SUPREME COURT OF NOVA SCOTIA Citation: R. v. Derbyshire, 2014 NSSC 371

Date: 20141015 Docket: Halifax, No. 413042

Registry: Halifax

Between: Her Majesty the Queen

v.

Brittany Leigh Derbyshire

DECISION ON VOIR DIRE

Restriction on Publication: s.486.5(1) of the Criminal Code

Editorial Notice: Identifying information has been removed from this electronic version of the judgment.

Judge: The Honourable Justice Michael J. Wood

Heard: June 23-27, July 25 and October 1, 2014, in Halifax, Nova Scotia

Final Written Submissions:

September 22, 2014

Counsel: Susan Bour and Alicia Kennedy, for the Crown Patrick K. MacEwen, for the Defendant

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By the Court:

[1] On the morning of July 14, 2011 two undercover RCMP officers confronted Brittany Leigh Derbyshire in the parking garage of her apartment building. They were posing as members of an outlaw motorcycle gang from Montreal and were looking to obtain information about the murder of Stacey Adams which had taken place in Lake Echo, Nova Scotia on April 10, 2011. Ms. Derbyshire provided the officers with information concerning the events of that date, including her activities and the location of physical evidence potentially related to the murder. On July 22, 2011 Ms. Derbyshire was charged with being an accessory after the fact to the murder of Mr. Adams contrary to s.240 of the Criminal Code.

[2] Ms. Derbyshire has made an application for the exclusion of evidence obtained from her by the undercover police officers alleging an infringement of her right to silence and right against self-incrimination under s.7 of the Canadian Charter of Rights and Freedoms. Alternatively, she seeks exclusion of the evidence or a stay of proceedings on the basis that the police actions amount to an abuse of process.

[3] Ms. Derbyshire’s applications were heard at a voir dire held on June 23 – 27, July 25, and October 1, 2014. As part of the hearing there was testimony from Ms. Derbyshire as well as five police witnesses including the two undercover officers.

[4] This is my decision with respect to Ms. Derbyshire’s applications.

[5] Much of the evidence given by the police officers was hearsay which would not be admissible for its truth. It was adduced to explain the investigative decisions and, in particular, the nature of the undercover operation which was undertaken. I agree with Crown counsel that this evidence is admissible for that limited purpose. To the extent that I discuss the circumstances of Mr. Adams’ murder and the subsequent events which took place on April 10, 2011 I am only doing so to provide context for the undercover operation which took place on July 14, 2011. My description of events may be different than the facts established by the evidence presented in any trials resulting from Mr. Adams’ death.

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Background

[6] Stacey Adams’ body was found by police in Lake Echo on April 10, 2011 as a result of a 911 call. He had apparently been shot multiple times. Although the police identified several people who they believed had material information concerning the murder, they received very little initial cooperation from potential witnesses. Based upon information obtained from a number of sources, the police came to the conclusion that Mr. Adams had been shot by Steven Skinner. Mr. Skinner was well known to the police and had a lengthy criminal record. In April 2011 he was prohibited from being in Nova Scotia by court order.

[7] As the investigation unfolded, the police formed the opinion that Mr. Skinner had flown from the Moncton airport to British Columbia late in the day on April 10, 2011. The next day he flew to Mexico with a return ticket for the following week. He did not travel back to Canada on that ticket.

[8] By June 2011 the investigation had generated sufficient information for the police to charge Mr. Skinner with the murder of Mr. Adams. They were also fairly certain he had been driven to the Moncton airport on April 10 by Ms. Derbyshire.

[9] On May 27, 2011the police obtained an authorization and a general warrant pursuant ss.185, 186 and 487.01 of the Criminal Code. The authorization permitted interception and recording of the communications of a number of people including Ms. Derbyshire and Mr. Skinner. There were various locations listed where interceptions could take place, including the residence and motor vehicle of Ms. Derbyshire. There was a catch-all provision permitting interception at other places when there were reasonable grounds to believe they were, or would be, used by any of the listed persons.

[10] Pursuant to the terms of the authorization, arrangements were made to intercept telephone communications of Ms. Derbyshire. The authorization expired 60 days after May 27, 2011.

Lead up to the Undercover Operation

[11] Detective Constable Steven Langille of Halifax Regional Police Service was the lead investigator in the Adams homicide. He testified that the authorization issued on May 27, 2011 was not initially successful in obtaining useful evidence. He decided to request authority to include an undercover component in the investigation. His objective was to make contact with one or more of the people

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identified in the authorization for purposes of stimulating conversations which could then be intercepted. Detective Constable Langille’s prior experience in undercover operations was limited and involved street level drug transactions.

[12] In this case, the undercover operation was to be carried out by the RCMP. Detective Constable Langille prepared a document entitled “Investigational Planning and Report” which was also referred to as “Form 2350”. The purpose of the document was to set out the parameters of the proposed undercover operation so that a decision could be made with respect to whether it should be authorized. It included a general description of the Adams’ homicide and identified Ms. Derbyshire as a potential accessory after the fact. The plan suggested that the scenario to be used should involve members of an outlaw motorcycle gang who were being adversely affected by the fallout from the murder. By contacting the targets (which included Ms. Derbyshire) it was hoped that communications would result and be intercepted pursuant to the existing authorization.

