SUPREME COURT OF NOVA SCOTIA

Citation: R. v. Derbyshire, 2014 NSSC 371

Date: 20141015
Docket: Halifax, No. 413042
Registry: Halifax
Between:
Her Majesty the Queen

v.

Brittany Leigh Derbyshire

DECISION ON VOIR DIRE

Restriction on Publication: s.486.5(1) of the Criminal Code

Editorial Notice:

Identifying information has been removed from this electronic

version of the judgment.

Judge:

The Honourable Justice Michael J. Wood

Heard:

June 23-27, July 25 and October 1, 2014, in Halifax, Nova

Scotia

Final Written
Submissions:

September 22, 2014

Counsel:

Susan Bour and Alicia Kennedy, for the Crown

Patrick K. MacEwen, for the Defendant

Page 2

By the Court:
[1] On the morning of July 14, 2011 two undercover RCMP officers confronted
Brittany Leigh Derbyshire in the parking garage of her apartment building. They
were posing as members of an outlaw motorcycle gang from Montreal and were
looking to obtain information about the murder of Stacey Adams which had taken
place in Lake Echo, Nova Scotia on April 10, 2011. Ms. Derbyshire provided the
officers with information concerning the events of that date, including her
activities and the location of physical evidence potentially related to the murder.
On July 22, 2011 Ms. Derbyshire was charged with being an accessory after the
fact to the murder of Mr. Adams contrary to s.240 of the Criminal Code.
[2] Ms. Derbyshire has made an application for the exclusion of evidence
obtained from her by the undercover police officers alleging an infringement of her
right to silence and right against self-incrimination under s.7 of the Canadian
Charter of Rights and Freedoms. Alternatively, she seeks exclusion of the
evidence or a stay of proceedings on the basis that the police actions amount to an
abuse of process.
[3] Ms. Derbyshires applications were heard at a voir dire held on June 23
27, July 25, and October 1, 2014. As part of the hearing there was testimony from
Ms. Derbyshire as well as five police witnesses including the two undercover
officers.
[4]

This is my decision with respect to Ms. Derbyshires applications.

[5] Much of the evidence given by the police officers was hearsay which would
not be admissible for its truth. It was adduced to explain the investigative
decisions and, in particular, the nature of the undercover operation which was
undertaken. I agree with Crown counsel that this evidence is admissible for that
limited purpose. To the extent that I discuss the circumstances of Mr. Adams
murder and the subsequent events which took place on April 10, 2011 I am only
doing so to provide context for the undercover operation which took place on July
14, 2011. My description of events may be different than the facts established by
the evidence presented in any trials resulting from Mr. Adams death.

Page 3
Background
[6] Stacey Adams body was found by police in Lake Echo on April 10, 2011 as
a result of a 911 call. He had apparently been shot multiple times. Although the
police identified several people who they believed had material information
concerning the murder, they received very little initial cooperation from potential
witnesses. Based upon information obtained from a number of sources, the police
came to the conclusion that Mr. Adams had been shot by Steven Skinner. Mr.
Skinner was well known to the police and had a lengthy criminal record. In April
2011 he was prohibited from being in Nova Scotia by court order.
[7] As the investigation unfolded, the police formed the opinion that Mr.
Skinner had flown from the Moncton airport to British Columbia late in the day on
April 10, 2011. The next day he flew to Mexico with a return ticket for the
following week. He did not travel back to Canada on that ticket.
[8] By June 2011 the investigation had generated sufficient information for the
police to charge Mr. Skinner with the murder of Mr. Adams. They were also fairly
certain he had been driven to the Moncton airport on April 10 by Ms. Derbyshire.
[9] On May 27, 2011the police obtained an authorization and a general warrant
pursuant ss.185, 186 and 487.01 of the Criminal Code. The authorization
permitted interception and recording of the communications of a number of people
including Ms. Derbyshire and Mr. Skinner. There were various locations listed
where interceptions could take place, including the residence and motor vehicle of
Ms. Derbyshire. There was a catch-all provision permitting interception at other
places when there were reasonable grounds to believe they were, or would be, used
by any of the listed persons.
[10] Pursuant to the terms of the authorization, arrangements were made to
intercept telephone communications of Ms. Derbyshire. The authorization expired
60 days after May 27, 2011.
Lead up to the Undercover Operation
[11] Detective Constable Steven Langille of Halifax Regional Police Service was
the lead investigator in the Adams homicide. He testified that the authorization
issued on May 27, 2011 was not initially successful in obtaining useful evidence.
He decided to request authority to include an undercover component in the
investigation. His objective was to make contact with one or more of the people

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identified in the authorization for purposes of stimulating conversations which
could then be intercepted. Detective Constable Langilles prior experience in
undercover operations was limited and involved street level drug transactions.
[12] In this case, the undercover operation was to be carried out by the RCMP.
Detective Constable Langille prepared a document entitled Investigational
Planning and Report which was also referred to as Form 2350. The purpose of
the document was to set out the parameters of the proposed undercover operation
so that a decision could be made with respect to whether it should be authorized. It
included a general description of the Adams homicide and identified Ms.
Derbyshire as a potential accessory after the fact. The plan suggested that the
scenario to be used should involve members of an outlaw motorcycle gang who
were being adversely affected by the fallout from the murder. By contacting the
targets (which included Ms. Derbyshire) it was hoped that communications would
result and be intercepted pursuant to the existing authorization.
[13] The request for an undercover operation was approved and Sergeant David
Chubbs of the RCMP was designated as the cover officer. It was his responsibility
to design the specific undercover scenario and direct the operation. He has been a
cover officer, as well as an undercover operator, since 2000. He estimated that he
had been involved in approximately 80 operations in various capacities. As the
cover officer Sergeant Chubbs indicated that it was his responsibility to provide
liaison between the investigator and the undercover team. The cover officer
determines the nature and extent of the information which will be provided to the
operators.
[14] Sergeant Chubbs said that in designing an undercover scenario he does not
want the target to be afraid. He tries to create a situation of trust and an
atmosphere where the target will want to talk. He believes they are more likely to
speak openly when they are not frightened.
[15] After discussions between Sergeant Chubbs and the investigators it was
decided that Ms. Derbyshire would be the target. It was not to be an ongoing
operation but rather a one-shot scenario. Sergeant Chubbs wanted to develop a
cover story that would be believable and require immediate attention. He decided
that it would involve representatives from a criminal organization in Montreal who
had business dealings with Mr. Skinner and his associates which were being
adversely affected by the police attention arising from Mr. Adams homicide.
Sergeant Chubbs identified Corporal P. I. of the RCMP as his preferred choice for

