https://calgary.ctvnews.ca/murder-trial-begins-for-young-airdrie-man-accused-of-killing-mother-1.6117965

Bar Fights, legal or not?

If you are currently sitting in a bar and are fuming over another patron who just looked at your girlfriend or boyfriend or who bumped into you and spilled your drink, you may want to finish reading this before you start throwing any punches.

Bar fights are something that we think of as being common occurrences; we see them portrayed in movies and television all the time; perhaps the most famous example comes from our hometown of Calgary and the particularly entertaining brawl that happened in the film Cool Runnings at the late and great Ranchman’s country bar.

However, before you jump into the fray, the most critical question is: is this legal? And more importantly, is it worth the risk? The law on consensual fighting is straightforward when it comes to sporting events. For example, when two boxers get into the ring or two hockey players drop the gloves, there is no question that what they are doing is legal (unless they bite an ear off or try to use their skates), when it comes to bar fights however the law is much murkier.

The Supreme Court of Canada first weighed in on the question of consensual fist fights between two individuals in the seminal case of R v Jobidon, 1991 CarswellOnt 1023. In this case, Mr. Jobidon, described by the court as a young, fit, and powerful man, got into a fistfight with a man called Rodney Haggart in a hotel bar. Haggart, who had prior training as a boxer, was getting the better of the fight when the hotel staff intervened. They then decided to “take it outside,” as they said. Mr. Jobidon waited for Mr. Haggart in the parking lot, and when Haggart exited the hotel, they got face to face. Mr. Jobidon punched Mr. Haggart in the face and knocked him out; after that, he continued forward and struck him four to six further times in the head.

The tragic result of this story is that Mr. Haggart died because of the punches he received from Mr. Jobidon. Mr. Jobidon was then charged, and the courts were left to consider whether he was guilty or innocent of manslaughter. The main question is: did Mr. Haggart’s consent to engage in this fistfight serve as a defence for Mr. Jobidon?

This fact scenario is not an unusual one. There have been many cases of “one punch manslaughters,” where one person punches the other and either kill them with the punch itself or knocks the other person unconscious, and they fall and hit their head on something killing them.

Frankly, this could happen, and you could either be on the receiving or delivery end of one of these punches, which should dissuade you from getting into a fistfight. But if that does not, then what happened to Mr. Jobidon and what can happen to you based on the law should certainly make you think twice, if not six times, about getting into that bar fight.

In Mr. Jobidon’s case, the Supreme Court of Canada ruled that two individuals could consent to a fistfight. However, and this is a big, however, that consent would be vitiated, meaning erased, if the other party intentionally applies force to cause serious hurt or non-trivial bodily harm to the other in the course of the fight. You may look at this decision and still believe you can engage in that consensual fistfight, explicitly thinking, well, what if I don’t intentionally apply force to cause serious or non-trivial bodily harm to the other? But how could you ever possibly say that? That is the entire purpose of a fistfight, to either knock the other person out or beat them into submission. You may go into court and testify that your purpose for punching the other person in the face was to win the fight, but then the question becomes, how do you win the fight? And the answer is either by beating the other person into submission or knocking them out, both of which would likely constitute non-trivial bodily harm.

The Supreme Court of Canada, however, clarified the law almost 20 years later in the case of R v Paice, 2005 SCC 22. In this case, there was another consensual bar fight, with one of the combatants dying because of the fight. The SCC stated that the test for vitiating consent in a consensual fistfight is if the person intends to cause serious or non-trivial bodily harm AND does so. Therefore, there has to be an intent to cause harm and the harm actually has to occur. Again, you may think that this opens the door once again to legal bar fights. However, it’s not quite that simple.

Furthermore, consider what the intention of a bar fight is: to either beat the person into submission or knock them out. The odds of causing serious bodily harm are, therefore, relatively high. And again, how can you say that you did not intend to cause that kind of harm when that is the sole purpose of the fight? Therefore, for the defence of consent to assist you after getting into a bar fight, you essentially have to hope that your combatant does not sustain any lasting injuries.

That is difficult to get around in this area of law, and Mr. Jobidon could not do so, and he was ultimately convicted of manslaughter. Neither could Mr. Paice; he was acquitted at the trial level but was sent back for another trial after the appeals. That is not to say that other defences may not be available to you if you find yourself in a scrap at a bar, but the other person’s consent will probably not get you off. So, be smart, don’t fight, and if you do, don’t be the one to throw the first punch!

Mr. not so BIG

Many people in Canada have heard about the police investigative tactic called a “Mr. Big” operation. This is a uniquely Canadian police tactic and is one that has been used in hundreds if not thousands of criminal cases in Canada. It is predominantly utilized in homicide cases, and homicide cases where the police have run out of viable leads or there is a lack of additional evidence. This investigative tactic was made famous in Canada due to the Supreme Court of Canada’s ruling in the case of R v Hart, 2014 SCC 52. In this case the Supreme Court of Canada set restrictions and guidelines on how the police are to utilize this investigative tactic.