[13] The request for an undercover operation was approved and Sergeant David Chubbs of the RCMP was designated as the cover officer. It was his responsibility to design the specific undercover scenario and direct the operation. He has been a cover officer, as well as an undercover operator, since 2000. He estimated that he had been involved in approximately 80 operations in various capacities. As the cover officer Sergeant Chubbs indicated that it was his responsibility to provide liaison between the investigator and the undercover team. The cover officer determines the nature and extent of the information which will be provided to the operators.

[14] Sergeant Chubbs said that in designing an undercover scenario he does not want the target to be afraid. He tries to create a situation of trust and an atmosphere where the target will want to talk. He believes they are more likely to speak openly when they are not frightened.

[15] After discussions between Sergeant Chubbs and the investigators it was decided that Ms. Derbyshire would be the target. It was not to be an ongoing operation but rather a one-shot scenario. Sergeant Chubbs wanted to develop a cover story that would be believable and require immediate attention. He decided that it would involve representatives from a criminal organization in Montreal who had business dealings with Mr. Skinner and his associates which were being adversely affected by the police attention arising from Mr. Adams’ homicide. Sergeant Chubbs identified Corporal P. I. of the RCMP as his preferred choice for

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the operation. He described him as a flamboyant Québécois who was very experienced and who would be able to present as a very credible gangster. The operation was scheduled around Corporal I.’s availability.

[16] On July 13, 2011 Corporal I. and RCMP Sergeant D. P. arrived in Halifax. Corporal I. has been a member of the RCMP since 1998 and had worked fulltime as an undercover officer in Quebec between 2004 and 2011. During that period he performed the role of an operator as well as a cover officer. His undercover experience related only to major crimes such as murder, arson, armed robbery and national security. Sergeant P. has been a member of the RCMP for 33 years and been involved in undercover work for 28 years. He estimated that he had participated in approximately 100 operations. Both officers had experience playing the role of a member in a criminal organization and, in particular, outlaw motorcycle gangs.

[17] After arriving in Halifax, Corporal I. and Sergeant P. were given a briefing by Sergeant Chubbs about the operation. Detective Constable Langille was also in attendance. They were told this was a one-time chance to approach Ms. Derbyshire. They were told to do so in a public place where she would have the option of walking away if she wished. They were told, generally, about the circumstances of the Adams’ homicide and the police belief that Ms. Derbyshire drove him to the airport in Moncton on April 10.

[18] I. and P. knew they would be playing members of an outlaw motorcycle gang from Quebec who had been sent to Nova Scotia because of the Adams’ murder. The message to be delivered was that their business was being adversely affected by the murder and the attention which it had attracted. They were sent to make sure there were no loose ends and to “clean up” the mistake. They were instructed to try and get Ms. Derbyshire to talk about her role in the murder and subsequent events. She would be asked to carry out a re-enactment and provide information about physical evidence. At this point no murder weapon had been found.

[19] The scenario outline prepared by Sergeant Chubbs was entered as Exhibit 16. Although a copy was not given to I. and P. prior to the operation, the information in it was. In that document the stated objective was:

To determine what knowledge and involvement Brittany Derbyshire had in the homicide of Stacey Adams.

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[20] The operational plan included in Exhibit 16 was as follows:

I. and P. will pose as business associates of Steven Skinner from the Montreal area. They were sent down to Halifax to deal with the recent homicide of Adams and that a witness to that homicide has come forward and cooperated with the police. Derbyshire will be approached outside her residence by the operators and questioned about her knowledge and involvement in this homicide. The operators will ask Derbyshire to show them where any evidence maybe (sic) hidden or destroyed.

[21] This is consistent with the recollection of both I. and P. who say they were told to confront Ms. Derbyshire and obtain as much information as possible about her participation in the Adams murder. Corporal I. said his main objective was to obtain admissible evidence.

[22] It was clear from the evidence of Langille, Chubbs, I. and P. that the investigation team has very little role to play in the actual undercover operation. Once approved, the design of the scenario and its execution in the field is the responsibility of the undercover team. The cover officer has overall responsibility for design of the scenario and delivery of instructions to the operators.

[23] When Detective Constable Langille decided to request an undercover operation his stated goal was to stimulate activity which might be captured by the Part VI authorization which was in place. He hoped these intercepted communications would lead him to Steven Skinner so that he could be arrested and put on trial for Mr. Adams’ murder. By the time Corporal I. and Sergeant P. were put in the field under Sergeant Chubbs’ direction the purpose of the operation appears to have shifted. I. and P. were to pose as gangsters from Montreal who were to accost Ms. Derbyshire and try to obtain statements from her concerning the homicide and, in particular, her role in it. I. and P. were told this was a one-time chance for them to get this information from Ms. Derbyshire.

The Undercover Operation of July 14, 2011

[24] The undercover operation began on the morning of July 14, 2011. Corporal I. and Sergeant P. wore clothing which was of a style typical of that worn by members of outlaw motorcycle gangs, including chains and other jewellery. A final briefing took place with Sergeant Chubbs and they were provided with their vehicle – a rented black Suburban with tinted windows. The plan was to contact Ms. Derbyshire at her residence, which was an apartment in Lower Sackville, Nova Scotia. A police surveillance team was sent out to locate Ms. Derbyshire. I.

