You've been served

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Redford had a criminal blood alcohol concentration (BAC) while driving. The Crown established this by calling the qualified breath technician to testify about the breath testing procedure and results. Redford had no substantive defence for his crime, rather he argued that the Crown had not satisfied the Court beyond a reasonable doubt that they had complied with the notice requirements found at section 258(7) of the Code. The trial judge disagreed and convicted Redford who in turn successfully appealed to the summary conviction court. In a 2-1 decision the Alberta Court of Appeal restored the conviction: 2014 ABCA 336.

Section 258(7) stipulates that “no certificate shall be received into evidence … unless the party intending the produce it has, before the trial, given to the other party reasonable notice of his intention and a copy of the certificate.”

At trial the qualified breath technician testified that after completing the breath testing “he took a document containing the Certificate of Analyses and Notice of Intention to Produce Certificate, completed the portion of the document consisting of the Notice of Intention to Produce, and gave a copy of the certificate to” Redford. The breath tech handed the paperwork to Redford and explained its contents. Because Redford was facing other charges and was going to be taken into custody, the officer then took the certificate back and placed it with Redford’s other property. The officer testified that he completed a Personal Property Report where he itemized Redford’s personal effects including the certificate; Redford signed this report. The officer completed an affidavit of personal service on the back page of the certificate.

No evidence was adduced at trial about whether upon his release Redford had ever received his personal property, including the certificate.

At trial Redford argued that it had not been proven beyond a reasonable doubt that section 258(7) had been complied with.  The trial judge was satisfied on a balance of probabilities that section 258(7) had been complied with, however also indicated that if he was in error and the applicable standard of proof was beyond a reasonable doubt, he would not have been so satisfied.  The summary conviction appeal court held that the trial judge had erred in concluding that the Crown had only an evidentiary burden to meet and that the applicable standard was beyond a reasonable doubt.

The Alberta Court of Appeal framed the issues as follows: first, did the trial judge err in concluding that the standard of proof for the service of the Certificate of Analyses under section 258(7) was a balance of probabilities. Second, was that section complied with?

With respect to the first question the majority of the Court held that:

(t)he purpose of s 258(7) is to provide an accused with reasonable notice of the Crown's intention to introduce into evidence the Certificate of Analyses and to provide a copy of the certificate to the accused. The provision governs only admissibility; it does not, without more, trigger any presumption. It is purely procedural. To take the benefit of a presumption, the Crown must go on to prove compliance with the prerequisites under s 258(1)(g) and then compliance with the prerequisites under s 258(1)(c). Section 258(7) does not establish facts which trigger a presumption with respect to a vital issue relating to innocence or guilt. It is only the threshold for admissibility. @para 35.

Thus, the trial judge was correct in concluding that the burden was no higher than a balance of probabilities.

The Court then turned its attention to whether in the circumstances of this case section 258(7) had been complied with.

The Court held that the breath tech had served Redford with the Certificate and Notice when he sat down handed it to him and explained the contents. They went on to note that:

(w)hat transpires with the documents after that does not render service invalid. The law does not require the respondent to retain personal control or possession of the certificate. What is important, functionally, is that before trial, the respondent receives a copy of the certificate and reasonable notice that it will be tendered as evidence by the Crown. This requirement is to ensure that the accused can make full answer and defence. Compliance can be accomplished in numerous ways, including by personal service or through counsel by means of disclosure as required by R v Stinchcombe, [1991] 3 SCR 326.

Beyond this, the Crown has no addition evidentiary burden under s 258(7) to establish that the respondent retained the certificate in his possession for a certain period of time, or received it again after he was released from custody. To suggest otherwise is to confuse the issue of standard of proof with the legal requirements of the section, adding the requirement of possession to that of notice for some uncertain amount of time, requirements that currently do not exist. @paras 41-42

Thus, even if the trial judge had found that Redford had not been properly served at the station, so long as the Crown provided the Certificate at some reasonable point before trial (which would usually be done in the normal course of the disclosure process) the Crown would have complied with the section 258(7) requirement. 

