R. v. Hart, 2012 NLCA 61

Date: 20120 917 Docket: 07/30 Citation: R. v. Hart , 2012 NLCA 61 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : NELSON LLOYD HART APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Green C.J.N.L., Harrington and Barry JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (

G) Gander 200505T0216 Appeal Heard: October 18, 2011 Judgment Rendered: September 17, 2012 Reasons for Judgment by Green C.J.N.L. Concurred in by Harrington J.A. Dissent in part by Barry J. A. Counsel for the Appellant (in preparation of factum only): Rosellen Sullivan Counsel for the Respondent: Stephen R. Dawson Amicus Curiae: Randolph J. Piercey Q.C.

Barry J.A.: [ 1 ] On March 28, 2007, a jury convicted Nelson Hart of two counts of first degree murder following the drowning deaths of his twin three-year-old daughters in Gander Lake on August 4, 2002. The main evidence presented against him at trial was an admission that he had pushed his daughters into the lake. He made the admission to undercover police officers, who he thought were criminals because of a “Mr. Big” sting operation. Mr. Hart seeks to have the jury verdict overturned on three grounds: (

i) that the trial judge erred by the admission of the Mr. Big evidence, which Mr. Hart says violated sections 7 and 11 of the Charter and principles of fundamental justice; (ii) that the trial judge erred in failing to make adequate inquiries following Mr. Hart’s expression of dissatisfaction with his counsel at trial; and (iii) that the trial judge erred in his

interpretation or application of s. 486 of the Criminal Code by refusing to permit Mr. Hart to testify in his defence in camera . [ 2 ] Because Mr. Hart dismissed counsel after the filing of his factum and because he refused to participate at the hearing of the appeal (indicating at times that he regarded this Court as part of the Mr. Big conspiracy against him), the Court appointed an amicus curiae to help safeguard his interests on the appeal. THE MR. BIG EVIDENCE [ 3 ] Initially Mr.

Hart told police his daughter Krista fell off a wharf and he panicked and left the scene, leaving his other daughter, Karen, behind on the wharf. Despite having a functioning cell phone in his car, he drove 11 km to his apartment in Gander (passing businesses and a hospital en route) to seek help from his wife. He drove back with her to the scene, where they found both children in the water. He then left again to seek help. By the time rescuers arrived, it was too late to save either child. [ 4 ] Following further inquiries by police, who understandably viewed his behaviour as suspicious, Mr.

Hart, on September 30, 2002, told the police he had lied in his original statement. He said he had had an epileptic seizure at the lake on August 4th and did not know how the girls got into the water. He explained that he omitted reference to his seizure in his earlier statement in an attempt to avoid losing his driver’s licence as had occurred on two previous occasions. Medical evidence established he had been prone to serious epileptic seizures from his early childhood. [ 5 ] In early 2005, the RCMP created an elaborate undercover operation and recruited Mr.

Hart to join a fictitious criminal organization, with a boss (“Mr. Big”) who would decide whether Mr. Hart could be trusted to perform as required. [ 6 ] To gain his trust and confidence, between February, 2005 and June 13, 2005, the RCMP hired the appellant to perform certain driving and delivering jobs and later exposed him to their simulated illegal involvement with fake credit cards, forged passports and fake casino chips. Mr. Hart enjoyed the pay and the opportunities to travel around Canada, stay at luxurious hotels, and dine at fine restaurants.

He received nearly $16,000.00 in pay and the undercover officers held out the opportunity for him to earn another $25,000.00 on an upcoming job. [ 7 ] Mr. Hart born […], 1968, has a Grade 5 education. He was on social assistance, so poor he said at one point he could not afford a bed. Socially isolated, with no friends, he came to view the undercover officers as more than family, telling them he loved them like brothers. [ 8 ] The undercover officers painted a picture of the organization as one where violence could be used to keep members in line.

The appellant witnessed one undercover officer slap another on the face. On another occasion an officer showed his scratched knuckles and implied he had been acting as an enforcer. The group had dealings with a simulated Hell’s Angels individual named Iceman. [ 9 ] The officers stressed the need for honesty, loyalty and trust between members, the emphasis being on always telling the truth to each other and to the boss. They told the appellant that at times their work required them to do bad things. [ 10 ] On April 10, 2005, to establish his ability to do what might be required of him, Mr.

Hart told an undercover officer he had deliberately killed his daughters. He showed the officer a picture of his two daughters. He said the two girls were his own blood, he had gotten rid of them and had planned it. These admissions were not recorded other than in police notes, which Mr. Hart says were incorrect. [ 11 ] When introduced to the “big boss” of the organization on June 9, 2005, who mentioned the conversation with the other undercover officer and asked why he had killed his children, Mr. Hart initially told the boss he had had a seizure. The boss did not accept this explanation and pressed further. Mr.

Hart then said he drowned the twin girls because his brother was going to take the children (presumably by having the appellant declared an unfit parent although Child Protection Services had no active file regarding apprehension at the time – they had considered this in April and June, 2002 because of concerns about Mr. Hart’s lack of accommodation but these were resolved when he obtained an apartment). This conversation with the boss was surreptitiously videotaped. At the request of the boss, Mr.

Hart agreed to re-enact the drownings at the scene for the other undercover officer to whom he had made the first admission. Videotaping again occurred. [ 12 ] While driving to a restaurant before proceeding to the drowning site for a re-enactment, Mr. Hart mentioned that if he had had the good money he was making with the organization he could have gotten a lawyer to stop his brother from taking his girls and that way he would not have had to kill them. THE ADMISSIBILITY OF STATEMENTS (

a) The parties’ arguments

[13] Mr. Hart’s advocates submit the trial judge erred by too narrow an analysis – one which stopped after concluding there wasinsufficient coercion to violate the principles of fundamental justice. They argue that recent case law shows an evolution of the s. 7Charter analysis to emphasize greater protection of the principle against self-incrimination, the right to silence and the presumption ofinnocence. They say the trial judge erred in failing to consider these fundamental principles in a context where the “Mr. Big” operationessentially resulted in the state setting up Mr.

Hart as a criminal by using his own words and in effect reversing the presumption ofinnocence by making it essential that he testify. At the same time, by destroying his credibility with collateral information regardingwillingness to participate in simulated illegal activity, the state ensured he could not rebut the incriminating statements he made. Mr.Hart submits that admitting the evidence setting up the sting scenarios resulted in an unfair trial because of this irreparable collateralimpact on his credibility when he was painted as a person of bad character with a propensity for criminal activity. [14] Mr.

Hart stresses the need to distinguish the present from earlier cases admitting evidence of statements to undercover officersin “Mr. Big” operations because, he says, unlike the precedents, here the only evidence that a crime has been committed at all are theuncorroborated “Mr. Big” statements, with no circumstantial evidence to establish their reliability. [15] The Crown submits that the s. 7 right to silence and protection against self-incrimination has not been expanded in any way toinclude pre-detention situations. The Crown argues that once the trial judge concluded Mr.

Hart was not subject to any form ofinappropriate detention or control by the state, the cases relating to self-incrimination and the right to silence did not apply. [16] The Crown asserts that to reject a confession because of unacceptable coercion more is needed than merely obtaining astatement by deception or placing an accused in a position where it may be in his best interests to testify.

The Crown says that toproduce unacceptably unreliable evidence or result in an abuse of process, an accused’s statement must have been compelled byconsiderable physical force or psychological pressure and each case must be examined on its own particular facts to determineadmissibility. The Crown submits that the trial judge did not err in the present case in finding no breach of the principles of fundamentaljustice where admission of the evidence would bring the administration of justice into disrepute.