Page 5
the operation. He described him as a flamboyant Qubcois who was very
experienced and who would be able to present as a very credible gangster. The
operation was scheduled around Corporal I.s availability.
[16] On July 13, 2011 Corporal I. and RCMP Sergeant D. P. arrived in Halifax.
Corporal I. has been a member of the RCMP since 1998 and had worked fulltime
as an undercover officer in Quebec between 2004 and 2011. During that period he
performed the role of an operator as well as a cover officer. His undercover
experience related only to major crimes such as murder, arson, armed robbery and
national security. Sergeant P. has been a member of the RCMP for 33 years and
been involved in undercover work for 28 years. He estimated that he had
participated in approximately 100 operations. Both officers had experience
playing the role of a member in a criminal organization and, in particular, outlaw
motorcycle gangs.
[17] After arriving in Halifax, Corporal I. and Sergeant P. were given a briefing
by Sergeant Chubbs about the operation. Detective Constable Langille was also in
attendance. They were told this was a one-time chance to approach Ms.
Derbyshire. They were told to do so in a public place where she would have the
option of walking away if she wished. They were told, generally, about the
circumstances of the Adams homicide and the police belief that Ms. Derbyshire
drove him to the airport in Moncton on April 10.
[18] I. and P. knew they would be playing members of an outlaw motorcycle
gang from Quebec who had been sent to Nova Scotia because of the Adams
murder. The message to be delivered was that their business was being adversely
affected by the murder and the attention which it had attracted. They were sent to
make sure there were no loose ends and to clean up the mistake. They were
instructed to try and get Ms. Derbyshire to talk about her role in the murder and
subsequent events. She would be asked to carry out a re-enactment and provide
information about physical evidence. At this point no murder weapon had been
found.
[19] The scenario outline prepared by Sergeant Chubbs was entered as Exhibit
16. Although a copy was not given to I. and P. prior to the operation, the
information in it was. In that document the stated objective was:
To determine what knowledge and involvement Brittany Derbyshire had in the
homicide of Stacey Adams.

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[20] The operational plan included in Exhibit 16 was as follows:
I. and P. will pose as business associates of Steven Skinner from the Montreal
area. They were sent down to Halifax to deal with the recent homicide of Adams
and that a witness to that homicide has come forward and cooperated with the
police. Derbyshire will be approached outside her residence by the operators and
questioned about her knowledge and involvement in this homicide. The operators
will ask Derbyshire to show them where any evidence maybe (sic) hidden or
destroyed.

[21] This is consistent with the recollection of both I. and P. who say they were
told to confront Ms. Derbyshire and obtain as much information as possible about
her participation in the Adams murder. Corporal I. said his main objective was to
obtain admissible evidence.
[22] It was clear from the evidence of Langille, Chubbs, I. and P. that the
investigation team has very little role to play in the actual undercover operation.
Once approved, the design of the scenario and its execution in the field is the
responsibility of the undercover team. The cover officer has overall responsibility
for design of the scenario and delivery of instructions to the operators.
[23] When Detective Constable Langille decided to request an undercover
operation his stated goal was to stimulate activity which might be captured by the
Part VI authorization which was in place. He hoped these intercepted
communications would lead him to Steven Skinner so that he could be arrested and
put on trial for Mr. Adams murder. By the time Corporal I. and Sergeant P. were
put in the field under Sergeant Chubbs direction the purpose of the operation
appears to have shifted. I. and P. were to pose as gangsters from Montreal who
were to accost Ms. Derbyshire and try to obtain statements from her concerning the
homicide and, in particular, her role in it. I. and P. were told this was a one-time
chance for them to get this information from Ms. Derbyshire.
The Undercover Operation of July 14, 2011
[24] The undercover operation began on the morning of July 14, 2011. Corporal
I. and Sergeant P. wore clothing which was of a style typical of that worn by
members of outlaw motorcycle gangs, including chains and other jewellery. A
final briefing took place with Sergeant Chubbs and they were provided with their
vehicle a rented black Suburban with tinted windows. The plan was to contact
Ms. Derbyshire at her residence, which was an apartment in Lower Sackville,
Nova Scotia. A police surveillance team was sent out to locate Ms. Derbyshire. I.

