2019 QCCA 1744, 2019 QCCA 1744

Subramaniam c. R. 2019 QCCA 1744 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006109-167 (500-01-077823-125) DATE: 17 OCTOBER 2019 CORAM: THE HONOURABLE LOUIS ROCHETTE, J.A. PATRICK HEALY, J.A. SIMON RUEL, J.A. ABIRAM SUBRAMANIAM APPELLANT — Accused v. HER MAJESTY THE QUEEN RESPONDENT — Prosecutor JUDGMENT [ 1 ] The appellant appeals from a verdict rendered on 22 January 2016 by a jury presided by the Honourable Marc-André Blanchard of the Superior Court, District of Montreal.

He was found guilty of second-degree murder and robbery after the admission of a statement obtained on 28 August 2012 at the conclusion of a “Mr. Big” operation. [ 2 ] For the reasons of Healy, J.A., with which Rochette and Ruel JJ.A., concur, THE COURT : [ 3 ] DISMISSES the appeal. LOUIS ROCHETTE, J.A. PATRICK HEALY, J.A. SIMON RUEL, J.A.

Mtre Catherine Ranalli For the Appellant Mtre Marianna Ferraro DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the Respondent Date of hearing: 12 September 2019 REASONS OF HEALY, J.A. [ 4 ] The appellant was found guilty of second-degree murder after the admission of a statement obtained on 28 August 2012 at the

conclusion of a “Mr. Big” operation (herein “MBO”). Two grounds of appeal First ground of appeal [ 5 ] He appeals on the ground that trial judge erred in admitting this evidence. [1] The appellant does not argue that the trial judge misstated the applicable principles stated by the Supreme Court of Canada in R. v. Hart [2] and developed in subsequent jurisprudence. Nor does he assert that the judge failed to consider a material element of evidence. He claims that the trial judge misapplied the principles in Hart in his assessment of the evidence.

Second ground of appeal [ 6 ] He also appeals on the ground that an MBO should be an investigative strategy of last resort, when all other techniques have been exhausted. [ 7 ] The second ground has no merit. There is no principle of positive law in Canada, statutory or otherwise, that would impose upon the police an obligation to refrain from using an MBO unless all other investigative methods have been exhausted. Correspondingly, there is no obligation on the prosecution to prove, as a condition of admissibility, that all investigative techniques had been used before the police conducted an MBO.

There is also no principle of law that would restrict the use of an MBO to so-called “cold” cases. In short, the MBO is lawful in Canada. [3] It is subject to judicial control by rules and principles of admissibility, stated in Hart , if and when the fruits of such an operation are tendered as evidence in court by the prosecution. [ 8 ] A rule of the type suggested by the appellant could not be implemented by any competent authority without nuanced attention to its modalities, as suggested by the following questions: When does an MBO become a technique of “last resort”?

Is prior authorisation required for an MBO and, if so, from what authority? Is an MBO permissible only for certain offences? Under what conditions, and within what limits, may an MBO be conducted? By what criteria, and to what standard, must the prosecution prove in a voir dire that the police had exhausted all investigative techniques before commencing an MBO? By what criteria, and to what standard, must the prosecution prove in a voir dire concerning the admissibility of a statement that an MBO was lawfully conducted?

These are only some of the many questions that would demand answers in the formulation of a prescriptive rule of the type proposed by the appellant. [ 9 ] There is no authority for the proposition advanced by the appellant and there is no basis upon which this court can create a legislative edict to enforce such a proposition. Accordingly, this ground of appeal fails. Record [ 10 ] It should be noted, before considering the first ground of appeal, that the record is not complete. It does not include, for example, a recording or a transcription of the statement made by the appellant on 28 August 2012.

It also does not include several exhibits that were produced at the voir dire on the admissibility of the statement. It does not include transcriptions of the evidence at trial.

This omission is not consistent with the requirements of section 682(2) of the Criminal Code . [4] As a result, the appellant is foreclosed from impugning the findings of fact by the trial judge and those facts must be taken as proved. [5] Standard of review [ 11 ] As there is no doubt that the judge relied upon the correct principles of law, the issue in this appeal concerns his evaluation of the evidence presented at the voir dire before deciding to admit the statement.

The Court cannot allow the appeal unless it is satisfied that the judge made a palpable and overriding error in his assessment of that evidence. This exercise imposes upon the Court a duty of deference to the assessment of the judge. [6] Facts [ 12 ] On 22 March 2011 the appellant and several others were smoking and drinking beer in a car park in Montreal. One of the others, Clinton Sathiyaseelan (C.S.), had a ring that the appellant wanted to see. He removed it and handed it to the appellant but the appellant later refused to return the ring to C.S.

