The Defence Toolkit – January 23, 2021

This week’s top three summaries: R v Borel, 2021 ONCA 16: #narrative exception, R v Dauphinais, 2021 ABQB 21: #MrBig exclusion, and R v Sappleton, 2021 ONSC 430: #cannabis car search.

R v Borel, 2021 ONCA 16

[January 12, 2021] The Narrative Exception to the Hearsay Rule [Reasons by Nordheimer J.A. with Lauwers and Miller JJ.A. concurring]

AUTHOR’S NOTE: Last week I covered R v Eisnor, 2020 ABCA 459 (The Defence Toolkit – January 16, 2021) which also explored the narrative exception to the hearsay rule.  In this Ontario Court of Appeal decision, Justice Nordheimer digs into the abuse of this exception with a poignant reminder that criminal trials should be argued on the basis of admissible evidence deciding facts not smear jobs on the basis of bad character. He put it this way: “On this point, “narrative” is too often used by counsel, supported by trial judges, as a vehicle for the admission of evidence that is otherwise inadmissible and prejudicial.” This combination of cases can be used by defence counsel to protect the truth-finding process of the court from being highjacked by inadmissible evidence in the future. 

The case also deals with non-expert witnesses slipping into giving opinion evidence.  This often happens if counsel are not on guard. Quite naturally, investigators would have many opinions about the whether the accused’s conduct is normal or abnormal. But this hunch-based investigative intuition has no place in the determination of facts in a trial. Counsel must be on guard against it seeping into the trial record. 

Facts

[2] In September 2010, the appellant and the complainant began an affair. The complainant was married and lived with her husband and her teenaged children. The appellant was not married and lived with the mother of his children in a platonic relationship. In December 2010, the complainant’s husband found out about the affair. The complainant told her husband that it was over, but in fact she continued the affair. The complainant, who had a drinking problem, began to drink more heavily.

[3] At trial, the evidence of the complainant and the appellant differed as to the state of their relationship in July 2011. Each claimed to be the one trying to end it. On July 23, 2011, sometime around 6:00 pm, the complainant left her house telling her husband that she was going shopping and then to a friend’s house. The story was a lie. The complainant was actually going to meet the appellant.

[4] The complainant and the appellant met in the parking lot of a community centre. The appellant arrived first. A little before 6:45 pm, the appellant called 911. When the police and EMS arrived, the complainant was lying on the ground in the parking lot very badly burned. The appellant and some passersby were with her. The complainant smelled of gasoline.

[5] The appellant initially told the paramedic that he was driving past the community centre and noticed his friend in the parking lot. In contrast, he told the police officer at the scene that he did not know who the complainant was. He later told the police officer that he did know the complainant and that they had arranged to meet that evening. Later that evening at the police station, the appellant gave a videotaped statement to the police. Four days later, the appellant was arrested and charged with attempted murder. He then gave another, more detailed, videotaped statement to the police. Throughout his interactions with the police and others, the appellant consistently denied having doused the complainant with gasoline and setting her on fire.

[7] The complainant told her husband that the affair was over in December 2010 but it continued into 2011, although the complainant testified that it was getting “harder and harder to sneak around”. According to the complainant, the appellant was getting more aggressive and wanted her to leave her husband.

[10] In early 2011, the complainant got pregnant with the appellant’s child. She terminated the pregnancy in April. Following the abortion, she and the appellant stayed together in a hotel for a number of days. The complainant did not think she told her husband at the time about the pregnancy. She and the appellant also got similar tattoos in memory of the baby. Each testified that it was the other’s idea.

[11] Following her abortion, the complainant kept seeing the appellant. The complainant testified that she cared for the appellant and was scared to leave because she knew there would be consequences. In May 2011, she suggested that they should end it. She said that the appellant seemed upset but accepting. Afterwards, however, the complainant received several emails from the appellant stating, “fuck you baby killer,” “you fucked with the wrong guy,” “wait till the real fireworks start,” and “I fucking hate you.” The appellant testified that they argued a lot, but it was mostly over the complainant’s excessive drinking.

[13] On July 23, 2011, the day of the incident, the complainant testified that she met the appellant at Rockway Community Centre. She left home around 5:50 pm. She had been drinking and admitted that it was possible that had she had alcohol in the car with her. The appellant was already present in the parking lot when the complainant pulled up at the community centre. They both got out of their cars and were standing in the parking lot. According to the complainant, the appellant told her that he had a “present” in his car for her. He proceeded to walk to his car and then walked back to her location with a black jug full of gas. The appellant started “swishing” the gas at the complainant. He took a match out of his pocket and threw it at her, setting her on fire. According to the complainant, the appellant stood there with his arms crossed and said, “fuck you bitch, you mess with the wrong people’s feelings and you’ll pay.”

[14] The appellant acknowledged arriving at the community centre. He arrived first. When the complainant arrived, the appellant said that he knew right away that she had been drinking. The appellant said that he immediately got upset and asked her why she was drinking again. He told her that he did not want her driving to her friend’s home, which is where the complainant was intending to go after meeting the appellant. The complainant told the appellant that she could drive to the friend’s home on her own. The complainant and the appellant continued to argue about her drinking and driving. The appellant told the complainant that, if she refused to take a ride from him or call someone else, he was going to call the police. The appellant said that he had done this before.

[15] The appellant went back to his car to make a call. He then heard a scream….

[18] The police and EMS arrived. The appellant told EMS that he had been driving by and noticed his friend in the parking lot. He told them that he knew her and told them her name. However, the first officer on scene said that he asked the people present, including the appellant, if they knew the complainant. Everyone, including the appellant, stated that they did not know who the woman was. The appellant testified he did this because of the complainant’s request, prior to the police attending, not to say her name. Upon being questioned by the same officer, the complainant also refused to tell him her name. The appellant later told the officer and EMS personnel the complainant’s name and that she was a friend of his and that they were supposed to meet there. He handed the officer a set of keys, a lighter and matches – telling the officer that they were in the complainant’s hand and that they belonged to her. He also told the officer that the complainant was not his girlfriend but had met up with her because she was an alcoholic needing support.

[19] A five-hour search of the immediate area at the community centre by a number of police officers did not reveal any evidence of an accelerant container. An expert in the behaviour of gasoline and ignition source testified that if one swished gas in a backward motion (as described by the complainant), one would expect a transfer of gasoline onto that person’s clothes and shoes. One would also expect to find some gasoline on the ground. The appellant’s clothes (t-shirt and shorts) were tested for gasoline. They showed no traces of gasoline. There was no odour of gasoline around the appellant’s car. However, there was a strong odour of gasoline in the complainant’s car – gasoline was located on the driver’s seat of the complainant’s car, in her purse, and in a cup holder.

The Law and Analysis

The 911 Dispatcher Opinion Evidence

[22] In terms of the first ground of appeal, the 911 dispatcher gave evidence at trial. The Crown played the 13-minute 911 call. Then, following a few brief introductory questions, the Crown began his examination-in-chief by asking the dispatcher, given her experience: “was there anything unusual about this, about this particular [911] call.” The dispatcher testified that, in her opinion, the call she received from the appellant was “weird.” The dispatcher noted that the appellant initially stated that the patient was assaulted and then later in the call said she had been burned. Further, the dispatcher found it odd that if the appellant had just come upon the patient, who was unable to communicate, why would he not have just told her that the patient was burned rather than assaulted.

[23] The dispatcher also told the jury that, in her opinion, while the appellant stayed at the scene, he “didn’t really help” or ask the patient any questions that the dispatcher needed answered.

[26] It is a fundamental principle of our trial process that the ultimate conclusion as to the credibility or truthfulness of a particular witness is for the trier of fact. It was improper for the Crown to elicit what was, in essence, opinion evidence as to the appellant’s truthfulness from the dispatcher because it is not proper for a witness to give an opinion about the credibility of any other witness: R. v. Marquard, 1993 CanLII 37 (SCC), [1993] 4 S.C.R. 223.

[28] The trial judge ought to have curtailed this line of questioning. She also should have instructed the jury on the use to which they could put the dispatcher’s evidence, including instructing them not to consider the dispatcher’s opinions. She should have reminded the jury that it was their job alone to consider and reach conclusions on the credibility of every witness. None of this was done.

[29] That said, I do not view this error, by itself, as being serious enough to warrant a new trial, especially in light of trial counsel’s failure to object or request a jury instruction about it. The failure to object to inadmissible evidence or to request a jury instruction is not determinative, but it is relevant to the treatment of the objection on appeal: R. v. L.K., 2020 ONCA 262, at para. 15.

