File Number: 35049 Public Prosecution Service of Canada Atlantic

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File Number: 35049
IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE COURT OF APPEAL FOR NEWFOUNDLAND AND LABRADOR)
BETWEEN:
HER MAJESTY THE QUEEN
APPELLANT
(Respondent)
- andNELSON LLOYD HART
RESPONDENT
(Appellant)
-andMARIE HENEIN
AMICUS CURIAE
-andDIRECTOR OF PUBLIC PROSECUTIONS, ATTORNEY GENERAL OF
ONTARIO, DIRECTEUR DES PURSUITES CRIMINELLES ET PENALES DU
QUEBEC, ATTORNEY GENERAL FOR THE PROVINCE OF BRITISH COLUMBIA,
ASSOCIATION IN DEFENCE OF THE WRONGFULLY CONVICTED, CRIMINAL
LAWYERS' ASSOCIATION OF ONTARIO, BRITISH COLUMBIA CIVIL LIBERTIES
ASSOCIATION, CANADIAN CIVIL LIBERTIES ASSOCIATION and ASSOCIATION
DES AVOCATS DE LA DEFENSE DE MONTREAL
INTERVENERS
FACTUM OF THE INTERVENER
THE DIRECTOR OF PUBLIC PROSECUTIONS
(Pursuant to Rules 37 and 42 of the Rules of the Supreme Court of Canada)
Public Prosecution Service of Canada
Atlantic Regional Office
Suite 1400 Duke Tower
5251 Duke Street
Halifax, Nova Scotia B3J 1P3
(per: James C. Martin and
Natasha A. Thiessen)
Tel: (902) 426-2484
Fax: (902) 426-1351
Email: [email protected]
Brian Saunders
Director of Public Prosecutions
East Memorial Building, 2nd Floor
284 Wellington Street
Ottawa, Ontario
KIA OH8
(per: Fran9ois Lacasse)
Tel: (613) 957-4770
Fax: (613) 941-7865
Email: [email protected]
Counsel for the Intervener
Ottawa Agent for the Intervener
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Francis Knickle
Attorney General of Newfoundland and
Labrador
Special Prosecutions Office
4th Floor, Atlantic Place
St. John's NL AlB 4J6
Tel: (709) 729-2303
Fax: (709) 729-1135
Email: [email protected]
Robert E. Houston, Q.C.
Burke-Robertson
70 Gloucester Street
Ottawa, ON
K2P OA2
Tel: (613) 566-2058
Fax: (613) 235-4430
Email: [email protected]
Counsel for the Appellant
Ottawa Agent for the Appellant
RobbyD. Ash
Poole Althouse
Western Trust Building
49 - 51 Park Street
Corner Brook NL A2H 2Xl
Tel: (709) 637-6435
Fax: (709) 634-8247
Email: rdash@pa-law. C<l
Henry S. Brown, Q.C.
Gowling Lafleur Henderson LLP
Barristers and Solicitors
2600 - 160 Elgin Street
Ottawa, ON KlP 1C3
Tel: (613) 232-1781
Fax: (613) 563-9869
Email: [email protected]
Counsel for the Respondent
Ottawa Agent for the Respondent
Marie Henein
Henein Hutchison LLP
202 -445 King Street West
Toronto, ON M5V 1K4
Tel: (416) 368-5000
Fax: (416) 368-6640
Email: [email protected]
Marie-France Major
Supreme Advocacy LLP
397 Gladstone Avenue, Suite 1
Ottawa, ON K2P OY9
Tel: (613) 695-8855
Fax: (613) 695-8580
Email: mfmajor(liJ,supremeadvocacy.ca
Amicus Curiae
Ottawa Agent for the Amicus Curiae
Michael Bernstein
Attorney General of Ontario
Crown Law Office - Criminal
1oth Floor, 720 Bay Street
Toronto, ON M7 A 2S9
Tel: (416) 326-2302
Fax: (416) 326-4656
Email: [email protected]
Robert E. Houston, Q.C.
Burke-Robertson
70 Gloucester Street
Ottawa, ON K2P OA2
Tel: (613) 566-2058
Fax: (613) 235-4430
Email: [email protected]
Counsel for the Attorney General of
Ontario
Ottawa Agent for the Attorney General of
Ontario
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Pierre L. Bienvenue
Directeur des Poursuites Criminelles et
Penales du Quebec
300, boulevard Jean-Lesage
Quebec, QC GI K 8K6
Tel: (4 I 8) 649-3500 Ext: 42226
Fax: (4I8) 646-49I9
Jean Campeau
Directeur des Poursuites Criminelles et
Penales du Quebec
I 7, rue Laurier, Suite I230
Gatineau, QC J8X 4C I
Tel: (8I9) 776-8I I I
Fax: (8I9) 772-3986
Email: jean.campeau(@dpcp.gouv.qc.ca
Counsel for the Directeur des poursuites
criminelles et penales du Quebec
Ottawa Agent for the Directeur des poursuites
criminelles et penales du Quebec
Lesley A. Ruzicka
Attorney General of British Columbia
940 Blanshard Street, 3rct floor
Victoria, BC V8W 3E6
Tel: (250) 387-42I8
Fax: (250) 387-4262
Robert E. Houston, Q.C.
Burke-Robertson
70 Gloucester Street
Ottawa, ON K2P OA2
Tel: (613) 566-2058
Fax: (613) 235-4430
Email: [email protected]
Counsel for the Attorney General of British
Columbia
Ottawa Agent for the Attorney General of British
Columbia
Russell Silverstein
Russell Silverstein & Associate
Barristers and Solicitors
I 00- I I 6 Simcoe Street
Toronto, ON M5H 4E2
Tel: (4I6) 977-5334
Fax: (4I6) 596-2597
Email: [email protected]
Henry S. Brown, Q.C.
