Her Majesty the Queen v. Osmar

[Indexed as: R. v. Osmar]

84 O.R. (3d) 321

Court of Appeal for Ontario,

Rosenberg, Goudge and LaForme JJ.A.

January 29, 2007

Charter of Rights and Freedoms -- Fundamental justice -- Self-incrimination -- Right to remain silent -- Police using "Mr. Big" technique of posing as part of criminal organization -- Suspect confessing to two murders in hopes of securing job with "Mr. Big" -- Trial judge correct in holding that accused's s. 7 right to silence not engaged as he wasn't detained during dealings with undercover officers -- Elicitation and trickery used were not sufficient to trigger Charter scrutiny -- Canadian Charter of Rights and Freedoms.

Criminal law -- Evidence -- Confessions and admissions -- Admissibility at common law -- Police using "Mr. Big" technique of posing as part of criminal organization -- Suspect confessing to two murders in hopes of securing job with "Mr. Big" -- Accused arguing that admission of statement made as result of trick that would shock community -- Trial judge correctly holding that trick not shocking -- Accused arguing that admissions made under circumstances of unreliability -- Little if any coercion employed -- Trial judge correctly holding that probative value of admissions outweighing its prejudicial effect -- Appeal from conviction for murder dismissed.

Criminal law -- Evidence -- Expert evidence -- Suspect confessing to two murders in hope of obtaining job with what he believed was criminal organization -- Mr. Big and associates undercover police officers -- Accused seeking to call social psychologist to testify about public bias against idea that innocent people might falsely confess, why innocent person does so and how to evaluate whether admission false -- Obvious from evidence of accused and police that admissions resulting from inducements regarding accused's hope for job and no downside in confessing to other supposed criminals -- Research regarding conduct of innocent people detained by police of little assistance given circumstances of accused's admissions -- Trial judge properly finding that proposed expert evidence inadmissible as not meeting test for necessity.

Criminal law -- Trial -- Charge to jury -- Admissions -- Undercover police officers inducing accused to confess to murders by posing as members of criminal organization, offering him work with organization and persuading him to confess to demonstrate his trust in organization -- Trial judge not erring in failing to charge jury that there are cases where suspects have falsely confessed and that jury should give little or no weight to accused's statement if it was obtained by inducement.

The accused, known as "Mr. Big", was convicted on two counts of first degree murder. The police suspected him but were unable to obtain enough evidence against him until they used a particular investigative technique. Police officers posing as organized crime figures offered him an opportunity to work for the organization and persuaded him to confess to the murders to demonstrate his trust in the organization and his suitability for a job with Mr. Big. The accused brought a pre-trial motion seeking to have his statements to the undercover officers excluded from evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms [page322] on the basis that his right to remain silent under s. 7 of the Charter was violated. The motion judge rejected arguments that the statements were admissible either under the Charter or at common law. At trial, the defence sought to call a social psychologist and leading expert on the phenomenon of false confessions to testify that there is a bias among lay people against the idea that someone who is innocent might falsely confess, to testify about what motivates a person, including an innocent person, to confess to a person in authority, and to testify about the way to evaluate whether or not a confession is false. The trial judge held that the proposed evidence did not meet the test for admission of expert evidence as it was neither relevant nor necessary. The accused also argued that the trial judge should have warned the jury that despite the apparently convincing confession to committing two murders, there have been past miscarriages of justice as the result of false confessions, that if the admissions were made as the result of inducements they should attribute little or no weight to them and that they should carefully compare the statement with the information that the accused said he had gleaned from interviews with the police and from publicly available information to determine if the statement was the product of contamination, rather than a truthful admission. The accused appealed his conviction.

Held, the appeal should be dismissed.

The right to silence under s. 7 of the Charter is not triggered where the suspect is not detained. The accused was unaware that he was dealing with agents of the state and was not detained when he spoke to the undercover officers. There was little, if any, coercion. The accused was not under pronounced psychological and emotional pressure during his interviews with the officers. This example of the Mr. Big strategy did not contain the elements of a real possibility of an unreliable confession because of abuse of power by a person in authority. There was no abuse of power. The accused was presented with an opportunity to obtain employment in a criminal organization, but he was not threatened or intimidated. It may be that the right to silence could be extended to a case where the accused, although not in detention, was nevertheless under the control of the state in circumstances functionally equivalent to detention and equally needing protection from the greater power of the state. But that was not this case. The accused was not under the control of the state nor was the context such as to require that he be protected from the greater power of the state. The accused's assertion that elicitation and trickery are sufficient to require Charter scrutiny was not supportable by the authorities or by a reasoned extension of the principles in those cases. The accused's right to silence was not engaged.

The tricks used by the police in this case were not such as to shock the community. This was not a case of such extraordinary coercion that it could be said that the statement was too unreliable to be received by the triers of fact. The trial judge was entitled to find that the prejudicial effect of the evidence did not outweigh its probative value. The statements were admissible at common law.

The trial judge properly found that the evidence of the social psychologist was not admissible as it did not meet the necessity requirement for the admission of expert evidence. The proposed expert's evidence did not explain why the public has a bias against accepting the fact that an innocent person in police custody might confess. If it is because members of the public cannot identify with an accused person who is in custody and being interrogated, the circumstances of the accused's admissions are far removed from that circumstance. The experience of the law and the expert's research is based on formal police interrogations while a suspect was detained, which was not the case here. It would be obvious to the jury that the inducement of getting a job with Mr. Big and the accused's belief at the [page323] time that there was no downside to confessing to fellow criminals could provide reasons to falsely confess, so the expert's evidence regarding the motivations behind false confessions was not needed. The psychologist's evidence was not about matters on which ordinary people are unlikely to form a correct judgment.

The trial judge did not err in failing to charge the jury that there are cases where suspects have falsely confessed, leading to miscarriages of justice. The case law regarding false confessions relates to statements obtained during formal police interrogations and was of no application to these facts. The direction the accused sought regarding alleged circumstances of unreliability surrounding taking of the statement derives from concerns that a statement may have been coerced through violence, the threat of violence or degrading treatment. None of those concerns arose in this case. As for the accused's request that the jury be warned about possible contamination from earlier police interviews or from publicly available information that he later incorporated into his allegedly false statement to Mr. Big, this was the core of the theory of the defence and it would have been obvious to the jury without additional instruction sought by the accused.

APPEAL from the conviction by Platana J. of the Superior Court of Justice, dated March 9, 2002, for first degree murder.

