R. v. Derbyshire, 2016 NSCA 67

Nova Scotia Court of Appeal Citation: R. v. Derbyshire , 2016 NSCA 67 Date: 20160913 Docket: CAC 435848 Registry: Halifax Between: Her Majesty the Queen Appellant v. Brittany Leigh Derbyshire Respondent Judges: Beveridge, Saunders, Van den Eynden, JJ.A.

Appeal Heard: March 15, 2016, in Halifax, Nova Scotia Held: Appeal dismissed, per reasons for judgment of Beveridge, J.A.; Saunders and Van den Eynden, JJ.A. concurring Counsel: Jennifer MacLellan, Q.C., for the appellant Patrick MacEwen and Jonathan Hughes, for the respondent Reasons for judgment: INTRODUCTION [ 1 ] Police investigative techniques have evolved to catch criminals. One Canadian innovation is the “Mr. Big” operation. Police pretend to be criminals. They befriend a suspect.

For the suspect to gain membership or advance in the fictional criminal organization, he or she must confess details of a crime to the crime boss, Mr. Big. The confession is then used against the suspect. [ 2 ] The Supreme Court of Canada in R. v. Hart , 2014 SCC 52 created a new legal paradigm to address the forensic dangers posed by a “successful” Mr. Big operation. [ 3 ] This appeal is not directly about a Mr. Big operation. Here, undercover police officers pretended to be members of an outlaw motorcycle gang (OMG).

Originally, the police planned that when the undercover officers confronted the respondent she would contact the real target, Steven Skinner. Their conversations would be intercepted. Information would be obtained as to Skinner’s whereabouts so that he could be arrested. [ 4 ] The original plan never got off the ground. When the two “gang members” confronted the respondent, she felt threatened. She said she was held against her will for a whole day.

The officers directed her to tell them, and then demonstrate, what she had done to assist Skinner to get rid of evidence and enable him to escape from the jurisdiction. She complied. [ 5 ] The police operation gained no evidence to assist them in the arrest of Mr. Skinner. Instead, the police charged the respondent with being accessory after the fact to murder. The respondent claimed that the police conduct violated her rights under the Canadian Charter of Rights and Freedoms , or amounted to an abuse of process.

She asked that the prosecution be stayed or the evidence obtained excluded. [ 6 ] The trial judge was the Honourable Justice Michael J. Wood. He dismissed the Charter motion and declined to stay the

proceedings. However, relying on the principles in R. v. Hart , Justice Wood was satisfied that the conduct of the police amounted to an abuse of process. By way of remedy, he ordered the evidence obtained by the police excluded. The Crown offered no further evidence, and the respondent was acquitted. [ 7 ] The Crown appeals, claiming that the trial judge erred in law in a number of ways on the road to his finding an abuse of process and by the remedy of evidence exclusion. I agree that the analytical path chosen by the trial judge may be open to debate.

However, I am not satisfied that the path makes any difference to the soundness of his ultimate conclusion that courts cannot condone the conduct that he found the police engaged in, nor in the remedy he granted. [ 8 ] The Crown applies for an order banning publication of the names of the undercover officers and any information that could disclose their identity.

I will discuss the history and outcome of this application separately. [ 9 ] To understand the Crown’s complaints, it is necessary to review the trial proceedings and the sometimes difficult jurisprudential terrain created when courts are called on to determine if police conduct warrants a remedy. TRIAL PROCEEDINGS [ 10 ] First, some background. Stacey Adams was murdered on April 10, 2011. Jeff Belanger and Crystal Stephens gave statements that implicated Steven Skinner as the principal in that homicide and in two other shootings. Skinner was nowhere to be found.

Police believed that he had fled the country with the assistance of one or more persons. The police obtained authorization to intercept communications. The authorization did not yield results. [ 11 ] The lead investigator, D/Cst. Steven Langille, proposed a “minor undercover operation”. The purpose was to “strictly stimulate conversation” amongst seven named subjects. Undercover officers would pose as members of an OMG. Phase One would have the officers visiting establishments known to be frequented by the subjects of the operation.

In Phase Two, scenarios would be developed for the officers to meet some of the subjects to further elevate stress levels and stimulate conversation. [ 12 ] The operation was approved. But when members of the RCMP arrived in Halifax to carry out the undercover operation, a somewhat different plan was developed. Sgt. Chubbs was the “cover” officer. He was in charge of implementing the undercover operation. He proposed that two undercover officers carry out a one-time approach of the respondent, Brittany Derbyshire. This would occur in a public place, giving her the opportunity to walk away. [ 13 ] Sgt.

Chubbs described what he planned and hoped for: Details I provided them [the undercover officers] was a little more than, again, I would normally provide. However, the reason why it was given in more detail, My Lord, is that this was a one-time opportunity to approach Derbyshire. One of two things ... and this is, again, based on my experience. So, based on my experience, one of two things were going to happen. Ms. Derbyshire was going to walk away from us and have no dealings with us when we approached her in a public place and tell us to get lost and leave. That's one thing that happens.

The second thing that'll happen is that she believed the cover story and that she reaches out and makes contact to somebody on that targeted list. And, in particular, we wanted her to call Steve Skinner. So those were kind of the anticipated results. So they had to have all the details of the offence in case ... the other thing would be what I call an "off chance" that Brittany Derbyshire tells us everything. [ 14 ] The two officers that carried out the operation were personally chosen by Sgt. Chubbs. They were French Canadian. They would pose as members of an OMG from Montreal.

He had confidence that they could carry off the role as members of an OMG. His faith in the authenticity of their assumed persona was not misplaced. If anything, their performance was too good, and not carried out as envisaged by Sgt. Chubbs. [ 15 ] The two undercover officers did not meet the respondent in a public place. They parked their rented SUV outside of her apartment building. When she drove her car inside, they followed on foot. They demanded she get back into her small car. One sat beside her. The other officer blocked her ability to get out of the car.

The evidence from the officers and the respondent differed. I will describe it in more detail later. [ 16 ] For now, it is sufficient to say that the respondent told them that she had helped Skinner dispose of evidence and get to the airport in Moncton, knowing that he had committed murder. A charge followed of being an accessory after the fact to murder ( s. 240 of the Criminal Code ).

Almost a year in advance of her scheduled jury trial, the respondent brought a motion requesting a stay of proceedings on the basis that the police conduct violated her right to silence and self-incrimination under s. 7 of the Canadian Charter of Rights and Freedoms , or amounted to an abuse of process. Alternatively, the evidence obtained should be excluded under s. 24(2) of the Charter . [ 17 ] Evidence was called at a voir dire , June 23-27, 2014. The respondent testified. The Crown called five police officers. Detailed oral submissions were made on July 25 and October 1, 2014.

In addition, the parties filed written briefs before and after the evidentiary portion of the voir dire . The importance of the submissions will become clear later. First, I will refer to the substance of the evidence, the submissions made, and the trial judge’s reasons. The evidence [ 18 ] In the summer of 2011, the respondent was 23 years old. For six years, she worked in sales and promotion, and more lately as a server. She lived alone in a large apartment building in Lower Sackville, Nova Scotia. [ 19 ] In her teens, the respondent had dated one Ryan Belanger.

Ryan’s older brother, Jeff, was involved in the drug trade. As she and Ryan got older, they also became involved. The evidence was not precise about hierarchy and roles, but Steven Skinner was also involved with the Belangers in trafficking cocaine. The respondent met Skinner when she was 21 years of age.

[ 20 ] In 2011, Ryan Belanger lived in Toronto. The respondent assisted him in his drug trafficking activities by relaying messages to associates. She also collected debts and, at the very least, transported money. She was aware of the use of violence in the drug trafficking business, but had not witnessed any. Both Ryan Belanger and Steven Skinner were big men, who wore high-end designer clothes to emanate tough guy personas. [ 21 ] On July 13, 2011, the respondent had spent the night at a friend’s apartment. She returned home on July 14, 2011. She used her passcard to open the underground parking door.

