Quebec Appeal Court provides more guidance over Mr. Big operations

The Quebec Court of Appeal ordered a new trial for a Quebec man convicted of second degree murder after it held that an out-of-court statement he made was involuntary, evidence yielded by a Mr. Big kind of operation was inadmissible and the trial judge should have given more detailed instructions to the jury.

The decision, exceptionally published in French and English, appears to have slightly broadened the kind of cases that may fall into the Mr. Big category and provides a timely reminder that the confessions rule is not subject to a negative inquiry, according to criminal lawyers.

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Another blow for Mr. Big operations

A Quebec man convicted of the first degree murder of his pregnant wife following a Mr. Big operation police sting operation is now a free man after the Quebec Court of Appeal found that his confession was obtained under duress, the second time this year that the appeal court has taken a dim view of the elaborate police strategy.

“Thousands and thousands of dollars are invested by the state in these Mr. Big operations to try to elicit a confession,” remarked Montreal criminal lawyer Jean-Philippe Marcoux. “And after all that, for it to reach the Court who ordered a stay of proceedings, it is a dismal failure.”

Mr. Big IIIIn 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 held that the confession could not be accepted because the sting operation featured threats and staged violence, and amounted to coercion. The appeal court held that since the police operation was found to be an abuse of process, it ordered a stay of proceedings

“The undercover operation was proving to be effective but the police chose to simulate quite unusual scenes of violence and threats,” said appeal court justice Jacques Dufresne in a unanimous 37-page ruling in Laflamme v. R. 2015 QCCA 1517. “These coercive tactics which the appellant was subjected to cannot be tolerated. They tarnish the work of police investigations and brings the administration of justice into disrepute.”

Last May, the Quebec appeal court ordered a new trial for a 51-year old Quebec City man convicted of first degree murder after it held that the trial judge did not provide with sufficiently clear instructions to the jury over the reliability of the confession made in the course of these expensive police operations. The Crown has filed an application for leave to appeal before the SCC.

The Mr. Big operation against Michel Laflamme, a 61-year old dog breeder who served a 10-year sentence in 1999 for conspiring to kill his third wife after becoming the beneficiary of her $470,000 life insurance policy, was launched in 2008 to solve a 30-year old cold case. The sting, conducted over a four-month period, led Laflamme to believe that he was being recruited by a criminal organization led by Mr. Big. After participating in 40 scenarios, Laflamme confessed to Mr. Big that he had murdered his spouse in 1976. A jury trial convicted him on February 2010.

But the Laflamme case took an unusual procedural turn. The Quebec appeal court was deliberating Laflamme’s appeal when the Supreme Court issued two precedent-setting rulings that set tough new standards for the admissibility of confessions obtained during the course of Mr. Big operations. In R. v Hart, 2014 SCC 52, [2014] 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 meet a rigorous two-prong test. The first prong of the test involves prejudice and reliability: Crown prosecutors must take care not to unduly prejudice a jury by presenting evidence that suggests the immoral nature of the suspect. More important is the reliability of the confession. The Crown must also 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 second prong of the test involves abuse of process. The SCC warned misconduct by police in the course of Mr. Big operations “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, [2014] 3 S.C.R. 3 provides guidance to trial judges on how to adequately instruct the jury on how to approach these confessions.

In light of the new guidance by the SCC, the Quebec appeal court took the exceptional step of rehearing the Laflamme case. But rather than examine Laflamme’s confession under the first prong of the test, involving prejudice and reliability, the Quebec Court of Appeal took the unusual step of examining the case by analysing whether police conduct in the Laflamme case constituted abuse of process, which is more difficult to prove, noted Quebec City criminal lawyer Julien Grégoire. “The police gave themselves permission to play like cowboys, and the Court decided to conduct its analysis only through the prism of whether there was abuse of process, which is allowed by Hart,” said Grégoire. In other words, given that the appeal court held that there was an abuse of process, it no longer had to determine whether the confession was either prejudiced or reliable. Even then, aside from the confession to Mr. Big, the Crown admitted that it had insufficient evidence to prove the case.

The appeal court held that even if a Mr. Big operation in and of itself does not constitute an abuse of process, in this case the conduct of the police officers compromised the integrity of the justice system by deliberately subjecting Laflamme to scenes of violence “with the avowed objective of making him aware of the power and seriousness of the criminal organization.” In one scenario, Laflamme was asked to keep a watchful outside of a motel room while a double agent that went by the name of Vince ostensibly beat up a delinquent borrower. In another scenario, while Laflamme was driving, Vince threatened in the back seat of the car another bad payer at gunpoint and then “viciously” threw the person out of the car. In yet another, when Laflamme met Mr. Big, he was warned that Vince’s “head was on the platter” if he did not confess. That the police were not able to heed guidance from the SCC rulings or that they acted in good faith does not carry any weight in matters of abuse of process, noted Grégoire.

But the appeal court did not go so far as to establish a bright-line test for an abusive operation. Inducements are not “condemnable because the operation seeks to elicit a confession,” held the appeal court. Police tactics however that resort to physical violence or threats of violence can be “problematic” when it amounts to coercing a confession, added the appeal court. “It’s rare that rulings are categorical,” said Marcoux. “But it appears that they left the door open for Mr. Big operations to use the threat of violence but so long as it does not lead to coercion. It will always depend on the context.”

Montreal criminal lawyer François Dadour concurs. “Without necessarily going so far as to say that the courts would endorse the use of a certain form of coercion, one can think of factual situations where an appeal court could conclude that the line has not been crossed,” said Dadour in an email to The Lawyers Weekly.

But some criminal lawyers believe that following the appeal court ruling police will likely abstain from relying on scenarios that feature tough and hardened criminals resorting to violence in Mr. Big operations. “This ruling will lead them to be much more creative and ingenious,” said Grégoire.

It also spells the end of an era where police could practically do anything they wanted to coerce a suspect into confessing to a crime, said Montreal criminal lawyer Maude Pagé-Arpin, who plead the case. “This (ruling) is excellent news for the justice system because this type of tactic can lead to an important risk of false confessions which in turn can lead to miscarriages of justice,” said Pagé-Arpin in an email.

New trial ordered for murderer following insufficiently clear jury instructions

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, [2014] 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, [2014] 3 S.C.R. 3 provides guidance to trial judges on how to adequately instruct the jury on how to approach these confessions.

Mr. BigHeeding 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.”