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and P. parked their vehicle outside the entrance to the underground parking at Ms. Derbyshire’s apartment building. Ms. Derbyshire had spent the night at a friend’s place in Bedford. She left to go home around 10:00 a.m. in her 2007 Toyota Yaris which is a two-door hatchback model. She was located by the surveillance team who informed the undercover officers that she was travelling.

[25] When Ms. Derbyshire arrived at her apartment building she swiped her access key to open the garage door and drove in. She noticed the Suburban with two men in it parked outside the entrance. Once I. and P. saw Ms. Derbyshire’s car enter the building they got out of the Suburban and walked through the open door. The garage was relatively dimly lit.

[26] Ms. Derbyshire got out of her car and noticed these two large men walking towards her quickly. Corporal I. testified that he was ahead of Sergeant P.. He was walking quickly and with a purpose. He described his approach as aggressive. As he neared Ms. Derbyshire he pointed at her and shook his hand. He raised his voice and said “Brittany, jump in the fucking car. I need to fucking talk to you.”

[27] Ms. Derbyshire got in the driver’s seat and Corporal I. sat in the front passenger seat. Sergeant P. stood directly outside the driver’s door so that it could not be opened. There was some question as to whether the driver’s door window was open. Ms. Derbyshire said it was up and both police officers said it was down.

[28] Once in the car Corporal I. said he continued to be aggressive in nature. He spoke in a raised voice, stared at Ms. Derbyshire and shook his finger at her. He described his tone as “very, very direct”. In accordance with the scenario designed by Sergeant Chubbs he said they were sent by people whose business was hurt by the murder and that they were there to clean things up. He told Ms. Derbyshire, “Don’t fucking bullshit me. Don’t fucking lie to me. I want to know what happened”.

[29] Corporal I. testified that Ms. Derbyshire agreed with him that business had been hurt by the murder and said she was willing to help them out. I. was very surprised by her response.

[30] Ms. Derbyshire testified that when she was approached by I. and P. she was very scared. She said they looked like “serious people” or “gangsters” based upon their demeanour and dress. She was told by the man in her car that his business in Montreal was affected by the murder. He told her that he knew she was involved and had driven Skinner out of Nova Scotia. He said he wanted to deal with the

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mess. He was there to deal with the “rat” who had been talking to the police. Ms. Derbyshire said she was terrified of what might happen to her if she did not provide the information the men were looking for.

[31] Within a few minutes of getting in the car Ms. Derbyshire had provided significant information concerning the Adams’ murder and her involvement. She said she was aware of some evidence in Moncton and Fall River. She drew two rough maps on pages from the daytimer which she had in her car. This was done at the suggestion of Corporal I..

[32] There were some discrepancies in the witnesses’ descriptions of what happened in Ms. Derbyshire’s car. She says Corporal I. remained serious and aggressive throughout and she tried to appear calm because she did not want to let him know that she was terrified. She tried to be friendly and nice although it did not change how she was treated. She testified that once she told them about the location of the evidence in Moncton and drew the rough map, Corporal I. said that she was going to Moncton with them to show them the location.

[33] Corporal I. said that once they were in the car and he had explained why they were there Ms. Derbyshire became relaxed and cooperative to the point where she volunteered to take them to Moncton.

[34] Sergeant P. said Ms. Derbyshire seemed normal and not too nervous. He heard Corporal I. suggest that Ms. Derbyshire take them to Moncton and said Ms. Derbyshire agreed to do so.

[35] Sergeant Chubbs maintained contact with the undercover officers throughout the operation by text and telephone. He kept a timeline of events which indicated that at 10:56 a.m. Ms. Derbyshire arrived by car at her apartment and by 11:12 a.m. she and the undercover officers were in the Suburban heading to Moncton. It is clear from this that the interaction in the garage was very brief. In these circumstances I accept Ms. Derbyshire’s testimony that she did not immediately volunteer to take these strange and threatening men to Moncton to show them where evidence had been disposed of. I believe that Corporal I. told her to take them to Moncton. This is confirmed by Sergeant P.’s recollection of the events.

[36] There were many consistencies in the evidence of Derbyshire, I. and P. concerning the trip to Moncton and back. There were stops at Tim Horton’s, service stations and a restaurant in Moncton. Ms. Derbyshire pointed out two locations where evidence had been disposed of. During the course of the trip there

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were further discussions about the Adams’ murder which may have provided some additional details, but the essential evidence concerning Ms. Derbyshire’s involvement had been disclosed by her when she was first questioned by Corporal I. in the parking garage. There were also conversations unrelated to the Adams’ murder. Ms. Derbyshire shared some personal information concerning her family and employment with Corporal I..

[37] Although Ms. Derbyshire was allowed to keep her telephone, she was not permitted to send or receive text messages without showing them to Corporal I.. He sat beside her in the back seat of the Suburban.