Parked outside was a black Suburban with two occupants—the undercover officers. [ 22 ] The lead officer was Cpl. Patrick Isabelle. His partner was a larger man, Sgt. Daniel Perron. Both were dressed as members of an OMG, wearing high-end tough guy clothes and gold jewellery. The evidence of the respondent and the undercover officers differed in some details, and definitely in perspective. [ 23 ] There is some commonality. The officers purposely acted aggressively toward the respondent. They ordered her back into her car. Cpl.

Isabelle sat next to her; his partner blocked her exit. [ 24 ] According to the respondent, Cpl. Isabelle grabbed her by the wrist to put her into the car. She said she was petrified. Cpl. Isabelle explained that they were in Halifax to deal with the mess made by Skinner. There was a rat. They were there to get rid of Jeff, make him disappear. She could be an asset for them, but they were scared that she was a rat. She could not get out of the car.

She said she felt she had no choice or they would think she was a problem that they would need to get rid of. [ 25 ] The respondent told them that she had driven Skinner to the Moncton airport. They asked if she knew where the gun was. She said she did. Cpl. Isabelle told her she was going to Moncton. The respondent said she had to work. Cpl. Isabelle said work was cancelled, she was going with them. They left the garage. The respondent was escorted to the black SUV with tinted windows. She was placed in the rear with Cpl. Isabelle. Sgt. Perron was the driver. [ 26 ] Cpl.

Isabelle instructed her to turn off her phone. She was not permitted to use it. When she needed to send a text to explain her absence from work, they vetted the content first. Cpl. Isabelle spoke English with her and French with Sgt. Perron. [ 27 ] The black SUV stopped in Oxford, Nova Scotia on the way to Moncton. The respondent was never left alone. Once in Moncton, she took them to where she said the gun was disposed of. When they stopped for food, the officers ordered. The respondent did not eat.

When she went to the washroom, they took her cell phone from her. [ 28 ] On the way back to Lower Sackville, she took them to a site where she said she had burned the clothes that Skinner had worn. Once back at her apartment building, Cpl. Isabelle demanded that she give them the clothes she had worn the day she had helped Skinner. She said she would go get them and return. [ 29 ] That was not an option. Cpl. Isabelle told her they were coming with her. Once in the apartment, the officers examined and commented on the personal photographs of her family.

Once again, she felt frightened and scared for herself and other people. [ 30 ] Inside the apartment, Cpl. Isabelle wrote a number down for her and told her to call at 1:00 p.m. the next day—if she was a minute late, or if she decided to disappear, they told her that money talks and they could pay people to find her. [ 31 ] The respondent called the next day. Cpl. Isabelle was very upset. She was five minutes late. He instructed her to call back at 6:00 p.m. and hung up. The reason for the delay was that he wanted more time to set up a wiretap authorization to capture her comments electronically.

She called, but explained that she had to work and was then going to leave Nova Scotia. She did not speak to them again. [ 32 ] Much of what the respondent described was confirmed by the evidence of the undercover officers, but with a different perspective. Cpl. Isabelle emphasized that the main objective of an undercover officer is to obtain admissible evidence for court. Neither he, nor Sgt. Perron, mentioned that the object of this operation was to generate electronic communications which could be intercepted. [ 33 ] Cpl.

Isabelle explained that the strategy was to confront the respondent with investigational facts and demand to know what had happened, so they can clean up loose ends or mess from the crime. He intended to meet her, not in a public place, but somewhere he could be alone with her. [ 34 ] Dressed as a member of an OMG, Cpl. Isabelle described his approach and initial interaction with the respondent. He told her that they needed to “fucking talk with her” and ordered her back into her car. He denied touching her, but agreed that he sat uninvited in the passenger seat, while Sgt.

Perron stood at the driver’s window, blocking her ability to exit. In an aggressive tone, he told her that business had gone to shit since the murder, they knew there was a rat, and they were sent by the higher ups from out West to clean up the mess. While still being aggressive, he demanded that she had better be honest with him, and “no fucking bullshit”. He never said what would happen to her if she was not honest with him. [ 35 ] Cpl. Isabelle said he was surprised as the respondent immediately agreed that there was a “rat”, business had been bad, and told him what she had done to assist Skinner to escape.

She drew crude maps to demonstrate, and when asked by Isabelle to show them, simply agreed to do so. [ 36 ] According to Cpl. Isabelle, once she started talking in the underground garage, he stopped being aggressive and simply elicited information in a normal manner. He ensured she was not afraid. He asked her, at least three times, when in the SUV, whether she was afraid. She said she was not. [ 37 ] Cpl. Isabelle admitted he turned overtly aggressive with the respondent in the SUV as they were returning to her apartment building.

This was in relation to his demand that she turn over the clothes she wore, and on the way to the apartment he said, “You better fucking not talk to anybody.”

[ 38 ] Sgt. Perron’s evidence added little to what was already known. He said they were asked to approach the respondent and try to get as much information from her as they could. He played the role of driver or assistant. He really said nothing to the respondent. [ 39 ] Sgt. Perron’s evidence was noticeably vague in a number of areas, and wavered between direct and cross-examination. Sgt. Perron conceded that he did not have a strong recollection of the events. He agreed that Cpl. Isabelle, in order to impersonate who he was supposed to be, raised his voice “a bit”.

He also agreed that, in their role as bad guys, they had moved quickly toward the respondent, Cpl. Isabelle had opened the car door and told her to get back in, and indeed had put his hand on her arm and guided her in the process. She appeared to be frightened at the very beginning. [ 40 ] After ten minutes, he described the respondent as relaxed and normal. She agreed to draw a map and take them to Moncton. He recalled that Cpl. Isabelle had raised his voice on a number of occasions in the SUV—insisting that she not lie to them. And she was not free to use her phone. He and Cpl.

Isabelle had spent 7.5 hours playing bikers. The submissions [ 41 ] The respondent filed a brief on April 11, 2014. She alleged that her s. 7 rights to silence and self-incrimination were infringed, and her rights were also breached by the failure of the police to record the interchange between her and the undercover officers. Further, that the police conduct amounted to an abuse of process. The remedy requested was a stay of proceedings or that the evidence be excluded under s. 24(2) of the Charter . [ 42 ] The Crown responded with its brief on May 1, 2014.

It contended that the respondent’s arguments must fail factually and legally. The respondent was not in police custody; she was not detained; there were no threats of violence; nor was there any pronounced emotional or psychological pressure. [ 43 ] Apart from the majority reasons of the Newfoundland Court of Appeal in R. v. Hart , 2012 NLCA 61 , the authorities did not extend the right to silence to pre-detention situations. Hart had been argued before the Supreme Court and was on reserve. The Crown predicted it would not stand. [ 44 ] On July 25, 2014, oral submissions were made.

The respondent argued that she had been detained. She was afraid of being labelled a “rat” by the OMG. It was fear that made her talk to the undercover officers. She was told where to sit and what to do. She had no realistic ability to leave. She was physically and psychologically detained. Both factually and legally, the conduct of the police infringed her rights. The proceedings should be stayed or the evidence excluded. [ 45 ] The Crown conceded that the officers’ initial approach to the respondent was forceful. Foul language was used, and the tone of voice used by Cpl.

Isabelle was to preserve his credibility for the role he was playing. But after that initial approach, the exchange was very relaxed, with the respondent a willing participant. [ 46 ] The Crown also forcefully attacked the credibility of the respondent’s version of the interrogation, including that given the evidence of her involvement in a drug trafficking network, she should not have been surprised or shocked by the officers’ demeanour and statements. [ 47 ] Six days after oral submissions, the Supreme Court of Canada released R. v. Hart , 2014 SCC 52 .

The majority established a new two-pronged approach to the admissibility of confessions generated by a Mr. Big operation. The evidence is presumptively inadmissible. The Crown must establish that the probative value outweighs the prejudicial effect of the evidence. But, regardless of the reliability of the confession, if the accused establishes that the police crossed the line from skillful police work to abusive conduct that unfairly coerces a confession, a stay of proceedings or exclusion of evidence could result. [ 48 ] The trial judge invited the parties to make submissions in light of R. v.

