Her Majesty the Queen v. Roy Andrew Niemi

COURT FILE NO.: 10-091

DATE: 2012-11-13

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

– and –

Roy Andrew Niemi

Defendant

Counsel:

Raymond Williams and Julie Evans, for the Crown

Richard Stern and Neil Riley, for the Defendant

HEARD: October 1-12, 29, 30, 31 and November 1-8, 2012

Admissibility of "Mr. Big" evidence

WARNING:

An order has been made in this proceeding under ss. 486.5 of the Criminal Code prohibiting, until November 6, 2013, publication in any document, or broadcasting or transmitting in any way, information that could identify any undercover police witness whether by actual name or pseudonym.

boswell j.

[1] Like an intricately woven spider’s web, undercover police officers constructed a trap, strand by strand. Their grand design: to snare a killer. The accused became entangled in the web. He confessed to undercover officers, posing as members of an organized crime syndicate, that he murdered a young woman in Orillia. He wanted to gain their trust. He wanted acceptance into their organization. He wanted the easy money they promised. And now he wants to exclude his confession from the evidence that will go before a jury at his trial for first degree murder.

OVERVIEW:

[2] The partially covered and lifeless body of Alyssa Watson lay in long grass and short brush about ten metres off an old, decommissioned railway line near Cedar Island in Orillia. She was discovered by a local resident out walking her dogs on a warm Saturday morning in August 2006. Ms. Watson had been strangled and her body subjected to other indignities.

[3] The ensuing investigation by the Ontario Provincial Police (“OPP”) stalled. There were no eye-witnesses to the killing and an absence of forensic evidence at the scene. The author of this horrific crime remained elusive. A prime suspect was Roy Niemi. He was the last known person to have spent time with Ms. Watson on the night she died. He told the police that he had gone for a walk with Ms. Watson but left her in the company of two other men whom he did not know. He described the route they walked. Part of that route would have placed him in the lens of a surveillance camera located in downtown Orillia. But Mr. Niemi never appeared on the surveillance video. When questioned about his conspicuous absence from the surveillance recording, he recalled that he and Ms. Watson had, in fact, walked a slightly different route than the one he first described.

[4] The inconsistency in Mr. Niemi’s statement to the police was not sufficient to support a prosecution, but it was certainly enough to raise a strong suspicion in the minds of investigating officers that Mr. Niemi had not been entirely forthright in his dealings with them. It appeared to investigators that he knew more about this crime than he let on. In an effort to advance the investigation, they decided to employ a controversial technique known as a “Mr. Big” operation.

[5] The Mr. Big technique is occasionally utilized by law enforcement agencies in serious cases where they have a suspect but lack sufficient evidence to lay a charge. It is employed in limited cases because of the cost and resources involved. While there is no exact formula for the technique, it generally involves recruiting the target of the investigation into a fictitious criminal organization. The target is gradually persuaded, through a variety of inducements, to admit to his involvement in a serious crime, as an aspect of trust-building between the target and the head of the organization.

[6] In this case, the Mr. Big operation was quite complex and was run in two stages. In brief, it involved recruiting Mr. Niemi into a fictitious crime syndicate at a time when he was well aware that he was under investigation for Ms. Watson’s murder. Mr. Niemi was led to believe that the organization wanted him as a member. The fact that he was a suspect in a murder investigation was, however, a serious impediment for an organization seeking to avoid police attention. To assist Mr. Niemi and to avoid drawing unwanted “heat” on the organization, the boss (Mr. Big) arranged for a third party to confess to Ms. Watson’s murder. The fictitious confessor was someone loyal to the organization who had just begun to serve a life sentence for murder. He was prepared, for a relatively modest stipend, to confess to the murder of Ms. Watson. To make the confession credible, he required the details of the murder, which Mr. Niemi was persuaded to provide. Indeed, Mr. Niemi eventually provided both oral and written descriptions of the killing and in addition, participated in a re-enactment. Upon divulging sufficient details of the murder, Mr. Niemi was arrested.

[7] Mr. Niemi’s description of the killing is essential to the applications before the Court. In his written statement, he described his actions as follows:

I hit her from behind with a wisky bottle

nothing happened so I choked her with my right arm

the I used the purse strap then tryed

to brake her neck then I cut her sweater

at the V-point down a bit, then I took them

off sweater & pants then I cut her throat

right to left then I cut her left tit right

to left then I cut her down her stomic

then I pulled her in to the right side of the

trail and covered her with her clothing

then I left

THE ARGUMENT FOR EXCLUSION:

[8] The out-of-court utterances and purported admissions made by the accused to undercover police officers are the keystone of the Crown’s case. Mr. Niemi seeks to exclude the evidence generated by the Mr. Big operation. His application is grounded on the following submissions:

(i) The OPP obtained authorizations to surreptitiously record conversations between Mr. Niemi and various undercover officers under s. 184.2 of the Criminal Code. Mr. Niemi challenges the constitutionality of s. 184.2 and argues that if the section is declared unconstitutional, any recorded conversations constitute warrantless searches and are prima facie unreasonable;

(ii) Even if s. 184.2 is not struck down as unconstitutional, Mr. Niemi challenges the authorizations obtained by the police under that section. He argues that the police failed to make full and frank disclosure in the Information to Obtain (“ITO”) the authorization. He submits that had such full and frank disclosure been made, the authorization could not have been granted. Moreover, the ITO fails to establish that there were reasonable grounds to believe that evidence of the murder would be furnished through the use of the recorded conversations;

(iii) In addition, Mr. Niemi asserts that the Mr. Big operation infringed his rights under s. 7 of the Canadian Charter of Rights and Freedoms, to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Section 7 implicitly includes a right against self-incrimination. Mr. Niemi says his right to silence was infringed by the manner in which the police conducted the Mr. Big operation; and,

(iv) Finally, Mr. Niemi asks that the Court exercise its common law discretion to exclude the evidence generated by the Mr. Big technique on two grounds:

(a) Because admission of the impugned evidence would shock the conscience of the community, in view of the manner in which the evidence was obtained; and,

(b) Because the prejudicial effect of the evidence outweighs its probative value. In this respect, Mr. Niemi points to the fact that the recorded conversations between him and undercover police officers demonstrate his willingness to participate in a variety of criminal activities. Such disreputable conduct evidence is, he says, presumptively inadmissible.

[9] The thread running through Mr. Niemi’s various arguments is that the conduct of the police was grossly unfair and that the confession induced by that conduct is dangerously unreliable.

[10] The Crown argues that this was simply exemplary police work. They submit that Mr. Niemi’s right to silence was never engaged because he was not detained by the police at any time. Mr. Niemi’s confession, they say, was made voluntarily, to individuals he thought were members of organized crime. Its reliability is assured by its consistency with extrinsic evidence not generally known to the public. In other words, he revealed details “only the real killer would know.”

[11] In a ruling reported at 2012 ONSC 5684, I have already dismissed Mr. Niemi’s constitutional challenge to s. 184.2 of the Criminal Code. What remains, then, is the assessment of the remaining issues raised by Mr. Niemi: the challenge to the surreptitious recording authorizations; the s. 7 Charter argument; and the common law grounds for exclusion. Each issue requires a contextual analysis. The context is provided by a detailed examination of the Mr. Big operation and the manner in which it impacted on the rights and interests of the accused.

[12] The Court heard a great deal of evidence during a voir dire that spanned 18 days. The evidence consisted primarily of the review of the many hours of recorded conversations between the accused and undercover police officers. In addition, evidence was adduced from the first responders to the scene, the forensic identification officer and the pathologist who conducted Ms. Watson’s post-mortem examination.

[13] The Mr. Big operation was dubbed “Operation Spurline”. It proceeded as a play in two Acts, each Act broken out into various scenes. I will review the operation, scene by scene, to provide the context for the analysis that follows. The operation, in two parts, was complex and, while I give only a brief account of each step along the way, the following synopsis remains substantial.

OPERATION SPURLINE:

ACT I: Mr. Big

Scene 1: The Introduction

[14] To protect the identity of the undercover police personnel involved in the operation, and in view of the outstanding order banning publication of the names and pseudonyms of the undercover officers, I refer to them by alternate pseudonyms I have borrowed from the fictional Corleone family of the Godfather movie trilogy. The main operative – the officer who had regular and close interaction with Mr. Niemi – I shall refer to as “Sonny”. Sonny was recruited from the South Simcoe Police Service to assist in Operation Spurline, though he subsequently became a member of the OPP. Sonny knew that he was involved in an undercover operation as a part of a homicide investigation. He did not, however, know the particulars of the operation, such as who was murdered, when, how or where. He knew nothing of Mr. Niemi’s background or circumstances. Sonny had a handler, an officer with the OPP, with whom he met on a regular basis to receive operational plans, cash and any necessary equipment.

[15] The police were aware that Mr. Niemi attended an Adult Learning Centre in Orillia. He was working on achieving his grade nine equivalency. Sonny was enrolled in the Learning Centre with the initial objective to befriend Mr. Niemi. In the spring of 2007, Mr. Niemi was 28 years old, had long hair typically tied in a ponytail and he generally wore what might be described as “street clothing”. Sonny was 35 years old. He had long hair, a goatee and similarly dressed in street clothing.

[16] During his voir dire evidence, he described Mr. Niemi as being a very social person at school. He appeared to have been enrolled there for some time and had established friendships with other students. He spent time with other students during breaks, smoking and telling jokes, discussing movies, cars and girls. He was known as someone with an aptitude for computers. He was gregarious with his classmates. In fact, the teacher serendipitously asked Mr. Niemi to assist Sonny in acclimatizing himself to the class. Sonny was successful in befriending Mr. Niemi. They spent break times together, smoking and talking. On Sonny’s second day at the school, they went to Mac’s Milk together. Sonny got a submarine sandwich and Mr. Niemi bought chips.

[17] On his first two days at the Learning Centre, Sonny was dropped off and picked up by a cab. But on May 3, 2007 – his third day at the Centre – Sonny arrived in a pickup truck. The operational plan was that he and the accused would have some discussion about the truck. Sonny told Mr. Niemi that a friend had given it to him, but did not yet let on that he was involved in a criminal organization. It was May 3, 2007, when Sonny and Mr. Niemi first really began to bond. Mr. Niemi revealed to Sonny that the police were looking at him for the Alyssa Watson murder. He said that they had broken into his home looking for evidence and had found a little marijuana, but there was nothing they could do about it because they didn’t have a warrant. He referred to the victim as “the bitch” and went on to say that a week before the killing, the father of one of her children had threatened to kill her. Yet when she was indeed killed, he was called into the station. He asked, rhetorically, “what the fuck’s with that?”

[18] Mr. Niemi also told Sonny that he owned two houses and had $40,000 in the bank – assertions which appeared to Sonny to be patently false. At the same time, he told Sonny that he was receiving welfare of $411/month and that he made $10/hour “under the table” babysitting his landlady’s disabled son, Brady.

[19] Sonny offered Mr. Niemi a ride home at the end of the day on May 3, 2007. This was the first of a number of occasions when Sonny provided rides to Mr. Niemi. Over the course of the next few weeks Sonny continued to build up a rapport with Mr. Niemi and continued to drive him home from school. At some point they began to talk about crime and having street smarts – knowing how not to get caught if you commit a crime. Sonny left the impression with Mr. Niemi that he might be involved in street crimes.

[20] On May 23, 2007, the police obtained a judicial authorization to record conversations between Mr. Niemi and undercover officers involved in the investigation. From this point forward, during operational stages, Sonny wore “a wire” – surreptitious recording equipment – that captured all of his conversations with Mr. Niemi. By the time the authorization was granted, Sonny and Mr. Niemi were becoming friends. Mr. Niemi began to give little gifts to Sonny, such as comic books, a bottle opener and old packs of sports cards. Mr. Niemi appeared to be happy. He told Sonny that he had an opportunity coming up to make $300 looking after Brady for an extended period. The $300 would, according to Mr. Niemi, get him through the summer. It was becoming readily apparent that Mr. Niemi was a person of extremely modest means.

Scene 2: The First Job

[21] On May 29, 2007, Mr. Niemi was introduced to the idea that Sonny was involved in a criminal organization. On that date, in the process of driving Mr. Niemi home, Sonny received a call from an “associate” (another undercover officer) who advised that he could not meet for a scheduled job. Sonny expressed frustration and was upset that this associate was so unreliable. The objective, of course, apart from revealing to Mr. Niemi that Sonny was involved in a criminal organization, was to see if Mr. Niemi would offer to step into the shoes of the unreliable associate. Predictably, he did just that. The “job” involved meeting with another criminal associate at the Orillia Square Mall. Sonny got out of his vehicle and approached another vehicle. He provided a package to the occupant of the other vehicle, Moe Greene, and received a package in return. Mr. Niemi’s job was to watch out for police while Sonny completed the transaction. Mr. Niemi was paid $100 for his participation. After the transaction was complete, Sonny made a call to another associate and, in Mr. Niemi’s presence, let the associate know that Mr. Niemi was solid and was taking the place of the unreliable associate.

Scene 3: Wasaga Beach

[22] On May 30, 2007, Sonny and Mr. Niemi skipped school and went to Wasaga Beach together. On the drive to Wasaga, Sonny engaged in a number of cell phone conversations with other associates. He made reference to another member of the organization named Tom Hagan, who was a senior member. He also made reference to other upcoming work. When they arrived at Wasaga Beach, Sonny and Mr. Niemi had drinks at a bar called “Bananas”, which Sonny paid for. They discussed the prospects for making good money in the organization. Mr. Niemi raised the issue of the Watson homicide again. He told Sonny that the police had been giving him a hard time about it.

[23] On the drive home from Wasaga Beach, Sonny engaged in a long phone conversation with Tom Hagan. Tom expressed some concern that Sonny had allowed Mr. Niemi to participate in the organization’s operations. Sonny told Tom, repeatedly, and so that Mr. Niemi could hear, that Mr. Niemi was a solid, reliable guy. He also thanked Tom for the pickup truck, telling him, “the fucking car you gave me is great”. In a subsequent call to another associate, Sonny said out loud that Tom is the number two man in the organization. At the end of this call, Sonny told Mr. Niemi that it was important that they keep their activities confidential. Mr. Niemi assured him that he could be trusted and knew all about confidentiality because of his connection to bikers.

[24] By the end of May 2009, just one month into the operation, Mr. Niemi had begun to confide in Sonny. He told Sonny that he had been beaten as a child; that his father had killed someone, was imprisoned and died in prison; that he had spent time in youth custodial facilities; and that he was being harassed by the police over a murder he did not commit.

Scene 4: The Second Job

[25] On June 1, 2007, Sonny asked Mr. Niemi if he would be prepared to assist in another job coming up in several days. Mr. Niemi said that he would be. On June 5, 2007, they met again with Moe Greene – this time at a Walmart parking lot. Sonny delivered an envelope to Moe and received $3,000 in return. Mr. Niemi’s job, once again, was simply to keep watch for police. He was again paid $100 for his role.

Scene 5: The Organization Revealed

[26] On June 7, 2007, Mr. Niemi was introduced to some of the individuals the criminal organization does business with and he ultimately met Tom Hagan. He had an opportunity to observe, first hand, one line of business the organization was involved in, namely credit card fraud.

