Court File and Parties

COURT FILE NO.: 28/18 DATE: 2019-04-01 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – ROGER CRAIG SHORT Defendant/Applicant

Counsel: Nicole Godfrey, for the Crown/Respondent David G. Bayliss and David Levy, for the Defendant/Applicant

HEARD: March 18 and 19, 2019

THOMAS, RSJ.:

DECISION ON APPLICATION TO LEAD EVIDENCE OF CONTINUING POLICE INVESTIGATION

BACKGROUND

[1] Barbara Short was murdered at her home sometime in the evening of October 18, 2008. Her husband Craig Short was charged with first-degree murder on October 23, 2008. Craig Short professed his innocence. He was released on bail on December 23, 2008.

[2] The Crown’s case was entirely circumstantial. Undoubtedly recognizing the lack of direct inculpatory evidence the Ontario Provincial Police (O.P.P.) embarked upon a lengthy undercover operation (Project Somerton) in an attempt to gain admissions from Craig Short regarding his complicity in his wife’s death. Project Somerton operated from October 2009 to July 2011 running concurrently with Craig Short’s preliminary inquiry and ultimate committal to trial on February 27, 2011.

[3] The premise of Project Somerton was that Craig Short would be contacted about cottage renovations and then undercover officers would befriend him and attempt to have him “open up” about this wife’s death. The primary undercover officers were Detective Sergeant D.S. (D.J.) and Detective Sergeant D.M. (D.J.’ “Uncle D.”).

[4] The O.P.P. rented a cottage near Sarnia in Bright’s Grove. D.J. contacted Short’s business “Artic Renovations” to renovate the cottage. There were multiple contacts between the officers and Craig Short during the months of the continuing operation. Many were audio-recorded (at least thirty), some were video-recorded. Despite enticements Short refused to violate the terms of his recognizance by breaching his curfew or alcohol conditions. The police gained no inculpatory evidence.

[5] When encouraged to speak of Barbara Short’s death Craig Short spoke often and in great detail about the circumstances and what he viewed were the errors and bias of the O.P.P. He spoke about his case at least twenty times. The conversations are in most respects consistent with the views he has expressed in the statements made to persons in authority (Officers T.A., D.L., M.) as well as to those acquaintances he encountered around the time of Barbara Short’s death and whose evidence was the subject of my ruling regarding post-offence conduct.

[6] The O.P.P. acquired two motorcycles to assist in making the connection to Craig Short. They paid Short over $12,000 for the renovations. They released a podcast on April 4, 2011 requesting witnesses who were involved with Barbara Short to come forward. The hope was to further conversation with Craig Short about the homicide and to set up the ultimate offer by Uncle D..

[7] On April 6, 2011 Uncle D. told Short that he had someone in Toronto who was terminally ill and about to be incarcerated for homicide. The scenario was that if money was paid to his wife and children this individual would confess to the Barbara Short murder. On April 13, 2011, Craig Short, buoyed by his lawyer’s optimism, declined the offer but requested the money from Uncle D. to assist in his defence. He told Uncle D. he was “not guilty and does not want to put himself in that [bad] position”.

[8] There is no doubt that at some point the undercover operation was compromised and Craig Short was aware that D.J., Uncle D. and their entourage are all police officers. On April 24, 2011 Short’s counsel Phillip Millor messaged the Crown telling him he was aware of the police “shenanigans” and the use of police “plants”.

[9] I am unable to determine if the compromise in fact took place earlier or if Craig Short had suspicions of the real motivations of his “friends” that might have affected his contacts with them. Nothing is obvious in the material provided.

APPLICATION

[10] The application seeks an order granting leave for the defence to lead evidence at trial of the Project Somerton recordings, transcripts, surveillance video, summaries and other documents.

ANALYSIS

[11] As a general rule a defendant is not entitled to lead his own statements. The reasoning is that these statements are viewed as unreliable and needless hearsay capable of being fabricated and lacking in probative value. (R v. Stirling 2008 SCC 10, [2008] 1 S.C.R. 272 paras. 5-7; R. v. Simpson, [1988] 1 S.C.R. 3 paras. 21, 24; R. v. Beland, [1987] 2 S.C.R. 398 para. 10).

[12] In R. v. Hardy (1794), 24 St. Tr. 199, Eyre C. J. said,

…the presumption… is that no man would declare anything against himself, unless it were true; but that every man, if he was in a difficulty, or in the view to any difficulty, would make declarations for himself.

[13] Exceptions to the rule grew up where circumstances dictated that these statements acquired probative value. One such exception was to rebut evidence of recent fabrication ( Simpson, para. 24).

[14] Mr. Levy for the defence argues that the Project Somerton statements of Craig Short become probative and therefore admissible because:

(1) They fall within the Edgar exception (R. v. Edgar 2010 ONCA 529); (2) They are unique evidence arising from a failed “Mr. Big” project; (3) They are evidence of consciousness of innocence (R. v. Wray, [1994] S.C.R. 565).

1 – The Edgar Exception

[15] In Edgar the Court of Appeal crafted an exception to this exclusionary rule which would allow admission if:

(a) The statement is made upon arrest or when the accused was first confronted with an accusation; (b) The statement is spontaneous; and (c) The accused testifies and exposes himself to cross-examination.

