A new trial has been ordered for a 51-year old Quebec City man convicted of first degree murder after the Quebec Court of Appeal held that the trial judge did not provide with sufficiently clear instructions to the jury over the reliability of a confession made in a “Mr. Big” police sting operation.
In a case that applied the new framework established last year by the Supreme Court of Canada over the admissibility of confessions elicited during “Mr. Big” operations, the Quebec Court of Appeal ruled that the confession made by Alain Perreault during the police sting was admissible because its probative value outweighed its prejudicial effects. But the appeal court found the trial judge should have instructed the jury the context in which the admission was made to address concerns about the reliability and prejudice that arise from these confessions. “Mr. Big” operations are elaborate stings where undercover agents recruit suspects into fictitious criminal organizations to gain their trust and extract a confession, particularly in cold cases.
“The trial judge should have warned the jury that they cannot necessarily conclude that because this individual accepted to be part of the criminal underworld that you should conclude that he was guilty of murder,” noted Julien Gregoire, a Quebec City criminal lawyer who teaches at the Université Laval. “A jury must be able to analyse the context in which the confession was made. This nuance is important because – and this is a long-standing principle in criminal law – one judges an accused based on the facts, and not on the immoral nature of his character.”
Perreault was found guilty four years ago of killing a 43-year old woman who disappeared during the summer of 2003 after travelling to Quebec City from Chambly, a small town near Montreal, to meet Perreault. While the remains of Lyne Massicotte were never found, Perreault was arrested six years later after making a confession to an undercover police officer who was posing as a criminal in a “Mr. Big” sting.
Perreault appealed his conviction before the Quebec appeal court in 2013 but the case went back to the appellate court after the SCC set tough new standards for the admissibility of confessions obtained during the course of “Mr. Big” sting operations. In R v Hart, 2014 SCC 52,  2 S.C.R. 544, the SCC created a new common law rule of evidence that presumes that these confessions are inadmissible unless the Crown can establish, on a balance of probabilities, that the probative value of the confession outweighs its prejudicial effect. The probative value of a confession is directly related to its reliability, which can be assessed by considering the circumstances in which the confession was made and by examining a confession’s inherent reliability. Confirmatory evidence, which suggests the suspect was involved, can provide a “powerful guarantee” of reliability, held the SCC. The SCC also warned about abuse of process by police in the course of “Mr. Big” operations, emphasizing that “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.” A companion decision in R. v. Mack, 2014 SCC 58,  3 S.C.R. 3 provides guidance to trial judges on how to adequately instruct the jury on how to approach these confessions.
Heeding guidance from Hart ruling, the Quebec Court of Appeal found that the circumstantial evidence surrounding the case established the reliability of Perreault’s confession. Perreault’s confession was brimming with details – such as the fact that Massicotte’s car was unlocked and that the trunk was jam-packed — that the police did not reveal publicly. “Only the assassin could have known these facts that the police kept secret until the arrest of the appellant,” noted Quebec Court of Appeal Justice France Thibault in a unanimous 24-page ruling in Perreault v. R. 2015 QCCA 694.
The appeal court held that the probative value of the confession outweighed its prejudicial effect because “Mr. Big” did not coerce Perreault into making a confession and because the confession itself was coherent, detailed, and corroborated by numerous elements that established its reliability. Nor did the confession amount to an abuse of process, added the appeal court. While the police used tricks and subterfuge to lead him to confess to the crime, Perreault was not subjected to violent acts and he was not in a manifest state of vulnerability, added Justice Thibault.
But in following guidance from the Mack decision, the Quebec Court of Appeal found that the trial judge failed to adequately instruct the jury when considering “Mr. Big” confessions. The trial judge did not address the question of the reliability of the confession, and in fact indirectly encouraged the jury to “a kind of reasoning” that increased the prejudicial effect of the confession by inviting them to take into account what Perreault said over the course of the elaborate sting to evaluate his credibility.
“The appeal court noted that while the confession was admissible the judge of first instance should have warned the jury over the probative value of the confession and explain to the jury that in a ‘Mr. Big’ scenario, it could lead to a false confession,” said Jean-Philippe Marcoux, a Montreal criminal lawyer. “But the appeal court could have provided more explicit guidance over what instructions a trial judge should give to the jury, especially since there is a risk that this kind of case will take place again in the future.”
But the appeal court ruling also raises further questions, points out Stéphane Beaudoin, a Quebec City criminal lawyer who is representing Perreault. Now that a new trial was ordered by the appeal court, how much weight will be given to Perreault’s confession given that the appellate court held that “many elements of the circumstantial evidence established the reliability of the confession,” wondered Beaudoin. Beaudoin argues that since there will be a new trial that will be presided by another judge before a new jury, the issue of whether Perreault’s confession should be admissible should once again be re-examined.
“I believe there will be another debate over that question,” said Beaudoin. “The Crown will certainly state that the appeal court pronounced itself very clearly on the issue. But I believe the trial judge will not be beholden to the appeal court’s interpretation of the facts. I believe that a judge who is presiding over a new trial will have the same powers as any other judge who hears a case for the first time. I think that the trial judge will have to re-examine the question of the admissibility of the confession that was given in the context of a Mr. Big operation.”
This story was originally published in The Lawyers Weekly.