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

Bail Pending Appeal: The Application of the Public Interest Ground in Domestic Violence Cases

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Evans Bedzra was convicted of 36 counts in relation to two complainants. In brief, he was convicted of assaulting and abusing two women with whom he had been in a relationship. The charges included assault, assault with a weapon, assault causing bodily harm, criminal harassment, mischief and breach of probation. His unsuccessful defence was a blanket denial. Bedzra was sentenced to a global sentence of three years less pre-sentence credit of one year for 133 days of pre-sentence custody—for a balance of two years less a day.

Bedzra launched an appeal against conviction and sentence and sought bail pending appeal: 2014 ONCA 408.

The Test for Bail Pending Appeal in Manasseri

In Chambers, Lauwers, J.A. commenced his consideration of the application by reviewing the relevant test recently summarized by Watt J.A. in R. v. Manasseri, 2013ONCA647:

Under section 679(3) of the Criminal Code, an applicant who seeks release pending the determination of an appeal from conviction must establish to the satisfaction of the chambers judge:

i. that the appeal is not frivolous;

ii. that the applicant will surrender into custody in accordance with the terms of the release order; and

iii. that the applicant’s detention is not necessary in the public interest.

…

An appeal is not frivolous if the proposed grounds of appeal raise arguable issues. An applicant need not establish a likelihood, much less a certainty of success on appeal, but must be able to point to a viable ground of appeal that would warrant appellate intervention if established.

…

The public interest criterion in section 679(3)(c) requires a judicial assessment of the need to review the conviction leading to imprisonment, on the one hand, and the need to respect the general rule of immediate enforceability of judgments, on the other: R. v. Farinacci (1993), 86 C.C.C. (3d) 32 (Ont. C.A.), at pp. 47-48.

Public confidence in the administration of justice requires that judgments be enforced. The public interest may thus require that a person convicted of a very serious offence, like second degree murder, who advances grounds of appeal that are arguable but weak, be denied release pending appeal: Farinacci, at p. 48.

But public confidence in the administration of justice also requires that judgments be reviewed, and that errors, if any, be corrected, especially where an appellant’s liberty is at state [sic]: Farinacci, at p. 48.

The public interest ground assumes a place of greater prominence in cases in which an applicant has been convicted of a very serious offence and faces the prospect of a lengthy period of incarceration: R. v. Baltovich (2000), 144 C.C.C. (3d) 233 (Ont. C.A. – Ch’rs), at para. 19; R. v. Demyen (1975), 26 C.C.C. (2d) 324 (Sask. C.A.), at p. 326. As a result, release of an applicant pending appeal of a murder conviction is rare: Baltovich, at para. 20. But where the grounds of appeal are strong and a serious concern about the accuracy of the verdict emerges from the materials filed, the public interest may favour release: Baltovich, at para. 20; R. v. Parsons (1994), 30 C.R. (4th) 169 (Nfld. C.A.), at pp. 186-187. [Emphasis added] [Para. 4]

The Merits of the Appeal and Mootness

In the case, the Crown conceded that the appellant, Evans Bedzra, would surrender in accordance with his conditions of release, if granted. The court accepted this concession leaving the remaining two grounds to be considered.

Lauwers, J.A. then addressed whether the appeal was frivolous or, in other words, whether the appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship to the applicant if he were to be detained in custody.

While Lauwers J.A. largely rejects in seriatim the proposed grounds of appeal against both conviction and sentence, he does note that the practical issue with this appeal is that by the time the proposed appeal is heard, Bedzra will have served a substantial portion of his sentence if not granted bail pending appeal. The refusal to grant bail pending appeal would essentially render the appeal moot thereby causing him unnecessary hardship.