Another person present, Joshua Williams, intervened between the two. He was killed by several stabs wounds.

[ 13 ] On 26 March 2011 the appellant, then nineteen years of age, was arrested and questioned by investigators but he was later released. They noted that the appellant was careful not to leave any physical traces of his presence during the interview and that he appeared to be a very self-assured, “street smart” young man who seemed to reveal the confidence of an older person. [ 14 ] The appellant later gave the ring to his cousin to be returned to C.S. After the killing C.S. reported the incident to police. He gave several statements and was shown several photographs.

He said the assailant was among the photographs but refused to identify which one. Investigators later recovered the appellant’s DNA on a beer bottle near the body of the victim and a cigarette butt at the scene of the killing. Police also recovered video surveillance of the appellant that showed him buying beer in a nearby convenience store at the relevant time. C.S. called 911 after the killing and without specifically identifying the appellant as the assailant he implicated the appellant in the incident. C.S. then left Canada for several months but investigators subsequently met him again on three occasions.

The investigators noted that he was clearly nervous about collaborating but he told them that he would tell them the truth if they charged the killer and that he would not frustrate their investigation. [ 15 ] A report of the investigation was presented to prosecutors, consisting chiefly of the anticipated statements of C.S., the DNA, information about the return of C.S.’s ring, and the video in the convenience store. They declined to lay charges on the ground that the evidence was insufficient. The advised the investigators to pursue their inquiries by other means, notably electronic surveillance.

The investigators obtained an authorisation for this purpose on 16 April 2012. Undercover agents acquired the appellant’s telephone number and installed a device in his car on 8 May 2012. [ 16 ] On 15 May 2012 investigators decided to begin an MBO. The operation began the next day. The appellant was offered financial inducements for participation in the operations of a fictitious criminal organisation. His contact with the organisation was “Mike.” In the following months the operation included forty-one interactions of various kinds between undercover investigators and the appellant.

The operation included a range of activities performed by the appellant for the organisation and he received substantial sums of money. It culminated on 28 August 2012 when the appellant confessed killing the victim to Mr. Big during a conversation that occurred in Vancouver. Position of the appellant [ 17 ] At trial, and now on appeal, the defence advanced several grounds to support an argument, following the principles in Hart , that the confession was inadmissible and that the MBO used to obtain it was an abuse of process.

The defence position was, and is, that the police coercively exploited various vulnerabilities of the appellant, notably: - financial coercion; - alcohol abuse; - emotional weakness; - youthfulness; - violence or threats of violence. [ 18 ] The appellant claims that the MBO exploited these vulnerabilities and that the effect of this exploitation, individually and collectively, amounted to coercion that justified exclusion of the statement or a stay of proceedings.

These specific vulnerabilities are advanced both with regard to the claim of unreliability in the statement and the alleged abuse of process. [ 19 ] The trial judge determined that the statement was reliable and that the MBO leading to it was not an abuse of process. He concluded his ruling by saying that after careful consideration of all the circumstances he was satisfied that the probative value of the statement exceeded any prejudicial effect it might have at trial.

Following the principles in Hart , the judge was evidently satisfied that the evidence established on a balance of probabilities the reliability of the statement and that the accused had failed to establish that there had been an abuse of process in the MBO. [ 20 ] After a brief introduction of the background to the MBO in the present case, the trial judge reviewed the principles stated in Hart . [ 21 ] He began by noting that confessions obtained in a MBO are presumptively inadmissible.

He noted that to be admissible the prosecution must establish that the probative value of a statement obtained in an MBO must exceed its prejudicial effects. He noted that even if in this sense a statement is reliable the court can exclude the statement or order a stay of proceedings if the accused establishes that the MBO was an abuse of process. Further, he observed that a trial judge always retains a residual discretion to exclude evidence tendered by the prosecution if its admission would compromise the fairness of the trial.

He stated that as required by Hart he must examine all of the circumstances shown in the evidence to determine whether the accused was coerced in the MBO that led to the statement tendered by the prosecution. [ 22 ] What follows is the judge’s statement of the principles derived from Hart : [10] It was determined that any confession made by an accused during the operation should be treated as presumptively inadmissible. The Crown can overcome this presumption by establishing, on the balance of probabilities that the probative value of the confession outweighs its prejudicial effect.

