R. v. Derbyshire (B.L.), (2016) 377 N.S.R.(2d) 174 (CA)

• Judge: Beveridge, Saunders and Van den Eynden, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: September 13, 2016
• Jurisdiction: Nova Scotia
• Citations: (2016), 377 N.S.R.(2d) 174 (CA);2016 NSCA 67

R. v. Derbyshire (B.L.) (2016), 377 N.S.R.(2d) 174 (CA);

    1187 A.P.R. 174

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. SE.011

Her Majesty the Queen (appellant) v. Brittany Leigh Derbyshire (respondent)

(CAC 435848; 2016 NSCA 67)

Indexed As: R. v. Derbyshire (B.L.)

Nova Scotia Court of Appeal

Beveridge, Saunders and Van den Eynden, JJ.A.

September 13, 2016.

Summary:

Skinner was charged with a 2011 murder. The police believed that the accused drove Skinner to the Moncton airport, where Skinner flew to Vancouver and then Mexico. The police obtained a wiretap authorization to intercept the communications of a number of people, including Skinner and the accused. When that operation yielded little success, undercover police officers, posing as outlaw Quebec bikers coming to tie up any loose ends, confronted the accused. The operation yielded statements by the accused to the undercover officers and physical evidence and locations. When the accused was charged with being an accessory after the fact to murder, she applied to exclude the evidence obtained on the ground that the undercover officers detained her when they took her to Moncton, violating her s. 7 Charter rights (right to silence and protection against self-incrimination). Alternatively, the accused sought exclusion of the evidence or a stay of proceedings on the ground that the undercover operation was an abuse of process.

The Nova Scotia Supreme Court, in a judgment reported at (2014), 353 N.S.R.(2d) 40; 1115 A.P.R. 40, held that there was no breach of the accused's s. 7 Charter rights. However, the undercover operation constituted an abuse of process. The court exercised its discretion by excluding from evidence the accused's statements to the undercover officers, the physical evidence provided and the locations identified. The accused was subsequently acquitted. The Crown was unable to serve the accused with a Notice of Appeal within the 25 day time period prescribed by Civil Procedure Rules 91.09 and 91.10(1)(b) because the accused entered the United States, with no known return date. The Crown moved to extend the time to serve the Notice of Appeal.

The Nova Scotia Court of Appeal, per Fichaud, J.A., in a judgment reported at (2015), 356 N.S.R.(2d) 347; 1126 A.P.R. 347, extended the time to serve the Notice of Appeal a further 25 days. The Crown's appeal challenged the finding of abuse of process and the remedy of exclusion of the evidence. The Crown also applied for a publication ban to protect the identity of the undercover officers.

The Nova Scotia Court of Appeal dismissed the appeal and declined to grant the requested publication ban.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - The accused, suspected of being an accessory after the fact to a 2011 murder, was the target of an undercover police operation conducted by two officers posing as members of an outlaw Quebec biker gang who came to Halifax to clean up the mess - The lead officer acted aggressively until the accused understood the need to cooperate - The officers drove the accused from Halifax to Moncton (where the alleged murderer fled to fly to Vancouver and then Mexico) - The accused made oral statements to the officers - The statements were not recorded - The trial judge held that the mere failure to audio or video record an accused's statements to undercover police officers did not violate the accused's s. 7 Charter right to make full answer and defence - However, the failure to record the conversations could have evidentiary implications as to reliability and weight - The Nova Scotia Court of Appeal stated that "the [accused] asked the judge to find that the police conduct amounted to an infringement of her rights in two aspects: her right to remain silent under s. 7 and by the failure of the police to record the communications. The latter claim was rightly summarily rejected. The former was foreclosed by the clear direction from the Supreme Court of Canada in R. v. Hart that s. 7 of the Charter had no application in determining the admissibility of confessions induced by acts and conduct of undercover police officers." - See paragraph 79.

Civil Rights - Topic 3157.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Abuse of process - The accused, suspected of being an accessory after the fact to a 2011 murder, was the target of an undercover police operation conducted by two officers posing as members of an outlaw Quebec biker gang who came to Halifax to clean up the mess - The lead officer acted aggressively until the accused understood the need to cooperate - The officers drove the accused from Halifax to Moncton (where the alleged murderer fled to fly to Vancouver and then Mexico) - The accused made oral statements to the officers - Physical evidence was found and locations were disclosed - The trial judge found that the officers were intimidating and acted aggressively, although there were no overt threats - The accused's statements resulted from fear and intimidation - The Crown's assertion that the accused was merely being cooperative was rejected - The statements resulted from unfair coercion which constituted an abuse of process - The court declined to grant a stay of proceedings - The court exercised its discretion by excluding from evidence the accused's statements to the undercover officers, the physical evidence provided and the locations identified - The Nova Scotia Court of Appeal held that the trial judge did not err in articulating or applying the appropriate legal principles to find that the police conduct constituted an abuse of process - The evidence supported the finding that the accused's statements were the result of the officers' intimidation and implied threats that caused the accused to cooperate with them out of fear for her life - Finally, exclusion of the evidence was the only appropriate remedy to protect the integrity of the justice system - See paragraphs 76 to 163.

