Mr. Big goes to Ottawa

The Supreme Court of Canada dealt a blow last week to a style of sting operation that has been used by police in criminal investigations in Canada for more than 20 years:  the Mr. Big technique.  The case of R. v. Hart, 2014 SCC 52, sounds like the improbable plot of a Hollywood movie with a wise-cracking rogue detective, but its jolly name belies a dangerous long con to inveigle a suspect to confess to a serious crime.

In the 1990s, when Mr. Big cases went to court there were publication bans on the evidence relating to the sting.  The police rationale was that if the details were made public, police would no longer be able to employ the technique.  Newspapers and advocates for civil liberties argued that the technique ought to be subjected to public scrutiny.  The details of the sting were made public, and it shows the power of the method that the police have continued to obtain confessions this way for 20 years since the gag was removed.

In essence, a Mr. Big sting is an elaborate con to ensnare a suspect in a fake criminal organization, entice the suspect to participate in fake crimes, and reward the suspect with a taste of a lavish lifestyle financed by the proceeds of those fake crimes.  It is a costly operation undertaken only in the case of serious crimes. In the Hart case the cost totaled more than $400,000. 

The stakes are high, and the dangers of this type of evidence are equally high.  Hart was accused of drowning his twin daughters.  Everyone wants whoever was guilty of that crime to be convicted, but we do want also to be very certain we have the right person.  We have a long and sorry history of wrongful convictions in Canada, including people who have confessed and then been exonerated by DNA evidence.

We have law that excludes coerced confessions made to persons in authority because they not only offend our sense of fairness, they also constitute evidence that is simply not reliable. This rule recognizes the power that police have over a suspect who may try to manipulate the odds in his or her favour.  Why would we not recognize the power that a (fake) crime boss has over a suspect who similarly would like to compose a story to improve his or her position?  There is a darker turn to the story where the suspect believes the crime boss to be a powerful and violent despot.

In this case, Mr. Hart is unlikely to have the benefit of dramatic DNA exoneration evidence, but the court rightly concluded that it would be dangerous to rely on his confession in this case.  Mr. Big is not dead.  The police can still use this method, but our courts now have a structured, balanced approach to weighing the reliability of confessions obtained in this way against damaging effect they may have on the process of justice.

Never try to talk your way out of it with the police or anyone.  Seek the advice of an experienced criminal lawyer.

Northern Defence Law

Such a waste: mandatory minimum sentences

As usual in matters of incarceration, we are a few years behind our American cousins, but still rushing headlong down the same terrible path. Is this future of the mandatory minimum sentences in our Safe Streets and Communities Act? 

Such a waste. Let the judges do their jobs. Leave them the discretion so they can apply judgment where judgment is needed.

The Economist, "Throwing Away the Key," Nov. 13, 2013

Senior Canadian lawyers call for exemptions to mandatory minimum sentences

Mandatory minimum sentences have found favour with legislators around the globe, and Canada is no exception. However, a group of senior Canadian lawyers is recommending that there be statutory exemptions to such sentences.

We are at the anniversary of new mandatory minimum prison sentences in Canada for certain crimes, including particular drug offences and gun offences. Criminal defence lawyers have long criticized mandatory minimums. Nevertheless, Canada’s Justice Minister defends the approach and is resisting calls for exemptions.

Mandatory minimum sentences are also being challenged in the courts. A British Columbia Provincial Court judge has ruled that a mandatory minimum prison term was unconstitutional in a case where a man with no criminal record was convicted of a gun offence.

Lawyers’ group criticizes mandatory minimum sentencing at meeting in Victoria

The Uniform Law Conference of Canada, a group of senior lawyers from across the country – including both criminal defence counsel and Crown prosecutors – recommended exemptions to mandatory minimum sentences at a recent meeting in Victoria, British Columbia.

The group, which argues that mandatory minimum sentences fail to allow for the proper exercise of judicial discretion, noted that unlike other Commonwealth countries, Canada does not have statutory exemptions to the minimums.  Those exemptions in other countries can be invoked to remedy the unjust application of mandatory minimums.

The Lawyers Weekly, a national newspaper serving the legal profession, reported that federal Justice Minister Peter MacKay opposes such exemptions and defends his government’s implementation of mandatory minimum sentencing for offences that are considered “abhorrent and corrosive to society.”   

British Columbia judge rules mandatory minimum sentence for gun offence unconstitutional

Mandatory minimum sentences are also a concern for some Canadian judges. A British Columbia Provincial Court judge ruled that a three-year mandatory minimum prison sentence for a gun offence violates the Canadian Charter of Rights and Freedoms, in particular the principles of fundamental justice, and the right to be free of cruel and unusual punishment. The judge found that the minimum was “harsh, or excessive, or even unfit for this individual applicant.”  The accused, who had been convicted of possession of a loaded and prohibited firearm, had no criminal record, was making child support payments, and was employed as an apprentice electrician.

More recently, a Manitoba judge also found the minimums offended the Charter of Rights for similar reasons, and also added that they offend the right to equal treatment before the law.

Anyone arrested or charged in relation to a criminal offence – including a gun or drug offence – is strongly advised to retain defence counsel. At all stages of the criminal justice process, from arrest through trial (and sentencing, where relevant), an experienced lawyer can protect the interests of the accused and mount a strong defence, based on the unique facts of the case. The existence of mandatory minimum sentences for certain offences increases the importance of securing proper legal representation.

