COURT FILE NO.: 12881/11

DATE: 2014-06-27

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ALAN SMITH

Defendant

P. Murray & F. Stephens, for the Crown

J. McLean & A. Craig, for the Defendant

HEARD: Jan.13-17,20-24,28-31 Feb. 3-7,10-14,18-21 March 10-14,17-21,24- 28,31 April 1-4,7-11,14-17, 22-25,28-30, May 1 &2, 5, 7-9, 12-16, 20-21, 26-28, June 9-11, 13, 16/2014

Justice B. Glass

DEFENCE APPLICATION TO STAY PROCEEDING OR EXCLUDE ALL EVIDENCE DERIVED FROM A MR. BIG UNDERCOVER INVESTIGATION

[1] On December 9, 1974, Beverly Smith was shot in the back of her head in her home. The investigation which led to this trial is an undercover investigation in 2009.

[2] The undercover officers are identified by initials here because there was an order at the commencement of the proceedings to ban publication of their names in light of the undercover work they do. Officer safety was an issue.

[3] There had been several investigations over the years without success at leading to any prosecution. In 2008, the Defendant was charged and held in custody before the charge was withdrawn. The current investigation commenced in 2009 as an undercover investigation.

[4] By the time the investigation concluded and the Defendant was charged with first degree murder in December 2009, the Defendant is alleged to have confessed to killing Beverly Smith.

[5] At the core of the application here is the submission that the investigating police services exceeded any threshold acceptable to our society to get a confession from Alan Smith. The Defence claims that the police conduct amounts to an abuse of process and an infraction of Mr. Smith’s right to silence pursuant to section 7 of the Charter.

[6] The Crown disagrees with the Defence pointing out that the undercover officers in this investigation were not known by the Defendant to be police officers or persons in authority. They were people breaking the law.

Issues

[7] Is this a Mr. Big investigation or an undercover investigation?

[8] What are the boundaries for police investigators with Mr. Big or undercover police investigations?

[9] Is the statement from Alan Smith reliable?

[10] Is the statement of Alan Smith voluntary?

[11] Was coercion applied to Mr. Smith to obtain his statement?

[12] Was there an adversarial relationship involved in this investigation?

[13] Does the confessions rule apply to Alan Smith?

[14] Is there an abuse of process to the police investigation?

[15] Is there a breach of section 7 of the Charter of Rights and Freedoms with respect to Alan Smith’s right to silence when speaking with persons whom he does not know to be police officers?

Background

[16] This undercover police investigation commenced in January 2009 and concluded in December 2009.

[17] The undercover officer, SR, located in the community in which the Applicant lived and made contact after a bogus contest was conducted in which the Applicant was a winner for an ice-fishing weekend. This contact commenced in February 2009.

[18] SR lived in an apartment and proceeded to have a regular contact with Mr. Smith. Fishing was a common bond.

[19] The Applicant mentioned that he had spent time in jail for several months when he was charged with murder. He maintained that he was innocent.

[20] SR would raise the topic of the criminal accusation from time to time and the Applicant would talk about how annoyed he was at having been kept in jail for an offence he did not commit. Over time, the Applicant said that he wanted to sue the Durham Regional Police but had not been able to find a lawyer who would do so on a pro bono basis. He had spent several thousand dollars with the criminal court proceeding.

[21] For about five months, SR would pick up the Applicant and take him with him while he did purportedly unlawful drug and gun trafficking transactions. Mr. Smith was paid modest sums of money for attending with SR.

[22] Arrangements were made by the police to engage SR along with Mr. Smith in a drug deal with another undercover officer, SH, who was portrayed as a person further up the pecking order of drug dealing activity. This took place in April 2009.

[23] SH was introduced to the Defendant in April 2009 as a friend of SR. SH in time became more of a directing person. The operational plans for Durham Regional Police referred to the other officer as Mr. Big. At times, this officer was referred to as a crime boss.

[24] During cross-examination of SR and SH as well as the handler for the undercover officer, Daniel Denyer, the officers did not think of this investigation as a Mr. Big investigation but rather as an undercover investigation. They distinguished Mr. Big investigations as ones in which a person is trying to become a part of a criminal organization and confesses to significant criminal activity in order to become a member. Here, there was no attempt to have Mr. Smith become a member of a criminal organization. Rather, because Mr. Smith apparently had information about SH, then SH wanted some information on Mr. Smith as security from Mr. Smith ratting out SH.

[25] The information that Alan Smith had about SH was that SH had murdered someone after SR and Alan Smith stole drugs back from a drug dealer. SH had sold the drugs, got his sale money and then arranged for the two to rip off the dealer. When SH met with the drug dealer after the rip off, he had killed that person and then requested SR and Alan Smith to dispose of the corpse. The body was wrapped in a tarpaulin. The disposers got rid of it.

[26] A meeting was arranged between SH and the other two. At that meeting, SH wanted some information about each of SR and Alan Smith so that they could not tell the police about SH killing the drug dealer. Both men revealed a story of criminal activity. Alan Smith said he had been present at a murder many years previously in which another person killed a woman and he got the drugs. This meeting was held in early July 8, 2009.

[27] As time progressed, the police thought that Mr. Smith had not told them the truth. They continued the undercover investigation primarily with SR in contact with Mr. Smith. From time to time, there was contact with SH. They received payments from SH.

[28] As the fall progressed in 2009, SR and Alan Smith dug up the boots of SH which had blood on them. The blood had been sheep’s blood. These had been buried when they disposed of the corpse. Alan Smith told SR that he had lied about the murder he had witnessed. He had wanted to get out of the cottage when SH wanted him to tell him some dirt out of his past. Mr. Smith told SH and SR that he had been scared shitless at that time. Alan Smith was becoming annoyed with SH and wanted to be paid some money for the work he and SR had done when they got rid of the corpse. At one time, SH had failed to show up for a meeting at which he was to pay them some money. Mr. Smith told off SH on the phone.

