COURT FILE NO.: 20-28
DATE: 2021/12/15
S. 648(1) of the Criminal Code applies to all motions and applications heard and determined in this proceeding before trial pursuant to s. 645(5) of the Criminal Code, where the subject-matter of the motion or application is or relates to evidence to be heard at trial. Pursuant to s. 648(1), no information concerning any part of such motion or application or the reasons for ruling on such motion or application shall be published in any newspaper or broadcast by any means, including posting or distribution over the internet.
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Beverly Thomas
BEFORE: Justice Nathalie Champagne
COUNSEL: Matthew Collins and Lorne Goldstein for the Crown
Jeffrey Langevin and Ryan Langevin for the accused
HEARD: November 8th, 9th, 10th, 2021
ENDORSEMENT
[1] In 2017 and 2018, Beverly Thomas was the target of an undercover operation which lasted 14 months and resulted in her admission that she killed her common-law husband Robert (Robbie) Allen on February 6, 2016.
[2] Ms. Thomas brings this application for the exclusion from evidence, two videotapes which contain those admissions. She argues they arise from a Mr. Big operation which does not meet the test in R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544.
Background
[3] The night of February 6, 2016, Ms. Thomas made a call to 911 saying her common-law husband had been stabbed with a knife. She told the 911 operator the knife was still in her husband and she was advised by the operator not to remove it. Upon arrival, police found Robbie Allen on the kitchen floor with what was later confirmed to be a stab wound to the right side of his chest. A bloody kitchen knife was found in the sink. He apparently died of his injury.
[4] A forensic examination revealed that Mr. Allen had been stabbed on the right side from what appeared to be an upward direction.
[5] Ms. Thomas was interviewed by police several times. Her story to police changed a number of times. At first, she told them she was cleaning in the basement, heard a noise upstairs and went up to see what had happened and found her husband walking toward her holding his stomach. In a subsequent interview, she said she was in the basement, heard something, went upstairs and found Mr. Allen on the kitchen floor. She said she thought he had had a seizure or a heart attack and that she had not seen any blood. She told police she only learned from the funeral home that he had been stabbed. She also told them Mr. Allen had been a martial artist and was diagnosed with cancer and must have killed himself. Ms. Thomas told police she had no recollection of calling 911 or removing the knife from Mr. Allen’s body.
[6] By August 2016, police had concluded that the matter was a homicide and not a suicide. They suspected Ms. Thomas. By then, Ms. Thomas had decided to move to Nova Scotia. She left for Nova Scotia on August 5, 2016. Detective Constable Smirnov of the Ontario Provincial Police (“OPP”) felt they had enough evidence to charge Ms. Thomas at that time but wanted to solidify the case against her. In the Spring/Summer of 2017, the OPP decided to send two undercover officers to Nova Scotia to befriend Ms. Thomas, hoping that she might divulge information relating to her husband’s death. The fourteen months which followed led to a confession by Ms. Thomas which is the subject of this motion.
Evidence
[7] The undercover officers involved in the operation implicating Ms. Thomas provided evidence at this application which supplemented transcripts of their evidence at the preliminary inquiry. Their evidence also supplemented two video tapes in which Ms. Thomas admitted she killed her husband.
[8] Undercover Officer #1, whose cover name was Pam, posed as a house cleaner. Undercover Officer #2, whose cover name was Pete, posed as Pam’s boyfriend from the United States. They managed to befriend the accused and her boyfriend Chopper, and the two couples spent time together having meals, drinks, fishing, clamming and so forth. At times, Pete spent time alone with Chopper and Pam spent time alone with Ms. Thomas. Pete represented himself as a petty thief and “fence” and even stored some allegedly stolen goods at Ms. Thomas’ apartment. She purchased some small allegedly stolen items from him. Pam and Pete created a relationship of trust with Ms. Thomas and lent her money from time to time which she always paid back. Fourteen months into the operation, Ms. Thomas had not divulged much of substance about her husband’s death. At first, she told Pam and Pete that Mr. Allen had died of cancer. She later told them he was murdered and that police and Mr. Allen’s son Mark suspected her. She also mentioned that she was the beneficiary of a $40,000 life insurance policy in Mr. Allen’s name which was being withheld from her until the conclusion of the investigation.