[38] Ms. Derbyshire testified that, although she was very nervous, she did not want to give any indication of this. She answered any questions asked by Corporal I. because she wanted to help him clean up the mess. She did not want him to think that she was part of the problem. When they were returning from Moncton he began to ask questions about her family and she became afraid that they might be hurt.

[39] They arrived back at Ms. Derbyshire’s apartment around 6:30 p.m. Corporal I. asked whether she still had the clothes she wore on April 10 and she offered to go up to her apartment and retrieve them. Corporal I. said “no” that they would go up with her. Ms. Derbyshire said the two undercover officers were looking at pictures of her family and friends in her apartment. This made her nervous. Corporal I. was described by Ms. Derbyshire as “super aggressive”. He said he hoped she had told them everything so he did not have to come back and deal with her.

[40] Corporal I. testified that once Ms. Derbyshire started to cooperate he changed his tone and began to conduct a “normal police interview”. Three times during the trip he asked her if she was afraid and she said that she was not. His reason for doing so was that he wanted to make sure everything she said was voluntary because she was in a situation where people might feel frightened.

[41] Corporal I. said that he was in charge throughout the trip and as they approached Ms. Derbyshire’s apartment he became aggressive again to remind her that he was the boss. He raised his voice and said “Don’t fucking talk to anybody – I am the only guy you can trust”.

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[42] When they got to Ms. Derbyshire’s apartment building Corporal I. said he ordered her to get the clothes she had been wearing that day. They followed her upstairs to her apartment. He told her to call him the next day.

[43] According to Sergeant P. Ms. Derbyshire appeared to have a normal demeanour during the trip to Moncton and back. They had general conversations and told a few jokes. Corporal I. raised his voice several times when he told Ms. Derbyshire not to lie to him. He recalled going into Ms. Derbyshire’s apartment when she got her clothes for them. He did not remember her being left with any instructions to call the next day. They left the apartment at 6:34 p.m.

[44] After leaving Ms. Derbyshire’s apartment I. and P. went to a debriefing with Sergeant Chubbs and Detective Constable Langille. At that time the two undercover officers gave their recollection of the day’s events. Detective Constable Langille was surprised and excited by how well things had gone.

[45] The debriefing lasted 40 minutes following which Corporal I. and Sergeant P. sat down separately to prepare their notes about the day’s events. They started doing so at approximately 10:00 p.m.

[46] As a result of the successful operation it was decided the undercover officers should try to reconnect with Ms. Derbyshire and obtain a recorded statement from her. Although Ms. Derbyshire spoke with Corporal I. by telephone on July 15, no further meeting took place and no recorded statement was ever obtained.

Positions of the Parties

Defence

[47] Ms. Derbyshire alleges that her statements to the undercover officers and the physical evidence obtained as a result of those statements are inadmissible on the basis that her rights under s.7 of the Canadian Charter of Rights and Freedoms were breached.

[48] The two s.7 rights relied upon by Ms. Derbyshire are the right against self-incrimination and the right to make full answer and defence. She says the behaviour of Corporal I. and Sergeant P. amounted to a functional detention of her and therefore any statements which she gave infringed her right to silence and her right against self-incrimination. The right to make full answer and defence was allegedly breached by the failure to record her interaction with the undercover

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officers. She argues that the police had the authority and the ability to record the discussions which took place during the undercover operation either by audio or video recording. Without such a recording, Ms. Derbyshire claims she is unable to properly defend herself since crucial details of the evidence have been lost.

[49] If a breach of Ms. Derbyshire’s s.7 rights is established the Court must still determine whether her statements and evidence should be excluded under s.24(2) of the Charter. Ms. Derbyshire argues that when the Court carries out the required analysis it will result in the exclusion of this evidence.

[50] Ms. Derbyshire also submits that the undercover operation was an abuse of process because of the failure to record the events and the manner in which her statements were obtained. She says the threats, intimidation and confinement by Corporal I. and Sergeant P. are the type of egregious police conduct which should result in a finding of abuse of process. If the Court agrees, Ms. Derbyshire submits that the appropriate remedy is a stay of proceedings or, alternatively, exclusion of her statements and resulting evidence.

Crown

[51] The position of the Crown is that the right to silence recognized in s.7 of the Charter is not triggered unless the person knows that they have been detained by the police. Since Ms. Derbyshire did not know the undercover operators were police officers the s.7 right to silence never arises.

[52] The Crown says there is no obligation for all undercover operations to be recorded. In this case they say the possibility of Ms. Derbyshire providing detailed statements about her involvement in the Adams homicide was unexpected and devoting the necessary resources to arrange for recording the operation was not warranted. The Crown argues that the authorities relied upon by Ms. Derbyshire involve situations where police lose evidence which was known to exist or fail to record portions of statements given by persons in custody. They submit that these cases have no application to the undercover operation involving Ms. Derbyshire.

[53] On the issue of abuse of process, the Crown says that undercover operations are, by their nature, somewhat unsavoury because of the scenarios being portrayed. Courts have long recognized that police should be given considerable latitude in how they conduct investigations, particularly into serious crimes such as murder. The Crown says the undercover operation was carried out by experienced officers

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and does not amount to the type of behaviour which would call into question the integrity of the judicial process and justify a finding of abuse of process.