On the facts, says the Crown, theoperation did not involve psychological pressure, threats or intimidation so as to lead the accused into giving false statements to pleasehis oppressors. Instead, the undercover operation emphasized the need for Mr. Hart to tell the truth, an approach ensuring the reliabilityof admissions. Also, Mr. Hart was free to leave at any time. (

b) The legislation [17] The Canadian Charter of Rights and Freedoms provides: 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance withthe principles of fundamental justice. 10. Everyone has the right on arrest or detention … (

b) to retain and instruct counsel without delay and to be informed of that right; … 11. Any person charged with an offence has the right … (

c) not to be compelled to be a witness in proceedings against that person in respect of the offence; (

d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;… 24. …

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied anyrights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all thecircumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. (

c) The legal principles (

i) The Supreme Court of Canada and the right to silence [18] The Supreme Court of Canada decision in R. v.

Hebert, (SCC), [1990] 2 S.C.R. 151, clarified “the underlyinglegal principles of our legal system relevant to a detained person’s right to silence” [paragraph 14] and considered the principles offundamental justice bearing upon the admissibility of statements by an accused. [19] An undercover police officer placed in Hebert’s cell had actively elicited inculpatory statements from Hebert, after he hadrefused to provide a statement to police following consultation with counsel. [20] McLachlin J. (as she then was), writing for the majority in Hebert, concluded the statements had been obtained by an “unfairtrick” and should be excluded as admission would result in an unfair trial.

She stated for the majority, at page 188: Dealing with the effect of the admission on the fairness of the trial, Lamer J. [in R. v. Collins, (SCC), [1987] 1 S.C.R.265] distinguished between real evidence obtained in violation of the Charter and a confession conscripted from an accused personcontrary to the Charter. He stated at p. 284: However, the situation is very different with respect to cases where, after a violation of the Charter, the accused is conscripted against

himself through a confession or other evidence emanating from him. The use of such evidence would render the trial unfair, for it didnot exist prior to the violation and it strikes at one of the fundamental tenets of a fair trial, the right against self-incrimination. I am of the view that the evidence sought to be adduced in this case would render the trial unfair. I should not be taken as suggesting thatviolation of an accused's right to silence under s. 7 automatically means that the evidence must be excluded under s. 24(2).

I would notwish to rule out the possibility that there may be circumstances in which a statement might be received where the suspect has not beenaccorded a full choice in the sense of having decided, after full observance of all rights, to make a statement voluntarily. But where, ashere, an accused is conscripted to give evidence against himself after clearly electing not to do so by use of an unfair trick practised bythe authorities, and where the resultant statement is the only evidence against him, one must surely conclude that reception of theevidence would render the trial unfair.

The accused would be deprived of his presumption of innocence and would be placed in theposition of having to take the stand if he wished to counter the damaging effect of the confession. The accused's conviction if obtainedwould rest almost entirely on his own evidence against himself, obtained by a trick in violation of the Charter. (Emphasis added.) [21] McLachlin J. discussed how the scope of the s. 7 Charter right to silence may be determined by considering the common lawconfessions rule, the privilege against self-incrimination and the right to counsel.

She traced the history of the confessions rule fromIbrahim v. The King, [1914] A.C. 599 (P.C.), with its narrow requirement that police show the absence of threats or promises beforeadmission of inculpatory statements, to R. v. Wray, (SCC), [1971] S.C.R. 272, which concluded a court did not have theright to exclude admissible and relevant evidence merely because its admission would bring the administration of justice into disrepute. McLachlin J. pointed out that section 24(2) of the Charter changed the law in this regard.

Evidence obtained in violation of rights maybe excluded if admission would tend to bring the administration of justice into disrepute, regardless of how probative the evidence maybe (paragraph 59). [22] McLachlin J. concluded that the Charter required rejection of the narrow confessions rule and adoption of a rule based on thefundamental concept of the suspect’s right to choose whether to speak to the authorities or remain silent. The new rule permitsconsideration of the accused’s informed choice, as well as fairness to the accused and the repute of the administration of justice.

Once ithas been established that the suspect possesses an operating mind, the focus under the Charter shifts to the conduct of the authoritiesregarding the suspect; one asks whether there was “police conduct which effectively and unfairly deprived the suspect of the right tochoose whether to speak to the authorities or not” (paragraphs 68-70). [23] This rule only applies after detention.

It does not apply to undercover operations, as the individual from whom information issought is not in the control of the state and there is no need to protect him from the greater power of the state (paragraph 74). [24] McLachlin J.’s review of the history of the jurisprudence on the confessions rule and the privilege against self incrimination ledher to the conclusion that they share a common theme: a person in the power of the state’s criminal process has the right to freely choosewhether or not to make a statement to police.

But, in addition to an analysis of voluntariness, the court must be concerned withpreserving the repute and integrity of the judicial process. [25] In R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, Iacobucci J. accepted that one consideration in determining whether aconfession should be admitted is whether it was obtained by the police use of trickery that would shock the community (paragraph 66). Iacobucci J. stated at paragraph 69: The doctrines of oppression and inducements are primarily concerned with reliability.

However, as the operating mind doctrine andLamer J.’s concurrence in Rothman, supra, both demonstrate, the confessions rule also extends to protect a broader conception ofvoluntariness “that focuses on the protection of the accused’s rights and fairness in the criminal process”: J. Sopinka, S. N. Lederman andA. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 339. Voluntariness is the touchstone of the confessions rule.

Whether the concern is threats or promises, the lack of an operating mind, or police trickery that unfairly denies the accused’s right tosilence, this Court’s jurisprudence has consistently protected the accused from having involuntary confessions introduced into evidence. If a confession is involuntary for any of these reasons, it is inadmissible. (Emphasis added.) [26] In R. v. Hodgson, (SCC), [1998] 2 S.C.R. 449, the accused had made a confession to relatives of thecomplainant, who accused him of sexual assault.

The complainant’s father had at one point held a knife to the accused’s back and hermother had struck him. They testified this had occurred only after the accused had confessed. The accused did not object to theadmission of the confession at trial. The Supreme Court of Canada held that the trial judge had no obligation to conduct a voir dire inthe circumstances, to determine whether the relatives were persons in authority.

At paragraphs 29-30, Cory J. for the majority called fora change in the confessions rule by Parliament to cover coercion by private individuals and suggested that in the meantime the followingwarning be given to juries: … A statement obtained as a result of inhuman or degrading treatment or the use of violence or threats of violence may not be themanifestation of the exercise of a free will to confess. Rather, it may result solely from the oppressive treatment or fear of suchtreatment. If it does, the statement may very well be either unreliable or untrue.

Therefore, if you conclude that the statement wasobtained by such oppression very little if any weight should be attached to it. … [27] Cory J. affirmed the following principles concerning the confessions rule in Hodgson, at paragraph 48: (

i) The rule still applicable in determining the admissibility of a statement made by an accused to a person in authority is that it musthave been made voluntarily and must be the product of an operating mind. (ii) The rule is based upon two fundamentally important concepts: the need to ensure the reliability of the statement and the need toensure fairness by guarding against improper coercion by the state. This results in the requirement that the admission must not beobtained by either threats or inducements.

(iii) The rule is applicable when the accused makes a statement to a person in authority, that is, a person whom the accused reasonablybelieves is acting on behalf of the police or prosecuting authorities and could therefore influence or control the proceedings against him. (iv) Undercover police officers will not usually be viewed by the accused as persons in authority. Cory J. also concluded: (

v) Because the confessions rule focuses on voluntariness over truth, the rule is not concerned solely with accuracy or reliability. Itautomatically excludes involuntary statements, regardless of their veracity. Thus, the court’s inquiry does not focus on objectivecorroboration of the confession evidence.

The rule is rooted in a concern for the administration of justice and fundamental principles offairness, in particular the principle against self-incrimination, and is not designed only to ensure the reliability of a confession(paragraphs 18-20). (vi) The reliability and weight of evidence ultimately is a matter for the jury, and the admission of evidence which may be unreliabledoes not per se render a trial unfair. The confessions rule does not force a trial judge to exclude “unreliable” evidence that is highlyprobative of guilt.

Rather, it focuses on putative reliability, by analyzing the circumstances surrounding the statement and their effect onthe accused, regardless of the statement’s accuracy.

