Her Majesty the Queen v. Nelson Lloyd Hart
(Newfoundland & Labrador) (Criminal) (By Leave)
(Publication ban in case)
Criminal law - Self-incrimination (ss. 11(c), 13), Evidence.
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Charter of Rights - Criminal law - Self Incrimination - Right to Silence - Admissibility of confession obtained by Mr. Big undercover operation - Evidence - In camera testimony by accused - Whether the majority of the Court of Appeal erred in law by finding the respondent’s s. 7 Charter rights were violated - Whether the majority of the Court of Appeal erred in law in its interpretation and application of R. v. Hebert,  2 S.C.R. 151 - Whether the majority of the Court of Appeal erred in its interpretation of R. v. White,  2 S.C.R. 417 - Whether the majority of the Court of Appeal erred in law by failing to accord deference to the trial judge’s findings of fact - Whether the Court of Appeal erred in law in its interpretation and application of s. 486(1) of the Criminal Code, R.S.C. 1985, c. C 46, and C.B.C. v. New Brunswick (A.G.),  3 S.C.R. 480.
The respondent, Mr. Hart, was convicted of two counts of first degree murder following the deaths by drowning of his twin three year old daughters. Initially, while Mr. Hart made two different statements to police, there was not enough evidence for the Crown to charge him and proceed to trial. The police subsequently set up a “Mr. Big” operation by which undercover RCMP officers recruited Mr. Hart to join a fictitious criminal organization. They hired him to perform various tasks and exposed him to their simulated illegal activities in order to gain his trust and confidence. As a part of his “membership” in the organization, Mr. Hart was paid, enjoyed opportunities to travel across Canada, stayed in luxurious hotels and dined at fine restaurants. Mr. Hart has a Grade 5 education, was on social assistance at the time, was isolated, had no friends and came to view the undercover officers as brothers. Mr. Hart eventually confessed to the officers that he had deliberately killed his daughters. At trial, his confession was admitted into evidence. A majority Court of Appeal allowed the appeal and ordered a new trial on the basis that the trial judge erred in refusing to allow Mr. Hart to testify in camera to facilitate his testifying and on the ground that his s. 7 Charter rights were violated by the admission of his confession. Barry J.A., dissenting in part, would have affirmed the trial judge’s ruling on the admissibility of the confession.
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