COURT FILE NO.: CR-14-30000319-0000 DATE: 20160621 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – LIBAN OMAR Defendant/Applicant

Counsel: R. Juginovic and J. Smith, for the Crown D. Derstine and J. Shanmuganathan, for the Defendant/Applicant

HEARD: April 26 and 29, and May 2, 2016

Molloy J.:

REASONS FOR DECISION #4 (Admissibility of Expert Evidence of Psychologist)

A. INTRODUCTION

[1] Liban Omar is charged with first degree murder in connection with the shooting of Abdulaziz Farah. Mr. Omar was arrested on this charge on December 19, 2012 following a two-month-long undercover police operation, in the course of which Mr. Omar made a number of statements to undercover officers confessing to his involvement in the shooting. The undercover operation was in the nature of a “Mr. Big” sting, carrying with it the presumption that the statements elicited are inadmissible unless the Crown meets the test for admissibility established by the Supreme Court of Canada in R. v. Hart. At the outset of trial, the Crown brought an application for a ruling as to the admissibility of the statements Mr. Omar made to the undercover officers. The voir dire proceeded before me from April 6 through to May 2, 2016.

[2] There are four issues before me arising from the voir dire:

(1) the admissibility of the statements made by Mr. Omar to the police;

(2) the admissibility of the evidence tendered by the Crown as to the height of the shooter, as corroborative evidence with respect to the reliability of Mr. Omar’s statements to the police;

(3) the admissibility of a statement given by Gavin Daley to the police implicating Mr. Omar in the murder, Mr. Daley having been killed by the time of trial;

(4) the admissibility of opinion evidence, tendered by the defence, from a psychologist with expertise in false confessions and “Mr. Big” operations.

[3] On that voir dire the defence tendered the evidence of Dr. Marc Patry, who is a Professor and the Chairperson of the Psychology Department at St. Mary’s University in Halifax. Dr. Patry is recognized in his field as having expertise on the phenomenon of false confessions to police and on so-called “Mr. Big” police sting operations.

[4] For separate Reasons released at the same time as this decision, I have found Mr. Omar’s statements to the police to be admissible at trial. See R. v. Omar #2, 2016 ONSC 4065, which also deals with the admissibility of the evidence as to the height of the shooter. In a separate decision, I found the statement of Mr. Daley to police to be inadmissible at trial: R. v. Omar #3, 2016 ONSC 3337. In reaching that conclusion, I did not take into account the opinion evidence tendered by the defence from Dr. Marc Patry. I am also of the view that Dr. Patry’s evidence is not admissible at trial. My detailed reasons for finding Dr. Patry’s evidence to be inadmissible follow.

B. BACKGROUND FACTS

[5] Just after midnight on September 8, 2012, Abdulaziz Farah was brutally shot dead. The initial shots were fired within Mr. Farah’s car, while he sat in the driver’s seat. He tumbled out of the car and was crawling and dragging himself along the street while his assailant shot at him several more times and also beat him. People in nearby homes heard the shots and saw and heard Mr. Farah on the ground begging for his life. The assailant then administered the fatal shot, which entered Mr. Farah’s head near the right jaw and blowing a hole through the back of his skull. The murderer then fled in Mr. Farah’s car.

[6] Not long after the shooting, the accused, Liban Omar, became a person of interest to the police. At the time, Mr. Omar was just barely 19 years old, but had a significant criminal record, most of which was as a young offender. The police devised a plan to introduce an undercover officer to Mr. Omar (UO#1), with the hope that he would develop a rapport with Mr. Omar and obtain evidence that would assist in the murder investigation. Before that plan was put in motion, the police received information, which they were subsequently able to verify, that Mr. Omar had been seized by associates of the deceased (who was known to be a drug dealer) and severely beaten, requiring treatment in hospital.

[7] Coincidentally, on October 22, 2012, as the plans for the undercover operation were being finalized, Mr. Omar turned himself into police in response to information that a bench warrant had been issued for his arrest when he had failed to appear at a recent court date for unrelated outstanding charges. The police took advantage of this opportunity to insert UO#1 into the cell adjacent to Mr. Omar’s at the police station where he was being held. UO#1 befriended Mr. Omar and obtained contact information for him. During the course of that first interaction, UO#1 also learned that Mr. Omar was an insulin-dependent diabetic.

