R. v. McDonald

R. v. McDonald

The court concluded defence established a reasonable basis to pursue contextual s.7 Charter challenges (self-incrimination, right to silence via functional detention, and abuse of process) to the admissibility of pre-arrest Mr. Big statements and therefore granted leave to bring a Charter voir dire under s.24(2); the court also granted limited leave to cross-examine the two officers who designed the operation on issues relevant to those constitutional claims while reserving the 'threshold reliability' argument as likely constrained by binding authority but not foreclosing its renewal at voir dire.

Citation
2013 BCSC 314
Parties
Crown/prosecution: Regina; Accused/defendant: Thomas Anthony McDonald
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
1 March 2013
Procedural Posture
Criminal / Pre Trial Vukelich Application for Leave to Challenge Admissibility and Voir Dire
Outcome
Application granted in part
Legal Topics
Mr. Big Technique, Right to Silence, Self Incrimination, Abuse of Process, Detention (functional Detention), Voir Dire, Admissibility of Confessions, Threshold Reliability, S.7 Charter, S.24(2) Charter
Source Language
English
Criminal Law Constitutional Law Evidence Law Charter Litigation Mr. Big Technique Right to Silence Self Incrimination Abuse of Process +6 more

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Parties

Regina

Crown/prosecution

Thomas Anthony McDonald

Accused/defendant

Procedural Posture

Criminal / Pre Trial Vukelich Application for Leave to Challenge Admissibility and Voir Dire

Legal Issues

  1. 1 Whether pre-arrest statements obtained during a Mr. Big operation infringed s.7 (principle against self-incrimination)
  2. 2 Whether the accused was functionally detained such that the right to silence under Hebert applied
  3. 3 Whether the investigative tactics constituted an abuse of process shocking the community

Ratio Decidendi

The court concluded defence established a reasonable basis to pursue contextual s.7 Charter challenges (self-incrimination, right to silence via functional detention, and abuse of process) to the admissibility of pre-arrest Mr. Big statements and therefore granted leave to bring a Charter voir dire under s.24(2); the court also granted limited leave to cross-examine the two officers who designed the operation on issues relevant to those constitutional claims while reserving the 'threshold reliability' argument as likely constrained by binding authority but not foreclosing its renewal at voir dire.

Court Disposition

Application granted in part

Orders

  • Leave granted for a Charter voir dire under s.24(2) to challenge pre-arrest statements on s.7 grounds (self-incrimination, right to silence including functional detention, and abuse of process)
  • Defence granted leave to cross-examine the two police officers who designed and scripted the Mr. Big operation on the voir dire limited to issues relevant to the constitutional claims