The Defence Toolkit – February 6, 2021

This week’s top three summaries: R v NP, 2021 BCCA 25: #narrative and prior #consistent stmt, R v Bernier, 2021 ABCA 27: accused #interview and other’s allegations, and R v Quinton, 2021 ONCA 44: #MrBig waiver requirement

R v N.P., 2021 BCCA 25

[January 14, 2021] R v Langan, 2020 SCC 33 and prior consistent statements [Reasons by Newbury J.A. with Hunter and Grauer JJ.A. Concurring]

AUTHOR’S NOTE: Generally, if one is aiming at consistency in law, simple rules are preferable to complicated or poorly defined exceptions. One significant grey area has been introduced by the SCC in R v Langan, 2020 SCC 33.  A prior consistent statement was allowed not for: truth, self-corroboration, or for establishing that repetition enhances truthfulness, but for some cryptic inference "that can be drawn from the timing and circumstances of the statement." I'm uncertain how juries or jurists are expected to navigate that. If the statement is not res gestae [a test of its timing and circumstances] and not rebuttal of recent fabrication, then how can its timing and circumstances assist the trier of fact and still be lawful?

The BCCA in this case struggles with this question, but appears to walk back the dissenting judgement of its Chief Justice in Langan (upheld at SCC). It is a good response available to all counsel faced with Crown attempts to slip in prior consistent statements of a complainant under the guise of "narrative."  Here, the subject matter was a prior Facebook message of a complainant to her father regarding a sexual assault.

Facts

[2] Mr. P was convicted of the sexual assault of B.M. At the time, he was 15 years old. B.M. was his stepsister and was then age 16. B.M. testified that at about 1:00 a.m. on July 24, 2018, the appellant and B.M. were staying at the home of her paternal grandparents. Apparently they were expected to sleep on the same couch. The two were at opposite ends of a sectional; she was positioned on one end of the couch with her feet towards him at the other end. She testified at trial that he began to rub her legs with his hand. When she moved her legs away, he tried to “touch her and [run] his hand up her leg.” (Reasons at para. 3.) He then crawled on top of her and grabbed her breasts. She responded by repeatedly saying ‘no’ and told him to stop. He said, “Then blow me and I’ll leave you alone.” When she refused, he again grabbed her breasts and as she tried to move away, grabbed her by the hips and pulled her back onto the couch. She testified that he pulled her pyjama pants to her knees and inserted his penis into her vagina.

[3] The appellant testified in his defence, agreeing with virtually all of the foregoing, except that he denied touching B.M. sexually or at all.

[4] The Crown entered into evidence a series of Instagram messages between the appellant and B.M. In one these exchanges, which took place two months before the alleged offence, B.M. told Mr. P it was “wack” — i.e., absurd — for him to try to “smash” her — i.e., have sex with her — given that he was her (half) brother. His reply was, “Of course I am I’m 15 and your [sic] sexy.” In his testimony, the appellant explained these messages as being simply “stupid” and the result of his being drunk at the time.

[5] The Crown also sought to adduce into evidence some Facebook messages between B.M. and her father later in the morning of July 24, 2018, in which she complained of what had happened, in a manner that was, in the trial judge’s words, “consistent with what she testified to.” (At para. 16.) Details of these messages are set forth at para. 21 of the appellant’s factum.

[9] Turning next to the third branch of W.D., the judge said this:

... I turn to consider the balance of the evidence. I found the evidence of B.M. to be credible and compelling. Indeed, with respect to the surrounding facts, including opportunity, it was confirmed by [Mr. P].

Furthermore, the Instagram exchange between them, and to which I have already referred, is consistent with what she alleges occurred later in this assault. Other than [Mr. P]’s denial being put to her, she was not challenged or inconsistent in any way.

Lastly, in Exhibit 1, pages 2 to 7, the Facebook messages between B.M. and her father later in the morning on July 24, 2018, she complained to her father of what occurred, which was again consistent with what she testified to. While those Facebook messages from her are not proof of what occurred, they are consistent with her evidence and reflect positively on her credibility.

[11] Statements consistent with a witness’s evidence are normally regarded as self‑serving evidence and are presumptively inadmissible because they (i) lack probative value and (ii) constitute hearsay when adduced for the truth of their contents: see R. v. Stirling 2008 SCC 10at para. 5; R. v. Dinardo 2008 SCC 24 at para. 36; R. v. Ellard 2009 SCC 27 at para. 27; R. v. M (E-H) 2015 BCCA 54 at para. 46; and more recently, R. v. Gill 2018 BCCA 275 at para. 65. As S.N. Lederman, A.W. Bryant and M.K. Fuerst observe in The Law of Evidence in Canada(5^th ed., 2018) at §7.3, in addition to the lack of probative value of such evidence, the most common rationale for the rule is the risk of fabrication: no one should be allowed to create evidence for him or herself. An exception historically existed in sexual assault cases for “recent complaints” made by complainants soon after the incident complained of, but that exception was abrogated by an amendment to the Criminal Code in 1983. (See now s. 275.)

[12] There are several other exceptions to the rule but, in my view, none of them is remotely applicable to this case. I have already mentioned that no imputation of recent fabrication arises. The Crown suggested in its factum that the exception known as “narrative as circumstantial evidence” — where out‑of‑court statements made by a complainant in a sexual assault case may be used for the “limited purpose of helping the trier of fact to understand how the complainant’s story was initially disclosed” (Dinardo at para. 37) — might have application, but I cannot agree. Cases in which it has applied have generally involved witnesses who because of age, infirmity or similar circumstances are unable to testify or have a particular difficulty beyond their control, in testifying. In Dinardo itself, the complainant was young person with a disability. In R. v. G.C. [2006] O.J. No. 2245 (C.A.), the complainant was 8 years old. The Supreme Court in Dinardo approved the reasoning of the majority in G.C. that her prior consistent statements could be admitted, emphasizing at para. 39 that she had had difficulty in situating events in time, was easily confused, and lied on occasion.

