R. v. Hart (N.L.), (2014) 353 Nfld. & P.E.I.R. 222 (SCC)

• Judge: McLachlin, C.J.C., LeBel, Abella, Cromwell, Moldaver, Karakatsanis and Wagner, JJ.
• Court: Supreme Court (Canada)
• Case Date: December 03, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2014), 353 Nfld. & P.E.I.R. 222 (SCC);2014 SCC 52;[2014] 2 SCR 544;312 CCC (3d) 250

R. v. Hart (N.L.) (2014), 353 Nfld. & P.E.I.R. 222 (SCC);

    1099 A.P.R. 222

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [(2014] Nfld. & P.E.I.R. TBEd. SE.006

Her Majesty the Queen (appellant) v. Nelson Lloyd Hart (respondent) and Director of Public Prosecutions of Canada, Attorney General of Ontario, Directeur des poursuites criminelles et pénales du Québec, Attorney General of British Columbia, Association in Defence of the Wrongly Convicted, British Columbia Civil Liberties Association, Criminal Lawyers' Association of Ontario, Canadian Civil Liberties Association and Association des avocats de la défense de Montréal (interveners)

(35049; 2014 SCC 52; 2014 CSC 52)

Indexed As: R. v. Hart (N.L.)

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Abella, Cromwell, Moldaver, Karakatsanis and Wagner, JJ.

July 31, 2014.

Summary:

The accused was charged with the drowning deaths of his two children. A voir dire was held to determine the admissibility of evidence, including oral admissions to an undercover police officer acting as a crime boss (Mr. Big) for a "criminal organization"; whether the police contravened ss. 7 and 8 of the Charter; and whether the narrative evidence of the sting operation was admissible. The admissibility of the narrative evidence required a determination of whether a videotaped oral confession to Mr. Big and the accused's videotaped re-enactment of how the children drowned were admissible as admissions against interest as an exception to the hearsay rule or whether the statements were hearsay and subject to the necessity reliability rule under the principled approach to hearsay.

The Newfoundland and Labrador Supreme Court, Trial Division, in a decision reported at 265 Nfld. & P.E.I.R. 266; 805 A.P.R. 266, admitted the evidence. A jury found the accused guilty of two counts of first degree murder. The accused appealed, asserting that, inter alia, the court erred by admitting the Mr. Big evidence which violated his ss. 7 and 11 Charter rights and the principles of fundamental justice; and in its interpretation or application of s. 486 of the Criminal Code by refusing to permit the accused to testify in camera.

The Newfoundland and Labrador Court of Appeal, Barry, J.A., dissenting in part, in a decision reported at 327 Nfld. & P.E.I.R. 178; 1015 A.P.R. 178, allowed the appeal and excluded the two videotaped confessions on the basis that the accused's s. 7 Charter rights were breached. The court admitted a third confession that had not been videotaped and ordered a new trial. The court unanimously held that the trial judge had erred in refusing to allow the accused to testify outside the presence of the public. The Crown appealed.

The Supreme Court of Canada affirmed that the accused should have been allowed to testify outside the presence of the public. The court set out a two-pronged test to be applied to assess the admissibility of Mr. Big confessions and concluded that all three of the accused's confessions were inadmissible.

Civil Rights - Topic 1857

Freedom of speech or expression - Limitations on - Public hearings - Right to - During a four month "Mr. Big" sting operation the accused made statements to an undercover officer acting as the crime boss, in which he confessed to drowning his two children (the only substantial evidence against him) - The accused, who had a socially dependent personality, sought to testify in camera (Criminal Code, s. 486(1)) as crowds made him confused and frustrated and the stress put him at risk of blacking out with an epileptic seizure - The trial judge denied the request, holding that stress was an insufficient reason for excluding the public from the courtroom - The accused did not testify and was convicted by a jury of murdering his children - The Supreme Court of Canada stated that a trial judge's decision under s. 486(1) was entitled to deference and should not lightly be interfered with - However, the judge erred in refusing the accused's request - The accused's testimony was critically important - If he was to be acquitted, the jury would have had to believe, or at least have had a reasonable doubt, that his confessions were false - Testifying was a near tactical necessity for the accused - In the unique circumstances, it was incumbent on the judge to take reasonable steps to accommodate the accused's disability and to facilitate his testimony - The judge mistook the accused's request as seeking to have the public completely foreclosed from hearing his evidence - The accused simply wanted to testify outside of their physical presence - His evidence could have been made available to the public, while granting his request, by broadcasting his testimony into another courtroom on closed circuit television - Granting the accommodation sought would not have undermined the open court principle - See paragraphs 51 to 55.