Page 7
and P. parked their vehicle outside the entrance to the underground parking at Ms.
Derbyshires apartment building. Ms. Derbyshire had spent the night at a friends
place in Bedford. She left to go home around 10:00 a.m. in her 2007 Toyota Yaris
which is a two-door hatchback model. She was located by the surveillance team
who informed the undercover officers that she was travelling.
[25] When Ms. Derbyshire arrived at her apartment building she swiped her
access key to open the garage door and drove in. She noticed the Suburban with
two men in it parked outside the entrance. Once I. and P. saw Ms. Derbyshires
car enter the building they got out of the Suburban and walked through the open
door. The garage was relatively dimly lit.
[26] Ms. Derbyshire got out of her car and noticed these two large men walking
towards her quickly. Corporal I. testified that he was ahead of Sergeant P.. He was
walking quickly and with a purpose. He described his approach as aggressive. As
he neared Ms. Derbyshire he pointed at her and shook his hand. He raised his
voice and said Brittany, jump in the fucking car. I need to fucking talk to you.
[27] Ms. Derbyshire got in the drivers seat and Corporal I. sat in the front
passenger seat. Sergeant P. stood directly outside the drivers door so that it could
not be opened. There was some question as to whether the drivers door window
was open. Ms. Derbyshire said it was up and both police officers said it was down.
[28] Once in the car Corporal I. said he continued to be aggressive in nature. He
spoke in a raised voice, stared at Ms. Derbyshire and shook his finger at her. He
described his tone as very, very direct. In accordance with the scenario designed
by Sergeant Chubbs he said they were sent by people whose business was hurt by
the murder and that they were there to clean things up. He told Ms. Derbyshire,
Dont fucking bullshit me. Dont fucking lie to me. I want to know what
happened.
[29] Corporal I. testified that Ms. Derbyshire agreed with him that business had
been hurt by the murder and said she was willing to help them out. I. was very
surprised by her response.
[30] Ms. Derbyshire testified that when she was approached by I. and P. she was
very scared. She said they looked like serious people or gangsters based upon
their demeanour and dress. She was told by the man in her car that his business in
Montreal was affected by the murder. He told her that he knew she was involved
and had driven Skinner out of Nova Scotia. He said he wanted to deal with the

Page 8
mess. He was there to deal with the rat who had been talking to the police. Ms.
Derbyshire said she was terrified of what might happen to her if she did not
provide the information the men were looking for.
[31] Within a few minutes of getting in the car Ms. Derbyshire had provided
significant information concerning the Adams murder and her involvement. She
said she was aware of some evidence in Moncton and Fall River. She drew two
rough maps on pages from the daytimer which she had in her car. This was done
at the suggestion of Corporal I..
[32] There were some discrepancies in the witnesses descriptions of what
happened in Ms. Derbyshires car. She says Corporal I. remained serious and
aggressive throughout and she tried to appear calm because she did not want to let
him know that she was terrified. She tried to be friendly and nice although it did
not change how she was treated. She testified that once she told them about the
location of the evidence in Moncton and drew the rough map, Corporal I. said that
she was going to Moncton with them to show them the location.
[33] Corporal I. said that once they were in the car and he had explained why
they were there Ms. Derbyshire became relaxed and cooperative to the point where
she volunteered to take them to Moncton.
[34] Sergeant P. said Ms. Derbyshire seemed normal and not too nervous. He
heard Corporal I. suggest that Ms. Derbyshire take them to Moncton and said Ms.
Derbyshire agreed to do so.
[35] Sergeant Chubbs maintained contact with the undercover officers throughout
the operation by text and telephone. He kept a timeline of events which indicated
that at 10:56 a.m. Ms. Derbyshire arrived by car at her apartment and by 11:12
a.m. she and the undercover officers were in the Suburban heading to Moncton. It
is clear from this that the interaction in the garage was very brief. In these
circumstances I accept Ms. Derbyshires testimony that she did not immediately
volunteer to take these strange and threatening men to Moncton to show them
where evidence had been disposed of. I believe that Corporal I. told her to take
them to Moncton. This is confirmed by Sergeant P.s recollection of the events.
[36] There were many consistencies in the evidence of Derbyshire, I. and P.
concerning the trip to Moncton and back. There were stops at Tim Hortons,
service stations and a restaurant in Moncton. Ms. Derbyshire pointed out two
locations where evidence had been disposed of. During the course of the trip there

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were further discussions about the Adams murder which may have provided some
additional details, but the essential evidence concerning Ms. Derbyshires
involvement had been disclosed by her when she was first questioned by Corporal
I. in the parking garage. There were also conversations unrelated to the Adams
murder. Ms. Derbyshire shared some personal information concerning her family
and employment with Corporal I..
[37] Although Ms. Derbyshire was allowed to keep her telephone, she was not
permitted to send or receive text messages without showing them to Corporal I..
He sat beside her in the back seat of the Suburban.
[38] Ms. Derbyshire testified that, although she was very nervous, she did not
want to give any indication of this. She answered any questions asked by Corporal
I. because she wanted to help him clean up the mess. She did not want him to
think that she was part of the problem. When they were returning from Moncton
he began to ask questions about her family and she became afraid that they might
be hurt.
[39] They arrived back at Ms. Derbyshires apartment around 6:30 p.m. Corporal
I. asked whether she still had the clothes she wore on April 10 and she offered to
go up to her apartment and retrieve them. Corporal I. said no that they would go
up with her. Ms. Derbyshire said the two undercover officers were looking at
pictures of her family and friends in her apartment. This made her nervous.
Corporal I. was described by Ms. Derbyshire as super aggressive. He said he
hoped she had told them everything so he did not have to come back and deal with
her.
[40] Corporal I. testified that once Ms. Derbyshire started to cooperate he
changed his tone and began to conduct a normal police interview. Three times
during the trip he asked her if she was afraid and she said that she was not. His
reason for doing so was that he wanted to make sure everything she said was
voluntary because she was in a situation where people might feel frightened.
[41] Corporal I. said that he was in charge throughout the trip and as they
approached Ms. Derbyshires apartment he became aggressive again to remind her
that he was the boss. He raised his voice and said Dont fucking talk to anybody
I am the only guy you can trust.