[14] Very recently, in R. v. Langan 2020 SCC 33, the Supreme Court adopted the reasons of Chief Justice Bauman, dissenting, reported at 2019 BCCA 467. The Chief Justice quoted with approval passages from Gill, including this:

The prior consistent statement is not admitted for the truth of its contents or as a form of self-corroboration of the trial testimony of the witness. The trier of fact also must not rely on the statement to support the prohibited inference that repetition enhances truthfulness. Rather, “the probative value of the statement lies in the inferences that can be drawn from the timing and circumstances of the statement, rather than the simple fact that the [witness] has said the same thing before” . . . [At para. 91; emphasis added.]

[15] The situations in which the “narrative” exception may be relied upon, then, are limited, and in any event such statements are not to be used for a hearsay purpose — i.e., as a “form of self-corroboration”. (Gill at para. 76.) No difficulty like that encountered in Dinardo or G.C. arose with respect to the complainant’s testimony in the case at bar; nor was it contended that the timing or fact of her complaint was of “independent cogency” in assessing that testimony. It follows in my opinion that the prior consistent statements of B.M. should not have been entered into evidence or considered by the trial judge in assessing her credibility or corroborating her testimony. The only relevance these statements could have had was to support the “prohibited inference that repetition enhances truthfulness.” (Gill at para. 76.)

[17] In the result, I am satisfied that we have no choice but to allow the appeal, and order that the case be remitted for retrial.

R v Bernier, 2021 ABCA 27

[January 27, 2021] Admissibility of Accused Statement Where He/She is Asked to Comment on Other Witness Evidence [Thomas W. Wakeling, Sheila Greckol, Michelle Crighton JJ.A.]

AUTHOR’S NOTE: Counsel are generally prohibited from asking witnesses to comment on the veracity of other witness' evidence in a matter.  This is particularly so with asking an accused about why a complainant would make up the allegation against him or her. Here, the Crown attempted to lead a police interview where the detective had done something almost identical except he asked the accused to comment not on witness testimony, but on their investigative utterances. The ABCA found the effect of this was the same; it risks shifting the onus of proof onto the Defence. Consequently, such portions of an accused interview are not admissible under the common law.

The Facts

[1] After a judge-alone trial in July of 2019, Sebastian Bernier was convicted of sexually assaulting the complainant: R v Bernier, 2019 ABQB 597(Decision). The Crown alleged that on August 30, 2017 Mr. Bernier entered the bedroom where the complainant slept and engaged in sexual activity without obtaining her consent. Mr. Bernier did not testify at trial, but told the investigating detective on January 31, 2018 in a videotaped interview that the sexual contact was consensual. Indeed, he painted the complainant as an enthusiast.

[3] However, we find the trial judge erred in relying on evidence gleaned from the police interview of Mr. Bernier to the effect that the witnesses had fabricated a conspiracy against him, offending the rule that a witness cannot be called upon to impeach the oath of other witnesses. We must allow the appeal and order a new trial on that basis.

[4] The sexual contact between Mr. Bernier and the complainant occurred in the early morning after a house party that was also attended by four others: MD, TC, and KN, all of whom lived at the house, as well as CC, the boyfriend of TC. The complainant went to sleep in a spare bedroom and, by her account, awoke to someone’s head between her legs before that person commenced vaginal intercourse. Mr. Bernier acknowledged in his police interview having intercourse with the complainant, but provided a vastly different account. It is also not in dispute that Mr. Bernier had sex with MD, a long-time friend, at the same party before entering the complainant’s room.

[5] MD had invited Mr. Bernier to the house and he arrived at roughly 1am. Prior to the party, which began around midnight, most of the group – including the complainant, MD, TC and CC gathered at a restaurant where they had drinks and shared a marijuana cigarette. The complainant acknowledged consuming alcohol and marijuana at the restaurant as well as some further alcohol at the house before going to sleep around 3am. Mr. Bernier’s defence at trial was that the complainant had suffered from a “blackout” such that she was unable to recall consenting.

[9] The trial judge then turned back to Mr. Bernier’s credibility. At step one of W(D), he found Mr. Bernier was not credible for these reasons: his willingness to deceive; the internal inconsistencies in his statement; and the inconsistency with the evidence of others: Decision at para 133. Mr. Bernier’s admitted intoxication and its effect on his ability to observe and recall were also noted. The trial judge added two more reasons for rejecting Mr. Bernier’s evidence: 1) his contention there was a conspiracy to frame him because of his conduct with two women that night when there was no evidence of such animus (Decision at para 136), and 2) because the theory of the complainant having a blackout was inimical to a coherent narrative (Decision at para 138).

Analysis

[13] As part of his first ground of appeal alleging that the trial judge reversed the onus of proof, Mr. Bernier points to questioning during his police interview regarding why the complainant would make such an allegation against him. Such questioning is improper when the Crown is cross-examining an accused, Mr. Bernier notes, relying in particular on this Court’s decision in R v Kusk, 1999 ABCA 49, 232 AR 270 [Kusk], where a new trial was ordered after Crown counsel asked the accused whether the complainant “doesn’t have a motive, does she, for making this up?”.

[14] The gist of this questioning put to Mr. Bernier by the detective is shown in the following passage from the videotaped interview:

… The first thing you've got to ask yourself is why would [the complainant] lie? I mean why would [the complainant] lie? That is the absolute first thing I look at is what's the motive here for her lying because, as traumatic as this is for you, this is also a traumatic process for her. Why would she lie? That's the first thing I ask. One of the things I look at is I talked to her at the hospital, immediately after she went to the hospital. She went to the hospital that day. I went and spoke to her, and then I did speak to her again later when I interviewed her. Her event of what happened did not change, okay. There’s some consistency there.