Civil Rights - Topic 3149

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Public hearing - Abridgement of - [See Civil Rights - Topic 1857 ].

Civil Rights - Topic 3157

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to fair trial - The Supreme Court of Canada set out a two-prong test to assess the admissibility of "Mr. Big" confessions and stated that "... However, it must be remembered that trial judges always retain a discretion to exclude evidence where its admission would compromise trial fairness ... This is because 'the general principle that an accused is entitled to a fair trial cannot be entirely reduced to specific rules' ... It is impossible to predict every factual scenario that could present itself. As such, I do not foreclose the possibility that, in an exceptional case, trial fairness may require that a Mr. Big confession be excluded even where the specific rules I have proposed would see the confession admitted." - See paragraph 88.

Civil Rights - Topic 3157.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Abuse of process - The Supreme Court of Canada set out a two-prong test to assess the admissibility of "Mr. Big" confessions - Under the second prong, the court relied on the doctrine of abuse of process to deal with police misconduct - The court stated that "I acknowledge that, thus far, the doctrine has provided little protection in the context of Mr. Big operations. This may be due in part to this Court's decision in R. v. Fliss [2002, SCC], where Binnie J., writing for the majority, described the Mr. Big technique as 'skillful police work' ... But the solution, in my view, is to reinvigorate the doctrine in this context, not to search for an alternative framework to guard against the very same problem. The first step toward restoring the doctrine as an effective guard against police misconduct in this context is to remind trial judges that these operations can become abusive, and that they must carefully scrutinize how the police conduct them." - See paragraph 114.

Civil Rights - Topic 3157.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Abuse of process - The Supreme Court of Canada set out a two-prong test to assess the admissibility of "Mr. Big" confessions - Under the second prong, the court relied on the doctrine of abuse of process to deal with police misconduct - The court stated that "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 ... 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 ... 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 ... 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. ... 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." - See paragraphs 115 to 118.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies, exclusion of evidence - [See Civil Rights - Topic 3157 ].

Criminal Law - Topic 251

Abuse of process - General principles - [See first Civil Rights - Topic 3157.4 ].

Criminal Law - Topic 253

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

Criminal Law - Topic 4478

Procedure - Trial - Trial in camera or exclusion of members of the public - [See Civil Rights - Topic 1857 ].

Criminal Law - Topic 5334.2

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

Criminal Law - Topic 5337.1

Evidence and witnesses - Confessions and voluntary statements - Admissibility - "Mr. Big" confessions - [See Civil Rights - Topic 3157 and both Civil Rights - Topic 3157.4 ].

Criminal Law - Topic 5337.1

Evidence and witnesses - Confessions and voluntary statements - Admissibility - "Mr. Big" confessions - The Supreme Court of Canada set out a two-prong test to assess the admissibility of "Mr. Big" confessions which it summarized as follows: "... 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. ... Second, I would rely on the doctrine of abuse of process to deal with the problem of police misconduct. ..." - See paragraphs 85 and 86.