The Homicide Detective’s Opinion Evidence

[32] The Crown played the three-hour interview for the jury. Thereafter, the Crown’s very first question to the homicide detective was: “what did [he] find unusual about the video [interview of the appellant]?” The homicide detective responded that he found “three major things…unusual”:

• First, the appellant’s “general demeanour and body language was inconsistent with someone in custody for attempt murder”; Second, the appellant’s “version of events changed throughout the interview”; and Third, the appellant’s “denials [about being involved in the crime] were relatively weak”.
• Second, the appellant’s “version of events changed throughout the interview”; and
• Third, the appellant’s “denials [about being involved in the crime] were relatively weak”.

[33] The Crown then asked the homicide detective to expand on his opinion that the appellant’s denials were relatively weak. In response, the homicide detective said:

From my experience and training, if someone’s in custody for an offence, a serious offence that they, that they did not commit, they would, they would likely be denying it strongly and asking why they’re in custody.

[34] The Crown then played several clips from the interview. The Crown asked the homicide detective to comment on whether he could identify: (1) any internal inconsistencies within the interview and (2) any other inconsistencies by comparing the interview with other information the homicide detective knew about prior to interviewing the appellant. During this portion of his evidence, the homicide detective offered his opinion about the differences he identified in the appellant’s versions as ones that were “subtle, but…important.”

[35] Trial counsel once again did not object to the homicide detective’s evidence. Nor did trial counsel cross-examine the homicide detective. Also, the trial judge did not question the route of admissibility of the homicide detective’s opinion evidence or provide the jury with directions as to its proper use, if any.

[36] As was the case with the 911 dispatcher, this opinion evidence ought not to have been elicited by the Crown. However, unlike the evidence of the 911 dispatcher, this evidence could not have been properly elicited and it was highly prejudicial. As this court observed in R. v. Quazi, 2014 ONCA 94, at para. 7:

We also observe that the trial judge permitted the jury to hear the opinion of another police officer who characterized the appellant’s demeanour during his police interview as indicative of guilt. Such an opinion was irrelevant and should not have been permitted. Its intrusion into the trial record was highly prejudicial and contributed to the overall unfairness of the appellant’s trial.

[37] Demeanour evidence is, itself, “highly suspect”: R. v. Levert (2001), 2001 CanLII 8606 (ON CA), 159 C.C.C. (3d) 71 (Ont. C.A.), at para. 27. For a jury to hear, from what appeared to them to be a highly experienced police officer, evidence that the appellant was, in essence, acting like a person who was guilty of the offence, was highly prejudicial. It was only made worse by the failure of the trial judge to give any form of limiting instruction on its use. The trial judge ought to have told the jury to ignore the detective’s opinions.

The EMS Evidence – Narrative and Principled Exceptions to Hearsay

[40] At trial, the complainant had no recollection of the events in the ambulance. The trial judge ruled that her statements were admissible.[1] However, the basis for the ruling is confused. The Crown had sought admission of the statements (including the head nodding) pursuant to the principled exception to the hearsay rule, encapsulated in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, on two bases. One was that they formed part of the narrative. The other was to rebut a possible defence that the incident was the result of a suicide attempt or an accident. Towards the end of her reasons, the trial judge said:

It is also important to note that the Crown is not asking that the statements be admitted for the truth of their content, but simply as part of the narrative as it unfolds, and in order to rebut any presumption raised by the defendant that this burning was accidental or caused by [the complainant] herself.

[41] The problem with the trial judge’s acceptance of the Crown’s position is that it does not coincide with the actual purpose for admitting the evidence, at least on the second stated basis. Insofar as the evidence was being admitted to rebut accident or suicide, it could only achieve that purpose if the evidence was admitted for the truth of its contents, which would carry with it the risk that the jury would also use it as confirmation on the issue of identity.

[42] There is another confusing aspect of the trial judge’s ruling. Early in her reasons, the trial judge held that the actions of the complainant, in shaking her head or nodding, were not statements, and thus were not hearsay. She said: “However, any actions observed by someone else, in this case, the emergency care personnel, are not hearsay, and [the EMS attendant] is free to testify about what she says she observed [the complainant] do.” Consequently, the trial judge held that those actions were admissible without any hearsay analysis. The respondent admits that this latter finding is clearly wrong. “Hearsay typically consists of spoken words. It can, however, consist of conduct.”: R. v. Badgerow, 2014 ONCA 272, 119 O.R. (3d) 399, at para. 106, leave to appeal refused, [2014] 3 S.C.R. v. The same point is made in Khelawon, at para. 34: “hearsay evidence includes communications expressed by conduct”.

[43]      Unfortunately, the issue became even more confused when it reached the stage of the instructions to the jury. The trial judge first told the jury that they had heard the evidence about the statements for the two purposes stated above but not “to prove that what she said is true, but only to establish that the statements were made”. However, only a short time later, the trial judge told the jury:

If you decide that [the complainant] did make these statements, you may consider that evidence in deciding whether or not [the complainant] would have made these statements if her injuries were self-inflicted or occurred as a result of an accident.

In determining how much or how little you will rely on this evidence, to help you decide this case, you may consider that it may be less reliable than other evidence that has been given. [The complainant] has no memory of this point in time. Accordingly, she was not subject to cross-examination on this issue. At the same time, you may consider whether there is any evidence to suggest a motive on the part of [the complainant] to lie to the emergency responders.

It is evident that, at this point in her charge, the trial judge is clearly indicating to the jury that the evidence can be used for the truth of its contents.

[44] Further, the critical piece of evidence arising from this issue is the evidence of the complainant apparently nodding in the affirmative when she was asked whether the attacker was her boyfriend. The trial judge did not isolate this piece of evidence in her instructions to the jury and, consequently, she did not give any cautionary instruction to the jury about its use, presumably because she continued to view it as direct evidence and not as hearsay.

[45] Yet, this evidence went to the central issue of the identity of the attacker and was the evidence that carried with it the highest danger of misuse. This fact is important because evidence is admitted for a purpose, and that purpose must be clearly identified. Here the Crown was tendering the evidence that the complainant nodded her head in response to questions in order to prove the identity of the appellant as her attacker even though the Crown had the direct evidence of the complainant on this point.

(a)         The principled exception

[46] As I have already said, the complainant’s statements, including the head nodding, were hearsay. Their admissibility ought to have been reviewed under the principles that apply to the admission of hearsay evidence. In the circumstances of this case, none of this evidence was admissible for either of the purposes it was offered by the Crown. More specifically, it was not admissible under the principled exception to the hearsay rule for the truth of its contents as a positive identification of the appellant as the complainant’s attacker. For that purpose, the evidence does not fit within the principled exception because the evidence does not meet the twin requirements of necessity and reliability. I would reject trial counsel’s concession and the trial judge’s conclusion that all of this evidence, including the head nodding, met the necessity requirement. I note that the trial judge separately concluded that the necessity requirement was established for the utterances.

[47] The only purpose for admitting the specific evidence of the head nodding was to prove, or help prove, that the appellant was the person who committed the attack. However, it was not necessary for this evidence to be admitted for that purpose. While the complainant may not have remembered the events in the ambulance, as recounted by the EMS attendant, the complainant was available to give evidence about the actual event and she identified the appellant as her attacker. Indeed, she did so at the very first opportunity after she awoke from a coma that resulted from her injuries. There was, therefore, no need for this evidence to fill any evidentiary gap on that central point. Because the necessity requirement could not be met, the only purpose for admitting this evidence was as a prior consistent statement by the complainant to buttress her evidence as to the identity of her attacker. Prior consistent statements are presumptively inadmissible because they lack probative value: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at paras. 5-7.

(b)         The narrative exception

[48] My conclusion that this evidence, especially the nodding of the complainant’s head, was inadmissible hearsay is not altered by attempting to have it admitted as part of the narrative. The simple fact is that there was no need for this evidence to be admitted for that purpose. No part of outlining the narrative or chain of events for the jury required its admission. The only part of the narrative that was involved at this stage was the transportation of the complainant to the hospital. That part of the narrative could have been adequately conveyed without any reference to this evidence. On this point, “narrative” is too often used by counsel, supported by trial judges, as a vehicle for the admission of evidence that is otherwise inadmissible and prejudicial. The practice of using this route to admit prejudicial evidence must stop because this error will often lead to the requirement for a new trial, with the resulting hardships and expense that inevitably flow. Trial judges must be alert to the potential for such misuse and be on guard to bar this door. [Emphasis by Author]

Conclusion

[60] Unfortunately, the evidentiary errors I have discussed infected the fairness of the trial. A new trial is required. That result is never a desirable one, but it is especially concerning, in this case, given that the events occurred more than nine years ago. However, it is a consequence that cannot be avoided.

