Court of Appeal for Ontario

Date: July 26, 2017 Docket: C55622

Feldman, Gillese and Benotto JJ.A.

Between

Her Majesty the Queen Respondent

and

Michael Earl Kelly Appellant

Counsel:

• John Kaldas, for the appellant
• Joan Barrett, for the respondent

Heard: November 4, 2016

On appeal from the conviction entered on January 27, 2012 by Justice John DeP. Wright of the Superior Court of Justice, sitting with a jury.

Feldman J.A.:

Introduction

[1] On November 21, 2000, the appellant's common law spouse was reported missing. Her body was found on August 26, 2004. In 2009, the appellant was charged with her murder. Following a 15 day trial, the jury convicted the appellant of first degree murder. The trial judge sentenced him to life imprisonment.

[2] The appellant appeals his conviction. He argues that his confession was the product of a Mr. Big police operation and does not meet the R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544 criteria for admissibility. He says the confession should never have been admitted but if it was properly admitted, the trial judge's charge to the jury was insufficient to meet the requirements in R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3 and had other deficiencies that entitle him to a new trial.

[3] For the reasons that follow, I would dismiss the appeal.

Facts

[4] The appellant reported his common law spouse, Judith Thibault, missing on November 21, 2000. In August 2004, land surveyors found the victim's body in a remote wooded area in the District of Thunder Bay, nearby the Hamlet of Dorion. The surveyors found the victim's body about ten feet from Wolf Lake Road. An autopsy revealed that she had been killed by a single bullet to the back of the head from a .22 caliber firearm.

[5] Although no direct forensic evidence linked the appellant to the murder, the police considered him the primary suspect.

[6] There were inconsistencies in the police testimony as to exactly what information about the murder was held back from the public. However, all officers agreed the following was held back: (i) the victim was shot once in the back of the head, at the base of the skull; (ii) the materials used to wrap the carpet, i.e. white coaxial cable and yellow polypropylene rope; (iii) the precise location the body was found, i.e. about ten feet from and on the east side of Wolf Lake Road.

[7] After the discovery of the body, the police interviewed the appellant a number of times. One interview with Officer Graham in March 2006 was heated. Officer Graham admitted he was purposely aggressive in his tone with the appellant. Much of this tense interaction occurred as Officer Graham pursued the appellant to his vehicle after the conclusion of the formal interview.

[8] Over the course of this heated exchange, Officer Graham disclosed to the appellant: (i) the caliber of gun used to kill the victim; (ii) that the victim's body was found wrapped in a carpet from one of her tenants' apartments; and (iii) where the victim's body was found. Officer Graham also showed the appellant an autopsy photo depicting the front of the victim's skull and the carpet in which her body was wrapped.

[9] In March 2009, the police decided to launch an undercover operation entitled Project Wolf with the goal of eliciting a confession from the appellant. On March 25, 2009, the undercover investigation commenced when the main undercover officer, Sergeant Debellefeuille, contacted the appellant, who was then remarried and living in Alberta. Sergeant Debellefeuille played the role of "Bob", a private investigator retained by an insurance company to locate the appellant as he was the beneficiary of a policy of insurance on the victim's life in the amount of $3000.

[10] On May 6, 2009, "Bob" and the appellant met for the first time. "Bob" paid the appellant the $3000 in insurance proceeds. He explained to the appellant that he had been given a release form to have the appellant sign, but that the release was unusual in that it purported to acknowledge not only receipt of the $3000, but also his release of any claims on any other policies of insurance. "Bob" explained that he would make further inquiries to ensure all was in order.

[11] In two subsequent meetings on June 24, 2009 and July 28, 2009, "Bob" told the appellant that he had confirmed the existence of two further life insurance policies, totaling $571,000, in which the appellant was the named beneficiary. "Bob" showed the appellant a fictitious document revealing that the policies had been flagged for nonpayment because the appellant was suspected of murdering the insured. "Bob" told the appellant that he could not receive the insurance payments until he was cleared of suspicion.