Cases referred to

R. v. Foreman (2002), 2002 6305 (ON CA), 62 O.R. (3d) 204, [2002] O.J. No. 4332, 169 C.C.C. (3d) 489, 6 C.R. (6th) 201 (C.A.); R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151, [1990] S.C.J. No. 64, 47 B.C.L.R. (2d) 1, 110 N.R. 1, [1990] 5 W.W.R. 1, 49 C.R.R. 114, 57 C.C.C. (3d) 1, 77 C.R. (3d) 145; R. v. McIntyre, 1994 95 (SCC), [1994] 2 S.C.R. 480, [1994] S.C.J. No. 52, 153 N.B.R. (2d) 161, 168 N.R. 308, 392 A.P.R. 161, affg 1993 5357 (NB CA), [1993] N.B.J. No. 293, 135 N.B.R. (2d) 266, 21 W.C.B. (2d) 376 (C.A.); R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9, [1994] S.C.J. No. 36, 114 D.L.R. (4th) 419, 89 C.C.C. (3d) 402, 29 C.R. (4th) 243, apld R. v. Hodgson, 1998 798 (SCC), [1998] 2 S.C.R. 449, [1998] S.C.J. No. 66, 163 D.L.R. (4th) 577, 230 N.R. 1, 127 C.C.C. (3d) 449, 18 C.R. (5th) 135 (sub nom. R. v. H. (M.C.)); R. v. Oickle, [2000] 2 S.C.R. 3, [2000] S.C.J. No. 38, 2000 SCC 38, 187 N.S.R. (2d) 201, 190 D.L.R. (4th) 257, 259 N.R. 227, 585 A.P.R. 201, 147 C.C.C. (3d) 321, 36 C.R. (5th) 129 (sub nom. R. v. Oickle (R.F.)); R. v. Turcotte, [2005] 2 S.C.R. 519, [2005] S.C.J. No. 51, 260 D.L.R. (4th) 1, 339 N.R. 32, [2006] 2 W.W.R. 1, 135 C.R.R. (2d) 256, 200 C.C.C. (3d) 289, 2005 SCC 50, 45 B.C.L.R. (4th) 197, 31 C.R. (6th) 197; R. v. White, 1999 689 (SCC), [1999] 2 S.C.R. 417, [1999] S.C.J. No. 28, 174 D.L.R. (4th) 111, 240 N.R. 1, 63 C.R.R. (2d) 1, 135 C.C.C. (3d) 257, 42 M.V.R. (3d) 161, 24 C.R. (5th) 201, consd Other cases referred to R. v. Evans, 1993 86 (SCC), [1993] 3 S.C.R. 653, [1993] S.C.J. No. 115, 108 D.L.R. (4th) 32, 158 N.R. 278, 85 C.C.C. (3d) 97, 25 C.R. (4th) 46; R. v. Forknall, 2003 BCCA 43, [2003] B.C.J. No. 108, 172 C.C.C. (3d) 61 (C.A.); R. v. Grandinetti, [2005] 1 S.C.R. 27, [2005] S.C.J. No. 3, 396 A.R. 1, 247 D.L.R. (4th) 385, 329 N.R. 28, 343 W.A.C. 1, [2005] 4 W.W.R. 405, 191 C.C.C. (3d) 449, 2005 SCC 5, 25 C.R. (6th) 1, 37 Alta. L.R. (4th) 197; R. v. Henry, [2005] 3 S.C.R. 609, [2005] S.C.J. No. 76, 376 A.R. 1, 260 D.L.R. (4th) 411, 342 N.R. 259, 360 W.A.C. 1, [2006] 4 W.W.R. 605, 136 C.R.R. (2d) 121, 202 C.C.C. (3d) 449, 2005 SCC 76, 49 B.C.L.R. (4th) 1, 33 C.R. (6th) 215; R. v. J. (J.-L.), [2000] 2 S.C.R. 600, [2000] S.C.J. No. 52, 2000 SCC 51, 192 D.L.R. (4th) 416, 261 N.R. 111, 148 C.C.C. (3d) 487, 37 C.R. (5th) 203 (sub nom. R. v. J.-L.J.); R. v. MacMillan, [2003] B.C.J. No. 3156, 2003 BCSC 1705; R. v. Mentuck, [2001] 3 S.C.R. 442, [2001] S.C.J. No. 73, 163 Man. R. (2d) 1, 205 D.L.R. (4th) 512, 277 N.R. 160, 269 W.A.C. 1, [2002] 2 W.W.R. 409, 158 C.C.C. (3d) 449, 47 C.R. (5th) 63, 2001 SCC 76 (sub nom. R. v. Mentuck (C.G.)); R. v. Raza, [1998] B.C.J. No. 3242 (S.C.); R. v. Redd, [1999] B.C.J. No. 1471, 43 W.C.B. (2d) 62 (S.C.); R. v. Roberts, 1997 3313 (BC CA), [1997] B.C.J. No. 765, 90 B.C.A.C. 213, 34 W.C.B. (2d) 232 (C.A.); R. v. Rothman, 1981 23 (SCC), [1981] 1 S.C.R. 640, [1981] S.C.J. No. 55, 121 D.L.R. (3d) 578, 35 N.R. 485, 59 C.C.C. (2d) 30, 20 C.R. (3d) 97; [page324] R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, [2000] S.C.J. No. 40, 148 Man. R. (2d) 161, 190 D.L.R. (4th) 591, 258 N.R. 250, 224 W.A.C. 161, [2000] 11 W.W.R. 1, 147 C.C.C. (3d) 449, 36 C.R. (5th) 1; R. v. Terrico, 2005 BCCA 361, [2005] B.C.J. No. 1452, 199 C.C.C. (3d) 126 (C.A.); R. v. Wytyshyn, [2002] A.J. No. 1389, 2002 ABCA 229, 55 W.C.B. (2d) 654; The King v. Todd (1901), 1901 92 (MB CA), 4 C.C.C. 514 (Man. K.B.); Unger v. Canada (Minister of Justice), 2005 MBQB 238, [2005] M.J. No. 396, 196 Man. R. (2d) 280 (Q.B.)

Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 7, 24(1)

Authorities referred to

Stuart, D., Charter Justice in Canadian Criminal Law, 4th ed. (Toronto: Thomson Carswell, 2005)

Philip Campbell, for appellant. J. Sandy Tse and Michelle Campbell, for respondent.

The judgment of the court was delivered by

[1] ROSENBERG J.A.: -- In recent years, police forces in other parts of Canada have revived an investigative technique referred to as the "Mr. Big" strategy.[^1] The police resort to this technique when they have a suspect in a serious crime, usually murder, but they have been unable to obtain sufficient evidence against the suspect. While there are some variations, in general, in the Mr. Big scenario police officers posing as organized crime figures offer the suspect the opportunity to join their organization. The cost of entry to the organization is that the suspect demonstrate that he can be trusted and is capable of carrying out the kind of criminal acts required by the organization. The suspect is persuaded by inducements and other means to admit to a serious crime to demonstrate his trust in the organization and that he can be counted on to carry out the criminal orders of Mr. Big.

[2] In 2000, the Mr. Big strategy made its way to Ontario. In this case, in order to gain a job in a criminal organization, the appellant told undercover officers that he had killed two men. While the appellant had been a suspect in these two killings, there was almost no other credible evidence to connect him to the crimes. In a pre-trial motion, the appellant argued that his statements were inadmissible under the Canadian Charter of Rights and Freedoms. Kozak J. heard the motion, rejected arguments [page325] that the statements were inadmissible either under the Charter or at common law, and held that the statements were admissible.

[3] Appellate courts in other provinces and the Supreme Court of Canada have held that statements made in the course of the Mr. Big strategy are admissible at common law. Although the statements are invariably induced by promises made by persons in authority, the common law voluntariness rules do not apply because the suspect does not know the members of the criminal organization are really police officers. Courts have also held that since the suspect is not detained when making the statements, the right to silence guaranteed by s. 7 of the Charter as explained in R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151, [1990] S.C.J. No. 64, 57 C.C.C. (3d) 1 is not violated.