R v Dauphinais, 2021 ABQB 21

[January 14, 2021] Mr. Big Admissibility – Abuse of Process and Probative Value [Madam Justice R.E. Nation]

AUTHOR’S NOTE: R v Hart was supposed to revolutionize the Mr. Big admissibility voir dire.  In that case, Justice Moldaver called the previous regime a “paper tiger.” To a large extent, and despite the best of intentions from the SCC, it has remained a paper tiger. Presumptive inadmissibility has moved the needle only marginally even in cases where the operations pre-dated R v Hart, the overwhelming majority of operations have resulted in admission of the evidence. This author would opine that this is a result of the power of the technique to normalize for trial judges a large swath of completely prejudicial bad character evidence. By hearing days and sometimes weeks of this material, it begins to lose it’s power to shock the conscience of judicial decision makers (of course, juries are less immune to this material).  Consequently, the repetition of stories and simulations of violence and other crime begin to become background noise for judges deciding whether this “cost” or prejudice is worth the admission of the so-called confession at the end of the process. Like a frog sitting in a pot of boiling water, the participants in the voir dire fail to notice how completely overpowering the context of the evidence becomes by the end of the process. The police officers presenting the case for the Crown often use jargon (perhaps specifically designed to) that tends to normalize their operations and, of course, to them this conduct becomes the day-to-day tapestry of their jobs: hardly worthy of comment – this comes across in their demeanour in presenting their testimony. Also – the point of the operations is often to normalize the violence and criminality for the targets so they will feel “comfortable” talking about it to the officers – the presentation of this normalization in court has an effect on the participants in the trials (Crowns, defence lawyers, and judges) – we all become acclimatized to the boiling water.

While lawyers get dunked in is this potent soup, they have to keep the Hart test front and center in the presentation of their case. Here, Justice Nation reacted to the paucity of corroboration and detail in the confession. It was an operation where these factors were truly lacking. However, the more unusual part of the case is the decision on abuse of process.  The police – disappointed in the lack of confession – kept pressing the accused for a period of 4 days in the pressure cooker environment of a certainty of arrest, a refusal to accept a lack of recollection, and the perceived ability to protect the accused from going to prison. The period of time coupled with a few other techniques (such as the involvement of the accused’s minor children) in the operation pushed the operation into inappropriate coercion for Justice Nation. On the abuse side, there are lessons to be taken forward for defence counsel arguing these issues in the future. 

This case is also useful for what it doesn’t include. In the first few years following Hart, there was a underlying opinion within the bench that Hart would only result in exclusions in cases where, like Mr. Hart, the targets were particularly vulnerable. The accused in this case was not vulnerable in any traditional sense (there was no significant poverty, substance abuse, immaturity, or mental deficits). The result was still an exclusion.

Overview of the Law

[4] After looking at the circumstances surrounding the confession, courts must look at the confession itself for any markers of reliability. Hart outlined some of these markers to be: the level of detail, whether the statement leads to the discovery of additional evidence; whether the confession identifies any elements of the crime that would not be known to the public; or, whether the statement accurately describes mundane details of the crime the accused would likely not know had he not committed it: at para 105. Confirmatory evidence is not necessary, but where it exists, it can be a powerful guarantee of reliability. The greater the concern raised by the circumstances in which the confession was made, the more important it will be to find markers of reliability in the confession, or the surrounding circumstances.

[5] Weighing the prejudicial effect of the confession looks at the prejudice to the accused that may arise. Moral prejudice may increase with operations that involve the accused in crimes of violence. Reasoning prejudice arises if the court’s focus will be distracted from the case before it. Reasoning prejudice can also be a problem depending on the length of the operation, the amount of time that must be spent detailing it, and any controversy as to whether a particular event or conversation occurred.

[6] In the end, a judge must weigh the probative vale and the prejudicial effect of the statements at issue, and decide whether the Crown has met its burden.

[7] Even if the Crown has met its burden, trial judges are tasked with carefully scrutinizing the conduct of the police to determine if an abuse of process has occurred. No matter how reliable the confession, courts cannot condone state conduct such as physical violence that coerces the target to confess. The mere presence of inducements is not problematic, but the line is crossed when police conduct approximates coercion. The state cannot overcome the will of the accused and coerce a confession. If the accused can establish on the balance of probabilities 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.

The Operation

[12] There was a staged incidence of violence designed to show the effect of betraying the organization. The accused was involved in the “surveillance” done by the UO to ascertain that a female member was selling information to another group. She was taken to the outskirts of Winnipeg and an assault occurred (simulated so that the accused believed her nose was broken). The accused stood lookout during the event. This was designed to give the impression that the UO was not against violence to women, but disloyalty would not be tolerated within the UO.

[13] An event was staged where a member, Y, lied to the UO about having performed work tasks that he was assigned. The accused was sent to search Y’s car for the pin pads that Y stated he had delivered. The accused found the pin pads and Y was confronted. There was strong language used to reinforce that loyalty and honesty was essential. Y was fired and kicked out of the organization. Y had to return the keys to his car and his cell phone before being escorted from the UO’s location. All this was in the presence of the accused. Later, a scenario was staged where Y was present in a bar, when the accused and other members of the UO arrived. Y was told to leave the bar and it was stressed that no physical violence would be used by the UO against Y, but he was no longer to associate with or even be around the members of the association. Y was clearly ostracized.

[14] Ultimately a “stim” was used. This is the event designed to put the target in a situation where he gives details of the offence under investigation if he knows anything. Here, a call came to undercover officer, X, from an identified detective in the Calgary Police Service, while the accused and X were in a car, which indicated that the Calgary Police Service was looking for the accused to arrest and charge him with the 2002 murder of Terri Ann Dauphinais (“Terri Ann”), his former spouse. At that point the UO offered support, but required the accused give any information he had to the head of the UO, the so called Mr Big or Crime Boss in these undercover operations (the “HUO”), in order that the UO could save the accused from arrest and any culpability. The members of the UO had previously portrayed backgrounds of either having criminal charges which the HUO could make go away, or histories where they had failed to disclose to the HUO, and thus could not utilize the UO’s assistance and served time in prison.

[15] The accused ultimately gave some statements that led to his arrest.

3. Probative Value

3.1 Background Circumstances

3.1.1 Overall Magnitude of the Operation

[16] This operation lasted from January 16 to May 21, 2018, a period of 125 days. It involved 39 scenarios. It would be on the shorter to medium length as Mr Big operations go. It was mainly based in Winnipeg, but involved trips to Saskatoon, Montreal, and Ottawa, and drives in Ontario, Manitoba, Saskatchewan, and Quebec.

3.1.3 The Nature and Extent of the Inducements Offered

[20] The costs of the operation involved payments to the accused of $4,400, as well as $1,882 spent on food and drink. He was provided with flights and hotels valuing $1,500 as well as mileage when his car was used and an iPod.

[21] The accused had a mixed financial profile. He owned his own home and a motorcycle. He expressed concern that his girlfriend might try to make a claim to half of the value of the home. At one point in the operation he was hoping to sell the motorcycle for $12,000 as he was short on cash. He was not working outside of this operation. At the start of the operation the accused had been on Workers’ Compensation Board (“WCB”) benefits as a result of a work accident, although he expressed that there were some issues with the continuance of those benefits. The accused at times talked of jobs he was considering or for which he was actively applying.

[22] A job in Saskatoon was an inducement offered to the accused, tailored to his express need for work and his desire to move to Saskatoon. During a meetup on May 8, the accused advised that he had been offered a job driving for a hydro company in Northern Manitoba earning $30 an hour. The evidence as to acceptance or when this job would start was not clear from the evidence; the accused told one member of the UO that he still needed to get medical clearance. Two days later on May 10, the UO offered the accused a job in Saskatoon, the details of which were to be worked out with HUO in Montreal. The impression was that the job would start near the end of June. The intention was to keep the accused in Winnipeg rather than moving to Thompson, Manitoba for the job, as the undercover operation was scheduled to terminate by the end of May and a move to Thompson would make it more difficult to complete.

3.1.4 The Presence of Threats or Violence

[23] As previously described, violence was used against a female who worked in a retail location which used the UO’s pin pads to obtain the credit card information to be used for fraudulent purposes. It was portrayed that she was selling them to another organization, so she was “beaten down.” It was clearly and graphically portrayed that she was assaulted, fired, and then replaced.

[25] The UO was portrayed as purchasing guns. In one scenario, X did grab a gun and put ammunition in it, and put it in his waistband to portray that he was willing to use a firearm if necessary in the scenario. Other than that, there was no evidence of anyone carrying guns and no guns were pointed or discharged in any of the scenarios.

[26] There was no evidence that any threats of violence were made or suggested toward the accused.

3.1.5 The Personality of the Accused

[31] The accused was non-confrontational. In fact, in one scenario designed to have two people insult the accused and members of the UO stand up for him (to show loyalty), it was described that the scenario was hard to complete as the accused was not taking offence, and trying to diffuse the situation himself.