Gowling Lafleur Henderson LLP
Barristers and Solicitors
2600 - I 60 Elgin Street
Ottawa, ON KIP IC3
Tel: (613) 232-I 78I
Fax: (613) 563-9869
Email: henrv.brown(@,gowlings.com
Counsel for the Association in Defence of
the Wrongly Convicted
Ottawa Agent for the Association in Defence of
the Wrongly Convicted
R. Phillip Campbell
Lockyear Campbell Posner
Barristers and Solicitors
30 St. Clair Ave. West, Suite I03
Toronto, ON M4V 3AI
Tel: (4I6) 847-2560 Ext: 223
Fax: (4I6) 847-2564
Email: pcampbell(@lcp-law.com
Henry S. Brown, Q.C.
Gowling Lafleur Henderson LLP
Barristers and Solicitors
2600 - I 60 Elgin Street
Ottawa, ON KIP IC3
Tel: (613) 232-I 78I
Fax: (613) 563-9869
Email: henrv.brown(@gowlings.com
Counsel for the Criminal Lawyers'
Association of Ontario
Ottawa Agent for the Criminal Lawyers'
Association of Ontario
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David E. Crossin I Elizabeth France
Sugden, McFee & Roos LLP
Barristers and Solicitors
700 - 375 Water Street
Vancouver, BC V6B 2M9
Tel: (604) 687-7700
Fax: (604) 687-5596
Email: [email protected]
Michael J. Sobkin
90 blvd. de Lucerne, Unit #2
Gatineau, QC J9H 7K8
Tel: (819) 778-7794
Fax: (819) 778-1740
Email: [email protected]
Counsel for the British Columbia Civil
Liberties Association
Ottawa Agent for the British Columbia Civil
Liberties Association
Frank Addario I Megan Savard
Addario Law Group
Barristers and Solicitors
171 John Street, Suite 101
Toronto, ON MST 1X3
Tel: (416) 979-6446
Fax: (866) 714-1196
Email: faddario(ipaddario.ca
Colleen Bauman
Sack Goldblatt Mitchell LLP
Barristers and Solicitors
500 - 30 Metcalfe Street
Ottawa, ON KIP 5L4
Tel: (613) 235-5327
Fax: (613) 235-3041
Email: [email protected]
Counsel for the Canadian Civil Liberties
Association
Ottawa Agent for the Canadian Civil Liberties
Association
Fran9ois Dadour I Harout Haladjian
Poupart, Dadour, Touma Et Associes
507, Placed' Armes, Bureau 1700
Montreal, QC H2Y 2W8
Tel: (514) 526-0861
Fax: (514) 526-9646
Email: [email protected]
Eve Lapointe
Noel & Associes
Avocats et notaires
111, rue Champlain
Gatineau, QC J8X 3Rl
Tel: (819) 771-7393
Fax: (819) 771-5397
Email: e.lapointe([i2noelassocies.com
Counsel for l' Association des avocats de la
defense de Montreal.
Ottawa Agent for l' Association des avocats de la
defense de Montreal.
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Table of Contents
Page
Number
PART I
OVERVIEW AND STATEMENT OF FACTS
1
PART II
ISSUE
2
PART III
ARGUMENT
2
A. Undercover Investigative Techniques
2
B. Functional Equivalency to Detention
6
c.
8
Residual Exclusionary Power
D. Abuse of Process
9
E. Jury Instructions
9
F. Conclusion
10
PART IV
COSTS
10
PARTV
REQUEST TO MAKE ORAL ARGUMENT
10
PART VI
TABLE OF AUTHORITIES
12
PART VII
STATUTES, REGULATIONS AND RULES
16
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PART I - OVERVIEW and STATEMENT OF FACTS
1.
Undercover police investigations are an effective technique to thwart the commission of
serious crime and resolve historic offences. Within the last several years alone undercover police
investigations in Canada have prevented a terrorist attack, 1 provided reliable evidence to support
convictions for murder2 and disrupted online child pornography networks. 3 Calls for this Court to
ban the use of successful and sophisticated undercover operations such as the so-called "Mr.
Big", or to extend the confessions rule or the definition of detention are unnecessary. Courts
already possess sufficient tools to police the police and to protect an accused's right to a fair trial.
2.
Constitutional detention must be limited to situations where an accused is aware he is
being detained by state actors. Psychological and physical detention are paradigms ill-suited,
indeed contrary, to the concept of an undercover operation where the foundational aspect is that
the target is unaware of the true motives and identity of the undercover officer. Moreover, as
noted by the amicus curiae, introduction of detention principles into Mr. Big cases does not
really address the underlying concern, namely the reliability of the admission. 4
3.
Judicial protection of an accused's fair trial rights can be achieved through three existing
common law tools. The first two, the residual exclusionary power (where the prejudicial effect of
the evidence exceeds its probative value) and the abuse of process doctrine, give the courts the
capacity to address the reliability of an admission and oppressive state conduct, respectively.
Third, where appropriate, a jury can be instructed that an accused may have lied to the police for
any of several reasons, including fear of exclusion from the fake criminal organization.
4.
The role of the courts is two fold: to safeguard an accused's constitutional rights while
permitting the police sufficient leeway to utilize a proven crime-fighting technique. 5 This balance
can be achieved through the application of these three protections to the specific circumstances of
the undercover operation. Indeed courts have done just that. 6
5.
The Director of Public Prosecutions accepts the facts as stated by the parties and takes no
position on any factual disputes between the parties.
