big dismissed this explanation and told the respondent not to “lie” to him. [ 35 ] After some further prodding by Mr. Big, the respondent confessed to killing his daughters. He explained that he had done so because he feared Child Welfare was going to take his daughters from him and place them with his brother. When the respondent was asked how he killed his daughters, he said that they “fell” over the wharf at the park. Mr.

Big pressed the respondent for more details, and the respondent explained that he “struck” his daughters with his shoulder and that they fell over the wharf into the water. [ 36 ] Two days later, on June 11, 2005, the respondent returned with Jim to the park where his daughters drowned. Jim had the respondent re-enact how the drowning occurred. During the re-enactment, Jim knelt down and the respondent demonstrated how he pushed his daughters into the water by nudging Jim with his knee. [ 37 ] On June 13, the respondent was arrested and charged with two counts of first degree murder.

The police allowed the respondent to make a phone call, and his first call for help went to Jim. [ 38 ] The respondent’s arrest came four months after the Mr. Big operation began and nearly three years after his daughters died. During the course of the Mr. Big operation, the respondent participated in 63 “scenarios” with the undercover officers. The operation saw him travel to Halifax, Montreal, Ottawa, Toronto and Vancouver, where he stayed in hotels and dined frequently in some of the country’s finest restaurants. In total, the respondent was paid $15,720 for his work.

The police also paid an unknown amount for the respondent’s hotels, room service, dinners, trips to the casino, and transportation. The total cost of the operation was $413,268. [ 39 ] At trial, the confessions the respondent made during the Mr. Big operation were admitted into evidence and he was convicted by a jury of two counts of first degree murder. III. Proceedings Below A. Supreme Court of Newfoundland and Labrador Trial Division, 2007 NLTD 74 , 265 Nfld. & P.E.I.R. 266

(1) The Admissibility of the Mr. Big Confessions [ 40 ] The respondent moved at trial to have the confessions he made during the Mr. Big operation excluded from evidence. The respondent argued that the intimidating and threatening conduct of the officers throughout the Mr. Big operation was oppressive and led to a “fundamental breach” of his rights under s. 7 of the Canadian Charter of Rights and Freedoms (para. 43).

He also argued that this same conduct rendered his confessions inadmissible under the principled approach to the rule against hearsay, as the threatening police conduct made his confessions unreliable. The respondent testified on the voir dire and explained that he worked for the fictitious criminal organization because he was making good money and he was afraid of Jim and Paul. He denied confessing to Jim on April 10, 2005 and said that he had lied in his confessions on June 9 and 11, 2005 because he was afraid of Mr. Big. [ 41 ] The trial judge denied the respondent’s application.

He rejected the respondent’s evidence that he felt threatened and intimidated by the undercover operatives. Instead, he found that the respondent had bonded with them and continually sought more work from them. In addition, the trial judge found that the respondent was given a number of chances to leave the operation but he made no effort to do so.

(2) Testifying With the Public Excluded From the Courtroom [ 42 ] Towards the end of his trial, the respondent brought an application requesting that he be allowed to testify with the public excluded from the courtroom. A voir dire was held and the respondent gave evidence. He explained that he wanted the public excluded during his testimony because he had never been good at “talk[ing] in front of a crowd”. He said he would get “frustrated”, “confused”, and “all tangled up”.

He worried that the pressure of testifying in front of a courtroom full of people would cause him to have a seizure. [ 43 ] The trial judge denied the respondent’s application. The trial judge commented that he was “reluctant” to prevent the public from “hear[ing]” the respondent’s evidence. In his view, “stress” was an insufficient reason for excluding the public from the courtroom. He also noted that the respondent had already given evidence in front of the public on the voir dire into the admissibility of his confessions and at his bail hearing.

B. Supreme Court of Newfoundland and Labrador, Court of Appeal, 2012 NLCA 61, 327 Nfld. & P.E.I.R. 178

(1) The Admissibility of the Mr. Big Confessions [44] At the Court of Appeal, the respondent argued that the confessions he made during the Mr. Big operation ought tohave been excluded because they were obtained in breach of his right to silence under s. 7 of the Charter. Green C.J., writing for himselfand Harrington J.A., allowed the appeal on this ground. [45] The majority held that the protection afforded by the right to silence could be extended beyond situations where anindividual had been detained by the state.