Ann Pollak, British Columbia & Yukon Criminal Defence Lawyer

B.C. could pay millions in refunds for drunk driving fines

B.C. could pay millions in refunds for drunk driving fines

Congratulations are certainly due for Vancouver lawyer Paul Doroshenko who took on the Superintendent of Motor Vehicles and compelled the exercise of administrative discretion in the application of administrative penalties for drivers who fail or refuse roadside tests.  This will make the application of those penalties meaningful, and at least gives hope to those who have been unfairly punished.  The return of discretion enhances fairness in administrative decisions.

A solid win. Well done.  Take the rest of the weekend off.

New law for self-defence and defence of property

New Citizen’s Arrest and Self-defence Act is in effect as of Monday, March 11, 2013.  It introduces a new concept to the law in Canada:  arrest within a reasonable time.  It also aims to simplify the self-defence sections, which have given rise to some of the most mind-bending legal reasoning in Canadian law.

Prior to these amendments, the law of self-defence was a tangled bramble bush of special considerations, such as whether the accused provoked the attack, or reasonably believed his or her life was in danger, and whether the use of force was no more than necessary.  This language has been greatly simplified to consider whether the accused’s actions were “reasonable in the circumstances.”

The words defining self-defence might be simpler, but the interpretation and application of those words might prove to be just as difficult as the previous bramble bush.  Time will tell.

Until now, any private citizen had the power to arrest someone caught in the act of committing a crime in relation to the private citizen’s property, but there was no power to do so after the fact. 

In recent years some cases attracted a lot of attention because of this law.  In 2009, a Toronto storeowner pursued a shoplifter, chasing him down the street to arrest him, and was himself charged with assault and forcible confinement.  Although we have yet to see how the courts will interpret “arrest within a reasonable time,” likely that storeowner would not have been charged under the new law.

We could expect that a “reasonable time” will be longer in more remote locations, where the police response time might be expected to be longer.

Which law applies to cases that are already before the courts is a matter for the lawyers to work out.

Ann Pollak is a criminal defence lawyer in Burnaby who represents clients in Peace Country and Yukon.  www.northerndefencelaw.com

© Ann Pollak 2013

R. v. Tse, 2012 SCC 16 - strikes down emergency wiretap provision

The Supreme Court of Canada today, in the case of R. v. Tse, 2012 SCC 16, struck down section 184.4 of the Criminal Code, which permits police use of wiretap in exigent circumstances without prior judicial authorisation.

The court concluded that the section strikes an appropriate balance between privacy interests and public safety (para.94), but does not pass the second stage of the Oakes test. It serves a pressing and substantial objective, but the means used are not proportional to the limit on privacy. There is no use of a notice provision, such as that found in section 196(1), which gives notice after the fact to parties whose communications have been intercepted.

The provision of notice after the fact of the wiretap is an important measure for accountability for the police use of this exceptional power to invade privacy. Without that accountability the section is unconstitutional (para.98).

The declaration of invalidity is suspended for 12 months to give Parliament an opportunity to redraft the legislation. The matter of including section 184.4 in the notice provision already in force at section 196(1) might be a simple matter, but the court also raised issues, without deciding them, about the power of others who are not police officers to make use of the provision: a power that should raise the collective hackles of the citizenry.

Here is the decision:

http://scc.lexum.org/en/2012/2012scc16/2012scc16.html

R. v. Côté, 2011 SCC 46 -- SCC Bright Lines Charter remedy

The Supreme Court of Canada on Friday released its latest statement on the exclusion of evidence in cases in which the Charter rights of the accused have been breached.

Since the Court's decision in R. v. Grant, 2009 SCC 32, courts' application of the test for excluding evidence from a trial following a finding of Charter breach seems to have resulted in fewer cases in which evidence has been excluded, in particular where the charges are seen to be less serious.

The balancing operation in Grant, however, had suggested that in more serious cases, courts might exclude evidence more often than in the pre-Grant universe. Although the Côté decision is couched in terms of standard of review, it is clear in a reading of the whole case that that Court gave more weight to the impact of a Charter breach where the charge was serious, in this case, second degree murder.

The Court concluded:

[89] To sum up, the trial judge’s decision to exclude the observations made by police at the appellant’s home and the physical evidence collected pursuant to the warrants was owed deference. With respect, the Court of Appeal misconceived of its appellate role when it substituted its view of the police conduct for the trial judge’s and when it placed undue emphasis on the seriousness of the offence. The Court of Appeal’s holding that the police had not deliberately acted in an abusive manner was contrary to the trial judge’s numerous findings of deliberate and systematic police misconduct. Its emphasis on the seriousness of the offence was also misplaced given that the trial judge had acknowledged that the offence was serious and that the seriousness of the offence had been held not to be a determinative factor. The Court of Appeal also erred in placing undue weight on the “discoverability” of the evidence in its s. 24(2) analysis. While I agree with the Court of Appeal that the police could have demonstrated to a judicial officer that they had reasonable and probable grounds to believe that an offence had been committed and that there was evidence to be found at the place of the search, this fact would not have affected the s.24(2) analysis in all of the circumstances of this case. Both the police misconduct and its impact on the accused’s Charter-protected interests were very serious, even taking discoverability into account. The trial judge was obviously and justly concerned about the continuous, deliberate and flagrant breaches of the appellant’s Charter rights and this consideration played an important role in his balancing of the factors under s. 24(2). He also properly took into account the strong societal interest in having a serious criminal charge determined on its merits. His conclusion was not tainted by any error of law relevant to the ultimate conclusion and, accordingly, it should not have been set aside on appeal.

The Court in Ottawa restored the acquittal, which had been the original trial outcome.

Image of Supreme Court of Canada (c) Tim Lash 2003