Hart . [ 49 ] The Crown filed written submissions on September 12, 2014. It argued that the new Hart considerations did not apply as the undercover operation was not a Mr. Big scenario. The Crown agreed that the law on abuse of process doctrine had not changed. The doctrine was meant to “guard against state conduct that society finds unacceptable, and which threatens the integrity of the justice system”. In this case, it argued there were no threats, violence, or inducements.

The police did not prey on any vulnerabilities unique to the respondent. [ 50 ] The respondent’s brief of September 22, 2014 submitted that although the operation conducted in this case was not a classic Mr. Big operation, it was nonetheless a truncated version of one. Hence, the same principles should apply to place the burden on the Crown to establish admissibility. [ 51 ] In addition, regardless of the reliability of the alleged inculpatory remarks and outcome of a balancing of the probative value against prejudicial effect, the conduct of the police amounted to an abuse of process.

The respondent relied on the principles outlined in Hart by Justice Moldaver, writing for the majority, where he said: [115] It is of course impossible to set out a precise formula for determining when a Mr. Big operation will become abusive. These operations are too varied for a bright-line rule to apply. But there is one guideline that can be suggested. Mr. Big operations are designed to induce confessions. The mere presence of inducements is not problematic ( Oickle , para. 57). But police conduct, including inducements and threats, becomes problematic in this context when it approximates coercion.

In conducting these operations, the police cannot be permitted to overcome the will of the accused and coerce a confession. This would almost certainly amount to an abuse of process. [116] Physical violence or threats of violence provide examples of coercive police tactics. A confession derived from physical violence or threats of violence against an accused will not be admissible – no matter how reliable – because this, quite simply, is something the community will not tolerate (see, e.g., R. v. Singh , 2013 ONCA 750 , 118 O.R. (3d) 253).

[ 52 ] Both parties expressed a desire to appear in person and make oral submissions. They did so on October 1, 2014. There is no need to recite those submissions. Trial Judge’s Reasons [ 53 ] The trial judge set out the background, the relevant evidence, and the positions of the parties. He then turned to his analysis, which focussed on R. v. Hart and R. v. Mack , 2014 SCC 58 . The trial judge reasoned that the respondent was not subject to a Mr. Big operation. As a result, the new rule of evidence established in R. v.

Hart placing the onus of admissibility on the Crown did not apply. [ 54 ] On the other hand, there were aspects of the Supreme Court’s reasons that informed his analysis. First, (unlike the Newfoundland Court of Appeal, and Justice Karakatsanis in Hart ), Justice Moldaver refused to extend the s. 7 right against self- incrimination to undercover police operations.

Part of Justice Moldaver’s rationale was the availability of the common law doctrine of abuse of process to deal with allegations of police misconduct. [ 55 ] This led the trial judge to conclude the s. 7 right to silence had no application, the respondent’s allegations of police misconduct were left to be assessed under the doctrine of abuse of process. [ 56 ] The trial judge also decided that the failure by the police to record their exchange with the respondent did not breach her right to make full answer and defence. [ 57 ] Turning to the doctrine of abuse of process, the trial judge accepted the guidance offered by Justice Moldaver in R. v.

Hart , where he wrote: [86] Second, I would rely on the doctrine of abuse of process to deal with the problem of police misconduct. I recognize that the doctrine has thus far proved less than effective in this context. While the problem is not an easy one, I propose to provide some guidance on how to determine if a Mr. Big operation crosses the line from skillful police work to an abuse of process. [ 58 ] The trial judge quoted a number of other paragraphs from the reasons of Justice Moldaver (these included paras. 115 and 116, see above at ¶ 51).

He also recited: [117] Violence and threats of violence are two forms of unacceptable coercion. But Mr. Big operations can become coercive in other ways as well. Operations that prey on an accused's vulnerabilities – like mental health problems, substance addictions, or youthfulness – are also highly problematic (see Mack , at p. 963). Taking advantage of these vulnerabilities threatens trial fairness and the integrity of the justice system.

As this Court has said on many occasions, misconduct that offends the community's sense of fair play and decency will amount to an abuse of process and warrant the exclusion of the statement. [118] While coercion is an important factor to consider, I do not foreclose the possibility that Mr. Big operations can become abusive in other ways. The factors that I have outlined, while not identical, are similar to those outlined in Mack , with which trial judges are well- familiar (p. 966). At the end of the day, there is only so much guidance that can be provided.

Our trial judges have long been entrusted with the task of identifying abuses of process and I have no reason to doubt their ability to do the same in this context. [ 59 ] The trial judge observed that confessions unfairly coerced by undercover police officers would likely lead to a finding of abuse of process. He cited violence and threats of violence as obvious examples of unfair coercion. He saw no reason to limit these principles to Mr.

Big operations: [74] With confessions to undercover police officers the use of techniques which unfairly coerce those admissions will likely lead to a finding of abuse of process. Violence and threats of violence are obvious examples. Unlike the new evidentiary rule, there is no logical reason to limit Justice Moldaver's comments on abuse of process to cases involving "Mr. Big" confessions. [ 60 ] The trial judge then turned to the evidence. He noted there were discrepancies. A number of key findings of fact were made. In essence, the trial judge accepted the evidence of the respondent.

He was satisfied that the reason she told them what had happened was the result of fear and intimidation, not as the Crown had argued, because of her desire to help the criminal operators from Montreal. [ 61 ] His key findings are found in the following paragraphs: [80] Understandably, Ms. Derbyshire completely believed that the undercover operators were gangsters from Montreal. When they approached her in the underground parking garage the officers were intimidating. They moved aggressively and Corporal I. raised his voice, pointed his finger and ordered Ms. Derbyshire into her car. Ms.

Derbyshire did as she was told and found herself confined by Corporal I. in the passenger seat and Sergeant P. outside the driver's door. These were very close quarters and Corporal I. continued to speak to her aggressively, waving his finger and demanding that she tell them about her involvement in the Adams' homicide. She did so immediately and I am satisfied, based upon her testimony, that it was the result of fear and intimidation and not a willingness to help these "criminals" from Montreal. … [86] The undercover operators intended to create an intimidating and threatening environment for Ms.

Derbyshire and they were successful in doing so. She said she was frightened and I have no doubt that she was. There was a very strong implied threat of physical harm to her if she did not give the "gangsters" what they were after. The fact that she gave incriminating information, implicating both herself and Mr. Skinner, in such a short period of time confirms the nature of the atmosphere which had been created. [87] The situation faced by Ms. Derbyshire should be contrasted with those encountered by Messrs. Hart and Mack who were given clear choices about whether to confess.

They were not subject to threats, intimidation or coercion.

[88] Once the confession and other information was given by Ms. Derbyshire and she was told to show the officers the physical evidence, the rest of the day unfolded as one would expect. Corporal I. intended to maintain control of the situation, and over Ms. Derbyshire, and he did so. While the tension may have diminished somewhat, that does not make Ms. Derbyshire's subsequent actions or statements any more voluntary.

Once she had disclosed the significant information concerning the Adams' murder confirming it in subsequent discussions, or providing further details is part of one continuous transaction. [89] I am satisfied that the actions of Corporal I. and Sergeant P. resulted in the type of unfair coercion described by Justice Moldaver in Hart . Ms. Derbyshire's confession and identification of physical evidence was obtained by intimidation and implied threats of harm. She was never given a choice which would have permitted her to walk away without disclosure.

This was an abuse of process . [Emphasis added] [ 62 ] The trial judge then considered what remedy should follow. He directed himself that a stay of proceedings for an abuse of process should rarely be granted. It required “the clearest of cases”. The judge was on firm territory. He cited and relied on the latest recitation of the governing principles set out in R. v.

Babos , 2014 SCC 16 . [ 63 ] The trial judge recognized that there are two categories of abusive state conduct that may warrant a stay: the main category, where the conduct compromises the fairness of an accused’s trial; and the residual category, where there has been conduct that risks undermining the integrity of the judicial process. [ 64 ] There was no suggestion that trial fairness had been undermined. His focus was, therefore, on the residual category.