[16] Mr. Levy acknowledges that Project Somerton statements are made over seventeen months commencing at least a year after the arrest of Craig Short. He points to what he suggests is a loosening of the spontaneity requirement. The Court of Appeal in R. v. Bodwar 2011 ONCA 266 paras. 17-23 directed that spontaneity exists on a spectrum that informed the probative value of the statement. In R. v. Liard 2015 ONCA 414 the Court of Appeal approved of a fifteen hour delay from arrest to statement.

[17] Counsel argues that the Project Somerton statements must be contextualized. After months have passed since arrest Craig Short is befriended by persons requiring his professional services and with whom he has had no previous connection. Mr. Levy suggests that on May 26, 2010 when D.J. tells Short he has read about his case in the local newspaper this comes “out of the blue” and leads to the kind of spontaneous explanation from Craig Short that was contemplated in Edgar.

[18] I find the Crown position on this argument compelling. There is no cleansing spontaneity in the statements. Craig Short had provided statements to the police. He was aware of the Crown disclosure of his charges. He sat through a bail hearing where the Crown had lead evidence of its case. The preliminary inquiry was underway. The “Edgar moment” that Mr. Levy points to is nineteen months after Short’s arrest. He had a great deal of time to consider his position.

[19] Finally, there is no undertaking from defence counsel that Craig Short will testify.

2 – “MR. BIG”

[20] Police undercover projects known as “Mr. Big” were critically assessed by the Supreme Court of Canada in R. v. Hart 2014 S.C.R. 52 (Hart). Police in Canada entered into Mr. Big projects in serious unsolved cases. Confessions and convictions were acquired in hundreds of cases. Moldaver J. said at para. 4 of Hart “manifestly, the technique has proved indispensable in the search for truth”.

[21] But as Hart disclosed suspects confessed to Mr. Big in the face of powerful inducements and veiled threats raising concerns of unreliable confessions and wrongful convictions.

[22] The Court ruled that confessions which were the product of Mr. Big projects were presumptively inadmissible (Hart para.10) and excluded Hart’s confessions in the drowning deaths of his two daughters.

[23] In R. v. Mildenberger, 2015 SKQB 27, [2015] S.J. No. 515 (SKQB) the Court considered a police investigation not unlike Project Somerton. Mildenberger was employed by undercover officers who ultimately advised they had a man dying of cancer who would confess to an unsolved murder where Mildenberger was implicated. In return Mildenberger in fact confessed to the undercover officers about his own involvement. The trial judge found this to be a Mr. Big scenario as considered in Hart but ruled the statement admissible.

[24] Mr. Levy argues that there is probative value in the uniqueness of the Project Somerton experience. He suggests that this is the only known case where the suspect did not confess. In this matter unlike the usual investigation of cold cases Craig Short had already been charged. In cold cases if the project is unsuccessful no one is the wiser. The fact that Short did not confess, despite the proven track record of the Mr. Big scenario, and despite the fact Somerton ran for seventeen months lends probative value to the evidence.

[25] Mr. Levy acknowledges that the Project Somerton evidence would extend the trial but counters that if a confession had been obtained the Crown would be proposing to lead all of the evidence it now seeks to exclude.

[26] He points to a quote from Sharpe J. A. at para. 70 of Edgar:

Trial efficiency is an important factor generally but rarely, if ever, will it justify the exclusion of relevant, probative evidence that could lead the trier of fact to acquit.

[27] I fail to see how the Mr. Big argument bolsters the defence request for admission. While these types of projects have clearly proven successful in the past (Hart para. 4) I am unable on this record to come to the conclusion that they are “unbeatable”. While I understand the difficulty in quantifying the unsuccessful projects, without that information, sweeping pronouncements of success would be irresponsible.

[28] Craig Short was not faced with the kind of inducements present in Hart. He was not subjected to the aura of violence or veiled threats present through his interaction with a criminal organization. If Short did not provide a confession he would still do renovation work for D.J.. There was no suggestion that his new found friends would forsake him.

3 – CONSCIOUSNESS OF INNOCENCE

[29] My decision regarding the Crown application for the admission of post-offence conduct evidence explored the statements made by Craig Short to friends and acquaintances immediately before and after his 911 call. It was the argument of the Crown that those statements were attempts by Short to build his alibi. I suggested that more properly he might be spreading an alternative narrative.

[30] As a result of my ruling I found admissible the evidence of twelve Crown witnesses. This admission was contested by the defence. The defence had conceded a number of witnesses and pieces of evidence I have described in my earlier ruling.

[31] The twelve witnesses tell a similar story about Craig Short’s detailed description of the events of the day with his wife, his reasons for attending the hockey game alone, the time he returned home and his tragic discovery of Barbara Short. It will be the Crown’s argument at trial that Short’s repetition and the detail of description is purposeful. He wanted his version of events out there to somehow influence the investigation.