There’s a couple things we look at. We look at recency. She goes to the hospital, I talk to her almost immediately after the event, I'm looking at her emotional state, what she’s telling me happened, and then when I reinterview her later when she’s had time to think about it I look and see how things have changed. One of the items here that was very telling, that is usually a good indication of truthfulness is that there was no deviation, there was no, “Oh, I just thought of this or this just happened.” I believe that she was very truthful in what she told me. This is why I’m saying that it’s important that I hear from you is why would she lie. Like give me a reason why she would lie? Why do you think she would lie?  [Emphasis added]

(Interview Transcript, page 9)

[15] Mr. Bernier responds to the detective’s questions with his theory that the complainant was upset because he had slept with MD before sleeping with her ...

[16] Similar questioning occurs on a number of other occasions during the interview, with the detective asking about various Crown witnesses’ motive to lie and Mr. Bernier reiterating his theory: Interview Transcript, pages 14, 17-18.

[17] Mr. Bernier acknowledges the detective was entitled to employ the tactic of questioning him as to the complainant’s motivation for accusing him of sexual assault. However, he argues that such questioning and the answers given in response remain inadmissible at trial, meaning that the trial judge erred in law in relying on Mr. Bernier’s responses – that the group conspired against him because he had sexual contact with MD and the complainant that night – in his credibility assessment. Indeed, Mr. Bernier’s counsel at trial (who is not counsel on appeal) noted in final submissions that the police questioning “would not be permissible if it was asked in the courtroom”, as “[y]ou can’t go around asking witnesses why other people would lie. It’s not a particularly probative question”: Transcript, 106/16-18.

[19] An accused person cannot be called upon to explain or theorize as to why a complainant would make an allegation against him. As this Court stated in R v MJB, 2012 ABCA 119 at para 32, 524 AR 213 [MJB], “the Crown is not entitled to cross-examine an accused on the veracity of Crown witnesses, or invite comment from the accused about the witness’s possible motive to lie”; see also S. Casey Hill et al, McWilliams’ Canadian Criminal Evidence, 5th ed, loose-leaf (Toronto: Canada Law Book, 2013) at 21:30.70.20.

[20] There is a long history behind the rule in Canada dating back at least as far as the 1935 decision of the Supreme Court of Canada in Markadonis v The King, 1935 CanLII 44 (SCC), [1935] SCR 657 at 658-659. Since then it has been affirmed by appellate courts across the country, including this one, many times: see, for example, R v Brown, 1982 ABCA 292, 41 AR 69, aff'd 1985 CanLII 3 (SCC), [1985] 2 SCR 273 [Brown]; Kusk at para 6; MJB; R v Hilton, 2016 ABCA 397 at para 62, 343 CCC (3d) 304; R v Ellard, 2003 BCCA 68 at paras 21-24, 172 CCC (3d) 28 [Ellard]; JL c R, 2017 QCCA 398 at para 85; R v Gallie, 2015 NSCA 50 at para 33, 324 CCC (3d) 333; R v Bear, 2008 SKCA 172 at para 24, 320 Sask R 12 [Bear 2008]; R v Bear, 2020 SKCA 86 at paras 74-75 [Bear 2020]; R v GH, 2020 ONCA 1 at para 24, citing R v Rose, 2001 CanLII 24079 (Ont CA) at para 27, 153 CCC (3d) 225(“this court has held repeatedly that it is improper to call upon an accused to comment on the credibility of his accusers”).

[21] The rationales for such a prohibition are multiple, though most often it is said that this questioning is impermissible because it undermines the presumption of innocence by shifting the onus of proof to the accused: Kusk at para 11; MJB at para 33; R v LL, 2009 ONCA 413 at para 16, 244 CCC (3d) 149 [LL]. As cogently stated by the British Columbia Court of Appeal in Ellard at para 22:

The potential prejudice arising from this form of questioning is that it tends to shift the burden of proof from the Crown to the accused.  It could induce a jury to analyze the case on the reasoning that if an accused cannot say why a witness would give false evidence against her, the witness’s testimony may be true.  The risk of such a course of reasoning undermines the presumption of innocence and the doctrine of reasonable doubt.  The mind of the trier of fact must remain firmly fixed on whether the Crown proved its case on the requisite standard and not be diverted by the question whether the accused provided a motive for a witness to lie.

Such a diversion into “whether the accused can provide an explanation for why a complainant would make false allegations” is dangerous because it risks having the trier of fact “find the accused guilty if a credible explanation is not forthcoming”: R v TM, 2014 ONCA 854 at para 38, 318 CCC (3d) 421.

[24] A case in point is the decision in LL, where the Ontario Court of Appeal concluded that portions of a videotaped statement in which police asked the accused why the complainant would make the allegations, and the answers thereto, should not have been put before the jury: paras 9-13. The Court applied the general rule that it is improper to ask an accused why a complainant would fabricate allegations, the reasons being two-fold: i) it is improper to invite one witness to comment on the veracity of another, and ii) such questions risk shifting the burden of proof: paras 14-16. As to the fact that the questioning took place during a police interview rather than at trial, the Court said this:

[17]  Contrary to the submissions of the trial Crown, the fact that it may be appropriate for the police to ask such questions as part of an investigation does not mean that portions of an accused’s statement in which such questions are asked are properly admissible. This court made that clear in [R v F(C), [1996] CanLII 623 (Ont CA)]. In that case, even though no objection was raised at trial, this court held that portions of an accused’s statement to the police asking him to explain why the complainant made the allegations and why some people believed the complainant should not have been placed before the jury. [Emphasis added]

The same rationale applies here. The impugned questions and answers in Mr. Bernier’s police interview were inadmissible at trial even though the detective was allowed to proceed as he did during the investigation.