For that category, the trial judge relied on the direction from the majority reasons for judgment penned by Moldaver J. in Babos , where he explained the three stage test to obtain a stay of proceedings for the residual category. [ 65 ] In relation to the first stage of the test for the residual category, the inquiry is whether permitting a trial would leave the impression that the justice system condones conduct that offends society’s sense of fair play and decency and would be harmful to the integrity of the justice system: [35] By contrast, when the residual category is invoked, the question is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system.

To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution of offences. At times, state conduct will be so troublesome that having a trial – even a fair one – will leave the impression that the justice system condones conduct that offends society's sense of fair play and decency. This harms the integrity of the justice system. In these kinds of cases, the first stage of the test is met. [ 66 ] At the second stage, the question is whether any other remedy short of a stay is capable of redressing the prejudice.

If still uncertain if a stay is appropriate, the court turns to the third part of the test, which requires the court to engage in a balancing of interests between denouncing the misconduct and preserving the integrity of the justice system, against society’s interest in having a decision on the merits. [ 67 ] The trial judge said he considered all of these factors and was not satisfied that a stay of proceedings was required or appropriate. Instead, he found that the harm could be remedied by excluding the evidence the police obtained.

He wrote: [93] When I consider all of these factors I am not satisfied that a stay of proceedings is required or appropriate. While the misconduct in this case could be categorized as offensive to notions of fair play and decency, I am satisfied that the harm can be remedied by excluding the evidence which was obtained. This would include the statements made by Ms. Derbyshire to the undercover operators as well as the physical evidence and its locations which she identified.

By doing so, the Court distances itself from the impugned conduct and at the same time recognizes the importance of having this serious charge tried on its merits. [ 68 ] With this background, I turn to the appellant’s complaints of error. [ 69 ] The Crown asserts that the trial judge erred because he: failed to select and apply the proper test for an abuse of process; erred in law in finding an abuse of process; and excluded evidence as a remedy. The precise words set out in its factum are: 1. The trial judge erred in law by failing to consider the proper test for finding an abuse of process. 2.

The trial judge erred in law by failing to properly apply the test for abuse and erred in law by finding an abuse of process. 3. The trial judge erred in law by failing to consider the proper test for exclusion of evidence as a remedy for a s. 24(1) Charter breach and erred in law by finding that exclusion of evidence was a just and appropriate remedy. [ 70 ] Given the overlap between the first two grounds, I will restructure them as follows: 1. Did the trial judge fail to identify/apply the correct test for an abuse of process? 2. Did the trial judge err in law in finding an abuse of process? 3.

Did the trial judge err in his approach or ultimate conclusion that exclusion of the evidence was an appropriate and just remedy? [ 71 ] Before addressing the complaints of error, it is important to recognize the standard of review that governs this Court’s analysis of the putative errors. [ 72 ] Whether a right guaranteed by the Canadian Charter of Rights and Freedoms has been infringed, or an abuse of process occurred, is a question of law. A trial judge is required to articulate and apply the correct legal principles. A failure to do so will be

reviewed on a standard of correctness. [73] However, not everything that goes into deciding a question of law attracts such a standard. Trial judges are frequently requiredto make findings of fact that inform the ultimate legal question to be answered. Such findings of fact, or of mixed law and fact, withoutan extricable legal component, are subject to deference and cannot be disturbed unless the trial judge made a palpable and overridingerror (see Housen v.

Nikolaisen, 2002 SCC 33, at paras. 25, 26 and 36). [74] I see no reason why this does not also apply generally to facts found in a dispute over violation of rights (see Congrégation destémoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), 2004 SCC 48). This imports an assessment of whether the findingis unreasonable or not supported by the evidence (see H.L. v.

Canada (Attorney General), 2005 SCC 25). [75] Justice Moldaver in Babos referred to the level of deference for the remedy selected by a trial judge for an abuse of process(under s. 24(1)) as follows: [48] The standard of review for a remedy ordered under s. 24(1) of the Charter is well established. Appellate intervention iswarranted only where a trial judge misdirects him or herself in law, commits a reviewable error of fact, or renders a decision that is "soclearly wrong as to amount to an injustice" (Bellusci, at para. 19; Regan, at para. 117; Tobiass, at para. 87; R. v.

Bjelland, 2009 SCC 38,[2009] 2 S.C.R. 651, at paras. 15 and 51). Did the trial judge fail to identify/apply the correct test for an abuse of process? [76] The appellant set out the leading authorities on the common law doctrine of abuse of process and its seeming assimilation withinthe framework of the Charter. To what end?

The appellant says it delved into the issue because it was not clear whether the trial judgewas applying a common law or a Charter analysis, which would have had implications for the burden of proof and the availability ofvarious remedies. [77] In essence, the Crown contends that the common law doctrine of abuse of process is subsumed by the Charter. The Crownsays that this required the trial judge to undertake a balancing exercise to determine if the state conduct amounted to an abuse of process(in addition to a balancing exercise at the remedy stage).

The trial judge did not do so, and hence committed legal error. [78] Further, the Crown suggests that the trial judge erred by lowering the strict requirement to find an abuse of process when hesaid that the misconduct in this case “could be categorized as offensive to notions of fair play and decency”. [79] Courts decide what they are asked to decide. In this case, the respondent asked the judge to find that the police conductamounted to an infringement of her rights in two aspects: her right to remain silent under s. 7 and by the failure of the police to record thecommunications.

The latter claim was rightly summarily rejected. The former was foreclosed by the clear direction from the SupremeCourt of Canada in R. v. Hart that s. 7 of the Charter had no application in determining the admissibility of confessions induced by actsand conduct of undercover police officers. [80] It is not hard to understand the Crown’s position. But, with respect, it stems from a failure to keep separate the traditionalremedy for conduct found to be abusive—a stay of proceedings—from the ability of a trial judge to find abuse.

It also fails to recognizethat the common law doctrine of abuse of process has not been entirely subsumed by the Canadian Charter of Rights and Freedoms. [81] It was not until R. v. Jewitt, (SCC), [1985] 2 S.C.R. 128 that the Supreme Court clearly confirmed that courtscould order a stay of criminal proceedings as part of their inherent common law jurisdiction: [25] I would adopt the conclusion of the Ontario Court of Appeal in R. v.

Young, supra, and affirm that "there is a residual discretionin a trial court judge to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justicewhich underlie the community's sense of fair play and decency and to prevent the abuse of a court's process through oppressive orvexatious proceedings". I would also adopt the caveat added by the Court in Young that this is a power which can be exercised only inthe "clearest of cases". [82] Little has changed.

But state conduct that violates the fundamental principles of justice is also likely to violate the rightsguaranteed by the Canadian Charter of Rights and Freedoms. If it does, remedies are available under s. 24. [83] If evidence has been “obtained in a manner” that infringed or denied one or more Charter rights, then the tripartite test set out inR. v.

Grant, 2009 SCC 32 governs whether the Court must exclude the evidence to protect the administration of justice from disreputepursuant to s. 24(2). [84] If the admissibility of evidence is not engaged, but rights have been infringed by state conduct, an accused can seek a remedythat is appropriate and just under s. 24(1). The remedy can vary from the most drastic remedy, a stay of proceedings (limited to “theclearest of cases” (R. v. Bellusci, 2012 SCC 44)), to an adjournment of proceedings (with or without an award of costs), an exclusion ofevidence and an order for a new trial (R. v.

Xenos (1991), (QC CA), 70 C.C.C. (3d) 362 (Que. C.A.) – either as a24(1) remedy or for an abuse of process), or a reduction in sentence should the accused be found guilty (R. v. Nasogaluak, 2010 SCC 6). [85] R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411 was the first Supreme Court of Canada case that sought to clarifythe relationship between the common law doctrine of abuse of process and the Charter. The majority reasons were written by JusticeL’Heureux-Dubé.

