Quebec Appeal Court provides more guidance over Mr. Big operations

“This is such a touchy subject and one that’s obviously a hot button sort of jurisprudential topic these days,” remarked Montreal criminal lawyer Dylan Jones. “What might be slightly new in this decision is that they may have widened the applicability for fringe cases that are not obviously Mr. Big operations.”

Patrice Bernard, following a trial by jury, was convicted in November 2015 for the 1987 murder in the second degree of his uncle. No one was arrested in connection with the crime for over twenty years given the paucity of physical evidence and the lack of direct evidence.

The prosecution’s evidence was based mainly on two out-of-court statements Bernard made. The first was made in 1987, on the day after the victim was discovered, when provincial police investigators met with Bernard to find out what he had been doing the day of the murder. The second was obtained in 2009 during a Mr. Big operation targeting an accomplice, Alain Béliveau, who confessed to Mr. Big that the victim’s daughter — now known as Anthony Tristan Bernard and the appellant’s cousin — had organized the murder in order to collect her inheritance and the proceeds of a $1 million life insurance policy. Béliveau told Mr. Big that Patrice Bernard had fired the shot while he himself had stood guard. Bernard admitted during the Mr. Big operation, which took place in his car in the presence of Béliveau and two undercover agents, that he took part in the murder. The episode was recorded and transcribed.

On the very first day of trial during a first voir dire, Bernard opposed the introduction of the out-of-court statement he made during the Mr. Big sting into evidence because he argued it was presumptively inadmissible. He also argued that the Crown had the burden of proving that its probative value exceeded its prejudicial effect, in accordance with the seminal ruling by the Supreme Court of Canada in R. v. Hart, 2014 SCC 52. He also maintained that the 1987 statement he made should not be admissible, and filed a motion to stay the proceedings.

But Quebec Superior Court Justice Martin Bureau concluded that the 1987 statement made by Bernard was admissible because there was a lack of evidence that Bernard had been detained, threatened or coerced or that the investigator used deception to obtain Bernard’s statement. The trial judge also held that the Supreme Court’s admissibility rule for a Mr. Big confession did not apply in this case.

The Quebec Court of Appeal held that the trial judge erred in law on both counts.

Under the common law confessions rule, an out-of-court statement made by an accused to a person in authority, whether inculpatory or exculpatory, is in principle inadmissible at his or her trial, unless the prosecution shows, with proof beyond a reasonable doubt, that it was made voluntarily, a rule that applies even if the person has not been arrested or is not being detained, noted the Court of Appeal. The analysis of the free and voluntary nature of the statement must be contextual, added the Appeal Court. “The Court must determine whether the circumstances surrounding the confession give rise to a reasonable doubt as to the confession’s voluntariness,” said Chief Justice Nicole Duval Hesler in Bernard c. R. 2019 QCCA 1227.

In the Bernard case, the Court of Appeal found that the prosecution did not provide any evidence regarding the circumstances surrounding his 1987 statement. In fact it found that testimony by the former investigator was “quite thin.” He was unable to provide basic information such as the location where he met with Bernard or the length of the exchange with Bernard. The only thing he was certain about was that he met with Bernard as a witness and that he did not inform him of his right to counsel. During arguments before the trial judge, the Crown submitted that it “would have been sufficient if Mr. Bernard had taken the witness stand and told you, listen, when I made that statement, I was – this is a voir dire, you know, there is a minimum after all.” The suggestion by the Crown regarding the burden to be met was shot down by the Appeal Court.

“How can we, in 2019, still gloss over the presumption of innocence – a fundamental principle of justice behind the right to silence and the principle that prevents self-incrimination – by claiming that the accused only has to take the witness stand,” rhetorically asked Quebec City criminal lawyer Julien Grégoire.

The trial judge however based his decision on the lack of evidence establishing that Bernard had been detained, threatened or coerced or that the investigator used any deception to obtain his statement. “That reasoning is erroneous because it reduces the confessions rule to a negative inquiry that consists in merely determining whether there were any explicit threats or promises,” Chief Justice Hesler.

The trial judge also erred when he rejected the criteria applicable to the analysis of the admissibility of a confession obtained during a Mr. Big operation, said the Appeal Court. In Hart, the SCC established a new admissibility rule and held that confessions will be presumptively inadmissible unless during a voir dire the prosecution is able to show on a balance of probabilities that its probative value, a function of its reliability, outweighs its prejudicial effect.

The Appeal Court found that while Bernard was not the subject of a classic Mr. Big operation, the statement he made was nevertheless liable to the three risks identified in Hart with such stings, including an unreliable confession, the introduction of bad character evidence, and police misconduct.

The Appeal Court “wisely reminds us” that the principles established by Hart applies to traditional Mr. Big operations but “may also apply to those that are analogous,” said Grégoire. “Solving a cold case is certainly a laudable objective, and to a certain extent, a necessary for one for police authorities. But solving a serious crime is one thing; obtaining the necessary evidence to obtain a conviction is another. However, law, when well understood and applied, is not incompatible with these two propositions.”

Jones adds that the Bernard case underscores the legal complexities behind Mr. Big operations. “It’s a complicated issue,” said Jones. “It’s not easy for people who are in the legal community to grasp. I find it kind of goes against a lot of what we’re taught about how our system is supposed to go in terms of confessions and how accused people are supposed to be treated.

“If you’re a lawyer and you had a kind of a case that was on the fringe and you’re saying is this in the framework or not, I think here the door is more open now than it was before,” added Jones.