Confession rule not triggered unless statements made to person in authority

 R. v. Hart, 2012 NLCA 61 deals with an argument that the confession rule should apply when statements are made to state actors even where the accused in unaware the persons spoken to are state actors. The Court declined to agree with the argument:

[68]        The trial judge made no error in concluding that, absent abuse of process, the s. 7 right to silence was not triggered prior to detention.  McIntyre,Grandinetti, Osmar and Bonisteel all support this conclusion, as does the obiter in Singh.  In Singh, the Court refused to accept the submission that application of the pre-trial Charter right to silence should be expanded.  The Court noted the exercise of the right to silence is in the control of an accused who has an operating mind and is fully informed of his or her rights, provided the conduct of the authorities do not take away his or her ability to choose.  For reasons discussed below, I have concluded Mr. Hart did not lose his ability to choose in the present case.

[69]        The argument has been made for Mr. Hart that, although he was not in detention, he "was nevertheless under the control of the state in circumstances functionally equivalent to detention and equally needing protection from the greater power of the state" (in the words of Rosenberg J.A. in Osmar). 

[70]        Because of his poverty and social isolation, Mr. Hart had a particular susceptibility to the offers of friendship and wealth offered by the undercover police.  They constructed a complex network of false relationships between not only the officers and Mr. Hart but also between him, their "girlfriends" and his wife.  They offered him a "family" with access to a lavish lifestyle over four months.  It has been argued that, unlike prior cases, the state's control over Mr. Hart was extensive enough to be comparable to or even exceed the control the state has over a person in detention.

[71]        I am not persuaded.  The cases earlier noted have developed principles with the twin goals of protecting the rights of the accused while recognizing society's need to investigate and solve crimes without undue limitations.  SeeOickle, paragraph 33.  As Lamer J. pointed out in Rothman v. The Queen,1981 CanLII 23 (SCC), (1981) 1 S.C.R. 640, at page 697, adopted in R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, and Oickle, at paragraph 67, "[t]he investigation of crime and the detention of criminals is not a game to be governed by the Marquess of Queensbury rules".  Scollin J. eloquently made the same point in Skinner, quoted in Bonisteel, at paragraph 89:

The difference between the unpalatable and the inedible is generally a matter of personal taste. Absent "dirty tricks", the courts should not set themselves up as the arbiters of good taste or of the preferred methods of investigation. It is unrealistic to demand chivalry from those who must investigate what are often heinous offences against blameless victims. The law should not appear to materialize as a revolutionary rabbit from a judicial magician's hat. Both the common law and the Charter justly preserve the accused from coercion and endow him with specific rights which he may exercise at the time of his arrest and while he is in custody; but the courts should not be so indulgent as to preserve the accused from himself and his own untrammeled tongue, and should require realistic justification for suppressing facts from the jury which go to weight rather than to admissibility.

[72]        To accept that tactics such as employed in the police operation in this case amounted to a degree of state control sufficient to require that the police inform Mr. Hart of his right to silence would unduly hamper the investigation of crime.  The Mr. Big tactic has shown itself effective in obtaining admissions leading to convictions when all else has failed.  Although this may not be something to be considered on the admissibility analysis (see Hodgson, at paragraphs 18-21, andTerrico, at paragraph 14), frequently the details provided in the admissions have been corroborative of the truthfulness of the admission in that they bear a strong resemblance to the actual circumstances (e.g. Bonisteel).  At times the Mr. Big operation has exonerated an innocent person as in the case in this Province of Gregory Parsons.  See R. v. Doyle 2003 CanLII 68643 (NL SCTD), (2003), 222 Nfld. & P.E.I.R. 211 (NLTD), aff'd 2004 NLCA 64 (CanLII), 2004 NLCA 64, 241 Nfld. & P.E.I.R. 125 at paras. 44-46.

[73]        The trial judge correctly found that Mr. Hart "had numerous chances to leave the operation, but made no effort to do so."  The judge accepted the testimony of the undercover officers that they gave Mr. Hart the opportunity to cease participation at any time:  R. v. Hart, 2007 NLTD 74 (CanLII), 2007 NLTD 74, 265 Nfld. & P.E.I.R. 266 at para. 61.  The trial judge did not accept Mr. Hart's testimony that he was "scared to death".  He was not satisfied Mr. Hart had established on a balance of probabilities that his s. 7 Charter rights had been infringed based on threats of violence or fear from psychological coercion.  This Court should accord considerable deference to these findings of fact and intervene only if the findings of the trial judge were plainly unreasonable.  The record in this case supports the judge's findings and these completely undermine the argument that Mr. Hart was in circumstances functionally equivalent to detention. 

[74]        It is worth noting the comments in Singh, at paragraphs 43 to 46, on the s. 7 objective of achieving a balance between the interests of the detained individual and the interests of the state in the effective investigation of crime.  To extend the right of silence as requested by Mr. Hart would be to prevent the use of undercover operations which have been effective not only in convicting the guilty but in freeing the innocent.