She identified the parallels between state conduct that infringes rights or amounts to an abuse of the court’s process(paras. 60 et seq.), which led her to conclude: [70] For these reasons, I conclude that the only instances in which there may be a need to maintain any type of distinction between thetwo regimes will be those instances in which the Charter, for some reason, does not apply yet where the circumstances nevertheless

point to an abuse of the court's process. Because the question is not before us, however, I leave for another day any discussion of whensuch situations, if they indeed exist, may arise. As a general rule, however, there is no utility in maintaining two distinct approaches toabusive conduct. The distinction is one that only lawyers could possibly find significant.

More importantly, maintaining this somewhatartificial dichotomy may, over time, create considerably more confusion than it resolves. [86] This conclusion was echoed by Justice Major, in dissent: [197] I have read the reasons of Justice L'Heureux-Dubé, and agree that common law abuse of process has been subsumed in theCanadian Charter of Rights and Freedoms and should not be considered separately unless circumstances arise to which the Charter doesnot apply, which is not the case in this appeal.

The party alleging abuse of process must prove on a balance of probabilities that aviolation of the Charter has occurred. Upon proving this, a variety of remedies are available under s. 24(1). [87] Despite the attempt to limit the existence of the common law doctrine to instances where the Charter does not apply, thedoctrine continued to be turned to, sometimes as an alternative. For example in United States of America v.

Cobb, 2001 SCC 19, JusticeArbour, writing for the Court, reviewed the case law about abuse of process, the Charter, and the availability of both to address abusivestate conduct: [40] The decision of Hawkins J. granting a stay of proceedings was therefore justified, in my opinion, either as a remedy based on s.7 of the Charter or on the basis of the court's inherent powers at common law to control its own process and prevent its abuse.

Inthis case, the abuse of process was directly and inextricably related to the committal hearing. … [52] By placing undue pressure on Canadian citizens to forego due legal process in Canada, the foreign State has disentitled itselffrom pursuing its recourse before the courts and attempting to show why extradition should legally proceed. The intimidation boredirectly upon the very proceedings before the extradition judge, thus engaging the appellants' right to fundamental justice at commonlaw, under the doctrine of abuse of process, and as also reflected in s. 7 of the Charter.

The extradition judge did not need to await aministerial decision in the circumstances, as the breach of the principles of fundamental justice was directly and inextricably tied to thecommittal hearing. [53] In my view, the extradition judge had the jurisdiction to control the integrity of the proceedings before him, and to grant aremedy, both at common law and under the Charter, for abuse of process. … [Emphasis added] (See also United States of America v. Shulman, 2001 SCC 21) [88] In R. v.

Regan, 2002 SCC 12, the Court reiterated that, at least, where the common law doctrine of abuse of process isconcerned with protecting society’s interest in a fair process the analysis under the Charter and the common law will dovetail (paras. 49-50). [89] Excessive use of force by police can ground a s. 7 infringement and a stay of proceedings (R. v. Tran, 2010 ONCA 471; R. v.Singh, 2013 ONCA 750), or a lesser remedy such as a reduction in sentence (R. v.

Nasogaluak, 2010 SCC 6). [90] But, there are instances where state conduct does not necessarily engage the Charter, but the common law abuse of processdoctrine is nonetheless engaged. Fundamentally, these involve police conduct that goes beyond what is acceptable in protecting societyfrom criminal conduct.

The jurisprudential wellspring for the “defence of entrapment” is the common law abuse of process doctrine. [91] An accused who has been found guilty beyond a reasonable doubt is entitled to a stay of proceedings if he establishes on abalance of probabilities that the police have engaged in conduct such that allowing the prosecution or the entry of a conviction wouldamount to an abuse of the judicial process by the state (see R. v. Mack, (SCC), [1988] 2 S.C.R. 903; R. v. Campbell, (SCC), [1999] 1 S.C.R. 565 at para. 21). [92] The question is one of mixed law and fact and should be resolved by the trial judge.

A stay should be entered only in the“clearest of cases” (Mack, para. 149). [93] A stay of proceedings may also be available where the police engage in unlawful conduct. The effect of police illegality isdriven by the facts (see R. v. Campbell, supra. at para. 24). [94] State conduct was obviously the focus in R. v. Hart. The majority of the Newfoundland Court of Appeal, and JusticeKarakatsanis, in the Supreme Court of Canada, identified the Canadian Charter of Rights as the appropriate analytical framework toregulate Mr. Big operations, given the state’s role in generating the confession.

However, the majority instead chose a two-prongedcommon law approach. [95] The first prong focuses on the admissibility of the inculpatory evidence generated by the undercover operation. A newcommon law rule was announced. The inculpatory admissions are presumptively inadmissible. To gain admission, the Crown mustestablish on a balance of probabilities that the probative value of the admissions outweigh their prejudicial effect. [96] The second prong focuses on police conduct.

Justice Moldaver in Hart manifestly chose the common law abuse of process asthe foundation to address concerns about unacceptable police conduct: [11] Trial judges must also carefully scrutinize the conduct of the police to determine if an abuse of process has occurred. No matterhow reliable the confession, the courts cannot condone state conduct – such as physical violence – that coerces the target of a Mr. Bigoperation into confessing. Where an accused establishes that an abuse of process has occurred, the court can fashion an appropriate

remedy, including the exclusion of the confession or a stay of proceedings. [97] Justice Moldaver was aware that the abuse of process doctrine had not yet found much favour in combating questionable policeconduct in Mr. Big operations. He proposed to provide guidance on how to determine if a Mr. Big operation crosses the line fromskillful police work to an abuse of process (para. 86). [98] Even if a reliable confession is obtained, Justice Moldaver stressed that the end is not justified by the means. It was in thisregard that the abuse of process doctrine has a role.

The following illustrates: [112] I should not, however, be taken as suggesting that police misconduct will be forgiven so long as a demonstrably reliableconfession is ultimately secured. That state of affairs would be unacceptable, as this Court has long recognized that there are "inherentlimits" on the power of the state to "manipulate people and events for the purpose of ... obtaining convictions" (R. v. Mack, (SCC), [1988] 2 S.C.R. 903, at p. 941). [113] In my view, this is where the doctrine of abuse of process must serve its purpose.

After all, the doctrine is intended to guardagainst state conduct that society finds unacceptable, and which threatens the integrity of the justice system (R. v. Babos, 2014 SCC 16,at para. 35). Moreover, the doctrine provides trial judges with a wide discretion to issue a remedy – including the exclusion of evidenceor a stay of proceedings – where doing so is necessary to preserve the integrity of the justice system or the fairness of the trial (ibid., atpara. 32). The onus lies on the accused to establish that an abuse of process has occurred. [99] In this case, the police did not engage in a classic Mr.

Big operation. At first, the operation was supposed to have members ofan OMG stimulating suspects to communicate electronically, which would be captured by the authorized wiretap. Then, the operationmorphed into an approach of the respondent in a public area, where she would have the option to walk away. [100] Instead, the undercover officers confronted the respondent in her dimly lit underground parking lot. They ordered her to get backinto her car, and demanded she tell them what had happened. She said she was scared by the implicit threats of violence.

The trial judgefound that that fear caused her to cooperate. [101] As to such tactics, Justice Moldaver provided the following guidance: [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, para. 57).

But police conduct, includinginducements and threats, becomes problematic in this context when it approximates coercion. In conducting these operations,the police cannot be permitted to overcome the will of the accused and coerce a confession. This would almost certainly amount toan abuse of process. [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 inother ways as well. Operations that prey on an accused's vulnerabilities – like mental health problems, substance addictions, oryouthfulness – are also highly problematic (see Mack, at p. 963). Taking advantage of these vulnerabilities threatens trial fairness and theintegrity of the justice system.

As this Court has said on many occasions, misconduct that offends the community's sense of fairplay and decency will amount to an abuse of process and warrant the exclusion of the statement. [Emphasis added] [102] The use of feigned or real violence in Mr. Big operations does not necessarily attract a finding of abuse. For example, in R. v.Allgood, 2015 SKCA 88, leave to appeal ref’d, [2015] S.C.C.A. No. 423, the police created scenarios involving acts of violence. Eventually, the appellant confessed to murdering his former female partner and attempted murder of her companion.