LT

Big is Back: R v Mack

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A few months back, fellow MCL blogger Brian Holowka reviewed the latest pronouncement from the Supreme Court of Canada in R v Hart regarding Mr. Big operations: The Mr Big Operation: The SCC constrains but does not eliminate the practice.

In the Hart decision, the Supreme Court created a new common rule that now governs whether or not the results of a Mr. Big undercover operation should be admitted into evidence: R v Hart, 2014 SCC 52.

Hart was heard with a companion case:  R v Mack, 2014 SCC 58. Mack was convicted at trial of first-degree murder. During the course of an undercover Mr. Big operation, Mack confessed to killing his roommate. He provided the undercover officers with a number of details about the murder, including the reasons he did it and the location of the body’s remains – which Mack had reduced to ashes. The Mr. Big confessions went to the jury for consideration, with an instruction from the trial judge that addressed any concerns about the confession’s reliability and potential for prejudice [para 56].

Mack appealed from conviction to the Alberta Court of Appeal, where his conviction was affirmed: 2012 ABCA 42.

On appeal to the Supreme Court, Mack advanced three arguments. Two of the three were concerned with the evidence gleaned from the Mr. Big operation. Mack argued that:

1. The trial judge should have excluded the confessions he made to the undercover officers pursuant to s. 24(2) of the Charter; and,
2. If the confessions were admissible, the charge to the jury was inadequate as to the dangers associated with them [para 2].

With respect to the first argument, the Supreme Court began by recognizing that Mack did not have the benefit of advancing an argument that the confessions should have been excluded pursuant to the new Hart framework. The two-pronged Hart rule dictates that a Mr. Big confession will be excluded where its prejudicial effect outweighs its probative value, or where it is the product of an abuse of process [para 32].

The Court applied the Hart framework to Mack’s case. The first prong involves a balancing of the probative value of the confession against any prejudicial effect.

Concerning the confession’s probative value, the Court found:

• The inducements provided by the officers were modest;
• The Appellant had well-paying, legitimate work readily available to him;
• The Appellant was not threatened by the officers;
• The Appellant was told that he could decline to say anything, an option he initially accepted [para 33].

Further, the Court concluded that there was “an abundance of evidence” that was potentially confirmatory. This included:

• The testimony of two other witnesses that described the same motive for killing that Mack had told the undercover officers;
• The fact that the Appellant led the undercover officers to a fire pit where his roommate’s remained lay yet undiscovered; and,
• The fact that shell casings fired from a gun found in the Appellant’s apartment were found in the same fire pit the Appellant led the officers to.

These factors, taken together, made the confession “highly probative” [para 34].

Concerning the confession’s prejudicial effect, the Court found any prejudice was limited. The Court considered that:

• Mack did not partake in any scenarios that involved violence;
• The operation did not reveal prejudicial facts about the Appellant’s past history; and,
• Mack’s role was limited to assisting with the repossession of vehicles and delivering of packages [para 35].

The Court concluded that “any prejudicial effect arising from the Mr. Big confessions is easily outweighed by their probative value” [para 35]. Under the first prong of the Hart test, the confessions would have been admitted.

The second prong of the Hart framework involves determining whether the police officers conducting the Mr. Big operation engaged in any improper conduct, that could ground an application for abuse of process [para 36]. Here, the Supreme Court found that:

• Mack was not presented with overwhelming inducements;
• Mack had legitimate prospects for work, that would have paid even more than what the undercover officers were offering;
• The officers did not threaten Mack with violence if he didn’t confess ; and,
• The officers made it explicitly clear that Mack did not have to speak with them [para 36].

The Supreme Court found that at most, the officers created “an air of intimidation” by referring to violent acts committed by members of the fictional organization, but this did not mean that Mack was coerced into confessing [para 36].