1
R. v. Amara, 2010 ONCA 858, leave to appeal to the SCC denied February 28, 2013.
R. v. Osmar, 2007 ONCA 50, leave to appeal denied [2007] 2 S.C.R. vii; R. v. Niemi, 2012 ONSC 6385; R. v. Felker,
2012 BCCA 346.
3
R. v. Clayton, 2012 ABCA 384; R. v. Allen, 2012 BCCA 377.
4
While the term 'confession' is used in the context of undercover operations, the term 'admission' is to be preferred, since
it is not made by an accused to a person in authority, see Rothman v. The Queen, [1981] I SCR 640, at 645.
5
In the context of the entrapment defence, see R. v. Mack, [1988] 2 S.C.R. 903, at pp. 916-917, and 964.
6
For prejudicial versus probative analysis, see R. v. Creek, [1998] B.C.J. No. 3189 (S.C.) (QL); for abuse of process see R. v.
Mcintyre, [1994] 2 S.C.R. 480, and for jury instructions see R. v. Felker, supra.
2
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PART II - ISSUE
6.
The Director of Public Prosecutions intervenes to address the appropriate paradigm for
determining the admissibility of inculpatory statements made to undercover police officers.
PART III - ARGUMENT
A.
Undercover Investigative Techniques
7.
With the evolution of the modem police force, undercover investigations developed as a
response to the growth of industrialized urban society and the rise of more sophisticated criminal
activity. Undercover police techniques are now widely used in western democracies to prevent
crime and secure public safety. 7 They are also employed to solve crimes previously committed.
Certain types of crimes would otherwise go unsolved or undetected.
8.
Canada is no different. Undercover policing has aided in detecting some of this country's
most serious threats and most heinous crimes. In particular, these investigations have proven
uniquely capable of frustrating attempts to commit crimes while concurrently gathering evidence
against the offenders. These techniques target a broad range of offences and offenders, and
include Internet luring, distribution of child pornography, sophisticated drug trafficking, terrorist
activities, criminal organizations, prostitution networks and murder.
9.
The use of undercover operations has also reflected a change in policing strategies from
reactive policing to intelligence-led policing. Rather than merely responding to criminal activity,
intelligence-led policing focuses on crime prevention or disruption based on the analysis of
gathered intelligence. Undercover investigations are essential, as illustrated by the comments in
R. v. Bond: "[i]n a perfect world [undercover operations] would not be necessary but, patently
illegal drug commerce is neither successfully investigated, nor resisted, by uniformed police
peering through hotel room transoms and keyholes or waiting patiently at police headquarters to
receive the confessions of penitent drug-traffickers." 8 Similarly, those who have hidden their
murderous crimes for years from even those closest to them, seldom approach police officers to
confess. Meanwhile society awaits the discovery of the truth and the victims' families long for
resolution.
7
Undercover: Police Surveillance in Comparative Perspective, C. Fijnaut and G.T. Marx, eds., 1995 Kluwer Law
International, at pp. 1-16.
8
R. v. Bond (1993), 135 A.R. 329 (C.A.), at para. 16, leave to appeal denied, [1993] 3 S.C.R. v, at p. 333, quoted with
approval in R. v. Campbell, [1999] 1 S.C.R. 565, para 24, per Binnie J.
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10.
3
Nomenclature is particularly important for ensuring that the issues addressed here focus
on the narrow challenge regarding admissions made to undercover officers and on any potential
implications for undercover operations more broadly. "Undercover operations" are one aspect of
covert policing9 and refer to police officers who disguise their identity to infiltrate a suspected
criminal operation, or to approach a suspect to gather evidence of an offence in anticipation of
prosecution. "Major Crime Technique" is the preferred title for the RCMP's major crime
investigations and includes as one of its techniques the melodramatically labelled "Mr. Big"
operation, known in police circles 10 as the "crime boss interview" scenario.
11.
The crime boss scenario has not been immune to judicial scrutiny, or slipped through the
cracks as some commentators allege; nor has it surreptitiously evaded barriers to admissibility. II
This Court has scrutinized a crime boss admission through the lens of s. 7 of the Charter and
upheld its admissibilityI 2 and unanimously dismissed an allegation that undercover operators in
the scenario are persons in authority. 13 In another case, this Court described the technique as
"skilled police work". I4 Equally, admissions have been excluded from evidenceI 5 based on the
existing common law tools or on a finding of insufficient reliability to support a conviction. I6
12.
The primary challenge to the crime boss scenario is the concern associated to false
confessions. Miscarriages of justice are the ultimate danger in the criminal justice system. The
causes of the most notorious Canadian instances of these are varied. The only case attributed by
some to a conviction based in part on a false confession within the crime boss scenario is R. v.
Unger. I7 This is arguably an inaccurate characterization since Mr. Unger was ultimately acquitted
because the Crown decided not to proceed with a new trial after a review conducted by the
Minister of Justice regarding concerns over the forensic evidence; although the confession was
9
"Covert policing" includes several forms of clandestine investigations. Any policing function that is conducted
surreptitiously can be categorized as covert, including concealed surveillance, covert entry, wiretapping and intelligence
gathering.
10
The technique is not limited to the RCMP; it has also been used by other police forces, see R. v. Niemi, supra.
11
R. v. Hart, 2012 NLCA 61, at para. 154,per Green, C.J.
12
R. v. Mcintyre, supra.
13
R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27.
14
R. v. Fliss, 2002 SCC 16, [2002] 1 S.C.R. 535, at para. 21.
15
R. v. Creek, supra.
16
R. v. Mentuck, 2000 MBQB 155, R. v. Smith, 2005 BCSC 1624 and R. v. M (T. C.), 2007 BCSC 1778.
17
R. v. Unger (1993), 83 C.C.C. (3d) 228 (Man C.A.), leave to appeal denied [1993] 4 S.C.R. vii.
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described as "fraught with serious weaknesses." 18 Even the critics acknowledge that there are no
known cases of wrongful convictions as a result of the use of the crime boss scenario. 19
13.