The use of theviolent scenarios was not found to be abusive as they were not done to intimidate Mr. Allgood, but rather to show that the organizationapproved of violent acts being done to non-members, including women (see also R. v. Johnston, 2016 BCCA 3 at para. 51 and R. v.Randle, 2016 BCCA 125). [103] However in R. v. Laflamme, 2015 QCCA 1517, (leave to appeal ref’d, [2015] S.C.C.A. No. 479) violent scenarios were used todemonstrate the power and willingness of the “Organization” to use violence against its own members, including the accused and theundercover officer who introduced him into the organization.

These indirect or veiled threats amounted to unacceptable coercive tactics(paras. 79-80) and compromised the integrity of the justice system. It constituted an abuse of process. A stay of proceedings wasentered. [104] With all due respect, the common law doctrine of abuse of process is available to assess whether police conduct crossed the linefrom skillful police work to conduct that, if condoned, would be harmful to the integrity of the justice system. It has never been, norshould it be, limited to police misconduct involved in “Mr. Big” operations.

It is the coercive power of the implied or indirect threats ofharm to the accused or to others that matters, not whether the police had the time and resources to mount a full-fledged “Mr. Big”operation. [105] The Crown cites the trial judge’s language in para. 93 of his decision as demonstrating legal error: “While the misconduct in thiscase could be categorized as offensive to notions of fair play and decency, I am satisfied that the harm can be remedied by excluding theevidence which was obtained” (my emphasis).

It contends that the emphasized words indicate that he lowered the threshold for afinding of abuse of process. [106] With respect, the Crown takes the trial judge’s language at para. 93 out of context. The trial judge had already directed himself

that his query had to focus on whether the police behaviour might be considered harmful to the integrity of the justice system (para. 72). For this query, he examined if the conduct of the police unfairly coerced the respondent’s admissions. After reviewing the evidence, andthe competing inferences that could be drawn, he found: [89] I am satisfied that the actions of Corporal I. and Sergeant P. resulted in the type of unfair coercion described by Justice Moldaver inHart. Ms. Derbyshire's confession and identification of physical evidence was obtained by intimidation and implied threats of harm.

Shewas never given a choice which would have permitted her to walk away without disclosure. This was an abuse of process. [107] It was after this finding that he considered the issue of what remedy should follow. Since the respondent was requesting a stay ofproceedings, he turned to the test for a stay set out in R. v.

Babos, supra. [108] In that case, Justice Moldaver, again writing for the majority, confirmed that the test for a stay of proceedings is the samewhether the case falls into the “main” category (conduct that jeopardizes an accused’s right to a fair trial) or the “residual category”(conduct that risks undermining the integrity of the judicial process). [109] The test has three requirements. The first focuses on whether the prejudice to the accused’s fair trial right, or the integrity of thejustice system, will be manifested, perpetuated, or aggravated by a trial.

The second is whether there is an alternative effective remedy. If there is still uncertainty whether a stay is warranted, the court must then balance the interests of granting a stay against society’sinterest in a final decision on the merits (para. 32). [110] Where it is the residual category in play, Justice Moldaver elaborated on the first requirement for this category at para. 35. I havequoted this paragraph earlier.

For ease of reference, I will repeat it: [35] By contrast, when the residual category is invoked, the question is whether the state has engaged in conduct that is offensive tosocietal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to theintegrity of the justice system. To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution ofoffences.

At times, state conduct will be so troublesome that having a trial – even a fair one – will leave the impression that the justicesystem condones conduct that offends society's sense of fair play and decency. This harms the integrity of the justice system. In thesekinds of cases, the first stage of the test is met. [Emphasis added] [111] It is the language that I have bolded that the trial judge paraphrased in para. 93 of his decision.

He had already quoted therelevant directions from Babos, and said that, after he had considered all of those factors, he was not satisfied that a stay of proceedingswas required or appropriate.

There would have been no confusion if he had just completed his paraphrase from Babos to be: While themisconduct in this case could be categorized as offensive to notions of fair play and decency and proceeding with a trial in the face ofthat conduct would be harmful to the integrity of the justice system, I am satisfied that the harm can be remedied by excluding theevidence which was obtained. [112] I see no error by the trial judge in his articulation and application of the appropriate legal principles that led him to find that theconduct of the police amounted to an abuse of process. [113] I can now turn to the contention that, nonetheless, the trial judge erred in law in finding an abuse of process.

Did the trial judge err in law in finding an abuse of process? [114] The Crown launches an all-out attack on the trial judge’s finding of abuse of process.

First, by insisting that because JusticeMoldaver did not say “implied” when he discussed the issue of threats in para. 115 of Hart, the trial judge erred in law by finding abuseby the police use of intimidation and implied threats of harm. [115] Second, the Crown says the trial judge overstated the evidence, failed to consider relevant evidence, misunderstood key Crownevidence, and that the trial judge’s finding amounted to palpable and overriding error. [116] I have already discussed at length the claim that the trial judge applied the wrong test.

The Crown is right to this extent—JusticeMoldaver did not use the qualifier “implied” when he wrote in paras. 115 and 116 of unacceptable police conduct. The Crown arguesthis is telling because in R. v. Mack, (SCC), [1988] 2 S.C.R. 903 the Court wrote at para. 124 that “one indication ofimpermissible conduct” would be the existence of “threats, implied or express, made to the individual being targeted by inducementtechniques”. [117] Furthermore, the Crown says this is significant because Justice Karakatsanis, in her concurring judgment in R. v.

Hart,specifically mentioned implied threats as being relevant to the degree of coercion (para. 194). [118] I am unable to agree. What Justice Moldaver makes clear is that it is the function of the doctrine of abuse of process to guardagainst police conduct that society finds objectionable and which threatens the integrity of the justice system (para. 113). [119] It is the unacceptable use of police tactics to coerce confessions that is problematic. The use of violence or threats of violence aretwo prime examples.

What possible difference can there be to the integrity of the justice system if a confession is coerced by threats ofviolence that are conveyed to a suspect by implication rather than expressly? [120] If Justice Moldaver meant to create a meaningful distinction between the two means of conveying threats, he had everyopportunity to do so. In fact, in Hart, there were no express threats of violence. As explained by Cromwell J., in his separate concurringreasons, the claim that there had been intimidation and implied threats had been rejected by the trial judge: [157] At trial, Mr.

Hart maintained that he was "intimidated, scared and felt trapped in his ability to get out" and that his motive to lie

about having murdered his children was "the money, the friendships he created with undercover operators, the lifestyle and the chance to get out of Newfoundland": trial judge's voir dire reasons, 2007 NLTD 74 , 265 Nfld. & P.E.I.R. 266, at para. 33 . Mr. Hart argued at trial that his statements resulted from implied threats, coercions and psychological coercion : ibid ., at para. 42. [158] The trial judge, who had the advantage of seeing and hearing the witnesses, including Mr. Hart, flatly rejected these contentions as having no foundation in fact. The trial judge found as a fact that Mr.

Hart was offered the opportunity to stop his involvement at any time: "[h]e had numerous chances to leave the operation, but made no effort to do so": voir dire reasons, at para. 61. In fact, Mr. Hart, according to the trial judge, "continued to show his willingness to become more involved and to take greater risks... . Mr. Hart wanted to work and continually pressured [the undercover officers] for more work outside of Newfoundland": ibid ., at paras. 59 and 61. [Emphasis added] [ 121 ] Moldaver J. did not resolve whether the police use of intimidation and implied threats amounted to an abuse of process in Hart .

Rather, he said it was unnecessary to decide the abuse claim because the respondent’s confessions were excluded under the new common law test. [ 122 ] However, it is noteworthy that Justice Moldaver did not dismiss the implied threats and police coercion as unworthy or inconsequential to an abuse of process claim. Instead, he found that such conduct might well amount to an abuse of process. He wrote as follows: [149] Without question, the police conduct in this case raises significant concerns, and might well amount to an abuse of process. However, this is not how the issue was presented at trial.