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[42] When they got to Ms. Derbyshires apartment building Corporal I. said he
ordered her to get the clothes she had been wearing that day. They followed her
upstairs to her apartment. He told her to call him the next day.
[43] According to Sergeant P. Ms. Derbyshire appeared to have a normal
demeanour during the trip to Moncton and back. They had general conversations
and told a few jokes. Corporal I. raised his voice several times when he told Ms.
Derbyshire not to lie to him. He recalled going into Ms. Derbyshires apartment
when she got her clothes for them. He did not remember her being left with any
instructions to call the next day. They left the apartment at 6:34 p.m.
[44] After leaving Ms. Derbyshires apartment I. and P. went to a debriefing with
Sergeant Chubbs and Detective Constable Langille. At that time the two
undercover officers gave their recollection of the days events. Detective
Constable Langille was surprised and excited by how well things had gone.
[45] The debriefing lasted 40 minutes following which Corporal I. and Sergeant
P. sat down separately to prepare their notes about the days events. They started
doing so at approximately 10:00 p.m.
[46] As a result of the successful operation it was decided the undercover officers
should try to reconnect with Ms. Derbyshire and obtain a recorded statement from
her. Although Ms. Derbyshire spoke with Corporal I. by telephone on July 15, no
further meeting took place and no recorded statement was ever obtained.
Positions of the Parties
Defence
[47] Ms. Derbyshire alleges that her statements to the undercover officers and the
physical evidence obtained as a result of those statements are inadmissible on the
basis that her rights under s.7 of the Canadian Charter of Rights and Freedoms
were breached.
[48] The two s.7 rights relied upon by Ms. Derbyshire are the right against selfincrimination and the right to make full answer and defence. She says the
behaviour of Corporal I. and Sergeant P. amounted to a functional detention of her
and therefore any statements which she gave infringed her right to silence and her
right against self-incrimination. The right to make full answer and defence was
allegedly breached by the failure to record her interaction with the undercover

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officers. She argues that the police had the authority and the ability to record the
discussions which took place during the undercover operation either by audio or
video recording. Without such a recording, Ms. Derbyshire claims she is unable to
properly defend herself since crucial details of the evidence have been lost.
[49] If a breach of Ms. Derbyshires s.7 rights is established the Court must still
determine whether her statements and evidence should be excluded under s.24(2)
of the Charter. Ms. Derbyshire argues that when the Court carries out the required
analysis it will result in the exclusion of this evidence.
[50] Ms. Derbyshire also submits that the undercover operation was an abuse of
process because of the failure to record the events and the manner in which her
statements were obtained. She says the threats, intimidation and confinement by
Corporal I. and Sergeant P. are the type of egregious police conduct which should
result in a finding of abuse of process. If the Court agrees, Ms. Derbyshire submits
that the appropriate remedy is a stay of proceedings or, alternatively, exclusion of
her statements and resulting evidence.
Crown
[51] The position of the Crown is that the right to silence recognized in s.7 of the
Charter is not triggered unless the person knows that they have been detained by
the police. Since Ms. Derbyshire did not know the undercover operators were
police officers the s.7 right to silence never arises.
[52] The Crown says there is no obligation for all undercover operations to be
recorded. In this case they say the possibility of Ms. Derbyshire providing detailed
statements about her involvement in the Adams homicide was unexpected and
devoting the necessary resources to arrange for recording the operation was not
warranted. The Crown argues that the authorities relied upon by Ms. Derbyshire
involve situations where police lose evidence which was known to exist or fail to
record portions of statements given by persons in custody. They submit that these
cases have no application to the undercover operation involving Ms. Derbyshire.
[53] On the issue of abuse of process, the Crown says that undercover operations
are, by their nature, somewhat unsavoury because of the scenarios being portrayed.
Courts have long recognized that police should be given considerable latitude in
how they conduct investigations, particularly into serious crimes such as murder.
The Crown says the undercover operation was carried out by experienced officers

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and does not amount to the type of behaviour which would call into question the
integrity of the judicial process and justify a finding of abuse of process.
Analysis
Application of R. v. Hart 2014 SCC 52
[54] On July 31, 2014 the Supreme Court of Canada issued its decision in R. v.
Hart. I invited counsel to provide supplemental submissions on the application of
that decision and they did so. Additional oral submissions took place on October 1,
2014. In addition to Hart , counsel discussed the companion case of R. v. Mack
2014 SCC 58.
[55] The circumstances giving rise to Hart are quite different than those in the
present case, although both were undercover police operations. In Hart the police
used a technique referred to as Mr. Big in which the target is brought into a
fictitious criminal organization and is put in a position where a confession to the
crime under investigation is sought as a condition of continuing membership in, or
admission to, the organization. These operations frequently extend over many
months and involve a significant number of undercover operators.
[56] In response to the acknowledged dangers of unreliable confessions and
wrongful convictions arising out of Mr. Big operations the Supreme Court of
Canada established a new rule of evidence which makes such confessions
presumptively inadmissible. The burden rests on the Crown to show that the
probative value of the confession outweighs its prejudicial effect. The probative
value analysis is primarily an assessment of the reliability of the confession. The
less reliable it is the less probative value it will have.
[57] Counsel for Ms. Derbyshire asks the Court to extend the reasoning of the
Supreme Court to the scenario used in this case. In my view, the risks associated
with Mr. Big operations, as described in Hart, are unique and not obviously
applicable to other undercover activities. There is nothing in the decision which
suggests that the Courts solution to the problem before them should be given
broader application.
[58] Ms. Derbyshire was not the subject of a Mr. Big undercover operation and
as a result the new rule of evidence, which places the onus of admissibility on the
Crown, does not apply. Despite this, I believe there are aspects of the Supreme
Courts analysis which are of assistance.

