R. v. Hart (N.L.),

R. v. Hart (N.L.) (2007), 265 Nfld. & P.E.I.R. 266 (NLTD);

    805 A.P.R. 266

MLB headnote and full text

Temp. Cite: [2007] Nfld. & P.E.I.R. TBEd. AP.003

Nelson Lloyd Hart (applicant) v. Her Majesty the Queen (respondent)

(2005 05T 0216; 2007 NLTD 74)

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

Newfoundland and Labrador Supreme Court

Trial Division

Dymond, J.

January 26, 2007.

Summary:

The accused was charged with the drowning death 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 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 the crime boss and his 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, determined the issues.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - During a sting operation, undercover police officers befriended the accused and recruited him into a "criminal organization" - At one point, they had him transport a suitcase containing contraband - He was unexpectedly stopped by police with a sniffing dog at a train station - The dog did not detect narcotics - A package in the suit case was opened and paper was found inside - Later that day, the police surreptitiously entered the accused's hotel room and put fake diamonds in the suitcase's handle - At a meeting, in the presence of the accused, the allegedly "hot" diamonds were removed from the handle so that the accused would realize why the police at the train station had not found contraband - Eight or nine days later the accused made statements, including one to an officer acting as the crime boss, in which he confessed to drowning his two children - The confession to the crime boss and the re-enactment of the drowning were videotaped - The Newfoundland and Labrador Supreme Court, Trial Division, held that the warrantless entry into the hotel room violated the accused's s. 8 Charter rights - The court rejected an assertion that exigent circumstances existed - No explanation was given as to why a warrant was not obtained - The court refused to exclude the accused's statements and re-enactment where there was an insufficient nexus with the breach - However, the court excluded all evidence relating to the contraband scenario where admission would bring the administration of justice into disrepute - See paragraphs 67 to 94.

Civil Rights - Topic 1650.3

Property - Search and seizure - Warrantless search and seizure - Exigent circumstances - [See Civil Rights - Topic 1646 ].

Civil Rights - Topic 1653

Property - Search and seizure - Warrantless search and seizure - Hotel room - [See Civil Rights - Topic 1646 ].

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent and protection against self-incrimination (Charter, s. 7) - During a sting operation, the accused made statements to undercover police officers, including one acting as a crime boss, in which he confessed to drowning his two children - The accused asserted that his s. 7 Charter rights were breached by inducements, implied threats, coercion and psychological coercion which arose as a result of his being part of the "criminal organization" - The Newfoundland and Labrador Supreme Court, Trial Division, stated that the present state of the law allowed undercover operators in the pre-detention stage to develop scenarios which might elicit an admission to a crime provided that there was no heavy coercion, psychological detention, threats or intimidation - Even where there had been threats and intimidation, the courts had allowed the statements to be included - The undercover operative in a pre-detention scenario had wider latitude than someone being detained - See paragraph 53.

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent and protection against self-incrimination (Charter, s. 7) - During a four month sting operation, undercover police officers befriended the accused and recruited him into a "criminal organization" - No physical harm was done to the accused - Emphasis was placed on loyalty and truthfulness - There was evidence of violence and intimidation directed at third parties who had crossed the organization - The accused made a statement to an undercover officer acting as the crime boss in which he confessed to drowning his two children - The accused re-enacted the crime for one of the officers - The statement and re-enactment were videotaped - The accused asserted that his s. 7 Charter rights were breached by the inducements, implied threats, coercion and psychological coercion which arose as a result of his being part of the "criminal organization" - The accused asserted that the confession was unreliable because it was made with motive to lie (a desire to stay in the organization) - The Newfoundland and Labrador Supreme Court, Trial Division, rejected the assertions - The court stated that there could arise factual circumstances in which such actions, threats and intimidations against the target might result in a pre-detention breach of the s. 7 right to silence affecting the accused's right to fundamental justice - See paragraphs 42 to 66.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1646 ].