Academic studies, 20 including a book, 21 and media articles allege deficiencies in the crime
boss scenario but tellingly, the reliability of the studies underlying these articles has been
challenged. 22 The authors have candidly admitted the limitations of their conclusions.
23
Indeed
accused have been unsuccessful at trial in attempts to present expert evidence of the likelihood
that particular admissions are unreliable. 24 As in R. v. NS., 25 this Court is improperly being asked
to rely on legal arguments and social science articles submitted as authority. In R. v. Phillion,
26
a
thorough review of this expert evidence revealed that its scientific reliability was "open to
debate" and that "admissibility of expert evidence on false confessions is anything but obvious
and should be approached with considerable caution."27 Reliance on such articles by this Court
succeeds in admitting through the back door what has been judicially excluded at the front door.
Additionally, the conclusions drawn in the research are not outside the realm of ordinary human
experience. The social science evidence is, in this context, at best, unnecessary, and at worst,
unreliable.
14.
Miscarriages of justice can result from several different types of evidence. For example,
wrongful convictions have most often been associated with eyewitness identification.
28
Nevertheless courts have not constitutionalized the process for determining the reliability of such
18
R. v. Unger, 2005 MBQB 238, at para. 48.
T. E. Moore et al, "Deceit, Betrayal and the Search for Truth: Legal and Psychological Perspectives on the 'Mr. Big'
Strategy"' (2009), 55 Crim. L.Q. 348, at p. 350, footnote 11; K.T. Keenan and J. Brockman, "Mr. Big, Exposing
Undercover Investigations in Canada", 2010 Ferwood Publishing, Halifax, NS, at p. 112.
2
For example Green, C.J., in the Court below, at paras. 157 and 159, relied on: S.M. Smith et al, "Using the Mr. Big
Technique to Elicit Confessions: Successful Innovation or Dangerous Development in the Canadian Legal System" (2009),
15 Psycho!. Pub. Policy & L., 168; C. Nowlin, "Excluding the Post-Offence Undercover Operations from EvidenceWarts and All", (2004), 8 Can. Crim. L. Rev. 381; T. E. Moore et al, "Deceit, Betrayal and the Search for Truth: Legal and
Psychological Perspectives on the 'Mr. Big' Strategy"', supra.
21
K.T. Keenan and J. Brockman, "Mr. Big, Exposing Undercover Investigations in Canada", supra.
22
W. Dawson, "The Use of Mr. Big in Undercover Operations", CLE Society ofB.C., 2011, Criminal Law: Special Issues,
Paper 52; D. A. Perez, "The (In)Admissibility of False Confession Expert Testimony," (2011) Touro Law Review: Vol. 26:
No. 1, Article 2, at. p. 25; P.G. Cassell, "The Guilty and the Innocent: An Examination of Alleged Cases of Wrongful
Conviction from False Confessions" (1999), Harvard Journal of Law & Public Policy, 22(2), 523, at pp. 575-603.
23
The authors/researchers have not only admitted these limitations during testimony but have also been rejected as
1
potential expert witnesses: see R. v. Phil/ion, 2009 ONCA 202, at para. 208, R. v. Warren (1995), 35 C.R. (4 h) 347 (NWT
S.C.), at paras. 12-18 and R. v. James, unreported, BCSC, October 31, 2011,per Bruce J.
24
R. v. Bonisteel, 2008 BCCA 344, R. v. Osmar, supra and R. v. Warren, supra.
25
R. v. NS., 2012 sec 72, [2012] 3 s.c.R. 726, at para 17.
26
R. v. Phil/ion, supra.
27
Ibid, at paras. 233 and 217 respectively.
28
S. Gross and M. Shaffer, "Exonerations in the United States 1989-2012", Report by the National Registry of
Exonerations, June 2012, at p. 43.
19
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evidence. It remams to be assessed usmg common law rules which highlight its potential
frailties. 29 Identification evidence can be filtered through the residual discretionary power of
exclusion,30 or with a strong warning to the trier of fact to be wary of relying upon this evidence
in certain circumstances. 31
15.
Among the difficulties inherent in undercover policing are the contradictory goals of the
infiltrating police officer being a convincing criminal associate and yet abiding by requisite
stringent legal standards sufficient to withstand judicial scrutiny. Courts have accepted that these
officers must reasonably be allowed to maintain the deception; they may, for example, at the
suspect's request, touch the suspect intimately as proof they are not a 'cop' .32 As the House of
Lords observed when considering the law of entrapment in R. v. Looseley, " ... undercover
officers who infiltrate conspiracies to murder, rob or commit terrorist offences could hardly
remain concealed unless they show some enthusiasm for the enterprise." 33
16.
The future use of undercover operations will only become more difficult. The deluge of
television crime dramas, the growth of instant world wide communications, and the expansion of
online media, amateur reporters and crime bloggers, all impact the easy dissemination of police
techniques, hold-back evidence and undercover officer identities. In the information age courts
must acknowledge the reality that police techniques need to become more imaginative. Indeed, in
R. v. Campbell, 34 this Court indicated that "Li]udicial notice can certainly be taken of continuing
public concern about the drug trade, and in a general way of the difficulties of successfully
employing traditional police techniques against large-scale criminal organizations."
17.
All undercover police investigations, including the crime boss scenario, contain many of
the same essential elements. The investigation targets a particular offence, a suspect or a location
of criminality. The target is unaware that the undercover operative is a police officer or someone
"engaged in the arrest, detention, interrogation or prosecution" of the target. 35 The goal is
ingratiation, to be accepted by the target within the subculture or within the criminal locale, all
with the object of garnering sufficient trust to observe criminal conduct and receive, if any,
evidential admissions for prosecution. Secrecy is essential. Any crack in the deception will defeat
29
R.