[8] Subsequently, UO#1 contacted Mr. Omar by text message. They exchanged a few messages and a phone call and arranged to meet in person on November 1, 2012. Thereafter, UO#1 met in person with Mr. Omar on November 1, 6, 8, 16 and 27. For all of these interactions, UO#1 wore a body wire and all of his conversations with Mr. Omar were recorded. Each occasion involved meeting in public places and having food and/or drinks. On the first four occasions, UO#1 picked up the tab as Mr. Omar claimed to be broke. On November 27, Mr. Omar paid the bill. Each time, moderate amounts of food and alcohol were involved and the venues were also modest. On one occasion, Mr. Omar borrowed $10.00 from UO#1.

[9] Over the course of these meetings and a few telephone conversations, UO#1 gradually told Mr. Omar that he worked for his cousin, who was affluent, connected, and the head of an organization that was clearly criminal in nature. UO#1’s role was as a courier of some sort, dropping off goods such as bootleg SIM cards for resale by businesses. UO#1 described his cousin as being very generous to those in his organization and said that his cousin was treating him and his girlfriend to an all-expense paid one-week vacation in Jamaica. At one point, UO#1 arrived to pick up Mr. Omar in an Infiniti, which he said belonged to his cousin and which he said was the “shittiest car” his cousin owned. He led Mr. Omar to believe that there could be work available for him in his cousin’s operation, provided that his cousin was satisfied as to Mr. Omar’s trustworthiness. UO#1 emphasized the importance of always telling the truth when dealing with his cousin.

[10] Early on in his meetings with UO#1, Mr. Omar disclosed information about his own past criminal activities including drug trafficking and possession of firearms. Every time Mr. Omar met with UO#1 he brought up, unprompted, the occasion when he had been beaten up by men from “Flemo.” UO#1 testified that Mr. Omar was usually happy and smiling throughout their interactions, but that his demeanour changed and he became very serious when he was talking about this incident.

[11] The first time they met (November 1), Mr. Omar said that he had been torched in the face, beaten and robbed because of something one of his “brethren” did. On their second meeting, Mr. Omar provided more details, stating that these assailants took him in their car at gunpoint to a storage unit where they assaulted him in an attempt to get him to reveal who had murdered one of their brethren. He said that he had been beaten, butted in the head with the gun, and burned in the face with a torch and that he still had difficulty walking two months later. On that occasion, Mr. Omar also provided more details about the shooting of Mr. Farah. He still maintained that it was his friend who had shot Mr. Farah and said that his friend had told him all about it and described the problems his friend was having dealing with the impact of having killed someone. On the third occasion (November 16), Mr. Omar gave similar information about his injuries and added the details that the guys had tied his legs and put a bag over his head when they took him to the storage unit. He said the guys who did it were Somalians (like himself) and that he knew who they were. Mr. Omar also told UO#1 at this meeting that he was with his friend at the time of the murder and that he was the one who put the final shot into Mr. Farah’s head. He said that killing someone “ain’t fun”, that it changes you, and that he thinks about it every day. At the fourth meeting, Mr. Omar mentioned the beating again, but provided no additional information about it. He did provide further information about the murder itself, stating that he did it entirely on his own and that his friend merely drove the car.

[12] As these meetings progressed and the rapport between the two developed, UO#1 started to bring up the idea of introducing Mr. Omar to his cousin as a first step to bringing him into the organization where he would be able to make some money. Ultimately, they arranged for Mr. Omar to go with UO#1 to a party at the Fallsview Casino in Niagara Falls, where Mr. Omar would meet the cousin. The party was a staged event depicting the cousin (played by UO#7) as an affluent high-moving professional type of individual. There were a total of 10 undercover officers involved, all dressed elegantly to fit the roles. In the course of the party, UO#7 gave UO#1 a Mercedes as a reward for his good work. UO#7 met privately with Mr. Omar. Early in the discussion, Mr. Omar brought up the fact that these guys had burned his face and UO#7 said that they could “help him out.” Mr. Omar also brought up the murder with UO#7 and provided more details about his involvement.