Criminal Law - Topic 5337.1

Evidence and witnesses - Confessions and voluntary statements - Admissibility - "Mr. Big" confessions - The Supreme Court of Canada set out a two-prong test to assess the admissibility of "Mr. Big" confessions - Under the first prong, a confession was presumptively inadmissible - That presumption would be overcome if the Crown could establish that the probative value of the confession outweighed its prejudicial effect - The probative value turned on an assessment of its reliability - The court stated that "Confessions derive their persuasive force from the fact that they are against the accused's self-interest. People do not normally confess to crimes they have not committed ... But the circumstances in which Mr. Big confessions are elicited can undermine that supposition. Thus, the first step in assessing the reliability of a Mr. Big confession is to examine those circumstances and assess the extent to which they call into question the reliability of the confession. These circumstances include - but are not strictly limited to - the length of the operation, the number of interactions between the police and the accused, the nature of the relationship between the undercover officers and the accused, the nature and extent of the inducements offered, the presence of any threats, the conduct of the interrogation itself, and the personality of the accused, including his or her age, sophistication, and mental health. ... Special note should be taken of the mental health and age of the accused. In the United States, where empirical data on false confessions is more plentiful, researchers have found that those with mental illnesses or disabilities, and youth, present a much greater risk of falsely confessing ... A confession arising from a Mr. Big operation that comes from a young person or someone suffering from a mental illness or disability will raise greater reliability concerns. In listing these factors, I do not mean to suggest that trial judges are to consider them mechanically and check a box when they apply. That is not the purpose of the exercise. Instead, trial judges must examine all the circumstances leading to and surrounding the making of the confession - with these factors in mind - and assess whether and to what extent the reliability of the confession is called into doubt." - See paragraphs 102 to 104.

Criminal Law - Topic 5337.1

Evidence and witnesses - Confessions and voluntary statements - Admissibility - "Mr. Big" confessions - The Supreme Court of Canada set out a two-prong test to assess the admissibility of "Mr. Big" confessions - Under the first prong, a confession was presumptively inadmissible - That presumption would be overcome if the Crown could establish that the probative value of the confession outweighed its prejudicial effect - The probative value turned on an assessment of its reliability - The court stated that "After considering the circumstances in which the confession was made, the court should look to the confession itself for markers of reliability. Trial judges should consider the level of detail contained in the confession, whether it leads to the discovery of additional evidence, whether it identifies any elements of the crime that had not been made public (e.g., the murder weapon), or whether it accurately describes mundane details of the crime the accused would not likely have known had he not committed it (e.g., the presence or absence of particular objects at the crime scene). Confirmatory evidence is not a hard and fast requirement, but where it exists, it can provide a powerful guarantee of reliability. The greater the concerns raised by the circumstances in which the confession was made, the more important it will be to find markers of reliability in the confession itself or the surrounding evidence." - See paragraph 105.

Criminal Law - Topic 5337.1

Evidence and witnesses - Confessions and voluntary statements - Admissibility - "Mr. Big" confessions - The Supreme Court of Canada set out a two-prong test to assess the admissibility of "Mr. Big" confessions - Under the first prong, a confession was presumptively inadmissible - That presumption would be overcome if the Crown could establish that the probative value of the confession outweighed its prejudicial effect - The court stated that "Weighing the prejudicial effect of a Mr. Big confession is a more straightforward and familiar exercise. Trial judges must be aware of the dangers presented by these confessions. Admitting these confessions raises the spectre of moral and reasoning prejudice. Commencing with moral prejudice, the jury learns that the accused wanted to join a criminal organization and committed a host of 'simulated crimes' that he believed were real. In the end, the accused is forced to argue to the jury that he lied to Mr. Big when he boasted about committing a very serious crime because his desire to join the gang was so strong. Moral prejudice may increase with operations that involve the accused in simulated crimes of violence, or that demonstrate the accused has a past history of violence. ... As for reasoning prejudice - defined as the risk that the jury's focus will be distracted away from the charges before the court - it too can pose a problem depending on the length of the operation, the amount of time that must be spent detailing it, and any controversy as to whether a particular event or conversation occurred. ... On the other hand, the risk of prejudice can be mitigated by excluding certain pieces of particularly prejudicial evidence that are unessential to the narrative. Moreover, trial judges must bear in mind that limiting instructions to the jury may be capable of attenuating the prejudicial effect of this evidence." - See paragraphs 106 and 107.