The “reliability” rationale and the “fairness” rationale blend to ensure fair treatmentto the accused by deterring coercive state tactics (paragraph 21). (vii) It is the fear of reprisal or hope of leniency that persons in authority may hold out that might prompt an involuntary statement(paragraph 24). (viii) A false confession and unfairness could just as readily result from threats and inducements offered by a private individual as by aperson in authority.

Recognition of this has led to legislative reform in Britain and Australia to provide that the Crown must provebeyond a reasonable doubt (in Britain) or on a balance of probabilities (in Australia) that the confession was not the result of“oppression” (defined in Britain as “torture, inhuman or degrading treatment, and the use or threat of violence” (paragraphs 26-27). (ix) On a practical level, the Crown would face an overwhelming burden if it had to establish the voluntariness of every statementagainst interest made by an accused to any person.

This would have serious consequences for undercover police work (paragraph 26). (

x) The present confessions rule, including the burden on the Crown to prove voluntariness beyond a reasonable doubt, is “carefullycalibrated” to ensure that the coercive power of the state is held in check and to preserve the principle against self-incrimination(paragraph 29). [28] Cory J. concluded that, although there was a very real possibility of a resulting miscarriage of justice and a fundamentalunfairness in admitting statements coerced by the violence of private individuals, a change in the confessions rule should be left forParliament since it involves the recognition of a new concept and not just the

interpretation of a statute. [29] Subsequently, in R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at para. 40, the majority reaffirmed that the confessions ruleonly applies in respect of statements made to a person the accused believes to be a person in authority (not the case where the appellantdid not know the undercover officers were police).

The majority in obiter (Singh was detained) also reaffirmed that the protectionafforded to the right to silence by s. 7 of the Charter is only triggered upon detention (paragraph 32) and, therefore, would not protect asuspect in a non-custodial interrogation procedure such as arises in a Mr. Big operation (paragraph 32). [30] Singh involved incriminating statements made by an accused after persistent questions by police despite the accused, afterconsulting with counsel, having stated many times that he did not want to talk about a shooting incident.

Charron J. for the majoritynoted that in the post-Charter era both the confessions rule and the constitutional right to silence are manifestations of the principleagainst self-incrimination, for which s. 7 provides residual protection. Charron J. pointed out that the modern expansive view of theconfessions rule adopted in Hebert and embraced in Oickle is still concerned with voluntariness but its more specific objective ismaintaining the integrity of the criminal justice system. (ii) The Supreme Court and Mr.

Big statements [31] On the issue of whether the police tactics employed would shock the conscience of the community, the Supreme Court ofCanada has accepted the “Mr. Big” tactic as a legitimate investigative technique, with Binnie J. for the majority in R. v. Fliss, 2002 SCC16, [2002] 1 S.C.R. 535, at para. 21, praising one successful operation as “skilful police work”. [32] Earlier, in R. v. McIntyre, (SCC), [1994] 2 S.C.R. 480, Gonthier J. had upheld the admissibility of “Mr.

Big”statements, in a brief decision stating only: The appellant argues that his statements made to undercover police officers after he had been released but while he was still the subjectof a murder charge are inadmissible under ss. 7 and 24(2) of the Canadian Charter of Rights and Freedoms. We share the view of themajority that the accused was not detained within the meaning of Hebert and Broyles. Furthermore, the tricks used by the police werenot likely to shock the community or cause the accused's statements not to be free and voluntary. The appeal is dismissed. (Emphasis added.) [33] Also, in R. v.

Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27, the Court held that undercover agents posing as criminal gangmembers with influence over police were not persons in authority so as to engage the voluntariness analysis of the confessions rule.

Theappeal revolved around the issue of whether the statements were made to a person in authority and not whether they were free andvoluntary or obtained through an abuse of process (paragraphs 34 and 36). [34] In Grandinetti, Abella J. for a unanimous court did note that in Hodgson Cory J. for the majority accepted that statements cansometimes be made in such coercive circumstances that their reliability is jeopardized even if they were not made to a person in

authority. She pointed out, at paragraph 36, that the admissibility of those statements is “filtered through exclusionary doctrines likeabuse of process at common law and under the Canadian Charter of Rights and Freedoms, to prevent the admission of statements thatundermine the integrity of the judicial process”. [35] The “Mr. Big” tactic was successfully employed in R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488. There, a 95-year-old womanhad been bound and robbed and died from asphyxiation.

The police obtained a confession from the accused through an undercoveroperation where a police officer posed as a member of a criminal organization. The sole issue considered by the Court was theappropriate standard of causation for second degree murder. The admissibility of the confession was not challenged. [36] The Supreme Court dismissed without reasons a leave to appeal application in R. v. Osmar 2007 ONCA 50, 217 C.C.C. (3d)174 leave refused (2007), 374 N.R. 396 (note), [2007] S.C.C.A.

No. 157, where the Ontario Court of Appeal had upheld theadmissibility of statements made to an undercover operative in a “Mr. Big” operation. The Court considered and rejected arguments verysimilar to those of the appellant in the present case. Rosenberg J.A. for the Court set them out at paragraph 4, as follows: [Counsel for the accused argues] that our understanding of the right against self-incrimination has evolved so that physical detention isno longer required to trigger the constitutionally protected right to silence.

Accordingly, [counsel] submits that the appellant’s statementsto the police officers were inadmissible under the Charter.

Alternatively he argues that a court has a common law jurisdiction to excludethe statements because they are made under circumstances of unreliability or because their admission would shock the conscience of thecommunity. [37] At paragraph 42, Rosenberg J.A. held open the possibility of extending the Hebert right to silence to cases “where the accused,although not in detention, was nevertheless under the control of the state in circumstances functionally equivalent to detention andequally needing protection from the greater power of the state.” (Emphasis added.) But he found that not to be the case on the facts ofOsmar.

Rosenberg J.A. concluded that Osmar’s assertion that non-custodial elicitation and trickery amount to coercion and aresufficient to require Charter scrutiny is “not supportable by the authorities or by a reasoned extension of the principles in [the] cases”(paragraph 42). [38] Rosenberg J.A. distinguished R. v. Turcotte 2005 SCC 50, [2005] 2 S.C.R. 514 because there, unlike Osmar, Turcotte hadexercised his right to silence by remaining silent. Rosenberg J.A. noted that Hebert confirmed the right to silence is not absolute in thesense of being capable of discharge only by waiver (paragraphs 39-40).

Rosenberg J.A. also concluded he was bound by McIntyre,which affirmed the necessity of detention for application of the Hebert doctrine (paragraphs 44-47). [39] Rosenberg J.A. also rejected the common law arguments of Osmar, finding by comparison with the facts in McIntyre that thetricks used by police were not likely to shock the community. He held open the possibility that the manner in which the Mr.

Big strategyis executed might on occasion shock the conscience of the community and lead to exclusion on common law grounds but found that thefacts in Osmar did not meet that test (paragraph 48). [40] The Court in Osmar rejected other common law grounds for exclusion, holding:

(1) The prejudicial effect of the Mr. Big evidence did not outweigh its probative value, though there was an inducement offered byundercover officers which could produce an unreliable confession and though the evidence Osmar was prepared to consort withcriminals put him in a bad light. Rosenberg J.A. noted that reliability was bolstered by Osmar’s identification of a murder weapon, it wasfor the jury to decide the effect of any inducement, and it was “not a case of such extraordinary coercion that it can be said the statementis too unreliable to be received by the trier of fact” (paragraphs 48-50).

(2) Although admission of the evidence would show Osmar in a disreputable light, the evidence of disreputable conduct was necessarycontext for the confession, an adequate warning had been given to the jury about the limited use of this evidence, and an analogousargument for rejecting a confession obtained by use of a polygraph had been rejected in Oickle (paragraph 50).

(3) The necessity/reliability analysis of R. v. Starr, 2000 SCC 40; [2000] 2 S.C.R. 144, and R. v. Khelawon, 2006 SCC 57, [2006] 2S.C.R. 787, did not apply to confessions, since as noted by Doherty J.A. in R. v. Foreman (2002), (ON CA), 169C.C.C. (3d) 489 (Ont.