Under the second prong of the Hart test, the confessions would also have been admitted.

Although the Court ultimately dismissed Mack’s first ground of appeal for the exclusion of evidence based on s. 24(2) of the Charter, the Court also concluded that the confessions would “clearly be admissible under [the Hart] framework” [para 32]. As such, Mack’s first argument was dismissed.

With respect to the second argument, the Court reiterated that there are two major evidentiary concerns arising out of Mr. Big operations: the reliability of such confessions, and the bad character evidence that invariably accompanies them [para 43].

The Court found that while the Hart rule is intended to respond to these concerns, it does not purport to erase them entirely. It falls to the trial judge to adequately, but not perfectly, instruct the jury as to how to approach these confessions in reaching a verdict [paras 44, 48].

The approach taken by the British Columbia Court of Appeal in both R v Terrico, 2005 BCCA 361 and R v Fry, 2011 BCCA 381, was endorsed by the Supreme Court. Jury instructions that pertain to Mr. Big operations should be subject to a contextual, case-by-case review. There is no “magical incantation” that must be read to juries in all Mr. Big cases; the nature and extent of instruction will vary from case to case [para 49].

The Court did offer some additional guidance, but no prescriptive formula, for trial judges to consider when instructing a jury. Juries should be informed that the reliability of such a confession is a question for them to answer, and will necessarily be impacted by both the circumstances in which the confession was made and the details contained in the confession itself [para 52].

As articulated in Hart, the trial judge should alert the jury to:

• The length of the operation;
• The number of interactions;
• The nature of the relationship established;
• The nature and extent of inducements offered;
• The presence of any threats;
• The conduct of the interrogation itself; and,
• The personality of the accused [para 52, citing Hart at para 102].

Further, the trial judge should discuss that the confession itself may contain markers of reliability or unreliability. Juries should consider whether the confession led to the discovery of additional evidence, whether it identified any elements of the crime not publicly known, or whether it described mundane details of the crime the accused would likely not have known had he not committed it [para 53, citing Hart @ para 105).

Finally, the Supreme Court emphasized that the jury should be reminded that such a confession is admitted for the limited purpose of providing context for the confession, and cannot rely on the confession to determine whether the accused is guilty. The jury should also be reminded of the state’s role in simulating and encouraging criminal activity [para 55].

On the second ground of appeal advanced by Mack concerning Mr. Big operations, the Court found that trial judge’s instructions were adequate and revealed no error [para 58]. As such, Mack’s argument was again dismissed.

Comment

In reviewing the Hart decision for MCL, Mr. Holowka properly highlighted that Mr. Big operations are often spawned due to a dearth of other evidence, the results of which may now be difficult to admit if corroborative evidence is lacking. However, the Mack decision places important emphasis on the fact that it is not to be presumed that prejudice, coercion, or abusive tactics are necessarily present in all Mr. Big operations. Courts must still be alive to the significantly probative evidence that this investigative technique can generate. Although Hart may have left the Mr. Big technique alive, but only barely; Mack offers vital resuscitation.

SS

Guns, Drugs and Willful Blindness

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Alma McLeod didn’t take the average cross-border trip to visit the United States. Instead, she would transport large quantities of drugs out of Canada, using a rental car, and in exchange for those drugs, return back with firearms: two 9 mm Glock semi-automatic pistols, a Hi-Point .45 calibre semi-automatic pistol, and a .40 calibre semi-automatic pistol, for example.

After her last trip, McLeod got caught. At her trial, she testified that she thought she was transporting money back and forth, for a legitimate business purpose. She also claimed that she never saw what her accomplices were loading or unloading into the trunks of her various rental cars.

McLeod was convicted or six firearm offences, and one drug offence. She appealed both from conviction and sentence: 2014 ONCA 647.

Concerning her conviction, McLeod advanced two arguments.