In the majority’s view, the question was not whether the respondent was “det[ained]” at thetime of his confession to Mr. Big, but whether he was under “state control” (para. 198). In so concluding, the majority borrowed fromthe test articulated by this Court in R. v. White, (SCC), [1999] 2 S.C.R. 417, to determine if a breach of his s. 7 right tosilence had occurred. [46] On the facts, the majority found that the respondent was clearly under state control when he confessed to Mr. Big. After considering the factors from White, the majority concluded a breach of s. 7 had occurred.

As a result, the majority turned to s.24(2) of the Charter and concluded that admitting the respondent’s June 9 and 11, 2005 confessions would bring the administration ofjustice into disrepute. [47] Barry J.A. dissented on the issue of the admissibility of the respondent’s confessions. In his view, the respondent’sright to silence was not triggered prior to detention. Moreover, the trial judge’s finding that the respondent had numerous chances toleave the operation but made no effort to do so were findings of fact entitled to considerable deference on appeal.

Even if the “statecontrol” test was applicable, Barry J.A. would not have found a s. 7 violation.

(2) Testifying With the Public Excluded From the Courtroom [48] The Court of Appeal unanimously found that the trial judge unreasonably denied the respondent’s application totestify with the public excluded from the courtroom. Barry J.A., with whom the majority agreed, held that fairness in this case requiredthat the respondent have the opportunity to present his evidence as “clearly as possible” (para. 125).

The respondent’s history withseizures, his evidence that he became confused and had difficulty thinking straight in front of a crowd, the importance of any explanationhe could provide regarding his confessions to Mr. Big, and the prejudice that would result if he resiled from his commitment made in thepresence of the jury that he planned to testify, all weighed in favour of granting his request. IV. Issues [49] The Crown was granted leave to appeal on the following two issues:

(1) Did the trial judge err in admitting the confessions made by the respondent during the Mr. Big operation?

(2) Did the trial judge err in precluding the respondent from testifying with the public excluded from the courtroom? V. Analysis [50] While the crux of this appeal involves the respondent’s confessions during the Mr. Big operation, I begin with hisrequest to testify with the public excluded from the courtroom. That aspect of the appeal is straightforward and can be dealt with briefly. A.

Testifying With the Public Excluded From the Courtroom [51] While the importance of the open court principle cannot be doubted, s. 486(1) of the Criminal Code, R.S.C. 1985, c.C-46, provides trial judges with a discretion to exclude the public from the courtroom in several circumstances, including where such anorder is in the interests of “the proper administration of justice”. In Canadian Broadcasting Corp. v.

New Brunswick (Attorney General), (SCC), [1996] 3 S.C.R. 480, this Court set out three factors trial judges are to consider in making such an order: (1) theavailability of reasonable and effective alternatives; (2) whether the order is limited as much as possible; and (3) the importance of theorder’s objectives and its probable effects when weighed against the importance of openness and the particular expression that will belimited. [52] In this case, the trial judge denied the respondent’s request, noting that “stress” was an insufficient reason forexcluding the public from the courtroom.

In consequence, the respondent did not testify. [53] A trial judge’s decision under s. 486(1) is entitled to deference and “should not lightly be interfered with” (CanadianBroadcasting Corp., at para. 78). Here, however, I am respectfully of the view that the trial judge erred in refusing the respondent’srequest. The trial judge’s error lay at the third stage of the test. To begin, the respondent’s testimony was critically important in thecircumstances of this case. If he was to be acquitted, the jury would have to believe, or at least have a reasonable doubt, that theconfessions he made during the Mr.

Big operation were false. Testifying in order to disavow them was a near tactical necessity for therespondent. The respondent sought to testify outside of the presence of the public in part because he was concerned that the stress oftestifying in front of a full courtroom would cause him to have a seizure.