[4] In an interesting argument, Mr. Campbell, on behalf of the appellant, argues that our understanding of the right against self-incrimination has evolved so that physical detention is no longer required to trigger the constitutionally protected right to silence. Accordingly, he submits that the appellant's statements to the police officers were inadmissible under the Charter. Alternatively, he argues that a court has a common law jurisdiction to exclude the statements because they are made under circumstances of unreliability or because their admission would shock the conscience of the community. In a separate argument, the appellant also argues that the trial judge, Platana J.,[^2] erred in refusing to admit the evidence of a leading expert on false confessions and failed to adequately caution the jury on the unreliability of the appellant's statements to the undercover officers.

[5] I would not give effect to these grounds of appeal and accordingly I would dismiss the appellant's appeal from his convictions for first degree murder.

The Facts

(1) The murders

[6] This case involves the killing of two men approximately one month apart in Thunder Bay. In the early morning hours of January 16, 1998, Raymond Greenwood was killed in his hotel room. At the time, the appellant was working as a taxi driver. Aside from what is contained in his statements to the undercover police officers, the appellant's only known connection with the deceased is that he picked up a prostitute at the hotel who had been in [page326] Mr. Greenwood's hotel room. The Crown's theory was that at some point the appellant returned to the hotel, entered the deceased's room, and repeatedly stabbed him to death, presumably as part of a robbery.

[7] The police interviewed the appellant on several occasions, initially simply as a witness. However, in the following weeks the police began to view him as a suspect and were planning to place him under intermittent surveillance and interview him again. They abandoned this plan when Theodore Keeper was killed on February 25, 1998 in a manner very similar to Mr. Greenwood. While there was no circumstantial evidence to connect the appellant with this killing, the police believed that both killings were committed by the same person. Their investigation focused on the appellant.

[8] Over the next several months the police mounted a campaign of overt surveillance on the appellant. They followed him day and night and contacted his associates. It seems that eventually this intense surveillance tapered off. The police had been unable to obtain any incriminating evidence from the appellant.

(2) The Mr. Big operation

[9] Over a year after the second killing, the appellant entered a drug treatment centre in North Bay. The police placed an undercover officer, Det. Sgt. Sheffer, into the facility to befriend the appellant. Sheffer only remained in the facility for a few days. Five months later, in August 1999, Sheffer renewed his acquaintance with the appellant. Posing as a drifter, Sheffer arranged a "chance" encounter with the appellant. The appellant complained about police officers coming to his house and said he would tell Sheffer the whole story some day.

[10] Five months later, on January 21, 2000, Sheffer again met the appellant, seemingly by chance, and they resumed their relationship. This time, however, Sheffer appeared to be employed and gave the impression that he was involved in illegal activities. On January 24, Sheffer pretended that he had to deliver a mysterious parcel to the area of Pass Lake. The appellant offered to accompany him. During the trip, the appellant seemed preoccupied with surveillance and Sheffer asked him if there was something he should know. The appellant said that he was a suspect in unsolved homicides but he denied that he was involved. The appellant complained about financial problems and Sheffer told him that if a job came up he would keep him in mind. When Sheffer and the appellant returned to Thunder Bay they went to a house set up to look like Sheffer's residence. By arrangement, a Crime Stoppers video that referred to the murders and referred [page327] to the appellant as the killer was played on the television. The appellant was angry about the "broadcast", asking how the police could get away with such actions.

[11] Three days later, Sheffer offered to put in a good word for the appellant with his boss. However, he told the appellant that the partners in the organization would need something that they could use as trust. The appellant said that he knew something about the Greenwood homicide; that he had driven a friend to the hotel and found out the next day that a murder had occurred. Sheffer told the appellant that the boss was coming to Thunder Bay and that he would tell the boss what the appellant had told him.

[12] The following day, Sheffer picked up the appellant and drove him to a hotel to meet the boss. In reality, the boss was another undercover officer, Det. Sgt. McIsaac. McIsaac questioned the appellant about his past and the appellant told him about his prior record and similar matters. When McIsaac appeared disinterested in these matters, Sheffer suggested that the appellant tell him about the murders. The appellant repeated the story he had given Sheffer the day before. McIsaac pointed out that the appellant could just be repeating things he had read in the newspapers. The appellant then "put his hands up in a sigh of relief and bowed his head and said that there was no other male, that he was responsible for both the murders".

[13] McIsaac then asked the appellant for more details and the appellant gave a detailed account of the two murders, including the fact that he had used an awl to kill Mr. Greenwood and that he had thrown the awl in the river. McIsaac told Sheffer to go with the appellant to the river. On the way, the appellant assured Sheffer that if he and McIsaac needed someone killed he could look after that. When they reached the river, it was frozen over and snow-covered (as it likely was in January 1998 when the appellant said he had disposed of the awl after the Greenwood killing).

[14] The following day, Sheffer picked up the appellant and brought him to his supposed residence. Sheffer told the appellant that his boss wanted the appellant to go over it all again. Unbeknownst to the appellant this house was equipped with audio equipment. The appellant repeated the story. He was arrested a short time later.

[15] There was a serious contest at trial about where the appellant obtained the information contained in his statements. The appellant testified that the details of the killings came from information provided by the police when he had been interviewed by them and kept under overt surveillance almost two years earlier. The Crown contended that some of these details had never [page328] been disclosed to the appellant. The defence also pointed out that certain details of the crimes that would have been known to the killer were not mentioned by the appellant in his statements to the undercover police officers.

(3) Other evidence

[16] Hugh Mathieson had a long record for crimes of dishonesty and was a police informer. He met the appellant and engaged in some illegal drug sales with him. In the course of a dispute, the appellant told him "if you don't shut up and leave me alone I'll kill you like I killed those other two".

[17] There was no circumstantial evidence found at the scene of the two murders implicating the appellant. Fingerprints and handprints found at the two crime scenes could not be matched to the appellant.

(4) The appellant's evidence

[18] The appellant denied committing the murders. He gave a detailed account of his whereabouts at the time of the Greenwood killing. He denied returning to the hotel after dropping off the prostitute. He testified that he knew Mr. Keeper from a local casino and that he had been to his house on one occasion. He did not know where he was on the day Mr. Keeper was killed. He denied threatening to kill Mr. Mathieson.

[19] The appellant testified that he had lied to the undercover police officers so that he could get a job with the organization. He claimed that he felt desperate because he could not get any jobs. He blamed police surveillance for his inability to obtain employment.[^3] As indicated, the appellant claimed that the details of the killings had been supplied to him by the police officers who had questioned him or had followed him around in the months following the Keeper murder.

(5) Dr. Ofshe

[20] Dr. Richard Ofshe is a social psychologist and a leading expert on the phenomenon of false confessions. His work was referred to by the Supreme Court of Canada in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, [2000] S.C.J. No. 38, 147 C.C.C. (3d) 321. The defence sought to call Dr. Ofshe to testify about the reasons that suspects falsely confess and the proper method of evaluating the reliability of a confession. On a voir dire, Dr. Ofshe explained [page329] that, where the reasons not to confess are sufficiently reduced by making the suspect believe that resistance is hopeless and that some advantage may come from confession, both the likelihood of confession and the risk of false confession will rise. It may eventually become attractive to a suspect to admit a crime. Dr. Ofshe had not studied the Mr. Big strategy but believed that his analysis of statements to known persons in authority could be adapted to the Mr. Big method. He testified that the inducements held out to the appellant were similar to the inducements held out in normal police interrogations.