[12] On August 22, 2009, at their fourth meeting, "Bob" proposed the insurance scam that ultimately led to the appellant's confession. Bob said he had a terminally ill friend, "Donnie" who did not have long to live. The scheme involved the appellant providing "Donnie" with details of the murder so that "Donnie" could go to the police in the guise of a dying man seeking to clear his conscience and confess to the murder. "Bob" told the appellant that this would then clear the way for payment of the policy proceeds. In return for their assistance, the appellant would pay "Bob" and "Donnie" roughly $150,000 of the insurance proceeds. "Donnie's" motivation was said to be his desire to have money to give to his niece, who had cared for him during his illness, so that she could attend university.

[13] The appellant agreed to the scheme. A meeting with "Donnie" was arranged. On September 25, 2009, the appellant was flown from Edmonton to Toronto for the meeting, which was scheduled for the next day. "Bob" covered his flight costs.

[14] On September 26, 2009, the critical meeting occurred. "Bob" picked the appellant up from his hotel and took him to another hotel to meet with "Donnie".

[15] The hotel room where the appellant met with "Donnie" was, unbeknownst to the appellant, wired for both sound and video. Over the course of the day, the undercover officers expressed frustration over the appellant not providing the details needed to make the confession sufficiently convincing. "Bob" reminded the appellant that if the plan went through he would be "sitting on easy street for the rest of [his] fucking life."

[16] Although he initially denied involvement seven or eight times, the appellant provided "Donnie" with details of the crime he said he had gleaned from news reports, discussions with police and talking with others. These details included that the victim was shot in the back of the head with a .22 caliber rifle and that her body was wrapped in blue carpet and dumped about 50 feet from Wolf River Road. The appellant also gave "Donnie" one of the victim's rings, explaining that while the police believed the victim was wearing it when she disappeared, it in fact had been hidden in their home and later found by the appellant. The appellant described the ring as the "clincher" to "Donnie's" confession. To provide a motive, the appellant told "Donnie" to say that the murder occurred after "Donnie" robbed the victim in the parking lot where her car was found.

[17] "Donnie" insisted that he needed more details. He said the plan would not work if the appellant did not in fact kill the victim, as the real culprit may be found. At the same time, he told the appellant he did not want him to lie.

[18] Finally, in the afternoon, the appellant confessed. He admitted that the night before he reported the victim missing he shot her with a single bullet in the back of the head with a .22 caliber rifle in the garage behind the house; he wrapped her body in a piece of blue carpet about eight feet by ten feet in size; dumped her body on the north side of Wolf River Road about 50 feet from the road and then threw the gun in the river. He said he killed the victim because their relationship had been going downhill and he wanted out. He also did not want the victim to learn that he had been taking cash advances on her credit card.

[19] "Donnie" asked the appellant about his earlier denials. The appellant explained that he had been "telling the same lie for eight and a half years or so" and that "it's hard to break yourself of a bad habit." When asked whether he was now telling the truth, the appellant said he was.

[20] The next day, September 27, 2009, the appellant returned home.

[21] Before his arrest, the undercover officers spoke with the appellant 14 more times over the telephone. During these recorded calls, the appellant provided more details of the crime. He explained in detail where he had dumped the victim's body. He explained that he had shot the victim "just the once" at the "base of the skull" and that he had wrapped her body in carpet that was tied three times with yellow nylon "polyethylene rope". He said he had had the victim "turn around" before shooting her "right in the back of the head square on".

[22] On October 24, 2009, the police arrested the appellant. On arrest, the appellant stated "it's finally over". When introduced to the undercover officers at the station he said "I thought I smelled a rat a long time ago but I let my greed get the best of me."

Trial Judge's Ruling

[23] At trial, the appellant applied to have his confession excluded on the basis that the police tactic that induced the appellant to confess was a form of "Mr. Big" operation that would "shock the conscience" of the community. The trial judge dismissed the application, rejecting the assertion that the circumstances surrounding the confession, in particular the half million dollar "prize", constituted a "dirty trick" that would shock the conscience of the community: he noted that the police conduct involved no violence or threats of violence and found there was a minimum of deceit. Ultimately, he held that "[w]hether the size of the 'prize' was sufficient to corrupt an innocent person [was] an issue for the jury."