[25] Second, the Crown relies on R v Ambrose, 2000 ABCA 125, 261 AR 345 [Ambrose], where this Court suggested an exception to the rule that allows the Crown to cross-examine an accused if “the defence elicits evidence in its own case on the subject of a witnesses’ veracity”: MJB at para 34. In this regard, the Crown points out that it was Mr. Bernier who first suggested in the police interview that the group was “going to come up with a story” (Interview Transcript, page 7), implying that the detective’s subsequent questions regarding the complainant’s motive to lie were simply in response to the defendant’s evidence and therefore not in violation of the rule.

… for the Crown to rely on this exception to the rule, there must be more than a simple conflict between the evidence of the accused and the evidence of Crown witnesses. It must be an articulated aspect of the appellant’s defence that a witness is not telling the truth.Instead, Mr. Bernier focused at trial on the complainant having been mistaken, a position drastically undercut by the “beguiling” nature of the impermissible questioning, which “wrongly suggests that a complainant who is not deliberately lying must be correct”: Kusk at para 11.

Instead, Mr. Bernier focused at trial on the complainant having been mistaken, a position drastically undercut by the “beguiling” nature of the impermissible questioning, which “wrongly suggests that a complainant who is not deliberately lying must be correct”: Kusk at para 11.

[29] Unfortunately, this is a paradigmatic case for why the rule continues, over the decades, to have such force. Mr. Bernier’s first ground of appeal is successful on this basis.

R v Quinton, 2021 ONCA 44

[January 25, 2021] R v Hart Voir Dire on Mr. Big Admissibility - Requirements of Waiver by Counsel - Broad Application of R v Hart - Abuse of Process in Hart [Harvison Young J.A. with M. Tulloch and David M. Paciocco JJ.A. concurring]

AUTHOR’S NOTE: It may seem inconceivable that a lawyer would ever waive the requirement a Hart Voir dire. In most circumstances, such an approach is equivalent to a drawn-out guilty plea.  After all, the culmination of a Mr. Big investigation is a confession. Admitting a confession is an odd way to defend against conviction. However, should counsel find themselves in such an unusual situation, this case provides a roadmap for what will be required to uphold such a decision. Incorrectly taking a position that a Hart voir dire is not necessary will not be sufficient (even without an allegation of ineffective assistance of counsel).

The case provides a thorough discussion of Abuse of Process within Hart as well. However, the target here was vulnerable in very similar ways to Mr. Hart. Consequently, little is added to the analysis on this factor for general application.

Overview

[1] The appellant appeals his conviction for the second degree murder of Mark Gilby. Mr. Gilby was found dead in his apartment on Gale Crescent on January 19, 2014. The appellant knew Mr. Gilby and occasionally bought marijuana from him. He was captured on surveillance footage entering and leaving Mr. Gilby’s apartment building during the morning of the murder.

[2] Central to the Crown’s case was a confession that the appellant made to undercover police officers more than a year after Mr. Gilby was found dead in his apartment. The confession was the culmination of an eight-month operation during which the Niagara Regional Police befriended the appellant and recruited him into a fictitious criminal organization.

[3] In the course of the confession, Mr. Quinton divulged a number of details of the murder that, according to the Crown, corroborated his confession.

[5] The appellant also submits that even if the trial judge did not err in admitting the confessions, he erred in failing to charge the jury in accordance with R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3.

[7] For the reasons that follow, I would allow the appeal and order a new trial. This was clearly a case to which the Hart considerations applied. The appellant did not waive a voir dire, and even had he done so, the waiver of the voir dire would have been invalid. It is not clear that the statement would have been admitted had a voir dire been held. In particular, the confession raised abuse of process concerns that needed to be canvassed in a voir dire.

Factual Background

[14] The appellant conceded his identity in the surveillance footage and the fact that he was at the apartment to see Mr. Gilby. The appellant testified that, on his last visit that day, someone he thought was Mr. Gilby answered his call from the intercom and buzzed him into the building, but that when he knocked on Mr. Gilby’s unit there was no answer, so he left.

Circumstances of the Appellant

[19] At the time of the murder, the appellant was living on disability benefits, which usually amounted to just over $1,000 a month. He testified that he had a trustee who handled his money, because he was not very good with money. His trustee ensured that he had enough money for rent and hydro.

[20] After his expenses, he had around $500 a month leftover, which he mostly spent on alcohol and marijuana. He would often become intoxicated by the afternoon and would regularly drink to the point of passing out. He frequented Start Me Up Niagara, where he could receive free meals. He resold cigarette packs at a $5 profit on the side.

Project Gale

[23] In the spring of 2014, the Niagara Regional Police launched “Project Gale,” an undercover operation to investigate the appellant for the murder of Mr. Gilby. Detective Sergeant Sean Polly acted as the handler in charge of the operation. He testified that as a handler he did not tell the undercover operators anything about the investigation or the appellant.

[25] Det. Hopiavuori then started attending breakfasts at Start Me Up Niagara. One day, the appellant invited Det. Hopiavuori to his home after they ran into each other on the street while the appellant was inebriated, and Det. Hopiavuori was carrying a six-pack of beer. This became a regular event. Det. Hopiavuori would attend the appellant’s apartment to watch movies together. Sometimes, Det. Hopiavuori would bring food or beer with him to share with whoever was in the appellant’s apartment. While the appellant would smoke marijuana almost daily, Det. Hopiavuori never smoked with him. During these encounters, the appellant would become very intoxicated, sometimes to the point of losing control of his bowels or bladder.