[9] At some point in 2018, police decided to introduce a polygraph into the operation. Pete mentioned to Ms. Thomas that he knew an individual who helped someone defeat the polygraph in an arson case so the person could collect the insurance money. They discussed this from time to time, but Ms. Thomas appeared uninterested. She maintained that she had done nothing wrong and was not worried about being interviewed by the police. In August 2018, DC Smirnov called Ms. Thomas to ask if she would take a polygraph test. Ms. Thomas agreed and was told that DC Smirnov would set the test up for October 2018. On August 18, 2018, Pete went to see Ms. Thomas at her apartment and indicated he heard from Pam that she had an interview coming up with police. He again offered his friend’s help with the polygraph. He told Ms. Thomas it would cost her nothing as his friend owed him. Pete told Ms. Thomas he knew she was lying about what had happened to Mr. Allen, and encouraged her to meet his friend. She became upset, said she did nothing wrong and refused any help. He let the issue go and told her to let him know if she was interested in meeting him.
[10] On August 19, 2018, Pete, Pam, Ms. Thomas and Chopper went fishing and the topic of the polygraph came up again. This time, Ms. Thomas approached Pete saying Pam was upset and wanted her to talk to Pete’s friend about the polygraph. Pete said he would speak to his friend who might have some questions. Ms. Thomas said “Ok, fine” and according to Pete, she seemed to be in a better mood after the conversation.
[11] On September 19, 2018, Pam and Pete were over at Ms. Thomas’ home to socialize and DC Smirnov called saying the previously appointed date for the polygraph test was being moved up and would instead take place on September 24, 2018. Pete observed Ms. Thomas laugh and play down the change in plans, but his evidence was that she looked stressed. Pam asked Pete if he could call his friend and he did. He told the group it was pretty short notice but his friend would see what he could do. He told Ms. Thomas it was better to be prepared for the polygraph than to just let it happen and she agreed.
[12] Pete and Pam went back to the accused’s apartment the following day and he told Ms. Thomas his friend Tony (undercover officer #3) was in Yarmouth and could meet her at a hotel there to discuss the polygraph. Yarmouth is approximately an hour from Digby. Pete told her they had to leave right away; Ms. Thomas grabbed her purse, kissed Chopper goodbye and left with Pete to go meet Tony.
[13] Police had set up a camera and recording equipment in a Yarmouth hotel where undercover officer #3, posing as Tony got ready to meet Ms. Thomas.
[14] When Ms. Thomas and Pete arrived at the hotel in Yarmouth, they went to Tony’s room and she was introduced to him. Pete and Tony acted as though they were old friends. Immediately after introductions were made, Tony told Ms. Thomas she was not to tell anyone about him or what they were doing because if word got out, “[he was] a dead man”. In his oral evidence, Tony elaborated that this was to create the impression he worked with the criminal element. Ms. Thomas assured Tony she wouldn’t tell anyone about him or the meeting.
[15] The meeting with Tony lasted an hour. Ms. Thomas arrived with a drink in her hand and drank from it periodically throughout the meeting. Pete took his shoes off and laid on one of the beds. Ms. Thomas appeared relaxed and engaged in the conversation. The conversation was friendly, no threats were made and the room had been set up so Ms. Thomas had two ways to exit - one through the hotel room door and one through the patio door. During the conversation with Tony, apart from telling and showing him how she killed her husband, she made statements that could be considered bad character evidence. For example, she told Tony and Pete she had had an affair with Mr. Allen’s son Mark, she stated she had no conscience and when Tony joked about hiring her, she said she had always wanted to be a sniper.
[16] The focus of the meeting with Ms. Thomas was her upcoming polygraph test. Tony provided her with considerable detail as to how the polygraph measures physical changes in one’s pulse and blood pressure, among other measurements, to detect whether the individual is telling the truth or not in response to benign or stimulating questions. He told Ms. Thomas the key to defeating the polygraph was to essentially get the energy out of the lie so that it became undetectable. He told her he would assist her to beat the polygraph so that the police would leave her alone. He said “The second thing of course is we’re gonna alter that [the physiological response to lying]. You’re gonna walk away here today with a viable story that is plausible to them [the police] and they’re gonna be going..the these fuckers are gonna fucking scratching their fucking heads and they’re gonna leave you alone forever.”