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[59] In his majority decision Justice Moldaver described the issues associated
with the judicial scrutiny of police undercover operations as follows:
78
Finally, Mr. Big operations create a risk that the police will resort to
unacceptable tactics in their pursuit of a confession. As mentioned, in conducting
these operations, undercover officers often cultivate an aura of violence in order
to stress the importance of trust and loyalty within the organization. This can
involve as it did in this case threats or acts of violence perpetrated in the
presence of the accused. In these circumstances, it is easy to see a risk that the
police will go too far, resorting to tactics which may impact on the reliability of a
confession, or in some instances amount to an abuse of process.
79
At present, however, these operations are conducted in a legal vacuum.
The legal protections afforded to accused persons, which are often intended at
least in part to place limits on the conduct of the police in their investigation and
interrogation of accused people, have no application to Mr. Big operations. The
confessions rule, for example, is intended not only to guard against the risk of
unreliable confessions, but also to prevent abusive state conduct (see R. v.
Hodgson, [1998] 2 S.C.R. 449, at para. 20). Yet its protection does not apply
because the accused does not know the person he is speaking to is a person in
authority. Other protections -- like the right to counsel under s. 10(b) of the
Charter are rendered inapplicable because the accused is not "det[ained]" by the
police while the operation is ongoing. And the doctrine of abuse of process
intended to protect against abusive state conduct appears to be somewhat of a
paper tiger. To date, it has never operated to exclude a Mr. Big confession, nor
has it ever led to the stay of charges arising from one of these operations.
80
In my view, the lack of an effective mechanism for monitoring the
conduct of the undercover officers who engage in these operations is problematic.
The law must enable trial judges to respond effectively to police misconduct in
this context.

[60] Justice Moldaver went on to summarize his proposed solution at para.84:

In this section, I propose a solution that, in my view, strikes the best
balance between guarding against the dangers posed by Mr. Big operations, while
ensuring the police have the tools they need to investigate serious crime. This
solution involves a two-pronged approach that (1) recognizes a new common law
rule of evidence, and (2) relies on a more robust conception of the doctrine of
abuse of process to deal with the problem of police misconduct.

[61] There are two aspects of the Hart decision which are relevant to Ms.
Derbyshires case. The first is the unwillingness of the Court to extend Charter

Page 14
rights, including the s.7 right against self-incrimination, to undercover police
operations. Both the majority of the Newfoundland Court of Appeal and Justice
Karakatsanis would have applied s.7 rights to Mr. Hart, however the majority of
the Supreme Court was not prepared to do so. Part of the courts rationale was the
availability of the common law doctrine of abuse of process to deal with
allegations of police misconduct.
[62] The enhanced use of the abuse of process principles to evaluate undercover
police operations is the other aspect of the Hart decision which I believe has
application here.
[63] I will return to the Hart decision as I consider the arguments made on behalf
of Ms. Derbyshire and the Crowns response.
Section 7 of the Charter
[64] As I have mentioned, Ms. Derbyshire argues that she was effectively
detained by Corporal I. and Sergeant P. throughout her encounter with them on
July 14, 2011. As a result of this detention, she says her right against selfincrimination under s.7 arises and was breached. In my view the majority of the
Supreme Court in Hart has rejected the proposition that detention for purposes of
s.7 can arise in an undercover police operation. In support of this conclusion I rely
on the following comments found at para.64 of that case:
Attempts to extend existing legal protections to Mr. Big operations have
failed. This Court has held that Mr. Big operations do not engage the right to
silence because the accused is not detained by the police at the time he or she
confesses (see R. v. McIntyre, [1994] 2 S.C.R. 480; R. v. Hebert, [1990] 2 S.C.R.
151). And the confessions rule which requires the Crown to prove an accused's
statement to a person in authority is "voluntary" is inoperative because the
accused does not know that Mr. Big is a police officer when he confesses (see R.
v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27).

[65] If the Supreme Court felt that s.7 rights should be extended to targets of
undercover police operations Hart would have been the perfect opportunity to do
so. Although Justice Karakatsanis felt this was the proper approach she was a lone
voice in dissent.
[66] I conclude that the s.7 right to silence is of no application in this case. Ms.
Derbyshires allegations of police misconduct are left to be assessed under the
doctrine of abuse of process.

Page 15
[67] Ms. Derbyshire also says that her right to make full answer and defence was
compromised because of the failure to record the undercover operation. The cases
relied upon in support of that proposition involves situations where evidence
obtained by the police was lost (e.g. R. v. La, [1997] 2 S.C.R. 680) or the police
interview of a complainant was not properly recorded without reasonable
explanation (R. v. Hill 2002 NSSC 2015). None of the authorities which I have
reviewed suggest that the failure to record an undercover police operation violates
the right to make full answer and defence under s.7.
[68] If I were to accept Ms. Derbyshires proposition it would mean that every
undercover operation must be audio or video recorded or else there would be a
breach of the Charter. I am not prepared to go that far.
[69] The failure to record an undercover police operation may have evidentiary
implications not related to strict admissibility. For example in Hart the Supreme
Court observed at para.93 that the failure to record the operation may make it
difficult for the Crown to meet its onus of demonstrating reliability of the Mr.
Big confession. Similarly, reliance on police officer notes prepared hours after
the fact may diminish the weight to be given to an alleged confession by a trier of
fact where there is no accurate recording of that statement.
[70] For these reasons I am not satisfied that Ms. Derbyshire has established a
breach of her rights under s.7 of the Charter and I will now consider whether the
police conduct in this case amounts to an abuse of process.
Abuse of Process
[71] Judicial review of alleged police misconduct in undercover operations
should be done through the lens of the abuse of process doctrine. This view was
expressed by Justice Moldaver in Hart at para.86:
Second, I would rely on the doctrine of abuse of process to deal with the
problem of police misconduct. I recognize that the doctrine has thus far proved
less than effective in this context. While the problem is not an easy one, I propose
to provide some guidance on how to determine if a Mr. Big operation crosses the
line from skillful police work to an abuse of process.