[26] In mid-July 2014, Det. Hopiavuori recruited the appellant to Project Gale’s fictional criminal organization that trafficked in contraband cigarettes and stolen property from the United States and Southern Ontario and arranged for passports to be forged to enable its members to cross the border. The appellant went on “box runs” in which Det. Hopiavuori would drive him to various locations and the appellant would load boxes of what he thought was contraband with Det. Hopiavuori and other members of the organization. They also attended simulated business meetings.

[28] Once, the appellant attended a clubhouse near Kitchener that was apparently affiliated with the organization. According to the appellant’s testimony the clubhouse had pool tables, a Bentley, and was lined with motorcycles. During this period, the appellant occasionally travelled to hotels and casinos with Det. Hopiavuori and others. The appellant testified that he thought that Det. Neufeld was connected to a biker gang.

[29] In late August 2014, the appellant suffered a stroke and was hospitalized for 16 days. Det. Hopiavuori visited the appellant in the hospital regularly and Det. Neufeld visited once or twice. The appellant testified that no one else had come to see him, aside from one visit from a Start Me Up Niagara worker. Det. Hopiavuori also assisted the appellant by checking in on his home while he was in the hospital, delivering his marijuana and cigarettes to the hospital, and paying for a TV for his hospital room. He also returned the appellant’s overdue DVDs to the library and retrieved his bank card.

[30] When the appellant was discharged, he had a severe leg tremor and was unable to walk or take showers unassisted. He was initially reliant on a wheelchair but Det. Hopiavuori bought him a walker as well as clothing, food, and a haircut. Det. Hopiavuori also drove him to doctor’s appointments. By his own words, the appellant was helpless after his stroke. He went from being a mobile person to being affected by leg tremors. The appellant continued to take part in the box runs after his stroke but in a modified capacity. Before his stroke, he assisted with moving boxes of contraband. After his stroke, his job was to keep watch for the police. He conducted 11 or 12 more runs, to further locations, and his compensation increased to between $50 and $100 per run. Det. Hopiavuori continued to provide him with food and beer.

[31] While the appellant was in the hospital, he was questioned by homicide detectives about Mr. Gilby’s murder. He testified that the police would show up at his home and he would regularly bump into them on the street. In December, after what appeared to be months of increasing police pressure, Operation Gale staged a scenario where the appellant and Det. Hopiavuori were pulled over by the police. The police confiscated cigarettes from Det. Hopiavuori’s truck, purportedly worth thousands of dollars. When questioned by Det. Neufeld about how this happened, Det. Hopiavuori told him that the appellant was the suspect in a murder. Det. Neufeld assured them that he would arrange something that would get the police to leave the appellant alone. He came up with the following plan. The appellant would relay the details of the murder to Det. Lemaich, who was supposedly dying of cancer. In exchange, Det. Lemaich would receive $10,000 from Det. Neufeld, for him to give to his family. Det. Lemaich was going to receive $5,000 up front and then $5,000 after he confessed. It was in this context that the appellant ultimately confessed to the murder.

[32] The lead-up to the confession began on Monday, February 2, 2015, when the appellant’s Red Cross worker did not show up to help the appellant shower. The next day, Det. Hopiavuori took him to a hotel where he could bathe himself. On Wednesday, Det. Hopiavuori drove him home to retrieve medication he left behind. As part of the scenario, police were outside the appellant’s door when they arrived. The appellant wanted to stop and speak to them, but Det. Hopiavuori convinced him to return to the hotel. On Thursday, Det. Hopiavuori took the appellant to the doctor to obtain a new prescription. They planned to go to a pharmacy on Friday. At multiple points, the appellant suggested that he call the police or that he go back to his place. Det. Hopiavuori told the appellant that he would not take the appellant back to his apartment.

[33] By this point, the appellant was, in his words, a mess. He had been without his medication for several days and was in an altered mental state. He said that he had no idea what was happening with his head and that he did not know where he was. The increasing pressure he felt throughout the week from the undercover officers to confess exacerbated this. He confessed on Thursday and Friday. He stated that he attended Mr. Gilby’s apartment, stole his marijuana, and attacked him with a hammer that he brought with him. On his way out, he took Mr. Gilby’s keys from the ignition of his scooter and locked the door. He turned his jacket inside out, as he was covered in blood, called a cab and returned home. He left the hammer in a park and threw the keys in a sewer.

[34] His confession came out in fragments. The appellant alleges that many details were prompted by Det. Hopiavuori and other officers. When his narrative contradicted known facts about the murder, Det. Hopiavuori challenged him on it and worked with him to create a coherent narrative.

[36] On Friday, the appellant said that he disposed of the keys with the hammer or elsewhere in the park. Later that day, however, the appellant brought Dets. Hopiavuori and Neufeld to a sewer where he said he threw the keys. The keys were found in the sewer. The appellant was arrested and charged shortly thereafter.

(1) Did the appellant waive the voir dire requirement from Hart?

[38] The trial Crown took the position that Hart did not apply because the appellant did not make a Mr. Big confession. On appeal, the Crown did not seek to maintain this position, arguing instead that the appellant waived the need for a Hart voir dire. The appeal Crown’s concession that Hart applies to the appellant’s confession is correct. I will explain why this is so, and then address the Crown’s waiver argument.

[39] Hart dealt with the admissibility of confessions made in the course of Mr. Big investigations. The classic Mr. Big operation involves the luring of a suspect into a fictitious criminal organization. The suspect is offered financial inducements and friendship. The operation “culminates with an interview-like meeting between the suspect and Mr. Big”: Hart, at para. 2. During this interview, Mr. Big questions the suspect about the crime and pushes the suspect for a confession. By confessing, the suspect can gain acceptance into the fictious criminal organization. Confessions made during a Mr. Big investigation are presumptively inadmissible, because of the dangers posed by the investigative technique.