[17] Tony simulated some test questions and when he asked Ms. Thomas if she killed her husband and she said no, he told her he could tell she was lying. This led to a conversation in which Ms. Thomas admitted she killed her husband and she re-enacted how she did it. She commented that Mr. Allen deserved it to which Tony did not respond. He told her a number of times he didn’t care that she had done it. He complimented her on her strength and her ability to deceive the police for over two years. He also told her she was under no obligation to take the polygraph and could simply not show up for it.
[18] Once the accused admitted killing Mr. Allen, Tony prompted more conversation to obtain details, saying “so Robbie was lying on the couch”. The accused corrected him and said no, Mr. Allen was sitting on the couch. She then had Tony sit in the chair and demonstrated how she came up behind Mr. Allen with the knife and stabbed him in the right side of his chest over his right shoulder. The following exchange between Ms. Thomas and Tony took place during the demonstration:
Beverly Thomas: And so I just I’m coming up behind him
Tony: Yeah
Beverly Thomas: And he says to me Beverly what are you doing
Tony: Yeah
Beverly Thomas: And I look down and I have a knife in my hand
Tony: Yeah
Beverly Thomas: And I always fucking dreamed about doing it
Tony: Yeah
Beverly Thomas: So I’m just fucking that
Tony: Right on
Beverly Thomas: And the next thing I know
Tony: Get it out get it out
Beverly Thomas: I’m fucking
Tony: What happened
Beverly Thomas: He’s walking towards me like this
Tony: Okay so
Beverly Thomas: Like he gets up
Tony: Kay so how how does he get up describe it to me
Beverly Thomas: He stood okay the next thing like I’ve kinda come to…he’s up
Tony: Yeah
Beverly Thomas: He’s turned around this way
Tony: Okay yeah
Beverly Thomas: And he’s got his hands here
Tony: Okay
Beverly Thomas: And he he’s walking towards me
Tony: Okay
Beverly Thomas: He comes to the walks this way
Tony: Yeah
Beverly Thomas: And he goes to the kitchen
Tony: Yeah
Beverly Thomas: And falls down on the floor
Tony: Okay so
Beverly Thomas: But between me stabbing him
Tony: Yeah
Beverly Thomas: And the fucking I don’t recall
Tony: Yeah
Beverly Thomas: Taking the fucking knife
Tony: Yeah
Beverly Thomas: And taking it to the kitchen and washing it
Tony: Okay that’s (unintelligible)
(simultaneously talking)
Beverly Thomas: So I must of done that and then come back and then he’s walking towards me with his hands like this
Tony: Got ya so he’s
Beverly Thomas: And then he fell down
Tony: So now he falls in the kitchen
Beverly Thomas: Yeah yes
Tony: And then what what happens next
Beverly Thomas: I just called 911
Tony: Beautiful what did you say when you when you called 911
Beverly Thomas: I told them he was stabbed with a fucking knife my…idiot fucking
Tony: Oh it’s all good it’s all good love
Beverly Thomas: I shouldn’t of said that
Tony: It’s all good love it’s all good
(simultaneously talking)
Beverly Thomas: I (unintelligible) my mistake
Tony: It’s all good it’s no mistake no mistake how do you feel now
Beverly Thomas: Great
[19] Ms. Thomas then showed Pete and Tony how Mr. Allen had walked to the kitchen and collapsed on the floor. She commented that she did not remember taking the knife out of Mr. Allen and throwing it in the sink, but that she must have as that was where it was when the police arrived. In the re-enactment, Ms. Thomas’ account and physical movements were consistent with the location of the stab wound in Mr. Allen’s autopsy photo, as well as a photo of a skeleton on the couch on which he was stabbed with directional arrows showing the trajectory of the knife.
[20] At the end of the meeting with Tony, Ms. Thomas hugged him and thanked him and they talked about getting together again before the test. Ms. Thomas and Pete then got into his vehicle and drove back to Digby. Pete’s vehicle was set up with a camera and recording equipment pointing in the direction of Ms. Thomas in the passenger seat.
