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The judge's decision from Oct. 15, 2014, regarding the case of Halifax-area woman Brittany Leigh Derbyshire, 26, who has been found not guilty of being an accessory to murder after the fact in the slaying of Stacey Adams almost four years ago.The Crowns case was dealt a crippling blow last fall, when Justice Michael Wood ruled that Derbyshires July 2011 confession to two undercover RCMP officers posing as outlaw motorcycle gang members from Montreal was inadmissible at trial.

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  • SUPREME COURT OF NOVA SCOTIA Citation: R. v. Derbyshire, 2014 NSSC 371

    Date: 20141015 Docket: Halifax, No. 413042

    Registry: Halifax

    Between: Her Majesty the Queen

    v.

    Brittany Leigh Derbyshire

    DECISION ON VOIR DIRE

    Restriction on Publication: s.486.5(1) of the Criminal Code

    Editorial Notice: Identifying information has been removed from this electronic

    version of the judgment. Judge: The Honourable Justice Michael J. Wood

    Heard: June 23-27, July 25 and October 1, 2014, in Halifax, Nova

    Scotia

    Final Written Submissions:

    September 22, 2014

    Counsel: Susan Bour and Alicia Kennedy, for the Crown Patrick K. MacEwen, for the Defendant

  • Page 2

    By the Court:

    [1] On the morning of July 14, 2011 two undercover RCMP officers confronted Brittany Leigh Derbyshire in the parking garage of her apartment building. They were posing as members of an outlaw motorcycle gang from Montreal and were looking to obtain information about the murder of Stacey Adams which had taken place in Lake Echo, Nova Scotia on April 10, 2011. Ms. Derbyshire provided the officers with information concerning the events of that date, including her activities and the location of physical evidence potentially related to the murder. On July 22, 2011 Ms. Derbyshire was charged with being an accessory after the fact to the murder of Mr. Adams contrary to s.240 of the Criminal Code.

    [2] Ms. Derbyshire has made an application for the exclusion of evidence obtained from her by the undercover police officers alleging an infringement of her right to silence and right against self-incrimination under s.7 of the Canadian Charter of Rights and Freedoms. Alternatively, she seeks exclusion of the evidence or a stay of proceedings on the basis that the police actions amount to an abuse of process.

    [3] Ms. Derbyshires applications were heard at a voir dire held on June 23 27, July 25, and October 1, 2014. As part of the hearing there was testimony from Ms. Derbyshire as well as five police witnesses including the two undercover officers.

    [4] This is my decision with respect to Ms. Derbyshires applications.

    [5] Much of the evidence given by the police officers was hearsay which would not be admissible for its truth. It was adduced to explain the investigative decisions and, in particular, the nature of the undercover operation which was undertaken. I agree with Crown counsel that this evidence is admissible for that limited purpose. To the extent that I discuss the circumstances of Mr. Adams murder and the subsequent events which took place on April 10, 2011 I am only doing so to provide context for the undercover operation which took place on July 14, 2011. My description of events may be different than the facts established by the evidence presented in any trials resulting from Mr. Adams death.

  • Page 3

    Background

    [6] Stacey Adams body was found by police in Lake Echo on April 10, 2011 as a result of a 911 call. He had apparently been shot multiple times. Although the police identified several people who they believed had material information concerning the murder, they received very little initial cooperation from potential witnesses. Based upon information obtained from a number of sources, the police came to the conclusion that Mr. Adams had been shot by Steven Skinner. Mr. Skinner was well known to the police and had a lengthy criminal record. In April 2011 he was prohibited from being in Nova Scotia by court order.

    [7] As the investigation unfolded, the police formed the opinion that Mr. Skinner had flown from the Moncton airport to British Columbia late in the day on April 10, 2011. The next day he flew to Mexico with a return ticket for the following week. He did not travel back to Canada on that ticket.

    [8] By June 2011 the investigation had generated sufficient information for the police to charge Mr. Skinner with the murder of Mr. Adams. They were also fairly certain he had been driven to the Moncton airport on April 10 by Ms. Derbyshire.