[42] The appellant’s confession satisfies the requisite criteria. The operation satisfies the Hart definition because (i) the state recruited the appellant into a fictitious criminal organization of its own making in order to (ii) elicit a confession: Hart, at para. 10. The expanded criteria in Kelly are also met. As the following analysis discloses, the operation used to secure the appellant’s confession posed the potential of producing an unreliable confession, generated prejudicial evidence relating to the appellant’s participation in the scheme, and had the potential for police misconduct. The confession was presumptively inadmissible, and the requirement for a voir dire was triggered, in which the Crown would have to show the confession to be admissible.

Waiver of the Voir Dire

[43] The admissibility of evidence is for the trial judge to determine: R. v. J.H., 2020 ONCA 165, at para. 56. The party seeking to admit presumptively inadmissible evidence “must apply to the trial judge for an order permitting its reception”: J.H., at para. 57. The general practice is to invoke s. 645(5) of the Criminal Code and to have the application heard before jury selection: J.H., at para. 58.

As the Supreme Court explained in R. v. Park, 1981 CanLII 56 (SCC), [1981] 2 S.C.R. 64, at p. 73, there is no particular wording or formula required to communicate an informed waiver. However, the waiver must be express. "The question is: Does the accused indeed waive the requirement of a voir dire and admit that the statement is voluntary and admissible in evidence?": R. v. Park, at p. 74. In the context of a waiver made by defence counsel, the court stated that the trial judge must be "satisfied that counsel understands the matter and has made an informed decision to waive the voir dire": at p. 73.The onus on a trial judge with respect to voluntariness is high, even where an accused is represented by counsel. As the Supreme Court noted in R. v. Hodgson, 1998 CanLII 798 (SCC), [1998] 2 S.C.R. 449, at para. 41: "The trial judge has a duty 'to conduct the trial judicially quite apart from lapses of counsel': see R. v. Sweezey (1974), 1974 CanLII 1427 (ON CA), 20 C.C.C. (2d) 400 (Ont. C.A.), at p. 417. This includes the duty to hold a voir direwhenever the prosecution seeks to adduce a statement of the accused made to a person in authority”.

[46] Once a waiver has been offered the trial judge has discretion to accept the waiver, to hold a voir dire, or to make inquiries of counsel as to factual admissions underlying the waiver: Park, at p. 70. Although a trial judge is not required to make inquiries before accepting the waiver, the trial judge must be “satisfied that counsel understands the matter and has made an informed decision to waive the voir dire”: Park, at p. 73.

[47] In Hodgson, 1998 CanLII 798 (SCC), [1998] 2 S.C.R. 449, at para. 41, Cory J. noted that “where the defence has not requested a voir dire and a statement of the accused is admitted into evidence, the trial judge will only have committed reversible error if clear evidence existed in the record which objectively should have alerted him or her to the need for a voir dire notwithstanding counsel’s silence.”...

[48] As I will explain, this review of the law exposes problems in finding that the appellant waived his right to a voir dire. First, defence counsel did not purport to waive the right to a required voir dire. Instead, he erroneously conceded that a voir dire was not required because the rule requiring a voir dire did not apply. This concession was not a “waiver”. Second, it is evident that defence counsel did not understand the law that applies, and the trial judge accepted the “waiver” without satisfying himself that counsel understood the matter and made an informed decision. Indeed, there was clear evidence on the record that should have alerted the trial judge to the need for a voir dire to determine compliance with the rule in Hart, notwithstanding defence counsel’s mistaken concession that the rule did not apply. Hence, even if defence counsel’s concesssion amounts to a waiver, it was not a valid waiver.

The Circumstances of the Purported Waiver

[51] Defence counsel finally raised the issue a few weeks prior to the start of the trial, advising Crown counsel that he believed that Hart applied. Crown counsel disagreed and took the position that defence counsel bore the onus of proving that the investigation was a Mr. Big operation before the Crown was required to establish the admissibility of the confession. It seems that the Crown took this position because, according to him, there was no criminal hierarchy or violence.

[52] The issue did not come up again until mid-trial. In his cross-examination of Det. Polly, defence counsel asked questions related to the nature of the operation and the officer’s understanding of the appellant’s alcohol addiction, seemingly to establish a factual record for admissibility. The trial judge challenged defence counsel on the relevance of this line of questioning. The next morning, on March 1, 2017, defence counsel made his first submissions on Hart:

[A]t the end of my questioning of, of this witness, I would be arguing that Hart applies…after this witness is completed, I would be asking for you to make a finding. I would ask that then we would voir dire the, the next witness. Not necessarily about the statements themselves, just about circumstances in which the statements were taken, the utterances were taken. And, and Your Honour would, would make a finding that if the Crown had or had not satisfied the onus that I believe is now a common law onus.

[55] At this point, the discussion of the admissibility of the confession paused so that the cross-examination of Det. Polly could be completed. The issue was again addressed after the completion of the cross-examination. The trial judge summarized the live issues in this way:

As I see it, there are two issues for the Court to consider at this point. The first is should there be consideration of the confession, at this point, based on pre-trial conference discussions. To put that another way, the whole point of pretrial discussions is to sort out in advance issues that are going to impact the trial, so that once the trial begins, particularly with a jury, it can proceed with relative efficiency, if I can call it that. The second issue for me to consider at this point is – and I’ll put this in, in a short form, does Hart apply. In other words, is there sufficient evidence of a Mr. Big operation to trigger the presumption of inadmissibility at common law? [Emphasis added.]