R.
31
R.
32
R.
33
R.
34
R.
35
R.
30
v.
v.
v.
v.
v.
v.
v.
Smith, 2011 BCCA 362, at para. 28-32.
Holmes (2002), 169 C.C.C. (3d) 344 (Ont. C.A.), at para. 40, in relation to in-dock identification evidence.
Hibbert, 2002 SCC 36, [2002] 2 S.C.R. 445, at paras. 50-52.
N.MP. (2000), 146 C.C.C. (3rd) 167 (N.S.C.A.).
Looseley, [2001] UKHL 53, at para. 69,per Hoffmann L.J.
Campbell, supra, at para. 44.
Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27, at para 37.
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the goals of the investigation. The target must believe that he or she can carry out their criminal
activity or discuss past criminal conduct in an atmosphere of trust, believing that their criminal
confidences will not be betrayed.
B.
Functional Eguivalency to Detention
18.
The essential elements of undercover investigations illustrate why the "functional
equivalency to detention" is unworkable. If the concern is unreliable admissions, the focus should
then be on the factors implicating reliability, not on an expansion of the detention principle
beyond its logical boundaries simply to invoke s. 7. In R. v. Hebert, the s. 7 protection against
self-incrimination was explicitly restricted to circumstances of overt detention. The policy
reasons that supported that restriction are equally valid today. 36 However, the core principle
described in Hebert was fundamentally the freedom to choose whether to speak to the police
while in custody; the issue was not the reliability of what was said to the undercover cell mate.
19.
Courts are constantly assessing reliability and state conduct that may affect reliability.
Tools exist for that purpose. Extension of s. 7 and s. 9 principles to assess reliability adds an
unnecessary constitutional filter to admissibility and does nothing to augment present protections.
First, in an undercover investigation, functionally equivalent detention, if it exists, does not
trigger the admission, nor does it implicate reliability. When a target makes an admission during
an undercover operation, it is not the overt state-induced psychological or physical oppression
underpinning Charter detention that influences the reliability of the statement. Rather it is the
nature of the relationship between the covert undercover officer and the target. The protection
afforded under s. 9 is intended to respond to the psychological influences related to the aura of
state authority perceived by the target. For undercover operations, it is paradoxically the target's
subjective belief that the undercover officer is not a person in authority that causes the target to
relinquish his criminal secrets.
20.
Second, intrinsic to Charter detention is the concept of corporeal liberty. As noted in R. v.
Grant, s. 9 of the Charter pairs "detention" with "imprisonment" and provides guidance37 about
the meaning of detention. The detention can be physical or psychological but the impact is the
individual's loss of choice whether to remain in the company of the police. 38 In undercover
operations, even if applied to police officers in disguise, this concept would seldom be engaged.
36
R. v. Hebert, [1990] 2 S.C.R. 151, at p. 184; R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R 405, at paras. 42-47.
R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 29.
38
R. v. Singh, supra, at para 32.
37
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The physical freedom of the target is not in issue. The target may often want to remain in the
presence of the undercover officer, but is not compelled to by police. A target does not confide in
or cooperate with an undercover officer because of a subjective belief that he or she will not be
allowed to physically leave the presence of the police operative. The reliability of the admission
is not contingent on the corporeal liberty of the target, and therefore this concept should not be
imported into the reliability assessment.
21.
Moreover, creating a tertiary form of detention, in addition to physical or psychological,
fails to comport with the interpretation of Charter detention discussed in Grant. The two factors
- overt presence of the police and loss of physical liberty - define the nature of Charter
detention. Functional equivalency exceeds these parameters and undermines the meaning
assigned to detention by this Court. Furthermore, any crossover of the detention concept between
Charter provisions requires consistency in application. It is incongruous to apply detention
differently under s. 7 than under s. 9 or s. 10.
22.
Third, the expansion of Charter detention to undercover police investigations could
engage all other Charter protections associated with detention. In R. v. Suberu 39 this Court
affirmed that the s. 1O(b) right to counsel arises immediately upon detention, whether or not the
detention is solely for investigative purposes. This Court has been clear that ""[ d]etention" also
identifies the point at which rights subsidiary to detention, such as the right to counsel, are
triggered." 40 No one would suggest that an undercover police officer should provide a target with
his right to counsel; it would completely defeat the purpose of the undercover operation. An
application of this principle to undercover operations is absurd.
23.
Fourth, as indicated in Hebert and R. v. White, 41 the protection against self-incrimination
under s. 7 is not unlimited. The state has a legitimate interest in furthering investigations to
discover the truth and prosecute offenders. The factors identified in White to assess whether the
protection against self-incrimination has been breached are ill-suited to circumstances where the
self-incrimination does not arise from compulsion through legal obligation. Indeed the choice to
remain silent does not include the corollary obligation on the police to stop gathering
incriminating evidence. Even in custody, a suspect does not have the right to require the police to
39
R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460.
R. v. Grant, supra, para. 22,per McLachlin, C.J. and Charron, J. Implications of the elimination of the persons in
authority requirement on undercover operations was discussed in R. v. Hodgson, [1998] 2 S.C.R. 449, at para. 25.
41
R. v. White, [1999] 2 S.C.R. 417.
40
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cease questioning. 42 If the police can continue to elicit an admission while a suspect is in custody,
there can be no restriction on police for a suspect out of custody to cease investigating or
obtaining an admission.
24.