Criminal Law - Topic 5337.1

Evidence and witnesses - Confessions and voluntary statements - Admissibility - "Mr. Big" confessions - The Supreme Court of Canada set out a two-prong test to assess the admissibility of "Mr. Big" confessions - Under the first prong, a confession was presumptively inadmissible - That presumption would be overcome if the Crown could establish that the probative value of the confession outweighed its prejudicial effect - The court stated that "In the end, trial judges must weigh the probative value and the prejudicial effect of the confession at issue and decide whether the Crown has met its burden. In practice, the potential for prejudice is a fairly constant variable in this context. Mr. Big operations are cut from the same cloth, and the concerns about prejudice are likely to be similar from case to case. As a result, trial judges will expend much of their analytical energy assessing the reliability of the confessions these operations generate. ... Determining when the probative value of a Mr. Big confession surpasses its potential for prejudice will never be an exact science. As Justice Binnie observed in [R. v. Handy (J.)(2002, SCC)] probative value and prejudicial effect are two variables which 'do not operate on the same plane' ... Probative value is concerned with 'proof of an issue', while prejudicial effect is concerned with 'the fairness of the trial' ... To be sure, there will be easy cases at the margins. But more common will be the difficult cases that fall in between. In such cases, trial judges will have to lean on their judicial experience to decide whether the value of a confession exceeds its cost. ... Despite the inexactness of the exercise, it is one for which our trial judges are well prepared. Trial judges routinely weigh the probative value and prejudicial effect of evidence. And as mentioned, they are already asked to examine the reliability of evidence in a number of different contexts, as well as the prejudicial effect of bad character evidence. They are well positioned to do the same here. Because trial judges, after assessing the evidence before them, are in the best position to weigh the probative value and prejudicial effect of the evidence, their decision to admit or exclude a Mr. Big confession will be afforded deference on appeal." - See paragraphs 108 to 110.

Criminal Law - Topic 5337.1

Evidence and witnesses - Confessions and voluntary statements - Admissibility - "Mr. Big" confessions - During a four month "Mr. Big" sting operation, undercover police officers befriended the accused and recruited him into a "criminal organization" providing him with friends, community and a lavish lifestyle - The accused made two confessions to drowning his two children which were videotaped - The trial judge admitted the confessions - A jury convicted the accused of murdering his daughters - The Supreme Court of Canada held that the trial judge erred in admitting the confessions - The circumstances cast serious doubt on the confessions' reliability - The accused was socially isolated, unemployed and living on welfare - The Mr. Big operation transformed his life, becoming its focal point - He was lifted out of poverty and promised greater financial rewards if he was admitted into the organization - At least as enticing as the financial inducements, was the promise of friendship - The accused knew that his ticket out of poverty and social isolation was at stake - One of the officer's implored him to be "honest" with Mr. Big (the "crime boss") - Mr. Big drove home the importance of honesty - When the accused denied his involvement in the death of his children, Mr. Big perfunctorily dismissed his explanation as a lie - The accused had to either confess or be deemed a liar - Those circumstances, considered as a whole, presented the accused with an overwhelming incentive to confess, either truthfully or falsely - The confessions did not contain any indicators of reliability - The accused gave inconsistent descriptions of how the crime was committed - There was no confirmatory evidence - The confessions' probative value was low - On the other hand, there was an obvious potential for prejudice which outweighed the confessions' limited probative value - It was unsafe to rest a conviction on the confessions - See paragraphs 131 to 146.

