File Number: 35049 Public Prosecution Service of Canada Atlantic
Transcription
File Number: 35049 Public Prosecution Service of Canada Atlantic
Publication Ban Interdiction de publication 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 Publication Ban Interdiction de publication 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 Publication Ban Interdiction de publication 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 Publication Ban Interdiction de publication 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. Publication Ban Interdiction de publication 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 Publication Ban Interdiction de publication 1 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 Publication Ban Interdiction de publication 2 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. Publication Ban Interdiction de publication 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. Publication Ban Interdiction de publication 4 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 ° Publication Ban Interdiction de publication 5 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. Publication Ban Interdiction de publication 6 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 Publication Ban Interdiction de publication 7 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 Publication Ban Interdiction de publication 8 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 Publication Ban Interdiction de publication 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 Publication Ban Interdiction de publication 10 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 Publication Ban Interdiction de publication 11 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 Publication Ban Interdiction de publication 12 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 Publication Ban Interdiction de publication 13 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 Publication Ban Interdiction de publication 36. 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 Publication Ban Interdiction de publication 15 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. Publication Ban Interdiction de publication 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.