[13] In many of his meetings with UO#1, Mr. Omar talked about drinking to great excess with his friends. His mother also testified that Mr. Omar would often come home very drunk. In his first four meetings with UO#1, Mr. Omar did consume alcohol, but in small amounts. At the party in Niagara Falls, he had a bit more to drink. For the reasons set out in my decision on the admissibility of Mr. Omar’s statements to the undercover officers, I am satisfied that Mr. Omar likely had a problem with alcohol, but that he was not intoxicated at the time of any of the statements he made to the undercover officers. See R. v. Omar #2, 2016 ONSC 4065, at paras 45-48.

[14] Mr. Omar was diagnosed with Type 1 diabetes when he was in custody in 2011. He required insulin several times a day. I accept the evidence of Mr. Omar’s mother that he was not good about monitoring his sugar levels or taking his insulin on a regular basis as required. However, I also accept the evidence of the undercover officers who testified that he did not appear to be suffering any adverse effects from his condition when in their presence.

[15] The defence called Dr. Julian Gojer, a forensic psychiatrist, as a witness on the voir dire, and proposes to also introduce his evidence at trial. There is no challenge to the admissibility of this evidence. Dr. Gojer testified that Mr. Omar meets the criteria for diagnosis of an anti-social personality disorder, although he was reluctant to attach that label to someone who is only 19 years old. He noted that in addition to his criminal lifestyle, Mr. Omar showed other traits such as low self-worth, low self-esteem, deceit, and pathological lying. Dr. Gojer was also of the view that in the fall of 2012, Mr. Omar was suffering from post-traumatic stress disorder as a result of being beaten and tortured, or at the very least was suffering from symptoms of that disorder including depression, anxiety, nightmares, paranoid reactions, difficulty trusting people, flashbacks, avoidance, and hyper-vigilance. In addition, Dr. Gojer noted that Mr. Omar was a very poorly controlled diabetic and that his excessive drinking exacerbated the problems related to his diabetes. In Dr. Gojer’s opinion, Mr. Omar was in an emotionally and physically compromised state during the period of time that he was meeting with the undercover officers in November 2012. He saw Mr. Omar as immature and gullible and testified that Mr. Omar would say anything that suited him in the moment in order to impress people or get financial rewards. Much of the information underlying Dr. Gojer’s opinion came from Mr. Omar himself, but he also took into account information from others, most notably Mr. Omar’s mother. Dr. Gojer candidly admitted that his opinion was dependent upon the accuracy of the information upon which he relied.

[16] Much of the factual information underlying Dr. Gojer’s report is likely untrue, leaving his ultimate conclusions vulnerable to rejection. However, for the purposes of my analysis of the admissibility of Dr. Patry’s evidence, I have accepted that: Mr. Omar was suffering from some symptoms of post-traumatic stress disorder in the fall of 2012 (particularly nightmares, sleep disturbance and using alcohol to self-medicate); he was immature and gullible; he had an anti-social personality disorder; and he is a pathological liar who often lies to impress and for financial gain.

C. THE QUALIFICATIONS AND PROPOSED EVIDENCE OF DR. PATRY

[17] The defence seeks to call Dr. Marc Patry as a witness at trial and to qualify Dr. Patry to provide expert opinion evidence in the field of the psychology of police interrogations and confessions.

[18] Dr. Patry is well-qualified by education and experience to provide expert evidence in the field of psychology. He has a B.A. in Honours Psychology, a M.A. in Social Psychology, a Master of Legal Studies and a Ph.D. in Social Psychology. He has been a Professor in the Psychology Department of St. Mary’s University in Halifax for the past eleven years, and is currently the Chairperson of that Department. Dr. Patry has written and lectured extensively in his field, including on matters relating to the phenomenon of false confessions in criminal cases. He has published a number of peer-reviewed articles in well-respected journals dealing with false confessions and also with issues arising from confessions elicited by the “Mr. Big technique.”