3.1.6 The Nature of the Interrogation

[32] At the interrogation stage and after the stim, every undercover officer who dealt with the accused testified that the demeanor of the accused changed significantly. In addition to the stim, several steps were taken to increase the pressure on the accused. This included: two police officers going to his house in Winnipeg and telling his sons that the accused was wanted for arrest for the murder of their deceased mother; other members of the UO portraying that his impending arrest was bringing unwanted police attention on the UO; and relaying information that there was a “manhunt” for the accused, including asserting that the police were “swarming” the hotel room which the accused had just left.

[33] During this time, the accused was described a stressed out, no longer his jovial self, and clearly concerned for himself and any negative repercussions to the UO as a result of the accused’s association with it. The interrogation was partly videotaped and partly audio recorded. The interrogation took place over a period of four days. It was fashioned under the guise that the organization had connections and they could help discredit any new information the police had received. Information was fed to the accused to suggest that the wife of his best friend had informed the police she had seen the accused pick up a weapon the evening of Terri Ann’s death. The accused was put in several meetings with X and the HUO, with the aim to have him give details of the murder and his involvement. Despite considerable pressure, he did not speak coherently about the use of a weapon or give much information. When this did not produce the inculpatory statements the police hoped for, they told him that his best friend, G, had given the police the accused’s cellphone number – in essence that G had “ratted” on the accused (quote from X: “G fucking ratted you out”). These all had the effect of isolating and pressuring the accused.

[34] There were no threats, no violence, or specific inducements made to the accused in the course of the questioning. The overarching theme of the interrogation was that the organization could “fix” things with the police by paying off witnesses, or manipulating evidence. Also, the UO was portrayed as being capable of giving the accused a false identity and getting him across the Canada /US border undetected. What the accused needed to do was search back in his memory and try to think what new information the police must have, and provide details of his memory of the events of the evening/early morning of April 28 and 29, 2002.

[36] … In the morning of May 21, the accused was picked up by members of the UO and driven to the airport, supposedly to go to Vancouver to “hide”; however, the plane had a scheduled stop in Calgary where he was arrested by the Calgary Police Service.

[38] The accused reported to X that he had back pain, was not sleeping well, and his blood pressure was “through the roof.” He also made several statements during the course of the four days about suicide being an option for him, rather than face arrest. The accused stated that he would rather take a shot in the head than go to prison. He stated that he was nervous and wanted to jump off a bridge, and that he would rather die than go to jail. The accused outlined his options at one point as: (1) self-harm; (2) go to Calgary and give himself up; or (3) talk to the HUO. X, who was with him during these statements, steered him away from the suicide option and encouraged him to take assistance from the HUO. He also stressed that their friendship was strong and X did not want to lose the accused to jail or otherwise. X testified at the voir dire that he did not believe there was a concern about self-harm. X was alive to that concern, but felt he was monitoring the risk. However, notably X did not bring this up to the file manager who was deciding the scenarios. The accused was left alone in his hotel room for long periods of time over the four days of “hiding.”

3.1.7. Conclusions About the Circumstances in Which the Statement was Given

[39] … Nor did the operation take advantage of the accused’s vulnerabilities in terms of addictions, social deficiencies, or financial situation. However, the nature of the interrogation raises many concerns.

[40] When the use of a stim that suggested that the accused risked being immediately arrested did not result in the desired statement from the accused, actions were taken to ramp up the psychological pressure on the accused. These included: (1) suggesting there was a “manhunt” for him; (2) involving his teenage boys in the operation by sending uniformed police officers to tell them they were looking for their father to arrest him (a deliberate falsehood); and (3) keeping the accused essentially secluded and “hidden” for four days, with numerous “interrogations” during that period. Whenever the accused stated that he had no or limited memory of events and referenced an industrial accident with a head injury as the cause of his confusion, he was persistently challenged. His loyalty to the organization and his friendship to X were brought up as reasons he should be more forthcoming with the information they were demanding.

[41] When the original idea of a new witness was not working, the undercover officers tried to arrange a meeting of the accused with his good friend, G, who he knew around the time Terri Ann was killed. When G would not cooperate, the tactic was to feed the accused information that suggested that G had given the accused’s telephone number to the police (in essence, a betrayal). This was all while the undercover officers knew the accused was increasingly stressed, had shaved his head and beard to change his appearance, was complaining of high blood pressure and backache and stress and on more than one occasion mentioned suicide as a possibility if he had to face arrest. The price at stake was his liberty. Either he was to give information to the standard required by the organization so they could “help” him or face arrest and detention.

[42] The police showed no concept of restraint in the pressure they were willing to put on the accused. They used completely false information of arrest, and a manhunt, to put the accused in a mental framework where he was kept “hidden” from the police for four days while they questioned him and spent time with him, all the time looking at angles to get him to give them information. When he did not do so, the police chose to ramp up the pressure. This high-pressure tactic lasted for four days, a period of time that is concerning.

3.2 Markers of Reliability

[43] The accused never gave much detail, nor did he describe what happened on the evening of Terri Ann’s death, other than a few fragments of memory….

[44] Examining the reliability of the statements made by the accused, there are no markers of reliability. No information was gained that identified the holdback evidence that the detectives were looking for. Furthermore, there was very little detail given by the accused. He never described the crime start to finish; in fact, he was never asked if he had killed Terri Ann. The tactics involved were all premised on him being the aggressor. His statements were very contradictory. For example, he continually resisted the suggestion there was a weapon, then he talked of a weapon that he divided up into pieces and burnt, and then stated he was 100 percent sure there was no weapon. He continually indicated that he had no memory of much of the evening, and stated that his work injury (of which the undercover officers knew) affected his recall. The most inculpatory statements made by him in approximately 900 pages of transcription of the interviews done over four days are set out below.

[45] On May 17, the accused stated to the HUO that he had zero recollection of any murder, but “I think that it’s all my fault.” When asked why, he said because he was head of the house. The accused also stated to the HUO that he wore the same clothes to work the next day and after being released from police questioning, he burnt them and all his papers. This was done in broad daylight, at the home of a relative where he was living with his father. He stated “I panicked and burnt everything.”

[46] To X on May 20, in response to a question as to why the accused thought there were no fingerprints, he said that he went downstairs and got gloves, and that he was mad when he was downstairs. He stated “[t]hen I think I just fuckin’ grabbed her and knocked her out of the way. She went down funny and that was ‘holy fuck’ like panic made. So-and extra panic mode because there was three fuckin’ little…just headed out to the car and left. And that was it. Shaking all the way.”

[47] The statements give no explanation of the details the accused knew from his police interview – that Terri Ann was strangled and that she had been beaten. All through the interviews the accused continually resisted any suggestion that there was a flashlight as a weapon. He gave no statements that acknowledged or explained the power failure in the house, or the removed window downstairs.

[48] The accused’s statements were contradictory at times. In one instance, he was 100 percent certain there was no weapon. However, at another time, he stated that any weapon was in multiple places, destroyed, and gone. He at one point described putting the kids down to bed, and at another point said he did not even remember putting the kids to bed. He remained adamant that whatever any recent police informers were saying, they were making things up. He came up with no ideas or suggestions of what that new information could be, despite being pushed on it for hours.

3.3 Conclusions on Probative Value

[49] The probative value of the statements is weak as they give almost no detail and there is no holdback information identified. The totality of the interrogations led to confusing and contradictory answers against a background of the accused constantly reaffirming that he has no or limited recollection of events.

[50] The police tactics used in the interrogation stage of this operation raise a real concern that the continual and ongoing pressure put on the accused over four days may have resulted in some type of statement to appease the UO. Providing more information about his actions on the night of Terri Ann’s death was presented as the only way the accused could maintain his liberty by avoiding arrest, and also the only way to stay in the UO.

4. The Prejudicial Effect of the Statement

[51] The prejudicial effects here are the dangers of moral and reasoning prejudice, that the accused was involved with a criminal organization committing “crimes” that he believed were real. These are significant dangers in a jury trial. As this will not be a jury trial, some of these concerns are alleviated. It is true that a judge may be less influenced by any moral or reasoning prejudice than a jury. However, the fact of a judge-alone trial does not result in a presumption that there would be little or no prejudicial effect. Trial fairness is an important consideration at this stage of the analysis.

5. Weighing the Probative Value Versus the Prejudicial Effect

[54] Here, I am dealing with an evidentiary rule. The inadmissibility of the statement is overcome where the Crown can establish, on the balance of probabilities, that the probative value of the confession outweighs its prejudicial effect. In this context, the confession’s probative value turns on an assessment of its reliability. Its prejudicial effect flows from the bad character evidence that may be admitted. Is it reliable enough to be put before a judge or jury in a trial setting?