Criminal Law - Topic 5337.1

Evidence and witnesses - Confessions and voluntary statements - Admissibility - "Mr. Big" confessions - During a four month "Mr. Big" sting operation, undercover police officers (Paul and Jim) befriended the accused and recruited him into a "criminal organization" providing him with friends, community and a lavish lifestyle - During the operation, the accused allegedly made an unprompted confession to drowning his two children - The Supreme Court of Canada held that the confession was inadmissible at the accused's murder trial - The confession suffered from serious reliability concerns - It came about during a conversation in which the accused and Jim were bragging about their willingness to engage in violence - By that time, the accused was under the spell of powerful financial and social inducements - The confession came after two months and more than 30 scenarios with undercover officers, at a time when the accused had begun professing his love for Paul and Jim - Importantly, the confession lacked detail - It amounted to a bald assertion by the accused that he killed his children and that he had "planned it" - Finally, the confession was not recorded and the accused denied making it, which made it harder to assess its probative value - On the other hand, admitting the confession carried with it attendant prejudice - The confession's probative value did not outweigh its prejudicial effect - See paragraph 147.

Criminal Law - Topic 5351

Evidence and witnesses - Confessions and voluntary statements - Confessions excluded due to prejudicial effect - [See fifth, sixth, seventh and eighth Criminal Law - Topic 5337.1 ].

Cases Noticed:

R. v. White (J.K.), [1999] 2 S.C.R. 417; 240 N.R. 1; 123 B.C.A.C. 161; 201 W.A.C. 161, refd to. [paras. 45, 175].

Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; 203 N.R. 169; 182 N.B.R.(2d) 81; 463 A.P.R. 81, refd to. [para. 51].

R. v. Todd (1901), 4 C.C.C. 514 (Man. K.B.), refd to. [para. 56].

R. v. Hathway (W.G.) (2007), 292 Sask.R. 7; 2007 SKQB 48, refd to. [para. 59].

R. v. Copeland (R.E.) et al. (1999), 131 B.C.A.C. 264; 214 W.A.C. 264; 1999 BCCA 744, refd to. [para. 61].

R. v. Bates (C.W.) (2009), 468 A.R. 158; 2009 ABQB 379, refd to. [para. 62].

R. v. Evans (C.D.), [1993] 3 S.C.R. 653; 158 N.R. 278; 145 A.R. 81; 55 W.A.C. 81, refd to. [para. 63].

R. v. Osmar (T.) (2007), 220 O.A.C. 186; 84 O.R.(3d) 321; 2007 ONCA 50, leave to appeal refused [2007] 2 S.C.R. vii; 374 N.R. 396; 241 O.A.C. 397, refd to. [paras. 63, 203].

R. v. McIntyre (M.), [1994] 2 S.C.R. 480; 168 N.R. 308; 153 N.B.R.(2d) 161; 392 A.P.R. 161, affing. (1993), 135 N.B.R.(2d) 266; 344 A.P.R. 266 (C.A.), refd to. [paras. 64, 173].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1, refd to. [paras. 64, 174].

R. v. Grandinetti (C.H.), [2005] 1 S.C.R. 27; 329 N.R. 28; 363 A.R. 1; 343 W.A.C. 1; 2005 SCC 5, refd to. [paras. 64, 174].

R. v. Creek (P.W.), [1998] B.C.T.C. Uned. J07 (S.C.), refd to. [para. 65].

R. v. Oickle (R.F.), [2000] 2 S.C.R. 3; 259 N.R. 227; 187 N.S.R.(2d) 201; 585 A.P.R. 201; 2000 SCC 38, refd to. [paras. 69, 175].

R. v. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201; 2002 SCC 56, refd to. [para. 73].

R. v. M.C.H., [1998] 2 S.C.R. 449; 230 N.R. 1; 113 O.A.C. 97, refd to. [paras. 79, 174].

R. v. Hodgson - see R. v. M.C.H.

R. v. Harrer (H.M.), [1995] 3 S.C.R. 562; 186 N.R. 329; 64 B.C.A.C. 161; 105 W.A.C. 161, refd to. [paras. 88, 189].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 94].

R. v. McIntyre, 1993 CanLII 1488 (Ont. C.A.), refd to. [para. 95].

R. v. Abbey (W.N.) (2009), 254 O.A.C. 9; 97 O.R.(3d) 330; 2009 ONCA 624, refd to. [para. 96].

R. v. Humaid (A.A.) (2006), 210 O.A.C. 68; 81 O.R.(3d) 456 (C.A.), refd to. [para. 97].

R. v. Blackman (L.), [2008] 2 S.C.R. 298; 376 N.R. 265; 239 O.A.C. 368; 2008 SCC 37, refd to. [para. 97].

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338; 2006 SCC 57, refd to. [paras. 100, 202].

