On appeal from the judgment of the Court of Appeal for Alberta, 2012 ABCA 42, 66 Alta. L.R. (5th) 377, affirming the accused’s conviction for first degree-murder. After a murder victim was reported missing, the police received information that his roommate M had confessed to killing him and initiated an investigation. The investigation had two components: a Mr. Big operation and a wiretap authorization to intercept M’s phone calls. During the Mr. Big operation, M twice admitted to undercover police officers that he shot the victim and burned his body. That information led police to conduct a search of a fire pit where they located fragments of bones and teeth later identified as belonging to the victim, and shell casings later determined to have been fired from a gun seized from M’s apartment. M was arrested and charged with first degree murder. At the time of M’s arrest, the Mr. Big operation had been in progress for four months and M had participated in 30 “scenarios” with undercover officers. He had been paid approximately $5,000 for his work, plus expenses. At trial, the Crown conceded that its wiretap authorization did not comply with the Criminal Code and therefore, violated s. 8 of theCharter. As a result of this violation, the Crown did not adduce any of M’s calls, but did adduce his two confessions to the undercover police officers during the Mr. Big operation. However, M argued that the wiretap authorization was so intertwined with the Mr. Big operation that the illegality of the authorization necessitated excluding his confessions under s. 24(2) of the Charter. The trial judge rejected this argument and determined that s. 24(2) was not engaged. The trial judge provided instructions to the jury in relation to the evidence arising from the Mr. Big operation. He also cautioned the jury about the testimony of the Crown’s principal witness and provided a Vetrovec warning in relation to his evidence. The jury found M guilty of first degree murder and his appeal from conviction was dismissed by the Court of Appeal.
HELD (7:0): that the appeal be dismissed.
Section 24(2) of the Charter was not engaged because M’s confessions to the undercover officers were not obtained in a manner that infringed M’s rights. Whether evidence was obtained in a manner that infringed an accused’s rights depends on the nature of the connection between the infringement and the evidence obtained. While a causal connection is not required, the nature and extent of the connection remains an important factor for the trial judge’s consideration. In this case, M confessed to the undercover officers while the illegal wiretap was in place. Although the trial judge found a temporal connection between M’s confessions and the wiretap, its significance was undermined by a tenuous causal connection. That finding was open to the trial judge and there is no basis for interfering with it.
Neither the courts below nor the parties had the benefit of this Court’s decision in R. v. Hart, 2014 SCC 52, under which framework a Mr. Big confession will be excluded where its prejudicial effect outweighs its probative value, or where it is the product of an abuse of process. This poses no difficulty, however, as M’s confessions would clearly be admissible under that framework.
The probative value of M’s confessions was high because there was an abundance of evidence that was potentially confirmatory. First, M’s purported confessions to his acquaintances A and L describe the same motive for killing the victim as M’s confessions to the undercover officers. They also made reference to burning the victim’s body. Second, immediately after confessing to one of the undercover officers, M led him to the fire pit in which the victim’s remains lay undiscovered. And third, shell casings fired from a gun found in M’s apartment were found in the same fire pit. On the other hand, the confessions’ prejudicial effect was limited. The operation did not reveal unsavoury facts about M’s history, nor did M participate in any scenarios that involved violence.
Nor did the undercover officers engage in any improper conduct that could ground an application for abuse of process. M was not presented with overwhelming inducements. He had prospects for legitimate work that would have paid even more than the undercover officers were offering. Nor did the officers threaten M with violence if he would not confess. The most that can be said is that the officers created an air of intimidation by referring to violent acts committed by members of the organization. M, however, was not coerced into confessing.
While the Hart framework was intended to respond to the evidentiary concerns raised by Mr. Big confessions, it does not erase them. Rather, it falls to the trial judge to adequately instruct the jury on how to approach these confessions. The nature and extent of the instructions required will vary from case to case. However, there is some guidance — short of a prescriptive formula — that can be provided. The trial judge should tell the jury that the reliability of the accused’s confession is a question for them. The trial judge should then review with the jury the factors relevant to the confession and the evidence surrounding it. For example, the trial judge should alert the jury 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. Moreover, the trial judge should discuss the fact that the confession itself may contain markers of reliability (or unreliability). Jurors should be told to consider the level of detail in the confession, whether it led to the discovery of additional evidence, whether it identified any elements of the crime that had not been made public, or whether it accurately described mundane details of the crime the accused would not likely have known had he not committed it.
With respect to the bad character evidence, the challenge is a more familiar one. The trial judge must instruct the jury that this sort of evidence has been admitted for the limited purpose of providing context for the confession. The jury should be instructed that it cannot rely on that evidence in determining whether the accused is guilty. Moreover, the trial judge should remind the jury that the simulated criminal activity was fabricated and encouraged by agents of the state.
In this case, the trial judge instructed the jury adequately and no error has been shown. The trial judge told the jury that it had to “carefully consider whether the themes of violence and the level of inducements may reasonably have compromised the reliability” of M’s confessions. He specifically instructed the jury that it had to “assess the environment, the themes of easy money, violence, the importance of honesty and integrity, any offers of exit points, and any threats or intimidation”. Ultimately, the trial judge left the final assessment of the reliability of M’s confessions to the jury. With respect to the bad character evidence, although the trial judge did not address it specifically, he provided the jury with a standard limiting instruction on the use that could be made of any evidence that bore on M’s character. Undoubtedly, the trial judge could have said more, but this does not mean his instructions were deficient.
Finally, the trial judge conveyed to the jury the reliability concerns with the evidence of A, the Crown’s principal witness. He reminded the jury that the defence position was that A was the killer. He told them that M’s knowledge of the murder could have come from A. He brought up A’s apparent lie to the police and cautioned the jury that it left open the question of whether they could rely on anything he said. And he told the jury that it would be dangerous to accept A’s evidence in the absence of confirmatory evidence. Nothing more was required.
Reasons for judgment by Moldaver J. Neutral citation: 2014 SCC 58. No. 35093.