[55] Here the statements of the accused have a low probative value. They do little to add to what was known to the police prior to the undercover operation, and confirm very few details of the case. Further, they were obtained in an extremely high-pressure environment after four days of questioning with constant inferences and suggestions that the accused’s explanations were not good enough. In short, there were almost no markers of reliability in a statement that was given in circumstances of escalating pressure.

[56] When I look at the lack at the general nature of the statement, the paucity of what was said, the lack of confirming evidence, and the nature of the interrogation, I do not find that the Crown has met the burden here on the balance of probabilities. The Crown’s burden is to show that the probative value is such that it overcomes any prejudice, so that what would otherwise be inadmissible evidence becomes admissible at trial. The Crown has failed to do so.

[57] The result is that the statements made by the accused during the Mr Big operation are not admissible at the trial.

6. Does the Operation Amount to an Abuse of Process?

6.1 The Law

[59] The start of this analysis has to be what was said about abuse of process in Mr Big operations in Hart. Justice Moldaver addressed the role of the doctrine of abuse of process. He outlined that police misconduct will not be forgiven so long as a demonstrably reliable confession is secured. The onus is on the accused to show that an abuse of process has occurred: Hart at paras 111–113. The abuse of process doctrine is intended to “guard against state conduct that society finds unacceptable, and which threatens the integrity of the justice system”: Hart at para 113.

[60]           Justice Moldaver specifically noted at paragraph 114 of Hart that the doctrine of abuse of process should be “reinvigorated” in the Mr Big context, but declined to set out a bright-line rule for when the doctrine applies. He stated at paragraphs 115 to 117:

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, at 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.

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).

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.

[62] Case law has made it clear that a typical Mr Big operation is not in and of itself an abuse of process: R v Yakimchuk, 2017 ABCA 101 at para 87; R v Klaus, 2017 ABQB 721 at para 54; R v Allgood, 2015 SKCA 88 at para 67. In R v Unger (1993) 1993 CanLII 4409 (MB CA), 85 Man R (2d) 284 (CA), Scott CJ states: “[c]ourts should not be setting public policy on the parameters of undercover operations. The Crown’s position, with which we agree, is that the public would endorse rather than be shocked by the efforts of the undercover agents in this case.” In paragraphs 272 to 273 of R v Bennett, 2020 ABQB 728, B Nixon J states that “[t]he threshold for the second prong is quite high,” citing R v MM, 2015 ABQB 692, a case where the Court found that there was no abuse of process despite the relatively young age of the accused.

[65] In Derbyshire, the police set up a scenario to determine what involvement Brittany Derbyshire had in a homicide. While not a Mr Big operation, Wood J decided there was an abuse of process arising from the threats and intimidation that Ms. Derbyshire faced. In Laflamme, Dufresne JA indicated that the actions of the Mr Big in this scenario were unacceptable as it was implied that if the Mr Big found the interview to be unsatisfactory, his friend would be at serious risk of harm. It was found in paragraphs 82 to 88 that the pressure created through violence and threats could not be tolerated, and the coercive tactics tarnished the police investigation and threw the administration of justice into disrepute.

[66] Nuttall and SM found abuse of process where the operations preyed on a target’s specific vulnerabilities. In Nuttall, the exploitation of the accused’s spirituality, social isolation, and desperation for friendship all contributed to the finding that the police conduct was egregious and amounted to an abuse of process. Nuttall made it clear that it was the entire context of the undercover operation that had to be examined “to determine whether this is one of those rare cases in which a stay of proceedings is warranted to ensure the justice system is not brought into disrepute by the continued prosecution of the defendants”: at para 784. It was the subjective impact of the police actions on the accused that were taken into account. In Nuttall, the trial judge recognized that “sophisticated criminal minds must be met with creative police work: at para 789. In SM, police used the father of 15-year-old SM as an agent of the state. SM’s vulnerabilities included his youthfulness, emotional and financial inducements, and manipulative trickery by his father. This misconduct was found to offend the community’s sense of fair play and decency, and it was determined that there was an abuse of process.

[67] The difficulty in establishing an abuse of process claim should not be confused with heightening the balance of probabilities standard required to make out such a claim. If it is demonstrated on a balance of probabilities that a Mr Big operation violates fundamental principles of justice which underlie the community’s sense of fair play and decency, there is an abuse of process.

6.2 Analysis of the Law Applied to the Facts

6.2.1. The Type of Mr Big Operation

[69] Courts must distinguish between these two types of operation. In the first type, any disclosure of the details of the crime is carried out in the context of full disclosure of the past in order to get into an organization. The concerns are that the accused may be so desperate for the money, status, or socialization that he may falsely confess to get full membership in the organization. The second type of operation, of which this is one, is different. The accused wants to stay in the organization, but a problem with his past has come up. This “problem” often comes in the form of a “stim,” which is designed to put pressure on the accused. This second type of Mr Big operation usually involves putting pressure on the accused in hopes he will confess.

6.2.2. Threat of Loss of Liberty

[71] In this operation, it was represented to the accused that the police had a new informant who had provided information that she had seen the accused collect a weapon the night of Terri Ann’s death 16 years previously. When the accused continued to insist that this was impossible and that the informant must be lying, the undercover police used other techniques to create more pressure on the accused. The accused was told there was a ‘manhunt’ out to find him and arrest him, and in fact the police were “swarming” the hotel room he had left in Montreal when he was moved to Winnipeg (but kept in a hotel as it was not safe for him to be at his home). He was advised to remain hidden in motel rooms arranged by the organization. In addition, it was represented to the accused that other members of the organization were taking “heat” from the police due to their interest in the accused. This was designed to put more pressure on the accused as this was not good for the organization. Finally, after three days, the accused was told (falsely) that his longest standing and best friend had turned over information to the police (ratting him out). The situation was intentionally created to be stressful for the accused. The stage was set so that the only way for the accused to avoid arrest was to tell the members of the UO about the death of his wife, so the HUO would do whatever was necessary to get rid of the manhunt. This state of affairs progressed over four days, with multiple “interviews” in different formats, all recorded in some fashion, designed to get some information from the accused that could actually lead to his arrest.

[72] A threat to one’s liberty, much like a threat to one’s person, can significantly affect a person’s ability to tell the truth. Recognition of the seriousness of a threat to liberty is evident in section 7 of the Canadian Charter of Rights and Freedoms, s 7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, which protects life, liberty, and security of the person. There is an obvious difference between this case and Derbyshire in that the undercover officers in Derbyshire posed as gangsters and were the ones that threatened her. Here, the undercover officers posed as friends of the accused and the threat was the threat of arrest by other police. However, in both cases, the application of the threat was fully under police control. Further, the targets of the respective operations felt that they were not free to leave until they gave undercover officers the statements they wanted to hear. The accused was held for four days while falsehoods were serially used to try to pressure him. The threat was of real police power, the ability of the state to arrest and detain for a serious crime. An effective loss of liberty for four days, and the threat of future loss of liberty by arrest, can be sufficiently compelling to coerce a confession and amount to an abuse of process. As mentioned earlier, the period of four days raises concern that the Mr Big operation is approaching the level of coercion.

[73] To be clear, not every threat to liberty in a Mr Big operation is an abuse of process. Like physical violence in Mr Big operations, it can be a legitimate tool for undercover officers to use in order to determine the truth. In cases of physical violence, the violence must reach the level of coercion to reach the threshold for abuse of process: see Hart at para 59; Derbyshire at paras 102–03; R v Randle, 2016 BCCA 125 at para 67; R v Balbar, 2014 BCSC 2285 at paras 382–83. In the same way, a threat to one’s liberty will amount to abuse of process if it meets the threshold of coercing a confession.

6.2.3 Pressure Amounting to Coercion

[74] During the interviews with the HUO, who was not successful in getting incriminating information from the accused, the accused was met with pressure and disbelief. When the accused told the HUO that he has had problems with his memory due to an industrial accident where he smashed his head (the undercover officers knew the accused was on WCB for a work accident when they started the operation), the HUO made comments such as: “don’t disrespect me” and “I think you are holding out.” Later, X told the accused that the problem was that the HUO did not think that the accused trusted him, again to pressure the accused to give more details. This disloyalty, of course, had been portrayed to be akin to sin in the UO. Interactions such as this occur between the HUO and the accused:

HUO: Kenny, I want to fix something, but I have nothing to fix.

Accused: I don’t think there is anything to fix. That is the thing.