The proposed expansion of detention is just an artificial construct to attack what is
essentially an evidentiary issue - the reliability of the admission. There is nothing inherent in the
concept of detention that addresses the reliability of the admission in undercover operations.
Indeed, the presence of perceived state authority over the individual is inherent in this Court's
refusal to eliminate the persons in authority requirement in the confessions rule. 43 Obtaining an
inculpatory statement through police trickery more often implicates the policy basis of exclusion
- the repute of the administration of justice - over the concern for voluntariness. Ultimately, the
implications of adopting the functional equivalency test are at best unknown and at worst could
include improper expansion of detention principles to undercover operations with the result that
undercover techniques are eliminated as a crime-fighting, truth-seeking tool. Both the doctrine of
abuse of process, which is not restricted by detention or person in authority, and the residual
exclusionary power are more flexible and robust to address concerns over an accused's fair trial
and self-incrimination interests.
C.
Residual Exclusionary Power
25.
The residual exclusionary power is the ultimate evidentiary safeguard of the fair trial
interests of an accused. A trial judge has the broad discretion to exclude evidence that would
otherwise be admissible, where the prejudicial effect of that evidence outweighs its probative
value to the extent that the trier of fact cannot be expected to deal with it appropriately. In R. v.
Seaboyer, 44 this Court indicated that probative evidence should not be excluded merely because
it might be considered unreliable, a function normally within the exclusive jurisdiction of the trier
of fact. 45 The determining feature is whether the prejudice exceeds the value of the evidence at
trial while understanding that "[a] law which prevents the trier of fact from getting at the truth by
excluding relevant evidence in the absence of a clear ground of policy or law justifying the
exclusion runs afoul of our fundamental conceptions of justice and what constitutes a fair trial. "46
42
R. v. Singh, supra.
R. v. Grandinetti, supra.
44
R. v. Seaboyer, [1991] 2 S.C.R. 577, at p. 610.
45
See R. v. Hodgson, supra, at para. 21.
46
R. v. Seaboyer, supra, at p. 609.
43
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26.
9
There is little benefit to an accused, nor any principled basis, to invoke a new s. 7 fair trial
protection as advanced by the amicus, rather than having recourse to the residual exclusionary
power. Both are proven on a balance of probabilities and from the approach advocated by the
amicus, many of the factors of either framework appear similar. Moreover, in the s. 7 context the
accused would have the added hurdle of meeting the s. 24 test. Ironically, the amicus adopts the
prejudicial versus probative analysis in support of greater s. 7 protection. 47
D.
Abuse of Process
27.
If the residual exclusionary power protects against an unreliable admission and the abuse
of process doctrine protects the repute of the administration of justice, the dual challenges to the
crime boss scenario are addressed. Abuse of process is one of the safeguards designed to ensure
that the repression of crime through conviction of the guilty is done in a way that respects the
fundamental values of society48 and keeps the administration of justice free from disrepute. It
applies only to conduct that shocks the conscience of the community. 49 In R. v. O'Connor,50 this
Court found that the common law abuse of process doctrine had fused with the s. 7 protection
against abuse of process. Under the Charter, the abuse of process doctrine protects the fair trial
rights of an accused person including protection from oppressive state actions. This accords with
the amicus' second analytical tool in support of broader s. 7 protection, the propriety of the state
conduct.
E.
Jury Instructions
28.
Finally, as a third procedural protection, where the inculpatory statement is admitted into
evidence, the trial judge has discretion, reviewable on appeal, to warn the jury about accepting
any part of the admission as evidence of guilt, while, in the words of this Court "respecting the
jury' s competence in fulfilling its fact-finding role".51 Factors to be considered include the nature
and scope of any inducements, coercion, the existence of confirmatory evidence or anything else
that affects the reliability of the admission. Appellate courts have not required that jury
instructions in crime boss scenario cases warn that such statements are inherently unreliable. 52
This is unsurprising since there is no evidence that supports any such inherent unreliability.
47
Factum ofthe Amicus Curiae, para 71.
R. v. Scott, [1990] 3 S.C.R. 979, pp. 992-993.
49
R. v. Power, [1994) 1 S.C.R. 601, at p. 615 ; R. v. Jageshur (2002), 169 C.C.C. (3d) 225 (Ont. C.A.), at para. 19.
50
R. v. O'Connor, [1995) 4 S.C.R. 411, see paras. 59-72, per L'Heureux-Dube J.
51
R. v. White, 2011 SCC 13, [2011) 1 S.C.R. 433, at para 56.
52
R. v. Bonisteel, supra, and cases quoted therein, and the companion case R. v. Mack, 2012 ABCA 42, at para. 47.
48
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Human experience remains a valuable tool for jurors to assess the reliability of any statement. As
this Court has highlighted, "once jurors are alerted to the risks that are not necessarily apparent to
the average citizen, they can be trusted to properly weigh the evid_ence." 53
F.
Conclusion
29.
The crime boss scenario has been highly successful in resolving cases, murder offences in
particular. Even relying on only reported cases and without considering the investigations that
have cleared suspects 54 or the prosecutions that have resulted in guilty pleas, the use of this
technique has resolved almost one hundred murder investigations. 55 This is skilled police work
that operates within the law and enhances the administration of justice in Canada. Positions
before this Court advocate that more remedies are needed to limit or even ban its use. However,
no evidential basis exists for such drastic action. Prohibiting police from covertly gathering
evidence from a suspect outside of detention may eliminate that investigative option even where
the actual reliability of the admission is not in issue. Fair trial, self-incrimination and the
threshold reliability of an admission can be addressed through the prejudicial versus probative
residual exclusionary power, the abuse of process doctrine or jury instructions - a powerful
triumvirate of protections. There is no need for an additional constitutionally framed
admissibility filter.
PART IV - COSTS
30.