[29] Then, the three got together in early November 2009 and again SH explained how he was out on a limb without any security for the criminal activity information the other two knew about him. Smith told him that he had lied about the other person killing a woman over thirty years previously. He simply said he just made up the story to get out of the cottage where they had met in early July.

[30] Then, Alan Smith without prompting said that he did the killing himself. He had shot the woman, Beverly Smith, with a 22 calibre gun. She did not know he was going to shoot her. She went to get a formula bottle for her baby when he shot her in the back of the head. He had been admitted to the house because she knew him as a neighbour. Later, Mr. Smith told SR that Beverly Smith knew that he had been involved in an affair with a friend of her sister. He was concerned that she would tell her sister. He killed her and he took 40 pounds of marihuana from the house. Beverly Smith’s husband was at work. The husband sold drugs as well as worked in Oshawa.

[31] The investigators continued contact with Alan Smith over the next month continuing to explore the story last given. Alan told SR that he had told the story about the other man as the killer to get even with him because of some actions by that man, David Maunder.

[32] The investigation was concluded on December 10, 2009 when Alan Smith was arrested with SR.

Is SH a Mr. Big?

[33] The police testified that they did not consider this to be a Mr. Big investigation, but rather an undercover investigation. At times, the term Mr. Big and Crime Boss were used by the officers in the operational plans and in their notes as well as in transcripts of audio-recorded evidence of SR along with others. Retired Detective Constable Denyer explained that he did not think that SH was a Mr. Big but he just used that as a term in his notes. In other words, the officers were casual in using a general term.

[34] On the other hand, the Defence drew out answers from police witnesses in which the officers had specifically used the terms Mr. Big and Crime Boss in what could be interpreted as definite and not simply general terms.

[35] Ms. Craig and Ms. McLean emphasize in effect that a rose by any other name still smells like a rose. The investigation was realistically running a Mr. Big operation and after the fact the investigators want to narrow the implications so that they are not caught up in other court decisions that held that the police went over the top of acceptance by the community for fair play with a person.

[36] The answer to this question should remain unanswered until later in these reasons.

[37] On July 7, 2009, there was a recorded exchange between SH and SR in which they talked about Alan Smith being afraid of SH having expressed a concern that SH was likely to attend the cottage on Pigeon Lake on July 8th and blow them away, i.e. SR and Mr. Smith, away. At one point, SR is recorded saying that the police were not Kreskin’s children Your Honour. Ms. Craig and Ms. McLean suggest that the officers were intending to mislead a judge or court. Defence counsel maintain that this was a meeting that was never to be heard in court, but rather was to be a secret briefing meeting designed to cook up a way to get a confession out of Mr. Smith. The officers described this as a briefing meeting and that such meetings customarily were not recorded or outlined in writing. At the preliminary inquiry, the officers testified without an awareness that this information was recorded. They did not have any transcript of these words. In effect, the officers either did not remember the meeting and testified as they did at the preliminary inquiry, or they remembered the meeting and they downplayed the fear of Mr. Smith.

[38] I might point out that the Defence has drawn out extensively the point that this police investigation is limited by tunnel vision whereby the investigators discarded other potential perpetrators and only went after Alan Smith. This blind approach leads to overlooking evidence of significance.

[39] On the other side of the coin, Mr. Murray and Mr. Stephens for the Crown disagrees that the investigators focused only on Alan Smith. Over the decades, the police have investigated many potential perpetrators of the murder and have found that the evidence is not there to support the thesis that those persons or one of them are or is the killers or the killer.

[40] Later, this July 7, 2009 exchange that turned out to be recorded was disclosed to the Defence and was then explained by SH and SR at this application. SR and SH acknowledged at this application that Mr. Smith did have a fear of SH and that they explored ways to allay that fear. Many answers given by SH were to the effect that he was not lying or misleading the court at the preliminary inquiry but rather that “in his mind” at the time of his testimony at the preliminary inquiry he thought he was being complete and truthful. The revelation of the audio recording after the preliminary inquiry refreshed his memory and he talked about how he and SR discussed ways to ease any apprehension expressed by Mr. Smith.

[41] There might be a thought that one does not need to be concerned about whether the investigation was a Mr. Big or just another undercover investigation. Rather, a Mr. Big investigation is an undercover police task in any event.

[42] A Mr. Big investigation traditionally involves introducing a major crime figure to the Defendant and getting that person to fess up to a significant criminal act so that he or she might become a part of the criminal organization. In so many words, the Defendant wants to spill the beans to Mr. Big so that he or she can become a part of Mr. Big’s group.

[43] With Mr. Smith, he was pressed to reveal a criminal history in order to provide security to SH so that he could not tell the authorities about SH in the future as a killer. He assisted SR to dispose of an apparent corpse of a person SH had murdered. The undercover officer was SR who thought that Mr. Smith was holding back on a criminal secret. He had to be pushed to disclose. That led to a bogus drug deal with SR and Mr. Smith stealing back SH’s drugs and then SH killing the drug dealer who was ripped off.

[44] Detective Sergeant Lynch testified that as the lead investigator he was reluctant to engage the Defendant in the body dump scenario. He wondered whether or not they were pushing the envelope too far. There was some discussion with Crown counsel as well before deciding to advance the investigation to this level.

[45] On July 8, 2009 when the three men met at a cottage apparently owned by SH, SH told the other two that they knew important information about his criminal actions and that he wanted some security from each of them so that he could rat them out if they did the same to him in the future. At the meeting, Mr. Smith told SH that he had seen a woman killed and that he got drugs from her house. The killer had moved from Ontario to another part of the country. The name of the killer was David Maunder.