At trial, the respondent took issue with the threatening and intimidating conduct of the officers, and the trial judge rejected those arguments. Given this, and the fact that there is no need to decide the matter, I do not believe this is an appropriate case to decide whether an abuse of process has been established. [ 123 ] Finally, it is not the aura of violence and intimidation in general that crosses the line. It is when intimidation and threats, express or implied, coerce the accused to provide inculpatory evidence (see above, R. v.

Laflamme ). [ 124 ] The Crown’s argument that the trial judge’s finding is tainted by errors in how he treated certain evidence, and otherwise committed palpable and overriding error, is little more than an invitation for this Court to retry the case. [ 125 ] The trial judge had the advantage this Court does not. He heard firsthand the evidence given by the undercover officers and the respondent. The same arguments made to this Court were made to the trial judge. These included that Ms.

Derbyshire, given her involvement in drug trafficking, should not have been, and was not, intimidated by the undercover officers posing as members of an OMG; she was merely acting in her best interests, which were to clean up the problems created by Skinner’s actions to get business back to normal. [ 126 ] The trial judge made very clear, strong findings of fact.

He accepted the respondent’s evidence that she was petrified by the demeanour and statements of the undercover officers, and that she tried to portray an outward calm to them so as not to cause them to think that she was “a problem” they would feel they needed to get rid of. His key findings are: [80] Understandably, Ms. Derbyshire completely believed that the undercover operators were gangsters from Montreal . When they approached her in the underground parking garage the officers were intimidating. They moved aggressively and Corporal I. raised his voice, pointed his finger and ordered Ms.

Derbyshire into her car. Ms. Derbyshire did as she was told and found herself confined by Corporal I. in the passenger seat and Sergeant P. outside the driver's door. These were very close quarters and Corporal I. continued to speak to her aggressively, waving his finger and demanding that she tell them about her involvement in the Adams' homicide. She did so immediately and I am satisfied, based upon her testimony, that it was the result of fear and intimidation and not a willingness to help these "criminals" from Montreal . … [82] Ms.

Derbyshire said her defence mechanism was to stay calm and not appear to be frightened. I accept her testimony on that point. This behaviour could well be misinterpreted by the undercover officers as an indication that she was relaxed and cooperating. Since they had no prior experience with respect to her demeanour their opinions about whether she was frightened or not are of limited value. … [86] The undercover operators intended to create an intimidating and threatening environment for Ms. Derbyshire and they were successful in doing so. She said she was frightened and I have no doubt that she was.

There was a very strong implied threat of physical harm to her if she did not give the "gangsters" what they were after. The fact that she gave incriminating information, implicating both herself and Mr. Skinner, in such a short period of time confirms the nature of the atmosphere which had been created. … [88] Once the confession and other information was given by Ms. Derbyshire and she was told to show the officers the physical evidence, the rest of the day unfolded as one would expect. Corporal I. intended to maintain control of the situation, and over Ms. Derbyshire, and he did so.

While the tension may have diminished somewhat, that does not make Ms. Derbyshire's subsequent actions or statements any more voluntary. Once she had disclosed the significant information concerning the Adams' murder confirming it in subsequent discussions, or providing further details is part of one continuous transaction. [Emphasis added]

[ 127 ] These findings are amply supported by the evidence of the respondent. The Crown cannot point to any misapprehension of evidence, or a failure to consider relevant evidence or findings that are unreasonable or contrary to evidence that the trial judge accepted. [ 128 ] The Crown attempts to suggest that the officers wagging their fingers at the respondent and raising their voices cannot justify a finding of abusive conduct. If that is all that happened, I would be tempted to agree.

But that is a gross understatement of the circumstances facing the respondent, both by her description and that of the police witnesses. [ 129 ] First of all, the respondent described the approach by Cpl. Isabelle—that they were there from Montreal to clean up the mess and they knew there was a rat. She believed that they were there to get rid of Jeff. Within minutes, she answered his demands because she did not believe she had a choice.

She testified, “Because I felt if I did not cooperate with him that I was just going to be another person he was going to deal with.” When she did tell him what she knew, he responded that she was going with them to Moncton. [ 130 ] She testified: A. I told them that I had to work and that I had prior engagements and he said that they were cancelled and that I wasn’t ... that I was going with them and not to work. Q. Okay. What happens next? A.

He proceeded to get out of the car, the passenger side, and he had a conversation with the gentleman by my driver door and then the gentleman by the driver door opened my door and asked me to get out and he proceeded to tell me that I was coming with them. So I ... I felt that I had no choice. So they started walking me out just behind me out the ... out the garage door. [ 131 ] Ms. Derbyshire said she thought these were serious “gangsters” that put her back into her car and demanded her cooperation—that is how Sgt. Chubbs, the head of the undercover operation, described their assumed persona. [ 132 ] Cpl.

Isabelle was chosen by Sgt. Chubbs due to his ability to effectively play that role. Sgt. Chubbs explained: A. The other thing ... good point. Yes. The other thing about the undercover operators ... in particular, one undercover operator that I selected was Cpl. Pat Isabelle. Cpl. Isabelle is an experienced undercover operator whose got a wealth of knowledge in this area. He understands the importance of just the limited duration time you have with the target and he also understands how to effectively, you know, follow the objectives, get accomplished what we need accomplished. Q. In your experience with Cpl.

Isabelle over the years, would you describe him as charismatic? A. Yes. Cpl Isabelle is charismatic. He's a true Quebecois in the sense that he's very passionate, very outspoken, very ... another word would be flamboyant. He would be like what you would expect if you were to meet a ... I put the word gangster on it, My Lord, in that role. He could play that role very effectively. And that's what we truly wanted to portray, because we knew ... and this is the ...

I guess this is the crucial part here is that we are coming in as undercover operators and we are trying to portray ourselves as criminals in organized crime to people that live that life, who are involved in organized crime and who are true criminals. So we have one chance to do it and do it right. And that's why it's important that you select the right people to do these sort of operations. [Emphasis added] [ 133 ] Sgt. Chubbs confirmed that the scenario was the higher-ups in Montreal had sent Cpl. Isabelle and Sgt.

Perron to Nova Scotia to “protect their interest, meaning if people are talking, who else is talking in this group?” The scenario proposed that the officers ask the respondent if she had been speaking to the police. Sgt. Chubbs readily acknowledged that people who talk to the police are “rats”. Without it being explicitly said, such people are in grave danger of physical violence, even death. [ 134 ] Sgt. Chubbs also acknowledged that undercover officers in these roles are supposed to portray themselves as “righteous” bad guys, prepared to commit acts of violence. Strangely, Sgt. Chubbs expected Cpl.

Isabelle and Sgt. Perron to create fear in a known, scary guy, Steven Skinner, but insisted he did not expect the respondent to be afraid of them. [ 135 ] Sgt. Chubbs frankly admitted that he was surprised that within minutes of the officers dealing with the respondent, she had developed such a level of trust with them that she told them all that she knew. I have already set out the trial judge’s finding of fact that the respondent cooperated with the undercover officers out of fear and intimidation, not because of a willingness to help the “criminals” from Montreal.

In addition, he reasoned: [81] There is evidence from multiple sources that Steven Skinner was a violent and intimidating man. Ms. Derbyshire had known him for a number of years and was aware of his involvement in the drug trade. In cross-examination she described him as a high end gangster and an MMA fighter. It is inconceivable to me that Ms. Derbyshire would have provided information about the location of physical evidence that would link Skinner to the Adams' murder within the first couple of minutes of her encounter with I. and P. unless she felt threatened and afraid.

The Crown's suggestion that she was being cooperative and helpful in volunteering this information is not consistent with the evidence or, in my view, common sense. [ 136 ] The trial judge was required to make findings of fact based on the evidence he heard, including inferences based on that evidence. He did so. The Crown is not happy that the trial judge rejected its theory that the respondent should not have been, and was not, scared by the undercover officers, but was motivated by a desire to help them “clean up the mess”. There is nothing illogical or unreasonable in the trial judge’s factual findings.