[27] Sonny picked up Mr. Niemi from his residence and they travelled south down Highway 400 pulling off at a McDonald’s parking lot at Highway 89 where they met up with Moe Greene. They then followed Moe to a hotel in Vaughan. On the drive to the hotel, Mr. Niemi again brought up the Watson homicide. He told Sonny that he didn’t like surgery or the sight of blood and that if he was going to kill someone, he would just kill them. He also said he had an alibi set up and his girlfriend provided that alibi.

[28] At the hotel they met Tessio, who was in the process of skimming cards. He had a computer with credit cards strewn around it. Tessio told them he needed about an hour to complete the job. Mr. Niemi accompanied Sonny and Moe to a Jack Astor’s Restaurant where they had a meal, which Sonny paid for. After the meal, they met again with Tessio, who provided them with a number of fraudulent credit cards as well as explanations as to how much credit could be obtained with them. Sonny’s job was to deliver the credit cards to Tom Hagan at the Square One Shopping Centre in Mississauga. It would have been apparent to Mr. Niemi that the organization was purchasing fraudulent credit cards from Moe and Tessio.

[29] In Mississauga, Mr. Niemi was introduced to Tom Hagan. Tom was driving a red Corvette which impressed both Sonny and Mr. Niemi. Tom gave Sonny $1,000 and told Sonny and Mr. Niemi to clean up and purchase better clothes for themselves. Sonny paid Mr. Niemi $400 from the money Tom had given him. In the space of about a week, Mr. Niemi had been paid $600 – twice the amount he had said would last him a whole summer.

Scene 6: The FJ Cruiser

[30] On June 13, 2007, Sonny picked up Mr. Niemi at school and advised him that they were going to go and meet Tom Hagan. En route to the meeting, however, Sonny received a call and was told to meet up with Michael Corleone instead. Michael was an underboss in the organization. His position was roughly equivalent to Tom’s. While travelling to meet Michael, Mr. Niemi again voluntarily brought up the Watson homicide, telling Sonny that if he killed someone, he wouldn’t be stupid enough to leave a body lying around.

[31] Sonny and Mr. Niemi met Michael at a Wendy’s restaurant on the southbound side of Highway 400 in Vaughan. Michael presented Sonny with a new Toyota FJ Cruiser, which clearly impressed Mr. Niemi.

Scene 7: Blue Jays Tickets

[32] On June 15, 2007, Sonny and Mr. Niemi completed another small job for the organization. They delivered a package to Moe Greene at the Home Depot store in Orillia, then delivered the money to Tom Hagan in a commuter parking lot just off Highway 400 at Innisfil Beach Road. When they met Tom, Sonny and Tom had a discussion in front of Mr. Niemi about another member of the organization, Johnny Fontane, who had been arrested and was in some trouble with the police. The big boss, Vito Corleone, was said to be using his connections to get Johnny out of trouble.

[33] At the end of the meeting with Tom, Sonny was paid $500 plus given a pair of Blue Jays tickets for an upcoming game, along with $200 to have some fun. Sonny paid Mr. Niemi $100 for his assistance. Sonny invited Mr. Niemi to come to the Jays game with him, but Mr. Niemi declined.

Scene 8: Fraudulent Debit Cards

[34] On June 19, 2007, Sonny and Mr. Niemi took part in a little side operation that Sonny had arranged on his own. They arranged to meet a new connection, Paulie, at the Upper Canada Mall in Newmarket to get information from him about pin numbers for fraudulent debit cards. Paulie was a contact that Sonny hoped to exploit for business down the road. Paulie gave them a CD with debit card numbers on it – just ten “freebies” for now, to whet their appetite for future business. Sonny paid Mr. Niemi $200 for his assistance on this occasion.

[35] On the drive back to Orillia, Sonny reinforced to Mr. Niemi that there is very good money to be made in upcoming jobs and that if Mr. Niemi wants to be a part of the organization, he could make just as much money as Sonny.

Scene 9: Truckload of Tools

[36] By the middle of June 2007, Mr. Niemi was quite engaged with Sonny and his criminal activities. On June 20, 2007, Sonny picked him up and they headed south, towards Toronto, to complete a job. On their way to Toronto, Sonny received a phone call from Michael telling him plans had changed. The boss, Vito, wanted them to come to the Royal York Hotel. While en route, Mr. Niemi advised Sonny that he was going to be leaving within a couple of days to head south. In other words, he was going to be moving away. Leaving town and not staying in one place too long were common themes Mr. Niemi spoke of during the course of Operation Spurline. On this occasion, Sonny encouraged Mr. Niemi to stick around because there was good money to be made.

[37] Mr. Niemi saw Vito for the first time on June 20, 2007, though only from across a dining room. Mr. Niemi was not invited to Vito’s table, nor even introduced to him. Sonny received instructions to go and pick up a truck filled with stolen goods that was to be driven to London. Michael drove Sonny and Mr. Niemi to pick up the truck. While driving, Michael and Sonny discussed something big coming up at the end of the month that Mr. Niemi should be involved in. Again, he was being encouraged not to leave town because, of course, the success of Operation Spurline depended on Mr. Niemi’s presence.

[38] The truck of stolen goods was picked up in the parking lot of a Canadian Tire in the west end of Toronto. Sonny and Mr. Niemi drove the truck along Highway 401 towards London. Michael followed them in his Cadillac. About halfway to London they met up with another member of the organization who took the truck the rest of the way. They then returned to Toronto with Michael. Sonny sat in the back seat on the ride back, so that Michael and Mr. Niemi could talk. Michael told Mr. Niemi how pleased his was with the way things were going. Upon their arrival back in Toronto, Michael passed a wad of cash to Sonny. Mr. Niemi was given $400 for his participation in the job.

[39] Later, as Sonny drove Mr. Niemi back to Orillia, they talked about where Mr. Niemi had done time in custody. He listed a wide range of institutions, including Hamilton, Wellington, London and Sudbury.

Scene 10: Mr. Niemi’s Home

[40] June 28, 2007, began with Sonny picking up Mr. Niemi from his apartment in Orillia. Their plan was to head down to Newmarket to meet Paulie again at the Upper Canada Mall. Paulie was going to provide them with a number of fraudulent debit cards as samplers.

[41] When Sonny arrived at Mr. Niemi’s apartment in Orillia, Mr. Niemi invited him inside. The unit was rented by Mr. Niemi’s friend, Cathy Graham. He lived with Cathy and her son, Brady. Sonny noted that there was only one bed in the apartment. It was a two bedroom unit but the second bedroom had only a couch and was filled with boxes. It was never really clear to Sonny what Mr. Niemi’s relationship was with Cathy Graham. At one point during the operation, Mr. Niemi showed Sonny a naked picture of Cathy that he had on his cell phone. Sonny inferred that there was, at least at some point in time, likely an intimate relationship between them.

[42] While at Mr. Niemi’s apartment, Sonny mentioned that he was thinking of getting a new computer but was not too savvy about technical things. Mr. Niemi sold him a computer, one of several he had at home, along with a monitor and keyboard, for $100.

[43] On the way to Newmarket, Mr. Niemi and Sonny talked about Brady’s health problems. Mr. Niemi advised Sonny that he, himself, had been hit in the chest as a child and almost died. Since then he has had trouble lifting heavy objects.

[44] At the Upper Canada Mall, Paulie provided Sonny and Mr. Niemi with a number of debit cards and pins. They travelled around Newmarket to five different ATMs and withdrew $100 from each. Mr. Niemi received $200. Paulie told them he could provide between 800 and 1000 cards. They calculated that they could make $24,000 a day if they worked for 10 hours and withdrew money from various machines around the city.

[45] May 29, 2007, was the first date that Mr. Niemi earned money from the organization. By June 28, 2007, a month later, he had earned $1,500. For many, $1,500 in a month would not be a captivating amount of money. It was, however, almost four times as much as his monthly welfare cheque.

[46] At the end of the day on June 28, 2007, Sonny dropped Mr. Niemi off at the bus station in Toronto. He had a medical appointment in London he had to attend. Sonny encouraged him to return by Saturday (two days away) because there was a big job they had to do.

Scene 11: Card Swipers

[47] June 30, 2007, was a busy day. Mr. Niemi indeed returned from London in time to participate in the next job. By this point he was demonstrating some commitment to the organization, or at least was enticed by the prospect of making good money. Sonny picked him up at the bus station in Toronto and they travelled to the Royal York Hotel to meet Vito. They sat down with Vito at a table in a restaurant. This was Mr. Niemi’s first chance to meet Vito in person. Sonny revealed to Vito that he and Mr. Niemi had been developing the fraudulent debit card line of work. Doing so demonstrated respect for Vito, who was pleased. Sonny and Vito discussed, in Mr. Niemi’s presence, the fact that another associate, Johnny Fontane, had run into some trouble with the law and that Vito was using his connections to fix the trouble. After the meeting, Sonny told Mr. Niemi that he’d handled himself well. Mr. Niemi responded, “I know how things work”.

[48] Sonny and Mr. Niemi spent the balance of the day making deliveries of credit card swipers to four different locations around town. Mr. Niemi was paid $500 for his efforts on this occasion.

Scene 12: Hiding a Key

[49] Several days later, on July 3, 2007, Sonny had another small job for Mr. Niemi to do. Sonny picked him up in Orillia. Mr. Niemi was looking neat and tidy, having taken to heart Tom Hagan’s suggestion that they clean up their appearance. Sonny drove to the Georgian Mall in Barrie. He instructed Mr. Niemi to deposit a package into a locker at the mall, then tape the key to the back of a toilet in a washroom. Mr. Niemi followed those instructions and was paid $150.

Scene 13: The Penultimate Play

[50] Investigators felt confident, by July 4, 2007, that Mr. Niemi was fully committed to the organization. He was participating almost daily in a variety of jobs with Sonny and making money doing it. He appeared very interested in being a part of it all.

[51] On July 4, 2007, Sonny and Mr. Niemi met with Paulie in a hotel and saw a series of fraudulent debit card numbers on a computer screen. They paid Paulie to purchase a number of cards. They discussed, with some excitement, how much money they could make from this line of business. A phone call to Michael a short time later resulted in Michael advising that he and Vito would not be taking any piece of the debit card line of business. In other words, Mr. Niemi and Sonny could keep all the profits they generated. On the drive home to Orillia, Mr. Niemi described some of the things he was going to buy with his share of the money: a big screen television and a new computer. He was also going to get himself a couple of women for the night. On this day, he was paid $200 for his efforts.

Scene 14: Mr. Big Play #1

[52] July 5, 2007, was a critically important day for Operation Spurline. Investigators believed that Mr. Niemi was sufficiently engaged in the fictitious crime organization that he might just provide the details of the murder of Alyssa Watson if provided sufficient incentive to do so. The inducements on offer were the future prospect of big money working for the organization and the possibility of avoiding prosecution for the murder.

[53] The operational plan for the day was for Sonny to pick up Mr. Niemi in Orillia and drive with him to Vaughan to drop off a package to Moe Greene. On their way down Highway 400, they were going to be pulled over for speeding by an OPP cruiser. The officer was going to recognize Mr. Niemi as a person of interest in a homicide. The purpose of the stop was to stimulate conversation about the murder between Sonny and Mr. Niemi. Michael would then call Sonny to tell him that Vito wanted to meet both Sonny and Mr. Niemi in Toronto. Sonny was to explain to Mr. Niemi how important it was for him to come clean to Vito about the murder and any part he had in it.

[54] The traffic stop was executed brilliantly. The female officer pulled Sonny over and gave him a ticket. She had been selected for this play because she had investigated a call regarding a break-in at Cathy Graham’s home about a year before, so she had met Mr. Niemi. She recognized Mr. Niemi and asked dispatch to run his name. The following exchange took place just after the officer provided the ticket to Sonny:

Officer: Have we met before?

Roy Niemi: Hmm I don’t think so.

Officer: Think so, you look familiar to me. Are you from Orillia?

Roy Niemi: Uh not originally.

Officer: No? Is it Roy?

Roy Niemi: Yeah.

Officer: What’s your last name Roy?

Roy Niemi: Niemi, N I E M I.

Officer: Yes, Cathy your girlfriend had a break-in your…

Roy Niemi: Yeah no no not a girlfriend just a lady I’m staying with.

Officer: Oh okay how’s her son doing?

Roy Niemi: She’s like my second mom. He’s doing okay.

Officer: Roy what’s your date of birth?

Roy Niemi: July twenty-fifth, seventy eight.

Officer: You don’t have anything outstanding do you?

Roy Niemi: Not that I know of.

Officer: No?

Roy Niemi: I’ve been good since ninety-six so…

Officer: Well that’s good, eleven years.

Officer: One Mike three oh one Orillia.

Dispatch: Go ahead three oh one.

Officer: Can we get a twenty-nine male party when you’re ready?

Dispatch: Ten four go ahead.

Officer: Surname Niemi, November India Echo Mike India, given one Roy, usual spelling, date of birth seventy-eight oh seven two five seventy-eight July twenty-fifth, ten four

Dispatch: Ten four stand by.

Dispatch: One Mike three zero one call Orillia.

Officer: Three oh one go ahead.

Dispatch: Are you ten sixty-nine?

Officer: Ten four go ahead.

Dispatch: Male party is ten sixty-six special interest person reference homicide of Alyssa Watson. Any contact you are to notify Detective Constable Gordon at Orillia OPP Crime Unit at three two six three five three six immediately, ten four.

Officer: Ten four. I just hafta make a phone call Roy and I’ll be right back up okay?

Roy Niemi: Sure. Well looks like they’re still looking for me.

Sonny: What’s goin on?

Roy Niemi: Well it looks like they’re still thinking I’m a fuckin suspect.

Sonny: With that shit you told me about right?

Roy Niemi: Oh man this is bullshit. Kay if she lets us go today you’re getting me outta (unintelligible) town to Washago.

Sonny: We have business to do first.

Roy Niemi: Yes I know. As soon as we get back to my place I’m grabbing my shit and I’m (unintelligible) there. I had a fuckin inkling this wasn’t over.

Sonny: Hmm.

Roy Niemi: I said I had an inkling that this wasn’t over. Fuck I thought that broad looked familiar.

Sonny: You dealt with her before?

Roy Niemi: I think so yeah. Well don’t close the windows dude put them back down cuz then she’ll think we’re trying to hide something.

Sonny: It’s none of her fucking business what we’re talking about.

Roy Niemi: (sighs) Bloody hell please let me go (unintelligible).

Officer: I just spoke to the Detective Roy she just wants me to get your current address.

Roy Niemi: I’m still at the same place, five Rosemary.

Officer: Okay that’s great thank you very much.

Roy Niemi: Not a problem.

Officer: Have a safe drive gentlemen.

Sonny: See ya. So what’s up?

Roy Niemi: Well that just crunches it.

Sonny: What’s that?

Roy Niemi: I said

Roy Niemi: That just crunched my fuckin theory.

Sonny: What’s that?

Roy Niemi: The fuckers are trying to hang me.

Sonny: Do you have anything to fuckin worry about or what?

Roy Niemi: (unintelligible sound) Yeah like life. Fuck them cops man (laughs). Son of a bitch.

Sonny: Talk to me man what’s goin on?