[19] Dr. Patry has never testified as an expert at a trial involving a Mr. Big scenario. However, neither has he been proffered as an expert and found to be unqualified to express an opinion on the subject.

[20] Dr. Patry is in the process of conducting research on the psychological implications of the Mr. Big technique, which although not yet finalized for publication has been peer-reviewed and vetted. He has conducted two studies involving a simulated Mr. Big trial (a 14-minute video). After watching the video, the study participants were asked if they thought the accused was guilty or not guilty. In the first study, participants in an on-line survey watched one of four versions of the video, with the variables being the level of financial incentive offered and the degree of violence involved. According to Dr. Patry, in that study, the results with respect to the factor of violence “did not pan out.” In the second study, the object of the Mr. Big sting was either paid $500 with the potential of making $1000, or was paid $5000 with the potential of making $80,000. Dr. Patry testified that the results from the second study show that people are more likely to find an accused guilty if that accused was offered only a small amount in the Mr. Big sting. In other words, the smaller the financial incentive, the more likely a jury will believe that a confession is true. Dr. Patry was unable to supply any more detailed data or particulars about the nature of the fact situation portrayed in the video.

[21] Dr. Patry testified that the phenomenon of false confessions is well-documented in the psychological literature, including numerous cases in which there have been DNA exonerations of convicted persons who had confessed. In his opinion, the general public would not know about or understand this phenomenon, as it is counter-intuitive that an innocent person would confess to a crime he did not commit. He said that it is widely held in the psychological community that individuals most susceptible to giving a false confession are those who are young, who have a low IQ, and/or who have a mental illness. He testified that most people do not have a fully developed personality until their mid-20s and that, until then, they may have a more volatile or emotional response to situations, display poor judgment and make bad decisions. They are therefore more vulnerable and demonstrably more likely to make false confessions.

[22] Dr. Patry acknowledged that most, if not all, of the research in this area relates to confessions made to police by a suspect in custody. Research has shown that such false confessions are often a result of the “Reid technique” used by many police forces in North America, which involves three psychological principles: (1) isolation; (2) confrontation (which may include the police officer telling the suspect that they know what he has done and have solid evidence against him); and (3) minimization (which may involve a good cop/bad cop routine, telling the suspect they know he is not a bad guy, and otherwise minimizing his conduct).

[23] Dr. Patry testified that all three features of the Reid technique are present in Mr. Big operations, including the one in this case. He conceded, however, that the first factor (isolation) played no role. He could give only one example of the second factor (confrontation). When Mr. Omar was talking to UO#7 in Niagara Falls, the undercover officer pushed him on whether his “friend” had been present at the time of the shooting, and Mr. Omar acknowledged that he had not been there. Dr. Patry gave many examples of minimization, as Mr. Omar frequently revealed very substantial criminality to the undercover officers and nobody was remotely critical of him for it.

[24] Dr. Patry is of the opinion that there is an even greater risk of false confessions using the Mr. Big technique than is the case for confessions involving the Reid technique, because the confession is to someone believed to be in the criminal subculture rather than to someone known to be a police officer. However, he acknowledged that there is no research on this issue. He was only able to point to one example of a false confession in a Mr. Big scenario, that being R. v. Unger, 2005 MBQB 238. He expressed the view that the length of the Mr. Big operation had nothing to do with whether a confession was more likely to be false, but again was not able to cite any research or studies to support that theory. Likewise, Dr. Patry testified that alcohol and substance abuse are factors for making a person more susceptible to making a false statement, but was not aware of any empirical evidence or anything in the literature to support that proposition.

[25] Dr. Patry testified that reports have shown that nobody is in a better position than anyone else to detect the truthfulness of a witness. He noted that even professionals dealing with such matters, such as police, lawyers and judges have no greater ability to detect lying than a lay person. He conceded that psychologists, such as himself, also have no greater ability than a lay person to detect lying. However, he maintained that he had an expertise in the phenomenon of false confessions that is beyond the common knowledge of a juror and that, based on his research, it would be important for a juror to understand and guard against their own likely bias that a person given a high financial incentive is more likely to be found guilty, even though lay people are not able to detect lying. Further, in his view, most people in the general public would not be aware of the risk factors leading to false confessions.