[21] On the ride back to Digby, Pete engaged Ms. Thomas in conversation about the meeting with Tony. She expressed that she felt good about the meeting. She volunteered that Mr. Allen’s best friend had given her the idea to suggest to police that perhaps Mr. Allen had killed himself because he had cancer. Unprompted, Ms. Thomas told Pete “Robbie’s best friend, he said Bev, he says, a fucking ninja warrior that’s what they do they fucking take a sword man and stab themselves”.
[22] At one point, Pete asked Ms. Thomas why she felt Mr. Allen deserved it. The following exchange took place:
Pete: So one thing and I was surprised he didn’t ask, you said he deserved it, why?
Beverly Thomas: Oh my life wasn’t good Peter
Pete: No?
Beverly Thomas: No no, a lot of verbal abuse mental abuse and no fucking money all the time cuz it all went to drugs
Pete: Not physically abusive though?
Beverly Thomas: No no no the others are bad enough.
[23] Ms. Thomas also went into considerable detail about the affair she had with Mr. Allen’s son.
[24] There were long periods of silence in the vehicle on the way home. Ms. Thomas smoked, drank from a can and looked relaxed. She and Pete discussed simply not showing up for the polygraph as Tony suggested. At the end of the ride she got out of the car and hugged Pete.
The Accused’s Position
[25] Counsel for Ms. Thomas argues that her confession arose in the context of a Mr. Big operation, and she should thus have the safeguards contemplated in R. v. Hart, making the statement presumptively inadmissible.
[26] In support of his contention that the undercover work amounted to a Mr. Big operation, counsel for Ms. Thomas points to the length of the operation, the nature of the relationship cultivated between the undercover officers and the accused, Ms. Thomas’ personality (she had drug addiction issues), the set up of the meeting with Tony in which the accused was in a relatively confined space despite multiple points of egress and the fact that she was induced to confess in order to avoid the continued investigation by the police.
[27] The defence argues the confession is unreliable because it was coerced, and that the police conduct in this matter amounts to an abuse of process. Defence counsel contends that the police participated in the criminal offence of obstructing justice and allowing evidence elicited in this context would bring the administration of justice into disrepute.
[28] The defence submits that Ms. Thomas cannot have a fair trial if the evidence of the confession is allowed in as it is highly prejudicial and accompanied by a significant amount of bad character evidence which would colour the jury’s opinion.
The Crown’s Position
[29] The Crown argues the undercover operation before the court is not in fact a Mr. Big operation and the confession simply amounts to a confession to an undercover officer in the course of his/her duties which does not trigger a Hart analysis.
[30] In the alternative, the Crown submits that should the court find that the undercover operation is a variant of Mr. Big, the evidence ought to be admitted as it meets the two-pronged test in Hart.
Issues
[31] Did the actions of the undercover police officers amount to an offence pursuant to s. 129(a) or s. 139 of the Criminal Code, R.S.C., 1985, c. C-46?
[32] Did the actions of the undercover police officers violate Ms. Thomas’ rights under s.7 of the Canadian Charter of Rights and Freedoms?
[33] Does the undercover scheme involving Ms. Thomas amount to a Mr. Big operation, making her confession presumptively inadmissible? If so, is the confession admissible pursuant to the two-pronged test in Hart?
[34] In the event that the court finds the undercover operation does not meet the criteria for a Mr. Big operation, should the confession be nonetheless excluded on the basis that it is more prejudicial than probative?
Law and Analysis
Section 7 and the Confessions Rule
[35] Pursuant to s. 7 of the Charter, an accused has a right to remain silent at any time he/she/they interacts with a person in authority, whether or not they are arrested or detained.
[36] The right to silence prohibits state actors from eliciting a confession from a person who is detained. Confessions to a person in authority cannot be admitted into evidence unless the prosecution establishes beyond a reasonable doubt that the statement was made freely and voluntarily: see R. v. Hodgson, 1998 CanLII 798 (SCC), [1998] 2 S.C.R. 449, at para. 48. Statements by a detained person, whether to a person in authority or otherwise, may also be excluded where they were taken in a manner that violated the individual’s right to silence: see R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151, at p. 30, 34-36; R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at paras. 34-37. Mr. Big operations do not engage the right to silence because accused persons are not detained by police at the time of the confession. The confessions rule, which requires the Crown to prove an accused statement to a person in authority is voluntary, does not apply because the accused does not know the undercover agent is in fact a police officer when he/she/they confesses: see Hart, at para. 64.