Criminal Law - Topic 5204.3

Evidence and witnesses - General - Admissibility - Evidence of disposition or propensity of accused - During a four month sting operation, the accused made statements of general propensity to the undercover officers, including statements referring to the killing of cops, pigs and rats - The Newfoundland and Labrador Supreme Court, Trial Division, refused to admit the statements - The statements were so prejudicial that any probative value would be outweighed by their prejudicial effect - Also, these were general statements and might have been posturing by the accused - The court also excluded a taped audio transmission of a conversation between the accused and an undercover officer - The conversation had a prejudicial effect that went to the accused’s character as to propensity to commit criminal activity which outweighed the probative value of using it to show the narrative - See paragraphs 146 to 148.

Criminal Law - Topic 5209

Evidence and witnesses - Admissibility and relevancy - Prejudicial evidence - [See Criminal Law - Topic 5204.3 ].

Criminal Law - Topic 5209

Evidence and witnesses - Admissibility and relevancy - Prejudicial evidence - During a four month sting operation, the accused was alleged to have made oral admissions to the undercover officers - At a voir dire to determine the admissibility of the admissions, the accused denied making the statements - The Newfoundland and Labrador Supreme Court, Trial Division, admitted the statements - The probative value outweighed any prejudicial effect - It was for the jury to determine if the statements were actually made and what, if any, weight should be attached to them - See paragraph 145.

Criminal Law - Topic 5337.1

Evidence and witnesses - Confessions and voluntary statements - Admissibility - "Mr. Big" confessions - [See both Civil Rights - Topic 3160 ].

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - During a four month sting operation, undercover police officers befriended the accused and recruited him into a "criminal organization" - The accused eventually made a statement to an undercover officer acting as the crime boss, in which he confessed to drowning his two children - The accused re-enacted the drowning for an undercover officer - The statement and re-enactment were videotaped - The accused asserted that the admissions were hearsay statements, subject to the principled approach of necessity and reliability - The Crown asserted that the statements were admissions against interest and were admissible as an exception to the hearsay rule - The Newfoundland and Labrador Supreme Court, Trial Division, held that the statements and the lead up to the confession were admissible as passing the threshold reliability test of the principled approach to hearsay - Although the accused wanted into the organization and had a motive to lie, there was reason for him to come clean with the boss, especially when coming clean meant that any potential problem could be eliminated by the boss - It was unnecessary to decide whether the statements were admissions against interest in that they might also be admissions in the accused’s interest in the context of entering the "criminal organization" - See paragraphs 95 to 144.

Evidence - Topic 1550

Hearsay rule - Hearsay rule exceptions and exclusions - Statements against interest - General principles - [See Evidence - Topic 1527 ].

Police - Topic 3106

Powers - Investigation - Stratagem and subterfuge (incl. trickery) - [See first Civil Rights - Topic 3160 ].

Cases Noticed:

R. v. McIntyre (M.) (1993), 135 N.B.R.(2d) 266; 344 A.P.R. 266 (C.A.), affd. [1994] 2 S.C.R. 480; 168 N.R. 308; 153 N.B.R.(2d) 161; 392 A.P.R. 161, refd to. [para. 34].

R. v. McCreery (T.S.), [1996] B.C.T.C. Uned. J13 (S.C.), refd to. [para. 35].

R. v. Riley (B.W.) et al., [2001] B.C.T.C. 1407; 2001 CarswellBC 2535 (S.C.), refd to. [para. 35].

United States of America v. Burns and Rafay (1997), 94 B.C.A.C. 46; 152 W.A.C. 46; 117 C.C.C.(3d) 454 (C.A.), refd to. [para. 36].

R. v. Elshaw, [1991] 3 S.C.R. 24; 128 N.R. 241; 3 B.C.A.C. 81; 7 W.A.C. 81, refd to. [para. 38].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 38].