[26] Finally, although not a clinical psychologist and without having met or interviewed Mr. Omar, Dr. Patry offered an opinion as to the presence of risk factors pointing to the possibility of a false confession. He did so based on reviewing some of the transcripts and other written materials filed in the case. Dr. Patry testified that he believed Mr. Omar to be vulnerable to suggestion and to making a false confession based on the fact that, at the time of his encounters with the undercover officers, he was young, under enormous stress, and more likely to be in an unstable state of mind as a result of the trauma of being tortured. He further opined that Mr. Omar’s substance abuse would be an additional risk factor and that he had an adolescent mentality. Dr. Patry believed that Mr. Omar would be particularly susceptible to the minimization that was pervasive throughout his meetings with the undercover officers and that he would have a financial incentive as well as an emotional incentive to confess. He based this on information in the record as to Mr. Omar needing money and the social benefits to Mr. Omar in belonging to an organization that would protect him. Finally, Dr. Patry pointed to Mr. Omar’s various different versions of how the murder was carried out as an indication of unreliability.

D. ANALYSIS

[27] In R. v. Mohan, [1994] 2 S.C.R. 9, the Supreme Court of Canada held that the admissibility of expert opinion evidence is determined by the application of four criteria:

(i) relevance;

(ii) necessity in assisting the trier of fact;

(iii) the absence of any exclusionary rule; and

(iv) a properly qualified expert.

[28] In this case, the central issue in determining the admissibility of Dr. Patry’s evidence is the second criterion identified in Mohan: the necessity of his evidence in assisting the jurors to properly assess the evidence.

[29] I have no concerns about the other three factors. The phenomenon of false confessions and the factors contributing to the possibility of false confessions in a Mr. Big operation are relevant to whether the confession by Mr. Omar is reliable and truthful. It is important for the jury to take these factors into account in reaching its decision. Therefore, at least in that sense, the evidence of Dr. Patry is logically relevant to issues to be decided at trial. Apart from the opinion evidence rule, there are no exclusionary rules that would preclude Dr. Patry from testifying. Further, if expert psychological evidence is admissible at all, I have no trouble recognizing Dr. Patry as a person eminently qualified to give such an opinion. That said, I do not recognize Dr. Patry’s expertise to offer an opinion as to the particular circumstances of Mr. Omar and whether he is susceptible to making a false confession. Dr. Patry is not a clinical psychologist and has not interviewed or examined Mr. Omar. He is not qualified to offer an opinion as to Mr. Omar’s psychological makeup, nor his physical or medical condition, nor any categories of psychiatric disorders into which he may fall. Accordingly, if Dr. Patry’s opinion is to be admitted, it would only be with respect to the phenomenon of false confessions, why people confess to crimes they do not commit, and the factors that should be taken into account in assessing whether a confession made in a Mr. Big operation may be false.

[30] In R. v. Abbey, the Ontario Court of Appeal further refined the Mohan test as being a two-step inquiry. First, the trial judge must determine whether: (i) the proposed opinion relates to a subject matter that is properly the subject of expert opinion evidence; (ii) the witness is qualified to give the opinion; (iii) there is no other exclusionary rule precluding the evidence; and (iv) the opinion is logically relevant to a material issue. If the evidence meets these four mandatory requirements, the trial judge would then go on to the second step, which is a gate-keeper function. At this second stage, the trial judge must determine whether the evidence is legally relevant, as opposed to merely logically relevant. This involves a cost/benefit assessment as to whether the probative value of the evidence outweighs the problems created by its admission. On the “benefits” side of the ledger, the trial judge must consider the reliability of the evidence, taking into account the subject matter, the methodology used by the expert, the expertise of the witness and the extent to which the expert is shown to be impartial and objective. On the “costs” side of the ledger, the trial judge must consider the inherent risks of admitting the evidence, including the time, prejudice and confusion occasioned by it and the risk that the jurors would simply defer to the expert rather than reaching their own conclusions on the evidence. Doherty J.A. held as follows (at paras. 93-95):