[21] Dr. Ofshe also pointed out that, while the phenomenon of false confessions is very well known to social psychologists, most people presume that innocent people will not confess falsely. Finally, he testified that the way to evaluate the reliability of the confession is to compare the details in the confession with the facts of the murder not given to the suspect by the police. He also testified about the danger of contamination in this case, that is, the risk that details of the killings as conveyed to the undercover police officers by the appellant came from the investigating officers who had earlier interrogated him.

[22] The trial judge held that Dr. Ofshe's evidence was not admissible as it did not meet the test for admission of expert evidence. The trial judge held that evidence was neither relevant nor necessary. I will expand on Dr. Ofshe's evidence when I deal with the ground of appeal relating to the exclusion of his evidence.

The Grounds of Appeal

[23] The appellant submits that his statements to the undercover police officers should not have been admitted. He argues for exclusion on the basis that admission of the statements violates the principle against self-incrimination as guaranteed by s. 7 of the Charter. He also submits that the statements should have been excluded on the common law grounds that the prejudicial effect of the statements outweighs their probative value, that the statements fail the reliability prerequisite for the principled admission of hearsay evidence, and that the Mr. Big strategy shocks the conscience of the community such that the evidence should be excluded in accordance with R. v. Oickle, supra.

[24] Alternatively, the appellant submits that the trial judge erred in excluding Dr. Ofshe's evidence. Finally, he submits that the trial judge did not adequately caution the jury about the danger of relying upon the appellant's statements to the undercover officers. [page330]

Analysis

(1) Admissibility of the statements

(i) [Section 7](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[25] Two decisions from the Supreme Court of Canada would seem to be insurmountable barriers to the success of this ground of appeal. In R. v. Hebert, the Supreme Court of Canada held that the right to silence guaranteed by s. 7 of the Charter is not infringed by undercover police operations where the suspect is not detained. Then, in R. v. McIntyre, 1994 95 (SCC), [1994] 2 S.C.R. 480, [1994] S.C.J. No. 52, the court affirmed the application of Hebert in a Mr. Big-type case. The appellant seeks to avoid the impact of these cases by arguing that more recent decisions of the Supreme Court have held that s. 7 is implicated whenever the state seeks to use self-incriminating evidence by coercive methods. He argues that trickery combined with elicitation can amount to coercion and that there is no requirement of detention.

[26] The appellant's argument turns on the impact of several more recent decisions of the Supreme Court of Canada, in particular, R. v. Hodgson, 1998 798 (SCC), [1998] 2 S.C.R. 449, [1998] S.C.J. No. 66, 127 C.C.C. (3d) 449, R. v. White, 1999 689 (SCC), [1999] 2 S.C.R. 417, [1999] S.C.J. No. 28, 135 C.C.C. (3d) 257 and R. v. Turcotte, 2005 SCC 50, [2005] 2 S.C.R. 519, [2005] S.C.J. No. 51, 200 C.C.C. (3d) 289. I will briefly examine each of these cases and then return to the decisions in Hebert and McIntyre.[^4]

[27] In Hodgson, the court was required to consider the common law confessions rule in the context of statements made to persons other than traditional persons in authority, such as police officers.[^5] The court accepted that there can be concerns about unfairness and unreliability when the confession is made to a private citizen as a result of threats of imminent violence. The court further recognized that the requirement that a confession be voluntary was rooted in concerns about reliability of an [page331] involuntary confession but also served interests of fairness and the administration of criminal justice, including the principle against self-incrimination. Nevertheless, the court reaffirmed the continued vitality of the person in authority limitation on the common law confession rule enunciated in the pre-Charter decision R. v. Rothman, 1981 23 (SCC), [1981] 1 S.C.R. 640, [1981] S.C.J. No. 55, 59 C.C.C. (2d) 30. In short, the rule that an accused's statement must be proved voluntary before being admitted applies only to those statements made by the accused to a person the accused believes to be a person in authority. If there was to be any change in the law, it would have to be by legislative amendment. In the meantime, the court held that concerns about the reliability of confessions to private individuals should be addressed through appropriate jury instructions warning the jury that such a statement might be untrue or unreliable and given little weight.

[28] While there are important statements in Hodgson about the dangers of unreliable confessions and the unfairness of admitting statements obtained through oppressive measures, Hodgson does not advance the appellant's case. To the contrary, it stands as a formidable restatement of the Rothman rule. Admittedly, Hodgson was not a Charter case. However, the court referred to and quoted from Hebert, including, at para. 22, this passage from p. 173 S.C.R., p. 32 C.C.C. of Hebert:

. . . one of the themes running through the jurisprudence on confessions is the idea that a person in the power of the state's criminal process has the right to freely choose whether or not to make a statement to the police. This idea is accompanied by a correlative concern with the repute and integrity of the judicial process. This theme has not always been ascendant. Yet, its importance cannot be denied. It persists, both in Canadian jurisprudence and in the rules governing the rights of suspects in other countries.

(Emphasis added)

[29] It is significant that the Hodgson court referred to this part of the Hebert reasons, for this is an important building block for the rule developed in Hebert, that a person in the control of the state has the right to choose whether to make a statement to the police. Later in Hebert, McLachlin J. went on to explain the limits on the constitutionally recognized right to choose, including the requirement of detention.

[30] The second case relied upon by the appellant is R. v. White. In White, the court held that the use at a criminal trial of statements made under statutory compulsion by a motorist involved in an accident violates s. 7 of the Charter and that the statements are inadmissible under s. 24(1). White suggests a broadening of the right against self-incrimination recognized in Hebert since there was no suggestion that the motorist was physically [page332] detained. However, White does not represent a wholesale re-evaluation of the right to silence to encompass any statement by a suspect to a person in authority. In White, Iacobucci J. gathered together a number of propositions that inform the discussion of the scope of the principle against self-incrimination, including the following:

-- an accused is not required to respond to an allegation of wrongdoing made by the state until the state has succeeded in making out a prima facie case against him or her (para. 41);

-- the principle has at least two key purposes, namely to protect against unreliable confessions, and to protect against abuses of power by the state (para. 43);

-- the principle against self-incrimination is an overarching principle within our criminal justice system, from which a number of specific common law and Charter rules emanate, such as the confessions rule, and the right to silence, among many others; the principle can also be the source of new rules in appropriate circumstances (para. 44); and

-- but, the principle does not provide absolute protection against all uses of information that has been compelled by statute or otherwise; the residual protections provided by the principle against self-incrimination as contained in s. 7 are specific, and contextually sensitive (para. 45).

[31] Most importantly for understanding the argument made in this case is Iacobucci J.'s discussion in White of the importance of context. As he said at para. 45, "The principle against self-incrimination demands different things at different times, with the task in every case being to determine exactly what the principle demands, if anything, within the particular context at issue." Further, the contextual analysis must always be tied to the principles of fundamental justice. Again to quote Iacobucci J., at para. 47, "Each principle of fundamental justice must be interpreted in light of those other individual and societal interests that are of sufficient importance that they may appropriately be characterized as principles of fundamental justice in Canadian society."

[32] In White, Iacobucci J. examined four contextual factors that led him to find that use of statements made under statutory compulsion from provincial traffic legislation violated s. 7. Those factors were the existence of coercion, an adversarial relationship producing "a context of pronounced psychological and emotional pressure" (para. 58), the real possibility of an unreliable confession [page333] to a person in authority "whose authority and physical presence might cause the driver to produce a statement in circumstances where he or she is not truly willing to speak" (para. 62), and abuse of power in that "police would have a strong incentive or perhaps an unconscious inclination to overemphasize the extent of the statutory duty to report an accident under the Act, in order to obtain relevant information" (para. 64). I should note that Iacobucci J. appears to place relatively little weight on the coercive nature of the statutory compulsion because the coercion takes place in the context of a regulated activity -- driving on public highways. Thus, he held at para. 55 that "the issue of free and informed consent must be considered a neutral factor in the determination of whether the principle against self-incrimination is infringed by s. 61 of the Motor Vehicle Act".