C.A.), the rationale for admitting inculpatory statements by a party rests on the theory of the adversary system, nota necessity/reliability analysis, and the statement not being made to persons in authority, no threshold reliability analysis or proof ofvoluntariness was required (paragraphs 52-53). (iii) The Supreme Court and the principle against self-incrimination [41] Osmar sought to get around Hebert and McIntyre by arguing that, in more recent cases, the Supreme Court has clarified theinterrelationship of

section 7 principles of fundamental justice and the principle against self-incrimination. Mr. Hart’s factum takes asimilar approach and argues that

section 7 is implicated whenever the state seeks to use self-incriminating evidence obtained by coercivemethods. [42] Mr. Hart submits in his factum that his case must not be viewed as a case about the right to silence of a detained person, such asHebert and Singh. He says his is a case about controlling state power where a suspect is coerced to participate in his own prosecution,while at the same time is robbed of his only means of defending himself, his credibility. [43] Mr.

Hart argues that the evolution of the principle against self-incrimination can be traced through five Supreme Court ofCanada cases after Hebert: R. v. P. (M.B.), (SCC), [1994] 1 S.C.R. 555; R. v. Jones, (SCC), [1994] 2 S.C.R. 229; R. v. S. (R.J.), (SCC), [1995] 1 S.C.R. 451;

R. v. Fitzpatrick, (SCC), [1995] 4 S.C.R. 154; and R. v. White, (SCC), [1999] 2 S.C.R. 417. He suggests the following points emerge from these cases. (

i) The principle against self-incrimination is not absolute and its applicability depends entirely on the context of the case. (ii) The right to silence has evolved as part of a broader principle against self-incrimination which must be considered under theoverarching principles of fundamental justice, which apply before, as well as after, detention. (iii) The Charter is meant as a vehicle for restraining, not enhancing, state power, by addressing the significant power imbalancebetween the state and the individual while protecting the integrity of the system’s “truth-seeking” function. (iv) In each specific context, the question becomes: What does the protection of the “principles of fundamental justice” require? [44] The key question, as seen by Mr.

Hart, is whether the police acted in accordance with the principles of fundamental justicewhen they created a situation where Mr. Hart, who previously had no criminal record or propensity to engage in criminal activity, wasenticed into engaging in criminal activity to gain entry into a criminal organization, then had statements elicited from him under thepretence of securing his place in that criminal organization, when the sole purpose of eliciting those statements was to use them againsthim during a future trial where his credibility is essential to his defence. [45] Mr.

Hart relies upon four factors drawn from the above five cases: (

i) The Crown must establish a “case to meet” before the accused need answer allegations against them. (ii) The court must distinguish between the narrow traditional common law rule relating only to testimonial evidence at trial, referredto as the “privilege” against self-incrimination, and the broader “principle” against self-incrimination, which is a “general organizingprinciple” of criminal law. (iii) The court must consider whether the statements in issue were made in the context of a coercive adversarial relationship. (iv) The court must determine exactly what the principle against incrimination demands, in the particular context of the case, lookingspecifically at the four factors of coercion, adversarial relationship, the possible unreliability of a confession, and preventing abuse ofpower.

R. v. P. (M.B.) [46] In P. (M.B.) the question was whether the Crown could reopen its case after the defence had started its case. Lamer C.J., in thecourse of confirming the Crown could not reopen, commented generally on the principle against self-incrimination. He adopted theposition of various legal writers who described it as the “overarching” and “most important organizing principle” in criminal law, whichestablishes that accused have the right not to be forced to assist in their prosecution.

Until the Crown establishes that there is a “case tomeet”, that is, until the state has succeeded in making out a prima facie case against them, accused are under no obligation to respond(paragraphs 36-37). [47] Lamer C.J. explained that until the state has established there is a case to meet, “an accused is not compellable in a generalsense (as opposed to the narrow, testimonial sense) and need not answer the allegations against him or her” (paragraph 36). He adoptedthe position of the majority in Dubois v.

The Queen, (SCC), [1985] 2 S.C.R. 350, and concluded both the common lawand s. 7 Charter privilege against self-incrimination and the procedural and evidential protections to which they give rise have at theirroots the presumption of innocence and the power imbalance between the state and the individual. [48] Lamer C.J. concluded that the right to silence, the right against testimonial compulsion and the presumption of innocence formthe basic tenets of our legal system and that s. 7 protects these rights by requiring the Crown to establish a case to meet before an accusedneed respond.

At paragraph 40, Lamer C.J. stated that all these protections recognize that it is for the state, with its greater resources, toinvestigate and prove its case, and that “the individual should not be conscripted into helping the state fulfill this task”.

But he went onto point out that the state may legitimately place an accused into a position where he may have to respond to avoid conviction: Once, however, the Crown discharges its obligation to present a prima facie case, such that it cannot be non-suited by a motion for adirected verdict of acquittal, the accused can legitimately be expected to respond, whether by testifying him or herself or calling otherevidence, and failure to do so may serve as the basis for drawing adverse inferences … In other words, once there is a “case to meet”which, if believed, would result in conviction, the accused can no longer remain a passive participant in the prosecuritorial process andbecomes – in a broad sense – compellable.

That is, the accused must answer the case against him or her, or face the possibility ofconviction. R. v. Jones [49] In Jones, the Court dealt with the issue of whether admission in dangerous offender proceedings of court-ordered psychiatricand psychological reports, which required the accused’s participation, violated the principle of self-incrimination. The Court concludedit did not once the accused had been found guilty, as the reports were not used to “incriminate” the accused but only to determine anappropriate disposition.

The offender had been informed the reports could be used against him. [50] Although Lamer C.J. dissented, his comments have been adopted in later decisions of the Court regarding the distinctionbetween the principle and the privilege against self-incrimination. He stated, at page 229: Any state action that coerces an individual to furnish evidence against him or herself in a proceeding in which the individual and the state

are adversaries violates the principle against self-incrimination. Coercion, it should be noted, means the denial of free and informed consent. … I distinguish between the principle against self-incrimination and the privilege against self-incrimination. The principle is as defined above. The privilege is the narrow traditional common law rule relating only to testimonial evidence at trial. Much of the confusion around such issues as silence, non-compellability and self-incrimination has, I believe, arisen as a result of the failure to distinguish between these two levels of protection against self-incrimination.

The principle is a general organizing principle of criminal law from which particular rules can be derived (for example, rules about non-compellability of the accused and admissibility of confessions). The privilege is merely one rule that has been derived from the principle.

When the protection against self-incrimination is limited to the privilege against self-incrimination, then the underlying rationale for the various common law rules protecting against self-incrimination is lost and principled decisions about particular cases as they arise become impossible. (Italics added; underlining in original.) [ 51 ] Lamer C.J. concluded the two fundamental purposes of the principle are protection against unreliable confessions and protection against the abuse of power by the state which interferes with the privacy and personal autonomy and dignity of the individual.

He approved of the statement of McLachlin J. in Hebert that protection regarding pre-trial statements was needed to avoid having only illusory protection at trial. R. v. S. (R.J.) [ 52 ] In R. v.

S. (R.J.) the Court considered the principle against self-incrimination in the context of testimonial compellability, concluding that an individual charged with an offence was properly compellable at a trial involving another individual separately charged with the same offence since the testimony cannot be used later to incriminate in other proceedings save in respect of perjury or for the giving of contradictory evidence. Iacobucci J. for the majority noted that the principle against incrimination may mean different things at different times, depending upon the context.

In some cases it may violate the “case to meet” principle to force someone to testify. R. v. Fitzpatrick [ 53 ] In Fitzpatrick the Court concluded admission of fishing log and hail reports, completed as required by statute, did not violate s. 7 of the Charter . The statements had been made pre-trial and outside the scope of any investigation.