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent (Charter, s. 7) - [See Civil Rights - Topic 3604 ].

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - The accused, suspected of being an accessory after the fact to a 2011 murder, was the target of an undercover police operation conduct by two officers posing as members of an outlaw Quebec biker's gang who came to Halifax to clean up the mess - The lead officer acted aggressively until the accused understood the need to cooperate - The officers drove the accused from Halifax to Moncton (where the alleged murderer fled to fly to Vancouver and then Mexico) - The accused made oral statements to the officers - Physical evidence was found and locations were disclosed - The accused alleged that her s. 7 Charter rights were violated (right to silence and protection against self-incrimination), as she was detained by the undercover officers - The trial judge held that s. 7 did not extend to targets of undercover police investigations, because the accused did not believe she was detained by police officers when the statements were made - The trial judge stated that the accused's "allegations of police misconduct are left to be assessed under the doctrine of abuse of process" - The Nova Scotia Court of Appeal stated that "the [accused] asked the judge to find that the police conduct amounted to an infringement of her rights in two aspects: her right to remain silent under s. 7 and by the failure of the police to record the communications. The latter claim was rightly summarily rejected. The former was foreclosed by the clear direction from the Supreme Court of Canada in R. v. Hart that s. 7 of the Charter had no application in determining the admissibility of confessions induced by acts and conduct of undercover police officers." - See paragraph 79.

Civil Rights - Topic 4302

Protection against self-incrimination - General - Right to remain silent - [See Civil Rights - Topic 3604 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 3157.4 ].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 3157.4 ].

Courts - Topic 2705

Appeal courts - General - Publication bans - [See Criminal Law - Topic 5403.1 ].

Criminal Law - Topic 53

General principles - Protection against self-incrimination - Right to remain silent - [See Civil Rights - Topic 3604 ].

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See Civil Rights - Topic 3133 ].

Criminal Law - Topic 253

Abuse of process - What constitutes - [See Civil Rights - Topic 3157.4 ].

Criminal Law - Topic 5334.2

Evidence and witnesses - Confessions and voluntary statements - Coercion - What constitutes - [See Civil Rights - Topic 3157.4 ].

Criminal Law - Topic 5403.1

Evidence and witnesses - Witnesses - Publication ban re witness's name - The accused was charged with being an accessory after the fact to murder - At the commencement of a voir dire to determine the admissibility of inculpatory statements made to undercover police officers, the judge ordered a publication ban (initials) to protect the identity of the three undercover officers - The ban was time-limited (one year) - The trial judge found that the undercover police officers' conduct constituted an abuse of process - Absent further evidence, the accused was acquitted - The Crown appealed - By the time the appeal was heard, the initial publication ban had expired and the officers' identities had not been protected for two years, with no evidence of any substantial risk of harm to the officers - The Crown's appeal was dismissed - The abuse of process finding and the remedy (exclusion of evidence) was affirmed - The Crown sought a new publication ban for two years - The Nova Scotia Court of Appeal declined to grant a publication ban - If the court had jurisdiction under s. 486.5 of the Criminal Code to grant a publication ban, an order under s. 486.5 was not warranted - Further, if there was no jurisdiction under s. 486.5, the common law test for a publication ban was not satisfied - The court stated that "It is not in the interests of the administration of justice to create an anonymous police force. I am not satisfied that the request for a further ban is necessary in order to prevent a serious risk to the proper administration of justice or is in the interest of the proper administration of justice." - See paragraphs 164 to 207.

Police - Topic 3106

Powers - Investigation - Stratagem and subterfuge (incl. trickery) - [See Civil Rights - Topic 3157.4 ].

Counsel:

Jennifer MacLellan, Q.C., for the appellant;

Patrick MacEwen and Jonathan Hughes, for the respondent.

This appeal was heard on March 15, 2016, at Halifax, N.S., before Beveridge, Saunders and Van den Eynden, JJ.A., of the Nova Scotia Court of Appeal.

On September 13, 2016, Beveridge, J.A., delivered the following judgment for the Court of Appeal.