[37] In the matter before, me I have no difficulty finding that s. 7 is not applicable. First, it is clear on the evidence, Ms. Thomas was not detained. She willingly accompanied Pete to the meeting with Tony. In the motel room there were two avenues of egress: the hotel room door and the patio door. Ms. Thomas appeared relaxed, moved around the room freely and used the washroom. It is also clear from the evidence she did not know that the person to whom she was confessing was an undercover police officer. In the vehicle with Pete on the way home, Ms. Thomas appeared comfortable drinking from a canned beverage and smoking while chatting.
Is the Undercover Operation a Mr. Big Operation?
[38] A traditional Mr. Big operation is a scheme where undercover police officers create a fictitious violent criminal organization into which an accused is recruited, befriended and promised financial security and in which he/she/they is induced to confess to a crime in order to belong. The scheme raises concerns about the reliability of a confession, prejudice to the accused and potential police misconduct: see Hart, at para. 81.
[39] Writing for the majority in Hart, at paras. 68 and 69, Moldaver J. comments that the nature of Mr. Big operations make them ripe for a false confession, as an accused is made to believe the fictitious criminal organization can provide financial security, acceptance and friendship, and boasting of past violent behaviour is incentivized. He states at para. 69, “It seems a matter of common sense that the potential for a false confession increases in proportion to the nature and extent of the inducements held out to the accused.”
[40] At para. 73, Moldaver J. explains that Mr. Big confessions “are invariably accompanied by prejudicial facts regarding the accused’s character”. This of course is at odds with the general rule that bad character evidence is ordinarily inadmissible unless the Crown can demonstrate its probative value outweighs its prejudicial effect. At para. 74, Moldaver J. states that bad character evidence surrounding these confessions
causes ‘moral prejudice’ by marring the character of the accused in the eyes of the jury, thereby creating a risk that the jury will reason from the accused’s general disposition to the conclusion that he is guilty of the crime charged, or that he is deserving of punishment in any event. And it causes “reasoning prejudice” by distracting the jury’s focus away from the offence charged, toward the accused’s extraneous acts of misconduct. [Citations omitted.]
[41] Mr. Big schemes also open the door to police misconduct as part of the fiction created to evoke a confession from an accused. The operation in Hart involved threats and acts of violence in the presence of the accused. Taken too far, police conduct in these operations can impact the reliability of a confession and can lead to an abuse of process: see Hart, at para. 78.
[42] To respond to these three concerns, the Supreme Court in Hart created a two-pronged test. The first prong creates a common law rule making Mr. Big confessions presumptively inadmissible, requiring the Crown to establish their admissibility by proving, on a balance of probabilities, the probative value of the confession outweighs its prejudicial effect. Moldaver J. explains at para. 85:
In this context, the confession’s probative value turns on an assessment of its reliability. Its prejudicial effect flows from the bad character evidence that must be admitted in order to put the operation and the confession in context. If the Crown is unable to demonstrate that the accused’s confession is admissible, the rest of the evidence surrounding the Mr. Big operation becomes irrelevant and thus inadmissible. This rule, like the confessions rule in the case of conventional police interrogations, operates as a specific qualification to the party admissions exception to the hearsay rule.
[43] In assessing the reliability of the confession, the court must examine and assess the circumstances in which it was made. At para. 102 of Hart, Moldaver J. states
these circumstances include — but are not strictly limited to — the length of the operation, the number of interactions between the police and the accused, the nature of the relationship between the undercover officers and the accused, the nature and extent of the inducements offered, the presence of any threats, the conduct of the interrogation itself, and the personality of the accused, including his or her age, sophistication, and mental health.
[44] Since Hart, the police appear to have altered their undercover activities. Ontario courts have found several operations to be variations of Mr. Big which nonetheless trigger the Hart analysis.