[75] One of the arguments from the prosecution was that the accused never denied that he had killed Terri Ann. When one reads the transcripts and views this Mr Big operation, however, that open-ended question was never something he was asked. The accused had provided a statement to the police at the time of Terri Ann’s death, sixteen years prior, in which he stated he had been at the house the evening before Terri Ann died. He described babysitting the children while Terri Ann went grocery shopping, and eventually leaving. He accounted for his actions afterwards. The way the stim was given and the “additional “evidence was presented, it was assumed at all times that the accused had killed Terri Ann, and the task was to get details to try to figure out what information the recent informant had provided that could result in the recent police action. In this way, the police identified the accused as the one who had killed Terri Ann, and applied pressure until they got the result they wanted. The police refused to accept that their theory of the case may be incorrect. The stage was set so that the only way for the accused to avoid arrest was to tell the members of the UO about the death of his wife, so the HUO would do whatever was necessary to get rid of the “manhunt.”

[76] When one method of applying pressure failed, the police continually upped the pressure until the accused finally caved on the fourth day. At 8:45 pm on May 20, X told the accused that his friend ratted him out. Reading pages 32 to 91 of the transcript of that interview, X continually speaks ill of the friend, G, suggesting that G was not really a friend, but actually a police informant or agent for the last sixteen years. X continually emphases how disloyal the friend was. In addition, he introduces that “multiple” people are now saying they saw the accused with a weapon, which the accused continued to resist. The accused suggested he should just go to the police and explain that these people are lying. X discouraged that course of action, and continued to pressure the accused. The accused made conflicting statements about a weapon that make no sense – for instance, stating that it was “in multiple pieces” and “gone,” but then denying any memory of a weapon. At this time, the accused again referenced his memory issues. X then raised the ante again, indicating that X may be implicated if the police find the accused, that the accused is putting X at risk (presumably due to police attention on the UO). It is only after all of this that the accused makes very general statements that link him to the offence. It is clear that after four days of increasing psychological pressure, being kept “hidden” from the police (but effectively isolated) and continually disbelieved, the accused is being coerced with new pressure, to give information that links him to the offence.

[77] This is why the distinction between the two types of Mr Big operations is important. The file manager in this case testified that a Mr Big operation is an investigation where the target is identified, and scenarios are designed and presented in hopes of creating an environment where the accused is comfortable to give details of the offence being investigated, if they know anything. This definition of the operation was parroted by X. However, that was never the design of this Mr Big operation. The sole design of this operation and its execution was to put pressure on the accused. It aimed to raise his fears and concern that he was about to be arrested and pressure him to disclose details of the offence, ostensibly so the UO could help him. The aim was never to make the accused “comfortable” to give details of the offence. This is often the case in the second type of Mr Big operations. The danger associated with them is that the police, as in this case, may exert an extreme amount of pressure on the accused that approaches the level of coercion. In addition, it should not be overlooked that undercover officers are using the power of the state, the legitimate power that the police have to charge and arrest someone, as the method to take away someone’s liberty and keep them scared and willing to talk to the UO to obtain its help. [Emphasis by Author]

6.2.4. Exploitation of the Parent-Child Relationship

[79] The conduct of the police in SM in recruiting an absentee father to get information from his child was found to offend the community’s sense of fair play and decency and amounted to an abuse of process. One of the obvious factors in SM that led to the inadmissibility of the evidence was the young age of the accused. However, the Court also discussed the parent-child relationship, stating that “it is clear that the police were exploiting the parent/child relationship between M.F. and S.M. A child should normally be able to look to their parent to take care of them and to be able to trust them.” The use of an absentee father as an agent of the state to trick a child was found to fall in the category of manipulative trickery.

[81] Here, the file manager sent two uniformed members of the Winnipeg Police Service to tell the accused’s teenage children that their father was wanted, and would be arrested and charged with the murder of their mother, and to inquire of the accused’s whereabouts. This was done in conjunction with the stim. The intention was to make the “manhunt” more realistic to impress upon the accused how seriously the police were searching for him. However, it was done when the police knew the teenage children (one of whom was still a minor) would be alone, without a parent or adult living with them for the next days, while the police conducted their interrogations. The involvement of children in this way shows a shocking lack of care of how teenagers could be vulnerable in this home situation and the effect that police message may have on these teens.

[83] I recognize that the police conduct in this case is not as egregious as the police conduct in SM. Further, I am aware that there was no abuse of process found in Magoon. These factual circumstances, on this ground alone, are insufficient to establish a claim for abuse of process. However, the police use of the accused’s children to help “validate” their claim of imminent arrest, their reference to this in discussion with the accused, and their knowledge the children would report it to their father amounts to yet another attempt by police to “ramp up” the pressure on the accused. The exploitation of the parent-child bond in this case is a factor in reviewing the facts in determining if there has been an abuse of process.

6.2.5 Psychological Pressure on the Accused

[84] The accused did not testify in the voir dire, so all that can be taken from his state of mind is in his actions and the descriptions by the undercover officers. That evidence was clear – the accused had a complete change of demeanour after the stim and was stressed and upset. He was not providing information, so more pressure was applied and tactics were switched to try to obtain a confession. He was constantly told that he had to provide more detail, and his denials were not believed.

[86] Although the accused was never kept locked in his hotel rooms and was ostensibly free to leave, he was clearly concerned about being detected and arrested. On one occasion, when he went for a drive, he was sure someone was following him. He asked one of the UO members to bring a razor to his hotel and he shaved off his long beard and the hair off his head to change his appearance. He saved all the hair clippings and walked a block away to dispose of them in a dumpster so that they could not be traced to his hotel room. When he noticed a police car parked outside his hotel room, he pinned the curtains together so they would not flutter. He expressed concern that his phone was bugged, and clearly did not want to use it to contact anyone. He was provided with a burner phone, but was clearly concerned about contacting his sons in case that phone was tapped. Amidst all of this, the undercover officers did nothing to dispel the accused’s increasing paranoia; to them, this was useful to pressure the accused. In fact, they reinforced the perception of the imminent arrest which only the UO could stop.

[87] The accused was apologetic that this situation had now brought police attention to the UO. While strategizing about his options, the accused expressed on a number of occasions that suicide was an alternative if he was going to go to jail. He talked of putting a bullet through his head, jumping off a bridge, or being in a box below ground. Reading these comments in context, they cannot be classified as serious, immediate suicide threats. However, they are an indication of the state of mind of the accused. Although X said he was aware of this and as a police officer was monitoring it, the accused was purposely left alone and “hiding” for significant periods of time. On May 20, the accused, talking of his situation to X, said: “like I was saying I fuckin’ walking around with little flashes of paranoia and freaking out and thinking, you know, I guess if they roll up and grab me here, you know, you guys will find out eventually…” (they being the police).

[88] Mere stress or upset is insufficient to ground a claim of abuse of process. As confirmed in Nuttall, there must be a manipulation and exploitation of vulnerabilities. In this case, the police disregarded, or at least minimized, the effect that the high-pressure tactics were having on the accused. Although, the psychological effect the investigation had on the accused is insufficient to ground a claim of abuse of process on its own, it further contributes to the complete factual matrix in examining whether an abuse of process occurred in this case.

6.3 Conclusion on Abuse of Process

[90] Clearly, the police need to be empowered to use guile, deceit, and other tactics to obtain a confession from an accused in an undercover operation. Thus, for instance, the fact that uniformed officers lied to the accused or his children about the immediacy of arrest is not in itself an abuse of process, although I find it offensive to involve minor children in this manner. The whole illusion of the UO, and to befriend and deceive the accused is an allowable tactic. The use of inducements, such as the job opportunity, and providing scenarios that involve violence or illegal activities are not in themselves at a level that creates concern.

[91] However, all the tactics used have to be considered together, and it is sometimes the confluence of the factors and their effect on the accused that leads to an abuse of process. If the accused is put in a situation where he is coerced to provide information, there is a line that may be crossed where the conduct of the police is unacceptable. The abuse of process concern here is not that economic pressures were used, or that inducements of a job, money, or friendship were overwhelming; rather, it is that in pursuit of information as the interrogation stage unfolded, the police seemingly lost sight of the fact that they were ramping up pressure on someone who was getting increasingly stressed, upset, and displaying some paranoia in his conduct. They continued fabricating information to pressure the accused over a period of four days during which he was essentially detained: physically isolated in a hotel room and psychologically by the lies he was being told. For four days, the accused was left to believe that the full power of the state was being employed to track him down and arrest him for a murder that occurred sixteen years before.

[92] The period of four days is problematic here. From the police point of view, they needed time to try and arrange a meeting between G and the accused, which never came to pass. In addition, they were involved with two Mr Big operations in relation to this murder at the same time, which may have meant delays. However, it is the subjective impact of the police actions on the accused that are the focus here.

