Dan McLaughlin, communications counsel for the BC Prosecution Service, said the decision in R. v. Handlen, 2022 BCCA 304 is “helpful as it reaffirms the appropriate application by the trial judge of the principled exception to the hearsay rule and the test for the admissibility of statements to undercover investigators in the context of the ‘Mr. Big’ scenario.”
“It also underlines the importance of the trial judge’s jury instructions to ensure this evidence is not misused by the jury in their deliberations,” he added.
According to court documents, the appellant, Garry Taylor Handlen, was indicted in March 2015 for “the murder of two young girls: Kathryn Hebert, who disappeared in 1975, and Monica Jack, who disappeared in 1978.”
Handlen “confessed to both murders” during a “Mr. Big” police operation. The trial judge, Associate Chief Justice Austin Cullen, excluded “evidence of the confession in relation to Kathryn,” but “admitted it in relation to Monica.” Handlen was subsequently “tried by a jury and convicted of the first degree murder of Monica.”
Monica, the court noted, was “12 years old when she disappeared.”
According to court documents, Monica had been riding her bike home “towards the Quilchena reserve, which is located north of Merritt, B.C. along Highway 5.” Her mother drove by and “told her to go home” around 7 pm. At this point, Monica was approximately half an hour away from home.
Monica’s mother went on a fishing trip overnight, the court explained, and when she got home the next day her daughter wasn’t there. She contacted the police at noon, who in turn contacted the “local radio station and asked them to broadcast that Monica was missing, which they did.”
Monica’s brother called the police 10 minutes later to tell them he had “located Monica’s bicycle” at a “pull-out on the west-side of Highway 5, approximately 4 miles south of her home.”
At around 5:20 p.m., the police “spoke with Monica and Graham Whitecross, who lived south of the pull-out.”
According to court documents, Mr. Whitecross said he “saw a truck and camper at the pull-out” and “[S]hortly afterwards, he heard a person cry out, but when he looked, did not see anyone.”
“Other eyewitnesses,” the court noted, “also saw a truck and camper in the area, around the time that Monica disappeared.”
Monica’s remains were found 17 years later in 1995 at a “remote area off a logging road on Swakum Mountain, west of Nicola Lake (the opposite side from Highway 5) …”
Written statements from four eyewitnesses (Monica and Graham Whitecross, Michael Rose and George Schuman) were taken over the next few days, the court explained, noting that the statements were “tendered for the truth of their contents by the Crown at trial as the witnesses were later hypnotized, making their post-hypnosis evidence inadmissible.”
The investigation dragged on and in 2015 the police launched a “Mr. Big” operation. The court noted that Canadian police have “conducted undercover operations,” known as Mr. Big operations, for many years. The operation is “designed to gain the trust of suspects and entice them into a fictitious criminal organization” where the undercover police can “elicit a confession to the crime they are investigating …”
The Supreme Court of Canada “created an evidentiary framework for the admission of Mr. Big statements” in R. v. Hart, 2014 SCC 52, the court explained, noting that “Mr. Big confessions became presumptively inadmissible, with the onus on the Crown to establish that the probative value of the evidence, demonstrated by its reliability, outweighed the prejudicial effect, defined by the admission of the inevitable harmful character evidence that is admitted as a result of the Mr. Big operations.”
“The decision in Hart,” the court added, “was released mid-way through the Mr. Big operation in this case.”
Justice Elizabeth Bennett, writing for the Court of Appeal, outlined two issues on appeal: “the admission of the hearsay statements and the admission of the Mr. Big confession.”
She determined that the hearsay issue could be “broken down” into sub-issues: i) the “Baltovich issue (or ‘back dooring’ the inadmissible); ii) the necessity component; and iii) the threshold reliability component.”
“A related issue,” she noted, “is the judge’s refusal to reconsider his ruling” in “relation to the hearsay statements, which includes two sub-issues: i) the exercise of the residual discretion to exclude the evidence, here based on an abuse of process, and related, ii) a constitutional challenge based on Mr. Handlen’s fair trial rights.”
The admission of the Mr. Big statements raised two issues: “i) that the judge erred in his treatment of confirmatory evidence as a result of R. v. Bradshaw, 2017 SCC 35, and ii) that the judge erroneously inferred from his rejection of Mr. Handlen’s voir dire testimony that the confession and reenactment must have been reliable.”
Justice Bennett explained that the four witnesses’ statements “made in 1978 were rendered inadmissible almost 30 years later as a result of the decision in Trochym, also a murder case.”
“In that case, a witness was hypnotized in an effort to extract a better recollection of the time she saw certain events,” she wrote, noting that the Trochym decision “concluded that memories collected through hypnosis run the risk of being the product of confabulation resulting in false memories.”
“In short, a witness who has undergone hypnosis cannot testify in relation to any event that was the subject of hypnosis because their memory of events may have become tainted, and it is impossible to determine what is a true memory and what is a false memory,” she added, emphasizing that a witness “may not give evidence with respect to pre-hypnosis statements, as their evidence may have been impacted by the subsequent hypnotic process.”
In the case at bar, the witnesses who “underwent hypnosis after giving their initial statements could not testify at Mr. Handlen’s trial as those statements were the object of the hypnosis.” So, the judge noted, “the question becomes whether the pre-hypnosis statements were admissible under the principled exception to the hearsay rule.”
The judge noted that hearsay evidence is “exceptionally admissible if it meets the dual criteria of necessity and threshold reliability.”
“Even if the dual criteria are met, the judge has a residual discretion to exclude the evidence if its prejudicial effect outweighs its probative value,” she added.
