La tactique, souvent utilisée par la police, de révéler petit à petit des éléments de preuve (réels ou faux) au détenu pour démontrer ou exagérer la solidité de la preuve contre lui ne constitue pas une violation des ses droits constitutionnels

R v Pearson, 2024 ABCA 245

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[77]           Abuse of process is intended to guard against state conduct which society finds unacceptable and threatens the integrity of the justice system: Hart at para 113. The accused has the onus to establish an abuse of process. Although the presence of inducements is not problematic, the combination of inducements and threats can coerce a confession which may amount to an abuse of process. Confessions derived from physical violence or threats of violence will not be admissible. In addition, threats that prey on a suspect’s mental health problems, substance addictions or youthfulness will often amount to an abuse of process no matter how reliable the confession. The court in Hart indicated that police misconduct should not be tolerated even if it resulted in a demonstrably reliable confession: para 112. The court also explained that there may be other misconduct that offends the community’s sense of fair play and decency that could amount to an abuse of process: paras 117-118.

[78]           The ability of a court to grant a stay and the abuse of process doctrine were discussed in R v Nixon, 2011 SCC 34 at para 41, where the court stated:

Under the residual category of cases, prejudice to the accused’s interests, although relevant, is not determinative. Of course, in most cases, the accused will need to demonstrate that he or she was prejudiced by the prosecutorial conduct in some significant way to successfully make out an abuse of process claim. But prejudice under the residual category of cases is better conceptualized as an act tending to undermine society’s expectations of fairness in the administration of justice. This essential balancing character of abuse of process under the residual category of cases was well captured by the words of L’Heureux-Dubé J. in R v Conway, 1989 CanLII 66 (SCC), [1989] 1 SCR 1659. She stated the following:

Under the doctrine of abuse of process, the unfair or oppressive treatment of an appellant disentitles the Crown to carry on with the prosecution of the charge. The prosecution is set aside, not on the merits (see Jewitt, supra, at p. 148), but because it is tainted to such a degree that to allow it to proceed would tarnish the integrity of the court. The doctrine is one of the safeguards designed to ensure “that the repression of crime through the conviction of the guilty is done in a way which reflects our fundamental values as a society” (Rothman v. The Queen, 1981 CanLII 23 (SCC), [1981] 1 S.C.R. 640, at p. 689, per Lamer J.). It acknowledges that courts must have the respect and support of the community in order that the administration of criminal justice may properly fulfil its function. Consequently, where the affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases, then the administration of justice is best served by staying the proceedings. [Emphasis added; p. 1667.]

[79]           R v Oickle, 2000 SCC 38, was not dealing with a Mr. Big confession, but an accused’s statement to the police and the issue of its voluntariness. The use of police trickery and what might shock the community were discussed and the Supreme Court stated at para 66:

[In Rothman v The Queen, 1981 CanLII 23 (SCC), [1981] 1 SCR 640] Lamer J. was also quick to point out that courts should be wary not to unduly limit police discretion (at p. 697):

[T]he investigation of crime and the detection of criminals is not a game to be governed by the Marquess of Queensbury rules. The authorities, in dealing with shrewd and often sophisticated criminals, must sometimes of necessity resort to tricks or other forms of deceit and should not through the rule be hampered in their work. What should be repressed vigorously is conduct on their part that shocks the community. [Emphasis added.]

[80]           As examples of what might “shock the community”, Lamer J suggested a police officer pretending to be a chaplain or a legal aid lawyer, or injecting truth serum into a diabetic medicine under the pretense that it was insulin. Lamer J’s discussion on this point was adopted by the Supreme Court in R v Collins, 1987 CanLII 84 (SCC), [1987] 1 SCR 265 at 286-87, 38 DLR (4th) 508; see also R v Clot (1982), 1982 CanLII 3744 (QC CS), 69 CCC (2d) 349, 27 CR (3d) 324 (QC CS).

[81]           Mr. Big operations are premised on lies and the ability of police officers to convince suspects of a number of untruths: Hart at para 60. Even in cases where uniformed police officers interrogate suspects, the courts have not found it offensive to lie to the suspects by “gradually revealing (actual or fake) evidence to the detainee in order to demonstrate or exaggerate the strength of the case against him”: R v Sinclair, 2010 SCC 35 at para 60, R v Lafrance, 2022 SCC 32 at para 69.