The Director of Public Prosecutions makes no submissions with respect to costs.
PART V - REQUEST TO MAKE ORAL ARGUMENT
31.
The Director of Public Prosecutions requests permission to present oral argument at the
hearing of the appeal.
ALL OF WHICH IS RESPECTFULLY SUBMITI:ED,
.,
53
...___.,
R. v. White, 2011, supra, at para. 56.
See factum of the Respondent in the companion case of R. v. Mack, at para. 23, and R. v. Hart, supra, at para. 72.
55
K.T. Keenan and J. Brockman, supra, at pp. 119-121, the appendix lists over 80 Mr. Big cases, also see statistics
referenced in W. Dawson, supra, at p. 5.2.4.
54
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PART VI
TABLE OF AUTHORITIES
CASES CITED
1.
R. v. Allen, 2012 BCCA 377...................................................
2.
R. v. Amara, 2010 ONCA 858, leave to appeal to the SCC denied
February 28, 2013...... ........................................................
3.
1
1
R. v. Bond (1993), 135 A.R. 329 (C.A.), leave to appeal denied,
[1993] 3 S.C.R. v, .. . .. .. .. . .. ... ... ... . ..... ......................................
R. v. Bonisteel, 2008 BCCA 344. .. ... ... ... ... . .. . ..... .. ... .. ... .. . .. . .. . ...
9
13, 28
(See Tab 17 of the Appellant's Book of Authorities)
4.
R. v. Campbell, [1999] 1 S.C.R. 565................... ......................
9, 16
5.
R. v. Clayton, 2012 ABCA 384...............................................
1
R. v. Creek, [1998] B.C.J. No. 3189 (S.C.) (QL)... ........................
4, 11
(See Tab 6 of the Amicus Curiae's Book of Authorities)
R. v. Felker, 2012 BCCA. 346................................................
(See Tab 8 of the Amicus Curiae 's Book of Authorities)
6.
R. v. Fliss, 2002
sec 16, [2002] 1 s.c.R. 535........................... ..
R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27............... .. . . . . . . .
1, 4
11
11, 17, 24
(See Tab 5 of the Appellant's Book of Authorities)
R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353......................... ..
20, 22
(See Tab 9 of the Appellant's Book of Authorities)
7.
R. v. Hart, 2012 NLCA 61.....................................................
11, 13, 29
R. v. Hebert, [1990] 2 S.C.R. 151. ... .. ... . .. .. . .. ...... ... .. . .. . . . ... .. ... .
18
(See Tab 1 of the Appellant's Book of Authorities)
8.
R. v. Hibbert, 2002
sec 36, [2002] 2 s.c.R. 445... .. . ... . .. . .. . .. . .. . ...
R. v. Hodgson, [1998] 2 S.C.R. 449.................. .. . . . . . . . . . . . . . . . . . . . . .
(See Tab 13 of the Appellant's Book of Authorities)
14
22, 25
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R. v. Holmes (2002), 169 C.C.C. (3d) 344 (Ont. C.A.). .. . .. ... . .. ... .. ... 14
(See Tab 17 of the Amicus Curiae 's Book of Authorities)
9.
R. v. Jageshur (2002), 169 C.C.C. (3d) 225 (Ont. C.A.)... .. . .. . .. . .. . . ..
27
10.
R. v. James, unreported, B.C.S.C., October 31, 201 l,per Bruce J......
13
11.
R. v. Looseley, [2001] UKHL 53.................. .............................
15
12.
R. v. M(I'.C.), 2007 BCSC 1778..............................................
11
13.
R. v. Mack, [1988] 2 S.C.R. 903...... .. . .. . . .. . .. . .. . .. . .. ... .. . .. . . . . ... .. .
4
14.
R. v. Mack, 2012 ABCA 42...................................................
28
R. v. Mcintyre, [1994] 2 S.C.R. 480...... .. ... . .. . .. ....... .. . .. . .. . ..... .. ..
(See Tab 2 of the Appellant's Book of Authorities)
4, 11
R. v. Mentuck, 2000 MBQB 155..............................................
See Tab 23 of the Amicus Curiae's Book of Authorities)
11
R. v. Niemi, 2012 ONSC 6385... .... .. . .. . . . .. . . . . .. ... . .. . . .. . .. . .. . .. . .. .. .
(See Tab 6 of the Respondent's Book of Authorities)
1
R. v. NMP. (2000), 146 C.C.C. (3rd) 167 (N.S.C.A.)... .. . .. ... . .. ......
15
R. v NS., 2012 sec 72, [2012] 3 S.C.R. 726 ...................... ·····. ..
13
15.
(See Tab 23 of the Appellant's Book of Authorities)
16.
R. v. O'Connor, [1995] 4 S.C.R. 411.........................................
27
R. v. Osmar, 2007 ONCA 50..................................................
1, 13
(See Tab 7 of the Appellant's Book of Authorities)
17.
R. v. Phil/ion, 2009 ONCA 202...............................................
13
18.
R. v. Power, [1994] 1 S.C.R. 601. .. . .. . .. .. . ... ... .. ....... .. . .. .. . .. . .. . ....
27
19.
R. v. Scott, [1990] 3 S.C.R. 979...............................................
27
R. v. Seaboyer, [1991] 2 S.C.R. 577........................................
(See Tab 32 of the Amicus Curiae 's Book of Authorities)
25
20.
R. v. Singh, 2001 sec 48, [2007] 3 s.c.R. 405............................
18, 20, 23
21.
R. v. Smith, 2005 BCSC 1624........................ .........................
11
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22.
R. v. Smith, 2011BCCA362.................................................... 14
23.
R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460........................ ...
22
24.