Roy Niemi: Well they’re trying to hook me for her fuckin murder cuz they got nobody else and since I’m the badest motherfucker in town cocksucker.

Sonny: Do you know anything about it?

Roy Niemi: No, I was with the bitch for a fuckin hour and that was it (unintelligible sound).

Sonny: Well if you have nothing to worry about man then you got nothing to fuckin worry about right?

Roy Niemi: That’s not the point. They’ve got my DNA. They’ve got my fingerprints. All they’ve gotta do is fuckin hook it in with her, throw it in, do whatever and hang me man.

Sonny: Did you fuck her that night?

Roy Niemi: Are you kidding? No fuckin thing’s nasty.

Sonny: Fuck buddy, if they don’t, if they don’t fuckin have anything on you man like do they have anything on ya like that’s that’s the fuckin question?

Roy Niemi: Well if they did I’d be arrested in jail by now.

Sonny: Hey man I don’t know anything about it.

Roy Niemi: That’s the whole point. I don’t know much about it either. All I know is I’m being harassed like a motherfucker. Cocksuckers.

Sonny: (unintelligible sound).

Roy Niemi: (unintelligible sound) Well looks like Washago’s coming sooner then it was gonna be. Fuckin bastards. See this is why I don’t like cops knowing where I fuckin am man. As soon as they know where I am they try and fuckin hang me. Gotta love parents man.

Sonny: (laughs)

Roy Niemi: If it wasn’t for the old man.

Sonny: (Unintelligible)

Roy Niemi: I wouldn’t be in enough fuckin water like I am now.

Sonny: Yeah.

Roy Niemi: It’s all because of his stupid ass fuckin idiotic fuckin life that I’m getting fuckin tagged for it. Cops didn’t like him and think I’m just like him.

Sonny: Think back to that night man. What the…like what fuckin happened that would make them think that you’re fuckin uh good for it?

Roy Niemi: Well think about it I’m the only guy in town that’s got a record fuckin like a phonebook.

Sonny: Yeah there’s other fuckers in town that got fuckin records man.

Roy Niemi: Yeah but I’m the bad guy. I’ve always been the bad guy and the fact that the cops know that I don’t fuckin like them and I’m arrogant to them.

Sonny: I mean between you, you and me man, like so what happened that night like so you fuckin you were with her for an hour?

Roy Niemi: She called me. I went and fuckin hung out with her downtown for a fuckin hour. Walked around, dropped her off with two other fuckin people. I don’t even know who they are. Gave the descriptions to the cops of who they looked like. She buggered off with them. I went home, called Cathy at like eleven quarter after eleven, whatever, fuckin you know what I mean, and I was at home. So fuck em, this is bullshit man. I’m tired of it…

[55] A short time after the foregoing exchange took place, Sonny received a call from Vito, who said he wanted to meet Sonny and Mr. Niemi at the Royal York Hotel in Toronto. Mr. Niemi immediately suggested it would be best to keep under their hats the fact that he was a person of interest in a homicide. Sonny disagreed. He told Mr. Niemi it was a good thing if Vito wanted Mr. Niemi to be a part of this family and that he should come clean so that Vito did not worry about it. He pointed out that Vito had helped a lot of people. He implored Mr. Niemi not to miss out on this chance of a lifetime.

[56] Sonny and Mr. Niemi eventually met with Vito in his room at the Royal York. Mr. Niemi did advise Vito that he was a suspect in a homicide and went on to say that if Vito wanted to cut ties with him because of it, that would be okay. Vito said he would make some calls to try to find out why the police were looking at Mr. Niemi. He sent Sonny and Mr. Niemi out to get a coffee while he made his calls. They sat together and talked in a restaurant and Sonny told Mr. Niemi that he didn’t care if Mr. Niemi committed the murder – they’d still be brothers. He told Mr. Niemi just to be honest with Vito if he did it.

[57] When they were called back up to Vito’s room, Sonny was asked to leave. Mr. Niemi had a conversation alone with Vito (Mr. Big). Vito told him he wanted him in the organization because he’d heard good things about Mr. Niemi. But he stressed that trust was important in their organization. They began to talk about Mr. Niemi’s background. He confided in Vito that he actually did not have a criminal record as an adult. They got to the issue of the homicide. Vito told Mr. Niemi that down the line they may have to know details because they might be able to get an associate already in prison to confess to it, in exchange for a little money. Mr. Niemi denied any involvement in the murder.

[58] Vito challenged Mr. Niemi. He let on that he had found out some information from the contacts he’d spoken to on the phone. He said Mr. Niemi was “full of shit” because the route he told the police he took while walking with Alyssa Watson on August 18, 2006, was untrue, since he should have been on surveillance cameras and wasn’t. Mr. Niemi continued, however, to deny any involvement Ms. Watson’s death. Vito eventually told Mr. Niemi that he didn’t think Mr. Niemi was being straight with him and, as such, they would not be able to do business together. Mr. Niemi accepted that. Sonny was called back into the room and told to cut all ties with Mr. Niemi.

[59] Sonny and Mr. Niemi left and returned to Sonny’s car. Sonny then put intense pressure on Mr. Niemi just to come clean with Vito. He implored Mr. Niemi not to throw away this chance of a lifetime. Mr. Niemi continually asked Sonny to give it up and to get going. Sonny refused. He was not prepared to leave. For about an hour they sat in Sonny’s car with Sonny attempting to convince Mr. Niemi to go and speak to Vito again and to be honest with him. Mr. Niemi maintained that he had nothing to do with the murder of Alyssa Watson and just wanted to go home. The following is a brief portion of the exchange in the car, which provides the flavour of the discussion:

Sonny: You know we gotta fuckin deal with this and he’s the fuckin man to help ya. I’ve been trying to tell ya that.

Roy Niemi: He doesn’t want the headache and hassle of it.

Sonny: You know what, he wouldn’t be sitting up there with you for two and half hours three hours if he didn’t fuckin care about…

Roy Niemi: Well no cuz he wants to know what’s going on so he can cover his own ass you know what I mean? I don’t blame him. Let’s just go fuck I got things to do.

Sonny: You know what I got fuckin things to do too that were important but you know what you’re important to me. Our fuckin business is important. Don’t fuckin give up on me here man that’s not the fuckin Roy I know. Don’t fuckin give up on me, talk to me.

Roy Niemi: Told you don’t worry about it, it’s done.

Sonny: It’s not fuckin done. It’s not fuckin done. Been rolling with each other too fuckin long for it to be done after for just fuck for just you know what cuz that fat fuck and don’t repeat that fuckin and you know what he fuckin wants to help ya. I tell ya that right now but you gotta give him the fuckin chance.

Roy Niemi: I told him everything I know. I don’t fuckin know anymore. If I did I’d say something (sighs).

Sonny: Can you think back is there anything else that fuckin Vito would know?

Roy Niemi: Well supposedly from the diagram I gave him it doesn’t match up to fuckin their fuckin cameras or something that’s all around town. Well I gave the same fuckin route that I gave the fuckin cops. It’s the same route I took when I went home.

Sonny: Is there any, anything else that you can fuckin remember?

Roy Niemi: If I did the cops would have it by now so they can get off my fuckin back.

Sonny: But is there anything you fuckin didn’t tell the fuckin cops?

Roy Niemi: No I told them everything I fuckin know.

Sonny: We’ve a lotta fuckin money invested in each other man, a lotta fuckin money and I wanna fuckin see that money and I know you wanna fuckin see that money. I don’t wanna fuckin cut loose just like you don’t wanna be fuckin cut loose.

Roy Niemi: I’m already cut loose.

Sonny: But if can fuckin fix it that’s what I’m trying to get at here.

Roy Niemi: Well it’s not gonna be today, let’s go.

Sonny: No, you know what Roy? Listen, settle down. We’ll fuckin go in a minute okay? I wanna fuckin clear this up. You know what if I can fuckin fix this I wanna fix it. You know what if I can fuckin call Michael or Vito and say listen he wants to fuckin come up and tell you what the fuck happened.

Roy Niemi: I don’t fuckin know. I told him everything I know. I can’t tell him anything I don’t fuckin know. I can only tell him from what I’ve heard and from what I fuckin I done that day you know what I mean that’s it.

Sonny: No, I you know what I respect that. Is there anything else that you can fuckin remember?

Roy Niemi: Dude, I’ve been thinking about this shit since it started and if I knew anything else the fuckin cops would know (sighs). Well next best thing is to make myself look dead, fuckin get a new ID and go on again. This time I cut ties with my sister too.

Sonny: Buddy I don’t wanna cut ties with ya, that’s the whole point you know what I’m saying?

Roy Niemi: I don’t wanna have to cut ties with a bunch of other people either but I got no choice now. Now I know the fuckin heat’s on I gotta get rid of them all. All my business just fuckin is gotta go tonight. Gotta pass it off to somebody else.

Sonny: But if…

Roy Niemi: I gotta go back to basics. Back to fuckin the country. I gotta hide out in the fuckin woods for awhile is what I gotta do. Fake my own fuckin death. If I have to to disappear for ten years I don’t know. I gotta do something.

Sonny: But if, you know what, if we can fuckin fix this now I wanna fuckin fix it man, you know what I mean, you feel me right?

Roy Niemi: I know.

Sonny: I wanna fuckin fix this because I don’t wanna cut ties with ya. I wanna keep doing business. I want fuckin make money. They understand that, you know what, if if there’s something else man, seriously, like we gotta go up there and settle this cuz he’s gonna fuckin help ya. I’m telling ya he wouldn’t be spending three fuckin hours with ya if he wasn’t gonna fuckin help ya. The guy has fuckin connections.

Roy Niemi: He just sat there and said there’s nothing he can do.

Sonny: Because you’re not giving him anything.

Roy Niemi: I’ve given him everything I know, how many times do I gotta fuckin say it? It’s the same fuckin bullshit I went through with the cops when they kept fuckin hounding me. I don’t fuckin know. This is the route I took. This is who we’ve seen you know what? I mean cops got everything I fuckin know.

[60] The pressure from Sonny continued over a period of about an hour before they left the parking lot. Over that period of time, Mr. Niemi asked Sonny to get going at least eleven times. Eventually they did leave the Royal York and headed back to Orillia. Sonny continued to press Mr. Niemi on the drive home. Mr. Niemi continued to deny any involvement in the murder and he repeatedly asserted that he’d already told Vito everything he knew about it. At one point they pulled into the commuter parking lot at Highway 400 and Innisfil Beach Road and Mr Niemi vomited twice. Thereafter, an unusual exchange took place between Mr. Niemi and Sonny:

Roy Niemi: You know what I’m wondering, I’m wondering if I did do it and I just blocked it out or something. Wonder if hypnosis would be able to find out cuz…

Sonny: But you know what…

Roy Niemi: I’d be willing to take that for him if he wants…

Sonny: Like I could give a rat’s ass if…

Roy Niemi: Yeah but I’d like to know like I don’t know you know what I mean and I’m scared.

Sonny: Yeah but if you did (unintelligible)…

Roy Niemi: Like that’s twenty-five to life on me man.

Sonny: Yeah if you did fuckin do it though then we can fuckin deal with it and if you’re afraid to fuckin tell me which I don’t you know what I hope you’re not don’t be afraid of me man we’ve been buddies for a while man we’ve done alotta fuckin shit together man.

Roy Niemi: I know.

Sonny: You know what?

Roy Niemi: See that’s what I’m thinking maybe if I did do it I blocked it out or somethin, or you know it relapsed somewhere or sumpim. I don’t know you know what I mean like you’d think I’d remember this shit. Like there’s certain things in my life I can remember and there are certain things that are missing that I that I know I know you know what I mean?

Sonny: Did you think you fuckin did it?

Roy Niemi: I really don’t know but if everything points to me it’s starting to look that way you know what I mean? Like if we could fuckin…

[61] Mr. Niemi suggested that Vito arrange for a hypnotist. Sonny then dropped him off at home. On July 6, 2007, Sonny called Mr. Niemi and told him he’d spoken to the boss but had not heard back from him. They left it at that. After a 72 day operation, the curtain came down on Act I.

ACT II: Michael Takes Charge

Scene 1: The Reintroduction

[62] A little more than a year went by after the end of the first Mr. Big operation. Sonny did not contact Mr. Niemi in that period and, similarly, Mr. Niemi did not contact Sonny. Sonny had a cell phone dedicated to Operation Spurline that was kept active and Mr. Niemi had the number, but did not call it.

[63] On September 16, 2008, Sonny called Mr. Niemi and told him that he would be in Orillia and asked if Mr. Niemi wanted to meet for a coffee. Things had changed for both of them. Sonny told Mr. Niemi that he had been asked to leave the organization because he’d run into gambling problems. He’d lost all his money and was in financial difficulty. He had a girlfriend named Kay with whom he lived. Mr. Niemi told Sonny that Cathy Graham’s son, Brady, had died and he no longer had babysitting income. He said the police were still bothering him about the Watson murder, but reiterated that he had not been involved in it. He expressed enthusiasm about having heard from Sonny and indicated that he was anxious to make some money.

Scene 2: Getting Back In

[64] Sonny met up with Mr. Niemi again on September 26, 2008. They met for coffee again. Mr. Niemi spoke about the Watson homicide and reiterated that he did not do it. He mentioned that Alyssa Watson had “pissed off” a lot of people and that she had been into crack cocaine. He suggested to Sonny that if there was a way he could convince the boss that everything was fine, he could start making some money. He said if he needed to whack someone, just give him the time, place and materials and he’d do it. He also said he was prepared to take a polygraph test.

Scene 3: Meeting Michael

[65] On October 27, 2008, Sonny met up with Mr. Niemi at the Learning Centre in Orillia. Mr. Niemi was still attending school there, but Sonny was not. Mr. Niemi was still in receipt of welfare benefits of $411 per month. Sonny told him that Michael would meet with them the next day to hash things out.

[66] The next day, Sonny’s girlfriend, Kay, drove them to Moxie’s in Newmarket to meet with Michael. Michael told them that there were some changes in the organization and that there were some new rules. Mr. Niemi said that he would do “whatever it takes”. Michael advised them that he had a line on some work that they could do for someone who was not a member of the organization, but was an associate. Michael and Mr. Niemi discussed knives, which Mr. Niemi regularly carried. The meeting ended and Sonny and Mr. Niemi agreed that it had been positive.

Scene 4: A Job

[67] The job that Michael had discussed on October 28, 2008, materialized on November 4, 2008. It was straightforward. They met an associate of the organization, Bruno Tattaglia, at a gas station in Barrie. They received the keys to a van that contained a package. They drove the van to the Colossus movie theatre in Vaughan and left it there. They then went to a nearby Moxie’s and had dinner, which Sonny paid for. Bruno picked them up at Moxie’s and drove them back to Barrie. Bruno paid them $300 for their assistance, which Sonny and Mr. Niemi split.

[68] Michael was pleased with the work they did for Bruno. On November 7, 2008, Sonny met Mr. Niemi for a coffee and conveyed to him how happy Michael was. They discussed, with some enthusiasm, the prospect of making money again.