    [9] On May 27, 2011the police obtained an authorization and a general warrant pursuant ss.185, 186 and 487.01 of the Criminal Code. The authorization permitted interception and recording of the communications of a number of people including Ms. Derbyshire and Mr. Skinner. There were various locations listed where interceptions could take place, including the residence and motor vehicle of Ms. Derbyshire. There was a catch-all provision permitting interception at other places when there were reasonable grounds to believe they were, or would be, used by any of the listed persons.

    [10] Pursuant to the terms of the authorization, arrangements were made to intercept telephone communications of Ms. Derbyshire. The authorization expired 60 days after May 27, 2011.

    Lead up to the Undercover Operation

    [11] Detective Constable Steven Langille of Halifax Regional Police Service was the lead investigator in the Adams homicide. He testified that the authorization issued on May 27, 2011 was not initially successful in obtaining useful evidence. He decided to request authority to include an undercover component in the investigation. His objective was to make contact with one or more of the people

  • Page 4

    identified in the authorization for purposes of stimulating conversations which could then be intercepted. Detective Constable Langilles prior experience in undercover operations was limited and involved street level drug transactions.

    [12] In this case, the undercover operation was to be carried out by the RCMP. Detective Constable Langille prepared a document entitled Investigational Planning and Report which was also referred to as Form 2350. The purpose of the document was to set out the parameters of the proposed undercover operation so that a decision could be made with respect to whether it should be authorized. It included a general description of the Adams homicide and identified Ms. Derbyshire as a potential accessory after the fact. The plan suggested that the scenario to be used should involve members of an outlaw motorcycle gang who were being adversely affected by the fallout from the murder. By contacting the targets (which included Ms. Derbyshire) it was hoped that communications would result and be intercepted pursuant to the existing authorization.

    [13] The request for an undercover operation was approved and Sergeant David Chubbs of the RCMP was designated as the cover officer. It was his responsibility to design the specific undercover scenario and direct the operation. He has been a cover officer, as well as an undercover operator, since 2000. He estimated that he had been involved in approximately 80 operations in various capacities. As the cover officer Sergeant Chubbs indicated that it was his responsibility to provide liaison between the investigator and the undercover team. The cover officer determines the nature and extent of the information which will be provided to the operators.

    [14] Sergeant Chubbs said that in designing an undercover scenario he does not want the target to be afraid. He tries to create a situation of trust and an atmosphere where the target will want to talk. He believes they are more likely to speak openly when they are not frightened.

    [15] After discussions between Sergeant Chubbs and the investigators it was decided that Ms. Derbyshire would be the target. It was not to be an ongoing operation but rather a one-shot scenario. Sergeant Chubbs wanted to develop a cover story that would be believable and require immediate attention. He decided that it would involve representatives from a criminal organization in Montreal who had business dealings with Mr. Skinner and his associates which were being adversely affected by the police attention arising from Mr. Adams homicide. Sergeant Chubbs identified Corporal P. I. of the RCMP as his preferred choice for

  • Page 5

    the operation. He described him as a flamboyant Qubcois who was very experienced and who would be able to present as a very credible gangster. The operation was scheduled around Corporal I.s availability.

    [16] On July 13, 2011 Corporal I. and RCMP Sergeant D. P. arrived in Halifax. Corporal I. has been a member of the RCMP since 1998 and had worked fulltime as an undercover officer in Quebec between 2004 and 2011. During that period he performed the role of an operator as well as a cover officer. His undercover experience related only to major crimes such as murder, arson, armed robbery and national security. Sergeant P. has been a member of the RCMP for 33 years and been involved in undercover work for 28 years. He estimated that he had participated in approximately 100 operations. Both officers had experience playing the role of a member in a criminal organization and, in particular, outlaw motorcycle gangs.

    [17] After arriving in Halifax, Corporal I. and Sergeant P. were given a briefing by Sergeant Chubbs about the operation. Detective Constable Langille was also in attendance. They were told this was a one-time chance to approach Ms. Derbyshire. They were told to do so in a public place where she would have the option of walking away if she wished. They were told, generally, about the circumstances of the Adams homicide and the police belief that Ms. Derbyshire drove him to the airport in Moncton on April 10.

    [18] I. and P. knew they would be playing members of an outlaw motorcycle gang from Quebec who had been sent to Nova Scotia because of the Adams murder. The message to be delivered was that their business was being adversely affected by the murder and the attention which it had attracted. They were sent to make sure there were no loose