[45] In R. v. Kelly, 2017 ONCA 621, 387 C.R.R. (2d) 93, an undercover police officer posed as an insurance salesperson and, after a series of interactions with the appellant, told him there was a $571,000 life insurance policy payable to him once he was cleared by police in his spouse’s murder. The undercover officer told the appellant he had a friend who was dying of cancer who would confess to the murder if he was able to share in the proceeds, but that to be convincing, the appellant needed to provide details regarding his wife’s murder. He did so. He was convicted at trial and appealed, arguing his confession was a product of a Mr. Big operation and ought not have been admitted pursuant to the two-pronged test in Hart. Feldman J.A., at paras. 35 and 36, noted that while the undercover operation did not have many of the most offensive tactics of a traditional Mr. Big scheme, the application of the Hart framework was still warranted because there remained sufficient potential for an unreliable confession, prejudicial effect and police misconduct. Feldman J.A. held that
the scheme is clearly a variation of a Mr. Big, with the same police intent to induce a stranger into dishonest conduct by holding out a potentially powerful inducement to confess, whether truthfully or untruthfully. Therefore, reliability is engaged, as is prejudice. Second, in my view, it serves little purpose to conduct an analytical exercise of differentiating and distinguishing variations of police schemes, when the same concerns are raised, even though those concerns may be attenuated.
The appeal was ultimately dismissed as the Court of Appeal held that the trial judge did not err in admitting the confession of the appellant.
[46] A similar scheme was used in R. v. Knight, 2018 ONSC 1846, where an undercover officer posed as a fence for stolen property and befriended the accused. After a period of time, the accused was introduced to “Uncle Dan” who explained the accused could escape criminal liability by paying $20,000 to an associate who was dying of cancer and willing to confess to the murder. As part of the scheme, the accused took undercover officers to the scene and provided a detailed description of events. The Crown brought the application per Hart and the trial judge accepted that it amounted to a variation of Mr. Big. He noted the investigation lacked the traditional incentives of Mr. Big, stating “Macdonald was the proposal’s self-serving beneficiary; there was no quid pro quo” and as such, the investigation did not involve “an inducement that negates the threshold reliability of MacDonald’s confession”: Knight, at paras. 40, 41.
[47] In R. v. Lee, 2018 ONSC 308, the accused was recruited to participate in petty criminal activity with undercover officers. Once the relationship was well established, police staged a traffic stop in which the identification of all individuals in the car was taken, including Mr. Lee’s. The officer who conducted the traffic stop told the accused he was a suspect in a Richmond Hill homicide and asked him to call a specific officer in the York regional homicide department. This led to a conversation between the accused and the undercover officers in which they suggested they had a “fall guy” who was dying and could confess to the murder if he had sufficient information. He eventually made an inculpatory statement that Boswell J. admitted into evidence. Boswell J. found there were no real threats of violence by the organization and the inducement was somewhat toned-down and “d[id] not come close to those described in Hart”: Lee, at para. 331. He concluded “Mr. Lee got suckered. That’s the essence of a Mr.Big operation: trickery. But in my view, it did not succeed as a result of police coercion”: Lee, at para. 336. In admitting the confession, he held its admission “can be attenuated to some extent through editing and a clear jury instruction”: Lee, at para. 121.
[48] In R. v. Zvolensky, 2017 ONCA 273, 135 O.R. (3d) 401, the Crown argued an undercover scheme was not a Mr. Big operation. The Court of Appeal did not make a specific determination on this point, finding instead that some level of prejudice flowing from the admission of the impugned evidence was sufficient to trigger the Hart framework: see Zvolensky, at paras. 84-85.
[49] Having read the caselaw, I agree with the defence that the undercover operation implicating Ms. Thomas was a Mr. Big operation, albeit a variation of it. On the evidence before me, I find the police tinkered with the traditional Mr. Big scheme to remove its most offensive parts. While there was no criminal organization, not unlike the undercover officers in Kelly, Knight and Lee, Pete and Pam cultivated a relationship with Ms. Thomas, engendering her trust in them. That relationship led Ms. Thomas to agree to speak to Tony in an effort to defeat the polygraph test. While not financial, the inducement was the escape of criminal liability by passing the polygraph test. This was essentially promised to her by Tony during their conversation in the hotel room.
[50] In my view, Ms. Thomas’ confession is presumptively inadmissible and the two prong-test in Hart is triggered. The onus is on the Crown to prove on a balance of probabilities that the confession is reliable and its probative value outweighs its prejudicial effect.
