Monday, August 04, 2014

The embarrassing c.v.

This month marks the 10th anniversary of the start of this site. I try to be modest but the facts make that unconvincing. My normally fetching diffident modesty could easily be misinterpreted as obnoxious condescending pomposity. Not that many of my colleagues will notice, as they seem to regard the internet as almost exclusively an outlet for their obsessive prostate therapy.

And here, for the less onanistic, we have an exciting new decision from the Supreme Court of Canada: R v Hart, 2014 SCC 52 (31 July 2014).

At least it is exciting for lawyers who encounter occasions of police operations that in Canada are called “Mr Big” operations. Broadly, and the details are in the decision, this involves undercover police officers masquerading as members of a gang that the defendant wants to join. They require the defendant to detail the offences that form a sort of curriculum vitae in the application for membership, and those details are later offered to the court as evidence on relevant charges. When are such confessions admissible?

The majority, in a joint judgment delivered by Moldaver J (Cromwell J separately concurring on the test for admissibility, Karakatsanis J dissenting on that) laid down a “new” test. I explain the quote marks in a moment. The test has two prongs, as the Court called them. First, there is a balancing of probative value against prejudicial effect, and secondly there is consideration of abuse of process. The prongs need not be considered in that order, because if there would be an abuse of process in admitting the evidence then it is excluded, or in an extreme case the prosecution is stayed, without the need for consideration of the first prong [89].

My quote marks are because these prongs are not new. The test is only new in the sense that evidence obtained in the context of one of these operations is presumptively inadmissible on the first prong [10], [85]. The prosecutor must prove that, on the balance of probabilities, the probative value of the evidence outweighs the prejudicial effect of admitting it [89]. But the defendant still has the traditional burden if reliance is placed on abuse of process as the ground for exclusion [11].

While this is a special rule for special facts, the joint judgment includes explanations of the balancing exercise and the abuse of process decision that could have general application.

If one wants to find disappointment, one should contemplate the missed opportunity to sort out the relationship between the probative value/prejudicial effect balancing and trial fairness. As is generally accepted – and obscurely referred to at [109] - a problem with describing the probative value/prejudicial effect decision as a balancing exercise is that it suggests that high probative value can only be outweighed by a high level of risk of prejudicial effect, and this in turn suggests a high tolerance of risk of trial unfairness. The only solution offered here is “trial judges will have to lean on their judicial experience” in difficult cases [109].

A better requirement would have been that the first prong would focus on trial fairness: would admission of the evidence create a real risk that the trial would be unfair because it would endanger the impartial determination of the facts. There would be no balancing, just an assessment of this risk. “Impartial” here is used in the sense that it emerges from trial fairness jurisprudence.

Still, Canadians must work with the prongs as established in this case. There are valuable comments at [95] – [105] on how probative value should be assessed, addressing both the circumstances in which the confession was made, and the credibility of the confession itself. And prejudicial effect is addressed at [106] – [107].

As far as abuse of process – the second prong – goes, the joint judgment acknowledges that this has not hitherto provided an effective remedy in this context, and recognises that it has to be “reinvigorated” [114], mainly through enhanced judicial sensitivity to the risk that the circumstances of a given case may amount to coercion [114] – [118].

One should ask whether the new test for evidence obtained in the context of Mr Big operations provides adequate protection against self-incrimination, which was the basis for exclusion that Karakatsanis J would have preferred [170], [180]-[185]. Moldaver J’s reasons for disagreeing are at [124]-[125], essentially they are that the way the principle against self-incrimination would provide a remedy here would have to be worked out, adapting rules of evidence and prevention of abuse of process (illustrations of similar workings out are the confessions rule and the right to silence), and the two-pronged approach does that.

Karakatsanis J’s reason for dissent was that the two-pronged rule does not adequately take into account broader concerns like human dignity, personal autonomy, and the administration of justice [167]. The focus should be on three “vital concerns”: the reliability of the evidence, the autonomy of suspects, and the potential for abuse of state power [168]. There is established case law on the principle against self-incrimination and there is no need for a new rule [181].

Well, as I indicated above, the new bit is really the presumption that evidence obtained in a Mr Big context will be more prejudicial than probative and that it should be excluded for that reason alone. Whether that shift of burden to the prosecutor is really significant should be assesed by reference to how difficult it was for the defendant to put the question of admissibility in issue. Usually, as judges tend to say, it is only in marginal cases that it matters who has the burden of persuasion (see for example Lord Brown in O v Crown Court at Harrow [2006] UKHL 42 at [35], noted here on 31 July 2006). Trial judges have, however, been given a nudge towards being very careful to avoid improper prejudice, and to be especially sensitive as to abuse of process, in cases where this new rule applies.

Cromwell J would have left application of the new rule to the trial court in the event that the prosecutor decided to pursue a new trial, whereas the majority ruled the evidence inadmissible in this case [152] - [163].

The case also illustrates another point: the trial judge should have allowed the defendant to give evidence in the absence of the public (who could have been accommodated in another courtroom to view the proceedings by closed-circuit TV), because of the special vulnerability of this defendant [42], [48], [51]-[55].