La Forest J. for the Court noted at paragraph 25 that application of the principle against self-incrimination required a “concrete and contextual” analysis of the circumstances and that the principle was not engaged in that case since there was no adversarial relationship at the time of the preparation of the reports. They were not compelled during the course of any investigation. Nor was there any coercion, the appellant being fully aware of his obligations under the regulations. The Court dismissed the likelihood of unreliable confessions, finding no incentive to falsify the reports.

The Court also concluded there was little danger of abusive state conduct in the circumstances. R. v. White [ 54 ] In White , an application of the same argument as in Fitzpatrick with an entirely different result shows the importance of a contextually sensitive balancing process. The Court excluded statements made under statutory compulsion by a motorist involved in an accident, in a criminal proceeding for leaving the scene, holding they violated

section 7 , and were inadmissible under section 24(1). [ 55 ] The majority noted several self-incrimination concerns, including the coercion of a statutorily compelled statement in the course of an investigation, the adversarial relationship with police who were simultaneously investigating a possible crime and taking an accident report in a context of psychological and emotional pressure, the prospect of unreliable confessions, and a real and serious possibility that permitting the use of compelled accident reports within criminal proceedings might increase the likelihood of abusive conduct by the state.

The majority held that the proper approach is in every case to determine what the principle against self- incrimination demands, if anything, within the particular context at issue.

Because the motorist was not physically detained, White indicates some broadening of the right against self-incrimination recognized in Hebert . [ 56 ] Rosenberg J.A. in Osmar , at paragraph 30 noted several propositions regarding the scope of the principle against self- incrimination set out by Iacobucci J. in White : • an accused is not required to respond to an allegation of wrongdoing made by the state until the state has succeeded in making out a prima facie case against him or her [para. 41]; • the principle has at least two key purposes, namely to protect against unreliable confessions, and to protect against abuses of power by the state [para. 43]; • the principle against self-incrimination is an overarching principle within our criminal justice system, from which a number of specific common law and Charter rules emanate, such as the confessions rule, and the right to silence, among many others; the principle can also be the source of new rules in appropriate circumstances [para. 44]; … • but, the principle does not provide absolute protection against all uses of information that has been compelled by statute or otherwise; the residual protections provided by the principle against self-incrimination as contained in s. 7 are specific, and contextually sensitive [para. 45]. [ 57 ] Rosenberg J.A. applied the contextual analysis adopted in White and concluded no violation of the principles of natural justice had occurred since there was “little, if any, coercion” and an absence of “pronounced psychological and emotional pressure”, Osmar displaying “a composed and stable personality” during his interviews with undercover officers (paragraphs 34 and 35).

Also, Rosenberg J.A. noted there had been no abuse of power. Osmar had not been threatened or intimidated. So even if Hebert and McIntyre allowed the application of the White analysis, the findings of fact “undermined any claim to a violation of s. 7 ” (paragraph 36).

[58] The difference between legal and testimonial compulsion arose in R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, where theaccused argued the obligation under s. 276.1(2) of the Criminal Code to establish the admissibility of evidence relating to acomplainant’s prior sexual activity infringed his right against self-incrimination and his right to a fair trial. The Court disagreed andconcluded the statutory scheme does not “compel” the accused to testify. The fact that the accused may feel obliged to do so for tacticalreasons does not equate to legal compulsion.

The Ontario Court of Appeal took the same approach in R. v. Anderson (2002), (ON CA), 166 C.C.C. (3d) 75 (Ont. C.A.), rejecting the argument that admission of the accused’s personal journals wouldviolate s. 11(

c) because it would force him to testify. The fact that the journals might have strengthened the Crown’s case to the extendthat the accused felt he had little choice but to respond is not the same as a state-imposed compulsion to testify. (iv) The British Columbia Court of Appeal and Mr. Big [59] The British Columbia Court of Appeal in R. v. Bonisteel, 2008 BCCA 344, 236 C.C.C. (3d) 170, took an approach similar toOsmar. There the accused, who had committed multiple rapes around the time, 30 years previously, of the murder of two teenage girls,was the subject of a Mr. Big undercover operation.

After an undercover police officer demanded the truth in order to allow furtherassociation, the accused gave a detailed account of the murders. The account bore a strong resemblance to the actual circumstances. The trial judge admitted the confession as evidence. The Court of Appeal upheld this ruling. It concluded the trial judge’s discretionarydecision regarding balancing of the probative value and prejudicial effect of bad character evidence relevant for understanding thecontext of the Mr. Big confessions was not plainly unreasonable and was entitled to deference.

The Court of Appeal rejected theappellant’s argument that the trial judge’s jury instructions were inadequate because they did not adequately explain how Mr. Bigevidence was especially unreliable. The Court adopted with approval the decision of Newburg J.A. in R. v. Terrico 2005 BCCA 361,199 C.C.C. (3d) 126 leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 413, who held that it was sufficient for the jury tounderstand that a Mr.

Big target may have lied to officers out of fear for his own safety, out of desire for money or both. [60] The Court of Appeal in Bonisteel also rejected the appellant’s argument that Mr. Big statements should be excluded on the“principled” approach to hearsay evidence set out in Starr and Khelawon. The Court concluded that the weight of authority is againstthe application of the Starr analysis to admissions made to undercover police officers and, as did the Ontario Court of Appeal in Osmar,adopted the reasoning of Doherty J.A. in Foreman. [61] The Court in Bonisteel in addition decided that, rather than Mr.

Big tactics shocking the conscience of the community, on thecontrary, the community would endorse them. [62] The Court, at paragraph 89, distinguished R. v. Evans, (SCC), [1991] 1 S.C.R. 869, described by Hall J.A. in R.v. Roberts (1997), (BC CA), 90 B.C.A.C. 213, as a case “where a somewhat weak-minded and vulnerable accusedwas found to have been overborne by police suggestions”. In Evans the resulting statements were excluded. Hall J.A. in Robertsfollowed Scollin J. in R. v. Skinner (1992), (MB KB), 17 C.R. (4th) 265 (Man.

Q.B.), at p. 275, who held that absent“dirty tricks” the statements should go in for jury consideration.

The Court in Bonisteel found, as in Osmar, that the tactics did not go asfar as the “appalling” scenarios set out in Oickle, at paragraph 66, as examples of tactics which would shock the conscience of thecommunity (a police officer pretending to be a chaplain or a legal aid lawyer, or injecting a truth serum into a diabetic under the pretensethat it was insulin). [63] The accused in Evans had an I.Q. between 60 and 80 (borderline retardation), functioned at the emotional level of a 14-year-oldand was easily influenced.

McLachlin J. for the majority considered issues of fairness and reliability in determining whether reception ofwritten statements provided by Evans would tend to bring the administration of justice into disrepute under section 24(2). [64] McLachlin J. applied the three factors set out in Collins for a section 24(2) determination.

After finding admission of self-incriminating evidence following denial of the right to counsel would make the trial unfair, she went on, at page 896, to state in obiter: This [lack of other evidence] suggests a further reason why it would be unfair to use the statements against the accused. There can be nogreater unfairness to an accused than to convict him or her by use of unreliable evidence. Here the appellant’s deficient mental state,combined with the circumstances in which the statements were taken, cast significant doubt on their reliability. ….

In all the circumstances, the appellant’s statements must be regarded as highly unreliable. It would be most unfair to convict him entirelyon their strength. [Emphasis added.] (

d) The standard of review [65] The trial judge’s legal analysis on the voir dire and instructions to the jury on the law must be reviewed on the standard ofcorrectness. Applying the appropriate legal test on the voir dire to determine voluntariness is a question of fact, or of mixed law and factand should only be overturned if there was some misapprehension of material facts or an irrational or illogical reasoning process,sometimes described by the civil standard of palpable and overriding error: Oickle, paragraphs 22 and 71, or as a “plainly unreasonable”decision: Bonisteel, paragraph 50.