It was incumbent on the trial judge, in the uniquecircumstances of this case, to take reasonable steps to accommodate the respondent’s disability and to facilitate his testimony. [54] Unfortunately, the trial judge mistook the nature of the respondent’s request, as is apparent from his comment thathe was reluctant to prevent the public from “hear[ing]” the respondent’s evidence. The respondent was not asking that the public becompletely foreclosed from hearing his evidence. Rather, he simply wanted to testify outside of their physical presence.

As such, hisevidence could have been made available to the public, while granting his request, by broadcasting his testimony into another courtroom

on closed circuit television. In the particular circumstances of this case, granting the accommodation sought would not, in my view, haveundermined the open court principle. [55] As a result, I agree with the conclusion of the Court of Appeal. This error alone necessitates a new trial. B. The Admissibility of the Mr. Big Confessions

(1) Mr. Big Operations in Canada [56] The Mr. Big technique is a Canadian invention. Although a version of the technique appears to have been used bythe police as far back as 1901, its modern use began in the 1990s and has continued since then (see R. v. Todd (1901), (MB CA), 4 C.C.C. 514 (Man. K.B.), at p. 523). According to the B.C. RCMP, the technique has been used across Canada on more than350 occasions as of 2008.[4] [57] The technique tends to follow a similar script in each case. Undercover officers conduct surveillance on a suspect inorder to gather information about his or her habits and circumstances.

Next, they approach the suspect and attempt to cultivate arelationship. The suspect and the undercover officers socialize and begin to work together, and the suspect is introduced to the idea thatthe officers work for a criminal organization that is run by their boss — “Mr. Big”. The suspect works for the criminal organization andis assigned simple and apparently illegal tasks — serving as a lookout, delivering packages, or counting large sums of money arecommon examples. As occurred in this case, this stage of the operation can last for several months. See T. E. Moore, P. Copeland andR. A.

Schuller, “Deceit, Betrayal and the Search for Truth: Legal and Psychological Perspectives on the ‘Mr. Big’ Strategy” (2009), 55Crim. L.Q. 348, at pp. 351-52; K. T. Keenan and J. Brockman, Mr. Big: Exposing Undercover Investigations in Canada (2010), at p. 19. [58] As the operation wears on, the suspect is offered increasing responsibility and financial rewards. By flying thesuspect across the country, putting him up in hotels, and taking him to expensive restaurants, undercover officers show the suspect thatworking with the group provides a life of luxury and close friendships.

All the while, the suspect is constantly reminded that his or herultimate acceptance into the group depends on Mr. Big’s approval (see Keenan and Brockman, at p. 20). [59] Throughout the operation, the suspect is also told that the organization demands honesty, trust and loyalty from itsmembers. An aura of violence is cultivated to reinforce these values. Officers teach the suspect that those who betray the trust of theorganization are met with violence.

They do this by telling the suspect that the organization kills “rats”, or by exposing him to simulatedacts of violence perpetrated by members of the organization against other undercover officers as punishment for imagined betrayals (see,e.g., Moore, Copeland and Schuller, at pp. 356-57). R. v. Hathway, 2007 SKQB 48, 292 Sask. R. 7, provides a stark example. In thatcase, undercover officers simulated an assault on a woman who had crossed the criminal organization. During the beating, officersthreatened to kill the woman, her husband, and her infant child.

The accused watched as undercover officers threw the bloodied womaninto the trunk of a car. [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 underinvestigation by the police. As the meeting unfolds, it becomes clear that confessing to the crime provides a ticket into the criminalorganization and safety from the police. Suspects may be told that Mr.

Big has conclusive evidence of their guilt and that denying theoffence will be seen as proof of a lack of trustworthiness. In another variation, suspects are told that Mr. Big has learned from contactswithin the police that a prosecution for the offence is imminent based on new evidence. The organization offers to protect the targetthrough a variety of means — by offering to eliminate a witness or by having someone else confess to the crime — if the suspectconfesses to Mr. Big. Throughout the interrogation, any denials of guilt are dismissed as lies, and Mr.