[46] SR did not think that Mr. Smith was providing a completely truthful revelation. The investigation had to continue to determine whether or not he was lying and to determine whether David Maunder was either the killer or a person involved in the homicide of Beverly Smith. The investigation of David Maunder took the police to Calgary where he lived. The police concluded that Mr. Maunder was not the killer. A fake private investigator was introduced to the mix as if SH had engaged a private investigator to explore the death of Beverly Smith. This was discovered when SR appeared to snoop in the briefcase of SH and found the papers about the private investigator. This revelation bothered Mr. Smith considerably.

[47] The investigation continued leading to a decision that SH, SR and Mr. Smith would meet again in early November 2009. During the months from July 8th SR had continued to sell drugs and firearms after which he paid Mr. Smith modest sums of money for assisting him. The two men talked about deserving more compensation for their role in disposing of the corpse of the dead drug dealer from July.

[48] During the latter part of October, SH was to meet SR and Mr. Smith so that he could pay them. As they had progressed towards this meeting, SR and Mr. Smith talked about retrieving SH’s boots with blood on them and holding them over SH’s head for more money. On one occasion, SH called to say he could not attend the meeting arranged and Mr. Smith lost his patience and told off SH on the phone. The cancellation of this meeting was planned by the investigators so that some added pressure would be experienced by Mr. Smith.

[49] The decision was to have the three men meet and to try to get more of a confession from Mr. Smith about the homicide of Beverly Smith. When Mr. Smith and SR talked before November 9th, Mr. Smith referred to the meeting in July and that he had been afraid that SH was coming to the cottage to blow them away and that he just made up a story about the murder of Beverly Smith so that he could get away from the cottage. SH was made aware of this by SR without Mr. Smith knowing this disclosure. As the November meeting approached, Mr. Smith told SR that again he had made up the story of the murder in July and that he was intending to tell that to SH when they met. He was still desirous of being compensated for the disposal of the corpse in July.

[50] When the three men met on November 9th, Mr. Smith told SH that he had made up the murder story in July. SH asked where that disclosure from the Defendant left him. Then, without apparent prompting, Alan Smith told SH and SR that he had killed Beverly Smith alone, had shot her in the back of the head, used a 22 calibre firearm to do so and stole 40 pounds of marihuana from her residence. The drugs were in the house because the husband of Beverly Smith sold drugs on the side and he was at work the night of the murder. On November 12th, an additional aspect of the murder was that Alan Smith had an affair with a friend of Beverly Smith’s sister, that Beverly knew of this affair, and that Beverly was intending to disclose this information to her sister.

[51] The drugs were upstairs. Detective Sergeant Lynch testified that he now understands that the location of the drugs, i.e. upstairs, was in the disclosure package that Alan Smith received when he was first charged with second degree murder in 2008. Had this been information that had not been disclosed previously, it might be very significant to this investigation when considering the authenticity of the confession of Mr. Smith.

[52] The police continued to explore this latest confession to double check its authenticity.

[53] Finally, the investigation was closed on December 10, 2009 when SR and Mr. Smith were arrested.

[54] One might question whether the police investigation was too extreme. Had the police pushed a civilian to say words that amounted to a confession to murdering a woman with a baby in her residence when he was anxious to leave a country cottage as an apparent killer was pushing the envelope for some dirt on him?

[55] Did this police technique succeed after overwhelming Mr. Smith with many meetings? With such continuous police encounters, was Mr. Smith in effect detained by the police? Was there an adversarial atmosphere facing Mr. Smith taking into account that he had already been down the criminal justice road of homicide allegations in 2008? Did the body dump scenario amount to coercing a confession from Alan Smith?

[56] On the other hand, one might conclude that the police are entitled to engage tricks to work on a major crime, in this case a cold case. If the police tactics are not excessive, the evidence gathered should be admissible.

What Is The Extent That Police Can Go To Get Evidence From A Person With Respect To Alleged Criminal Activity?

[57] The first Mr. Big investigation recorded in Canada took place in 1901 in The King v. Todd in Manitoba[^1], [1901] M.J. No. 1. The courts in Canada have approved police trickery to achieve successful investigations of major crimes.

[58] The King v. Todd decision dealt with a murder charge in which the police used two people in an undercover capacity offering the Defendant an opportunity to become part of their criminal organization. As a measure of good faith, Mr. Todd confessed to murder. He was found guilty of manslaughter. The issue focused on the use of a statement that was alleged to be a voluntary one made to persons who were not known to the confessor as police officers. This was not a statement to persons in authority. The statement was found to be admissible into evidence and not one to be ruled inadmissible as non-voluntary.

[59] The confession involved in Mr. Big investigations or undercover investigations is made to persons who are not known to be police officers so that they are not persons in authority. The argument is that the traditional confessions rule does not apply. Therefore, such confessions should be admitted into evidence.

[60] If the undercover police officers act in ways that make the Defendant dependent upon them as criminal persons in a Mr. Big operation or simply within an undercover investigation, or if the investigators make the Defendant a virtual captive or simply go over the top of the acceptance threshold of Canadians, the confession will be vulnerable to being excluded.

[61] In R. v. Osmar[^2], R. v. Hart[^3], and Dix v. Canada (Attorney General)[^4], the courts explored alleged extreme investigative techniques by the police. In Hart, the confession was disallowed because the police investigators went too far and infringed Mr. Hart’s right to silence and right not to incriminate himself. In Dix, the confession was obtained following too extensive police actions thereby leading the prosecutor to conclude that there was not a reasonable likelihood of a trial resulting in a conviction. Not so in Osmar; however, the Ontario Court of Appeal noted that there may be times when the investigators exceed acceptable police investigatory procedures thereby leading to their exclusion.