Issues

[24] This trial took place before the Supreme Court of Canada's decisions in Hart and Mack created a new approach to confessions obtained by the police using the "Mr. Big" undercover technique. The appellant says that, although this undercover sting operation did not involve the usual violence that characterizes Mr. Big operations, it had sufficient deceit, coercion and inducement to qualify as a Mr. Big and to be treated the same way by the court. The appellant submits that using the new framework, the confession should not have been admitted and that if it was not an error to admit it, the charge to the jury did not provide the required safeguards set out by the court in Mack. The appellant also submits that the trial judge erred in his instruction on the planning and deliberation component of first degree murder and misstated the evidence on this issue.

Analysis

(1) Were there elements of the police scheme that require the court to apply the Hart test for admissibility?

[25] In Hart, the Supreme Court was dealing with a classic Mr. Big operation: undercover officers befriend the suspect as members of a criminal organization run by their boss, Mr. Big. The suspect is recruited to work for the organization, carrying out simple, apparently illegal tasks. He is included in the lavish lifestyle and camaraderie of the group, but is told that his ultimate acceptance depends on Mr. Big, and that honesty, trust and loyalty are required. The organization operates within an aura of violence, perpetrated against any member who betrays the trust. The suspect is exposed to simulated acts of violence against "rats". The operation culminates with the job interview with Mr. Big where Mr. Big demands a confession to a crime he has learned the individual is suspected of: the confession will be proof of the suspect's trustworthiness. During the interview, denials are dismissed as lies.

[26] These confessions are admissible without the protection of the Charter that applies where the suspect is detained or the voluntariness rule that applies where the suspect confesses to a person in authority: R. v. McIntyre, [1994] 2 S.C.R. 480; R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27; R. v. Hodgson, [1998] 2 S.C.R. 449. Before Hart, the only protection available was the discretion of the trial judge to exclude the confession if the police tactics would shock the conscience of the community, or if the probative value of the confession was outweighed by the prejudice caused to the accused: see Hart, at para. 65.

[27] In Hart, Moldaver J., writing for the majority, identified three concerns with Mr. Big confessions, which required the court to develop a framework for their admission in order to protect accused persons: 1) unreliable confessions obtained by threats and inducements; 2) the prejudicial effect of a Mr. Big confession because the context shows the suspect as an unsavoury character who wants to participate in a criminal organization, leading to the potential for moral and reasoning prejudice on the part of the jury; 3) the risk of police misconduct in their pursuit of a confession.

[28] In response to these concerns, Moldaver J. created a new, two-pronged framework within which to assess the admissibility of Mr. Big confessions. First, "where the state recruits an accused into a fictitious criminal organization of its own making and seeks to elicit a confession from him", as a common law evidentiary rule, the confession is presumptively inadmissible unless the Crown establishes, on a balance of probabilities, that its probative value outweighs its prejudicial effect (para. 85). Second, the accused may show that the confession was obtained by police conduct that amounted to an abuse of process (para. 86). Going forward, such confessions would be tested on a voir dire, where the abuse of process issue could be addressed first, in order to possibly avoid dealing with the probative versus prejudicial analysis (para. 89).

[29] To prove the probative value of a Mr. Big confession, the Crown must show it is trustworthy by examining a) the circumstances in which the confession was elicited for indications of reliability, and b) the confession itself for markers of reliability.

[30] The circumstances to be examined will include: "the length of the operation, the number of interactions between the police and the accused, the nature of the relationship between the undercover officers and the accused, the nature and extent of the inducements offered, the presence of any threats, the conduct of the interrogation itself, and the personality of the accused, including his or her age, sophistication and mental health" (para. 102). The markers of reliability of the confession itself will be the level of detail, including publicly undisclosed details that only the perpetrator would know, and whether the confession leads to the discovery of additional evidence (para. 105). These would tend to confirm the reliability of the confession.

[31] In discussing the role of the doctrine of abuse of process, Moldaver J. stated that "the mere presence of inducements is not problematic", citing Oickle, at para. 57, but where inducements and/or threats "approximate coercion" so that the will of the accused is overcome resulting in a coerced confession, that will be an abuse of process: Hart, at para. 115. Physical violence or threats of violence are tactics that will not be tolerated. Operations that prey on an accused's vulnerabilities, such as youth, addiction or mental health problems, will threaten trial fairness and the integrity of the justice system (paras. 116-117).