A “Mr. Big” operation always has a similar script, at least for the initial portion of the investigation. Usually, a suspect in a serious crime will be indoctrinated into a fake criminal organization (“FCO”), this organization will be represented to be wealthy, and to have significant connections at all levels of society. But most importantly the FCO will be represented to be closer to a family then a business organization. For the first several months of the undercover operation the suspect will be taken in and made to feel as being part of this family while committing petty crimes. Then towards the end of the operation one of several things can happen that are designed to stimulate a confession. First, the organization can tell the suspect that to move forward with the organization and reap the full benefits of being part of this family, they have to be completely open and honest about their past crimes. This is the traditional “Mr. Big” operation or what we call the “enter the organization” method. The second tactic the police may use is what has been called a “truth verification strategy.” After indoctrinating the suspect into the organization, the police will then use a stimulation to get that person talking about the offence. This can include simply telling the suspect that through their police contacts they have learned that the suspect is being re-investigated, or that new evidence has come to light. The FCO will then tell the suspect that they can make this go away provided the suspect tells them everything about the crime. Sometimes they will even say they have a member of the organization who is going to be serving the rest of their life in jail and will confess to the suspects crime but needs all the details. Another stimulation is to go as far as telling the suspect that they are now going to be arrested and charged for the prior murder. The FCO then tells the suspect that they can make the problem disappear, again provided they give a full confession. This will usually occur while the FCO is actively hiding the suspect because, according to them, the police are out looking to arrest him or her for the prior murder. We call this tactic the “on the run” tactic, because in order to stimulate a confession the suspect is made to believe that they are “on the run” from the police and that the only thing stopping their arrest and detention in custody is the help of the FCO.

Overall, “Mr. Big” operations have been an incredibly successful investigative tactic and have led to convictions in virtually all the cases in which it has been used. In fact, even with the Supreme Court of Canada setting restrictions and guidelines on how the police can use this tactic the confessions that are derived from them are very rarely if ever excluded from evidence. The reason why these have been so successful is not hard to discern. Often the police are taking a marginalized individual, someone who has a small social circle, usually because everyone suspects them of being a murderer, and then gives them a close-knit set of friends who represent to be the persons family. At the end of the operation the person has the choice of losing this family or telling them what they want to know. Another reason why they have been so successful however, is because the SCC set specific guidelines on what the police can and cannot do during these operations. The police have adapted well to ensuring that everything that they do falls within those guidelines, even if their activities stray right to the edge. For example, the police are not allowed to use or threaten violence against the suspect during these operations. So, what the police frequently do is utilize violence or threats of violence against others on the periphery of the organization, typically including a fake “beat down” of someone. Therefore, they will indicate to the suspect that the organization is capable of violence and willing to use it, but do not overtly demonstrate that they will use it against a direct member of the organization, like the suspect. This creates an aura of violence but not one that can be said to be directed at the suspect. Another example deals with financial benefits. They will give the suspect money, but not so much money that anyone can say will overwhelm the suspects free will. Therefore, the guidelines placed on the use of these operations have been successful in somewhat stemming outrageous police behaviour during these investigations, but they have also made them very difficult to challenge in a suspect’s defence, because the police are operating within the guidelines set by the SCC even if they are straying very close to the line.

In our office however, we recently had success in defending an accused who gave a “Mr. Big” confession. We were able to argue that the confession should be excluded from evidence because first, it was an unreliable confession, and also because the way the police operated in the course of this Mr. Big operation was an abuse of process.

In this case, R v Dauphinais, 2021 ABQB 21 the accused was indoctrinated into a FCO over a number of months. However, to stimulate a confession the police used the “on the run” tactic described above. Specifically, what they did, was have an actual police detective call the accused when he was alone with one of the undercover officers and tell him that the police were going to be arresting and charging him with the murder of his wife, which occurred in 2002. At the same time actual police officers were sent to the accused’s home where his teenage sons were home alone, and those officers told his sons that the accused was going to be arrested and charged for the murder of their mother. For the next four days the FCO hid the accused in various hotel rooms representing to him that there was a “manhunt” out for him and the only thing that was going to keep him out of jail was if he gave the FCO, or “Mr. Big” specifically, all of the information they needed about the killing of his wife. Over the four days the accused was made to believe he was “on the run” he was interviewed numerous times by members of the FCO, he was made to believe that close friends outside of the FCO had been “ratting” on him, and that the only people he could trust were the undercover operators. Over the course of the first 3 days, he gave mildly incriminating statements, but on the 4^th and final day of the operation he indicated that he had done something to his wife. However what he said did not corroborate other known evidence and was in fact internally inconsistent.