[62] In R. v. Osmar at paragraph 42, Rosenberg J.A. stated:

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

[63] And at paragraph 53 in Osmar, Justice Rosenberg pointed out that the Ontario Court of Appeal was on record supporting a rationale for admitting admissions founded on the theory of the adversary system and not on a necessity/reliability analysis. This flowed from R. v. Foreman[^5] stating:

“The rationale for admitting admissions by a party rests on the theory of the adversary system, not a necessity/reliability analysis. As in this case, the accused’s admission in Foreman was not made to someone whom the accused believed was a person in authority. In Foreman, the admissions were made to the victim. The admissions were admissible even though they had not been subjected to a reliability analysis such as would be required if the statements had been made to persons in authority and therefore had to be shown to be voluntary.”

[64] In Dix, the Defendant participated as a lookout at a drug transaction at which a person supposedly was killed by the police operative. He was pressured to disclose some information about himself now that he knew about the gang and this homicide. That is when Mr. Dix told about two murders that the police had thought he had committed. This Mr. Big investigation was extreme enough that a prosecutor concluded that there was little likelihood of achieving a conviction and invited the trial judge to dismiss the charge. Paragraphs 125, 126, 127, 129, and 130 in Dix are worth including here:

“ [125] The Plaintiff indicated he would say whatever the gang wanted him to say but that he had not killed James Deiter or Tim Orydzuk. Further, he stated that he had nothing to do with their deaths.

“ [126] The scenarios culminated with what has been euphemistically termed the “Whack at Yaak”. This was a staged homicide at Yaak, British Columbia. The scenario involved the operative and the Plaintiff going to Yaak to exchange a container, which the Plaintiff understood contained drugs, for money. The exchange location was in a rural area outside of Yaak. The operative met another undercover operative at the location and then went inside a motor home located there. the Plaintiff was left in the vehicle as a lookout.

“ [127] Ultimately, shots were fired and the operative left the motor home carrying a sawed-off shotgun. He turned toward the motor home, shot into it, approached it, and shot into it again. He then ran to the vehicle in which the Plaintiff was waiting and threw the sawed-off shotgun into the bush near the vehicle. He informed the Plaintiff that he had shot the individual in the motor home after that person had fired upon the operative and after that person attempted to cheat the operative of the money that the operative was to receive.

“ [129] Later that day the Plaintiff was placed on a plane by the operative and flown to Vancouver. He was met by other undercover officers posing as members of the same gang.

“ [130] For the next two days the Plaintiff remained with these individuals. He was subjected to extreme pressure by them, as they initially said that they did not believe what the Plaintiff told them about the Whack at Yaak, but then later accepted this story. they advised him that as now the Plaintiff had something on the gang which could be used by the Plaintiff and held over the gang, the gang would need something on the Plaintiff. Specifically, the Plaintiff was repeatedly asked about his involvement in the James Deiter and Tim Orydzuk homicides. He repeatedly denied any involvement. It is clear that during these discussions the Plaintiff was left with the impression that if he went to the authorities and told them about the murder he had witnessed, he would be killed by the gang. Several statements by operatives acting as members of the gang constitute clear threats.”

[65] In Hart, the accused man was isolated and made financially dependent upon the investigators living in a remote area of Newfoundland and Labrador so much so that his confession was ruled to be excluded. That was the decision of the Court of Appeal of Newfoundland and Labrador. The confession had been admitted at trial. The case was argued at the Supreme Court of Canada in December 2013.

[66] The Hart decision of the Court of Appeal of Newfoundland and Labrador concluded that the police investigatory techniques infringed the Charter rights of Mr. Hart with respect to remaining silent and not incriminating himself. Although Mr. Hart was not formally detained by persons known to him to be police officers, the accused man was so much under the thumb of the police that he was detained. It appears to me that the Court of Appeal determined that they faced a situation identified by Justice Rosenberg of the Ontario Court of Appeal in Osmar where he noted that there might be occasions in which the evidence is not admissible because of state control and over-running the right to be silent.

[67] The summary of the dissent on this issue in Hart was as follows at paragraph 128:

“In summary:

1. The trial judge made no error in admitting the statements of Mr. Hart obtained through the Mr. Big operation:

(i) Mr. Hart’s right to silence was not infringed because he was not detained at the time he made the statements.

(ii) The trial judge had no obligation to conduct a voluntariness analysis under the confessions rule and before admission of the statements require proof of voluntariness beyond a reasonable doubt, because Mr. Hart did not perceive the individuals to whom he made the statements as persons in authority.

(iii) The evidence did not establish on a balance of probabilities that there had been an abuse of process by excessive coercion or inducement, and the tricks employed by the undercover police were not such as to shock the conscience of the community; and

(iv) The evidence did not establish on a balance of probabilities that Mr. Hart’s will had been overborne to the point where his statements had not been freely given or the product of an operating mind making a choice.”

[68] On the other hand, the summary of the majority decision in Hart at paragraphs 244, 245 and 246 states:

“[244] For the reasons given above, Mr. Hart was in the control of the state in a manner that was equivalent in degree to detention. It was not reasonable to expect that he would have any reason, or take any opportunity, to leave the organization. That meant he had to subscribe to the culture of the organization and to ensure that he continued to receive the approbation of Mr. Big. Although he obviously wanted to maintain that he had an innocent explanation to the deaths of his daughters, he eventually succumbed when it became clear that Mr. Big would accept no other answer than one which accepted his proposition that he was responsible for their murder. For Mr. Hart in the circumstances in which he found himself there was very little downside to telling Mr. Big what he wanted to hear, since he believed the operatives were not police and he had been assured that any information he gave would be kept from the authorities. On the other hand, in his mind, Mr. Hart had a great deal to lose if he did not accede to the required admission.