[32] As in this case, the trial judge in Hart did not have the benefit of the Supreme Court's new approach to Mr. Big confessions. Nevertheless, the Supreme Court in Hart was able to apply the new test using the trial record.

[33] In his discussion of the new common law rule of presumptive inadmissibility of Mr. Big confessions, Moldaver J. noted, at footnote 5, that the new common law rule "targets Mr. Big operations in their present form," and that a change in police methods could "escape the scope of this rule." However, he went on to say: "[t]ime will tell whether, in a future case, the principles that underlie this rule warrant extending its application to another context."

[34] As it turns out, the police had already developed at least one variation of the Mr. Big operation to suit the nature of the case and used it on the appellant. The Crown submits that this operation differed in legally significant ways from the classic Mr. Big and that the concerns of abuse of process by police - prejudice and an unreliable confession - do not arise or are considerably diminished. The appellant's position is that the case was determined to be a Mr. Big operation at trial, and that the significant financial inducement as well as the fraud make it a variant of Mr. Big that effectively raises all the same concerns that Moldaver J. identified in Hart.

[35] Clearly the police sting scheme that was used on the appellant is missing the most offensive tactics of the traditional Mr. Big operation: no criminal organization, no Mr. Big, no violent culture, no friendship and camaraderie. What this scheme used was the inducement of a large financial payout based on a fraud on an insurance company. For me, the relevant question is: is there in this police sting scheme sufficient potential for the three dangers: unreliable confessions, prejudicial effect of the evidence of the appellant's participation in the scheme, and potential for police misconduct, to warrant the application of the new approach from Hart?

[36] In my view, the answer is yes. I say this for two reasons. The first is that the scheme is clearly a variation of a Mr. Big, with the same police intent to induce a stranger into dishonest conduct by holding out a potentially powerful inducement to confess, whether truthfully or untruthfully. Therefore reliability is engaged, as is prejudice. Second, in my view, it serves little purpose to conduct an analytical exercise of differentiating and distinguishing variations of police schemes, when the same concerns are raised, even though those concerns may be attenuated.

(2) Does the appellant's confession meet the Hart test for admissibility?

[37] The first inquiry is to assess the threshold reliability of the confession by examining the circumstances of the operation as well as the confession itself. Applying the factors identified by Moldaver J. when examining the circumstances: the operation was seven months long; there were approximately 26 phone calls (on and before the critical September 26 meeting), most under three minutes long; and there were four in-person meetings before the critical meeting with "Donnie", the person who was going to use the details provided by the appellant to confess to the murder so that the appellant could collect the insurance money. The undercover officers did not propose any ongoing friendship. The scheme was a business scheme only. There were no threats or intimidation used. The interrogation itself was a relatively calm affair. The trial judge found there was a minimum of deceit.

[38] There was no suggestion of personal vulnerability on the part of the appellant. He was remarried and working as a bush worker in Alberta when he was approached by the officers. He mentioned showing the insurance policy to his lawyer.

[39] On appeal, the appellant argues that because the Hart decision came after his trial, he did not have the opportunity to raise or address vulnerabilities. I would reject this submission. Any such vulnerabilities could have been raised in cross-examination of the officers as part of the position that the appellant was preyed upon to induce his confession. In any event, the evidence of the appellant's situation and interaction with police both right after the murder and during the sting was of a confident and capable person.

[40] The one factor that could have caused an untrue and therefore unreliable confession was the large financial inducement of the insurance proceeds of $571,000 (minus the roughly $150,000 that was to be paid to the undercover officers). Although the presence of inducements alone has been held not to amount to an abuse of process, a significant inducement to lie may clearly affect the analysis of threshold reliability.

[41] Turning to the confession itself, the appellant points to the dispute or lack of clarity in the evidence regarding which facts about the murder were not disclosed to the public and therefore could be confirmatory of his unique knowledge of details of the murder. He refers to some discrepancies among the officers regarding which details of the murder were disclosed to the public, as well as the possibility that the surveyor who found the body could have disclosed the story to others, and to his encounter with Inspector Graham who had confronted the appellant with some details of the grisliness of the murder, but then did not make a record of what details he disclosed.