[56] Crucially, from this point on, it seems that the only submissions on the substantive law related to whether or not Hart applied – not whether the confession was ultimately admissible.

[59] On the substantive issue, Crown counsel stated that the onus was on the appellant to establish that it was a Mr. Big operation and that the groundwork for that argument had to have been done in a pre-trial motion.

[60] .... [The trial judge] also encouraged counsel to have an off-the-record discussion.

[61] The Court took a recess so that the Crown and defence counsel could have an off-record discussion about how to proceed. They returned having come to an agreement that: (i) defence would accept the Crown’s position that there was no Mr. Big within the meaning of Hart; (ii) the issue of the reliability of the statement would be left to the jury; and (iii) counsel would be expecting an instruction from the trial judge about the nature of the inducements provided to the appellant. The Crown addressed the court:

Your Honour, Mr. Hadfield and I have had conversations and what I’ve suggested to him is if he concedes the Mr. Big point, the evidence could easily be used that we’ve already heard to tell the jury that perhaps Mr. Quinton’s will was overwhelmed when he was speaking with this officer and I think that’s, that’s fair play. So that’s what we’re aiming for. [Emphasis added.]

[62] After the next recess, Crown counsel confirmed that they would be proceeding without a voir dire and that the reliability of the confession would be dealt with in the jury instruction. Defence counsel made no explicit factual admissions.

[64] The trial judge appeared to agree with the position that the crimes were not sufficiently serious for the operation to constitute a Mr. Big operation. In pre-charge discussions, he distinguished between Project Gale and a Mr. Big operation in the following way:

[U]nlike a Mr. Big where they’re looking at some serious bad crime and in effect having to prove that you’re capable of similar bad crime … this is to me some petty crime about moving some cigarettes around.

This was Not a Waiver

[65] The respondent’s submissions that the appellant waived his right to a Mr. Big voir dire cannot be accepted. Appellant’s trial counsel did not advise the court that the appellant was waiving his right to a voir dire into the admissibility of the confession. Instead, he had agreed to accept the Crown position that Mr. Big did not apply. No waiver occurred.

[66] Even if defence counsel’s mistaken concession that Hart did not apply to the appellant’s confession qualified as a waiver, it would not have been a valid waiver. The decision made by defence counsel was not informed and the trial judge failed to determine that it was.

[67] First, it does not seem that defence counsel appreciated the legal issues involved. The entirety of the on-the-record discussion, prior to the purported waiver, related to the question of whether Hart applied to the confession. None of the discussion related to the admissibility of the confession under Hart.

[68] In addition, it does not appear that defence counsel had turned his mind to the abuse of process concerns in this case. Defence counsel’s response to the trial judge’s challenge to the relevance of his questioning of Det. Polly related to the nature of the inducements provided and how those inducements may undermine the reliability of the statement. Not once during this exchange or during pre-charge discussions did defence counsel highlight the abuse of process concerns.

[69] ... A jury warning is required in every single case involving an admissible Mr. Big confession. Defence counsel received nothing in return for his concession. As appellant counsel described, this agreement was more of an unconditional surrender than it was a deal.

[71] ... In short, the purported waiver was not informed. Yet the trial judge failed to satisfy himself that counsel understood the matter and had made an informed decision to waive the voir dire. He should have done so. There was ample evidence on the record that should have alerted the trial judge that Hart applied, entitling the appellant to a voir dire. The trial judge erred in not holding one.

[72] However, this is not the end of the analysis. When there is no voir dire at trial, appellate courts will not intervene if it is clear that the statement would have met the admissibility threshold if a voir dire had been held: R. v. Niemi, 2017 ONCA 720, 355 C.C.C. (3d) 344, at paras. 3, 28; Kelly, at para. 78.

(2) Would the confession have been admissible if a voir dire had been held?

[74] The appellant argues that the record in this case is insufficient for this Court to resolve the ultimate question of the admissibility of the confession. However, he argues that, on the record available, there is doubt that the confession was reliable. In addition, he submits that it is highly arguable that the police conduct in this case would shock the conscience of the community.

[78] The abuse of process prong of the test “is intended to guard against state conduct that society finds unacceptable, and which threatens the integrity of the justice system”: Hart, at para. 113. The operation “cannot be permitted to overcome the will of the accused and coerce a confession”: Hart, at para. 115. Importantly, Moldaver J. stated, at para. 117, that “operations that prey on an accused’s vulnerabilities – like mental health problems, substance addictions, or youthfulness – are also highly problematic. Taking advantage of these vulnerabilities threatens trial fairness and the integrity of the justice system” (emphasis added).

[79] In addition to mental health problems and substance addiction, courts have explored whether the accused possessed traits such as intelligence and “street smarts” and have also explored the degree to which the accused was emotionally bonded to the undercover operatives, dependant on the fictional criminal organization, socially isolated, and destitute: Kelly, at paras. 38-39; Neimi,at para. 29; Yakimchuk, 2017 ABCA 101, 352 C.C.C. (3d) 434, at para. 69.

[81] The Mr. Big operation in Hart “preyed upon the respondent’s poverty and social isolation”: at para. 148. In addition, the police allowed Mr. Hart to drive long distances despite knowing that he had a risk of seizure and could have had an accident while driving. Moldaver J. commented, at para. 149, that “the police conduct in this case raises significant concerns, and might well amount to an abuse of process.”