Analysis

Application of R. v. Hart 2014 SCC 52

[54] On July 31, 2014 the Supreme Court of Canada issued its decision in R. v. Hart. I invited counsel to provide supplemental submissions on the application of that decision and they did so. Additional oral submissions took place on October 1, 2014. In addition to Hart , counsel discussed the companion case of R. v. Mack 2014 SCC 58.

[55] The circumstances giving rise to Hart are quite different than those in the present case, although both were undercover police operations. In Hart the police used a technique referred to as “Mr. Big” in which the target is brought into a fictitious criminal organization and is put in a position where a confession to the crime under investigation is sought as a condition of continuing membership in, or admission to, the organization. These operations frequently extend over many months and involve a significant number of undercover operators.

[56] In response to the acknowledged dangers of unreliable confessions and wrongful convictions arising out of “Mr. Big” operations the Supreme Court of Canada established a new rule of evidence which makes such confessions presumptively inadmissible. The burden rests on the Crown to show that the probative value of the confession outweighs its prejudicial effect. The probative value analysis is primarily an assessment of the reliability of the confession. The less reliable it is the less probative value it will have.

[57] Counsel for Ms. Derbyshire asks the Court to extend the reasoning of the Supreme Court to the scenario used in this case. In my view, the risks associated with “Mr. Big” operations, as described in Hart, are unique and not obviously applicable to other undercover activities. There is nothing in the decision which suggests that the Court’s solution to the problem before them should be given broader application.

[58] Ms. Derbyshire was not the subject of a “Mr. Big” undercover operation and as a result the new rule of evidence, which places the onus of admissibility on the Crown, does not apply. Despite this, I believe there are aspects of the Supreme Court’s analysis which are of assistance.

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[59] In his majority decision Justice Moldaver described the issues associated with the judicial scrutiny of police undercover operations as follows:

78 Finally, Mr. Big operations create a risk that the police will resort to unacceptable tactics in their pursuit of a confession. As mentioned, in conducting these operations, undercover officers often cultivate an aura of violence in order to stress the importance of trust and loyalty within the organization. This can involve – as it did in this case – threats or acts of violence perpetrated in the presence of the accused. In these circumstances, it is easy to see a risk that the police will go too far, resorting to tactics which may impact on the reliability of a confession, or in some instances amount to an abuse of process.

79 At present, however, these operations are conducted in a legal vacuum. The legal protections afforded to accused persons, which are often intended at least in part to place limits on the conduct of the police in their investigation and interrogation of accused people, have no application to Mr. Big operations. The confessions rule, for example, is intended not only to guard against the risk of unreliable confessions, but also to prevent abusive state conduct (see R. v. Hodgson, [1998] 2 S.C.R. 449, at para. 20). Yet its protection does not apply because the accused does not know the person he is speaking to is a person in authority. Other protections -- like the right to counsel under s. 10(b) of the Charter – are rendered inapplicable because the accused is not "det[ained]" by the police while the operation is ongoing. And the doctrine of abuse of process – intended to protect against abusive state conduct – appears to be somewhat of a paper tiger. To date, it has never operated to exclude a Mr. Big confession, nor has it ever led to the stay of charges arising from one of these operations.

80 In my view, the lack of an effective mechanism for monitoring the conduct of the undercover officers who engage in these operations is problematic. The law must enable trial judges to respond effectively to police misconduct in this context.

[60] Justice Moldaver went on to summarize his proposed solution at para.84:

In this section, I propose a solution that, in my view, strikes the best balance between guarding against the dangers posed by Mr. Big operations, while ensuring the police have the tools they need to investigate serious crime. This solution involves a two-pronged approach that (1) recognizes a new common law rule of evidence, and (2) relies on a more robust conception of the doctrine of abuse of process to deal with the problem of police misconduct.

[61] There are two aspects of the Hart decision which are relevant to Ms. Derbyshire’s case. The first is the unwillingness of the Court to extend Charter

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rights, including the s.7 right against self-incrimination, to undercover police operations. Both the majority of the Newfoundland Court of Appeal and Justice Karakatsanis would have applied s.7 rights to Mr. Hart, however the majority of the Supreme Court was not prepared to do so. Part of the court’s rationale was the availability of the common law doctrine of abuse of process to deal with allegations of police misconduct.

[62] The enhanced use of the abuse of process principles to evaluate undercover police operations is the other aspect of the Hart decision which I believe has application here.

[63] I will return to the Hart decision as I consider the arguments made on behalf of Ms. Derbyshire and the Crown’s response.

Section 7 of the Charter

[64] As I have mentioned, Ms. Derbyshire argues that she was effectively detained by Corporal I. and Sergeant P. throughout her encounter with them on July 14, 2011. As a result of this detention, she says her right against self-incrimination under s.7 arises and was breached. In my view the majority of the Supreme Court in Hart has rejected the proposition that detention for purposes of s.7 can arise in an undercover police operation. In support of this conclusion I rely on the following comments found at para.64 of that case:

Attempts to extend existing legal protections to Mr. Big operations have failed. This Court has held that Mr. Big operations do not engage the right to silence because the accused is not detained by the police at the time he or she confesses (see R. v. McIntyre, [1994] 2 S.C.R. 480; R. v. Hebert, [1990] 2 S.C.R. 151). And the confessions rule – which requires the Crown to prove an accused's statement to a person in authority is "voluntary" – is inoperative because the accused does not know that Mr. Big is a police officer when he confesses (see R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27).