Scene 5: The Organization Beckons

[69] Michael wanted to meet again on November 14, 2008. Sonny picked up Mr. Niemi. He saw the inside of Mr. Niemi’s new apartment on this occasion. He noted that it contained a large number of stuffed bears. They went by the welfare office for Mr. Niemi. They then went and got Mr. Niemi some clothes. Finally, they went to meet with Michael.

[70] On the drive to the restaurant, Mr. Niemi brought up the Watson homicide. He said that the police must not have anything on him or they would have done something. He went on to deny any involvement in the killing. He said he would not kill a woman or child, though he had no difficulty with killing a man. Men, he said, are more fun because you can torture them.

[71] The lunch with Michael went well. Michael let them know he was pleased with the work they’d done for Bruno. He mentioned that the organization was quite busy and there was a lot of upcoming work. Mr. Niemi let Michael know that his phone was always on. He was eager to earn money.

[72] On the drive back from lunch, Mr. Niemi again brought up the homicide. He expressed anger that the police were still harassing him and that they thought he’d be stupid enough to leave a body lying around.

Scene 6: The Card Game

[73] Something significant happened between Scenes 5 and 6: Mr. Niemi got a haircut. He cut off his ponytail. He did so to demonstrate his commitment to the organization.

[74] On November 19, 2008, Sonny and Mr. Niemi were invited to a casual card game at a hotel on Highway 7 in Vaughan. The idea was that they would meet associates of the organization in a relaxed setting and they would also do a money drop.

[75] At the game, Michael let them know that he was going to go to Vito and make a pitch for them to get back into the organization. He would vouch for them. He let them know this is a one-time chance. They needed to be honest with Vito because if they didn’t get in this time, there would be no coming back. It was clear to them both that the impediment was the Watson homicide and Mr. Niemi’s involvement in it. He would have to either admit his involvement and provide details, or convince Vito that he was not involved.

[76] Michael gave them an envelope of money to deliver to another member of the organization, Luca Brasi. On the way to the drop, they discussed how much money they could make if they got back in. Sonny told Mr. Niemi all they had to do was be honest with Vito. Mr. Niemi repeated that he had already told Vito everything he knew about the homicide, which triggered the following interaction:

Sonny: Well if if then if we’re gonna go we might as well not not fuckin do this if if you’re gonna go in there and he fuckin has an inkling that you uh if he has a fuckin inkling that you know you’re fuckin involved or whatever and we’re both put out on our fuckin asses you know what I mean?

Roy Niemi: Oh I know.

Sonny: Like that’s that’s the fuckin problem like he he won’t like I I I mean I I know the man like he’s not gonna he’s not gonna put up with our shit that’s the that’s the fuckin problem he will not put up with our shit.

Roy Niemi: (unidentifiable sound).

Sonny: So that’s that’s my fuckin concern man. It’s all fuckin said and done we got fuckin even Michael fuckin vouchin for ya man like I mean fuck you cut your hair you cut your fuckin goatee down man I mean he he knows you’re serious but he thinks you’re not telling him the truth about shit we’re fuckin both done buddy. Even you said to me before when we were talkin, you shoulda fuckin come clean with him before.

Roy Niemi: Well I’m not gonna get fuckin pinched for somebody else’s mistake man. I’m not into that.

Sonny: Well you’re not, who’s who’s gonna fuckin pinch ya?

Roy Niemi: That’s not the point.

Sonny: He you you know what? He’s not gonna fuckin why would he pinch ya?

Roy Niemi: That’s not the point. The whole point is if I did it I would’ve said something, that’s the whole point I’m trying to get across why are you know…

Sonny: Hey listen, it’s not me man, I’m I’m your fuckin boy, like don’t get upset at me.

Roy Niemi: Yeah but it’s just so fuckin frustrating.

Sonny: You even, you even fuckin said, you even fuckin said to me before when we were goin down to, when we were goin down to fuckin uh the Kelsey’s there in Newmarket, you know you shoulda fuckin said something then and…

Roy Niemi: Well if I (unintelligible) if I just tell them fuckin I did it, whatever, blah blah blah, I’d make him fuckin happy like what…

Sonny: Well you don’t want to do that.

[77] At the end of the evening, Mr. Niemi was paid $200 for his assistance. Michael invited them to come to Toronto the following weekend. But he added the caveat, “if you’re not willing to fuckin step up, don’t fuckin come, don’t even come all right?”

Scene 7: The Confession Begins

[78] On November 22, 2008, Michael called Mr. Niemi directly. He said he couldn’t reach Sonny and he wanted to invite them down to a meeting in Toronto on November 25, 2008. Mr. Niemi conveyed this information to Sonny. Sonny and Mr. Niemi met on November 24, 2008. Sonny provided Mr. Niemi with some new clothes. They had an upbeat discussion about the possibility of renting a condo together in Mississauga.

[79] The following day, November 25, 2008, was the major turning point in Operation Spurline. It was the day that Mr. Niemi admitted to killing Ms. Watson.

[80] The meeting Michael arranged took place at a restaurant known as Big Daddy’s Crab Shack. En route to the meeting, Mr. Niemi confided in Sonny that he had never been in a family before. He was used to being on his own. They talked about being brothers. This was a common theme used by Sonny to create a bond with Mr. Niemi. He regularly referred to them as brothers. Mr. Niemi revealed that he once had an older brother, but he drowned.

[81] At the Crab Shack, Sonny and Mr. Niemi were surprised to witness a ceremony in a back room where Vito passed a ring to Michael and thereby handed him the reins of the organization. Vito was retired. Michael was now Mr. Big. This was a positive turn for Sonny and Mr. Niemi because they had a very solid relationship with Michael. They congratulated him, as did many others in attendance. Michael extended an invitation to come to his hotel for a talk. They accepted and were chauffeured off in a white limousine.

[82] In Michael’s room, they discussed how busy the organization was – how much money there was to be made. They also discussed the non-monetary benefits of belonging to the organization: they were like a family; they trusted one another; they helped one another; if someone had a problem, they gathered around and solved it. At one point Michael asked Mr. Niemi, “What kind of life you wanna live?” Mr. Niemi responded, “Not the one I’m living now, that’s for sure.” Michael told Sonny and Mr. Niemi that he liked them and wanted them in. Mr. Niemi replied, “And we wanna be here.”

[83] There was, however, one impediment: the lingering problem that Mr. Niemi remained a suspect in the Watson homicide. Michael told them they couldn’t join the organization until someone was arrested for the Watson murder. But he had a plan, as briefly described in the following exchange:

Michael: Well how how are we gonna clear this up because I want you guys in here. I really fucking want you guys in here cuz you’re good, but we can’t have that hanging over our heads. We can’t have like things gotta be clean when you come in you know what I mean? And I mean you can come in tomorrow and I got work for you this weekend, even before this weekend, and you guys will start making cash (unidentifiable sound) like that but I gotta go by the way the old man did things and I as much as I want you guys in here it’s my ass, it’s still my ass on the line and I like you guys and I want you guys in there but we we gotta clear that up.

Roy Niemi: Well that’s understandable.

Michael: We can’t we can’t have it hanging there right or or I can’t having you working with me.

Roy Niemi: That’s understandable.

Michael: For now so um this if there’s nobody fucking arrested nobody in jail for that they can…

Roy Niemi: Just continues on till whenever.

Michael: I I I can’t have you in until then. Now that can happen. We we can make sure there’s somebody in jail arrested for that you know what I mean but that a lot of that rests on you so.

Roy Niemi: Well what do you mean by that?

Michael: We have ways people in places that uh…

Roy Niemi: No I’m not talking about that, I’m talking about for me?

Michael: For you, well if somebody was arrested and in jail that wasn’t you…

Roy Niemi: Yeah

Michael: You’re off the hook right?

Roy Niemi: But if I didn’t do it why should I be on the hook to begin with? See that’s the whole part that’s been making me pissed off about the whole thing.

[84] As is apparent from the foregoing exchange, Mr. Niemi continued to maintain that he had nothing to do with the homicide. Michael challenged him. He told him that he was just telling them the “same shit” as the previous year. Mr. Niemi asked, “do you honestly think I could do it?” Michael said, “yeah, actually I do.” The conversation continued:

Roy Niemi: And how do you figure that?

Michael: You sat there at lunch just a couple weeks ago…

Roy Niemi: Yeah but I said (unintelligible).

Michael: And you had the knife in your hand.

Roy Niemi: Yeah I know.

Michael: And you told me things that…

Roy Niemi: Doesn’t mean that…

Michael: Made me think that you could do that.

Roy Niemi: Oh I know

Michael: You told me, you told you could do that.

Roy Niemi: Yes I could kill somebody, but it ain’t going to be a woman.

Michael: I’m just saying you told me, you told me you like knives because they don’t make any noise and as long as you don’t look in their eyes then it doesn’t bug ya. Cuz I told ya it’s not as easy (unintelligible) it’s not something you can say you did unless you did it right trust me I know.

Roy Niemi: Well I have a hard time trusting people.

Michael: I understand that, so do I, so do I. But like you were talking to me at lunch there I mean uh I we were talking about hunting you had that knife and you said as long as you don’t look them in the eyes right?

Roy Niemi: Well that’s just normal.

Michael: You were basically telling me you would kill somebody for me.

Roy Niemi: Well if you needed it, it would get done.

Michael: Yeah.

Roy Niemi: It’s family.

Michael: So of course I think you could kill somebody.

Roy Niemi: Well anybody…

Michael: Unless you were full of shit and you were lying to me.

Roy Niemi: Anybody could kill anybody I’m sure it’s not that hard.

Michael: Yeah I know it’s a lot harder to live with after though.

Roy Niemi: Well. . .

Michael: Not always I know that trust me that’s why I drink scotch.

[85] Slowly Mr. Niemi came around. The turning point came after Michael described in some detail just how they would have someone else confess to the murder:

Michael: …I want both you guys in here. You guys are fucking great, but we really have to clear that up so I don’t know, you tell me how are we going to clear that up?

Roy Niemi: Well I don’t know how you’re going to do it at your end but I’d like to see it disappear cuz I’m tired of freakin being harassed. I just want to live my life and be the way it is well not the way it is (unintelligible).

Michael: Let’s just say for a minute you did it.

Roy Niemi: Okay.

Michael: Um we could clear that up pretty quickly within a few days I would say. We could do that. We have a lot of people, a lot of friends. Certain people would be paid money, but it could be cleared up and it’s been done before. I’ve actually got two guys in mind that would work. Uh I know they’ll do it. It’s really not gonna hurt them that much cuz they’re already in a situation. So it can be done you know and it’s gonna cost a little bit of money so for a few months you might make a little bit less than you normally would, but that’s still about five thousand times more than what you’re making now (laughs).

Roy Niemi: No doubt.

Michael: You know so but I said it it’s up to you like we’re ready for you to come in. We’re ready for you to to come in here and be part of the family. You can start working but like we gotta figure this thing out cuz we can’t, it’s just too much of a risk for us you know, no matter how much we like ya, it’s just too much of a risk. Like that’s that’s gotta be gone and then that means like somebody’s gotta be arrested for that and and if somebody’s arrested for that or charged with that, it’s gone but we have to make sure that happens and we can make sure that’s not you, so it’s kinda like the ball’s in your court like it’s up to you.

Roy Niemi: Well if you want to take care of it then.

[86] Mr. Niemi went on to confirm that, “as long as I don’t get any repercussions on it besides a loss of money, I don’t care.”

[87] The next step was to get Mr. Niemi to provide the details of the crime. Michael told him they’d need something for his guy, so that if a confession was made, the confessor would have the details. Mr. Niemi described being hired by someone to kill Alyssa Watson because she had purportedly stolen two kilograms of cocaine. He said killing women wasn’t his style, but it needed to be done. He said he received a note from someone to kill her. He got no money up front, but was paid $10,000 after the job was finished. When asked how he killed Ms. Watson, his initial description was the following:

Roy Niemi: Well I tried, I figured you know I’d knock her out first but that didn’t work so I just, you know, strangled her.

[88] Michael continued to press for details. Mr. Niemi described taking Ms. Watson down to a bike trail by the water. He said the time of the killing was between 10 p.m. and 3:00 a.m. He said he hit her on the back of the head with a whisky bottle, expecting it would knock her out, but it didn’t work. He went on to fill in more details:

Michael: So okay so you hit her on the head?

Roy Niemi: And then…

Michael: She said “what the fuck?”

Roy Niemi: So I just choked her out and then used her purse to strangle with the rope whatever the fuckin thing with the handle of it I just finished the job.

[89] At this stage Mr. Niemi did not provide any details of any indignities to the body. He described simply leaving Ms. Watson’s body in the middle of the trail and walking away. The whole episode took only five minutes and there was no blood. Ms. Watson had a new pink Samsung cell phone which he took with him and disposed of outside of Ontario.

[90] Michael continued to press Mr. Niemi for more details. He challenged him about the motive for the murder, telling him it seemed far-fetched that he would kill Ms. Watson on the basis of receiving a note from someone. He also thought it was simply untrue that Ms. Watson had stolen two kilograms of cocaine from anyone. Mr. Niemi, however, stuck to his story.

[91] Eventually, Michael suggested that Mr. Niemi and Sonny stay over at the hotel in Toronto, then travel to the scene of the murder the next day to see if that would jog Mr. Niemi’s memory about what happened. Mr. Niemi said that he didn’t want to stay over and would rather go home, but Michael pressed him to stay and in fact got a little aggressive about it. Mr. Niemi relented and stayed over. He had his own room and enough money in his pocket that he could have left and gone home on his own had he wanted to. But he remained. The next morning he and Sonny went to the scene of the crime.

Scene 8: The Scene of the Crime

[92] The next day Sonny drove Mr. Niemi back to Orillia to visit the scene of the crime. Mr. Niemi told Sonny he had not slept all night and felt sick to his stomach. They pulled into a Tim Horton’s about half-way to Orillia and Mr. Niemi vomited in the bathroom. When they got to Orillia they parked at a laundromat along the route that Mr. Niemi and Ms. Watson walked the night of her death. Mr. Niemi was dry heaving when they got out of the car. Nevertheless, they walked down to the bike trail where the murder occurred. Mr. Niemi pointed out where the killing had occurred. He insisted that he could not remember any more details than he had mentioned the night before.

[93] They then returned to Toronto and met again with Michael, who was not impressed with the lack of detail. He basically told Mr. Niemi that the details provided were more or less available in the newspaper to anyone. Nevertheless, no further details were forthcoming. Mr. Niemi suggested that perhaps Michael could get more details from the police. The meeting ended. Michael said he would be in touch.

Scene 9: The Valhalla

[94] Sonny had no contact with Mr. Niemi from November 26, 2008, to December 1, 2008. On December 1, 2008, Sonny picked Mr. Niemi up in Orillia and told him they were going to meet Michael at the Valhalla Inn in Mississauga. The meeting had two significant aspects. First, Michael outlined exactly what the plan was to have another party confess. He said that he had an associate in jail who was one year into a life sentence. He was going to confess. They were going to have someone in the associate’s family call in a tip and claim a $50,000 reward. The confessor’s family would keep $40,000 and Sonny and Mr. Niemi would split the other $10,000. The pot was, accordingly, sweetened for Mr. Niemi.