[42] However, the appellant's confession was detailed and almost completely accurate: he said he shot the victim once in the back of the head right above the neck, he used a long bullet in a .22 caliber rifle that he disposed of in the river. He said he wrapped the body in an 8' by 10' piece of blue carpet that he found in the garage, that he tied the carpet with yellow nylon polyethylene rope that was wrapped three times in the middle, then dumped the body 40' to 50' from the road on the north side.

[43] The appellant was accurate about the precise location of the bullet wound, the number of times the victim was shot and the yellow rope, none of which had been revealed to the public. Although he slightly misdescribed the carpet that the body was wrapped in – the actual carpet was grey with blue or black spots and 4.5' x 7' – it had been dark when he grabbed the carpet and the description was very close. He also left out the details of a white cable and a plastic bag over the victim's head. These discrepancies could be weighed by the jury in their assessment of the reliability of the confession but, in my view, they do not detract from the significant level of detail that indicates threshold reliability: see, for example, R. v. Johnston, 2016 BCCA 3, 26 C.R. (7th) 147, at para. 68.

[44] Similarly, the fact that the appellant could have learned or guessed some details from, for example, his encounter when he was being investigated by Inspector Graham in 2006 and shown an autopsy photo, was also a matter to be weighed by the jury in its decision as to the ultimate reliability of the confession: see Johnston, at para. 70 and R. v. Osmar, 2007 ONCA 50, 84 O.R. (3d) 321, at paras. 15 and 77.

[45] The potential prejudice, as in most Mr. Big cases, arises because the appellant disclosed some bad character traits from the vulgar language used with the undercover officers, particularly at the September 26, 2009 meeting, as well as from his willingness to participate in a fraudulent scheme. However, this prejudice is quite mild compared to the bad character that suspects traditionally show when they agree to participate in criminal activity in order to impress a Mr. Big.

[46] The appellant argues that his character was improperly emphasized by Crown counsel in his closing to the jury, when he referred to the appellant as manipulative, materialistic and with the means to commit the crime. He also raises in this context the fact that in their testimony, the undercover officers apologized to the jury for their language and demeanor in the course of the sting. While these issues could be relevant to the jury's consideration, they would not affect the probative versus prejudicial analysis made by the trial judge at the admissibility stage.

[47] I conclude based on the accurate details in the appellant's confession, a number of which the officers agreed were not disclosed to the public, as well as the relatively benign circumstances of the encounters with the undercover officers, that the probative value of the confession was sufficiently high to be admissible based on its threshold reliability. As the trial judge stated in his ruling, the effect of the significant inducement on the ultimate reliability of the confession was an issue for the jury. I also conclude that the potential prejudice was relatively low, and that the probative value of the admissions outweighed the potential prejudicial effect of admitting into evidence the circumstances that led to them.

[48] The third prong of the Hart test is whether the scheme amounts to an abuse of process. The main concern identified by Moldaver J. was whether the police tactic had become abusive. Examples he gave included physical violence or the threat of violence, because a confession obtained by violence, no matter how reliable, will not be tolerated by the community (para. 116). He also referred to preying on specific vulnerabilities of the target including mental health or addiction issues, or youthfulness, because that conduct offends the community's sense of fair play and decency (para. 117). But he emphasized that these were just examples of abusive police tactics, and that trial judges are best suited to identify an abuse and accord the appropriate remedy including exclusion of the evidence or a stay of proceedings (paras. 113 and 118).

[49] In this case, the trial judge focused in his ruling on whether the police conduct in this sting operation would shock the conscience of the community, which was how the test was previously articulated: see, for example, R. v. Osmar, 2007 ONCA 50, 84 O.R. (3d) 321; R. v. McIntyre, [1994] 2 S.C.R. 480; R. v. Rothman, [1981] 1 S.C.R. 640. He concluded that it would not. Applying the factors articulated by Moldaver J. in Hart for assessing whether a Mr. Big operation amounts to an abuse of process yields the same result. There was no violence or threat of violence in this case, nor did the officers prey on any vulnerabilities of the appellant. I add that they also did not use friendship and acceptance as a tactic. As was recognized by counsel and the trial judge, the tactic used was financial inducement. There was no abuse of process here.

(3) Did the trial judge err by failing to instruct the jury in accordance with the Supreme Court's directions in Mack?