First, she argued that the jury should not have been instructed as to wilful blindness. She argued there was no evidentiary foundation for the instruction [para 2].

Second, she argued that the Crown was improperly allowed to cross-examine her on her knowledge of guns in the Toronto community, stating it was an irrelevant and prejudicial line of questioning [para 11].

The Court of Appeal dismissed both.

First, in order to establish wilful blindness, there must be evidence of actual suspicion on the part of the accused: R v Briscoe, 2010 SCC 13.

The Court of Appeal concluded that the evidence at trial included facts from which an inference of actual suspicion could be drawn. These included:

• The location where McLeod would meet her accomplices – strip malls, parking lots and service stations, late at night.
• McLeod never loaded the car herself.
• McLeod would provide her rental car to a near stranger to take to a secret location, so that the car could be loaded and unloaded.

The trial judge’s instruction on wilful blindness was error-free. He was correct to put the instruction to the jury [paras 7, 10].

Second, with respect to cross-examination, the Court of Appeal found the trial judge interjected as it became apparent that the Crown intended to ask McLeod about the notorious Boxing Day shooting of Jane Creba. At this point, the trial judge instructed the jury to disregard that particular question, and allowed the Crown to proceed with a “general line of questioning about general awareness of gun violence or drug crime in Toronto.” Any reference to a specific “community” was precluded [para 13].

The Crown was properly permitted to ask McLeod about her knowledge of:

• Gun violence in Toronto in 2005,
• Guns coming into Canada from the US, and
• The relationship between guns and drugs.

The Court of Appeal found that this line of questioning was relevant to the issue of actual suspicion that McLeod was transporting guns, and not money, back into Canada [paras 14-15].

For these reasons, McLeod’s appeal from conviction was dismissed.

The seven year sentence McLeod received was subject to a generous two-for-one credit for pre-trial custody, and one-quarter-to-one credit for house arrest bail conditions. The remaining sentence was 5 years and 9 months. The Court of Appeal concluded this was not outside the range of appropriate sentences for importing firearms and exporting a controlled substance: para 19.

As such, McLeod’s appeal from sentence was also dismissed.

SS

The “Mr. Big” Operation: SCC constrains but doesn’t eliminate the practice.

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It isn’t every day that the Supreme Court of Canada creates a new common law rule but that is what happened today in R. v. Hart: 2014 SCC 52.

Nelson Hart’s twin daughters drowned while in his care. The police immediately suspected Hart but they lacked evidence to charge him or successfully support a prosecution. Two years after the drowning, the police put a “Mr. Big” operation into place.

Moldaver J. writing on behalf of the majority described the general parameters of what is now commonly known as the “Mr. Big” technique:

When conventional investigations fail to solve serious crimes, police forces in Canada have sometimes used the “Mr. Big” technique. A Mr. Big operation begins with undercover officers luring their suspect into a fictitious criminal organization of their own making. Over the next several weeks or months, the suspect is befriended by the undercover officers. He is shown that working with the organization provides a pathway to financial rewards and close friendships. There is only one catch. The crime boss — known colloquially as “Mr. Big” — must approve the suspect’s membership in the criminal organization.

The operation culminates with an interview-like meeting between the suspect and Mr. Big. During the interview, Mr. Big brings up the crime the police are investigating and questions the suspect about it. Denials of guilt are dismissed, and Mr. Big presses the suspect for a confession. As Mr. Big’s questioning continues, it becomes clear to the suspect that by confessing to the crime, the big prize — acceptance into the organization — awaits. If the suspect does confess, the fiction soon unravels and the suspect is arrested and charged. [Paras 1 and 2]

In this case, the police recruited Hart into a fictitious criminal organization. At the time Hart was unemployed and socially isolated. As part of the recruitment, Hart participated in 63 “scenarios” with undercover [UC] officers. He was paid more than $15,000 for the work that he did for the “organization” and traveled to several Canadian cities, staying in hotels and sometimes dining in expensive restaurants with the cost covered by his fictitious employer. Over the course of the operation, Hart came to consider the UC officers his best friends and viewed them as his brothers. At one point during the operation, he baldly admitted to having drowned his daughters.