[93] Here, it is not the usual Hart factors that lead to concern. It is that relentless pressure was placed on the accused, who although not locked in his hotel room, was put in a psychological state which meant he was captive for four days while the police turned up pressure on him. The interrogations were not oppressive in themselves, but it was made clear that the accused was facing a loss of his liberty unless he provided particular answers to the members of the UO. He is shown continually racking his brain for the information they wanted. His attempts to answer questions about the weapon were denials, and upon pressure, were suggestions that made no rational sense (for example, saying there was a weapon that was split between provinces). These answers were not accepted and increasing pressure was put on him psychologically for a period of four days, all while his behavior demonstrated an increasing level of paranoia.

[94] In conducting these operations, the police cannot be permitted to overcome the will of the accused and coerce a confession. It is an abuse of process to hold someone close to “captive” for four days when all of the officers realize the personality of the accused has completely changed, and he is acting with increasing paranoia. During those four days, to ramp up the pressure by piling on falsehood after falsehood to pressure the accused into making a statement crosses the line of acceptable police conduct and becomes coercive. The undercover officers used the power of the state, the threat of immediate arrest and detention, when there was almost no more information or evidence to arrest the accused at that time than there was sixteen years before when he was questioned by the police. To continue this for four days is excessive.

[95] I find that in the circumstances, the defence has shown on the balance of probabilities that there has been an abuse of process when one considers the combination of the threat of loss of liberty, the pressure amounting to coercion, the involvement of the accused’s children, and the psychological effect of the four days of confinement on the accused. The statements made at the end of the four days, on May 20, were coerced.

7. Conclusion

[98] The statements of the accused obtained during the Mr Big undercover operation are not admissible in the trial of this matter.

R v Sappleton, 2021 ONSC 430

[January 18, 2021] Charter s.8 – Cannabis Act Search of a Vehicle [De Sa J.]

AUTHOR’S NOTE: Just in case you were under the mistaken impression that warrantless vehicle searches on the basis of marijuana were a thing of the past with the passage of legalization, this case demonstrates the new tactic police may employe to turn marijuana into the legal wedge to search a whole car for entirely different reasons. Here, the basis for such a search under the Cannabis Control Act is discussed thoroughly and the court rejects the idea that just because you find some marijuana, you can reasonably expect to find more. A gun is found and excluded due to the police conduct.

Overview

[1] Gregory Sappleton, the Applicant, has brought an application pursuant to sections 8, 9 and 10(b) of the Canadian Charter of Rights and Freedoms. The Applicant seeks exclusion of evidence, namely a firearm, found in his vehicle.

[5]  I disagree that the initial stop was arbitrary or racially motivated. However, I do agree that some of the initial questioning violated the Applicant’s 10(b) rights. I also agree that the search of the Applicant’s vehicle was unlawful and in violation of the Applicant’s s. 8 rights.

Summary of the Facts

[8] On October 17, 2019, PC Caleb Allison pulled over the Applicant for a Highway Traffic Act infraction. Officer Allison observed the Applicant’s vehicle enter into an intersection before the light turned green. As the Applicant turned left at the light and entered into the parking lot of 24 Woodstream Boulevard, Officer Allison turned on his lights to stop the vehicle.

[10] After running checks on his license, Officer Allison discovered that the Applicant had an outstanding charge of assault and was on a recognizance with conditions that prohibited him from being within 500 metres of 24 Woodstream Boulevard. The Applicant was in breach of the terms of his recognizance by attending at the address.

[11] During the same checks, Officer Allison also discovered a Special Interest Police notification (SIP) pertaining to the Applicant. The notification indicated that the Applicant was the subject of a Guns and Gangs investigation and was believed to be in possession of a firearm.

[13] Shortly after Officer Allison made the call, Officer Justin Carosi arrived on scene. PC Allison informed Officer Carosi of the circumstances, and the concern related to a firearm. With the assistance of Officer Carosi, Officer Allison approached the driver’s side of the Applicant’s vehicle and asked the Applicant to exit the vehicle. As the Applicant was exiting the vehicle, Officer Allison advised the Applicant he was being arrested for the breach of recognizance.

[14] After exiting the vehicle, both officers conducted a pat down search of the Applicant. They also asked the Applicant if he had any weapons on his person or in the vehicle.

[15] The Applicant was found to have a satchel containing cannabis in his possession. The marijuana in the satchel was tied in a plastic baggie, and there was additional marijuana in a piece of cellophane wrap. The evidence is unclear as to whether the satchel was zipped closed. Officer Allison asked the Applicant if he had any other drugs in the car. The Applicant stated just the weed and some tobacco.

[16] PC Allison testified that after observing the marijuana in the satchel, he made the decision to search the vehicle. Officer Allison testified that given that the marijuana was easily accessible to the driver, he was authorized to search the vehicle pursuant to the Cannabis Control Act (CCA).

[17] PC Allison placed the Applicant in his police cruiser and advised the Applicant that he intended to search the Applicant’s vehicle pursuant to the CCA. PC Allison again asked if the Applicant had anything he should know about in the vehicle. PC Allison then gave the Applicant his rights to counsel. The Applicant stated that he would like to speak with his lawyer.

[18] PC Allison and PC Carosi did a thorough search of the vehicle. Both officers testified that they were searching for additional marijuana stored in contravention of the CCA. PC Allison acknowledged that the SIP relating to the firearm increased his interest in doing a thorough search of the vehicle. However, PC Allison testified that he did not change the manner of his search because of the possible presence of a firearm. According to Officer Allison, the search for additional marijuana contemplated a search of the same locations.

[19] The officers conducted a thorough search of all areas of the vehicle including the back seats, the glove box and the trunk. During the course of his search of the vehicle, PC Allison discovered a Glock 9 mm lodged behind the glove box of the car. Officer Allison arrested the Applicant for possession of a firearm.

Analysis

2. Was the Question pertaining to weapons a violation of the Applicant’s s. 10(b) rights?

[30 The right to counsel guaranteed by s. 10(b) of the Charter arises upon arrest or detention. Once a person has been detained or arrested, the police must comply with the informational and implementation components of s. 10(b); see: R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at para. 17.

[31] A detainee or arrestee must be advised of the right to counsel, including the availability of legal aid, and further that the detainee or arrestee be permitted an opportunity to contact counsel of choice; see: R. v. Taylor, 2014 SCC 50. Subject to concerns about officer or public safety, the police are required to immediately advise a detainee or arrestee of the right to counsel; see: R. v. Suberu, 2009 SCC 33, at para. 41.

[32]  The Crown argues that the questioning was lawful and authorized for officer safety. The Applicant was being arrested in relation to the breach of recognizance. The SIP indicated that the Applicant was possibly in possession of a firearm. There was a meaningful risk that the Applicant would be in possession of a firearm. PC Allison explained that the questioning was directed at ensuring officer safety.

[33]  In R. v. MacDonald, [2014] 1 SCR 37, 2014 SCC 3 (CanLII), the Supreme Court addressed the limits to the “safety search” authority. The Court explained that the police authority to conduct a safety search was limited to instances where there was an imminent risk to the safety of the officer. It was not to be used or abused for other (investigative) purposes. At para. 43 the court explained:

Indeed, the execution of the police duty to protect life and safety lies at the very core of the existence of the police as a social entity. Further, the law will justify the exercise of this police power only if exercising it is reasonably necessary in order for the police to conduct the safety search in question. As I explained above, it is only when police officers have reasonable grounds to believe that there is an imminent threat to their safety that it will be reasonably necessary to conduct such a search. This limit guarantees that the lawful police power is not excessively broad. In so doing, it ensures that the law itself is reasonable and can be reasonably delineated. [Emphasis added.]See also R. v. Godoy, [1999] 1 SCR 311, 1999 CanLII 709 (SCC).

[35] However, given that the Applicant had already been removed from the vehicle, in my view, it became unnecessary for the officers to make inquiries regarding the presence of any weapons in the vehicle. Any weapons in the vehicle would not give rise to safety concerns given that the Applicant had already been placed under arrest and removed from the vehicle.

[37] In this case, however, I agree with the Applicant, that this questioning seems to be more of a pretext to further investigate the information gleaned from the SIP regarding a possible firearm in the vehicle. In the circumstances, the officer should have cautioned the Applicant in advance of the questioning.

[38] After placing the Applicant in the police cruiser, PC Allison again asked the Applicant if he had anything of concern in the vehicle as he intended to search it. Again, in my view, this questioning violated the Applicant’s s. 10(b) rights.

[39] There was no imminent threat to the officer’s safety at the time of the questions. Moreover, the officer had already made the decision to search the vehicle. The questions were not directed at determining whether a search of the vehicle for marijuana was justified. Had the questions pertained to the state of marijuana stored in the vehicle, they would have been warranted. In my view, the questions here did not have that purpose. Rather, they were directed at questioning the accused regarding the firearm believed to be in the vehicle.