Big presses for a confession (see,e.g., C.L.A. factum, at paras. 7-8; Keenan and Brockman, at pp. 19-21). [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 thevictim’s previously undiscovered body). [62] To date, there are no established wrongful convictions stemming from its use. However, in 1992, Kyle Unger wasconvicted of murder based in part on a confession elicited through a Mr.

Big operation, as well as forensic evidence found at the scene ofthe crime. In 2004, the forensic evidence was called into question by a review committee. The Minister of Justice ordered a review ofthe conviction, and the Crown ultimately withdrew the charges after determining it did not have sufficient evidence to proceed with anew trial (see also R. v. Bates, 2009 ABQB 379, 468 A.R. 158, where an accused, though properly convicted of manslaughter, overstatedhis involvement by falsely confessing to Mr. Big that he was the person who shot a rival drug dealer).

(2) Do We Need a Test for Determining the Admissibility of Mr. Big Confessions? [63] In cases where the Mr. Big technique has been used, the ensuing confessions have typically been received at trial. Under the existing case law, they have been admitted under the party admissions exception to the hearsay rule (see R. v. Evans, (SCC), [1993] 3 S.C.R. 653, at p. 664; R. v. Osmar, 2007 ONCA 50, 84 O.R. (3d) 321, at para. 53).

The admissibility ofparty admissions flows from the adversarial nature of our trial system, and the belief that “what a party has previously stated can beadmitted against the party in whose mouth it does not lie to complain of the unreliability of his or her own statements” (Evans, at p. 664). [64] Attempts to extend existing legal protections to Mr. Big operations have failed. This Court has held that Mr. Bigoperations do not engage the right to silence because the accused is not detained by the police at the time he or she confesses (see R. v.McIntyre, (SCC), [1994] 2 S.C.R. 480; R. v.

Hebert, (SCC), [1990] 2 S.C.R. 151). And theconfessions rule — which requires the Crown to prove an accused’s statement to a person in authority is “voluntary” — is inoperativebecause the accused does not know that Mr. Big is a police officer when he confesses (see R. v. Grandinetti, 2005 SCC 5, [2005] 1S.C.R. 27). [65] Under existing law, it appears that defence counsel have only two options for challenging the admissibility of these

confessions: under the doctrine of abuse of process, or under a trial judge’s overriding discretion to exclude evidence that is moreprejudicial than probative. Trial judges have only rarely excluded Mr. Big confessions under either of these doctrines. Indeed, theparties could find no case in which a Mr. Big confession was excluded as an abuse of process, and only one case in which a confessionwas excluded on the basis that its prejudicial effect exceeded its probative value (see R. v.

Creek, (B.C.S.C.)). [66] A threshold issue raised by this appeal is whether the existing framework adequately protects the rights of thosesubject to Mr. Big investigations. The Crown contends that no further protections are needed and that the law as it stands strikes aproper balance between the accused’s rights and the need for effective policing. By contrast, the respondent and amicus curiae submitthat Mr. Big confessions present unique dangers that must be addressed by placing a filter on their admissibility. [67] I agree with the respondent and amicus curiae.

In my view, the law as it stands today provides insufficientprotection to accused persons who confess during Mr. Big operations. Three concerns lead me to this conclusion. (

a) The Danger of Unreliable Confessions [68] First, because of the nature of Mr. Big operations, concerns arise as to the reliability of the confessions theyproduce. The purpose of these operations is to induce confessions, and they are carefully calibrated to achieve that end. Over a periodof weeks or months, suspects are made to believe that the fictitious criminal organization for which they work can provide them withfinancial security, social acceptance, and friendship.

Suspects also come to learn that violence is a necessary part of the organization’sbusiness model, and that a past history of violence is a boast-worthy accomplishment. And during the final meeting with Mr.

Big —which involves a skillful interrogation conducted by an experienced police officer — suspects learn that confessing to the crime underinvestigation provides a consequence-free ticket into the organization and all of the rewards it provides. [69] It seems a matter of common sense that the potential for a false confession increases in proportion to the nature andextent of the inducements held out to the accused. Unsurprisingly, this view is supported by academic literature (see R. v. Oickle, 2000SCC 38, [2000] 2 S.C.R. 3, at paras. 39 and 44; S. M.