[245] Applying the contextual factors enunciated above, I conclude that the reliability of the confession has been brought into question. It was obtained in the face of considerable psychological coercion in circumstances where the police knew that they were in an adversarial relationship with Mr. Hart and took advantage of the fact that he was not aware of this. The circumstances were such that the police were in a position where they could abuse the power they had over Mr. Hart and in so doing undermine his right to silence and place him in a position where he was effectively disabled from presenting a credible response to and explanation for the statements that were elicited from him.

[246] In the circumstances of this case, whether one regards the law as allowing an extension of the right to silence beyond the notion of physical detention or as involving considerations relevant to the broader principle against self-incrimination, there was a breach of section 7 of the Charter. It was not appropriate in the circumstances of this case to leave the evidence to the jury for consideration in the context of pointed jury instructions.”

[69] In R. v. Osmar, references were made to R. v. McIntyre[^6] and R. v. Hebert[^7] for consideration of police investigative techniques used with persons who make statements to persons known to be in authority and to persons not known to be in authority. Basically, if the person is in the control of the state and police run over her or his right to remain silent, a statement is apt to miss the admissibility mark. On the other hand, if the communication is to a person who is not known to be a police officer, its admission into evidence is in a stronger position for admission.

[70] In R. v. Oickle 2000 SCC 38, [2000] 2 S.C.R. 3 at paragraph 70, the Supreme Court of Canada quoted the United States Supreme Court in Blackburn v. Alabama 361 U.S. 199 (1960) at 207 as follows:

“ Neither the likelihood that the confession is untrue nor the preservation of the individual’s freedom of will is the sole interest at stake. As we said just last Term, “ The abhorrence of society to the use of involuntary confessions … also turns on the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves.” …Thus, a complex of values underlies the stricture against use by the state of confessions which, by way of convenient shorthand, this Court terms involuntary, and the role played by each in any situation varies according to the particular circumstances of the case.”

[71] Has the Alan Smith investigation gone too far? And if so, in what ways has that been the case?

[72] For example, the SR/SH unknown recorded briefing discussion on July 7, 2009 regarding the apparent fear Alan Smith had of SH was either deliberately or inadvertently withheld from the preliminary inquiry court. If the officers lied to that court, that would top up improper conduct that might lead to a court sanction. The officers denied that they misled the court. They acknowledged that they did not know their conversation was audio recorded. When they testified at the preliminary inquiry, they believed they were telling all. When the recording and its transcript was provided to them after the preliminary inquiry, the officers testified at this application that it refreshed their memory. They were able to expand their evidence about Mr. Smith’s fear and how they tried to alleviate it.

[73] I am not persuaded that the police testimony at the preliminary inquiry with its shortcomings was a deliberate attempt to mislead the court. It was overcome by its discovery and disclosure prior to trial.

Is This a Mr. Big Investigation?

[74] Now is the time to consider whether or not this investigation of Alan Smith regarding the Beverly Smith homicide is correctly described as a Mr. Big investigation.

[75] I conclude that Project Fearless is a Mr. Big investigation. Such investigations have the major criminal character not getting involved with criminal activity. Rather, that person is one who makes appearances from time to time with the purpose of encouraging the target of the investigation to have a strong desire to join the organization of this person. There is some gain factor at play for the target by becoming a member. By divulging a significant criminal act in the past to Mr. Big, the target anticipates some monetary gain. In other words, the target wants into a criminal organization because the person expects benefits.

[76] With Mr. Smith, the circumstances embody a variation from trying to join a criminal organization. He was not divulging information in this case about the death of Beverly Smith so that he could be part of an organization; rather, Mr. Smith was providing a secret of illegal activity on his part to SH, who was a person over whom he had a hammer of knowledge of an alleged killing. That person wanted some inculpatory information about Mr. Smith and SR, the undercover officer. Although Mr. Smith was not attempting to become a member of SH’s organization as in Hart and Dix, he was virtually pushed into a position akin to being a member when Mr. Big imposed upon SR and Mr. Smith the task of disposing of a corpse. Having gone along with that task, Mr. Smith then was pressured to disclose a deep dark secret from his own past. He did so in two versions on July 8 and November 9, 2009. At both of these meetings, Alan Smith had been told by SH that no one was leaving until he and SR provided their secrets from the past.

[77] Mr. Smith was drawn into a body disposal when he took part in a theft of drugs from a drug dealer. He was along for the ride. In effect, Mr. Smith and SR were directed by SH to take the body and get rid of it. They were to meet the next day. This might be making Mr. Smith an accessory after the fact to a murder, if one had been perpetrated. That would be in the mind of the two men disposing of the alleged corpse.

[78] What did Alan Smith stand to gain with this activity? So far, he had become a friend of SR and accompanied him for drug and gun deals. He was paid modest amounts of money ranging from $100 to $400. Later, the Defendant suggested in a conversation with SR that they should be paid $2,000 for the body dump.

[79] The Defendant is portrayed by Defence counsel as a lonely old man without resources; however, at the time he was 59 and lived with his daughter and family in her house. The house was described by Mr. Smith as a quarter of a million dollar residence. The Defendant did not carry much cash with him and borrowed from SR to get cigarettes for example. He commented that he liked SR, that he loved him like a brother and would always have his back in the sense of being one to guard SR as a friend.