[72] With abuse of process the focus is on the police behaviour and whether it
might be considered harmful to the integrity of the justice system. The reliability
of any confession obtained has little significance (para.12 R. v. Hart).

Page 16
[73] In the context of a Mr. Big undercover operation Justice Moldaver
provided some guidance with respect to how the principles of abuse of process
might be applied in assessing police conduct:
115
It is of course impossible to set out a precise formula for determining
when a Mr. Big operation will become abusive. These operations are too varied
for a bright-line rule to apply. But there is one guideline that can be suggested.
Mr. Big operations are designed to induce confessions. The mere presence of
inducements is not problematic (Oickle, para. 57). But police conduct, including
inducements and threats, becomes problematic in this context when it
approximates coercion. In conducting these operations, the police cannot be
permitted to overcome the will of the accused and coerce a confession. This
would almost certainly amount to an abuse of process.
116
Physical violence or threats of violence provide examples of coercive
police tactics. A confession derived from physical violence or threats of violence
against an accused will not be admissible no matter how reliable because this,
quite simply, is something the community will not tolerate (see, e.g., R. v. Singh,
2013 ONCA 750, 118 O.R. (3d) 253).
117
Violence and threats of violence are two forms of unacceptable coercion.
But Mr. Big operations can become coercive in other ways as well. Operations
that prey on an accused's vulnerabilities like mental health problems, substance
addictions, or youthfulness are also highly problematic (see Mack, at p. 963).
Taking advantage of these vulnerabilities threatens trial fairness and the integrity
of the justice system. As this Court has said on many occasions, 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.
118 While coercion is an important factor to consider, I do not foreclose the
possibility that Mr. Big operations can become abusive in other ways. The factors
that I have outlined, while not identical, are similar to those outlined in Mack,
with which trial judges are well-familiar (p. 966). At the end of the day, there is
only so much guidance that can be provided. Our trial judges have long been
entrusted with the task of identifying abuses of process and I have no reason to
doubt their ability to do the same in this context.

[74] With confessions to undercover police officers the use of techniques which
unfairly coerce those admissions will likely lead to a finding of abuse of process.
Violence and threats of violence are obvious examples. Unlike the new evidentiary

Page 17
rule, there is no logical reason to limit Justice Moldavers comments on abuse of
process to cases involving Mr. Big confessions.
[75] In Hart there was no finding of abuse of process because the trial judge
concluded that there was no evidence showing that Mr. Hart was subject to threats
or coercion in making his confession. In fact, he was offered the opportunity to
stop his involvement in the organization at any time. (Paras. 157 and 158)
[76] In Mack the accused was given the choice about whether to provide
information about the murder under investigation. He was told that if he did not do
so he would remain at the same level and not advance to the first line in the
organization (Para. 11). The Supreme Court found no abuse of process for the
following reasons:
36
Nor did the undercover officers engage in any improper conduct which
could ground an application for abuse of process. The appellant was not presented
with overwhelming inducements. He had prospects for legitimate work that would
have paid even more than the undercover officers were offering. Nor did the
officers threaten the appellant with violence if he would not confess. The most
that can be said is that the officers created an air of intimidation by referring to
violent acts committed by members of the organization. But the appellant was not
coerced into confessing. This much is evidenced by the appellant's initial refusal
to speak with Ben and Liam about Mr. Levoir's disappearance. Indeed, the
undercover officers explicitly made clear to the appellant that he did not have to
speak with them about Mr. Levoir, and that he could remain in his current role
within the organization. None of the undercover officers' conduct approaches
abuse.

[77] Ms. Derbyshire raises the absence of an electronic recording as part of her
abuse of process argument. In this case I do not believe the decision by Detective
Constable Langille to forgo recording of the operation amounts to an abuse of
process. Nor do I believe that an adverse inference should be drawn against the
police for failure to do so. I accept that Detective Constable Langille made a good
faith decision that such a recording was not necessary in the circumstances despite
the fact that it was possible to do so. His objective in requesting the undercover
operation was to stimulate conversations which could be intercepted under the
existing authorization.
[78] In this case I have the testimony of the three participants in the operation,
Ms. Derbyshire, Corporal I. and Sergeant P.. Although there are some differences