The Mr. Big operation culminated in a meeting between Mr. Big—the head of the criminal organization— and Hart. The meeting was essentially portrayed as an interview. Mr. Big interrogated Hart about the death of his daughters, seeking a confession so that he could be included in further and better activities of the organization. Hart initially denied responsibility but then confessed to the crime. Days later, Hart took a UC officer to the scene and described how he had pushed his daughters into the water. Hart was charged with the murders based on this evidence.

This case was particularly frail: there were internal inconsistencies in the account of the murder and there was no confirmatory evidence to support the confession. It was in this context that the Supreme Court of Canada grappled with the often-criticized Mr. Big technique. Moldaver J. noted the tension arising from the clash between the value of the technique in solving crime and the dangers inherent in the use of the technique:

To be sure, the Mr. Big technique has proven to be an effective investigative tool. It has produced confessions and secured convictions in hundreds of cases that would otherwise have likely gone unsolved. The confessions elicited are often detailed and confirmed by other evidence. Manifestly, the technique has proved indispensible in the search for the truth.

But the technique comes with a price. Suspects confess to Mr. Big during pointed interrogations in the face of powerful inducements and sometimes veiled threats — and this raises the spectre of unreliable confessions.

Unreliable confessions present a unique danger. They provide compelling evidence of guilt and present a clear and straightforward path to conviction. Certainly in the case of conventional confessions, triers of fact have difficulty accepting that an innocent person would confess to a crime he did not commit. And yet our experience with wrongful convictions shows that innocent people can, and do, falsely confess. Unreliable confessions have been responsible for wrongful convictions — a fact we cannot ignore

The concern about Mr. Big confessions does not end there. The confessions are invariably accompanied by evidence that shows the accused willingly participated in “simulated crime” and was eager to join a criminal organization. This evidence sullies the accused’s character and, in doing so, carries with it the risk of prejudice. It also creates credibility hurdles that may be difficult to overcome for an accused who chooses to testify.

Experience in Canada and elsewhere teaches that wrongful convictions are often traceable to evidence that is either unreliable or prejudicial. When the two combine, they make for a potent mix — and the risk of a wrongful conviction increases accordingly. Wrongful convictions are a blight on our justice system and we must take reasonable steps to prevent them before they occur.

Finally, Mr. Big operations run the risk of becoming abusive. Undercover officers provide their targets with inducements, including cash rewards, to encourage them to confess. They also cultivate an aura of violence by showing that those who betray the criminal organization are met with violence. Thought must be given to the kinds of police tactics we, as a society, are prepared to condone in pursuit of the truth. [Paras 4 to 9][Emphasis added]

As a result of these inherent dangers, the majority of the SCC held that the appropriate response would be two pronged:

1. The creation of a new common law rule of evidence
2. Reliance on a more robust conception of the doctrine of abuse of process to deal with the problem of police misconduct. [Para 84]

The New Common Law Rule

Moldaver J. summarized the new rule that seeks to examine both the reliability of the statement and therefore its probative value as well as the prejudicial nature of the participation in the fictitious criminal organization:

Where the state recruits an accused into a fictitious criminal organization of its own making and seeks to elicit a confession from him, any confession made by the accused to the state during the operation should be treated as presumptively inadmissible. This presumption of inadmissibility is overcome where the Crown can establish, on a 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 must be admitted in order to put the operation and the confession in context. If the Crown is unable to demonstrate that the accused’s confession is admissible, the rest of the evidence surrounding the Mr. Big operation becomes irrelevant and thus inadmissible. This rule, like the confessions rule in the case of conventional police interrogations, operates as a specific qualification to the party admissions exception to the hearsay rule. [Para 85] [Emphasis added]