[95] Second, Michael had set out on a coffee table in his room, a series of newspaper articles about the crime. He and Mr. Niemi went through the articles. They failed to jog Mr. Niemi’s memory, though he did tell Michael that when he first talked to the police he told them he dropped Ms. Watson off on the corner of Peter Street and Colborne Street. But that’s because he didn’t know there was a surveillance camera at that location. As it happened, he wasn’t seen on the camera, so he later told the police that he dropped Ms. Watson off at the end of Colborne Street East by Scott Street.

[96] Michael became frustrated with the lack of detail being provided by Mr. Niemi. He did not want to have his associate confess to the crime without knowing sufficient details because if the story fell apart there would be a lot of trouble for all of them. The following exchange occurred:

Michael: Are you are you lyin to me?

Roy Niemi: No.

Michael: Did you do this?

Roy Niemi: Yes.

Michael: One hundred percent you did this?

Roy Niemi: Yes.

Michael: You’re not telling me you did this cuz you wanna work for me?

Roy Niemi: No.

Michael: You’re sure about that?

Roy Niemi: Yes.

Michael: Then why are you only telling me half the story?

Roy Niemi: I want. I told you why I can’t remember. I’m trying. It’s not like I’m not trying. Shit you don’t know how bad I need the money.

[97] Michael eventually let Mr. Niemi know that he could have a “free pass”. If he’d lied about killing Ms. Watson, he could just admit it. They would shake hands, and go their separate ways, each keeping the other’s secrets. Mr. Niemi maintained he had committed the crime but could not remember any further details. The meeting ended. On the drive back to Orillia, Mr. Niemi told Sonny that he had hoped Michael would have found out something on his own, so then Mr. Niemi could just have agreed to it and they could have moved on.

Scene 10: The Written Confession

[98] On December 2, 2008, Sonny called Mr. Niemi to see if he had thought of anything more. He had not. Mr. Niemi had agreed with Michael that he would see if he could find Ms. Watson’s cell phone. He was confident, however, that it had been destroyed and, indeed, it has never been recovered.

[99] On December 3, 2008, Sonny called Mr. Niemi again to see if he had recalled anything more. He had not. A similar call was made by Sonny to Mr. Niemi on December 4, 2008. This time, things had changed. December 4, 2008, was the final, major turning point of the investigation. Mr. Niemi told Sonny he had gone back to the scene of the crime, had a drink, and wrote down what he could remember. There were significant new details.

[100] Sonny met Mr. Niemi at a local Tim Horton’s sometime between 8:00 and 8:30 p.m. Mr. Niemi provided Sonny with a page of notes, the content of which I set out at the beginning of this ruling. In summary, Mr. Niemi described killing Ms. Watson in the fashion he had previously described. But now he revealed that he had also cut her body and had pulled her off the trail into the bushes.

[101] Sonny was pleased with Mr. Niemi’s efforts and assured him that this should be sufficient for Michael’s purposes. Sonny took the notes and left.

Scene 11: The Arrest

[102] The final day of the investigation was December 5, 2008. Sonny drove Mr. Niemi to a Marriott Hotel to meet Michael. They sat down together. Michael went over the notes and Mr. Niemi provided details of the crime that essentially matched what he had written down. He re-enacted the killing for Michael. He said he had struck Ms. Watson in the head from behind. It did not knock her out, so he choked her out using his arm around her neck. After she was unconscious, he strangled her to death with her purse strap. He then cut her sweatshirt down the V-neck. He removed her pants and sweatshirt and cut her throat, left breast and stomach. He then dragged her into the brush off the trail. He laid her clothes on top of her and left. Mr. Niemi drew a little sketch showing the location and orientation of the body relative to the trail and he also drew a sketch of Ms. Watson’s left breast, with a crescent-shaped cut under it.

[103] Michael asked why Mr. Niemi had cut Ms. Watson. His answer was “just to throw them off”. Michael asked how deep the cuts were that Mr. Niemi made. He said that they were deep enough to see fat cells.

[104] Following their discussions, Michael suggested a celebration drink. He told Mr. Niemi that there were some cigars on the dashboard of his car and asked Mr. Niemi to go get them. When he went outside to do so, he was arrested by tactical team officers.

EPILOGUE:

[105] Ms. Watson’s body was discovered in the brush off the bike trail near Cedar Island in Orillia just after 11:00 a.m. on August 19, 2006. Forensic identification officers took photographs of the murder scene. Ms. Watson was found lying on her back. She had red abrasions around her neck. Her throat was cut open. She had a crescent-shaped cut under her left breast. She had a deep cut horizontally down her stomach. Fat cells were visible in all cuts. Her sweater had been cut down the V-neck. It had been removed, but her arms remained in the sleeves and it had been laid on top of her. Her pants were off and had been laid on top of her legs. Her underwear was around one knee. Her shoes had been placed near her feet and a blue purse was found near her shoes.

[106] A post-mortem examination determined that the cause of death was ligature strangulation. There were no obvious signs of sexual abuse or sexual activity. Male DNA samples were located under a fingernail and on Ms. Watson’s watchband. Interestingly, they were not a match to Mr. Niemi.

[107] With this extensive context now set out, I turn to a review of the legal authorities that govern the issues raised by Mr. Niemi in this application.

LEGAL FRAMEWORK:

I. Challenge to the Mr. Big Operation

[108] I begin with the concession by the accused that Mr. Big operations are not, per se, illegal or improper: R v. McIntyre, [1994] 2. S.C.R. 480. The devil, however, is in the details: R. v. Osmar, 2007 ONCA 50, 84 O.R. (3d) 321 (“Osmar”).

[109] The leading case in Ontario on the challenges that Mr. Big operations present is Justice Rosenberg’s decision in Osmar. Immediately prior to the argument of this application, the Newfoundland and Labrador Court of Appeal released a decision in R. v. Hart, 2012 NLCA 61, [2012] N.J. No. 303 (“Hart”) that is certainly the most current appellate authority involving Mr. Big operations. Counsel were not agreed about whether Hart represents a change in the law, particularly in terms of the ambit of s. 7 of the Charter. In my view, Hart merely amplifies some of the themes addressed in Osmar, particularly the application of s. 7 of the Charter to circumstances that may not amount, strictly, to detention. Hart certainly nudges the law forward, but it does not, in my opinion, represent a fundamental change in the law.

The Common Law Confessions Rule

[110] Of singular significance in the analysis of confessions made in the course of Mr. Big operations is the inapplicability of the common law confessions rule. Confessions to persons in authority represent a unique feature of the law of evidence in Canada: the Crown bears an onus to establish the voluntariness of such statements, beyond a reasonable doubt, as a prerequisite to admission.

[111] The problem of false confessions is one well-known to the criminal justice system. An excellent overview of the problem, and the types of interrogations that can lead to false confessions, is found in the Supreme Court’s decision in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 (paras. 34-46). The concerns that surround false confessions, and the risk of convicting the innocent, are the justifications for the confessions rule. As Justice Iacobucci put it in Oickle:

One of the predominant reasons for this concern is that involuntary confessions are more likely to be unreliable. The confessions rule should recognize which interrogation techniques commonly produce false confessions so as to avoid miscarriages of justice. (para. 32).

[112] Concerns about voluntariness are inextricably intertwined with concerns about reliability. Indeed, as Cory J. held in R. v. Hodgson, 1998 CanLII 798 (SCC), [1998] 2 S.C.R. 449, the confessions rule is rooted in concerns about reliability. It also serves, however, as a deterrent on the use of coercive tactics.

[113] An unreliable confession heightens the prospect of a wrongful conviction. One might reasonably conclude, therefore, that circumstances that pose serious questions about reliability would be of equal concern regardless of the person to whom an accused has confessed. It is clear, however, from Supreme Court jurisprudence, that the common law confessions rule applies only to statements made to persons in authority: R. v. Hodgson, as above, R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27. Concerns about the reliability of confessions made to persons not in positions of authority must be addressed through appropriate jury instructions highlighting the reliability concerns that attach to such confessions.

[114] As Justice Abella held in Grandinetti, the test of who is a “person in authority” is largely subjective. The question here is whether Mr. Niemi perceived Michael as a person in authority – someone who had an ability to influence a prosecution. Mr. Niemi clearly perceived that he was speaking to an organized crime boss. Although he accepted that Michael was someone who might help him avoid prosecution, he clearly did not perceive Michael as someone involved in the arrest, detention and/or prosecution of accused persons. The inescapable conclusion is that Mr. Niemi did not confess to persons he perceived as being in authority. As such, the requirement of the Crown to establish voluntariness to the reasonable doubt standard does not apply to Mr. Niemi’s confession.

[115] The upshot of this conclusion is significant, for it means that the onus shifts to Mr. Niemi to establish that there is some basis upon which his confession ought to be excluded. Typically, in Mr. Big cases, and this one is no different, the arguments for exclusion are organized under three headings. First, that the tactics utilized by the police unfairly deprived the accused of his right to silence, contrary to s. 7 of the Charter. Second, that the police trickery was so unfair and abusive as to shock the conscience of the community. This argument is rooted in concerns not only for principles of fundamental justice, but also about the integrity of the administration of justice. Finally, the argument is typically made that the prejudice associated with the admission of the confession outweighs its probative value.

Section 7 Concerns

[116] Section 7 of the Charter protects, amongst other interests, the right to silence, as part of the broader rule against self-incrimination. The right to silence is not absolute. An accused is free to choose when and how s/he gives up the right. The argument in Mr. Big scenarios is that the accused was unfairly deprived of his right to silence by virtue of police trickery. It can safely be said that a Charter right capable of being lost in circumstances of police trickery, would be a rather inconsequential right.

[117] Traditionally, the s. 7 Charter protection of the right to silence arises only when an accused person has been detained. In R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151, Justice McLachlin said the following, in relation to the s. 7 right to silence:

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. (para. 74).

[118] Mr. Niemi was not detained at any point during the course of either Act I or Act II of Operation Spurline. Under the Hebert approach to s. 7, a Charter-based argument for exclusion would appear not to be available to Mr. Niemi. But appellate courts subsequent to Hebert have interpreted the ambit of s. 7 more flexibly. As Rosenberg J.A. noted in Osmar,

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. (para. 42).

[119] In Hart, the Newfoundland and Labrador Court of Appeal went a step further. If Osmar opened the door a crack to the application of s. 7 to circumstances of non-traditional detention, Hart swung it wide open. Green, C.J.N.L., writing for the majority of the Court, applied a liberal interpretation of the concept of “detention” to expand the circumstances in which the s. 7 right to silence applies:

"Detention" is a shorthand means of recognizing the ambit of state control. It was not meant, in my view, to be an artificial, bright-line rule to constrain arbitrarily the right to silence. Rather, the use of "detention" as a point of distinction is based on the generalization that an individual who is not detained is not in the power of the state and does not need protection. Such a generalization is usually true, as it was in Osmar and McIntyre, but when it happens to be false in a particular case, the logic of this restriction cuts the other way. In such a case, should the Court follow the language of Hebert or its underlying principles? (para. 195).

[120] I conclude that the current state of appellate authority is that the s. 7 right to silence is engaged not only upon formal detention, but also in circumstances that amount to the functional equivalence of detention. In other words, where the accused is essentially under the power or control of the state.

[121] Each case is contextually driven, of course, which is why it was important for me to set out the context of Operation Spurline in such detail. Context is all important: Osmar, para. 39. As Iacobucci J. stated in R. v. White, 1999 CanLII 689 (SCC), [1999] 2 S.C.R. 417, “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.” (para. 45).

[122] In each of Osmar and Hart, the Courts of Appeal of Ontario and Newfoundland and Labrador, respectively, analyzed the factual matrices presented by those cases within the framework directed by the Supreme Court in White. In White, Iacobucci J. examined four contextual factors to consider as part of the determination of whether the right to silence has been violated. Those four factors are:

1. The existence of coercion;

2. An adversarial relationship producing a context of pronounced psychological and emotional pressure;

3. The real possibility of an unreliable confession; and

4. Abuse of power.

[123] It could not be said that the foregoing four factors are exhaustive, of course, because the overarching principle is that the Court must determine, in each specific case, what the principle against self-incrimination demands. Such a contextual approach can never be limited to any specific number of factors. That said, the four factors identified by Justice Iacobucci do provide a useful framework in which to assess whether Operation Spurline placed Mr. Niemi in circumstances of state control – the functional equivalent of detention – or whether the tactics of the OPP were such as to obtain a confession too unreliable to place before the jury. I intend, below, to analyze this case within that framework.

Abuse of Process

[124] In addition to the Charter argument advanced by the accused, two common law arguments are also pressed. The first, an abuse of process argument, centres on concerns for the integrity of the administration of justice. The legal test to be applied is straightforward: would the tactics utilized by the police shock the conscience of the community? If so, the confession must be excluded in order to protect the integrity of the criminal justice system. The threshold is a high one, as demonstrated by cases like R. v McIntyre, R. v. Osmar and R. v. Bonisteel, 2008 BCCA 344, 61 C.R. (6th) 64, all of which involved Mr. Big operations with facts arguably on par or worse than those found in Mr. Niemi’s case.

Balancing of Probative Value against Prejudicial Effect

[125] The second common law argument engages the Court’s residual discretion to exclude any evidence where the probative value of such evidence is exceeded by its prejudicial effect. Prejudice is said to arise in this case because of two principal factors: (1) the tendency of juries to over-emphasize the evidentiary value of a confession, even when provided with a cautionary instruction; and (2) the existence of a substantial amount of bad character evidence as part of the Mr. Big narrative.

[126] Assessing and balancing prejudice requires, as Rosenberg J.A. addressed in Osmar, an assessment of the reliability of the confession in issue. As reliability increases, so does probity. At this stage of the analysis, the Court is not concerned with whether the confession, in the context of the entirety of the evidence, is capable of establishing the guilt of the accused to the reasonable doubt standard. The question is whether there are sufficient indicia of reliability to establish a level of probity worthy of putting before a trier of fact. To answer that question, the Court must examine the details of the confession and compare them to reliable extrinsic evidence.

II. The Garofoli Application

[127] Mr. Niemi challenges the judicial authorization granted to the police in October 2008, in connection with Act II of Operation Spurline. His challenge rests on two pillars:

(i) The police failed to make full and frank disclosure in the ITO filed in support of the application for a Part VI authorization; and,

(ii) The evidence contained in the ITO, as amplified on the voir dire, did not rise to the threshold required for an authorization under s. 184.2.

[128] Authorizations issued under Part VI of the Criminal Code are presumptively valid. A reviewing court is restricted in its ability to interfere with a presumptively valid authorization. The determinative question is whether the issuing judge could (not should) have granted the impugned authorization. Sopinka J. outlined the test clearly in R v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421 at para. 56:

The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere.

[129] It is well settled that inaccurate information in an affidavit, omitted facts, inadvertent or even fraudulent errors do not lead to automatic vitiation of the authorization: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421; R. v. Bisson, 1994 CanLII 46 (SCC), [1994] 3 S.CR. 1097; R. v. Morris (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539 (N.S.C.A.). The test on review is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253. In looking for such reliable evidence, the reviewing Court must exclude erroneous information as well as information unconstitutionally obtained.