R. v. Unger (1993), 83 C.C.C. (3d) 228 (Man. CA)........................
12
25.
R. v. Unger, 2005 MBQB 238................................................
12
26.
R. v. Warren (1995), 35 C.R. (4th) 347 (NWT S.C.) ... .. . .. . .. . .. . .. . .. ..
13
R. v. White, [1999] 2 S.C.R. 417.............................................
(See Tab 1 of the Respondent's Book of Authorities)
23
27.
R. v. White, 2011
sec 13....................................................
Rothman v. The Queen, [1981] 1SCR640.................................
(See Tab 16 of the Appellant's Book of Authorities)
28
2
OTHER REFERENCES
28.
P. G. Cassell, "The Guilty and the Innocent: An Examination of
Alleged Cases of Wrongful Conviction from False Confessions"
(1999), Harvard Journal of Law & Public Policy, 22(2),
523. .. . .. . . . .. . . .. . .. .. . .. . .. . .. . . .. ... . .. ... ... ... .. ... . ... .. . ... . .. . .. . .. . .. . ... 13
29.
W. Dawson, "The Use of Mr. Big in Undercover Operations," CLE
Society ofB.C., 2011, Criminal Law: Special Issues, Paper 52. .. . ..
13, 29
30.
Undercover: Police Surveillance in Comparative Perspective, C.
Fijnaut
and
G.
T.Marx,
ed.,
1995
Kluwer
Law
International. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . .
7
31.
S. Gross and M. Shaffer, "Exonerations in the United States 19892012", Report by the National Registry of Exonerations, June 2012. ..
14
K.T. Keenan and J. Brockman, "Mr. Big, Exposing Undercover
Investigations in Canada", 2010 Ferwood Publishing, Halifax, NS.....
12, 13, 29
T. E. Moore et al, "Deceit, Betrayal and the Search for Truth: Legal
and Psychological Perspectives on the 'Mr. Big' Strategy" (2009), 55
Crim. L.Q. 348. .. . .. .. . .. . . .. . . . .. . .. .. .. . .. . .. ... .. . .. . .. . .. . . .. . .. . . ..... ...
12, 13
C. Nowlin, "Excluding the Post-Offence Undercover Operations from
Evidence - Warts and All" (2004), 8 Can. Crim. L. Rev. 381...............
13
32.
33.
34.
35.
D. A. Perez, "The (In)Admissibility of False Confession Expert
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14
Testimony," (2011) Touro Law Review: Vol. 26: No. 1, Article 2.. .....
13
S.M. Smith et al, "Using the Mr. Big Technique to Elicit Confessions:
Successful Innovation or Dangerous Development in the Canadian
Legal System" (2009), 15 Psychol. Pub. Policy & L., 168................
13
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PART VII
STATUTES, REGULATIONS AND RULES
CANADIAN CHARTER OF RIGHTS AND FREEDOMS
CHARTE CANADIENNE DES DROITS ET LIBERTES
LEGAL RIGHTS
Garanties juridiques
Life, liberty and security of person
Vie, liberte et securite
7. Everyone has the right to life, liberty and
security of the person and the right not to
be deprived thereof except in accordance
with the principles of fundamental justice.
7. Chacun adroit a la vie, a la liberte et a la
securite de sa personne; il ne peut etre porte
atteinte ace droit qu'en conformite avec les
principes de justice fondamentale.
Detention or imprisonment
Detention ou emprisonnement
9. Everyone has the right not to be
arbitrarily detained or imprisoned.
9. Chacun adroit a la protection contre la
detention ou l'emprisonnement arbitraires.
Arrest or detention
Arrestation ou detention
10. Everyone has the right on arrest or
detention
10. Chacun a le droit, en cas d' arrestation
ou de detention :
(a) to be informed promptly of the reasons
therefor;
a) d'etre informe clans les plus brefs delais
des motifs de son arrestation ou de sa
detention;
(b) to retain and instruct counsel without
delay and to be informed of that right; and
(c) to have the validity of the detention
determined by way of habeas corpus and to
be released if the detention is not lawful.
b) d'avoir recours sans delai a l'assistance
d'un avocat et d'etre informe de ce droit;
c) de faire controler, par habeas corpus, la
legalite de sa detention et d' obtenir, le cas
echeant, sa liberation.
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ENFORCEMENT
Enforcement of guaranteed rights and
freedoms
24. (1) Anyone whose rights or freedoms,
as guaranteed by this Charter, have been
infringed or denied may apply to a court of
competent jurisdiction to obtain such
remedy as the court considers appropriate
and just in the circumstances.
Exclusion of evidence bringing
administration of justice into disrepute
(2) Where, in proceedings under
subsection (1), a court concludes that
evidence was obtained in a manner that
infringed or denied any rights or freedoms
guaranteed by this Charter, the evidence
shall be excluded if it is established that,
having regard to all the circumstances, the
admission of it in the proceedings would
bring the administration of justice into
disrepute.
16
Recours
Recours en cas d'atteinte aux droits et
libertes
24. (1) Toute personne, victime de
violation OU de negation des droits OU
libertes qui lui sont garantis par la presente
charte, peut s' adresser aun tribunal
competent pour obtenir la reparation que le
tribunal estime convenable et juste eu egard
aux circonstances.
Irrecevabilite d'elements de preuve qui
risqueraient de deconsiderer
l' administration de la justice
(2) Lorsque, dans une instance visee au
paragraphe (1 ), le tribunal a conclu que des
elements de preuve ont ete obtenus dans
des conditions qui portent atteinte aux
droits ou libertes garantis par la presente
charte, ces elements de preuve sont ecartes
s'il est etabli, eu egard aux circonstances,
que leur utilisation est susceptible de
deconsiderer l' administration de la justice.