[50] The Supreme Court heard the arguments in Hart and Mack on the same day and released the decision in Mack within two months of its decision in Hart. Unlike in Hart, where the court found that the Crown could not meet its onus to show threshold reliability, i.e. that the probative value of the Mr. Big confession outweighed its prejudicial effect, in Mack, the court found that the Crown had met its onus, and turned to address the adequacy of the charge to the jury in the context of a Mr. Big confession.

[51] In his response to the submission made in Mack that in a Mr. Big confession case the jury must be given strong and strict instructions regarding the dangers of the method and its effect on reliability and prejudice concerns, Moldaver J. emphasized three principles: 1) the principle from R. v. Jacquard, [1997] 1 S.C.R. 314 that a jury must be properly instructed but that does not mean that an accused is entitled to a perfect instruction; 2) while there is "no magical incantation" the trial judge is required to give the jury the tools to be able to address the reliability and prejudice concerns associated with a Mr. Big confession; 3) while the "nature and extent of the instructions will vary from case to case", the court provided some guidelines for what should be included in the instruction at paras. 52-55.

[52] The jury should be told that the reliability of the confession is for them to decide. The trial judge should then give them the Hart factors for considering the circumstances in which the confession was made, i.e., the Mr. Big sting operation, as well as the confession itself. To assess the circumstances, the jury should consider: "the length of the operation, the number of interactions between the police and the accused, the nature of the relationship between the undercover officers and the accused, the nature and extent of the inducements offered, the presence of any threats, the conduct of the interrogation itself, and the personality of the accused": Mack, at para. 52, citing Hart, at para. 102.

[53] To assess the markers of reliability or unreliability of the confession itself, the jury should be told to consider the level of detail in the confession, whether additional evidence was discovered as a result, whether it contained elements of the crime that the police had not made public, or whether it included mundane details that only the perpetrator was likely to know: Mack, at para. 53, citing Hart, at para. 105.

[54] Moldaver J. again repeated, at para. 54, that a trial judge is not required to catalogue for the jury every piece of evidence that could be relevant to the reliability assessment – rather "the task is simply to alert the jury to the concern about the reliability of the confession, and to highlight the factors relevant to assessing it."

[55] The trial judge must also instruct the jury that the bad character evidence was admitted only to set the context of the confession and cannot be used to determine guilt. The trial judge should also remind the jury that the simulated criminal activity in which the accused participated, was "fabricated and encouraged by agents of the state": Mack, at para. 55.

[56] The appellant submits that the trial judge's instruction in this case was inadequate to alert the jury to the issues identified in Mack. Certainly, had the trial judge had the benefit of the Supreme Court's decision in Mack, he likely would have structured his charge more in accordance with the outline from Mack. However, while the charge was not perfect, in my view, it adequately alerted the jury to the issue they had to decide: whether they could rely on the confession as true. It also alerted them to the concerns about the confession and its circumstances, and not to decide based on bad character evidence.

[57] Although the case was tried before the decisions in Hart and Mack, all of the concerns about the confession and how it was elicited formed the basis for the presentation of the entire case. Both Crown and defence were alert to these issues, which were raised in cross-examination and in the addresses, as was the trial judge. In his ruling that the confession was admissible in evidence, he stated, referring to the inducement: "[w]hether the size of the 'prize' was sufficient to corrupt an innocent person is an issue for the jury."

[58] The structure of the jury charge put much of the critical evidence and issues in the context of the positions of the Crown and of the defence, rather than as part of the neutral instructions given by the trial judge. I agree with the appellant that the better approach is for a trial judge to give the legal concerns and approaches together with the evidentiary examples as part of the instruction that comes from the judge him or herself.

[59] However, in this case, the trial judge used the positions of both sides to fairly outline and emphasize the reliability issue, while putting the admonition against the use of bad character evidence in the earlier part of the charge. Looking at the charge as a whole, the structure did not derogate from its effectiveness.

[60] I also note that this charge was vetted by the trial judge word by word with counsel and changes were made as requested. Also, the judge recharged the jury to accommodate the concerns of counsel that still arose.

[61] In his review of the Crown's position, the trial judge said it was the Crown's position that the jury should find the confession was true because of the details that the Crown claimed could only be known by the perpetrator such as the one shot to the back of the head, the body wrapped in a carpet and tied with a yellow rope.