In defending this individual, we could not argue that the police paid him too much money, or threatened him overtly with violence, and thereby did not step outside the guidelines imposed by the Supreme Court of Canada, although we certainly tried. Instead, the main focus of our argument was that the use of this “on the run” tactic was an abuse of process and that the pressure it created, coupled with the lack of detail in the confession, made it unreliable evidence. Our argument was therefore not focused on the overall operation and what the police did throughout the operation, but rather the pressure they placed on the accused at the end of the operation to try and generate a confession. Specifically, we focused on the fact that the accused was told that he was going to be arrested and go to jail for the murder of his wife. At the same time, the FCO was dangling a “get out of jail free card” in front of his face if he told them what they wanted to hear. The pressure that this creates is certainly undeniable and many people guilty or innocent when faced with such an offer may be tempted to take the “get out of jail free card”. We were arguing that the police should not be able to use this tactic or place this kind of pressure on an accused because the potential for false confessions would be too high.

Ultimately, the trial judge agreed with us, although with some differences. She found that the confession was unreliable and could not be admitted into evidence because of the pressure the police put on the accused coupled with the fact that the confession they ultimately obtained was inconclusive, inconsistent, and was not corroborated by other evidence in the case. Further, she found that there was an abuse of process. She did not find that the police were wrong in telling the accused that he was going to be arrested and charged with the murder of his wife, but instead found that they put too much pressure on him after telling him that. Specifically, she found that the police telling the accused there was a “manhunt” out for him, confining him in hotel rooms, sending police to his home to speak to his children, and turning him against others outside of the organization, was police misconduct that coerced a confession from the accused. While she did not find that everything the accused said over the course of the 4 days he was on the run should be excluded because of police misconduct, she found that what he said on the 4^th day, and the day he made his most incriminating statements, should be excluded.

In the end, no evidence that was obtained during this “Mr. Big” operation was admitted into evidence. As a result, the Crown prosecutors have stayed the charges against our client and have indicated that they will not be appealing the trial judge’s decision. While this was a unique case, with unique facts, it shows that regardless of the success rate of “Mr. Big” operations they are not infallible, and sometimes it is important not to focus too heavily on what the police do throughout the operation, but rather what they do at the end of the operation. Like in this case, the police may toe the line and stay within the guidelines throughout the course of the operation but may step outside at the end. And when we are considering “Mr. Big” operations the end is often the most crucial part.

Here is a link to the decision as well as a Global New report on the case:

https://www.canlii.org/en/ab/abqb/doc/2021/2021abqb21/2021abqb21.html?autocompleteStr=2021%20ABQB%2021&autocompletePos=1

https://globalnews.ca/news/7647314/crown-stays-murder-terrie-anne-dauphinais-calgary/

QUESTION: Do the police in Canada have to tell you that they are cops if you ask them?

As criminal defence lawyers in Canada, we are often asked this question, do undercover police officers have to tell you that they are cops if you ask them? The short answer is NO. Police officers acting in an undercover capacity do not have to inform you that they are cops, even if you ask them point-blank, they can lie right to your face.

It is surprising how many of our clients and people in Canada generally believe the notion that the police cannot lie to you about their true identities. I am not sure where this myth came from or why it has developed into such a strongly held belief by some, but it is a dangerous notion. We have seen several clients who have believed this myth and gotten into quite a bit of trouble.

The interaction usually follows a similar script, we will have a client who is subjected to an undercover operation, during this operation our client will often ask the operators if they are police, the police then lie to our client denying that they are cops, our client will then continue to interact with the undercovers feeling safe because they have done their due diligence, believing their new friends or business partners cannot be cops, because cops can’t lie when asked the question, are you a police officer.

I am sure you can imagine the end result of this, our client is arrested and charged, and often with very significant offences. And the main problem that we as defence lawyers have with the question “do the police have to tell you they are cops if you ask them?” is that we are always asked this too late. We are only ever asked this question after someone has fallen into the trap outlined above and been arrested and charged. Therefore, we wanted to write this blog to pre-emptively answer this question, but also to let you know that police in Canada can lie to you about whether they are police, but they can also do other things to make you believe that there is no way they could be cops.

What the police can do to convince you they are not cops

Police can lie to you whether you ask if they are cops.  There are a variety of tactics that undercover cops can, and will do, to convince you that they are not actually police. Most of the time we see these tactics used in the course of “Mr. Big” operations. A “Mr. Big” operation is a famous Canadian police tactic that essentially allows the police to create a fake criminal organization that eventually generates a confession from a suspect through a variety of different means.

Much has been written regarding “Mr. Big” operations in Canada and the purpose of this blog is not to go into any great detail about them. Instead, I want to focus on specific police tactics undercover officers will use to make people believe they are not the police, as I said these often occur in the course of Mr. Big operations, but not exclusively so.