[80] Did Alan Smith fear Detective SH so that he would do almost any act or say almost any comment to escape his presence? He made comments captured on the body pack of SR that he was afraid that SH was coming to the meeting cottage and would blow them away. At another time, he said he was very scared, enough to have a personal accident with human waste. Mr. Smith told SR that when he met alone with SH on July 8th that SH had a knife. SH disputed that he had a knife. The only knife he could think might have been present was a butter knife on the table as they had breakfast at the cottage. These conversations were made with SR at a time when the undercover officer was talking of being worried about what they had done. SR was younger than Mr. Smith. When Mr. Smith and SR were driving to the body dump site, the Defendant talked to SR as if he were one with experience at maintaining his self-control as he encouraged SR to remain calm. At other times, Mr. Smith told SR how to act.

[81] I might point out that in Hart in the dissenting decision at paragraph 106, Justice Barry stated that if there were a need to determine reliability of the statements of the accused, such would become a factor only if it were shown that the admission was not freely and voluntarily given and even then the jury or trier of fact would determine reliability and weight.

[82] Then, on October 8, 2009, when he and SR were to meet with SH, Alan Smith became very angry with SH because the latter was not attending. This was a time when SH was expected to pay the two men more money for their work on the drug rip and body disposal. SR and Smith were travelling from Cobourg to the Toronto area for this meeting. Alan Smith basically lost his temper and shouted over the cell phone at SH words to the effect that he was angry and that it was not good to make him angry.

[83] When David Maunder came to Ontario from Calgary, he met with Alan Smith. The two men ran into SH in the lobby of a building. There was no conversation between SH and Mr. Smith. Mr. Maunder made the observation that Mr. Smith appeared to be frightened when he saw SH. And SH himself acknowledged that Mr. Smith appeared panicked upon seeing SH.

[84] On November 9th, 2009, there was a meeting in Cobourg between SR, SH, and Alan Smith. There was no animosity displayed by Mr. Smith towards SH. The purpose of the meeting on this date was to discuss the story that each man had about his past so that each had some security that the other two would not reveal any information about the others. Alan Smith said that he lied on July 8th about the death of Beverly Smith, that he was scared and just wanted to get out of the cottage so that he was prepared to say any comment to do so. That left SH apparently out on a limb with SR and Mr. Smith knowing a significant secret about his criminal activity, but SH did not have knowledge about Mr. Smith. Alan Smith had stated to SH that he was not prepared to lie that he killed someone when he had not done so. Then, without prompting, Mr. Smith admitted to killing Beverly Smith alone, that David Maunder had no involvement, and that he had told unfavourable information about Mr. Maunder because that man had said bad things about him.

[85] SH said that after Mr. Smith made this confession, he appeared close to weeping. He got out of the truck and went for a walk.

[86] If this is not a Mr. Big investigation but rather a more simple undercover investigation, might the admission to killing Beverly Smith be admitted into evidence? In my opinion, the answer is yes because both are undercover operations by police.

[87] The cases referenced previously in these reasons note that when a person admits criminal activity to a person who is not a known person in authority, the limitations for the confessions rule and the Charter might not prevent such evidence becoming part of the trial. In the Dix decision in Alberta, it appears that the investigation was a true Mr. Big scenario that was determined even by the prosecutor to be excessive to the point of having no reasonable likelihood of success of conviction. In the Hart decision, the NL Court of Appeal concluded that the actions of the investigators in a Mr. Big arrangement went so far that they passed the threshold of excessive police actions.

[88] In the Hart case, there was a similar situation to Alan Smith. Mr. Hart tried to become a member of a criminal organization, was paid much more money than Alan Smith was paid, had an epilepsy health problem that made him more vulnerable to police pressure and made him more dependent on the police.

Analysis Regarding the Common Law Confessions Rule & Voluntariness, Abuse of Process and Breach of Privilege Regarding Self-incrimination and the Right to Silence

[89] If the Durham Regional Police investigation here was one that focused only upon one person to the exclusion of any thought of others as possible perpetrators of the murder of Beverly Smith, a court might conclude that there is a base factor for an abuse of process. In such a situation, the investigators would have risked overlooking vital information to the prejudice of Mr. Smith.

[90] Although a shortfall of the investigation might impact on the trial as a whole, one might consider that the Mr. Big scenario survives so that the admissions of Mr. Smith are admitted into evidence at least.

[91] The Defence submits that the lack of more investigation leads to concern about the reliability of the confession by Alan Smith . If the admissions are so frail, they should not be admitted.

[92] I am not persuaded that Durham Regional Police proceeded with blinders on as if they were a trotter drawing a sulky. Rather, they had a significant amount of information dating back to the death of Beverly Smith. Over the years, several people had been investigated and excluded as the likely killer. Even though persons had been checked, there continued to be more checking in this investigation. It appears to me that the investigating police service did not decide that Alan Smith was the killer and that only evidence in support of that conclusion would be considered. The investigators appear to have acted in good faith.

[93] The point of greatest import appears to be whether the investigation went overboard with intensity so that Alan Smith might have collapsed into a false confession. The assistance provided in the cases referenced earlier in this decision enable me to consider all of the factors here rather than dismissing the application out of hand because the admissions were made to persons who were not known to be persons in authority.

[94] If the investigators are found to be in a similar position to the police in Hart, one could reach the same conclusion as the majority decision there. There would be a basis to find that the police trampled over the Charter protection against self-incrimination. There would be sufficient coercion, an adversarial circumstance placing psychological and emotional pressure on Mr. Smith thereby raising a real possibility that there is an unreliable confession to a person in authority, and an effective detention of Mr. Smith by state agents even though they were not known to be state agents. Such a result would be compatible with the Ontario Court of Appeal in Osmar and Foreman because the decision would be grounded in extreme investigative conduct that trammelled over the rights of a citizen to the extent that there was an abuse of process and a section 7 Charter infringement of Mr. Smith’s right to silence. I acknowledge that in Osmar the Mr. Big admissions survived because there had not been excessive police tactics. Rosenberg J.A. had noted that it may be open to courts to stop the use of admissions obtained when the investigative techniques went too far.