R. v. Broyles, [1991] 3 S.C.R. 595; 131 N.R. 118; 120 A.R. 189; 8 W.A.C. 189, refd to. [para. 38].

R. v. Grandinetti (C.H.), [2005] 1 S.C.R. 27; 329 N.R. 28; 363 A.R. 1; 343 W.A.C. 1, refd to. [para. 43].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63, refd to. [para. 43].

R. v. Chambers (No. 2), [1990] 2 S.C.R. 1293; 119 N.R. 321, refd to. [para. 45].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1, refd to. [para. 45].

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, refd to. [para. 53].

R. v. Moore (C.A.) (1997), 94 B.C.A.C. 281; 152 W.A.C. 281 (C.A.), refd to. [para. 64].

R. v. Terrico (W.J.) (2005), 214 B.C.A.C. 135; 353 W.A.C. 135 (C.A.), leave to appeal refused (2006), 350 N.R. 400; 231 B.C.A.C. 319; 381 W.A.C. 319 (S.C.C.), refd to. [para. 64].

R. v. Wong et al. (1990), 120 N.R. 34; 45 O.A.C. 250; 60 C.C.C.(3d) 460 (S.C.C.), refd to. [para. 75].

R. v. Thompson et al. (1990), 114 N.R. 1; 1990 CarswellBC 218 (S.C.C.), refd to. [para. 77].

R. v. Goldhart (W.) (1996), 198 N.R. 321; 92 O.A.C. 161; 107 C.C.C.(3d) 481; 1996 CarswellOnt 2739 (S.C.C.), refd to. [para. 83].

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. 95].

R. v. Mapara (S.) et al., [2005] 1 S.C.R. 358; 332 N.R. 244; 211 B.C.A.C. 1; 349 W.A.C. 1, refd to. [para. 96].

R. v. Carter, [1982] 1 S.C.R. 938; 47 N.R. 288; 46 N.B.R.(2d) 142; 121 A.P.R. 142, refd to. [para. 96].

R. v. F.J.U., [1995] 3 S.C.R. 764; 186 N.R. 365; 85 O.A.C. 321, refd to. [para. 100].

R. v. Bridges (M.B.) (2005), 200 Man.R.(2d) 298; 2005 CarswellMan 534 (Q.B.), refd to. [para. 101].

R. v. Foreman (R.E.) (2002), 166 O.A.C. 60; 62 O.R.(3d) 204 (C.A.), refd to. [para. 102].

R. v. Wytyshyn (D.G.), [2002] A.R. Uned. 301 (C.A.), refd to. [para. 103].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161, refd to. [para. 109].

R. v. Khelawon (R.) (2006), 355 N.R. 267; 220 O.A.C. 338 (S.C.C.), refd to. [para. 110].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353, refd to. [para. 111].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321, refd to. [para. 111].

R. v. Hawkins (K.R.) and Morin (C.), [1996] 3 S.C.R. 1043; 204 N.R. 241; 96 O.A.C. 81, refd to. [para. 134].

Authors and Works Noticed:

Brown, Michael, and Healy, Patrick, Hebert: A Constitutional Right to Silence - Two Comments (1990), 77 C.R.(3d) 194, generally [para. 66].

Healy, Patrick, The Right to Remain Silent: Value Added, But How Much? (1990), 77 C.R.(3d) 199, generally [para. 66].

Nolan, Christopher, Excluding the Post Offence Undercover Operation from Evidence Warts and All (2004), 8 Can. Crim. L. Rev. 381, generally [para. 66].

Wall, Gordon, Doubts Cast on Hebert Limits on the Pre-Trial Right to Silence (1995), 36 C.R.(4th) 134, generally [para. 66].

Counsel:

Mark Linehan and Tina Walsh, for the Crown;

Derek Hogan and Scott Hurley, for the accused.

This application was heard on November 20 to 24 and 27 to 29, 2006, at Gander, Newfoundland and Labrador, by Dymond, J., of the Newfoundland and Labrador Supreme Court, Trial Division, who delivered the following reasons for judgment on January 26, 2007.