[32] Having listened to tapes of the Project Somerton conversations I find this initial approach of the Crown problematic. I am unable to discern that in the recordings offered to me Craig Short had any inkling of the real identity of D.J. or Uncle D.. At least that is so for a significant portion of the project. Yet Short offered a regular commentary on the details of his case which not only is consistent with his conversations of October 18 to 20, 2008 but contains the same verbose level of content.

[33] I have come to the conclusion that these types of conversations are indicative of the social interaction of Craig Short. In fact the Buckleys who he spoke to at Cravin’s before the 911 call, described him as someone who just would not shut up; someone you would like to avoid.

[34] In considering the argument in this application I came to consider the probative value of statements by Craig Short during Project Somerton to balance the consciousness of guilt evidence to be led by the Crown.

[35] I am guided by the case references of the defence summarized below. The thread of authority concerning evidence of “consciousness of innocence” appears to have its origins in Justice Ritchie’s comments at para. 5 in Wray.

It does appear to me, however, that if the Crown had adduced evidence of the appellant having attempted to evade justice and having been brought to trial under compulsion, then proof that he appeared voluntarily might be relevant and admissible to counteract any inference of “consciousness of guilt” which might arise from that evidence.

[36] The issue was explored by Hill J. in R. v. Chisholm, [1997] O.J. No. 1888 para. 36.

It seems to me that the admission of evidence of consciousness of innocence is, in the balance, more compelling in the instance of a case where evidence is proffered as consciousness of guilt. It has been observed that evidence which might be said to reflect a consciousness of innocence may be more properly admitted in those cases where the evidence might assist in rebutting evidence tending to show a consciousness of guilt.

[37] In R. v. B (S.C.), [1997] 36 O.R. (3d) 516 (C.A.) the Court was considering the admissibility of evidence that the accused had offered to take a polygraph test and had consented to providing bodily samples for D.N.A. testing.

After-the-fact conduct by an accused which is reasonably capable of supporting an inference adverse to the accused is admissible as long as its probative value outweighs its prejudicial effect and there is no exclusionary rule requiring the exclusion of the evidence: R. v. Peavoy (1997), 34 O.R. (3d) 620, 117 C.C.C. (3d) 226 (C.A.). We see no reason why after-the-fact conduct, which is reasonably capable of supporting an inference favourable to the accused, should not also be received unless its probative value is substantially outweighed by its potential prejudicial effect. We are unaware of any evidentiary rule or theory of relevance which would admit evidence that an accused ran away when confronted by the police as evidence of guilt, but would exclude evidence that an accused effectively turned himself over to the police for whatever investigative purposes they desired, as evidence supporting an inference that the accused did not commit the crime.

[38] In R. v. Baltrusaitis, [2002] 58 O.R. (3d) 161 the Court of Appeal considered the fact that the trial judge in that murder trial admitted evidence that the accused lied about owning a gun but excluded evidence of his providing bodily substances for testing and admitting his animosity towards his deceased brother. At para. 83 Moldaver J. A. said the following:

Since the trial of this matter, this court on at least two occasions has stated that in appropriate circumstances, a trial judge should draw the jury’s attention to after-the-fact conduct consistent with innocence. (See R. v. B. (S.C.) (1997), 119 C.C.C.) (3d) 530, at pp. 542-43 and R. v. Schell (2000), 148 C.C.C. (3d) 219, at p. 237. In my view, this was such a case. The after-the-fact conduct of the appellant pointing to guilt was weak and to the extent that the trial judge saw fit to leave it with the jury at all, I believe that he should also have drawn the jury’s attention to the after-the-fact conduct pointing to innocence. Accordingly, I would give effect to the appellant’s position that the trial judge erred in his instructions on after-the-fact conduct.

[39] At para. 78 of the defence factum Mr. Levy makes the following compelling observation.

The law as outlined in Baltrusaitis at the very least affords the Applicant the opportunity to rebut the Crown’s carefully chosen evidence by showing that, three years later, the Applicant was still maintaining that same version of events to individuals he had no reason to believe could change anything for him.

[40] I have previously advised counsel that, while the defence argument resting on the Edgar exception and the Mr. Big scenario must fail, in my view the statements of Craig Short made to undercover police officers in Project Somerton were probative and admissible to counter the post-offence conduct evidence described above. It remains my view that, but for that purpose, the evidence lacks the necessary probative value for defence evidence and offends the rule against prior consistent statements.

[41] After considering the Crown position Ms. Godfrey advised that the Crown would abandon the following evidence considered by me earlier in para. 100 of my decision regarding post-offence conduct.

(1) Subparagraphs (a)-(d) being the evidence of Stacey Worsley, Melissa White, Colleen and Peter Buckley; (2) Subparagraph (e) being the evidence of Helen Tsaprailis except as she describes the meeting with Short about the McFadyen letter; (3) Subparagraphs (j)-(o) being the evidence of Laura-Lee Bowling, Jaylene Poirier, William Newton, Rhonda Srokosz, Dave Pellegrine and David Rowe.

CONCLUSION

[42] With the position now taken by Crown counsel the evidence sought to be admitted in this Application, that being the evidence of Project Somerton lacks sufficient probative value and the Application is dismissed.

“Original signed B. Thomas” Regional Senior Justice B.G. Thomas

Released: April 1, 2019