In R v Derbyshire,1 the Nova Scotia Court of Appeal considered the extent to which R v Hart 2 applies to police stings outside of the Mr. Big context. In Mr. Big operations, undercover police officers befriend suspects and lure them into fictitious criminal organizations to obtain information about an ongoing police investigation. The suspect discovers that the organization provides financial rewards and friendships, but their membership must be approved by the crime boss, Mr. Big. Mr. Big requires the suspect to confess to committing the crime under police investigation. He dismisses denials of guilt and presses the suspect to confess. If a confession ensues, the suspect is arrested and charged.3
Given the coercion involved in Mr. Big operations, the reliability of the confessions obtained thereby is suspect. In Hart, the Supreme Court of Canada adopted a new common law rule of evidence which provides that Mr. Big confessions are presumptively inadmissible at trial. To rebut this presumption, the Crown must prove that the confession is reliable such that its probative value outweighs its prejudicial effect.4 A reliable confession may still be excluded by virtue of the common law doctrine of abuse of process if the police conduct in question threatens the integrity of the justice system. While there is no bright-line rule for making this determination, the threshold for abuse will be met where the police misconduct is coercive or violent in nature.5
The Nova Scotia Court of Appeal in Derbyshire held that the Hart principles on abuse of process can be employed in the context of general police stings. While the new common law rule adopted in Hart does not apply to general police stings, Hart may still be considered to determine whether police misconduct gives rise to an abuse of process which requires the exclusion of the evidence obtained during an undercover operation.6
The Nova Scotia Court of Appeal has made it clear that no matter what type of undercover sting the police decide to undertake, the courts cannot condone abusive police conduct.
The police sting in Derbyshire did not constitute a conventional Mr. Big operation. Two undercover officers posed as members of an outlaw motorcycle gang from Montreal. They planned to confront Brittany Derbyshire to obtain information on the location of a murder suspect, Steven Skinner, with whom Derbyshire had trafficked cocaine.7
The undercover officers approached Derbyshire in her parking garage and forced her back into her vehicle by grabbing her wrist. One officer sat next to Derbyshire while the other blocked her exit. They told her that they were in Halifax to deal with Skinner’s mess; there was a rat and they had to make evidence disappear. Derbyshire could assist them, but they had to be sure that she was not the rat. Derbyshire confessed that she drove Skinner to the Moncton airport following the murder and that she knew where the murder weapon was located.8 The officers immediately drove Derbyshire to Moncton to retrieve the weapon. On the way back to Halifax, she took them to the site where she had burned Skinner’s clothing. The officers escorted Derbyshire into her apartment and commented on the photographs of her family. She was confined by the undercover officers for nearly eight hours. Derbyshire cooperated throughout because she feared for the safety of herself and others.9
Derbyshire was charged with being an accessory to murder. At trial, the evidence obtained from the undercover sting was excluded. The trial judge found that the police conduct amounted to an abuse of process pursuant to Hart due to the use of intimidation and implied threats of violence, and Derbyshire was acquitted.10 On appeal, a unanimous court upheld the acquittal. The Nova Scotia Court of Appeal held that principles on abuse of process in Hart can be used to assess whether police conduct during general undercover operations crosses the line from skillful police work to conduct that, if condoned, would harm the integrity of the justice system.11 The doctrine of abuse of process constitutes a necessary limitation on the state’s power to enforce the law.12 The Court of Appeal found no reason to limit Hart principles on police misconduct to Mr. Big operations alone because it is the coercive power of the “threat of harm to the accused or to others that matters, not whether the police had the time and resources to mount a full-fledged “Mr. Big” operation.”13
The trial judge found that Derbyshire made statements to the undercover officers and complied with their demands out of fear created by their threatening and intimidating conduct.14 The Nova Scotia Court of Appeal determined that the trial judge was justified in excluding Derbyshire’s statements and the physical evidence on that basis. In light of the trial judge’s findings, no other remedy sufficiently protected the integrity of the justice system.
The ruling in Derbyshire has made it clear that the Crown cannot rely on the difference between types of undercover police operations in order to excuse police misconduct. Where the right to silence, the voluntary confession rule,15 and the new common law rule in Hart do not apply on the facts, principles in Hart on abuse of process can be used to analyze the nature of police conduct. This approach allows the court to distance itself from police conduct “that goes beyond what is acceptable in protecting society from criminal conduct” by excluding the evidence obtained during abusive sting operations.16 It matters little whether the police misconduct occurred during a Mr. Big operation or another type of undercover sting. What counts is whether the police conduct was coercive, violent, or abusive. In the context of general undercover operations, Hart principles on abuse of process can preserve the integrity of the justice system. The ends of law enforcement do not justify abusive means.17 Derbyshire illustrates that this principle is true regardless of the type of undercover sting operation that is undertaken.
1 2016 NSCA 67, 353 NSR (2d) 40 [Derbyshire].
2 2014 SCC 52,  2 SCR 544 [Hart].
3 Ibid at paras 1—2.
4 Ibid at para 85.
5 Ibid at paras 86 and 113—117.
6 Derbyshire, supra note 1 at paras 55 and 104.
7 Ibid at paras 3, 10, and 19.
8 Ibid at paras 24—25.
9 Derbyshire, supra note 1 at paras 25—30 and 40.
10 Ibid at para 67.
11 Ibid at para 104.
12 Hart, supra note 2 at paras 112—113.
13 Derbyshire, supra note 1 at para 104.
14 Ibid at para 142.
15 Note that the statements in Derbyshire were not made to a person in authority because Derbyshire was unaware that the outlaw motorcycle gang members were in fact undercover police officers. This precludes an examination of the statement’s admissibility under s 7 of the Charter or the voluntary confessions rule.
16 Derbyshire, supra note 1 at para 90.
17 Ibid at para 98.