[65] If the Supreme Court felt that s.7 rights should be extended to targets of undercover police operations Hart would have been the perfect opportunity to do so. Although Justice Karakatsanis felt this was the proper approach she was a lone voice in dissent.

[66] I conclude that the s.7 right to silence is of no application in this case. Ms. Derbyshire’s allegations of police misconduct are left to be assessed under the doctrine of abuse of process.

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[67] Ms. Derbyshire also says that her right to make full answer and defence was compromised because of the failure to record the undercover operation. The cases relied upon in support of that proposition involves situations where evidence obtained by the police was lost (e.g. R. v. La, [1997] 2 S.C.R. 680) or the police interview of a complainant was not properly recorded without reasonable explanation (R. v. Hill 2002 NSSC 2015). None of the authorities which I have reviewed suggest that the failure to record an undercover police operation violates the right to make full answer and defence under s.7.

[68] If I were to accept Ms. Derbyshire’s proposition it would mean that every undercover operation must be audio or video recorded or else there would be a breach of the Charter. I am not prepared to go that far.

[69] The failure to record an undercover police operation may have evidentiary implications not related to strict admissibility. For example in Hart the Supreme Court observed at para.93 that the failure to record the operation may make it difficult for the Crown to meet its onus of demonstrating reliability of the “Mr. Big” confession. Similarly, reliance on police officer notes prepared hours after the fact may diminish the weight to be given to an alleged confession by a trier of fact where there is no accurate recording of that statement.

[70] For these reasons I am not satisfied that Ms. Derbyshire has established a breach of her rights under s.7 of the Charter and I will now consider whether the police conduct in this case amounts to an abuse of process.

Abuse of Process

[71] Judicial review of alleged police misconduct in undercover operations should be done through the lens of the abuse of process doctrine. This view was expressed by Justice Moldaver in Hart at para.86:

Second, I would rely on the doctrine of abuse of process to deal with the problem of police misconduct. I recognize that the doctrine has thus far proved less than effective in this context. While the problem is not an easy one, I propose to provide some guidance on how to determine if a Mr. Big operation crosses the line from skillful police work to an abuse of process.

[72] With abuse of process the focus is on the police behaviour and whether it might be considered harmful to the integrity of the justice system. The reliability of any confession obtained has little significance (para.12 R. v. Hart).

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[73] In the context of a “Mr. Big” undercover operation Justice Moldaver provided some guidance with respect to how the principles of abuse of process might be applied in assessing police conduct:

115 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.

116 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).

117 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.

118 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.

[74] With confessions to undercover police officers the use of techniques which unfairly coerce those admissions will likely lead to a finding of abuse of process. Violence and threats of violence are obvious examples. Unlike the new evidentiary

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rule, there is no logical reason to limit Justice Moldaver’s comments on abuse of process to cases involving “Mr. Big” confessions.

[75] In Hart there was no finding of abuse of process because the trial judge concluded that there was no evidence showing that Mr. Hart was subject to threats or coercion in making his confession. In fact, he was offered the opportunity to stop his involvement in the organization at any time. (Paras. 157 and 158)

[76] In Mack the accused was given the choice about whether to provide information about the murder under investigation. He was told that if he did not do so he would remain at the same level and not advance to the “first line” in the organization (Para. 11). The Supreme Court found no abuse of process for the following reasons:

36 Nor did the undercover officers engage in any improper conduct which could ground an application for abuse of process. The appellant 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 the appellant 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. But the appellant was not coerced into confessing. This much is evidenced by the appellant's initial refusal to speak with Ben and Liam about Mr. Levoir's disappearance. Indeed, the undercover officers explicitly made clear to the appellant that he did not have to speak with them about Mr. Levoir, and that he could remain in his current role within the organization. None of the undercover officers' conduct approaches abuse.

[77] Ms. Derbyshire raises the absence of an electronic recording as part of her abuse of process argument. In this case I do not believe the decision by Detective Constable Langille to forgo recording of the operation amounts to an abuse of process. Nor do I believe that an adverse inference should be drawn against the police for failure to do so. I accept that Detective Constable Langille made a good faith decision that such a recording was not necessary in the circumstances despite the fact that it was possible to do so. His objective in requesting the undercover operation was to stimulate conversations which could be intercepted under the existing authorization.

[78] In this case I have the testimony of the three participants in the operation, Ms. Derbyshire, Corporal I. and Sergeant P.. Although there are some differences

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in their recollections I am satisfied that I can make the necessary factual findings about the events of July 14 based upon their testimony. It would certainly have been preferable to have a recording of all of the discussions which took place over the seven and a half hours of the operation, but the absence of that evidence is not fatal to the Crown’s position.

[79] Corporal I. and Sergeant P. are very experienced operators who pride themselves on their ability to play their undercover roles effectively. Corporal I. testified that his objective was to accurately depict a “righteous” bad guy. By this he meant that he wanted his portrayal to be realistic.