[33] Applying the contextual analysis set out in White, assuming I can do so free of the dictates of Hebert and McIntyre, does not lead me to conclude that the strategy employed by the police in this case violated s. 7. In doing so, I am conscious of the point made by Iacobucci J. at para. 48 of White: "In every case, the facts must be closely examined to determine whether the principle against self-incrimination has truly been brought into play by the production or use of the declarant's statement." Thus, it is not helpful to look at the Mr. Big strategy at large but rather as it was employed in this case.

[34] The context in this case does not violate the principles of fundamental justice. There was little, if any, coercion. The appellant was seeking employment in what he believed was an illegal enterprise. While he had been the subject of intense surveillance many months earlier, the overt surveillance had ceased. He claimed that he was unable to secure other employment, but this is belied by the evidence that he had refused to follow up an offer of legitimate employment. The motion judge dismissed the claim that the appellant was effectively prohibited from finding employment because of the actions of the police. He also rejected the claim that the appellant was "inflicted with emotional and psychological trauma because of the intense surveillance".

[35] I accept that the appellant and the police were in an adversarial relationship, but the appellant was not under "pronounced psychological and emotional pressure". The motion judge found to the contrary; that the appellant "displayed a composed and stable personality" during his interviews with the undercover officers.

[36] Finally, this example of the Mr. Big strategy does not contain the elements of a real possibility of an unreliable confession because of abuse of power by a person in authority. There was no [page334] abuse of power. The appellant was presented with an opportunity to obtain employment in a criminal organization, but he was not threatened or intimidated. Even if it is possible to apply the White analysis to this case, the evidence and the findings of fact by the motion judge undermine any claim to a violation of s. 7.

[37] The final case relied upon by the appellant is R. v. Turcotte. Turcotte concerned the evidentiary value of a suspect's silence in the face of inquiries from the police. The court affirmed the common law right that, absent statutory compulsion, an individual has the right to remain silent in the face of police questioning. Speaking for the court at para. 41, Abella J. referred to the scope of the right as explained by Lamer J. in his concurring opinion in Rothman:

In Canada the right of a suspect not to say anything to the police . . . is merely the exercise by him of the general right enjoyed in this country by anyone to do whatever one pleases, saying what one pleases or choosing not to say certain things, unless obliged to do otherwise by law. It is because no law says that a suspect, save in certain circumstances, must say anything to the police that we say that he has the right to remain silent, which is a positive way of explaining that there is on his part no legal obligation to do otherwise.

[38] Abella J. went on to refer at some length to Hebert and at para. 43 quoted what she characterized as a unifying theme of the confessions rule and the privilege against self- incrimination: "[T]he idea that a person in the power of the state in the course of the criminal process has the right to choose whether to speak to the police or remain silent." She concluded that it would be an illusory right if the decision not to speak to the police could be used by the prosecution as evidence of guilt. Importantly, for the purposes of this case, Abella J. held at para. 51 that the common law right to silence "exists at all times against the state, whether or not the person asserting it is within its power or control. Like the confessions rule, an accused's right to silence applies any time he or she interacts with a person in authority, whether detained or not."

[39] But, the context is all important. The context in Turcotte was that the accused exercised his right to silence by remaining silent. The appellant's right to silence in that sense is not engaged in this case. The appellant gave up his right to silence by speaking to the undercover police officers. Only if the right to silence is absolute and capable of being discharged only by waiver can the appellant succeed by analogy to Turcotte. But that position was rejected by the majority of the court in Hebert, even where the suspect is detained by the police. In Hebert at pp. 183 S.C.R., pp. 40-41 C.C.C., McLachlin J. described her approach in these terms:

This approach may be distinguished from an approach which assumes an absolute right to silence in the accused, capable of being discharged only by [page335] waiver. On that approach, all statements made by a suspect to the authorities after detention would be excluded unless the accused waived his right to silence. Waiver, as defined in R. v. Clarkson, 1986 61 (SCC), [1986] 1 S.C.R. 383, 25 C.C.C. (3d) 207 is a subjective concept dependent, among other things, on the accused's knowing that he is speaking to the authorities. On this approach, all statements made by a person in detention which were not knowingly made to a police officer would be excluded because, absent knowledge that the suspect is speaking to a police officer, the Crown cannot establish waiver. This would include statements made to undercover agents (regardless of whether the officer is merely passive or has elicited the statement) as well as conversations with fellow prisoners overheard by the police and statements overheard through mechanical listening devices on the wall. There is nothing in the rules underpinning the s. 7 right to silence or other provisions of the Charter that suggests that the scope of the right to silence should be extended this far. By contrast, the approach I advocate retains the objective approach to confessions which has always prevailed in our law and would permit the rule to be subject to the following limits.

(Emphasis added, emphasis in original omitted)

[40] There is nothing in Turcotte to suggest the court intended a fundamental re-evaluation of the relationship between the right to silence and waiver as explained in Hebert.

[41] Justice McLachlin went on at p. 184 S.C.R., p. 41 C.C.C. of Hebert to specifically address the issue raised by this case, the use of undercover police officers to elicit statements from a suspect who is not detained:

Second, it applies only after detention. Undercover operations prior to detention do not raise the same considerations. The jurisprudence relating to the right to silence has never extended protection against police tricks to the pre-detention period. Nor does the Charter extend the right to counsel to pre-detention investigations. The two circumstances are quite different. In an undercover operation prior to detention, the individual from whom information is sought is not in the control of the state. There is no need to protect him from the greater power of the state. After detention, the situation is quite different; the state takes control and assumes the responsibility of ensuring that the detainee's rights are respected.

(Emphasis added)

[42] It may be that the right to silence recognized in Hebert could be extended to a case where the accused, although not in detention, was nevertheless under the control of the state in circumstances functionally equivalent to detention and equally needing protection from the greater power of the state. But that is not this case. This appellant was not under the control of the state nor was the context such as to require that he be protected from the greater power of the state. The appellant's assertion that elicitation and trickery are sufficient to require Charter scrutiny is not supportable by the authorities or by a reasoned extension of the principles in those cases. [page336]

[43] The appellant submits that McLachlin J.'s reference to the right to silence applying only after detention in Hebert was obiter. Even if that is the case, in my view, this court is bound by those observations. In R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609, [2005] S.C.J. No. 76, 202 C.C.C. (3d) 449, para. 57, the court held that the weight to be attached to obiter comments "decreases as one moves from the dispositive ratio decidendi to a wider circle of analysis which is obviously intended for guidance and which should be accepted as authoritative". The requirement of detention in Hebert is very close to the ratio of that case. McLachlin J. was concerned that recognizing a broader right to silence would jeopardize the legality of undercover operations. She considered the expansion of the right to silence to detained accused to be a modest change that conformed to current trends in the law: see p. 181 S.C.R., p. 39 C.C.C. of Hebert. The right proposed by the appellant in this case would be a significant change in the law and inconsistent with the authoritative observations of McLachlin J. set out above.