3. Was the Marijuana Stored in Compliance with the Regulations?

[40] Section 12 of the Cannabis Control Act (CCA) reads as follows:

Transporting cannabis

12 (1) No person shall drive or have the care or control of a vehicle or boat, whether or not it is in motion, while any cannabis is contained in the vehicle or boat.

Exception

(2) Subsection(1) does not apply with respect to cannabis that,

(a) is in its original packaging and has not been opened; or

(b) is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle or boat.

Search of vehicle or boat

(3) A police officer who has reasonable grounds to believe that cannabis is being contained in a vehicle or boat in contravention of subsection (I) may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it.

[44] The Applicant takes the position that the CCA prohibits the transport of marijuana that is left in the open or otherwise unsealed. The Applicant submits that, in this case, the marijuana was stored in compliance with the regulations as it was in a satchel that was “fastened close”.

[46] I disagree with the Applicant that proximity to the driver and accessibility is not a relevant factor to be considered. The purpose of the regulation is to limit accessibility/availability of the marijuana to occupants of the vehicle. Marijuana, like alcohol, should be properly stored away while being transported.

[48] I agree with the Crown that “packed in baggage that is fastened closed” should be read together with “or is not otherwise readily available to any person in the vehicle or boat.” They are not completely distinct exceptions. If they were, they would have been listed separately like the exception in s. 12(a) of the CCA. Section 12(b) contemplates that the marijuana will be stored away and not be readily available to the driver or other occupants of the vehicle.

[49]  In R v. Burke, 2020 ONCJ 516, the Court explained at paras. 37-40:

Given the identical intent of the Liquor Licence Act and the Cannabis Control Act, there is no reason to believe that the legislature intended to make accessing cannabis easier than accessing liquor. The exact phrase of “packed in baggage that is fastened closed”, indicates the legislature intended, for cannabis as it did for alcohol, to prevent easy access, while having care or control of a motor vehicle. [Emphasis added.]

[50] Obviously, whether the marijuana is properly stored (not readily available) is very much a contextual assessment. This assessment is informed by the underlying purposes of the regulations. The regulations are directed at road safety and preventing the risk of marijuana use by the driver or other occupants of the vehicle while driving. Society requires and expects protection from intoxicated and dangerous drivers. R v. Burke, 2020 ONCJ 516: R. v. Wise, 1992 CanLII 125(SCC), [1992] 1 S.C.R. 527, at p. 534: R. v. Belnavis, 1997 CanLII 320 (SCC), [1997] 3 SCR 341, at paras. 38-39. See R. v. F., 2015 ONSC 3068. Accessibility/availability of the marijuana for use will clearly be a relevant consideration.

[51] In this case, the evidence is not clear that the satchel was “fastened close”. Even if the satchel was zipped closed, the marijuana was still “readily available” and easily accessible to the Applicant. This is particularly concerning as the Applicant was the driver of the vehicle. In the circumstances, it was reasonable for the officer to conclude that the marijuana was not being carried in compliance with the regulations and to seize it.

4. Was the search of the vehicle lawful?

[52] According to the Applicant, the CCA only applies to a driver in “care and control” of a vehicle. In this case, the Applicant was already in police custody and no longer in “care and control” of the vehicle. Accordingly, the Applicant submits that there was no ongoing police authority to search the vehicle.

[53] The Applicant also argues that the police completely disregarded the limits of their search authority under the CCA. Even if the marijuana was stored contrary to the provisions of the CCA, the Applicant argues that there was no basis to believe additional marijuana would be stored in the trunk or other locations in the vehicle. As such, after seizing the marijuana from the Applicant, a further search of the vehicle was not authorized.

[57] That said, I do agree with the defence that the police must possess the requisite grounds to believe that marijuana is stored in contravention of the regulations in order to search the vehicle. Again, the police are only authorized to search a vehicle/person for marijuana being transported in contravention of the regulations if they possess the requisite grounds.

The scope of justifiable police conduct will not always be defined by express wording found in a statute but, rather, according to the purpose of the police power in question and by the particular circumstances in which it is exercised. Hence, it is inevitable that common law principles will need to be invoked to determine the scope of permissible police action under any statute. In this context, it becomes particularly important to keep in mind that any enforcement scheme must allow sufficient flexibility to be effective. The police power to check for sobriety, as any other power, is not without its limits; it is circumscribed, in the words of the majority of this Court in Dedman by that which is “necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference” (p. 35). [Emphasis added.]

See also R. v. Dedman, 1985 CanLII 41 (SCC), [1985] 2 S.C.R. 2, at p. 35.

Check stop programs result in the arbitrary detention of motorists. The programs are justified as a means aimed at reducing the terrible toll of death and injury so often occasioned by impaired drivers or by dangerous vehicles. The primary aim of the program is thus to check for sobriety, licences, ownership, insurance and the mechanical fitness of cars. The police use of check stops should not be extended beyond these aims. Random stop programs must not be turned into a means of conducting either an unfounded general inquisition or an unreasonable search. [Emphasis added.]

[60] Police conduct does not become invalid merely because other objectives (investigating crime) may also be in play. In other words, the fact that police were alive to the fact that a firearm may have been located during a search does not invalidate an otherwise lawful search. As explained in R. v. Nolet, [2010] 1 SCR 851, 2010 SCC 24 (CanLII), at para. 43:

“the expectation that the search might also uncover drugs” (p. 335) did not convert a Charter-compliant regulatory search into a Charter violation: R. v. Sewell, 2003 SKCA 52 (CanLII), 175 C.C.C. (3d) 242.

[61] However, statutory authority cannot be used as pretext to improperly interfere with Charter rights. Police power, whether conferred by statute or at common law, is abused when it is exercised in a manner that violates the Charter rights of an accused. R. v. Nolet, supra, at para. 39. As explained in R. v. Caslake, [1998] 1 SCR 51, 1998 CanLII 838 (SCC) at para. 27:

Naturally, the police cannot rely on the fact that, objectively, a legitimate purpose for the search existed when that is not the purpose for which they searched. The Charter requires that agents of the state act in accordance with the rule of law.

[62] In this case, the officers did not have reasonable grounds to believe that any additional marijuana was stored in the vehicle in contravention of the CCA. I also agree with defence that there was no basis for officers to search the trunk or the various other locations of the vehicle in the manner that they did.

[63] Officer Allison took the discovery of improperly stored marijuana in the satchel as a basis to conduct a full search of the entire vehicle and the trunk. The authority to search is derived from the existence of reasonable grounds. Finding marijuana is not an open licence to unreasonably interfere with the Applicant’s Charter rights by searching his entire vehicle.

[64] Indeed, if the police had grounds to believe that marijuana was still being stored in contravention of the Act, a reasonable search for the marijuana would have been warranted. Additional questioning regarding the presence of marijuana and the location and/or manner it was stored would have also been a reasonable exercise of police authority. In some cases, questioning of this nature may obviate the need for an extensive search.

[65] However, that was not the police approach here. In my view, the search was an unreasonable one and exceeded the permissible scope of the authority granted under s. 12 of the CCA.

5. Should the Evidence be excluded under Section 24(2) of the Charter?

[68] In this case, the seriousness of the police misconduct is at the higher end of the spectrum. This is not a case of an inadvertent or minor error. On the facts before me, it seems clear that the police were intent on searching the vehicle for the firearm from the moment Officer Allison observed the SIP. It is for this reason that Officer Allison was questioning the Applicant regarding the contents of his vehicle shortly after removing him from the car.

[69] The nature of the questioning (for weapons) and the expansive search of the vehicle in the absence of the requisite grounds is a serious breach of the Applicant’s Charter rights (ss. 8 and 10(b) rights).

[70] Moreover, the conduct here was systemic in nature. Officer Allison testified that he would routinely perform searches of this nature.

[71] Under the second branch, the impact of the breaches on the Charter protected interests was also significant. There is no doubt that there is a diminished expectation of privacy in a vehicle.

[73] That said, the nature of the search here was extensive and intrusive. And while there is a reduced expectation of privacy, the Applicant’s privacy rights here were flagrantly disregarded by the sweeping nature of the search.

[76] However, to permit the third branch to be used as a means to routinely excuse serious Charter violations would inevitably undermine the significance of Charter rights altogether. The courts cannot condone serious Charter violations by always giving undue weight to the seriousness of the charges in the analysis. It is the long-term repute of the administration of justice which must always be considered. As explained in Grant at para. 84:

The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.

[77] In this case, the serious nature of the breaches weighs heavy in the analysis. Admission in the circumstances would send the wrong message regarding the significance of the rights in question given the extremely flagrant nature of the breaches. In my view, the long-term repute of the administration of justice requires that the evidence be excluded.