A trial judge’s conclusion under section 24(2) is a question of law from which an appeal willgenerally lie except insofar as it is based on his assessment of the credibility of witnesses: Collins. ANALYSIS [66] The voir dire decision to admit the Mr. Big statements involved issues relating to (

i) the privilege against self-incrimination andthe right to silence, (ii) the confessions rule, (iii) abuse of process, and (iv) the reliability of confessions. 1. Breach of the privilege against self-incrimination and the right to silence

[67] I discuss the privilege against self-incrimination under abuse of process below. At this point I consider whether a right tosilence is engaged prior to detention. [68] The trial judge made no error in concluding that, absent abuse of process, the s. 7 right to silence was not triggered prior todetention. McIntyre, Grandinetti, Osmar and Bonisteel all support this conclusion, as does the obiter in Singh. In Singh, the Courtrefused to accept the submission that application of the pre-trial Charter right to silence should be expanded.

The Court noted theexercise of the right to silence is in the control of an accused who has an operating mind and is fully informed of his or her rights,provided the conduct of the authorities do not take away his or her ability to choose. For reasons discussed below, I have concluded Mr.Hart did not lose his ability to choose in the present case. [69] The argument has been made for Mr.

Hart that, although he was not in detention, he “was nevertheless under the control of thestate in circumstances functionally equivalent to detention and equally needing protection from the greater power of the state” (in thewords of Rosenberg J.A. in Osmar). [70] Because of his poverty and social isolation, Mr. Hart had a particular susceptibility to the offers of friendship and wealth offeredby the undercover police. They constructed a complex network of false relationships between not only the officers and Mr. Hart but alsobetween him, their “girlfriends” and his wife.

They offered him a “family” with access to a lavish lifestyle over four months. It has beenargued that, unlike prior cases, the state’s control over Mr. Hart was extensive enough to be comparable to or even exceed the control thestate has over a person in detention. [71] I am not persuaded. The cases earlier noted have developed principles with the twin goals of protecting the rights of theaccused while recognizing society’s need to investigate and solve crimes without undue limitations. See Oickle, paragraph 33. AsLamer J. pointed out in Rothman v.

The Queen, (1981) (SCC), 1 S.C.R. 640, at page 697, adopted in R. v. Collins, (SCC), [1987] 1 S.C.R. 265, and Oickle, at paragraph 67, “[t]he investigation of crime and the detention of criminals is not agame to be governed by the Marquess of Queensbury rules”. Scollin J. eloquently made the same point in Skinner, quoted in Bonisteel,at paragraph 89: The difference between the unpalatable and the inedible is generally a matter of personal taste. Absent "dirty tricks", the courts shouldnot set themselves up as the arbiters of good taste or of the preferred methods of investigation.

It is unrealistic to demand chivalry fromthose who must investigate what are often heinous offences against blameless victims. The law should not appear to materialize as arevolutionary rabbit from a judicial magician's hat.

Both the common law and the Charter justly preserve the accused from coercion andendow him with specific rights which he may exercise at the time of his arrest and while he is in custody; but the courts should not be soindulgent as to preserve the accused from himself and his own untrammeled tongue, and should require realistic justification forsuppressing facts from the jury which go to weight rather than to admissibility. [72] To accept that tactics such as employed in the police operation in this case amounted to a degree of state control sufficient torequire that the police inform Mr.

Hart of his right to silence would unduly hamper the investigation of crime. The Mr. Big tactic hasshown itself effective in obtaining admissions leading to convictions when all else has failed. Although this may not be something to beconsidered on the admissibility analysis (see Hodgson, at paragraphs 18-21, and Terrico, at paragraph 14), frequently the detailsprovided in the admissions have been corroborative of the truthfulness of the admission in that they bear a strong resemblance to theactual circumstances (e.g. Bonisteel). At times the Mr.

Big operation has exonerated an innocent person as in the case in this Province ofGregory Parsons. See R. v. Doyle (2003), (NL SC), 222 Nfld. & P.E.I.R. 211 (NLTD), aff’d 2004 NLCA 64, 241Nfld. & P.E.I.R. 125 at paras. 44-46. [73] The trial judge correctly found that Mr. Hart “had numerous chances to leave the operation, but made no effort to do so.” Thejudge accepted the testimony of the undercover officers that they gave Mr. Hart the opportunity to cease participation at any time: R. v.Hart, 2007 NLTD 74, 265 Nfld. & P.E.I.R. 266 at para. 61. The trial judge did not accept Mr.

Hart’s testimony that he was “scared todeath”. He was not satisfied Mr. Hart had established on a balance of probabilities that his s. 7 Charter rights had been infringed basedon threats of violence or fear from psychological coercion. This Court should accord considerable deference to these findings of fact andintervene only if the findings of the trial judge were plainly unreasonable. The record in this case supports the judge’s findings and thesecompletely undermine the argument that Mr.

Hart was in circumstances functionally equivalent to detention. [74] It is worth noting the comments in Singh, at paragraphs 43 to 46, on the s. 7 objective of achieving a balance between theinterests of the detained individual and the interests of the state in the effective investigation of crime. To extend the right of silence asrequested by Mr. Hart would be to prevent the use of undercover operations which have been effective not only in convicting the guiltybut in freeing the innocent. [75] Subject to the abuse of process analysis below, Mr.

Hart cannot succeed on the basis of infringement of his s. 7 right to silenceor the principle against self-incrimination. 2. The confessions rule and voluntariness analysis [76] Because Mr. Hart was not aware he was speaking to a person in authority when he made his statements, the trial judge made noerror in concluding the confessions rule did not apply to require the Crown to prove the voluntariness of the statements. The SupremeCourt in Grandinetti confirmed that undercover agents posing as criminal gang members with influence over police were not persons-in-authority.

It noted that in Hodgson the Court had refused to eliminate the person in authority requirement for the confessions rule. [77] Certain writers have suggested that the confessions rule should be modified to remove this requirement. See, for example,Timothy E. Moore, 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, at p. 359. They argue that this would allow “a degree of judicialcontrol over potential excesses in exercise of the Mr.

Big technique and … reduce the possibility that the technique may produce falseconfessions”. They submit that the “person in authority” requirement does little to advance either reliability or fairness. I confess I seelittle reason to require the “person in authority” approach for cases where reliability may be in question because of compellinginducements. Whether the inducements come from police or private citizens has little bearing on reliability. The situation is different in

the case of threats; persons may be more requiring of protection where they perceive themselves as within the control of the state. But,as previously noted, any modification of the confessions rule in Mr. Hart’s circumstances has been foreclosed by Grandinetti. [78] Abella J., writing for the court in Grandinetti, did accept, as the Court observed in Hodgson, at paragraph 26, that “statementscan sometimes be made in such coercive circumstances that their reliability is jeopardized even if they were not made to a person inauthority”.

She noted that the admissibility of such statements “is filtered through exclusionary doctrines” like abuse of process atcommon law and under the Charter to prevent the admission of statements that undermine the integrity of the judicial process. [79] I discuss the abuse of process arguments below. But before doing so, I want to address an additional voluntariness argumentarising in Mr. Hart’s circumstances.

Rather than approaching the matter as a question of abuse of process, certain courts have suggestedthat, even without the presence of a person in authority, circumstances may be such that because of extreme treats or inducements theonly reasonable conclusion is that the suspect’s will has been overborne or vitiated so that one cannot say the admission is the free andvoluntary choice of the suspect. See Hodgson and Oickle. [80] Accepting that there may be situations where this argument will succeed, I am not persuaded that Mr. Hart’s case is one ofthem.

I say this while acknowledging his particular susceptibility and the tremendous temptations held out to him in terms of friendship,money and exciting lifestyle. As discussed above on the issue of detention and below in considering the reliability of the Mr. Bigstatements, the trial judge provided a reasonable analysis of Mr. Hart’s motivations, noted he had been free to leave the undercoveroperation at any time, had had no threats of violence directed at him, and did not exhibit fear in the video recordings.

These facts do notsupport the argument that his will had been overcome or his ability to choose vitiated. 3. Abuse of process at common law and under the Charter [81] The Supreme Court has confirmed that at common law inculpatory statements should be excluded if the state obtains them byengaging in “unfair” or “dirty” tricks, that is, tactics which result in such unfairness to an accused and such an abuse of the criminaljustice system that they shock the conscience of the community.