[62] On the critical issue of the large financial inducement, under the heading "facts" in the jury charge, the trial judge told the jury that the appellant maintained that his admissions were given not because they were true "but because he wanted to convince Donnie that it was true because that was the only way they would go ahead with the scheme."

[63] The trial judge also referred to the financial inducement in his overview of the defence position. He explained to the jury that people do admit to crimes they have not committed and that there are many reasons why they do. He then told them: "In this case the defence submits that the motivation was money." Defence counsel asked the judge to clarify in a recharge that it was not the defence but the judge who was telling them that people do confess to crimes they did not commit.

[64] In his recharge on this issue the trial judge told the jury:

In the course of dealing with the case for the defence, when I was talking about the issue, did the accused shoot Judy Thibault, I told you that the defence submits that the accused consistently denied any involvement with the death of Judy Thibault until he was finally seduced or pressured into making incriminating statements by the thought of losing support of his co-conspirators in getting the insurance money to which he felt he was legally entitled. I then went on to say this is something you will obviously have to look at closely. As strange as it may appear, people have admitted to crimes they did not commit. There are many reasons for this. In this case, the defence submits that the motivation was money.

Now, just to clarify it, it is not the defence's submission that people have admitted to crimes that they did not commit. That was my editorial comment. That was a statement of fact that I have given you. There was just some suggestion that because I was dealing with the case for the defence at the time I told you this, you might get the impression that this was simply the position the defence was taking. They do, they adopt it, they agree. But I am the one that's telling you that that's a fact of life. We found that out, unfortunately, in the last few years with innocent people being convicted.

[65] In the charge, the trial judge set out the defence position that the details the appellant recounted were public information, and by what means the appellant was aware of each one. He also pointed out the two details that the appellant did not mention in his admission even though he was being pressured by Donnie to give as many unique details as he could: that a unique coaxial cable had been used to tie the carpet, and that the plastic bag and plastic runner were part of the package. The trial judge also pointed to details in the appellant's admission that were wrong, including saying three times that the body was left 50 feet from the road when it was actually found only ten feet from the road.

[66] The trial judge mentioned that the appellant said in his admission that the carpet was blue, while the trial judge's recollection was that it was not blue. And the size of the carpet was smaller than the appellant had said it was and its origin was different. The trial judge also listed a number of other aspects of the appellant's confession that the defence argued made it unbelievable. Although the trial judge did not say specifically that the jury should consider all of these in the context of assessing the reliability of the appellant's admission, it would have been perfectly clear to the jury that that was the purpose for considering all of the factors that the trial judge listed for them.

[67] He also referred to the fact that the appellant denied any involvement in the death numerous times before admitting his involvement. The trial judge also gave an R. v. W.(D.), [1991] 1 S.C.R. 742 instruction although the appellant did not testify. The appellant submitted that that instruction was insufficient in a Mr. Big context. However, the W.(D.) instruction is just one part of the jury charge, which must be considered as a whole.

[68] In summary, this case involved a police sting scenario that was a very modified version of a Mr. Big, without any violent criminal activity or gang aspect to it. Nor did the undercover officers befriend the appellant to make him vulnerable to pressure as a friend. It was an insurance fraud scheme. In my view, the charge sufficiently covered the Hart factors that the jury had to consider, both for the two prongs of the reliability analysis, the Mr. Big context and the confession itself, as well as the admonition regarding the character evidence. I agree that the trial judge could have better emphasized the fact that the monetary inducement was indeed a large one. However, that fact was obvious to the jury and one that everyone would understand.

(4) Did the trial judge err in his instruction on the elements of planning and deliberation?

[69] The appellant objects that the trial judge did not adequately charge the jury on the meaning of the two required constituents of the charge of first degree murder, that the murder must have been both planned and deliberate. He further objects to two evidentiary references. The first was that the Crown relied on the fact that the appellant deliberately loaded the gun, then shot it. The appellant submits that loading the gun deliberately is not an example of the type of deliberate conduct required for first-degree murder. It is merely an example of intentional conduct. He also objects to the trial judge's repetition of the Crown's position that the appellant deliberately took the victim to a garage, and that because their home had no garage it must have been another garage. The appellant submits there was no evidence that their home had no garage.