Kassin et al., “Police-Induced Confessions: Risk Factors and Recommendations”(2010), 34 Law & Hum. Behav. 3, at pp. 14-15). [70] The common law confessions rule serves to illustrate the importance of a trial judge’s role in assessing reliability. The confessions rule has long concerned itself with the dangers posed by unreliable confessions (see, e.g., G. A. Martin, “TheAdmissibility of Confessions and Statements” (1963), 5 Crim. L.Q. 35, at p. 35).

Under the confessions rule, we recognize thatunreliable confessions made by an accused pose particular dangers, as juries often attach great weight to the accused’s own words. When an accused falsely confesses to a crime, the risk of a wrongful conviction becomes acute. This Court recognized as much inOickle, when it noted that false confessions have played an “important role” in cases where wrongful convictions have occurred (para.36). Subsequent research has confirmed that risk.

In 40 of the first 250 DNA exonerations in the United States, for example, theaccused was found to have falsely confessed to the crime (see B. L. Garrett, “The Substance of False Confessions” (2010), 62 Stan. L.Rev. 1051). [71] The confessions rule thus guards against the danger of unreliable confessions by requiring the Crown to prove to ajudge beyond a reasonable doubt that an accused’s statement was voluntarily made.

Where the Crown is unable to do so, the accused’sstatement is rendered inadmissible. [72] But as the law stands today, unlike our approach with the confessions rule, we have failed to adopt a consistentapproach to assessing the reliability of Mr. Big confessions before they go to the jury. This is so despite the obvious nature of theinducements these operations create. In my view, it would be dangerous and unwise to assume that we do not need to be concernedabout the reliability of Mr. Big confessions simply because the suspect does not know that the person pressuring him to confess is apolice officer.

And although it will be easier for a jury to understand why an accused would falsely confess to Mr. Big than to the policeduring a conventional interrogation (because of the more obvious nature of the inducements and the accused’s belief that it is in his self-interest to confess), this does not provide a complete answer to the reliability concerns raised by these confessions.

Under theconfessions rule, we do not abandon our concern for reliability in cases where a confession is the product of clear threats or inducements,on the assumption that the jury will have an easier time understanding why it is unreliable. (

b) The Prejudicial Effect of Mr. Big Confessions [73] The second concern with Mr. Big confessions — and one that distinguishes them from confessions made in othercontexts — is that they are invariably accompanied by prejudicial facts regarding the accused’s character. Putting these confessions intoevidence requires showing the jury that the accused wanted to join a criminal organization and that he participated in “simulated” crimesthat he believed were real.

The absence of a consistent approach in assessing the admissibility of these confessions sits uneasily with thegeneral rule that bad character evidence is presumptively inadmissible for the Crown. This centuries-old rule prohibits the Crown fromleading evidence of misconduct engaged in by the accused that is unrelated to the charges before the court, unless it can demonstrate thatits probative value outweighs its prejudicial effect (see R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908). [74] Bad character evidence causes two kinds of prejudice.

It causes “moral prejudice” by marring the character of theaccused in the eyes of the jury, thereby creating a risk that the jury will reason from the accused’s general disposition to the conclusionthat he is guilty of the crime charged, or that he is deserving of punishment in any event (Handy, at para. 31). And it causes “reasoningprejudice” by distracting the jury’s focus away from the offence charged, toward the accused’s extraneous acts of misconduct (ibid.). Asthis Court held in Handy, the “poisonous potential” of bad character evidence cannot be doubted (para. 138). [75] When a Mr.

Big confession is admitted, the character evidence that accompanies it places the accused in a difficultsituation. In these cases, the accused is often obliged, as a tactical necessity, to testify in order to explain why he falsely confessed to MrBig. The character evidence that has already been admitted is damaging in this context because it shrouds the accused with an aura ofdistrust before he or she steps into the witness box. This distrust is compounded when the accused asks the jury to disregard hisconfession because he was lying when he gave it.

And all of this furnishes the Crown with ample fodder for a forceful attack on theaccused’s credibility in cross-examination.