R. v. Bonisteel (R.) (2008), 259 B.C.A.C. 114; 436 W.A.C. 114; 2008 BCCA 344, refd to. [paras. 106, 203, footnote 8].

R. v. Mack, [1988] 2 S.C.R. 903; 90 N.R. 173, refd to. [paras. 112, 213].

R. v. Babos (A.) (2014), 454 N.R. 86; 2014 SCC 16, refd to. [paras. 113, 237].

R. v. Fliss (P.W.), [2002] 1 S.C.R. 535; 283 N.R. 120; 163 B.C.A.C. 1; 267 W.A.C. 1; 2002 SCC 16, refd to. [para. 114].

R. v. Singh (N.) (2013), 313 O.A.C. 248; 118 O.R.(3d) 253; 2013 ONCA 750, refd to. [para. 116].

Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580, Peterson and Alexander, [1986] 2 S.C.R. 573; 71 N.R. 83, refd to. [para. 121].

R. v. Rothman, [1981] 1 S.C.R. 640; 35 N.R. 485, refd to. [paras. 122, 193].

R. v. Jones (S.), [1994] 2 S.C.R. 229; 166 N.R. 321; 43 B.C.A.C. 241; 69 W.A.C. 241, refd to. [paras. 123, 175].

R. v. R.J.S., [1995] 1 S.C.R. 451; 177 N.R. 81; 78 O.A.C. 161, refd to. [paras. 123, 197 footnote 9].

British Columbia Securities Commission v. Branch and Levitt, [1995] 2 S.C.R. 3; 180 N.R. 241; 60 B.C.A.C. 1; 99 W.A.C. 1, refd to. [para. 123, footnote 9].

R. v. M.B.P., [1994] 1 S.C.R. 555; 165 N.R. 321; 70 O.A.C. 161, refd to. [para. 177].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 178].

Thomson Newspapers Ltd. v. Director of Investigation and Research, Combines Investigation Act et al., [1990] 1 S.C.R. 425; 106 N.R. 161; 39 O.A.C. 161, refd to. [para. 178].

R. v. Youvarajah (Y.), [2013] 2 S.C.R. 720; 447 N.R. 47; 308 O.A.C. 284; 2013 SCC 41, refd to. [para. 202].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 237].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122, refd to. [para. 239].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 241].

Authors and Works Noticed:

Dawson, Wendy E., The Use of "Mr. Big" in Undercover Operations, in Criminal Law: Special Issues, Continuing Legal Education Society of British Columbia, Paper 5.2 (2011), p. 5.2.44 [para. 93, footnote 6].

Garrett, Brandon L., The Substance of False Confessions (2010), 62 Stan. L. Rev. 1051, p. 1064 [para. 103].

Gilbert, Geoffrey, The Law of Evidence (1769), generally [para. 196].

Herman, Lawrence, The Unexplored Relationship Between the Privilege Against Compulsory Self-Incrimination and the Involuntary Confession Rule (Part 1) (1992), 53 Ohio St. L.J. 101, p. 153 [para. 196].

Kassin, Saul, Drizin, Steven, Grisso, Thomas, Gudjonsson, Gisli, Leo, Richard, and Redlich, Allison, Police-Induced Confessions: Risk Factors and Recommendations (2010), 34 Law & Hum. Behav. 3, pp. 14, 15 [para. 69]; 24 [para. 201].

Keenan, Kouri T., and Brockman, Joan, Mr. Big: Exposing Undercover Investigations in Canada (2010), pp. 19 [para. 57]; 20 [para. 58].

Martin, G.A., The Admissibility of Confessions and Statements (1963), 5 Crim. L.Q. 35, p. 35 [para. 70].