[44] Finally, it is necessary to consider the impact of R. v. McIntyre, supra. The reasons of the Supreme Court of Canada are brief [at p. 480 S.C.R.]:

The appellant argues that his statements made to undercover police officers after he had been released but while he was still the subject of a murder charge are inadmissible under ss. 7 and 24(2) of the Canadian Charter of Rights and Freedoms. We share the view of the majority that the accused was not detained within the meaning of Hebert and Broyles. Furthermore, the tricks used by the police were not likely to shock the community or cause the accused's statements not to be free and voluntary. The appeal is dismissed.

[45] To understand the effect of McIntyre it is necessary to look at the facts as set out in the reasons of the New Brunswick Court of Appeal reported at 1993 5357 (NB CA), [1993] N.B.J. No. 293, 135 N.B.R. (2d) 266 (C.A.). The facts are sufficiently similar to the facts of this case that the holding is, in my view, binding on this court. McIntyre was arrested for a murder and while he was detained an undercover police officer was placed in his cell. The officer was unable to get McIntyre to talk and he was released. Five months later, the same officer set up a chance meeting with the accused and set in motion a Mr. Big- type operation. Thereafter the plot unfolded in much the same way as in this case. McIntyre was offered a job in an illegal operation on condition that he could prove he was able to kill if necessary. The undercover officers required proof from his past to show that he was capable of killing. At first he refused to answer, but the officers continued to push him for answers and, when he realized that this was the only way of getting the job, he told the officers about the murder. [page337]

[46] The issue of extending the Hebert doctrine to cases not involving detention was clearly before the court in view of the dissent of Rice J.A and particularly this portion of his reasons at para. 15:

Crown counsel argued before us that there was no violation of the rights guaranteed under the Charter in the present case because the appellant, once released, was no longer subject to the greater power of the State. Being perfectly free to hang around with or to talk to the undercover officers, the situation was very different from detention where the prisoner cannot choose his cell mates. I am not impressed by this argument because in this case, the undercover officer succeeded in passing himself off as a criminal and ex-convict. This allowed him to gain Mr. McIntyre's trust by reason of having been placed in the latter's cell. This ruse, having its beginnings during detention, was successfully continued afterward.

(Emphasis added)

[47] The entire court, including McLachlin J., sat on McIntyre. The issue of detention cannot be regarded as obiter in that case. I do not think it open to this court to reject the detention requirement for this aspect of the right to silence under s. 7. I would not give effect to the appellant's Charter argument.

(ii) The common law arguments

[48] The decision of the Supreme Court in McIntyre also directly meets the appellant's submission that the strategy employed in this case would shock the community. The facts in McInytre were certainly no worse than the circumstances of this case, yet the court held that "the tricks used by the police were not likely to shock the community". I should not be taken as holding that the manner in which the Mr. Big strategy is executed could never shock the conscience of the community and lead to exclusion on common law grounds. However, the facts of this case do not meet that test.

[49] I would also not give effect to the other common law grounds. The argument that the prejudicial effect of the evidence outweighs its probative value depends on the theory that the inducement offered by the undercover officers produced an unreliable confession inconsistent with the known facts. The appellant also points out the additional prejudicial effect of admitting the confession because it necessarily places him in a bad light, as someone willing to consort with people he believes to be criminals and join them in their illegal activities. Counsel for the Crown and counsel for the appellant have carefully reviewed the facts relating to the murders and compared them to the details in the confessions. In my view, the statements have sufficient probative value that it was open to the trial court to admit them. The most [page338] striking aspect of the confessions is the appellant's identification of the probable murder weapon in the first killing. While the appellant testified that he received this information from the police, the prosecution witnesses denied passing on this information to him. This was an issue to be resolved by the jury.

[50] I am also of the view that it was for the jury to decide whether in the context of a meeting where he was seeking work, the inducement of a job in an illegal operation would be sufficient to cause the appellant to falsely confess to past deeds. This was not a case of such extraordinary coercion that it can be said the statement is too unreliable to be received by the triers of fact, nor a set of facts they would be unable to assess.

[51] As to the fact that the circumstances surrounding the confessions showed the appellant in a disreputable light, the motion judge was satisfied that admission of the evidence would not result in an unfair trial. His holding in that respect is entitled to deference. The trial judge warned the jury about the limited use to be made of the appellant's record and the fact that he had been in various treatment centres. While a broader warning about the limited use of evidence of disreputable conduct could have been given, the appellant does not suggest that such a warning was necessary in this case to ensure a fair trial. The jury would necessarily understand that this evidence was admitted to understand the context for the confession. Its admission was necessary not just to understand the Crown's position but also the defence position that the police conduct had driven the appellant to resort to illegal employment. An analogous argument for rejecting a confession obtained through use of a polygraph was rejected by the majority in R. v. Oickle. See reasons of Iacobucci J. at para. 102 and Arbour J. dissenting at paras. 138-47.

[52] The other submission for exclusion of the statements based on the common law rests on a hearsay analysis. The appellant submits that in light of R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, [2000] S.C.J. No. 40, 147 C.C.C. (3d) 449, it is open to this court to revisit the established hearsay exceptions, including the admissions exception, on the basis of whether the particular evidence meets the requirements of necessity and reliability. The appellant argues that the admissions exception to the hearsay rule rests on the theory that admissions against interest are inherently reliable. He points out that in the Mr. Big scenario the statements are not against interest since the suspect believes that it is in his interest to admit to a crime to fellow criminals.

[53] In my view, the hearsay issue has been determined against the appellant by this court's decision in R. v. Foreman (2002), 2002 6305 (ON CA), 62 O.R. (3d) 204, [2002] O.J. No. 4332, 169 C.C.C. (3d) 489 (C.A.). [page339] As Doherty J.A. pointed out in Foreman at para. 37, by reference to R. v. Evans, 1993 86 (SCC), [1993] 3 S.C.R. 653, [1993] S.C.J. No. 115, 85 C.C.C. (3d) 97, the rationale for admitting admissions by a party rests on the theory of the adversary system, not a necessity/reliability analysis. As in this case, the accused's admission in Foreman was not made to someone whom the accused believed was a person in authority. In Foreman, the admissions were made to the victim. The admissions were admissible even though they had not been subjected to a reliability analysis such as would be required if the statements had been made to persons in authority and therefore had to be shown to be voluntary.[^6]

[54] In my view, the appellant's statements to the undercover police officers were properly admitted.

(2) Admission of Dr. Ofshe's evidence

(i) Summary of Dr. Ofshe's voir dire evidence

[55] The defence sought to call Dr. Richard Ofshe to testify before the jury about false confessions. I will briefly summarize his evidence as it was disclosed during a voir dire. Dr. Ofshe is a social psychologist who has spent many years studying police interrogation. He has consulted widely with law enforcement agencies and testified in courts in the United States. He has authored many books and articles, including articles in peer-reviewed journals. The works of he and his associate, Richard Leo, were cited with approval in the leading recent decision on the common law confessions rule, R. v. Oickle.[^7] He testified that it is generally accepted that false confessions can be caused by interrogation tactics using psychological techniques. There is no credible empirical research that has attempted to quantify the rate of false confessions. His own view is that it is a relatively rare but regularly occurring phenomenon. Dr. Ofshe has done no study of the Mr. Big strategy. It is not a strategy used in the United States or Great Britain.