The Public Interest Ground Applied

In relation to public interest ground, the applicant argued that the Farinacci factors [cited above in Manasseri] favoured the immediate enforcement of judgments should only be applied when the sentence imposed is lengthy. The Crown in Chambers responded that “domestic violence is a very serious matter. Domestic violence is the kind of crime that is hard to detect, quite often because the victims hide the effects of the crimes, downplay them, and recant when they do complain. All of these dynamics are present in this case.” [Para. 21]

Lauwers J.A. agreed with the Crown’s submission:

…The applicant committed these acts of domestic violence while he was on probation for a conviction on the same ground. He committed a number of acts of violence against two women over a lengthy period of time. He appears to constitute a continued risk, since, according to the pre-sentence report, he has no insight into his personal deficiencies. His tendency, as the trial judge noted, is to minimize the seriousness of his actions and to blame others. This is exactly the same “blame the victim” attitude that is shared by one of his proposed sureties, so it is highly doubtful that his sureties will adequately supervise him. The victim impact statements demonstrate the trauma that the applicant has caused and record plainly the fear that the complainants continue to experience.  [Para. 22] [Emphasis added]

After citing the Crown’s concern regarding the unrealistic nature of the plan for release, Lauwers J.A. gave effect to the public interest ground in this case of domestic violence in denying Evans Bedzra bail pending appeal:

In my view, the convictions constitute serious crimes against the person. Home invasions accompanied by violence are especially unnerving for communities and traumatic for victims. The grounds for the conviction appeal are barely arguable. I find that the public interest balance required by Farinacci favours continued enforcement of the sentence rather than judicial interim release. The appeal can be scheduled quickly on an expedited basis once perfected. [Para. 24] [Emphasis added]

Interestingly, Lauwers J.A.’s application of the Farinacci factors favours continued enforcement of the sentence in the context of this case of domestic violence where the grounds to be argued are “barely arguable” even where denial of bail will likely render the appeal moot.

BCH

New & Notable: Conflating RPG and Proof Beyond a Reasonable Doubt

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Early one summer morning, Justin Churko was seen by police driving into the parking lot of a bar in Yorkton, Saskatchewan. The officer noticed that Churko’s way of driving and his way of stopping were abnormal and that he was unsteady on his feet when he stepped out of his car. When the officer detected the odour of alcohol on Churko’s breath and noted that his eyes were bloodshot, the officer arrested Mr. Churko. Pursuant to a breath demand, breath samples were obtained which resulted in readings of .150 and .130. He was ultimately charges with impaired and over 80.

At trial, the defence alleged that Mr. Churko’s Charter rights had been violated. The defence asserted that while the officer testified that he had RPG to arrest Mr. Churko, the fact disclosed by the officer amount only to a reasonable suspicion and not the required reasonable and probable grounds to believe the accused was impaired and therefore arrest him. The trial judge accepted the defence position and acquitted the accused.

The summary conviction appeal court judge overturned the acquittal and entered a conviction against Mr. Churko as he determined that reasonable and probable grounds did exist.

On appeal to the Saskatchewan Court of Appeal, the found that there were no grounds to interfere with the decision of the summary conviction appeal court: R. v. Churko, 2014 SKCA 41.

The panel of the Saskatchewan Court of Appeal interestingly pointed out the significant differences between the RPG assessment required by the police officer and the standard of proof reserved for a trial on the merit and where the learned trial judge erred in the application of the RPG standard:

Whether the facts as a whole establish reasonable and probable grounds is a question of law. The principles surrounding such a determination has most recently been explained in R. v. Gunn, 2012 SKCA 80 (CanLII), 2012 SKCA 80, [2013] 1 W.W.R. 495. The reasonableness of the police officer’s belief must be considered by the trial court from the vantage point of whether the observations and circumstances articulated by the officer are rationally capable of supporting the inference of impairment which is drawn by the officer; however, the Crown does not have to prove the inferences drawn were true or even accurate. In other words, the factors articulated by the arresting officer need not prove the accused was actually impaired. This is so because that is the standard of proof reserved for a trial on the merits, a proof beyond a reasonable doubt.

In this case, the observations and circumstances as a whole articulated by the police officer and accepted by both the trial judge and the summary conviction appeal court judge are rationally capable of establishing an objective belief of impairment and therefore reasonable and probable grounds. The trial judge erred in the application of the burden on the Crown to establish reasonable and probable grounds and appeared to require that the facts articulated by the police officer “would reasonably lead to a conclusion that this man was driving while impaired by alcohol [emphasis added]” (para. 14). The summary conviction appeal court judge applied the correct standard of review and correctly concluded that the trial judge’s determination of lack of reasonable and probable grounds was in error [¶ 5-6] [Emphasis added].

BCH