The reliability on the confession will determine its probative value. If the Crown fails to demonstrate the admissibility of the confession, the rest of the operation surrounding the Mr. Big operation becomes irrelevant. However, it is the Defence who must bear the burden of establishing an abuse of process. [11] The role of this Court, as a gatekeeper, is to carefully scrutinize the conduct of the police to determine if an abuse of process has occurred. If so, it can fashion an appropriate remedy including the exclusion of the confession or a stay of proceedings.

The Court always retains a discretion to exclude evidence where its admission would compromise trial fairness.

[12] In Hart, the Supreme Court recognized that the potential for a false confession increases in proportion to the nature and extentof the inducements held out to the subject of the Mr. Big operation. It bears noting that this technique is almost always used in coldcases involving the most serious crimes. [13] Hart refers, not limitatively, to the following circumstances to help a trial judge assess the reliability of a Mr.

Big confession : [102] - 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, - the personality of the accused, including his or her age, sophistication, and mental health. [14] It specifically states that special note should be taken of the mental health and age of the accused since those two elements willraise greater reliability concerns. [15] Considering the reliability of the confession, the Court states: [105] … Trial judges should consider the level of detail contained in the confession, whether it leads to the discovery of additionalevidence, whether it identifies any elements of the crime that had not been made public (e.g., the murder weapon), or whether itaccurately describes mundane details of the crime the accused would not likely have known had he not committed it (e.g., the presence orabsence of particular objects at the crime scene).

Confirmatory evidence is not a hard and fast requirement, but where it exists, it canprovide a powerful guarantee of reliability. The greater the concerns raised by the circumstances in which the confession was made, themore important it will be to find markers of reliability in the confession itself or the surrounding evidence. [16] The Hart decision of the Supreme Court should not be used as an absolute yardstick to determine whether or not the factualcontext of a specific case is similar or different from it. Each case possesses its own factual background and dynamics.

Hart should beused as a relevant tool in assessing the relevant factors in their respective context and not as an absolute comparative instrument todetermine whether or not the situation of the accused is similar or different from the one Mr.

Hart was in during the course of the Mr.Big operation that targeted him. [17] Hart teaches us that the Court can begin its analysis by assessing whether there has been an abuse of process since an abusefinding will make weighing the probative value and prejudicial effect of the evidence unnecessary. - Abuse of process [18] In Hart, the Court discusses what can be considered an abuse of process: [115] It is of course impossible to set out a precise formula for determining when a Mr. Big operation will become abusive. Theseoperations are too varied for a bright-line rule to apply.

But there is one guideline that can be suggested. Mr. Big operations are designedto induce confessions. The mere presence of inducements is not problematic (Oickle, at para. 57). But police conduct, includinginducements and threats, becomes problematic in this context when it approximates coercion. In conducting these operations, the policecannot be permitted to overcome the will of the accused and coerce a confession. This would almost certainly amount to an abuse ofprocess. [116] Physical violence or threats of violence provide examples of coercive police tactics.

A confession derived from physical violenceor threats of violence against an accused will not be admissible — no matter how reliable — because this, quite simply, is something thecommunity will not tolerate (see, e.g., R. v. Singh, 2013 ONCA 750 , 118 O.R. (3d) 253). [117] Violence and threats of violence are two forms of unacceptable coercion. But Mr. Big operations can become coercive in otherways as well. Operations that prey on an accused’s vulnerabilities — like mental health problems, substance addictions, or youthfulness— are also highly problematic (see Mack, at p. 963).

Taking advantage of these vulnerabilities threatens trial fairness and the integrity ofthe justice system. As this Court has said on many occasions, misconduct that offends the community’s sense of fair play and decencywill amount to an abuse of process and warrant the exclusion of the statement. [references omitted] [23] He also noted that the test of admissibility is threshold reliability and that it is not his function, but that of the jury, to determinethe weight that should be given to the statement. [78] As explained by the Court of Appeal of British Columbia in R. v.

West at this stage threshold-reliability is a gatekeeperstandard, i.e., that it is used to determine whether the evidence can properly be considered by a jury. The absence of threats, ofcontradictions in the declaration and of denial of his involvement, bring the Court to conclude that there exists strong elements ofintrinsic reliability in the confession.[7] [24] The standard of persuasion applicable in this gatekeeping function is not proof beyond reasonable doubt.

As the Court has madeclear, the standard is proof on a balance of probabilities that the statement is reliable and that it was not obtained by means of an abuse ofprocess and thus that the probative value of the statement exceeds any prejudice that would follow its admission.[8]

[ 25 ] It is important to underscore what the principles in Hart permit in an MBO and what they do not permit. They permit the use of stratagems, inducements, tricks and subterfuges to obtain a statement. They permit the police to pursue this strategy even if the suspect is in some way vulnerable. Whether or not a suspect has an identifiable vulnerability, they do not permit the police to obtain a statement by coercion that has the effect of overcoming the will of the suspect.