Abuse of Process Reinvigorated

In R. v. Fliss, 2002 SCC 16, Binnie J. described the Mr. Big technique as “skillful police work”. Moldaver J. and the majority of the Court distanced themselves from that characterization and chose to reinvigorate the abuse of process doctrine rather than attempting to seek an alternative framework to guard against what they viewed as the very same problem. [Para 114]

Moldaver J. provided the following guidance as to how the reinvigorated abuse of process doctrine should be applied in the context of Mr. Big operations:

It is of course impossible to set out a precise formula for determining when a Mr. Big operation will become abusive. These operations are too varied for a bright-line rule to apply. But there is one guideline that can be suggested. Mr. Big operations are designed to induce confessions. The mere presence of inducements is not problematic (Oickle, para. 57). But police conduct, including inducements and threats, becomes problematic in this context when it approximates coercion. In conducting these operations, the police cannot be permitted to overcome the will of the accused and coerce a confession. This would almost certainly amount to an abuse of process.

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.

While coercion is an important factor to consider, I do not foreclose the possibility that Mr. Big operations can become abusive in other ways. The factors that I have outlined, while not identical, are similar to those outlined in Mack, with which trial judges are well-familiar (p. 966). At the end of the day, there is only so much guidance that can be provided. Our trial judges have long been entrusted with the task of identifying abuses of process and I have no reason to doubt their ability to do the same in this context [Paras 115 to 118]

In the case of Mr. Hart, the Supreme Court excluded all of his statements to the UC officers on the basis that the probative value did not outweigh their prejudicial impact. While not ruling on the abuse of process issue, the Court commented that the police conduct in the case raised significant concerns and might well have amounted to an abuse of process. [Paras 126 to 151]

The Future of the Mr. Big Operation

While Justice Moldaver noted that the Mr. Big technique is most often used in cold cases related to the most serious crimes and is used in ensuring that some of the most serious crimes in our society do not go unpunished, the new rules will surely discourage most future Mr. Big operations. The real concerns regarding wrongful convictions drove the creation of the new common law rules and the reinvigoration of the abuse of process doctrine.

The reality is that most of the cases where the Mr. Big operation is used, it is used because there is a dearth of other evidence. The new rules will make it very difficult to have the confessions ruled to be admissible due to the absence of other corroborative evidence. [See para 105] The Mr. Big technique is alive but only barely.

BCH

New & Notable: Looking for just one reasonable inference...

Clinton Yowfoo had two acquaintances, Mac and Ngo. The three men were actively involved in drug trafficking. The three men had come to the attention of the police and they were under surveillance by the police. During that surveillance Yowfoo was observed “on numerous occasions” in the company of Ngo and Mac.

On August 6, 2009 Ngo and Mac were arrested. Their residence was searched and the police found large quantities of drugs and cash. Two days later the police attended another address – which was believed to be a stash house. When the police arrived Yowfoo’s car was in the driveway. It was not his residence. About 53 minutes later he emerged carrying two bags (which later were found to contain items consistent with drug trafficking). The police arrested him.

The police then searched the residence and found a locked closet – inside they discovered drugs and firearms – which could have been worth up to $1.7 million. Yowfoo was charged in relation to those items. The evidence at trial included his presence in the house, he had a key for the residence, he had packaging for the brand of lock on the closet, although there was no evidence he had a key for the lock.

Yowfoo was convicted. He appealed: 2013 ONCA 751.

On appeal Yowfoo argued that there was no evidence that he had a key for the lock on the closet and that he left without retrieving the items in the closet. From this, combined with the evidence above, Yowfoo argued that there is a reasonable inference that he attended that residence to clean out the drug trafficking items he was arrested with after having heard that Mac and Ngo were arrested and either had no knowledge or no control over the closet.

The Court of Appeal accepted this as a reasonable inference and overturned the conviction, notwithstanding that Yowfoo did not testify.

DGM