[95] Let me flesh out the Alan Smith picture. He was a focal point of the 2009 investigation. The Defendant had been charged in 2008 with second degree murder only to have that charge withdrawn after a few months when the case was determined to be one without a reasonable prospect of achieving a conviction. There had been the use of authorizations to intercept private communications of Alan and Linda Smith and others; however, evidence was not obtained with such investigative techniques on their own.

[96] The Durham Regional Police decided that an undercover investigation might be a successful means of gathering evidence. Contact between SR and Alan Smith was co-ordinated in the late winter of 2009 when a bogus contest featured Alan Smith and SR as winners. When the two men met on the fishing experience, Mr. Smith raised the topic of being in jail for a murder charge in 2008. He expressed his displeasure with the authorities because he was wrongfully accused of killing a woman in 1974. The two men continued to see each other regularly. SR had an apartment in Cobourg and was doing his own business there. Mr. Smith was not divulging any more detail as time advanced.

[97] Detective Sergeant Lynch was the lead investigator. Durham Regional Police arranged for another undercover operator, SH, to attend. He was referred to in the police files as Mr. Big. During the spring months, the Defendant often went fishing with SR and also accompanied SR when the latter was completing drug sales and firearm transactions. As time passed, thought was given to ways to encourage Mr. Smith to reveal an involvement in the murder of Beverly Smith if he was involved. A two-pound cocaine transaction was arranged for SR to complete on behalf of SH in June 2009 with Alan Smith assisting by delivering the drugs to the vehicle of the buyer and bringing back the purchase money. Then, an additional drug deal of 40 pounds of marihuana was put together whereby SH was selling marihuana to a buyer; however, he wanted SR and Mr. Smith to steal the drugs from the buyer. The buyer was reported to be one who would leave the drugs in his vehicle. This was to be a simple theft effected by breaking into the drug buyer’s vehicle. The rip-off was changed to a robbery with SR entering the motel room of the buyer and stealing the drugs at gunpoint. Mr. Smith was to remain in the vehicle. No consultation was conducted with Mr. Smith for the change from a theft to a robbery.

[98] After the robbery, SR and Mr. Smith were to meet SH the following day. This was July 7, 2009. When they met SH, he was all business and a directing person. There was tension at the meeting. SH had a package in the back of his pickup truck. It was a blue tarpaulin with an apparent corpse in it. SH reported that the purchaser had contacted him and wanted to have a meeting. At that meeting, the buyer had been aggressive and SH had killed him when he thought the other man was about to use a knife against him. SH told SR and Mr. Smith to get rid of the corpse and that they would meet at a cottage the following day.

[99] As SR drove to an area that SR stated he knew in order to dispose of the corpse, he spoke as if he were anxious. Mr. Smith talked SR into remaining calm. They disposed of the wrapped up corpse and then drove to the cottage.

[100] The following day, SH arrived at the cottage and told the two men that they knew a major fact about him, i.e. that he had killed someone. SH wanted some information about both SR and Mr. Smith so that they all had some insurance that would keep each from revealing the secret of the others.

[101] SR revealed a motor vehicle fatality in which his ex-wife had been the driver while she was impaired. The other person in her vehicle had been killed. SR moved the deceased from the passenger’s seat to the driver’s seat so that his ex-wife would not be charged with a criminal offence.

[102] Mr. Smith told SH that he had been at a murder in which another man shot a woman fatally and he had stolen drugs from the house. The name of the shooter was David Maunder. The amount of drugs was 40 pounds of marihuana.

[103] The police did not think Mr. Smith was providing a completely truthful story. They had intended to complete the undercover investigation if Mr. Smith confessed to the murder of Beverly Smith or provided information about who killed Beverly Smith. The information that they received led the police to continue the investigation to attempt to confirm its contents and to check on David Maunder who lived in Calgary.

[104] SR continued to see Alan Smith, go fishing with him and do illegal drug and gun trafficking transactions with Mr. Smith accompanying him.

[105] SR would pay Mr. Smith small amounts of money for going with him when he did these deals. SH was to pay SR and Mr. Smith for the disposal of the corpse, but no figure was fixed. Mr. Smith spoke of the body disposal as a task for which he and SR should be paid $2000 each.

[106] When SR and Alan Smith were to meet SH in early October 2009 in anticipation of being paid some money for the body disposal, SH called on a cell phone and cancelled the meeting on the basis that he could not attend. Mr. Smith blew his cork in a temper outburst and told off SH.

[107] In October 2009, Alan Smith told SR that he had fooled 7 psychiatrists regarding his mental health. He counselled SR that he not show himself as a smart person. He should play dumb.

[108] After exploding in anger with SH on the cell phone in October 2009 when SH cancelled meeting with SR and himself, Mr. Smith wrote out a list of demands he wanted presented to SH by SR. He wanted SH to cancel having any work done by a private investigator regarding the Beverly Smith murder, pay them and that he was considering going into the witness protection program.

[109] On November 9th, the 3 men met for the purpose of payment and discussion. Prior to the meeting, Mr. Smith told SR that he had lied to SH in July at the cottage when he said he was present at the killing of the woman. He had just wanted to get out the cottage and was prepared to say whatever would effect that result. When Mr. Smith said this to SH, SH commented that such a withdrawal left him out on a limb without any security if Mr. Smith were to tell on him about the murder. Mr. Smith said he would not admit to something he did not do. Then, Mr. Smith confessed to killing Beverly Smith by himself only.