This is what the Supreme Court stipulated in the passage quoted by the trial judge. [9] [ 26 ] This stipulation has been emphasised in this court. In Perreault , for example, the Court made these observations: [89] L’appelant n’a pas établi qu’il a été victime de contrainte telle que l’aveu doit être exclu de la preuve ou que les procédures doivent être arrêtées. Certes, les policiers ont usé d’astuces et de subterfuges pour l’amener à confesser un crime, mais il n’a pas été soumis à des actes de violence, d'une part, et il ne présentait pas un état de vulnérabilité manifeste, d’autre part.

Il faut tenir compte de l’état global de l’appelant et notamment de sa personnalité.

Il vivait certes de l’aide sociale et, sans être isolé socialement, il avait un mode de vie solitaire, mais il est intelligent, volontaire, déterminé et doté d’une forte personnalité. [10] These observations apply in the present case. [ 27 ] Similarly, in Laflamme [11] the Court decided that a statement obtained in an MBO was inadmissible because it obtained by coercion in the form of threats of violence directed by undercover agents directly to the subject. [ 28 ] The judge in the present case specifically concludes that the evidence failed to disclose that in the MBO there was any financial coercion, coercion by the supply of alcohol, emotional entrapment, exploitation of the appellant’s youthfulness, or any threats of violence.

Having considered these points, the judge concludes that the appellant was a willing and even enthusiastic participant in a MBO in which there was no coercion by the police. The judge concludes that the appellant chose to participate in this scheme and chose to make the statement on 28 August 2012. Accordingly, he decides to admit the statement. These findings of fact, and the conclusions drawn from them, are entitled to a high degree of deference in this court. [ 29 ] From these findings of fact the judge concludes that the probative value of the statement outweighs the risk of prejudice in its admission.

The judge does not conduct a focussed analysis of the types of prejudice that might be associated with the admission of the statement. He does not, for example, explore the possibility that the confession was false or that its admission would lead the jury to consider the statement as evidence of bad character.

A detailed analysis of this kind would be increasingly necessary to the degree that the evidence in the case suggested that risks of this nature were not only plausible but probable. [12] But the judge examines the evidence and concludes that it discloses positive indicia of reliability and no negative indicia of an abuse of process.

For this reason he was justified to conclude that the probative value of the statement outweighed the risk of prejudice. [ 30 ] The decision of the trial judge to admit the statement was a decision that the evidence presented at the voir dire satisfied him that the statement could be put in evidence before the jury. It was not a decision that evidence concerning the entire MBO could be put before the jury. This issue was subsequently raised in an objection by the defence.

The judge responded to this objection by agreeing that the risk of prejudice was unacceptably high if evidence relating to all aspects of the MBO were put before the jury. He was specifically concerned about the activities involving the appellant over the course of the MBO and asked the parties for submissions concerning the evidence that would be appropriate and not prejudicial if put before the jury.

After hearing the parties on this question, the judge ruled that no mention should be made before the jury of substantial parts of the narrative concerning the MBO from its beginning to its conclusion. [ 31 ] It should also be noted that this appeal does not concern either the judge’s ruling on the objection or his instructions to the jury at the conclusion of the trial. With respect to the evidence heard by the jury concerning the statement and other aspects of the MBO, those directions are scrupulously crafted to instruct the jury on the manner in which they may, and may, not consider that evidence.

In this respect his directions were entirely consistent with the principles stated in Mack . [13] [ 32 ] The appellant argued before the Court that the inducements and subterfuges exploited various vulnerabilities in the appellant that amounted to coercion and that the judge’s error in admitting the statement was in failing to conclude that this exploitation was coercive. The appellant argues in effect that the error of the trial judge was not to conclude that the inducements and subterfuges of the police in the MBO was exploitation and coercion, and equivalent therefore to an abuse of process.

The Court cannot agree. The judge made findings of fact and from them drew conclusions that the probative value of the statement outweighed the risk of prejudice because it was reliable and because the appellant had not proved an abuse of process. This result is unfortunate for the appellant but not unfair. CONCLUSION [ 33 ] In short, the judge stated the applicable principles of law. He assessed the evidence governed by those principles. He applied those principles to the evidence. His judgment reveals no error, let alone any overriding or palpable error. PATRICK HEALY, J.A.