[76] Despite the well-established presumption that bad character evidence is inadmissible, it is routinely admitted in Mr.Big cases because it provides the relevant context needed to understand how the accused’s pivotal confession came about. Indeed, eventhe accused comes to depend on this evidence in order to show the nature of the inducements he faced and the reason his confessionshould not be believed. [77] In my view, the prejudicial effect of Mr. Big confessions is a substantial concern, especially since these confessionsmay also be unreliable.

Putting evidence before a jury that is both unreliable and prejudicial invites a miscarriage of justice. The lawmust respond to these dangers. The fact that there are no proven wrongful convictions in cases involving Mr. Big confessions provideslittle comfort. The criminal justice system cannot afford to wait for miscarriages of justice before taking reasonable steps to preventthem. (

c) Police Misconduct [78] Finally, Mr. Big operations create a risk that the police will resort to unacceptable tactics in their pursuit of aconfession. As mentioned, in conducting these operations, undercover officers often cultivate an aura of violence in order to stress theimportance of trust and loyalty within the organization. This can involve — as it did in this case — threats or acts of violence perpetratedin the presence of the accused.

In these circumstances, it is easy to see a risk that the police will go too far, resorting to tactics whichmay impact on the reliability of a confession, or in some instances amount to an abuse of process. [79] At present, however, these operations are conducted in a legal vacuum. The legal protections afforded to accusedpersons, which are often intended at least in part to place limits on the conduct of the police in their investigation and interrogation ofaccused people, have no application to Mr. Big operations.

The confessions rule, for example, is intended not only to guard against therisk of unreliable confessions, but also to prevent abusive state conduct (see R. v. Hodgson, (SCC), [1998] 2 S.C.R.449, at para. 20). Yet its protection does not apply because the accused does not know the person he is speaking to is a person inauthority. Other protections — like the right to counsel under s. 10(

b) of the Charter — are rendered inapplicable because the accused isnot “det[ained]” by the police while the operation is ongoing. And the doctrine of abuse of process — intended to protect against abusivestate conduct — appears to be somewhat of a paper tiger. To date, it has never operated to exclude a Mr. Big confession, nor has it everled to the stay of charges arising from one of these operations. [80] In my view, the lack of an effective mechanism for monitoring the conduct of the undercover officers who engage inthese operations is problematic. The law must enable trial judges to respond effectively to police misconduct in this context.

(3) How Should the Law Respond to the Problems Posed by Mr. Big Confessions? [81] Having determined that the law must respond to the risks inherent in Mr. Big confessions, the more difficultquestion is what form that response should take. Mr. Big operations raise three distinct concerns — reliability, prejudice, and thepotential for police misconduct — and we must ensure that trial judges have the tools they need to address all three of these issues. [82] The parties and interveners have provided a long list of options for dealing with the problems raised by Mr. Bigconfessions.

They include affirming the Court of Appeal’s extension of the s. 7 right to silence, expanding the common law confessionsrule to apply to Mr. Big operations, subjecting Mr. Big confessions to the principled approach that now governs hearsay evidence, orassessing the reliability of Mr. Big confessions before admitting them into evidence as a means of ensuring an accused’s right to a fairtrial under ss. 7 and 11(

d) of the Charter. Rather than pointing to a clear solution, the diversity of the options provided reflects thedifficulty of the task that confronts us. [83] In searching for a response to the concerns these operations raise, we must proceed cautiously. To be sure, Mr. Bigoperations can become abusive, and they can produce confessions that are unreliable and prejudicial. We must seek a legal frameworkthat protects accused persons, and the justice system as a whole, against these dangers. On the other hand, Mr.

Big operations are notnecessarily abusive, and are capable of producing valuable evidence, the admission of which furthers the interests of justice. We oughtnot forget that the Mr. Big technique is almost always used in cold cases involving the most serious crimes. Put simply, in responding tothe dangers posed by Mr. Big confessions, we should be wary about allowing serious crimes to go unpunished. (

a) Summary of a Proposed Solution [84] In this section, I propose a solution that, in my view, strikes the best balance between guarding against the dangersposed by Mr. Big operations, while ensuring the police have the tools they need to investigate serious crime. This solution involves atwo-pronged approach that (1) recognizes a new common law rule of evidence, and (2) relies on a more robust conception of the doctrineof abuse of process to deal with the problem of police misconduct. [85] The first prong recognizes a new common law rule of evidence for assessing the admissibility of these confessions.