[51] In assessing the reliability of the confession, I consider that the undercover operation lasted 14 months and resulted in the cultivation of a friendship between Ms. Thomas, Pam and Pete. There was no evidence the relationship was exploitative and defence counsel conceded there was nothing untoward about Pete and Pam’s relationship with Ms. Thomas. Ms. Thomas did not know Tony previous to their only meeting. In the hotel room, the undercover officers did not threaten or intimidate Ms. Thomas. Their conversation was friendly, pleasant and complimentary of her. While Tony presented as involved with the criminal element in assisting others to defeat the polygraph, he exhibited no violence or otherwise concerning behaviour. Tony could be described as animated and informative in his conversation and Ms. Thomas appeared relaxed. She was free to move about in the room. She had a drink from a canned beverage in her hand, she used the washroom and she answered questions and joked with the undercover officers. She led Tony through the re-enactment of the stabbing, correcting him when he suggested Mr. Allen was laying on the couch when the incident occurred. Her conversation with Pete in the car on the way home was similarly free from coercion and was relaxed. Ms. Thomas hugged both undercover officers at the end of her interactions with them. I also find Ms. Thomas was not suffering from any mental health issues or vulnerabilities. While defence counsel raises that she had a drug addiction in her interactions with the undercover officers Ms. Thomas appeared sober, coherent, measured and in control.
[52] The court must also consider the nature of the inducement made to Ms. Thomas. Unlike Hart, the inducement was not significant financial gain or membership in the criminal organization which might elevate the likelihood of a false confession; it was the escape of criminal liability. In my view, this increases the probative value and reliability of the confession. This, together with the fact that the confession and re-enactment are consistent with the autopsy photo and the photo of the skeleton on the couch showing the trajectory and location of the knife during the alleged stabbing, leaves no question that the videos and confession are highly probative. Taking the whole of the circumstances surrounding the confession into account, I find the confession reliable. Its probative value far outweighs its prejudicial effect which can be mitigated by excluding bad character evidence which is irrelevant or unessential to the narrative.
[53] Having found the confession reliable, the onus now falls to the defence to establish that the police conduct during this undercover operation amounted to an abuse of process. The defence argues that the police engaged in the undercover operation to subvert Ms. Thomas’ s. 7 Charter rights and the confessions rule. The defence submits that in so doing, the police conduct in the operation went too far, leading officers to engage in a criminal offence against the administration of justice. The defence contends the undercover officers turned Ms. Thomas into a criminal by having her store and purchase stolen goods and by setting her up to participate in an obstruction of justice by learning how to defeat the polygraph test. The defence further submits that Ms. Thomas was coerced into her confession by Tony who showed her how to confess and not how to beat a polygraph.
[54] I am not persuaded by these arguments. In most Mr. Big operations, undercover agents engage in fictitious criminality. There is no difference in the matter before this court. Apart from the fact that taking a polygraph test is voluntary, the entire operation was fictitious. No test was actually going to be administered and no police officer was going to be obstructed in his/her/their duties. The undercover agents and investigating officers were all involved in the deception. As for Ms. Thomas’ willingness to participate in the storage and purchase of stolen goods, that evidence, along with other irrelevant bad character evidence, is inadmissible and can be excluded. In fact, the Crown submits that portions of the evidence would not be adduced.
[55] As to defence counsel’s submission that Ms. Thomas was coerced into confessing, for the reasons set out above, I do not find that to be the case. Far from it. The officers were polite and friendly and in no way intimidating. Ms. Thomas took a directing role and actively participated in the re-enactment of the stabbing. She appeared to be relaxed, attentive, sober and able to articulate and demonstrate what happened. Her movements were in no way restricted.
[56] In my view, the police conduct in this operation is nowhere near conduct that would shock the community and bring the administration of justice into disrepute.
[57] In the result, taking all of the circumstances into consideration, the two videos that include the re-enactment and confessions will be admitted into evidence. Any prejudice arising from irrelevant bad character evidence can be mitigated through exclusion and any prejudice arising from Ms. Thomas’ willingness to participate in an obstruction of justice can be mitigated by a strong charge to the jury.
Date: December 15, 2021
Justice Nathalie Champagne