Here are some of the tactics the police will do to convince you they are not police:

Illegal firearms:

• A frequently used tactic by undercover operators is to show the suspect illegal, or what are perceived to be, illegal firearms. These can be handguns, shotguns, or even guns like AK-47s, and the police can actively show them and handle them in front of suspects.
• Many of our clients who have been ensnared by undercover operations believed that there was no way the people they were interacting with could be police, because how could they have all those guns laying about. Well, they can, and they likely will.

Fake beat downs

• These usually occur in the context of “Mr. Big” operations, but the police are actually permitted in Canada to pretend to violently assault someone. I say pretend, but this “simulated”, or “fake” violence can often seem very real.
• Police will likely make sure that the suspect themselves cannot get in on the violence but that does not prevent these skilled undercover operators from making this violence seem very real. You also have to remember that these cops are committed, so the undercover operators that are on the receiving end of the beatdown won’t be afraid to take a couple of real shots just to make sure they sell it.

They will commit crimes

• Undercover cops will also commit crimes, like a fake beat down, but it can also go much further than that. They can participate in what will appear to be gun trafficking deals, drug deals, international smuggling, theft, identity fraud, all sorts of crime.
• Therefore, if your new friends or business partners appear to be hardened criminals, don’t let that fool you, undercover operators will often engage in criminal activity, and serious criminal activity, it’s all fake of course, but for the person standing on the outside looking in, it won’t seem fake.

Handle tons of cash

• Undercover cops don’t have a shortage of cash, in fact, often they will do whatever they can to demonstrate to suspects that they are super rich and successful criminals. This is part of their allure but is also another tactic to make suspects believe that they are not cops.
• So again, if your new friends and business partners are a little too quick to flash the cash, they may not be the big-time gangsters they claim to be, in fact, they might be the opposite.
• They also promise suspects future payments or cash. In one case I read, the police pretended to be a publishing firm and offered a suspect a book deal if he wrote about his role in a kidnapping offence. This man fell for it and gave up information believing that it was going to make him a wealthy author. Instead, he went to jail.

Offer to destroy or falsify evidence

• Undercover officers can and often will offer to destroy or remove key evidence in the case against a suspect. Even real evidence that the suspect may not be aware that the actual police know about.
• However, usually in order to take advantage of this generous offer the suspect will be required to tell them something about the crime that they committed.
• Also, sometimes the undercover operators will pretend to destroy some evidence to show the suspect that they are capable of destroying more, usually to incentivize the suspect into leading them to or giving them more evidence to “destroy.”
• Another common tactic used particularly in “Mr. Big” cases is undercover operators will tell suspects that they have a friend or associate that is either dying or is in jail for the rest of their life. Therefore, if you tell them about the crime that person will confess and remove the suspicion from the suspect once and for all.
• For someone suspected of a serious crime, this must seem simply too good to be true, and it is, but it surprising how effective this tactic is.

Stage a fake car accident

• This one is particularized to “Mr. Big” operations but we have seen a few times where the police will actually make contact with the suspect by having an undercover officer crash into a suspect’s vehicle. The undercover, sometimes a good-looking female depending on the gender of the suspect, will then profusely apologize and offer to fix the vehicle outside of insurance.
• The suspect will usually then be given a big wad of cash to fix the car, or the car will be brought into a body shop and fixed for free. After that point, the indoctrination process begins, and the suspect is brought into a fake criminal organization.

Swear

• This one may not be that accurate because this may not be particular to undercover police, but in our experience, undercover operators like to swear, so if your new friends and business partners are a little too loose with the f-bombs, they may be cops.

What police cannot do

One thing that the police are never allowed to do is overtly threaten a suspect with violence nor can they commit violence against a suspect. In fact, in the course of an undercover operation, particularly a “Mr. Big” operation, the undercover operators will try to make sure that the suspect knows that they are in no danger of violence from the undercover operators.

They may pretend to be violent people and may hint at violence, but they can never threaten or inflict violence upon a suspect. So, if you are wondering if your new friends or business partners are cops, maybe ask them to punch you in the face.

Don’t fall for it

In Canada, our courts and judicial system have given the police the power to lie, cheat and steal during undercover operations, it’s all part of the game. So, don’t fall into the trap that we keep seeing. There is no requirement for undercover police to tell you that they are cops, even if you ask, in fact they will do the opposite, and do various things to make you believe that there is no way they could be cops.

If you are interested in hearing more about “Mr. Big” operations stay tuned for our January blog release. We are currently in the process of litigating a very interesting Mr. Big case, and we will likely have an update in January, so check back then.

Ghost Guns

Balfour Der has 40 years of criminal law experience and co-author of “The Law of Firearms And Weapons, published by Carswell.