[70] In his general instructions on first degree murder, the trial judge's instruction on the meaning of planned and deliberate was a proper instruction modelled on Watt's Manual of Criminal Jury Instructions. It included the following on the meaning of "deliberate":

As far as the word "deliberate" is concerned, it means "considered", "not impulsive", it means "slow in deciding", it means "cautious", implying that the accused must take time to weigh the advantages and disadvantages of his intended action.

[71] The trial judge then reviewed the decision tree with the jury, including a step by step approach to each aspect of first degree murder with planning and deliberation at the end. They were specifically told that if they were satisfied that the appellant had intentionally caused the victim's death but not that the act was planned and deliberate, their verdict would be second degree murder. The jury was told that they had to be satisfied beyond a reasonable doubt that the shooting of the victim was both, and the trial judge told them to underline "both", planned and deliberate.

[72] It was in the outline of the Crown's position that the trial judge used the word "deliberately" in the context of telling them that the Crown was asking them to accept the appellant's admission to Donnie about how he shot the victim. He told the jury: "The Crown submits that you should accept his evidence that he deliberately loaded his rifle and shot her in the back of the head." The Crown's position was that part of the evidence of deliberation was the execution style of the killing. In the context of the charge as a whole the jury would not have understood that deliberately loading the gun, taken by itself, constituted the deliberation required for first degree murder.

[73] In addition, the trial judge also focused on the element of planned and deliberate in his review of the position of the defence, which was that in the confession, the appellant said he did not prepare or think about it for long, but simply grabbed the gun and ammunition and "whacked her", and that he "lost it" because of the stress he was under:

The defence denies that even if he did shoot Judith Thibault, that it was planned and deliberate. This is a very serious issue. I want you to consider very seriously. It is the difference between first-degree and second-degree murder.

In the hotel room, Donnie asked the accused about the carpet, and whether he had prepared for the killing. He replied that he had not prepared. He simply grabbed his gun and ammunition and whacked her. He said that he was under so much stress he just lost it. When asked whether he had thought about it long, he said, "no, I just got an idea to go ahead and did it".

[74] The appellant also objects to what he says was a misstatement by the judge of the evidence regarding whether the victim's home had a garage. The Crown's position was that the fact that the appellant took the victim to another garage to kill her showed planning and deliberation. The appellant submits that there was no evidence that the home they lived in had no garage.

[75] The trial judge delivered his jury charge both orally and in writing. The written version included the following instruction regarding the Crown's submission:

The Crown submits that this was obviously planned. He said he shot her in their garage after he had told her to turn around. Now since there was no garage at Gore Street where the couple lived it must have been Brown Street. The Crown submits that it would take planning to get Judy to the Brown Street garage, together with a .22 firearm and ammunition.

[76] The issue of the evidentiary basis for this position was canvassed by counsel in the pre-charge discussion with the trial judge. The trial judge referred to aerial photographs, which defence counsel submitted were unclear. Crown counsel then suggested that the trial judge make it clear to the jury that it was the Crown's position that there was no garage at Gore Street. That was what he did.

[77] From a review of the submissions of counsel following the oral delivery of the charge to the jury, Crown counsel told the trial judge that he had not read out that entire paragraph. Defence counsel submitted that the judge either had to excise the whole paragraph from the written charge or read the entire paragraph in the recharge. He chose the latter route.

[78] In my view, this issue was raised and addressed at trial. I see no basis to interfere. In summary on the issue of the adequacy of the charge on the planned and deliberate requirement for first degree murder, I would not give effect to this ground of appeal.

Conclusion

[79] I conclude that although this was not a classic Mr. Big police scheme, the concerns identified in Hart still arise, and should be addressed by applying the new two-pronged analysis for the admissibility of the appellant's confession. Having done that, I find no error by the trial judge in admitting the confession. Its probative value outweighed any prejudicial effect, and the nature of the police operation did not amount to an abuse of process. Furthermore, the charge to the jury was sufficient to address the criteria identified in Mack. Finally, I find no error in the trial judge's charge on the meaning of planned and deliberate as a requisite component of first degree murder.

[80] I would dismiss the appeal.

Released: July 26, 2017

K. Feldman J.A.

I agree. E. E. Gillese J.A.

I agree. M.L. Benotto J.A.