[110] One might conclude that even if the police did not set a course to be nasty and mean to Mr. Smith, the development of this investigation took the Defendant to the level of being under the thumb of the state having been through the criminal justice mill in 2008 and having been told by his lawyers after the withdrawal of that second degree murder charge to remain silent. Alan Smith told SR that when he was released from the second degree murder allegation, his lawyers provided him with a restricted public comment to the media and public and told him to say no more. The investigators were not known to be police officers, but they pumped Mr. Smith for information and basically forced him to become part of their alleged criminal organization when he had to assist SR as an accessory after the fact of murder by disposing of the corpse of the drug dealer. He was not asked to join the activity of disposing of the body. Rather, Alan Smith and SR were ordered by SH to do so. He was present and far from home. Alan Smith was not close enough to walk home. Nor was Alan Smith a financially solid person who could call for a taxi to drive him many kilometres home. Then, the next day, Mr. Big pressured him to reveal a deep dark secret that was serious enough to force him not to disclose information about SH and his apparent murder of the drug dealer. Coercion was evident. An adversarial state existed continuing from the dropping of the second degree murder charge in 2008. The investigation never stopped with respect to the death of Beverly Smith. Alan Smith was given a prepared statement by his lawyers to read to the public when released in 2008. Basically, Alan Smith was not allowed to remain silent. Rather, he was asked repeatedly to disclose the information about a murder. His account of the 1974 murder of Beverly Smith had many holes in it. One might say that you could drive a Mack truck through the accounts to the point that you would question whether this was nothing more than a pack of lies. He stated that the murder weapon was buried in various locations. Dave Maunder shot the woman while Alan Smith went for the drugs upstairs. Then, Alan Smith shot the woman in the back of the head when he stole drugs and kept her silent from disclosing an intimate relationship with a friend of the twin sister of Beverly Smith. He broke the gun into pieces, but one gun found in the area at which he disposed of the gun was not broken. He claimed to have stolen 40 pounds of pot but the evidence indicates that there was less than a pound of marihuana at the Beverly and Doug Smith residence the night of December 9, 1974. How could anyone believe any of this account. His story is highly suspect to the point that it is very unreliable. It is the product of pressure by state agents in an adversarial role even though they were not known to be police officers.

[111] Being pressured into action with the undercover officers to assist someone with an apparent crime, being asked regularly over several months about the murder of the woman in 1974, being subjected to questions about a murder when he had been told by his 2008 lawyers to remain silent but for what was in the statement when released appears to draw the accused into a functional detention whereby he is questioned contrary to his section 7 Charter right to remain silent. The confession was not voluntary. See paragraph 42 of Osmar by Rosenberg J.A. referred to and quoted earlier in these reasons.

[112] Yes, this is an example of an abuse of process and a breach of section 7 of the Charter.

[113] What sanction might be considered for such conduct?

[114] If there is an abuse of process and / or a section 7 Charter breach of the right to silence and a right not to incriminate oneself, the Defence submits that there should at the very least be an exclusion of the evidence obtained in the Project Fearless investigation. At the most, an order for a stay of the proceedings is requested because of the Charter breach. Either way, the Crown acknowledges that without the confession evidence of Alan Smith, there is no case.

[115] There is no editing method to salvage part of the confession and remove part. If the confession amounts to an abuse of process and / or a breach of section 7 of the Charter, the only reasonable method to address the problem is to remove it from presentation at all. I am satisfied that the police investigated the murder in good faith and not with tunnel vision. If there had been bad faith on the part of the investigating police service, there would be a foundation for a stay of the whole proceedings.

[116] In R. v. Grant 2009 SCC 32, [2009] 2 S.C.R. 353, the Supreme Court of Canada outlined three steps to follow when considering whether to exclude evidence pursuant to section 24(2) of the Charter.

(i) the seriousness of the Charter-violating state conduct;

(ii) the impact the Charter violation had on the Charter-protected rights of the Defendant;

(iii) society’s interest in an adjudication on the merits.

[117] Working an admission to first degree murder from a person when the person is functionally detained by the police in deprivation of his right to remain silent or pushing him to incriminate himself improperly has a result that cannot be more serious for Alan Smith. The officers in effect pushed the envelope with the use of the corpse to shake loose admissions from the Defendant. The impact of the Charter violation basically removed Mr. Smith’s Charter-protected rights.

[118] The prejudicial impact of admitting the tremendously varying and contradictory statements of Alan Smith is that its admission forces him to prove his innocence.

[119] Although society has an interest in having this criminal allegation heard at trial on the merits of the allegations and evidence, in my opinion the use of this information obtained in this manner would shock the sense of trial fairness to Canadian society.

[120] The Crown recognizes that if the admissions of Alan Smith are precluded from being introduced into the trial, the Crown’s case will be at an impasse. I do not recognize any manner of editing to be available whereby any of the admissions may be used.

Conclusion

[121] There will be an order excluding the admissions to killing Beverly Smith as well as related statements by Alan Smith. Evidence outside the scope of the undercover investigation or the Mr. Big investigation may be introduced at the trial.

Justice B. Glass

Released: June 27, 2014

[^1]: [1901] M.J. No. 1

[^2]: 2007 ONCA 50 ( Ont. C.A.)

[^3]: 2012 NLCA 61 ( N.L.C.A.)

[^4]: 2002 ABQB 580 (A.B.Q.B.)

[^5]: (2002), 2002 6305 (ON CA), 169 C.C.C. (3d) 489

[^6]: 1994 95 (SCC), [1994] 2 S.C.R. 480

[^7]: 1990 118 (SCC), [1990] 2 S.C.R. 151