[80] Understandably, Ms. Derbyshire completely believed that the undercover operators were gangsters from Montreal. When they approached her in the underground parking garage the officers were intimidating. They moved aggressively and Corporal I. raised his voice, pointed his finger and ordered Ms. Derbyshire into her car. Ms. Derbyshire did as she was told and found herself confined by Corporal I. in the passenger seat and Sergeant P. outside the driver’s door. These were very close quarters and Corporal I. continued to speak to her aggressively, waving his finger and demanding that she tell them about her involvement in the Adams’ homicide. She did so immediately and I am satisfied, based upon her testimony, that it was the result of fear and intimidation and not a willingness to help these “criminals” from Montreal.

[81] There is evidence from multiple sources that Steven Skinner was a violent and intimidating man. Ms. Derbyshire had known him for a number of years and was aware of his involvement in the drug trade. In cross-examination she described him as a high end gangster and an MMA fighter. It is inconceivable to me that Ms. Derbyshire would have provided information about the location of physical evidence that would link Skinner to the Adams’ murder within the first couple of minutes of her encounter with I. and P. unless she felt threatened and afraid. The Crown’s suggestion that she was being cooperative and helpful in volunteering this information is not consistent with the evidence or, in my view, common sense.

[82] Ms. Derbyshire said her defence mechanism was to stay calm and not appear to be frightened. I accept her testimony on that point. This behaviour could well be misinterpreted by the undercover officers as an indication that she was relaxed and cooperating. Since they had no prior experience with respect to her

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demeanour their opinions about whether she was frightened or not are of limited value.

[83] I think it is telling that Corporal I. testified he asked Ms. Derbyshire whether she was afraid three times during the course of the day. He said he did so because she was in a situation where people might feel frightened. Corporal I. also testified that he wanted to remain in control throughout the operation. He did so by ensuring that Ms. Derbyshire was not able to communicate with anyone using her telephone. He periodically raised his voice and told her she had better be telling the truth. She was also told not to talk to anyone other than Corporal I.. Once they obtained the original admissions from Ms. Derbyshire I believe the goal of the officers was to maintain authority over her while she re-enacted the events of April 10 and took them to places where physical evidence was located.

[84] The cover officer who designed the undercover operation, Sergeant Chubbs, and the primary operator who was in charge of execution of the plan, Corporal I., both testified about the importance of ensuring the voluntariness of admissions obtained from a target. The initial approach should be made in a public place so that the person had a choice whether to walk away. According to Chubbs and I., this was the plan for Ms. Derbyshire. Corporal I. testified about going to some lengths to determine whether Ms. Derbyshire was frightened because he wanted to ensure that her statements were voluntary. He said more than once that it was his job to obtain an admissible statement from her.

[85] By the time the undercover operation began on July 14 the primary objective of the operators was to obtain a confession from Ms. Derbyshire about her involvement in the Adams’ murder, the delivery of Mr. Skinner to Moncton and to locate any physical evidence which might exist. The scenario which was developed involved a one-shot encounter with her. As the operation unfolded on the 14th Ms. Derbyshire was not met in a public place but rather in a dimly lit parking garage. She was approached quickly and aggressively and ordered into a small confined space by people she perceived to be criminals who were very unhappy with the fallout from the Adams’ murder. She was told they were there to clean up the problem. They disclosed information to suggest they knew a lot about what had happened on April 10 and demanded that she tell them everything she knew. Corporal I. raised his voice, shook his finger at Ms. Derbyshire and said words to the effect that she “should not fucking lie” to him.

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[86] The undercover operators intended to create an intimidating and threatening environment for Ms. Derbyshire and they were successful in doing so. She said she was frightened and I have no doubt that she was. There was a very strong implied threat of physical harm to her if she did not give the “gangsters” what they were after. The fact that she gave incriminating information, implicating both herself and Mr. Skinner, in such a short period of time confirms the nature of the atmosphere which had been created.

[87] The situation faced by Ms. Derbyshire should be contrasted with those encountered by Messrs. Hart and Mack who were given clear choices about whether to confess. They were not subject to threats, intimidation or coercion.

[88] Once the confession and other information was given by Ms. Derbyshire and she was told to show the officers the physical evidence, the rest of the day unfolded as one would expect. Corporal I. intended to maintain control of the situation, and over Ms. Derbyshire, and he did so. While the tension may have diminished somewhat, that does not make Ms. Derbyshire’s subsequent actions or statements any more voluntary. Once she had disclosed the significant information concerning the Adams’ murder confirming it in subsequent discussions, or providing further details is part of one continuous transaction.

[89] I am satisfied that the actions of Corporal I. and Sergeant P. resulted in the type of unfair coercion described by Justice Moldaver in Hart. Ms. Derbyshire’s confession and identification of physical evidence was obtained by intimidation and implied threats of harm. She was never given a choice which would have permitted her to walk away without disclosure. This was an abuse of process.