Page 18
in their recollections I am satisfied that I can make the necessary factual findings
about the events of July 14 based upon their testimony. It would certainly have
been preferable to have a recording of all of the discussions which took place over
the seven and a half hours of the operation, but the absence of that evidence is not
fatal to the Crowns position.
[79] Corporal I. and Sergeant P. are very experienced operators who pride
themselves on their ability to play their undercover roles effectively. Corporal I.
testified that his objective was to accurately depict a righteous bad guy. By this
he meant that he wanted his portrayal to be realistic.
[80] Understandably, Ms. Derbyshire completely believed that the undercover
operators were gangsters from Montreal. When they approached her in the
underground parking garage the officers were intimidating. They moved
aggressively and Corporal I. raised his voice, pointed his finger and ordered Ms.
Derbyshire into her car. Ms. Derbyshire did as she was told and found herself
confined by Corporal I. in the passenger seat and Sergeant P. outside the drivers
door. These were very close quarters and Corporal I. continued to speak to her
aggressively, waving his finger and demanding that she tell them about her
involvement in the Adams homicide. She did so immediately and I am satisfied,
based upon her testimony, that it was the result of fear and intimidation and not a
willingness to help these criminals from Montreal.
[81] There is evidence from multiple sources that Steven Skinner was a violent
and intimidating man. Ms. Derbyshire had known him for a number of years and
was aware of his involvement in the drug trade. In cross-examination she
described him as a high end gangster and an MMA fighter. It is inconceivable to
me that Ms. Derbyshire would have provided information about the location of
physical evidence that would link Skinner to the Adams murder within the first
couple of minutes of her encounter with I. and P. unless she felt threatened and
afraid. The Crowns suggestion that she was being cooperative and helpful in
volunteering this information is not consistent with the evidence or, in my view,
common sense.
[82] Ms. Derbyshire said her defence mechanism was to stay calm and not appear
to be frightened. I accept her testimony on that point. This behaviour could well
be misinterpreted by the undercover officers as an indication that she was relaxed
and cooperating. Since they had no prior experience with respect to her

Page 19
demeanour their opinions about whether she was frightened or not are of limited
value.
[83] I think it is telling that Corporal I. testified he asked Ms. Derbyshire whether
she was afraid three times during the course of the day. He said he did so because
she was in a situation where people might feel frightened. Corporal I. also testified
that he wanted to remain in control throughout the operation. He did so by
ensuring that Ms. Derbyshire was not able to communicate with anyone using her
telephone. He periodically raised his voice and told her she had better be telling
the truth. She was also told not to talk to anyone other than Corporal I.. Once they
obtained the original admissions from Ms. Derbyshire I believe the goal of the
officers was to maintain authority over her while she re-enacted the events of April
10 and took them to places where physical evidence was located.
[84] The cover officer who designed the undercover operation, Sergeant Chubbs,
and the primary operator who was in charge of execution of the plan, Corporal I.,
both testified about the importance of ensuring the voluntariness of admissions
obtained from a target. The initial approach should be made in a public place so
that the person had a choice whether to walk away. According to Chubbs and I.,
this was the plan for Ms. Derbyshire. Corporal I. testified about going to some
lengths to determine whether Ms. Derbyshire was frightened because he wanted to
ensure that her statements were voluntary. He said more than once that it was his
job to obtain an admissible statement from her.
[85] By the time the undercover operation began on July 14 the primary objective
of the operators was to obtain a confession from Ms. Derbyshire about her
involvement in the Adams murder, the delivery of Mr. Skinner to Moncton and to
locate any physical evidence which might exist. The scenario which was
developed involved a one-shot encounter with her. As the operation unfolded on
the 14th Ms. Derbyshire was not met in a public place but rather in a dimly lit
parking garage. She was approached quickly and aggressively and ordered into a
small confined space by people she perceived to be criminals who were very
unhappy with the fallout from the Adams murder. She was told they were there to
clean up the problem. They disclosed information to suggest they knew a lot about
what had happened on April 10 and demanded that she tell them everything she
knew. Corporal I. raised his voice, shook his finger at Ms. Derbyshire and said
words to the effect that she should not fucking lie to him.

Page 20
[86] The undercover operators intended to create an intimidating and threatening
environment for Ms. Derbyshire and they were successful in doing so. She said
she was frightened and I have no doubt that she was. There was a very strong
implied threat of physical harm to her if she did not give the gangsters what they
were after. The fact that she gave incriminating information, implicating both
herself and Mr. Skinner, in such a short period of time confirms the nature of the
atmosphere which had been created.
[87] The situation faced by Ms. Derbyshire should be contrasted with those
encountered by Messrs. Hart and Mack who were given clear choices about
whether to confess. They were not subject to threats, intimidation or coercion.
[88] Once the confession and other information was given by Ms. Derbyshire and
she was told to show the officers the physical evidence, the rest of the day
unfolded as one would expect. Corporal I. intended to maintain control of the
situation, and over Ms. Derbyshire, and he did so. While the tension may have
diminished somewhat, that does not make Ms. Derbyshires subsequent actions or
statements any more voluntary. Once she had disclosed the significant information
concerning the Adams murder confirming it in subsequent discussions, or
providing further details is part of one continuous transaction.
[89] I am satisfied that the actions of Corporal I. and Sergeant P. resulted in the
type of unfair coercion described by Justice Moldaver in Hart. Ms. Derbyshires
confession and identification of physical evidence was obtained by intimidation
and implied threats of harm. She was never given a choice which would have
permitted her to walk away without disclosure. This was an abuse of process.
[90] Having concluded that Ms. Derbyshire has established an abuse of process I
must now consider what remedy should follow. She is looking for a stay of
proceedings which would bring the prosecution to an end. The Supreme Court of
Canada considered the test to be applied in deciding whether to grant a stay of
proceedings in R. v. Babos 2014 SCC 16. It is clear from the Courts analysis in
that case that a stay of proceedings for abuse of process should rarely be granted.
See for example the Courts comments in the following passage:
30
A stay of proceedings is the most drastic remedy a criminal court can
order (R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 53). It
permanently halts the prosecution of an accused. In doing so, the truth-seeking
function of the trial is frustrated and the public is deprived of the opportunity to