See Oickle, paragraphs 65-69. [82] While related to voluntariness, the specific objective of the abuse of process determination is maintaining the integrity of thecriminal justice system by scrutinizing and regulating the conduct of the authorities.

At the same time, as noted by Lamer J. in Rothman,the courts are wary of unduly limiting police investigative techniques [83] As discussed previously, Lamer J. gave as examples of what might meet the common law test “likely to shock the community”a police officer pretending to be a chaplain or a legal aid lawyer, or injecting truth serum into a diabetic under the pretense that it wasinsulin.

In Rothman, the court concluded a policeman pretending to be a truck driver in the same cell as a suspect would not shock thecommunity. [84] In Collins, the majority held the criminal justice system may be brought into disrepute within s. 24(2) of the Charter by theadmission of evidence that would deprive the accused of a fair hearing, by judicial condonation of unacceptable conduct by theauthorities, or by the exclusion of evidence in certain cases.

The test is whether the admission (or exclusion) of the evidence wouldbring the administration of justice into disrepute in the eyes of the reasonable person, dispassionate and fully apprised of thecircumstances of the case. [85] Three groups of factors were discussed in Collins as relevant for determining whether admission would bring the administrationof justice into disrepute.

Some relate to the effect on the fairness of the trial; a second group to the seriousness of the Charter violations,and the third group to the effect of excluding the evidence. [86] Collins held that the threshold for exclusion under s. 24(2) is lower than that under the “community shock test” of Rothman,since there would have been a constitutional violation, as opposed to the resort to tricks but no unlawful behaviour which was the case inRothman.

Evidence may be excluded under s. 24(2) even though it would not render the trial unfair since the court must dissociate itselffrom the conduct of the police where there is a flagrant and serious violation of individual rights. In Collins, a “throat hold” by police ona suspected female drug trafficker without reasonable grounds warranted exclusion of the real evidence obtained. [87] The Supreme Court has held that the use of a Mr. Big scenario to trick a suspect is not unfair in itself.

See McIntyre, where thebrief judgment stated “… the tricks used by the police were not likely to shock the community or cause the accused’s statements not to befree and voluntary”. See also Bonisteel where the British Columbia Court of Appeal admitted statements made in circumstancesconsiderably more intimidating than Mr. Hart’s case. The Supreme Court in Hodgson and Grandinetti did, however, hold out thepossibility in certain cases of circumstances surrounding statements being so coercive as to warrant their exclusion.

In Osmar,Rosenberg J.A. considered the examples of where pronounced psychological and emotional pressure might shock the conscience of thecommunity and lead to exclusion under the common law abuse of process doctrine but found the facts in the case did not satisfy the test. [88] In the present case the trial judge noted that the defence submitted the circumstances established sufficient intimidation andpsychological compulsion to constitute coercion and meet the test of abuse of process at common law, but the defence did not press theissue heavily because McIntyre and other cases had rejected that the community would be shocked by undercover police acting ascriminals to win the trust of the suspect.

He pointed out that, while in McIntyre the sting did not involve violence, in other cases, such asUnited States of America v. Burns (1997), (BC CA), 117 C.C.C. (3d) 454 (BCCA), the suspect believed that betrayingthe fictitious criminal group could lead to extreme violence against him or his family and still, in an extradition hearing, the admissionswere not excluded on the common law community shock test. [89] The Court in Burns did not accept the appellants’ arguments that their confessions should not be admitted because of their lackof reliability in the circumstances of a Mr.

Big sting with threats of violence. Since the hearing of this appeal, the Court of Appeals ofWashington, Division One, in a decision filed June 18, 2012, rejected the appeals of Burns and his accomplice, Rafay, from theirconvictions for murder. The Washington Court found that the Mr. Big sting “did not vitiate their ability to make independent or rationaldecisions or otherwise overcome their will”. The Court found the defendants “made a deliberate choice after weighing competingoptions … to accept the assistance of another criminal to eliminate their legal problems”.

[ 90 ] As noted above, in the discussion of the “control functionally equivalent to detention” argument, the record supported the trial judge’s findings of fact that Mr. Hart had not been “scared to death” or subjected to direct threats of violence or subjected to fear- inducing psychological coercion. I agree with the trial judge’s conclusion that a reasonable person in the community would not be shocked by the circumstances giving rise to Mr. Hart’s statements. He has not met the common law test for abuse of process. [ 91 ] The trial judge went on to consider abuse of process under the Charter .

He considered the defence argument that the police conduct in setting up the sting was so psychologically oppressive because of implied threats and intimidation methods that it resulted in a fundamental breach of Mr. Hart’s s. 7 Charter right. He noted the Court of Appeal decision in McIntyre , which stressed that the accused had been free in his comings and goings and could have left the undercover operation at any time, and found that Mr. Hart had been in a similar situation. He also found that although there was evidence of violence and intimidation it was not directed at Mr. Hart.

He found in addition that the taped statements did not support the argument that Mr. Hart was acting out of fear. The trial judge concluded he was not satisfied that Mr. Hart had established on a balance of probabilities that his s. 7 Charter rights had been infringed based on threats of violence or fear from psychological coercion. [ 92 ] On this appeal the advocates for Mr. Hart submit that the trial judge erred by not considering more broadly whether Mr.

Hart had had his s. 7 privilege against self-incrimination infringed by being put into a situation where in effect his right to the presumption of innocence had been breached, since the sting put him in a position where he could only avoid conviction by testifying and at the same time the sting had irreparably damaged his credibility, so that only an unfair trial could result. This argument was not raised directly before the trial judge. However, he did decide that the probative value of most of the propensity and bad character evidence, which formed part of the narrative as to how the Mr.

Big sting came about, out-weighted the overall prejudicial effect. This finding of fact undermines the argument that admission of the narrative and statements would result in an unfair trial. (The trial judge did, after a careful and thorough analysis, exclude certain unduly prejudicial propensity evidence.) [ 93 ] The trial judge’s exercise of discretion is entitled to deference. I have not been shown that it is unreasonable so as to warrant intervention. The Court in Bonisteel took a similar position.

Applying the contextual analysis of Fitzpatrick and White , in light of the trial judge’s reasonable findings of fact, first this Court has no basis for concluding that Mr. Hart’s statements were the product of coercion in the commonly understood sense of being compelled by significant physical force or psychological pressure from implied threats or otherwise. (By implication in McIntyre and in its rejection of leave to appeal in Osmar , the Supreme Court has adopted this definition of coercion in the Mr.

Big situation rather than Lamer J.’s definition of coercion as “free and informed consent” since in an undercover operation the suspect would not be “informed” that he was making admissions to police. The emphasis is on voluntariness in the sense of whether the suspect freely chose to make the admissions.) Second, the statements were given in an adversarial relationship during a police investigation. But Mr. Hart did not know the undercover officers were police so he did not make them under any pronounced psychological or emotional pressure arising from the relationship. Third, the circumstances indicate Mr.

Hart had a motive to lie but also a motive to tell the truth (as discussed below), so the reliability factor is basically neutral in this case. Finally, on the need to prevent abusive state action, the Supreme Court of Canada has accepted that the sort of tricks employed here do not meet the common law community shock case or the Charter s. 24(2) test of tending to bring the administration of justice into disrepute.

Compare McIntyre , Osmar , and by implication, Grandinetti (the abuse of process argument had not been pursued before the Supreme Court in the latter case after rejection by the Court of Appeal). [ 94 ] The advocates for Mr. Hart submit that the prosecution had not established a case for him to meet and that, therefore, it infringed the presumption of innocence to put him in a position of admitting his statements where he would be forced to respond or face conviction. A risk of circular reasoning arises here. The prosecution was entitled to use Mr.

Hart’s statements as part of the case he had to meet, provided the statements are admissible. Our analysis does not obtain much assistance from the “case to meet” argument. [ 95 ] In determining whether the statements are admissible, I accept that the proper approach is to ask: what do the principles of fundamental justice require in the context of this case? We begin with a concrete and contextual analysis of the circumstances and the ways in which concerns about self-incrimination may or may not be legitimate to determine whether the principle against self- incrimination is actually engaged.