[56] The defence proposed to call Dr. Ofshe to testify principally about three matters. First, that there is a bias among lay people against the idea that someone who is indeed innocent might falsely confess. Second, he would testify about what motivates a [page340] person, including an innocent person, to confess to a person in authority. Third, he would testify about the way to evaluate whether or not a confession is false. I will briefly expand on these themes.

[57] As to the first theme, unfortunately Dr. Ofshe did not provide any information as to why lay people, such as jurors, have difficulty believing that an innocent person would confess to a crime they did not commit. I note, however, that the Supreme Court recognized this phenomenon in Oickle at para. 34:

In this context, it may seem counterintuitive that people would confess to a crime that they did not commit. And indeed, research with mock juries indicates that people find it difficult to believe that someone would confess falsely.

[58] Since Dr. Ofshe did not provide any information as to why people have difficulty believing innocent people will falsely confess, it is unclear whether the information he could provide on that issue, gained from examining confessions to people known to be persons in authority, would be of any value in the different context of a confession to an undercover officer. I will return to this issue when I consider the admissibility of the evidence.

[59] As to the second theme, Dr. Ofshe spoke at length about how police interrogators persuade suspects to confess. Again his work in this area relates to interrogations by people the suspect knows to be police officers. He focused in particular on the use of motivators. Low-end motivators, such as suggesting to suspects that they do the right thing, are unlikely to make an innocent person of normal mental make-up confess. Rather, it is only powerful motivators involving psychological coercion that are likely to lead to a false confession. He explained that police interrogators will describe the justice system to the suspect in such a way that even an innocent person may be persuaded that it makes sense to confess to minimize punishment. This can be enough to overcome innocent persons' obvious reluctance to admit to a crime and place themselves in jeopardy from the formal justice system. One way this strategy works is by setting up alternatives. The suspects are told that if they continue to deny their involvement they will be charged (in the United States) with capital murder and executed, but if they agree to what the interrogator thinks happened, for example a killing in self- defence, then the punishment will be less.

[60] Dr. Ofshe testified that in an undercover operation like the Mr. Big strategy the possibility of being punished for confessing falls to zero since the suspect perceives the situation as one in which the state is not involved. As he said: "The significant question would be what's the motivator that is being offered to elicit the [page341] compliance. If the motivator is strong, if there is a powerful inducement, then depending on the power of that inducement, the risk of possibly eliciting a false confession goes up." He considered the Mr. Big strategy to be a potentially dangerous one because there is no downside to making the claim of involvement in criminality.

[61] Finally, Dr. Ofshe testified that the way to test whether a confession is true or false is to compare the information provided by the suspect with the known facts. If the confession demonstrates actual knowledge of the crime that can be confirmed and is known only to the police and the actual perpetrator, it is likely to be true. Thus, "errors" by the suspect in describing the crime are significant. He also testified that contamination is a very serious problem in interrogation. Contamination occurs because the suspect has acquired information about the crime from other sources, including the police interrogators. As he said, "If you can't eliminate contamination, you cannot know that if someone gets a fact right, and that's an objectively knowable fact, you cannot know that they acquired that [fact] because they were present. It's always possible they acquired it because they were told about it." He described this part of his evidence as "very straight forward, it's the basic principle of all investigation, looking for evidence that supports the existence of a fact".

[62] In cross-examination, Dr. Ofshe provided a helpful summary of the assistance he could give to the jury. He said that because the phenomenon of false confession is badly understood he could put the jurors "in a better position to make their own judgment about how to evaluate the interrogation and also by focusing on the product of the interrogation, the confession itself". His role was "to try to dispel certain myths that are widely held, and also to make clear a simple analytic structure for understanding this particular interrogation strategy".

(ii) The trial judge's ruling

[63] In his ruling, the trial judge fully and accurately reviewed Dr. Ofshe's evidence. He held that its admission was to be determined by reference to the test for admission of expert evidence set out in R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9, [1994] S.C.J. No. 36, 89 C.C.C. (3d) 402. He was also of the view that this evidence should be subject to special scrutiny because Dr. Ofshe was advancing a novel scientific theory. In that respect, he referred to the decision of the Supreme Court of Canada in R. v. J. (J-L.), 2000 SCC 51, [2000] 2 S.C.R. 600, [2000] S.C.J. No. 52, 148 C.C.C. (3d) 487. There was an element of novel scientific theory because Dr. Ofshe was proposing to apply his expertise in "normal" interrogations to undercover operations such as the Mr. Big strategy. [page342]

[64] The trial judge concluded that Dr. Ofshe's evidence did not meet the requirements of relevancy and necessity for admission of expert evidence. As to the former, the trial judge appeared to find that Dr. Ofshe's evidence was only relevant to the credibility of the accused and thus not a proper subject of expert testimony. He tied this finding to the novelty of the science. In his view, the witness was "attempting to use a technique for confessions used in circumstances with which he was familiar [formal police interrogation], to circumstances where no real study had been done, and with which he had little familiarity".

[65] As to necessity, the trial judge was of the view that the proposed evidence was merely helpful since it consisted of indicating what an ordinary citizen would be expected to do, such as comparing the known facts with the content of the confession.

(iii) Analysis

[66] I agree with the trial judge's conclusion that Dr. Ofshe's evidence was not admissible in the circumstances of this case. What I say here should not be taken as a finding that this kind of evidence could never be admitted in other circumstances. I also intend to limit my analysis to whether the evidence meets the necessity requirement for admission of expert evidence. I tend to agree with the appellant that the trial judge may have taken too narrow a view of the possible relevancy of the evidence by focusing solely on its value in determining the appellant's credibility. Dr. Ofshe's evidence was broader than that and went to the question of the reliability of the appellant's statements to the undercover officers in the context of the Mr. Big strategy. This would have been an issue in the case, even if the appellant did not testify.

[67] As is well known, in Mohan, Sopinka J., speaking for the court, held that the admission of expert evidence depends on relevance, necessity in assisting the trier of fact, the absence of any exclusionary rule and a properly qualified expert (p. 20 S.C.R., p. 411 C.C.C.). He described necessity in these terms at p. 23 S.C.R., p. 413 C.C.C.:

What is required is that the opinion be necessary in the sense that it provide information "which is likely to be outside the experience and knowledge of a judge or jury": as quoted by Dickson J. in R. v. Abbey, supra. As stated by Dickson J., the evidence must be necessary to enable the trier of fact to appreciate the matters in issue due to their technical nature. In Kelliher v. Smith, 1931 1 (SCC), [1931] S.C.R. 672, at p. 684, this Court, quoting from Beven on Negligence, 4th ed. (1928), p. 141, stated that in order for expert evidence to be admissible, "[t]he subject-matter of the inquiry must be such that ordinary people are unlikely to form a correct judgment about it, if unassisted by persons with special knowledge". [page343]

[68] In my view, the three areas about which Dr. Ofshe proposed to testify did not meet this test. In particular, given the particular circumstances, his evidence was not about matters on which ordinary people are unlikely to form a correct judgment.

[69] I start with his evidence about the bias among lay people against the idea that someone who is indeed innocent might falsely confess. As I have said, unfortunately Dr. Ofshe did not explain the reason for this phenomenon. I suspect that it comes from the difficulty that lay people have in applying their own experience to the circumstances of police interrogation. While most people would understand how a person could come to admit to almost anything, true or false, under torture or physical coercion, they would find it hard to understand why someone would admit to a crime they did not commit and thus place themselves in greater legal jeopardy than they would encounter from simply tolerating the psychological coercion of interrogation. If that is the explanation, Dr. Ofshe's evidence would not be helpful to the jury since it was anchored in formal police interrogation. If there is some other explanation for this bias, it was not forthcoming from Dr. Ofshe.