[130] Applications for judicial authorization of wiretap intercepts under Part VI of the Criminal Code are made on an ex parte basis. Ex parte applications lack the usual checks and balances present in the adversarial system of litigation. The risk of injustice is always present when orders are made against parties who have not been able to make submissions to the Court, nor even been put on notice that relief against them is being sought. As Sharpe J. (as he then was) described in United States of America v. Friedland, [1996] O.J No. 4399 (O.C.G.D.):

[T]he law imposes an exceptional duty on the party who seeks ex parte relief. That party is not entitled to present only its side of the case in the best possible light, as it would if the other side were present. Rather, it is incumbent on the moving party to make a balanced presentation of the facts in law. The moving party must state its own case fairly and must inform the Court of any points of fact or law known to it which favour the other side. The duty of full and frank disclosure is required to mitigate the obvious risk of injustice inherent in any situation where a Judge is asked to grant an order without hearing from the other side…

The duty of full and frank disclosure is, however, not to be imposed in a formal or mechanical manner. Ex parte applications are almost by definition brought quickly and with little time for preparation of material. A plaintiff should not be deprived of a remedy because there are mere imperfections in the affidavit or because inconsequential facts have not been disclosed. There must be some latitude and the defects complained of must be relevant and material to the discretion to be exercised by the Court. [Citations omitted.]

[131] Though Friedland was a civil case, the duty to make full and frank disclosure has been expressly adopted in the context of ex parte applications for wiretap authorizations. In R. v. Araujo, as above, the Supreme Court confirmed that the legal obligation on anyone seeking an ex parte authorization is full and frank disclosure of all material facts.

[132] A failure to make full and frank disclosure will not automatically vitiate the authorization, but the failure may certainly be considered in the context of assessing the credibility of the affiant and the reliability of the content of the ITO. Non-disclosed material information may of course be considered when assessing the sufficiency of the information as part of the review process.

[133] Section 184(1) of the Criminal Code makes it an offence to wilfully intercept a private communication by means of any electro-magnetic, acoustic, mechanical or other device. Section 184.2 provides an exception to the offence created by s. 184(1) so long as the conditions of s. 184.2 are met. In particular, consent must be obtained from a participant to the private communication and in addition, prior judicial authorization must be obtained for the interception.

[134] The conditions precedent to the granting of prior judicial authorization are found in s. 184.2(3) of the Code, which provides as follows:

(3) An authorization may be given under this section if the judge to whom the application is made is satisfied that

(a) there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed;

(b) either the originator of the private communication or the person intended by the originator to receive it has consented to the interception; and

(c) there are reasonable grounds to believe that information concerning the offence referred to in paragraph (a) will be obtained through the interception sought.

[135] No issue is taken regarding the first two conditions precedent. Mr. Niemi argues, however, that, on the facts of this case, reasonable grounds did not exist to believe that information (i.e. evidence) concerning the murder would be obtained through the use of an authorized interception.

[136] It is well settled that the surreptitious electronic surveillance of an individual by an agent of the state constitutes an unreasonable search and seizure under s. 8 of the Charter: R. v. Duarte, 1990 CanLII 150 (SCC), [1990] 1 S.C.R. 30 at para. 18. Section 184.2 is subject, therefore, to the requirements of s. 8 of the Charter.

[137] The reasonable grounds standard, set out in sub-section 184.2(3), reflects the Supreme Court’s decision in the seminal case of Hunter v. Southam, 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145. Hunter established the standard for Charter compliance in search and seizure cases. As Watt J.A. described in R. v. Largie, 2010 ONCA 548, 101 O.R. (3d) 561, at para. 47,

Hunter teaches that the state’s interest in detecting and preventing crime begins to prevail over an individual’s interest in being left alone at the point at which credibly-based probability replaces suspicion. The minimum standard consistent with s. 8 of the Charter for authorizing search and seizure is reasonable and probable grounds, established on oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search: Hunter, at pp. 167-68.

[138] Mr. Niemi argues that the ITO for the authorization granted in October 2008 did not establish, as it must, that there was a credibly-based probability that information concerning the murder of Alyssa Watson would be obtained through the use of surreptitious recordings of conversations between undercover officers and Mr. Niemi.

[139] The arguments surrounding full and frank disclosure and the failure to meet the Hunter v. Southam standard are intertwined and will be reviewed together in the following section.

ANALYSIS:

I. The Mr. Big Operation

Charter s. 7 Issues

[140] Given that the Charter-protected right to silence is only engaged in circumstances where the accused is in the functional control of the state, it is imperative that the context of the operation be examined to determine if the requisite measure of control existed. Obviously the individual characteristics of the accused are of particular importance. People have different strengths, weaknesses, life experiences and values. Circumstances that might be perceived as stressful, threatening or coercive to one person, may not be so to another. An appropriate starting point for the analysis is, therefore, an examination of Mr. Niemi’s personal circumstances and characteristics.

[141] When Operation Spurline began in April 2007, Mr. Niemi was 28 years old. By the time it concluded in December 2008, he was 30. He had a limited education. It is unclear how long he had been enrolled at the Learning Centre but he clearly had no more than a grade 9 education at best. His written confession demonstrated an inability to put together a properly constructed sentence, though admittedly, in the context of a murder confession of that nature, proper sentence structure is a pretty minor concern.

[142] For more than two weeks the Court heard recorded conversations between Mr. Niemi and Sonny. The vast majority of those conversations consisted of profanity-laced small talk. I simply cannot recall a single conversation that involved anything approaching an intellectual discussion, an analysis or commentary on present social issues, or anything else that might suggest Mr. Niemi is a person of intelligence. He presented as incapable of constructing a sentence not including the work “fuck” or some derivative. He was pre-occupied with Ms. Watson’s murder. He was demeaning to her and to women generally. He made repeated degrading comments about law enforcement and, ironically, how stupid the police in Orillia were.

[143] Apart from his activities for the fictitious criminal organization, Mr. Niemi did not appear to be employed in any fashion throughout the period April 2007 to December 2008. He made no mention that I can recall of ever having been employed in any capacity, save to have babysat Cathy Graham’s son on occasion. He apparently also helped a friend with some home renovation work and was owed $1,600 but he never really provided the details of just what he did.

[144] Mr. Niemi may very well be unemployable. He has few, if any, marketable skills. Having said that, he displayed earnestness to work for Michael and the organization. He was always punctual and ready for jobs when they came up. He demonstrated an impressive level of commitment to the organization. He cut his hair and dressed neatly. He was respectful of the boss and underbosses. I suspect that Mr. Niemi is a person who has not had many lucky breaks in his life. I also suspect that if given a reasonable chance and some training, Mr. Niemi certainly has the capacity to be a hard worker and good employee.

[145] Financially, Mr. Niemi must have been in pretty dire straits. Somehow he managed to survive on his modest welfare stipend. That said, he did not appear to be going without anything. He had a decent apartment at all times. He appeared sufficiently fed, clothed and groomed. He had money to purchase cigarettes and always appeared to have a supply of marijuana to smoke.

[146] While he mentioned having $40,000 in the bank and owning two houses, those assertions appear to have been nothing but unsupported braggadocio. Just what means Mr. Niemi had is not entirely clear. Unquestionably he was a person of modest means who was tired of being a person of modest means and who was naturally attracted by the prospect of making big money with the organization.

[147] Mr. Niemi did display a certain level of street smarts. He was always cautious and observant of police presence. He had familiarized himself with – and memorized – the locations of surveillance cameras throughout Orillia. During the traffic stop on July 5, 2007 he told Sonny not to roll the window back up while the police officer returned to her cruiser, in order to avoid suspicion. He was not a weak or stupid person. He is a survivor. Somehow he was getting by on an extremely modest income. He was apparently succeeding in his classes at the Learning Centre. He had an aptitude for computers.

[148] Mr. Niemi was a popular student in his class at the Learning Centre. He was outgoing and friendly with his fellow students. Though he professed to have trust issues, his behaviour belied his statements. He did not appear to have been withdrawn or cautious in his relationships at school. Moreover, he confided many personal details about his life to Sonny even though they had only known each other for a short time. They had only known one another for a few days before Mr. Niemi revealed to Sonny that he was a suspect in a local murder.

[149] Mr. Niemi did not want for social connections. His best friend appeared to be Cathy Graham, with whom he lived. He also lived nearby his sister and her two children and he maintained relationships with them. He had other friends as well. He mentioned a “Rick” as being a close friend. He had at least one girlfriend during the period April 2007 to December 2008. He certainly did not leave the impression that he was desperate to become friends with Sonny. He does not appear to have initiated much, if any, contact with Sonny. Rather all contact appears to have been initiated by Sonny. He declined an invitation to an all-expense-paid trip to a Blue Jays game. Interestingly, after the first phase of Operation Spurline ended on July 5, 2007, Mr. Niemi made no attempt to contact Sonny even though he had Sonny’s phone number. In fact, more than a year went by before Sonny eventually got in touch with Mr. Niemi again.

[150] Mr. Niemi appeared to be reasonably well-versed in the criminal sub-culture. He claimed, of course, that he knew bikers and a variety of other criminals. He claimed he had killed before (though not any women). He claimed to have pushed someone off a cliff. He claimed to be involved in the trafficking of marijuana. He claimed to have a lengthy criminal record (though he conceded to Vito that he had no adult record at all). I suspect very little of Mr. Niemi’s criminal curriculum vitae was accurate. He knew enough to keep his mouth shut about the operations of the organization. He knew enough to be alert to and wary of police presence. He professed a willingness to do whatever it took to be a part of the fictitious criminal organization to which Sonny belonged. He demonstrated that willingness in practice whenever called upon.

[151] Bearing in mind Mr. Niemi’s personal circumstances as I have just described them, I turn to an examination of the four contextual factors outlined by Iacobucci J. in R. v. White.

(i) Coercion

[152] As far as Mr. Big operations go, my view is that this was an exemplary one. It is indeed an example of excellent police work. Reasonable people may differ about the pros and cons of police trickery of this nature. But if trickery is to be used, then this case is a model for it. I say this because, while there were clearly inducements present, there was a distinct absence of coercion.

[153] There was no violence used at any time by any member of the fictitious criminal organization. There was no clear suggestion that violence was a part of their organization in any way. There was no hint of the presence of rival organizations or danger, other than from police attention, in any of their activities.

[154] There were, arguably, subtle hints of violence dropped by Michael as he was trying to connect with Mr. Niemi. In an apparent effort to relate to what Mr. Niemi was going through, Michael told him he “had done the same thing before” and he had got away with it. Once he knew he had gotten away with it, there was a huge weight lifted off his shoulders. Despite very subtle hints that violent acts were not unheard of, there were no instances where Mr. Niemi was threatened either directly or by inference.

[155] Most of Mr. Niemi’s contact with the organization was with Sonny. There were aspects of inequality in the relationship. Sonny was a member of the organization and knew its structure and activities, whereas Mr. Niemi did not. Sonny made good money. Mr. Niemi did not. Sonny had a vehicle. Mr. Niemi did not. Nevertheless, the relationship dynamic appeared to me to remain relatively equal. Indeed, at one point during Act II of Operation Spurline, Sonny gave Mr. Niemi a lighter with the phrase 50/50 written on it, which was meant to describe the nature of their relationship going forward. Mr. Niemi was not overborne by Sonny. He did not blindly follow what Sonny told him. He was assertive in their conversations on many occasions. When Sonny pushed him on July 5, 2007 to come clean to Vito, he pushed back. In other words, he was not a pushover.

[156] Sonny generally did not talk about the homicide. This was by design. But Mr. Niemi raised it frequently. He voluntarily raised it as early as a week after he had first met Sonny. They spoke of it in some detail, at Mr. Niemi’s behest, in Wasaga Beach late in May 2007. Mr. Niemi raised it again on June 7 and 13 and July 5, 2007, amongst other times. He raised it so many times as to support the conclusion that he was pre-occupied with the murder and the police investigation of it.

[157] Although he made money with the organization, it was pretty modest. The total between the two phases of Operation Spurline was less than $3,000. He certainly was not dependent on Sonny or the organization for financial security. Nor was he dependent on the organization for social support or connections. Mr. Niemi had a substantially different character than the accused in R. v. Hart, as above. Green C.J.N.L. described Mr. Hart, in the context of the Mr. Big scenario in R. v. Hart, as follows:

If anyone who was not in detention was ever in the control of the state it was Mr. Hart. I agree with the submissions of the amicus that he was the type of individual who is "particularly susceptible to being influenced by Mr. Big scenarios" (factum, paragraph 83). He was socially isolated and poor, living on welfare and using a food bank. He had no bed or furniture. He placed significant value on the friendships he thought he was forming with the criminal organization that he believed was interested in him. He exchanged hugs with some of the officers and told them he loved them. He told one officer that his friendship was more important than all the money in the world and that he would do "anything" for him. He referred to them as "brothers".

Mr. Hart did not have the special hardihood or rich inner life that might allow him to choose to stay poor and lonely when the state offered him money and friendship. In fact, Mr. Hart was offered more than isolated friendships. He was offered a detailed illusion of community or, as Mr. Big described it in the final interview, "family". A complex network of false relationships was created, between Mr. Hart and his "friends", between his "friends" and their "girlfriends", between Mr. Hart and the "girlfriends", between his "friends" and Mr. Hart's wife, and between the "girlfriends" and Mr. Hart's wife. Even the most tenuous of these relationships was developed: the "girlfriends" took Mr. Hart's wife shopping, and the group planned vacations together: See the trial judge's decision on the voir dire at paras. 22-23.

Another significant aspect was the lavishness of the lifestyle to which Mr. Hart was exposed. The trial judge said, "Cost was not a factor in carrying out the operation" (voir dire Judgment, paragraph 22). Mr. Hart was taken to yacht clubs, casinos, and race-tracks. He was asked to count at least $330,000 in cash, and saw "diamonds" taken out of the handle of a briefcase. He was booked in hotel rooms across the country and was dined in the "best of restaurants" (voir dire Judgment, paragraph 23).

Friends, community, and a lavish lifestyle were not dangled briefly before Mr. Hart's nose, but were instead given an illusory permanence, so that Mr. Hart became accustomed to them. The operation lasted four months, from February-June, 2005. There were over sixty distinct interactions or "scenarios". Mr. Hart became so committed to the imaginary world the state had created for him that he would call his "friends" early in the morning hoping to see them; so committed that he planned to leave Newfoundland with his wife so that he could permanently join the imaginary world; so committed that, after he was arrested after the sting, he immediately attempted to call one of his police officer "friends".

[158] Contrast Mr. Niemi. While he was in receipt of welfare, it did not appear to be his only source of income. He was certainly not socially isolated. He had a group of friends. He did not socialize much with Sonny. They did not socialize at each other’s homes. Indeed Mr. Niemi never saw Sonny’s home. They did not socialize in any mixed groups of friends, other than the additional members of the organization that Mr. Niemi was introduced to. Sonny did not meet any of Mr. Niemi’s friends, including the woman with whom he lived (though he did meet Mr. Niemi’s sister).