[90] Having concluded that Ms. Derbyshire has established an abuse of process I must now consider what remedy should follow. She is looking for a stay of proceedings which would bring the prosecution to an end. The Supreme Court of Canada considered the test to be applied in deciding whether to grant a stay of proceedings in R. v. Babos 2014 SCC 16. It is clear from the Court’s analysis in that case that a stay of proceedings for abuse of process should rarely be granted. See for example the Court’s comments in the following passage:

30 A stay of proceedings is the most drastic remedy a criminal court can order (R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 53). It permanently halts the prosecution of an accused. In doing so, the truth-seeking function of the trial is frustrated and the public is deprived of the opportunity to

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see justice done on the merits. In many cases, alleged victims of crime are deprived of their day in court.

31 Nonetheless, this Court has recognized that there are rare occasions -- "the clearest of cases" -- when a stay of proceedings for an abuse of process will be warranted (R. v. O'Connor, [1995] 4 S.C.R. 411, at para. 68). These cases generally fall into two categories: 1) where state conduct compromises the fairness of an accused's trial (the "main" category); and 2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the "residual" category) (O'Connor, at para. 73). The impugned conduct in this case does not implicate the main category. Rather, it falls squarely within the latter category.

32 The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:

1) There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that "will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome" (Regan, at para. 54);

2) There must be no alternative remedy capable of redressing the prejudice; and

3) Where there is still uncertainty over whether a stay is warranted after steps 1) and 2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interest that society has in having a final decision on the merits" (ibid., at para. 57).

33 The test is the same for both categories because concerns regarding trial fairness and the integrity of the justice system are often linked and regularly arise in the same case. Having one test for both categories creates a coherent framework that avoids "schizophrenia" in the law (O'Connor, at para. 71). But while the framework is the same for both categories, the test may -- and often will -- play out differently depending on whether the "main" or "residual" category is invoked.

[91] In this case there is no suggestion that trial fairness has been undermined and so it is the residual category of abuse that must be invoked. On that issue the Supreme Court described the inquiry in these terms:

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35 By contrast, when the residual category is invoked, the question is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution of offences. At times, state conduct will be so troublesome that having a trial -- even a fair one -- will leave the impression that the justice system condones conduct that offends society's sense of fair play and decency. This harms the integrity of the justice system. In these kinds of cases, the first stage of the test is met.

[92] The second and third stages of the analysis were described as by the Court as follows:

39 At the second stage of the test, the question is whether any other remedy short of a stay is capable of redressing the prejudice. Different remedies may apply depending on whether the prejudice relates to the accused's right to a fair trial (the main category) or whether it relates to the integrity of the justice system (the residual category). Where the concern is trial fairness, the focus is on restoring an accused's right to a fair trial. Here, procedural remedies, such as ordering a new trial, are more likely to address the prejudice of ongoing unfairness. Where the residual category is invoked, however, and the prejudice complained of is prejudice to the integrity of the justice system, remedies must be directed towards that harm. It must be remembered that for those cases which fall solely within the residual category, the goal is not to provide redress to an accused for a wrong that has been done to him or her in the past. Instead, the focus is on whether an alternate remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward.

40 Finally, the balancing of interests that occurs at the third stage of the test takes on added significance when the residual category is invoked. This Court has stated that the balancing need only be undertaken where there is still uncertainty as to whether a stay is appropriate after the first two parts of the test have been completed (Tobiass, at para. 92). When the main category is invoked, it will often be clear by the time the balancing stage has been reached that trial fairness has not been prejudiced or, if it has, that another remedy short of a stay is available to address the concern. In those cases, no balancing is required. In rare cases, it will be evident that state conduct has permanently prevented a fair trial from taking place. In these "clearest of cases", the third and final balancing step will often add little to the inquiry, as society has no interest in unfair trials.

[93] When I consider all of these factors I am not satisfied that a stay of proceedings is required or appropriate. While the misconduct in this case could be categorized as offensive to notions of fair play and decency, I am satisfied that the

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harm can be remedied by excluding the evidence which was obtained. This would include the statements made by Ms. Derbyshire to the undercover operators as well as the physical evidence and its locations which she identified. By doing so, the Court distances itself from the impugned conduct and at the same time recognizes the importance of having this serious charge tried on its merits.

Conclusion and Disposition

[94] Ms. Derbyshire has not established a breach of her rights under s.7 of the Charter, however she has satisfied me that the police undercover operation was an abuse of process. As a result I will exclude the evidence obtained from Ms. Derbyshire. This includes her statements to the undercover operators and the physical evidence and locations which she identified to them. If there is other evidence which Ms. Derbyshire feels should be excluded as the fruits of the abusive conduct, she is free to make a further application for such relief. My comments should not be interpreted to mean that there will be an automatic exclusion of evidence which is in any way related to the undercover operation no matter how tenuous that connection. As noted by the Supreme Court in Babos the granting of relief for abuse of process is discretionary and will involve the weighing of a number of potentially competing factors.

[95] I would also note that my decision in this case concerning the exclusion of evidence against Ms. Derbyshire should not be interpreted as a determination of the admissibility of her statements and any resulting physical evidence in proceedings against any other persons – the most obvious being Mr. Steven Skinner.

[96] I would conclude by offering my sincere thanks to all counsel for their capable and helpful submissions and the professional manner in which the hearing was conducted.

Wood, J.