They are fully supported by the evidence. [ 137 ] The Crown says the trial judge made no mention of the evidence that the respondent admitted being a responsible member of the drug trafficking business; this robs his findings of important context, and her ability to complain of intimidation.

[ 138 ] I am unable to accept either contention. First, a trial judge is not required to refer to every piece of evidence and argument in the course of giving reasons. Here, the trial judge was obviously aware of the respondent’s role and background, and the competing inferences that may be taken from it. The following exchange illustrates: MS. BOUR: …one thing... I think needs to be front and center in Your Lordship's mind when assessing this suggestion that Ms. Derbyshire was extremely fearful, ... she's not ... the thin skulled plaintiff. She's not a delicate wallflower.

She is not a person that stepped into this crazy scenario as described as a movie and feels terrified. This is an individual who has dealt with ... she's not just ... she's not a person out on the corner selling a few rocks. She is actually entrenched at the higher levels with ... with heavy duty individuals who are involved in acts of violence. So ... THE COURT: So ... so doesn't it cut both ways in the ... in the sense that that might cause her to be more afraid of these big bad guys from Montreal because she knows from personal experience what people like that are capable of. MS.

BOUR: The problem is is that these big ... the problem with that view of it is that these big bad guys have presented themselves to her for the purpose of ... of mutual interest. They're there because all of their business has been affected in a negative way from the murder. That was acknowledged by Ms. Derbyshire herself. She said yeah, business has been bad. It's not like they're coming here as adversaries and what's more, they're here to clean up the scene which actually, as a matter of fact, serves her well because ...

THE COURT: You're saying her experience in the drug trade would cause her to be less afraid. My only point is ... MS. BOUR: If I'm ... THE COURT: ... isn't it equally probable that it would make her more afraid, if she in fact felt threatened by these people because she would have more knowledge than a person on the street about what's potentially at risk of happening. I just don't see that issue, her experience, playing a lot either way. I think ... I think you can argue it both sides is the way I look at it. MS. BOUR: Well, to suggest as has been suggested that she is a petite blonde shrinking violet ...

THE COURT: I don't think anyone ever suggested that. MS. BOUR: Well, I think in so many words it's been suggested, My Lord. THE COURT: Oh, I think she knows her way around and I'm prepared to conclude she does ... MS. BOUR: Okay. THE COURT: ... but what that means ... MS. BOUR: Okay. THE COURT: ... in the scheme of things. MS.

BOUR: Well, I didn't ever, I guess, get that impression in ... it's not been suggested that she is sophisticated and knows her way around the drug trade in any Defence submissions so I wanted to highlight that point because I think it's important partly because that's the footing upon which the whole operation started. [ 139 ] While it may have been better for the trial judge to have referred to some of this evidence in the course of his reasons, I do not see that the omission erodes his analysis and findings. [ 140 ] To the extent that the Crown submits that a suspect who is or was involved in the criminal milieu is robbed of the ability to complain if violence or threats of violence are used to coerce a confession, I disagree. [ 141 ] In support of its submission, the Crown relies on the limits to the common law and statutory defence of duress discussed in R. v.

Ryan , 2013 SCC 3 . The defence of duress may enable an accused to escape conviction on the basis that the crime was committed because of a threat made for the purpose of compelling the accused to commit the offence. The Supreme Court in Ryan confirmed that those who seek to rely on the common law defence of duress cannot do so if they knew that their participation in a conspiracy or criminal association came with a risk of coercion and/or threats to compel them to commit an offence (para. 75).

The majority reasons, by Justices LeBel and Cromwell explain: [77] The Court of Appeal's conclusion stands for the proposition that courts must take into account the accused's voluntary assumption of risk, a natural corollary of the unavailability of the defence of duress to those who wilfully engage in criminal conspiracies or organizations. This is consistent with the principle of moral involuntariness.

An accused that, because of his or her criminal involvement, knew coercion or threats were a possibility cannot claim that there was no safe avenue of escape, nor can he or she truly be found to have committed the resulting offence in a morally involuntary manner. [Emphasis added] [ 142 ] The respondent did not commit an offence, and then seek to have her conduct excused because she was threatened. She testified that she made statements to undercover police officers and complied with their demands out of fear.

The trial judge found that she made admissions because of fear created by the threatening conduct of police officers . Whatever the respondent’s prior or current role in illegal activities, it does not give to the police carte blanche to coerce confessions. [ 143 ] I would not give effect to this ground of appeal. Did the trial judge err in finding that exclusion of the evidence was an appropriate and just remedy?

[ 144 ] A trial judge who finds a Charter breach or conduct that amounts to an abuse of process is required to determine an appropriate remedy. The search for that remedy engages judicial discretion. Deference is owed to the remedy chosen so long as the judge has not misdirected himself in law, made a reviewable factual error, or granted a remedy that is so clearly wrong as to amount to an injustice (see: R. v. Babos , supra . at para. 48 and R. v. Bellusci , 2012 SCC 44 ). [ 145 ] The Crown says the trial judge gutted the prosecution’s case.

It complains that the judge, without any analysis or inquiry, decided since a stay was not appropriate, an exclusion order was. But the exclusion order had the same effect as a stay because without the evidence obtained by the undercover officers, proceeding against the respondent became impossible. [ 146 ] I am not convinced that the trial judge erred in the remedy he granted. I come to this conclusion for a number of reasons. [ 147 ] The Crown faults the trial judge for not conducting some further analysis or inquiry before ordering exclusion of the evidence obtained by the abusive police conduct.

But as detailed earlier, the respondent in her oral and written submissions repeatedly identified exclusion of the evidence as the only other remedy that would be appropriate. [ 148 ] The Crown had numerous opportunities to make submissions, orally and in writing.

Not once did the Crown suggest some other remedy would be just and appropriate; nor that exclusion of the evidence would prevent the Crown from proceeding with the charge against the respondent. [ 149 ] It was obvious that if the trial judge accepted the respondent’s version of events and found abusive police conduct coerced her inculpatory remarks and conduct, the proceedings could be stayed or the evidence excluded.

As already identified, the law, as set out by the Supreme Court of Canada in Hart , envisages a stay of proceedings or an exclusion order as being appropriate and just remedies (see Hart at paras. 11, 113, 116, 117). [ 150 ] There were extensive submissions about the remedy of a stay or excluding the evidence. Neither the Crown nor the respondent gave any indication that if the judge excluded the evidence, it would, as the Crown now says, be “gutting” the prosecution’s case.

During oral submissions on July 25, 2014, the following exchange illustrates: THE COURT: Why do you say there should be a stay as opposed to an exclusion of evidence? MR. MACEWEN: This marries in with the loss of evidence is that Ms. Derbyshire will never be able to make full answer and defence with respect to this matter. She can’t. THE COURT: Why? MR. MACEWEN: The crown jewel in the Crown’s case is the confession that she made. Everything ... THE COURT: So if I exclude the confession, exclude the evidence, why does that not solve the problem? MR.

MACEWEN: If all the evidence and all the confession is excluded it may very well solve the problem. THE COURT: Well, I’m just wondering why because the test for a stay is that there really is no other alternative and the prime alternative is exclusion of evidence so I’m wondering why you think exclusion of evidence is not ... not the alternative that would, I guess, preclude the granting of a stay. MR. MACEWEN: I would ... and I’m certainly not suggesting this, you know, choose my words carefully here but should the trial proceed without Ms.

Derbyshire’s confession, what we won’t know is any other information that was provided either to the police or by the police in relation to this investigation that could be used by Ms. Derbyshire in her defence . [Emphasis added] [ 151 ] A short time later there was a further exchange between the trial judge and counsel for the respondent about what may or may not happen if a stay is not entered, including police efforts to uncover further evidence: MR. MACEWEN: Well, as it relates to the prosecution against her, what Skinner related to her is a fairly significant piece of information. THE COURT: Right.

And there’s only one other place they’re going

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