Page 21
see justice done on the merits. In many cases, alleged victims of crime are
deprived of their day in court.
31
Nonetheless, this Court has recognized that there are rare occasions -- "the
clearest of cases" -- when a stay of proceedings for an abuse of process will be
warranted (R. v. O'Connor, [1995] 4 S.C.R. 411, at para. 68). These cases
generally fall into two categories: 1) where state conduct compromises the
fairness of an accused's trial (the "main" category); and 2) where state conduct
creates no threat to trial fairness but risks undermining the integrity of the judicial
process (the "residual" category) (O'Connor, at para. 73). The impugned conduct
in this case does not implicate the main category. Rather, it falls squarely within
the latter category.
32
The test used to determine whether a stay of proceedings is warranted is
the same for both categories and consists of three requirements:
1) There must be prejudice to the accused's right to a fair trial or
the integrity of the justice system that "will be manifested,
perpetuated or aggravated through the conduct of the trial, or by its
outcome" (Regan, at para. 54);
2) There must be no alternative remedy capable of redressing the
prejudice; and
3) Where there is still uncertainty over whether a stay is warranted
after steps 1) and 2), the court is required to balance the interests in
favour of granting a stay, such as denouncing misconduct and
preserving the integrity of the justice system, against "the interest
that society has in having a final decision on the merits" (ibid., at
para. 57).
33
The test is the same for both categories because concerns regarding trial
fairness and the integrity of the justice system are often linked and regularly arise
in the same case. Having one test for both categories creates a coherent
framework that avoids "schizophrenia" in the law (O'Connor, at para. 71). But
while the framework is the same for both categories, the test may -- and often will
-- play out differently depending on whether the "main" or "residual" category is
invoked.

[91] In this case there is no suggestion that trial fairness has been undermined and
so it is the residual category of abuse that must be invoked. On that issue the
Supreme Court described the inquiry in these terms:

Page 22
35
By contrast, when the residual category is invoked, the question is whether
the state has engaged in conduct that is offensive to societal notions of fair play
and decency and whether proceeding with a trial in the face of that conduct would
be harmful to the integrity of the justice system. To put it in simpler terms, there
are limits on the type of conduct society will tolerate in the prosecution of
offences. At times, state conduct will be so troublesome that having a trial -- even
a fair one -- will leave the impression that the justice system condones conduct
that offends society's sense of fair play and decency. This harms the integrity of
the justice system. In these kinds of cases, the first stage of the test is met.

[92] The second and third stages of the analysis were described as by the Court as
follows:
39
At the second stage of the test, the question is whether any other remedy
short of a stay is capable of redressing the prejudice. Different remedies may
apply depending on whether the prejudice relates to the accused's right to a fair
trial (the main category) or whether it relates to the integrity of the justice system
(the residual category). Where the concern is trial fairness, the focus is on
restoring an accused's right to a fair trial. Here, procedural remedies, such as
ordering a new trial, are more likely to address the prejudice of ongoing
unfairness. Where the residual category is invoked, however, and the prejudice
complained of is prejudice to the integrity of the justice system, remedies must be
directed towards that harm. It must be remembered that for those cases which fall
solely within the residual category, the goal is not to provide redress to an accused
for a wrong that has been done to him or her in the past. Instead, the focus is on
whether an alternate remedy short of a stay of proceedings will adequately
dissociate the justice system from the impugned state conduct going forward.
40
Finally, the balancing of interests that occurs at the third stage of the test
takes on added significance when the residual category is invoked. This Court has
stated that the balancing need only be undertaken where there is still uncertainty
as to whether a stay is appropriate after the first two parts of the test have been
completed (Tobiass, at para. 92). When the main category is invoked, it will often
be clear by the time the balancing stage has been reached that trial fairness has not
been prejudiced or, if it has, that another remedy short of a stay is available to
address the concern. In those cases, no balancing is required. In rare cases, it will
be evident that state conduct has permanently prevented a fair trial from taking
place. In these "clearest of cases", the third and final balancing step will often add
little to the inquiry, as society has no interest in unfair trials.

[93] When I consider all of these factors I am not satisfied that a stay of
proceedings is required or appropriate. While the misconduct in this case could be
categorized as offensive to notions of fair play and decency, I am satisfied that the

Page 23
harm can be remedied by excluding the evidence which was obtained. This would
include the statements made by Ms. Derbyshire to the undercover operators as well
as the physical evidence and its locations which she identified. By doing so, the
Court distances itself from the impugned conduct and at the same time recognizes
the importance of having this serious charge tried on its merits.
Conclusion and Disposition
[94] Ms. Derbyshire has not established a breach of her rights under s.7 of the
Charter, however she has satisfied me that the police undercover operation was an
abuse of process. As a result I will exclude the evidence obtained from Ms.
Derbyshire. This includes her statements to the undercover operators and the
physical evidence and locations which she identified to them. If there is other
evidence which Ms. Derbyshire feels should be excluded as the fruits of the
abusive conduct, she is free to make a further application for such relief. My
comments should not be interpreted to mean that there will be an automatic
exclusion of evidence which is in any way related to the undercover operation no
matter how tenuous that connection. As noted by the Supreme Court in Babos the
granting of relief for abuse of process is discretionary and will involve the
weighing of a number of potentially competing factors.
[95] I would also note that my decision in this case concerning the exclusion of
evidence against Ms. Derbyshire should not be interpreted as a determination of
the admissibility of her statements and any resulting physical evidence in
proceedings against any other persons the most obvious being Mr. Steven
Skinner.
[96] I would conclude by offering my sincere thanks to all counsel for their
capable and helpful submissions and the professional manner in which the hearing
was conducted.
Wood, J.