[93] The cost-benefit analysis demands a consideration of the extent to which the proffered opinion evidence is necessary to a proper adjudication of the fact(s) to which that evidence is directed. In Mohan, Sopinka J. describes necessity as a separate criterion governing admissibility. I see the necessity analysis as a part of the larger cost-benefit analysis performed by the trial judge. In relocating the necessity analysis, I do not, however, depart from the role assigned to necessity by the Mohan criteria.

[94] It seems self-evident that an expert opinion on an issue that the jury is fully equipped to decide without that opinion is unnecessary and should register a "zero" on the "benefit" side of the cost-benefit scale. Inevitably, expert opinion evidence that brings no added benefit to the process will be excluded: see, for example, R. v. Batista, 2008 ONCA 804, [2008] O.J. No. 4788, 238 C.C.C. (3d) 97 (C.A.), at paras. 45-47; R. v. Nahar, 2004 BCCA 77, [2004] B.C.J. No. 278, 181 C.C.C. (3d) 449 (C.A.), at paras. 20-21. Opinion evidence that is essential to a jury's ability to understand and evaluate material evidence will register high on the "benefit" side of the scale. However, the ultimate admissibility of the opinion, even where it is essential, will depend on not only its potential benefit, but on the potential prejudice to the trial process associated with its admission.

[95] In many cases, the proffered opinion evidence will fall somewhere between the essential and the unhelpful. In those cases, the trial judge's assessment of the extent to which the evidence could assist the jury will be one of the factors to be weighed in deciding whether the benefits flowing from admission are sufficiently strong to overcome the costs associated with admission. In addressing the extent to which the opinion evidence is necessary, the trial judge will have regard to other facets of the trial process -- such as the jury instruction -- that may provide the jury with the tools necessary to adjudicate properly on the fact in issue without the assistance of expert evidence: D. (D.), at para. 33; R. v. Bonisteel, 2008 BCCA 344, [2008] B.C.J. No. 1705, 236 C.C.C. (3d) 170 (C.A.), at para. 69.

[emphasis added]

[31] Applying the Abbey test, I would have little difficulty with Dr. Patry’s evidence at the first stage. However, at the second stage, I am of the view that the cost/benefit analysis does not support the admissibility of the evidence. This is not a situation where the expert’s evidence is so technical or complex that there is a risk that the jury will be blinded by it or have difficulty understanding it. Rather, the evidence is straightforward. Indeed, it is so straightforward that it seems to me that it can easily be handled by way of a jury instruction. Evidence from an expert witness is therefore unnecessary.

[32] That is not to say that I have no difficulties with the reliability of Dr. Patry’s evidence. There are aspects of his opinion that I do find to be inherently unreliable. For example, Dr. Patry places considerable emphasis on the results of his study indicating that a guilty verdict is more likely where the inducements leading to the confession are not significant. To Dr. Patry, this represents a danger that the jury will convict in a case where the incentives offered to the suspect are modest and, in particular, the jurors will not realize their own bias in this regard. In my view, there is a glaring omission in this reasoning. There is nothing to indicate that people make false confessions more often when the incentives offered are modest. To the contrary, it is logical to assume that as the incentives go up, the motivation to fabricate a story to obtain the inducements likewise goes up. It is logical to assume that the greater the incentive, the greater the danger of false reporting in order to obtain the reward. If that premise is wrong, then a perception (or bias) to the contrary is highly problematic. However, Dr. Patry has no evidence, nor even any theory, to suggest that this fundamental premise is incorrect. How then can it be problematic for the odds of a guilty finding to increase with the size of the incentive offered? Dr. Patry offers no explanation. For him to caution the jury against taking into account the amount of incentive in determining truthfulness runs contrary to common sense, contrary to binding case authority, R. v. Hart, at para.102, and is wholly unsupported by science or the academic literature. Likewise, Dr. Patry’s proposed testimony as to a history of substance abuse being a risk factor for making a false confession is wholly unsupported by any evidence – factual, scientific, academic, or otherwise.