The rule operates as follows: Where the state recruits an accused into a fictitious criminal organization of its own making and seeks toelicit a confession from him, any confession made by the accused to the state during the operation should be treated as presumptivelyinadmissible. This presumption of inadmissibility is overcome where the Crown can establish, on a balance of probabilities, that theprobative value of the confession outweighs its prejudicial effect. In this context, the confession’s probative value turns on anassessment of its reliability.

Its prejudicial effect flows from the bad character evidence that must be admitted in order to put theoperation and the confession in context. If the Crown is unable to demonstrate that the accused’s confession is admissible, the rest of theevidence surrounding the Mr. Big operation becomes irrelevant and thus inadmissible.

This rule, like the confessions rule in the case ofconventional police interrogations, operates as a specific qualification to the party admissions exception to the hearsay rule.[5] [86] As regard the second prong, I would rely on the doctrine of abuse of process to deal with the problem of policemisconduct. I recognize that the doctrine has thus far proved less than effective in this context. While the problem is not an easy one, Ipropose to provide some guidance on how to determine if a Mr. Big operation crosses the line from skillful police work to an abuse ofprocess.

[87] The purposes of this two-pronged approach are to protect an accused’s right to a fair trial under the Charter, and topreserve the integrity of the justice system. Those are the ends that must ultimately be achieved. This approach strives to reach them byensuring that only those confessions that are more probative than prejudicial, and which do not result from abuse, are admitted intoevidence. [88] However, it must be remembered that trial judges always retain a discretion to exclude evidence where its admissionwould compromise trial fairness (see R. v. Harrer, (SCC), [1995] 3 S.C.R. 562).

This is because “the general principlethat an accused is entitled to a fair trial cannot be entirely reduced to specific rules” (ibid., at para. 23). It is impossible to predict everyfactual scenario that could present itself. As such, I do not foreclose the possibility that, in an exceptional case, trial fairness may requirethat a Mr. Big confession be excluded even where the specific rules I have proposed would see the confession admitted. [89] In practice, this two-pronged approach will necessitate that a voir dire be held to determine the admissibility of Mr.Big confessions.

The Crown will bear the burden of establishing that, on balance, the probative value of the confession outweighs itsprejudicial effect, and it will be for the defence to establish an abuse of process. Trial judges may prefer to begin their analysis byassessing whether there has been an abuse of process. A finding of abuse makes weighing the probative value and prejudicial effect ofthe evidence unnecessary. [90] Against this backdrop, I will now elaborate on the main features of this two-pronged solution. (

b) Why Does the Crown Bear the Onus of Establishing That the Probative Value of a Mr. Big Confession Outweighs Its PrejudicialEffect? [91] The common law rule of evidence I have proposed creates a presumption that Mr. Big confessions are inadmissible,and places the onus of demonstrating that they ought to be received on the Crown. The onus is justified because of the central roleplayed by the state in creating these confessions. It is the state that designs and implements these operations, expending significantresources and acting as puppeteer in the production of the accused’s ultimate confession.

The state creates the potent mix of a potentiallyunreliable confession accompanied by prejudicial character evidence. Given its pivotal role, the state should bear the responsibility ofshowing that the confession it has orchestrated and produced warrants admission into evidence. [92] Placing the onus on the Crown also works to address concerns with abusive state conduct. Confronted by the realitythat the Crown will ultimately bear the burden of justifying reception of a Mr. Big confession, the state will be strongly encouraged totread carefully in how it conducts these operations.

As I will explain, the conduct of the police is a factor to be taken into account inassessing the reliability of a Mr. Big confession. This creates a strong incentive for the state to conduct these operations with restraint. [93] The onus has the added benefit of encouraging the creation of a more thorough record of the operation. At present,many of the key interactions between undercover officers an

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