Admissibility Analysis - Probative v Prejudicial Effect

[84] The respondent is correct that the confession appears to have led to the discovery of powerful inculpatory evidence: Mr. Gilby’s missing set of keys, which were in the storm sewer that the appellant led police to. This is, on its face, a persuasive indicator of the reliability of the confession. The defence position at trial was that the police officers coached the appellant on the content of the confession and that the officers led the appellant to the location of the keys. The appellant was simply responding to non-verbal clues when he directed them to the correct storm sewer. The appellant says that the recordings of the confession support the coaching theory. He called evidence which suggested that the keys would have been discovered much earlier, had they been deposited in the storm sewer when the appellant said they were. Given my conclusion on the abuse of process concerns and the fact that the record is incomplete on this issue, it is not necessary to comment on the reliability of the appellant’s confession, other than to say that the evidentiary record on this point is incomplete.

Admissibility Analysis - Abuse of Process

[85] The police conduct in Project Gale raised serious concerns about abuse of process. The appellant was an alcoholic. He had anxiety and depression that he was taking medication for, and at least one recent instance of suicidal ideation. He eked out an existence on disability benefits. He drank and smoked marijuana regularly and had to leave his disability cheques with a trustee out of fear that he would not be able to afford his living expenses due to his substance consumption.

[86] When Det. Hopiavuori appeared as a new friend, the appellant’s life became easier. He suddenly had a network of people he cared for, and who appeared to care for him. Det. Hopiavuori regularly bought him food and alcohol. He received cash from the organization. The amounts may not seem like a lot of money for most, but the appellant was a man scraping by on his benefits. In eight months, he incurred $585 worth of debt and repaid $440. Over that same period, the organization paid the appellant about $910. During the time before the appellant’s stroke, Det. Hopiavuori spent $260 on alcohol for the two of them and whoever else was around. In total, he spent over $970 on alcohol and almost $1,900 on food during the operation. He spent around $160 on other expenses, including the walker, clothes, and a haircut for the appellant. The fictitious organization also spent $837.88 on hotels for the appellant. As Det. Polly acknowledged, the money was a lot for the appellant. Perhaps most importantly, he was also made to feel useful and valued by the organization, which began to give him tasks in this apparently criminal enterprise.

[87] Up until the point of the appellant’s stroke in August 2014, the circumstances of Operation Gale, although still concerning, may not have been much different from many Mr. Big operations. However, from that point on, the police conduct raised even more significant concerns. As the appellant submits, Det. Hopiavuori took on a caregiving role in addition to a friendship role. Det. Hopiavuori visited him in the hospital; purchased things for him, including a walker and a TV; and picked up his medication.

[88] This chronology reveals a significantly increased level of dependence and vulnerability on the part of the appellant after he suffered the stroke. While the evidence of Dets. Polly and Hopiavuori was that they were merely looking after him so that he would be able to continue in Operation Gale, it is clear that this also fostered a relationship of increased dependency on the part of the appellant. The appellant was even more vulnerable than he had been before the stroke. They accommodated his physical constraints by limiting his role to that of lookout. He testified that when he expressed some surprise at this, he was told that he was valued because he was smart. They also took him to a hotel and paid so he could bathe which he was unable to do, at least initially, at home.

[89] It was during this period that the police increased the pressure on him. They pulled the appellant and Det. Hopiavuori over and seized what the police convinced the appellant were thousands of dollars worth of cigarettes. Under this pressure, Det. Neufeld purportedly came up with a plan that would relieve that pressure and provide the appellant’s friend, Det. Lemaich, with a way to support his family.

[90] Then, in the final days before the confession, the appellant’s Red Cross worker did not show. The police staged an elaborate operation, where it appeared that his apartment was swarmed by police. When Det. Hopiavuori and the appellant saw the police cruisers, the appellant wanted to speak to the police and clear things up. The appellant also wanted to retrieve his medication. Det. Hopiavuori refused and convinced the appellant to leave. They ended up back at a hotel. During the time at the hotel, Det. Hopiavuori increasingly pressured the appellant to confess. Most concerning of all, the appellant did not have his medication for the entire time at the hotel. By the time he confessed, he was a mess, mentally.

[91] In summary, the appellant was extremely vulnerable and came to depend on Det. Hopiavuori: he had very little money and lacked a social network; he had documented mental health issues, including addition to alcohol; by the time of his confession, he had significant physical health issues; and he was off his medication for three days in the lead-up to his confession. The appellant’s vulnerabilities were exploited, consciously or not, by the operation: the police officers provided him with money; they made him feel valued; they provided him food and alcohol; they were invaluable to the appellant while he was recovering from his stroke; and they actively prevented the appellant from obtaining medication right before the confession.

[92] These are serious issues and it is by no means obvious that the confession would have survived the scrutiny of a voir dire. As the appellant states, it is highly arguable that the police conduct in this case would shock the conscience of the community. I stress that these statements were presumptively inadmissible, and the onus was on the Crown to show otherwise.

[93] A search of the post-Hart case law indicates that very few Mr. Big confessions have been excluded because the police conduct amounted to an abuse of process, despite Moldaver J.’s comments that the doctrine must be reinvigorated to guard against abusive police conduct. It appears that the doctrine of abuse of process might still “be somewhat of a paper tiger”, especially in cases like the case at bar, where the accused was not threatened with overt or implied violence: Hart, at para. 79. This is despite Moldaver J.’s comments, at paras. 78, 114, that police conduct must be carefully scrutinized in light of the obvious “risk that the police will go too far”.

[94] The promise of a “reinvigorated” abuse of process doctrine must not be an empty one. The facts of this case demonstrate that there is an ever-present risk that the police might go too far. It is the court’s role to provide for an “effective mechanism for monitoring the conduct of the undercover officers who engage in these operations” and to “protect against abusive state conduct”: Hart, at paras. 79-80. That did not happen in this case. These comments should not be taken to suggest that a particular result must be reached in a new trial of this matter. Instead, they are intended to signal to the courts more broadly that they must seriously consider the applicability of the abuse of process doctrine in cases of this nature.

[103] For these reasons I would allow the conviction appeal and order a new trial.