[33] Finally, I have some difficulty seeing Dr. Patry as an impartial expert on this issue. He seems to be opposed to the very idea of a Mr. Big operation. For example, he wrote in an article that the Mr. Big procedure “may seem extreme but is becoming quite common.” In another article, he referred to it as a “dangerous development.” He mentioned in his evidence that this kind of operation is only conducted in Canada. Under cross-examination as to his opinion of the Mr. Big technique he said, “People from other countries are shocked when I tell them about it.” Dr. Patry is entitled to his own opinion. However, the Supreme Court of Canada has held that the Mr. Big technique is an acceptable police procedure, provided the tests for the admission of the evidence elicited are met. I found Dr. Patry to be a bit too much of an advocate, rather than an impartial witness offering expert advice.

[34] That said, for me, the primary and overwhelming basis for not permitting this evidence to be put before the jury is that it is unnecessary. Clearly, there can be problems with inculpatory statements made to undercover officers in a Mr. Big operation. These dangers must be guarded against and juries must be made aware of them. However, I do not see this type of instruction as being any different from the dangers of eye-witness testimony. Many wrongful convictions have been based on the evidence given by honest but mistaken eye-witnesses. There are psychologists and other social science experts with specialized knowledge of this phenomenon. Nevertheless, the danger in relying on eye-witness testimony is dealt with by a strongly-worded jury instruction. Expert evidence is not necessary.

[35] Similarly, in R. v. D.D., the Supreme Court of Canada held that an expert witness is not necessary to explain to a jury that victims of sexual assault do not always complain immediately after they have been attacked. Major J., writing for the majority, reviewed the evolution of the law of recent complaint in sexual assault cases and noted that the current state of the law was that relying on the stereotypical view that victims of sexual aggression are likely to report the acts constitutes reversible legal error. He then held (at para. 64):

Given that the statement of principle expressed by Dr. Marshall [the proffered child psychologist] reflects the current state of Canadian law, it could have and should have been included in the trial judge’s instructions to the jury. As this would have effectively dispelled the possibility that the jury might engage in stereotypical reasoning, it was not necessary to inject the dangers of expert evidence into the trial.

[36] And further, at paras. 69-70:

The doctrine of recent complaint as a principle of law did not exist in Canada at the time of the trial. The expert evidence supported the wisdom of having abolished that principle. There was no basis for the exercise of the trial judge’s discretion to permit expert evidence that supported the correctness of the change in our law.

As a result, the expert evidence led in this case, as disclosed by the trial record, was not capable and did not meet the second requirement of necessity in the Mohan analysis. If a proper jury instruction had been given, there was no possibility that the jury would have been unable to grasp the concept because of its technical nature, there being none in this case. There was no possibility that the jury would reach an erroneous conclusion if not assisted by the expert.

[37] As I have found in R. v. Omar #2, 2016 ONSC 4065, this was a Mr. Big operation and the framework for analysis established by the Supreme Court of Canada in R. v. Hart applies. The Supreme Court of Canada decisions in Hart, and also in R. v. Mack, 2014 SCC 58, which was released shortly after Hart, have settled the law as it relates to Mr. Big operations. These judgments set out the dangers of confessions obtained in this manner and the factors to be considered in determining whether they are, nevertheless, reliable. Further, in Mack, the Supreme Court specifically contemplated the content of the direction that should be given by the trial judge. Moldaver J. held (at paras. 52-54):

With respect to the reliability concerns raised by a Mr. Big confession, the trial judge should tell the jury that the reliability of the accused’s confession is a question for them. The trial judge should then review with the jury the factors relevant to the confessions and the evidence surrounding it. As explained in Hart, the reliability of a Mr. Big confession is affected by the circumstances in which the confession was made and by the details contained in the confession itself. Thus, the trial judge should alert the jury to “the length of the operation, the number of interactions between the police and the accused, the nature of the relationship between the undercover officers and the accused, the nature and extent of the inducements offered, the presence of any threats, the conduct of the interrogation itself, and the personality of the accused” — all of which play a role in assessing the confession’s reliability (see Hart, at para. 102).