[70] Similar considerations apply to Dr. Ofshe's evidence concerning the manner in which interrogations are conducted and the motivators for false confessions. I repeat a portion of Dr. Ofshe's evidence quoted above: "The significant question would be what's the motivator that is being offered to elicit the compliance. If the motivator is strong, if there is a powerful inducement, then depending on the power of that inducement, the risk of possibly eliciting a false confession goes up." In this case, the motive for a possible false confession was obvious, as was the fact that there was no downside to confessing to men the appellant believed were criminals. There were no myths to be dispelled; Dr. Ofshe would simply be describing what was obvious from the testimony of the police officers and, indeed, from the appellant's own evidence. The jury did not require Dr. Ofshe's evidence to arrive at a correct conclusion on this issue. He did not purport to offer an opinion as to how powerful the inducement was in this case nor whether it could have led to a false confession.

[71] The final theme of Dr. Ofshe's evidence was that the way to determine whether the confession was true or false was to compare it to the known facts about the killing. He would also testify about the risk from contamination. Dr. Ofshe's evidence would have been helpful on this issue, but, as the trial judge observed, helpfulness is not enough. The entire defence was focused on this very issue. The defence theory was that the details in the confession came from the police. The defence also pointed out that some details that the killer would have known [page344] about were not contained in the confession. The jury did not need help understanding this point. As Dr. Ofshe testified, this is a straight-forward element of police investigation.

[72] Accordingly, I would not give effect to this ground of appeal.

(3) The charge to the jury

[73] The appellant submits that the trial judge should have given a warning to the jury in the strongest terms as to the unreliability of the appellant's confessions and the risk that they were false, especially since he did not admit Dr. Ofshe's evidence. The appellant submits that a correct instruction would contain the following elements:

-- Although a confession may appear to be convincing evidence of guilt, there are cases known to the law where suspects have falsely confessed leading to miscarriages of justice.

-- If the statement was obtained by an inducement, the jury should be cautious about accepting it and little if any weight should be attached to it.

-- The jury should determine whether the statement contains details consistent or inconsistent with the known facts and evinces knowledge only available to the perpetrator with a pointed warning about the danger of contamination.

[74] The first element of the proposed direction is based on the theory that it is counter-intuitive that innocent people will falsely confess, but the experience of the law is that this is a real phenomenon. I should not be taken as holding that it would be wrong to give such a direction, but it was not called for in this case. The law's experience is with confessions obtained in formal police interrogations. It is those cases where the risk of the bias referred to by Dr. Ofshe is greatest because, as I have said, the jury would have difficulty understanding why someone would place themselves in great legal jeopardy by falsely confessing. But, given the very different circumstances under which the appellant's statement was given, in my view, the warning was not required.

[75] The appellant relies upon Hodgson for the second direction concerning the weight to be attached to a statement obtained by an inducement. In Hodgson, Cory J. suggested that Parliament should study the confessions rule and consider eliminating the person in authority requirement. In the meantime, he suggested at para. 30 that, where a statement was obtained by a person who is not a person in authority by means of [page345] "degrading treatment such as violence or threats of violence", a clear direction should be given along the following lines:

A statement obtained as a result of inhuman or degrading treatment or the use of violence or threats of violence may not be the manifestation of the exercise of a free will to confess. Rather, it may result solely from the oppressive treatment or fear of such treatment. If it does, the statement may very well be either unreliable or untrue. Therefore if you conclude that the statement was obtained by such oppression very little if any weight should be attached to it.

[76] In my view, such a direction would have been of no assistance to the appellant in the circumstances of this case. While there was an inducement offered to the appellant, his treatment by the undercover officers that led to the confession could not be properly characterized as degrading and did not include the use of violence or threats of violence. It is apparent from the reported cases that there is wide variation in the Mr. Big strategy. This was a comparatively mild version.[^8] The Hodgson direction was not required in the circumstances of this case. The trial judge on several occasions pointed out to the jury why the appellant said he falsely confessed and that the defence position was that the statements were the product of inducements and police pressure.

[77] As to the third suggested direction, in my view, the jury was given sufficient instructions in this respect. The trial judge directed the jury that what details the appellant provided to the undercover officers and which were verifiable and accurate was an important aspect. He told the jury to use their judgment and common sense when reviewing the details to see if the information had come from the police. The trial judge then reviewed the evidence on that issue at length pointing out that they should also consider the details that were not included in the confessions that the real perpetrator would have known about. In my view, these directions were sufficient in the circumstances.

Disposition

[78] Accordingly, I would dismiss the appeal.

Appeal dismissed. [page346]

[^1]: Counsel appeared to have found the first reported use of a Mr. Big-type strategy in The King v. Todd (1901), 1901 92 (MB CA), 4 C.C.C. 514 (Man. K.B.)

[^2]: Kozak J. was unable to continue with the trial and the trial was heard by Platana J. and a jury.

[^3]: On the other hand, there was evidence that the appellant had been offered legitimate employment in this period and did not follow it up.

[^4]: The s. 7 detention requirement has been criticized in academic circles. See Don Stuart, Charter Justice in Canadian Criminal Law, 4th ed. (Toronto: Thomson Carswell, 2005) at pp. 129-30. While Professor Stuart acknowledges that the Supreme Court has restricted the pre-trial right to silence for "pragmatic reasons", he notes that "the assertoin of requirements of detention seem foreign to the s. 7 right which has no such express triggering mechanism, in contrast to s. 10 rights which only arise on arrest or detention".

[^5]: In Hodgson, the accused confessed to the complainant and members of her family that he had sexually assaulted her.

[^6]: However, compare R. v. Wytystyn, [2002] A.J. No. 1389, 2002 ABCA 229 where the Alberta Court of Appeal appears to engage in a Starr analysis of the accused's admissions to undercover police officers but found them to be sufficiently reliable to be admitted.

[^7]: See Oickle at paras. 35-45. At para. 37, Iacobucci J. described the work of Ofshe and Leo as presenting "a useful taxonomy of false confessions".

[^8]: By Comparision see: R. c. Grandinetti, 2005 SCC 5, [2005] S.C.R. 27, [2005] S.C.J. No. 3, 191 C.C.C. (3d) 449; Unger v. Canada (Minister of Justice), 2005 MBQB 238, [2005] M.J. No. 396, 196 Man. R. (2d) 280 (Q.B.); R. v. Raza, [1998] B.C.J. No. 3242 (S.C.); R. v. Redd, [1999] B.C.J. NO. 1471, 43 W.C.B. (2d) 62 (S.C.); R. v. Roberts, 1997 3313 (BC CA), [1997] B.C.J. No. 765, 90 B.C.A.C. 213 (C.A.); R. v. Terrico, 2005 BCCA 361, [2005] B.C.J. No. 1452, 199 C.C.C. (3d) 126 (C.A.); R. v. Forknall, 2003 BCCA 43, [2003] B.C.J. No. 108, 172 C.C.C. (3d) 61 (C.A.); R. v. MacMillan, [2003] B.C.J. No. 3156, 2003 BCSC 1705; and R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442, [2001] S.C.J. No. 73.