[159] Sonny attempted, at times, to emphasize the closeness of his relationship with Mr. Niemi, regularly referring to them as “brothers” or “bros”. Mr. Niemi did not pick up on that kind of language, at least not until the very end of the second phase of Operation Spurline. If there were “high fives” or other manifestations of friendship, they were typically initiated by Sonny and not by Mr. Niemi. On occasion, Sonny would suggest that they hug, and he would be rebuffed. Mr. Niemi never, to my knowledge, called Sonny or invited him out to do anything socially. Indeed, as I mentioned, Mr. Niemi did not contact Sonny at all after the end of the first Mr. Big scenario. Had Sonny not called him in September 2008, one might expect that their paths would never have crossed again.

[160] The concept of the organization as family was played out to Mr. Niemi as the operation developed. He did not really pick up on it until November 25, 2008, near the very end of the operation. On that day he told Sonny that he had never been part of a family before. I never got the sense, however, listening carefully to the many hours of recorded conversations between Sonny and Mr. Niemi, that he ever really bought into the “family” sentiment. He seemed far more pragmatic. He appeared to me, at all times, to be in it for the money he could make, not because he was taken in by the prospect of ongoing relationships with Sonny and other members of the organization.

[161] Neither Mr. Big scenario ran long enough for Mr. Niemi and Sonny to create any real depth of friendship, despite Sonny’s suggestions to the contrary. On July 5, 2007, when Sonny was encouraging Mr. Niemi to speak to Vito and not to throw away “the chance of a lifetime” he told him, “Been rolling with each other too fuckin long for it to be done.” In reality, Sonny met Mr. Niemi for the first time on April 25, 2007. They had been “rolling” with one another for roughly two months. Not long. Their lives were not intertwined in any significant sense beyond the jobs they did together.

[162] The one time that the officers involved arguably “pressed the envelope” of coercion occurred on July 5, 2007. Mr. Niemi met with Vito. Vito placed some modest pressure on Mr. Niemi to admit to his involvement in the killing. He did so in two ways. First, he made it clear that Mr. Niemi could not become part of the organization unless the situation with the police was cleared up. Second, he told Mr. Niemi that he thought he was “full of shit” when he denied being involved in the homicide. But Mr. Niemi steadfastly maintained that he had no involvement in Ms. Watson’s death.

[163] Following the meeting with Vito, Sonny put substantial pressure on Mr. Niemi to go back to Vito and tell him more. He kept Mr. Niemi in his car for an hour, refusing to leave, pressuring him to tell Vito something. He then drove him to Orillia from Toronto, continuing his pressure along the way. Having said that, Mr. Niemi did not succumb to the pressure. He pushed back, repeatedly telling Sonny to get going. At one point he did suggest that he was getting so sick of the pressure that he thought about saying he did it just to get it over with. But he did not do so. Instead, he maintained that he had no involvement in Ms. Watson’s death, even though it meant he was cut loose from the organization. In my view, despite the intense pressure on this day, which was the high water mark for pressure, Mr. Niemi’s will was never overborne. At all times, he remained master and commander of his own destiny.

[164] Mr. Niemi’s counsel argued that a later scenario that unfolded on November 25, 2008 amounted essentially to detention. At the end of discussions that night, at the Grand Hotel in Toronto, Michael suggested that Mr. Niemi and Sonny stay overnight. Mr. Niemi expressed that he did not want to stay overnight, but his protestations were met with pressure from Sonny and aggression from Michael. He relented and stayed. But, that said, he had his own room. He had money in his pocket. He could have walked away at any time. No one was watching his room. Though he relented and stayed, he certainly did not cower from Michael’s aggression.

(ii) Adversarial relationship

[165] Clearly there was an adversarial relationship between the undercover officers and Mr. Niemi. It was not, of course, apparent to him at any point of the operation, until he stepped outside the hotel on December 5, 2008, and into the well-armed arms of awaiting tactical officers.

[166] In the circumstances of this case, the adversarial relationship is a neutral feature in my opinion.

(iii) Reliability

[167] In a moment I will examine carefully just how accurate Mr. Niemi’s confession was when compared to the known details of the case. For s. 7 purposes, however, the salient question is whether the circumstances of this operation created an environment where there existed the real possibility that Mr. Niemi would falsely confess.

[168] The risk of a false confession arose in this case not so much due to coercion, but because of the presence of inducements. Those inducements were compelling. First and foremost, the opportunity to get the police off his back was dangled before Mr. Niemi. Second, there was the obvious prospect to make good money. While Mr. Niemi received relatively small sums for his participation in a variety of jobs, he could see the success of others in the organization: nice cars, travel, hotels and security.

[169] There is cause for concern, of course, when certain comments made by Mr. Niemi are considered in isolation. On July 5, 2007, for instance, Mr. Niemi, following prolonged pressure from Sonny, blurted out, “You know I’m getting to the point where I am going to say, “fuck it” you know what I mean, fucking admit to it, fuck, I don’t care anymore, I’m tired of this shit, I’ll take the fucking rap if I have to, I don’t care anymore, I’m tired of this shit…”

[170] On a later occasion, after meeting Michael on December 1, 2008, Mr. Niemi remarked to Sonny that he’d hoped Michael would have come up with some details of the killing through his own investigation, so that he could just agree with those details and get on with things. This kind of language arguably indicates that Mr. Niemi was prepared to just say anything to get past the impediment to joining the organization.

[171] It is important to recall several other details however. At no time was Mr. Niemi ever encouraged to just admit to the killing even if he did not do it. In fact, he was told the opposite. After the poker game on November 19, 2008, Mr. Niemi and Sonny were talking about how anxious they were to get back into the organization. At one point, as I referenced above, Mr. Niemi said, “Well if I just tell them fuckin I did it, whatever, blah blah blah, I’d make him fuckin happy…”. Sonny made it clear that he ought not to just confess to something to make the boss happy. He said, “Well you don’t want to do that.”

[172] Later, on December 1, 2008, when Mr. Niemi was discussing the crime with Michael, and in particular his lack of a detailed recollection, Michael was adamant that he should not say he committed the crime just so he could get into the organization. He told Mr. Niemi not to be concerned about repercussions if he had lied about being involved. He offered him the opportunity to admit he lied and just walk away. Mr. Niemi maintained that he had been truthful when confessing to the crime.

[173] In an effort to ensure that Mr. Niemi maintained a meaningful freedom of choice, undercover officers always ensured he had money in his pocket whenever they were conducting operations outside of Orillia. In other words, he always had a way to exit and to get back home.

[174] Mr. Niemi evidenced that he was prepared to exercise that freedom of choice. He certainly did so on July 5, 2007. The monetary and other inducements were just as present in July 2007 as they were in December 2008 and the pressure to provide details about the crime was, in my view, significantly greater in July. But Mr. Niemi elected not to confess. He chose to maintain that he had no involvement in the murder. Just why he chose to act differently in late 2008 may never be known. But I am satisfied that, notwithstanding the presence of inducements, he maintained a meaningful freedom of choice at all times.

[175] I turn now to an examination of the actual reliability of the confession generated by the Mr. Big operation. Reliability is measured by comparing Mr. Niemi’s confession to the known facts of the case. As Rosenberg J.A. observed in Osmar, as reliability increases, so does probity. Having compared the particulars of the confession made December 4, 2008, in writing and repeated orally the next day, I come to the inescapable conclusion that it is devastatingly reliable and probative.

[176] The theory of the defence, on this application at least, is that Mr. Niemi did not tell Vito or Michael the details of the murder on July 5, 2007, and/or November 25, 2008, respectively, because he did not have the details. He had only information about the killing that was readily available in the media. He eventually asked Michael for more time to try to “remember” details, but what he was really doing was conducting research to try to uncover details.

[177] During cross-examination of the lead investigator, Detective Adele Gordon, defence counsel put to her a number of brief questionnaires put to local residents during a door-to-door canvassing conducted by police. One of the questions put to residents was what, if any, information they had that might assist the investigation. Rumours were numerous and varied and included that Ms. Watson had been raped and strangled, that she had died of an overdose, that she was badly beaten and mutilated, that she had her throat cut, that she was raped after she was killed, that she was found naked, that her breast had been cut off, that her head had been beaten in, that she had been gutted like a fish, that her stomach had been ripped out of her body, and that she’d swallowed cocaine. The defence suggestion is that Mr. Niemi was able to piece together from information in the public domain, what had happened to Ms. Watson and he was able to use that information to satisfy Michael’s appetite for details of the crime. He did so to ensure that he and Sonny gained re-entry to the organization and the riches it promised.

[178] I accept that the monetary inducement was strong in this case. The amount Mr. Niemi was actually paid was modest, although certainly not insignificant from his vantage point. But the prospect of future significant earnings was the real inducement, particularly when coupled with the promise that the spotlight of the OPP would move away from him and onto another individual. These inducements may very well be sufficient to compel an otherwise innocent person to falsely confess. Still, the confession generated by Mr. Niemi was spectacularly accurate. If he obtained his information from rumours on the street, he had an uncanny ability to discern truth from fiction. One wonders how it was, on a sea of rumours and speculation, that Mr. Niemi managed to safely navigate his way to a detailed and accurate depiction of the crime scene.

[179] Here is what he got right:

(i) Ms. Watson was wearing a grey sweater and pants the night she was killed. This is not compelling because of course he was admittedly with her that night;

(ii) He and Ms. Watson smoked a couple of joints that night. A post-mortem examination confirmed the presence of THC – the active ingredient in marijuana – in her blood. Again, this factor is not terribly compelling given that they admittedly spent time together that night;

(iii) Ms. Watson was left on her back on the right side of the trail (when facing back out the way they came in), with her feet pointed towards the exit of the trail. He was right on all counts;

(iv) Ms. Watson’s purse was beside her. Indeed it was found beside her feet;

(v) Ms. Watson was strangled with the strings of her blue purse. The pathologist, Dr. Rose, confirmed the cause of death was ligature strangulation. There was a blue purse located by her body. It had a double strap. The abrasions on Ms. Watson’s neck show a splitting on one side consistent with the double strap of the purse;

(vi) He knocked her over the head with a whisky bottle. At times he said he hit her on the back of the head. There was no evidence of an injury to the back of her head. In his written confession he said he hit her in the head from behind. Dr. Rose confirmed that Ms. Watson had significant contusions on the right side of her face, consistent with having been struck with a blunt object, such as a bottle;

(vii) After he strangled her he cut her sweater down at the V-neck. Her sweater had, indeed, been cut down the V-neck;

(viii) He cut her throat, left breast and stomach after he killed her. Dr. Rose confirmed the presence of those cuts and that they had been made post-mortem;

(ix) The cut under her left breast was crescent-shaped. He drew an accurate sketch of it. Crime scene and autopsy photographs confirm the shape of the cut and that it was under her left breast;

(x) The cuts were deep enough to see fat cells. Post-mortem photographs confirm that fat cells could be seen in the cuts;

(xi) He took off her sweater and pants and just put the sweater back on her and laid her pants on top of her legs. This was a bizarre feature and he was accurate;

(xii) He said he pulled her body off to the side of the trail. Her body showed signs of having been dragged. Debris was located in the cuts to her body consistent with the material found on the trail;

(xiii) He said the knife used to cut her body did not have a serrated blade. Dr. Rose confirmed that the cuts to Ms. Watson’s body did not reveal any evidence of a serrated blade, though she admitted that serrated blades sometimes do not make cut marks that demonstrate serration; and,

(xiv) He correctly confirmed that he did not do certain things to Ms. Watson, like shoot her, stab her or kick in her teeth.

[180] Defence counsel pointed to features of the confession that he asserted were inconsistent with the extrinsic evidence. For instance:

(i) When he first confessed to Michael, Mr. Niemi did not describe cutting Ms. Watson at all. He mentioned strangulation but said he left her body in the middle of the trail and that was it. His details were consistent with what had been reported in the paper. While these observations are true, they do not, in my view, take away from the accuracy of the confession given on December 4 and 5, 2008. Moreover, Mr. Niemi expressed a number of times that he was ashamed of killing a woman. A particularly shameful aspect of the killing was the mutilation of the body, which may explain Mr. Niemi’s reticence to provide those details;

(ii) There is no evidence that Ms. Watson was struck on the back of the head. Again, this is an accurate observation. But by no means does it represent a clear inconsistency in Mr. Niemi’s version of events. As he explained in his written notes of December 4, 2008, he struck Ms. Watson from behind with a whisky bottle. It is certainly conceivable that someone swinging a bottle from behind Ms. Watson might actually strike her on the side of her face, rather than the back of her head. The injuries to the right side of her face are consistent with such a blow;

(iii) Mr. Niemi said he tried to break Ms. Watson’s neck, but there was no evidence of spinal injuries. He never, of course, claimed to have been successful in breaking her neck. I have no evidence of what injuries one might expect to see with an attempted neck breaking;

(iv) From his first admission to Michael on November 25, 2008, through to the final details given on December 5, 2008, Mr. Niemi consistently maintained that he choked Ms. Watson into unconsciousness by wrapping his right arm around her neck. Defence counsel argued that the injuries to Ms. Watson’s face were not consistent with such a manoeuvre. That may or may not be. There were injuries to the inside of Ms. Watson’s lips that are not entirely explained, as well as injuries to the knuckles of one of her hands that are consistent with a fight and are also unexplained. These unexplained injuries do not exclude the possibility that Mr. Niemi choked Ms. Watson as described. They simply remain unexplained;

(v) Mr. Niemi said that he took Ms. Watson’s pants off before he dragged her into the woods. That does appear to be wrong, because her pants were covered in the type of debris found on the trail and her lower body did not show any signs of dragging similar to what appeared on her upper body.

[181] Mr. Niemi’s description of the crime was evidently not perfect. But witnesses rarely ever demonstrate perfect recollection. In my view, the inconsistencies in his recollection are minor. His description remains overwhelmingly accurate when compared to known facts and, as such, is highly reliable.

(iv) Abuse of power

[182] The circumstances of this case do not support an assertion that the investigating officers and/or undercover officers abused their positions of power or authority. Mr. Niemi’s counsel urged the Court to consider the unique feature of this Mr. Big operation: that it was run twice. Recall that at the end of the first phase, Mr. Niemi maintained that he had nothing to do with Ms. Watson’s death despite substantial pressure being exerted upon him by Sonny. A year later, with apparently no new evidence implicating Mr. Niemi in the crime, the police elected to run Mr. Big again. Defence counsel submitted that the real reason the police thought a second run at Mr. Big might be successful was because Mr. Niemi’s financial circumstances had changed for the worse since July 2007. Brady had died and his babysitting income had disappeared. Being more vulnerable financially would make Mr. Niemi more vulnerable to the monetary inducements offered by the fictitious criminal organization. Part two of the Mr. Big operation reflected, in Defence counsel’s view, exploitation by the police of a weak and vulnerable member of society in a fashion that was abusive.

[183] Even if I accept, for the sake of the argument, that Mr. Niemi was more financially vulnerable in September 2008 than he was in July 2007, I do not conclude that the police acted in an abusive fashion. In Hart, Chief Justice Green addressed the abusive nature of the Mr. Big operation in the circumstances of that case as follows:

In Mr. Hart's case, the abuse of power is that the state employed considerable resources to gain control over a weak and vulnerable person by a dishonest trick and then used that power to place him in a situation where it was, given his expectations and needs, the only logical thing to do but to say what he believed Mr. Big wanted him to say as a condition of remaining in the organization, namely to "confess" to the murders. This case is unlike Osmar or McIntyre where the police tricked a person who was still independent and had a meaningful choice not to confess. The trickery becomes abusive when the state takes control over the accused, as in Mr. Hart's case, by creating a false world of imaginary friends and a lifestyle that he desperately wanted but could not maintain without continuing to be associated with them, and then uses the product of that trickery in a manner that effectively requires him to testify in his own defence in circumstances where his credibility is already destroyed through the creation of adverse propensity evidence that is inherent in the technique that was employed. (para. 230).