See Fitzpatrick , at paragraph 25 . [ 96 ] Mr. Hart submits in essence that the principle against self-incrimination is engaged here because to admit the statements would bring the administration of justice into disrepute by rendering his trial unfair, thereby infringing his fundamental right and contravening s. 11(

d) of the Charter by removing his presumption of innocence without a fair trial. [ 97 ] I believe this submission cannot be sustained if, as is the case here, the trial judge has properly concluded that no abuse of process occurred in the course of the police obtaining the statements. If the accused fails to establish that something which shocks the community has occurred, and if the concrete and contextual analysis fails to support exclusion of the statements, admission of the statements does not result in an unfair trial. The testimonial compellability of Mr.

Hart in these circumstances is fair, as explained in P. (M.B.) . See also Darrach and Anderson . [ 98 ] The 1991 Evans case must be distinguished because of the evidence regarding the low I.Q. of Evans and his tendency to be easily influenced. Although Mr. Hart has only a Grade 5 education the evidence does not support the view that he was similarly weak- minded and vulnerable or that his will had been overborne by police suggestions as was the case with Evans . [ 99 ] The result is that Mr.

Hart has not been able to establish a breach of a constitutional right so as to succeed on the abuse of process argument at common law or under the Charter . 4. Reliability analysis [ 100 ] The defence at trial argued that the statements of Mr. Hart are hearsay evidence and subject to a necessity/reliability analysis before admission under the “principled” approach to hearsay. There has been a longstanding debate whether admissions are hearsay. See the discussion by Cameron J.A. in R. v. Connolly , 2001 NLCA 31 , 226 Nfld. & P.E.I.R. 87, at paragraph 13 , where she stated: In

summary then an admission by an accused has traditionally been viewed as either not being hearsay or, if hearsay, clearly admissible as an exception to the hearsay rule. Starr was not argued by counsel in this matter. However, in light of the position of the Supreme

Court of Canada, as stated in Starr, concerning the approach which courts should be taking to the matter of the admission of hearsayevidence, assuming for the purpose of argument that admissions could be said to fall into that category, additional analysis of theadmission is required. [101] Cameron J.A. went on to conclude that it is not necessary that the statements be absolutely reliable on the Starr analysis but that acircumstantial guarantee of trustworthiness must be established in order for the statements to be admitted.

She pointed out that someargue the traditional reasoning behind the reception of admission serves to meet the required measure of trustworthiness; they are not inthe declarant’s interest. She held that even if the exception for admissions does not strictly meet the trustworthiness requirements of theprincipled approach, the exception should not be abandoned because, as pointed out by Sopinka J. in R. v. Evans, (SCC),[1993] 3 S.C.R. 653, the litigant rationale applies and is still valid. [102] The approach of Cameron J.A. was confirmed in R. v.

Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, where the majority referredwith approval to the suggestion of Sopinka J. in Evans at page 664, that circumstantial guarantees of truthworthiness are irrelevant to theparty admissions exception to the hearsay rule. In his view, “admissibility rests on the theory of the adversary system that what a partyhas previously stated can be admitted against the party in whose mouth it does not lie to complain of the unreliability of his or her ownstatements”.

Mapara dealt with the hearsay exception of the co-conspirator rule. [103] The trial judge referred to Mapara but noted the cases conflict as to the rationale for admitting inculpatory statements of anaccused. Terrico followed the approach of Sopinka J. in the 1993 Evans case, while R. v. Wytyshyn, 2002 ABCA 229, 55 W.C.B. (2d)654, leave ref’d [2003] 2 S.C.P. xi, applied the principled approach. [104] The trial judge concluded that even if a Starr/Khelawon reliability analysis was required, considering the surroundingcircumstances, the evidence regarding the statements would pass the threshold test of reliability.

He noted that Mr. Hart had a motive tolie but that his confession to another undercover officer on April 10th, before his admissions to the boss, supported the reliability of hislater statements, as did Mr. Hart’s actions in going to a Walmart store as instructed by the undercover officers to establish an alibi at adesignated time when an alleged witness to the children’s drownings was supposed to be “taken care of” by one of the crime gangmembers. [105] This Court must show considerable deference to the trial judge’s findings of fact. He properly considered that Mr.

Hart had amotive to lie because of his desire to join the organization while also recognizing Mr. Hart had a reason to tell the truth as the boss hadundertaken to eliminate an alleged witness to the drowning. I have been provided no basis for concluding the trial judge’s decision toadmit the statements was plainly unreasonable and I conclude Mr. Hart cannot succeed on the ground that the proper assessment ofreliability was not completed. [106] Had it been necessary to determine the issue, I would follow Connolly and agree with Doherty J.A. in R. v. Foreman (2002), (ON CA), 169 C.C.C. (3d) 489 (Ont.

C.A.) and Sopinka J. in the 1993 Evans case that statements of an accused do not haveto pass a “threshold reliability” test before they can be admitted into evidence. Confessions fall under the admissions exception tohearsay, not the statement-against-interest exception. Confessions by a party are admissible because of the adversary system; thespeaker is present in court, can testify, and can explain what happened if explanation is needed. To this extent, reliability can beassured. Circumstantial guarantees of reliability are not needed.

Statements against interest are admissible because the speakers aremore likely to be telling the truth if they speak against their interests. While it might be argued that Mr. Hart was speaking both topromote his (short-term) interest in maintaining gang membership and against his (long-term) penal interest in avoiding conviction, thisargument has little significance for the admissions exception. Mr. Hart’s statement was videotaped and he was present in court to explainit.

The problems targeted by the hearsay rule, lack of demeanour evidence, tone of voice, oath and opportunities for cross-examination,did not arise. Although the statement was not made to a person in authority, the confession rule concerns about inducements, threats,coercion, persuasion and fairness were at issue here. Unless Mr. Hart could show that the admission was not freely and voluntarilygiven (and he could not), it is for the jury to determine reliability and weight. [107] One of the troublesome factors in this case is the motive Mr. Hart gave in his statement for drowning his daughters.

He said hedid away with the children because his brother was going to take them. But Child Protection Services had no active file seeking toremove them from his care although social workers were regularly visiting the home, concerned about whether the children’s needs werebeing met. The trial judge properly directed the jury’s attention to the evidence on motive and correctly noted the jury should weigh thisin arriving at their verdict. INQUIRIES AT TRIAL REGARDING COUNSEL [108] The appellant’s factum submits that the relationship between Mr.

Hart and his counsel had deteriorated during the trial to thepoint where it warranted a mistrial. The trial commenced on November 20, 2006 with a voir dire, which finished on November 29,2006. Opening instructions to the jury began on February 27, 2007. The jury retired on March 26, 2007. [109] On March 15, 2007, part way through the Crown’s case, an exchange occurred which indicted Mr. Hart was dissatisfied with theway his counsel proposed to deal with certain documentary evidence. The transcript indicates Mr.

Hart did not understand the limitationsarising from the rules of evidence regarding the admission of documents when their author is testifying. Mr. Hart also expressed concernabout his counsel’s statement that counsel would request a mistrial if Mr. Hart changed his mind about testifying. [110] On March 15, 2007, Mr. Hart expressed certain misgivings to the trial judge. He said: - At transcript volume 20, page 3: The confidence that I have in Mr. Hogan representing me is very slim. - At volume 20, page 5: I don’t feel I’m going to get a fair trial with Mr. Hogan now; as this has taken place, my Lord.

I really don’t feel that I am going to get a

fair trial with Mr. Hogan representing me. [111] In response the trial judge pointed out they were in the last, late stages of the trial, that Mr. Hart had competent counsel with a lotof experience and that Mr. Hart should listen to his advice, and that Mr. Hart was “playing a very dangerous ball here, from the point ofview of saying that … you are concerned about a fair trial …”. [112] The trial judge suggested a five to ten minute break to deal with the issue and when the

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