Justice Bennett then drew attention to R. v. Baltovich, [2007] O.J. 5488, where the Crown sought to have statements by witnesses who had been hypnotized “admitted into evidence for the truth of their contents, relying on the principled exception to the hearsay rule on the basis that the evidence was both necessary and reliable.”
In that case, Justice David Watt “excluded the evidence on the basis that the Crown could not use the ‘back door’ to admit what was otherwise inadmissible.”
In Handlen’s case, “Associate Chief Justice Cullen did not agree with the analysis in Baltovich.” Justice Bennett agreed, noting that “Cullen A.C.J was correct in concluding that the pre-hypnosis statements may be subject to the analysis found in the principled approach.”
“In this case, admission of the pre-hypnosis statements, does not undermine the rule established in Trochym,” she explained, stressing that the statements “were given before the witnesses were hypnotized, and in and of themselves, the statements were not rendered unreliable as a result of hypnosis.”
“That evidence has become unavailable from the declarant as a result of Trochym; however, I do not see how considering whether the evidence could be admitted under the principle exception is ‘back dooring’ the evidence any more than it was in Khan or Hawkins. Rather, the necessity requirement is met precisely because the relevant direct evidence was not available,” she added.
On the component of necessity, the appellant argued that Associate Chief Justice Cullen “erred in his application of the necessity test, by finding necessity on the basis that the evidence was ‘necessary for the prosecution’s case.’ ”
However, Justice Bennett did not agree, noting that the judge “clearly concluded that the necessity element was satisfied because of the application of the rule in Trochym at para. 108.”
As for the reliability competent, the judge determined that “the statements also met the test of threshold reliability and could be admitted into evidence.”
Again, Justice Bennett upheld the lower court’s decision, noting that “the trial judge correctly applied the law, and as such, deference applies to his conclusion that the statements met the threshold reliability test.”
“The statements did not directly implicate Mr. Handlen in and of themselves. But they demonstrate that Monica was likely abducted by a man driving a camper/truck while she was on her way home on her bicycle at around 7:30 to 8:00 p.m. from a pull-out by Nicola Lake,” she explained.
According to court documents, the appellant “applied to revisit the ruling based on new arguments” two years after the ruling admitting the statements. He argued that “the admission of the statements breached his Charter protected right to cross-examination and thus breached his right to make full answer and defence.”
The appellant also submitted that “regardless of whether the statements met the criteria of the principled exception to the hearsay rule, the judge should have exercised his discretion to exclude the statements on the basis of an abuse of process.”
However, Justice Bennett determined there was “no basis for this argument.”
“There have been cases where the police have lost or destroyed evidence that amounted to a Charter violation (e.g., R. v. Neidig, 2015 BCCA 489). In my view, the circumstances in this case do not come close. The witnesses were hypnotized 30 years before the Supreme Court of Canada established the rule in Trochym. To suggest that the conduct of the police amounted to an abuse of process is without merit,” she explained, stressing that the trial judge “did not err in the exercise of his discretion when he refused to exclude the statements after the reconsideration application.”
With regards to the Mr. Big statements, the court noted that the trial judge “began with a preliminary discussion of whether the decision in Hart was subsequently modified by Bradshaw.”
In Bradshaw, Justice Bennett explained, “the Court restricted the use of corroborative evidence by requiring the truth or accuracy of the material aspect of the hearsay statement to be the only likely hypothesis.” While Hart “allowed confirmatory evidence to ‘provide a powerful guarantee of reliability’ without making it a ‘hard and fast requirement.’ ”
“The judge below ultimately found that Bradshaw did apply to the Hart analysis but that there was no ‘bright line rule’ restricting the type of corroborative evidence that could be considered,” the court emphasized.
On appeal, Handlen argued that “the judge erred in his assessment of confirmatory evidence, since the evidence, following Bradshaw, had to go to the truthfulness or accuracy of Mr. Handlen’s statement that he ‘abducted, killed, and disposed of [Monica’s] body.’ ” He also argued that the judge “erroneously conflated his rejection of Mr. Handlen’s testimony with the threshold reliability of the Mr. Big confession and reenactment.”
Handlen submitted that “once the judge rejected his explanation, the judge had to engage in a Hart analysis de novo, without reference to his evidence on voir dire.” He argued that the result is “that the confession and reenactment were insufficiently reliable and should not have been admitted.”
The Crown acknowledged that, “in light of recent decisions from this and other appellate courts, the trial judge erred in his consideration of confirmatory or corroborative evidence by applying the Bradshaw framework to the Hart analysis (e.g., Baranec at para. 137, R. v. Wruck, 2020 ABCA 270 at paras. 76–77).” But the Crown also submitted that “any error weighed in favour of Mr. Handlen, as the judge applied a more stringent test to the question of corroborative evidence that was required by Hart.”
Justice Bennett agreed with this submission by the Crown, noting that “[D]eference is shown to a trial judge’s decision with respect to the admissibility of a Mr. Big statement.”
Handlen, she wrote, “has not shown that there is a palpable or overriding error in the exercise of the judge’s discretion to admit the Mr. Big statement.”
Justice Bennett opined that “the evidence establishing threshold reliability of the confession and the reenactment was very strong.”
“While confirmatory evidence may not have been necessary, it could — and in this case, did — provide a powerful guarantee of reliability. That evidence was confirmatory of the entirety of Mr. Handlen’s confession and reenactment, including the narrow proposition that he abducted and killed Monica before disposing of her body,” she concluded.
In a decision released Sept. 9, Justice Bennett, with Chief Justice Robert Bauman and Justice G. Bruce Butler in agreement, dismissed the appeal.
Counsel for the appellant did not respond to request for comment before press time.
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