[184] As I have reviewed above, this is not a case like Hart. The police never had the same measure of control over Mr. Niemi that they had over Mr. Hart. They did not infiltrate his life, to the extent they did with Mr. Hart. Mr. Niemi still had a meaningful choice not to confess. Even though he may have been poor, he was still living independently. In the second round of Operation Spurline, he was paid less than $400. It could not be said that he had become dependent on the organization in any way.

[185] I return to my observation that there is nothing inherently improper about a Mr. Big operation per se: R v. McIntyre, as above. A finding of abuse of power, on the facts of the case at bar, would be, in my opinion, tantamount to finding that Mr. Big operations are, per se, abusive.

[186] Having considered the facts, circumstances and particulars of Operation Spurline in considerable detail, I conclude that Mr. Niemi was never in the control of the police to such an extent that one could say he was subjected to the functional equivalence of detention. The involvement of the police in his life fell far short of the level of engagement the police had with Mr. Hart. This is not a case where s. 7 of the Charter is engaged. I move on to consider the common law arguments for exclusion.

Abuse of Process

[187] The common law test for abuse of process, as I set out above, is whether the conduct of the police – the trickery they utilized in this case – would shock the conscience of the community. This principle is concerned with protecting the integrity of the criminal justice system and the maintenance of public respect for it.

[188] Operation Spurline was a comparatively mild form of the Mr. Big operation. Though it ran in two stages, neither stage carried on much longer than two months. Money was paid to Mr. Niemi for his participation in criminal activities, but not substantial sums. The total paid to him over both parts of the operation amounted to less than $3,000. No violence was used, nor even alluded to except perhaps in very mild and indirect ways. This is distinguishable from a case like R. v. Bonisteel, as above, where the threat of violence to keep members of the organization in line was very apparent.

[189] The facts in this case are less compelling than those in Bonisteel, and no worse than those in R. v. McIntyre and R. v. Osmar, both cited above. In all three of those cases, the Court held that the conduct of the police was not likely to shock the conscience of the community. Indeed, in the case at bar, I suspect just the opposite is true. If apprised of all of the facts and circumstances of the case, I suspect the general consensus in the public would be that this was an example of excellent policing.

Prejudice vs. Probative Value

[190] Justice Rosenberg ruled on the assessment of prejudice in Osmar as follows:

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… (para. 49).

[191] There were certainly inducements present in Mr. Niemi’s circumstances. But it cannot be said that they produced an unreliable confession inconsistent with the known facts. Indeed, the confession was highly consistent with known facts. The probative value of the confession is high. Whether the confession, when considered with the other evidence, or lack thereof, is sufficient to establish the guilt of the accused beyond a reasonable doubt, is an issue for the jury to determine. Whether the inducements offered to Mr. Niemi were sufficient to produce a false confession is also a question for the jury to resolve, as is the defence theory that there was sufficient information circulating in the community to furnish Mr. Niemi with accurate details about the crime.

[192] I agree with the submission of the accused that there is a great deal of bad character evidence contained in the narrative of the Mr. Big operation. I do not believe its presence will, however, render the trial unfair. As Rosenberg J.A. noted in Osmar, with a proper and broad jury instruction, “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.” (para. 51).

[193] There are parts of the transcripts of discussions between Sonny and Mr. Niemi that ought very well to be redacted. If counsel are unable to agree on any appropriate editing of recordings to be played for the jury, they may seek the Court’s direction. Beyond such editing, the prejudicial effect of discreditable conduct evidence can be fairly managed by a proper instruction to the jury about the dangers inherent in such evidence and its very limited use.

[194] In the result, I find no basis on which to exclude the evidence generated by Operation Spurline.

II. The Garofoli Application

[195] The Garofoli application focussed on the second of the two intercept operations. The defence argument is that the OPP failed to make full and frank disclosure of all of the weaknesses of the case against Mr. Niemi and failed to highlight the fact that they had very little reason to reasonably believe that Mr. Niemi would self-incriminate during the second operation, given his steadfast refusal to do so in the first operation.

[196] There can be little doubt that what the police were after, in the course of Act II of Operation Spurline, was self-incrimination. Mr. Niemi argues that, with respect to the second authorization, the suspicions of the police were never replaced by a credibly-based probability that the use of the second Mr. Big operation was likely to lead to a confession and that intercepted communications would likely furnish evidence of the confession. In other words, the Hunter v. Southam standard for s. 8 Charter compliance was not met.

[197] As Justice Fish held in R. v. Morelli, as above:

Under the Charter, before a search can be conducted, the police must provide "reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search" (Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 168). These distinct and cumulative requirements together form part of the "minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure" (p. 168).

In reviewing the sufficiency of a warrant application, however, "the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have [page272] issued" (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54 (emphasis in original)). The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place.

[198] There is no question that there was credible and reliable evidence that a crime had been committed. The accused concedes that, in relation to the first authorization, there was credible and reliable evidence to find reasonable and probable grounds to believe that evidence of the offence would be found through the use of the authorized intercepts. He makes no such concession in relation to the second authorization. He argues, instead, that the credible and reliable evidence, on which the police relied to obtain the first authorization, was the same for the second application for an authorization in the fall of 2008. In other words, no new information implicating Mr. Niemi had surfaced.

[199] At the end of Act I of the operation, on July 5, 2007, Mr. Niemi made several unusual comments, which I have referenced above. In summary, he suggested to Sonny that perhaps he had committed the murder of Ms. Watson, but that he had just blocked it out of his memory. He wondered, aloud, whether hypnosis ought to be arranged. This comment from Mr. Niemi was of some obvious significance to investigators, but still, they terminated the Mr. Big operation and did not restart it for more than a year.

[200] The basis for re-starting the operation in the fall of 2008 – the basis for believing that the operation might prove successful this time around – is set out at paragraph 13 of the ITO. Mr. Niemi’s babysitting job for Cathy Graham had come to an end because her son died. The ITO states as follows:

Due to the change in Niemi’s circumstances with Graham, investigators now believe he may be experiencing increased financial hardship and therefore interested in another opportunity to join the “criminal organization” the undercover police investigation represents. Investigators intend on capitalizing on this situation by enticing Niemi to agree to a polygraph examination, arranged by the “criminal organization”, in order to establish his innocence in the Watson homicide and, therefore, qualify to join him in the lucrative criminal activity being presented.

[201] The foregoing passage does little to support a reasonable basis to believe that evidence of the crime might be furnished by the second running of Mr. Big and by the interception of communications in the course of it. The police essentially theorized that Mr. Niemi might confess to the crime because he was more desperate financially and therefore more susceptible to inducements.

[202] Mr. Niemi’s counsel went on to argue that, not only was the reasonable and probable grounds standard not met on the evidence contained in the ITO, but the ITO was otherwise deficient. Had it contained fulsome information about the real state of the investigation, the reviewing justice could never, in counsel’s submission, have granted the authorization.

[203] The shortcomings in the ITO, as submitted by Defence counsel, include:

(i) There are two very significant suspects in the killing apart from Mr. Niemi. The first, Skylar Fraser, was a boyfriend of Ms. Watson’s and the father of one of her two children. Another suspect was Steven Ellis. Mr. Ellis was a friend of Ms. Watson’s. Police received information from a confidential informant that, while in custody on an unrelated matter, Mr. Ellis claimed that he and another person took Ms. Watson “into a field, fucked her, strangled her, then gutted her.” Mr. Ellis apparently asked his girlfriend to provide him with an alibi for the night Ms. Watson was murdered. Defence counsel submitted that sufficient details of these two suspects were not provided in the ITO;

(ii) A DNA sample was collected from under a fingernail of Ms. Watson, post-mortem. It was a male sample, but Mr. Niemi was excluded as a match. Defence counsel submitted that this important information was buried at para. 108 of the ITO and may not have been readily apparent to the reviewing justice. In addition, a male DNA sample was found on Ms. Watson’s watchband. Mr. Niemi was also excluded as a match to that sample. It appeared, however, to match the sample under Ms. Watson’s fingernail. Nothing was said about the wristband sample in the ITO;

(iii) Jennifer Ladouceur is a significant witness. She advised the police that she saw Ms. Watson sitting on a bench near the bike trail by a skateboard park at about 11:30 p.m. on August 18, 2006. She was sure it was Ms. Watson. She was sitting with a male on the bench, whom she described as scruffy, with long, shoulder length hair pulled back into a ponytail and a moustache. This description generally matches Mr. Niemi. When she was asked if she could identify the male, she could not do so. She gave two videotaped statements to police. In the first, made August 28, 2006, she was asked by the investigator whether she knew Roy Niemi. She said she did. She was asked specifically if the male on the bench might have been Mr. Niemi. She said it may have been. But during her second interview with the police, taken November 21, 2007, she said she could not remember what the male looked like, though she was confident she had never seen him before, and she did not know who Roy Niemi was. In other words, this evidence placing Mr. Niemi with Ms. Watson at 11:30 on August 18, 2006 is weak.

[204] In R. v. Morelli, as above, Justice Fish spoke to the level of detail that an ITO must provide. It need not be perfect, but:

When seeking an ex parte authorization such as a search warrant, a police officer -- indeed, any informant -- must be particularly careful not to "pick and choose" among the relevant facts in order to achieve the desired outcome. The informant's obligation is to present all material facts, favourable or not. Concision, a laudable objective, may be achieved by omitting irrelevant or insignificant details, but not by material non-disclosure. This means that an attesting officer must avoid incomplete recitations of known facts, taking care not to invite an inference that would not be drawn or a conclusion that would not be reached if the omitted facts were disclosed.

[205] I am not persuaded that the affiant of the ITO failed in his obligation to be fair, frank and full in relation to the features I set out above. There was sufficient information in the ITO to make it clear that there were viable suspects apart from Mr. Niemi. Indeed, the affiant expressed candidly that there was a lack of consensus among investigators as to what, if any role, Mr. Niemi had to play in Ms. Watson’s death. The ITO was clear that investigations into other suspects were continuing. The basis for suspicion in relation to each of Mr. Fraser and Mr. Ellis were set out, as were details of other potential suspects. Mr. Niemi was by no means the only, or even the most compelling suspect.

[206] While it is true that the evidence about the DNA sample was set out late in the ITO, it is not simply a passing reference buried in an unrelated paragraph. The status of the investigation into the DNA sample from under the fingernail was set out over an entire page. When I reviewed the ITO it was a feature that stuck out and was particularly interesting. Its location in the ITO did nothing to undermine its importance, in my opinion. I agree that the ITO fails to mention the DNA on the watchband, but I am not certain how much such a reference would add. It is likely from the same male as the sample obtained from under the fingernail and it does not match Mr. Niemi. The significant point about another male’s DNA on Ms. Watson’s body was made. The presence of the same male’s DNA in two locations on her body is only marginally more compelling.

[207] The evidence regarding Ms. Ladouceur’s changing statement was also presented fairly in the affidavit in my view. The fact that the affiant did not point out that Ms. Ladouceur only mentioned the possibility of the male on the bench being Mr. Niemi after that was put to her by the investigator is not particularly significant in my mind, for two reasons. First, when speaking to the officer, she noted that the prospect of the male being Roy Niemi was something that she had thought about even before it was brought up by the investigator. Second, her identification evidence was clearly weak to begin with. Her subsequent videotaped interview significantly undermined it even further. These facts were clearly pointed out by the affiant.

[208] More significant, in my opinion, is the way that the affiant described the events of July 5, 2007. The description of the interactions between Sonny and Mr. Niemi after the meeting with Vito ended on that day is contained in a single paragraph. While the affiant does confirm that Sonny and Mr. Niemi remained parked outside the Royal York Hotel for a period of about one hour, he fails to provide an adequate description of the extent to which Mr. Niemi was pressured to go back to speak to Vito again. This omission is significant. Listening to the recorded conversations held between Sonny and Mr. Niemi on July 5, 2007, brought home, in a palpable way, just what kind of immense pressure Mr. Niemi was under. He begged Sonny to leave more than ten times. He eventually threw up on the ride to Orillia. Yet he continued to maintain that he had no involvement in the death of Ms. Watson.

[209] The affiant expressed that there was reason to believe the second Mr. Big play would work because of Mr. Niemi’s increased financial vulnerability. But there were very few details set out about what Mr. Niemi’s true financial circumstances were. He had lost some babysitting revenue, but how much is entirely unclear. How his lifestyle had really changed was also not clear. The police expected that they might be able to convince Mr. Niemi to take a polygraph, but that operational plan did not make it more likely that Mr. Niemi would self-incriminate in the second operation.

[210] In view of Mr. Niemi’s steadfast refusal to admit culpability in the face of the immense pressure exerted on July 5, 2007, the fact that he might be a little worse off financially by September 2008 provided weak support for the assertion that there was a credibly-based probability that he would self-incriminate if the operation was run again.

[211] From my vantage point, having had the opportunity to review the evidence of Operation Spurline in detail over almost three weeks, I would not have granted the second authorization in October 2008. But of course, that is not the test. It is not about whether I, on an amplified record, would have granted the authorization. It is about whether the issuing justice, on a full and frank record, could have authorized it.

[212] I find that, by the slimmest of margins, he could have. My conclusion is based on the following factors:

(i) There were reasons to be suspicious of Mr. Niemi. He may very well have been the last known person to be seen with Ms. Watson. There is debate about whether he ever admitted that he was the last person to see her alive, but certainly he arguably was. Moreover, the route he said that he and Ms. Watson walked on August 18, 2006, proved inaccurate because he was not seen on a surveillance recording that would have shown him had he proceeded on the route he described;

(ii) At the end of the day on July 5, 2007, Mr. Niemi did comment that perhaps he had killed Ms. Watson but simply could no longer remember it. In the context of the discussions on July 5, 2007 – at the end of a long period of persistent pressure – it might readily be argued that Mr. Niemi was just “throwing that out there” to get the pressure to end. Perhaps that is true. But it is a strange thing to say. He said it when he was not far from home. He had sustained great pressure to that point and it was almost over. In addition, he suggested that Vito arrange for a hypnotist, which may ultimately have prolonged not only the discussion, but also the process of discussions about his involvement in the killing; and,

(iii) The change in financial circumstances, while not compelling to me, is something that I accept reasonable people could reasonably differ about.

[213] In the result, the challenge to the s. 184.2 authorization fails.

CONCLUSION:

[214] For the foregoing reasons, the application of the accused is dismissed. Before signing off I wish to point out, for the record, that this was a long and difficult application. Counsel exemplified throughout the application the very best that the profession has to offer: efficiency, preparedness, co-operation, lively intellect, good humour, and persuasive advocacy. I consider myself fortunate to have had the benefit of their experience and assistance with this matter and cannot overstate my appreciation for their efforts.

Boswell J.

Released: November 13, 2012