Moreover, the trial judge should discuss the fact that the confession itself may contain markers of reliability (or unreliability). Jurors should be told to consider the level of detail in the confession, whether it led to the discovery of additional evidence, whether it identified any elements of the crime that had not been made public, or whether it accurately described mundane details of the crime the accused would not likely have known had he not committed it (see Hart, at para. 105).

This is not to suggest that trial judges are required to provide a detailed catalogue of every piece of evidence that might bear on the reliability of the confession. The task is simply to alert the jury to the concern about the reliability of the confession, and to highlight the factors relevant to assessing it.

[38] There is nothing of substance from the evidence of Dr. Patry that is not included in these instructions. As was held in D.D., it is not necessary to call an expert witness to testify as to something that has already been settled in the case authority, particularly when this can be done by an intelligible and straightforward jury instruction.

[39] Finally, in my view, I am bound by the decision of the Ontario Court of Appeal in R. v. Osmar, 2007 ONCA 50, which dealt with this very issue and which, in my view, is not distinguishable. In that case, Mr. Osmar was suspected of two murders, but police had little evidence to connect him to the crimes. A Mr. Big strategy was used, in the course of which undercover officers posing as criminals gave Mr. Osmar the opportunity to work for their organization. He was required to prove his trustworthiness to the head of the organization. In his meeting with “Mr. Big” (also an undercover officer), Mr. Osmar gave details of both killings. Mr. Osmar was charged with two counts of first degree murder. The defence sought to call a social psychologist, Dr. Ofshe, to testify about three matters: (1) the bias among lay people against the idea that an innocent person might falsely confess; (2) what motivates a person, including an innocent person, to confess to a person in authority; and (3) factors to consider in determining whether a confession may be false. On a pre-trial motion, Kozak J. found the expert evidence of Dr. Ofshe to be inadmissible. That ruling was upheld by the Ontario Court of Appeal.

[40] The Court of Appeal held that the proposed expert evidence did not meet the Mohan test and, in particular, failed to meet the necessity requirement. Rosenberg J.A. held (at para. 68) that Dr. Ofshe’s evidence “was not about matters on which ordinary people are unlikely to form a correct judgment.”

[41] The Court of Appeal noted that virtually all of Dr. Ofshe’s experience with false confessions related to traditional police interrogations. The same is true for Dr. Patry. Although Dr. Patry has read about and considered the impact of Mr. Big confessions, his evidence was largely based on extrapolating from the body of knowledge relating to traditional police interrogations and applying that to the Mr. Big scenario. He confirmed that there is no empirical research to confirm the validity of applying those principles in the Mr. Big scenario. In considering the issue of expert testimony on the phenomenon of false confessions, the Court of Appeal held (at para. 69):

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

[42] The Court of Appeal in Osmar also found Dr. Ofshe’s evidence to be unnecessary on the issues of inducements causing false confessions and on the ways of determining whether a confession may be false, holding as follows at paras. 70-71:

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

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

[43] The Osmar decision pre-dated Hart and Mack by seven years. Even without the benefit of those Supreme Court of Canada decisions, the Ontario Court of Appeal found evidence from a psychologist about the Mr. Big technique to be inadmissible. Given the thorough analysis in Hart and Mack as to the dangers associated with Mr. Big operations, and the factors to be taken into account in determining whether any admissions obtained are truthful, the situation now is even more strongly in favour of excluding this evidence.

E. CONCLUSION

[44] I find the opinion evidence of Dr. Patry is not necessary for the jury to determine the issues before it. Accordingly, that evidence is not admissible at trial.

MOLLOY J. Released: June 21, 2016

COURT FILE NO.: CR-14-30000319-0000 DATE: 20160621 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – LIBAN OMAR Defendant/Applicant REASONS FOR DECISION #4 Molloy J. Released: June 21, 2016