Moore, Timothy E., Copeland, Peter, and Schuller, Regoma A., Deceit, Betrayal and the Search for Truth: Legal and Psychological Perspectives on the "Mr. Big" Strategy (2009), 55 Crim. L.Q. 348, pp. 351, 352 [para. 57]; 356, 357 [para. 59].

Paciocco, David M., and Stuesser, Lee, The Law of Evidence (6th Ed. 2011), p. 38 [paras. 95, 98].

Paciocco, David M., Charter Tracks: Twenty-Five Years of Constitutional Influence on the Criminal Trial Process and Rules of Evidence (2008), 40 S.C.L.R.(2d) 309, p. 311 [para. 121].

Stewart, Hamish, Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms (2012), pp. 8, 9 [para. 178].

Wigmore on Evidence (3rd Ed. McNaughton Rev. 1961), p. 318, § 2251 [para. 197].

Counsel:

Frances J. Knickle, Q.C., and Elaine Reid, for the appellant;

Jamie Merrigan and Robby D. Ash, for the respondent;

James C. Martin and Natasha A. Thiessen, for the intervener, the Director of Public Prosecutions of Canada;

Michael Bernstein, for the intervener, the Attorney General of Ontario;

Pierre L. Bienvenue, for the intervener, Directeur des poursuites criminelles et pénales du Québec;

Lesley A. Ruzicka, for the intervener, the Attorney General of British Columbia;

Russell Silverstein and Michael Dineen, for the intervener, the Association in Defence of the Wrongly Convicted;

Michael Sobkin, for the intervener, the British Columbia Civil Liberties Association;

Philip Campbell and Jonathan Dawe, for the intervener, the Criminal Lawyers' Association of Ontario;

François Dadour and Harout Haladjian, for the intervener, Association des avocats de la défense de Montréal;

Marie Henein and Matthew Gourlay, for the amicus curiae;

Written submissions only by Frank Addario and Megan Savard, for the intervener the Canadian Civil Liberties Association.

Solicitors of Record:

Attorney General of Newfoundland and Labrador, St. John's, Newfoundland and Labrador, for the appellant;

Poole Althouse, Corner Brook, Newfoundland and Labrador, for the respondent;

Public Prosecution Service of Canada, Halifax, Nova Scotia, for the intervener, the Director of Public Prosecutions of Canada;

Attorney General of Ontario, Toronto, Ontario, for the intervener, the Attorney General of Ontario;

Directeur des poursuites criminelles et pénales du Québec, Quebec, Quebec, for the intervener, Directeur des poursuites criminelles et pénales du Québec;

Attorney General of British Columbia, Victoria, British Columbia, for the intervener, the Attorney General of British Columbia;

Russell Silverstein & Associate, Toronto, Ontario, for the intervener, the Association in Defence of the Wrongly Convicted;

Sugden, McFee & Roos, Vancouver, British Columbia; Michael Sobkin, Ottawa, Ontario, for the intervener, the British Columbia Civil Liberties Association;

Lockyer Campbell Posner, Toronto, Ontario, for the intervener, the Criminal Lawyers' Association of Ontario;

Poupart, Dadour, Touma et Associés, Montreal, Quebec, for the intervener, Association des avocats de la défense de Montréal;

Henein Hutchison, Toronto, Ontario, appointed by the Court as amicus curiae;

Addario Law Group, Toronto, Ontario, for the intervener, the Canadian Civil Liberties Association.

This appeal was heard on December 3, 2013, by McLachlin, C.J.C., LeBel, Abella, Cromwell, Moldaver, Karakatsanis and Wagner, JJ., of the Supreme Court of Canada. The decision of the court was released in both official languages on July 31, 2014, with the following opinions:

Moldaver, J. (McLachlin, C.J.C., and LeBel, Abella, Moldaver and Wagner, JJ., concurring) - see paragraphs 1 to 151;

Cromwell, J. - see paragraphs 152 to 163;

Karakatsanis, J. - see paragraphs 164 to 243.