ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Neil J. Deitrich and Elizabeth Wilson, for the Crown
- and -
CHRISTOPHER SKINNER
Kirsten Van Drunen, for the accused
HEARD: December 13-14, 2016, and January 10-11, 2017
LEACH J.
Introduction and overview
1The accused, Christopher Skinner, is charged with one count of second degree murder contrary to s.235(1) of the Criminal Code of Canada, (“the Code”). The charge relates to the death of a one-year-old child, which occurred on or about September 12, 1994. At the time, the accused apparently was in a relationship with the child’s mother.
2A three week jury trial currently is scheduled for the Stratford trial sittings in May of 2017, and the defence brought a number of pretrial applications.
3The first such application concerned statements made by the accused during the course of what is known variously in the vernacular as a “cell insert”, “cell plant” or “undercover cell” operation; i.e., an investigative exercise wherein an undercover officer, pretending to be another detainee, is placed in close proximity to the accused while the accused is in custody, after being arrested. In this case, after being arrested on the murder charge that brings him before the court, the accused was placed in a holding cell between two other holding cells, each containing an undercover officer pretending to be another detainee.
4The application itself essentially had several components to it, and was argued before me only in part.
5In particular, the first component of that application claimed that the relevant “cell insert” operation breached the accused’s right to silence, guaranteed by section 7 of the Canadian Charter of Rights and Freedoms, (“the Charter”). Relying on sections 7 and 24(2) of the Charter, the accused argued that evidence of the statements made by him during the “cell insert” operation should be excluded. In response, the Crown denied the existence of any section 7 Charter breach, and argued in the alternative that the circumstances do not warrant exclusion of the “cell insert” evidence pursuant to s.24(2) of the Charter.
6The remaining components of that application effectively were conditional on the outcome of the first. In particular, if evidence of the “cell insert” conversations was not excluded in its entirety pursuant to the aforesaid Charter arguments relating to section 7, the defence intended to argue that such evidence still should be excluded, in whole or in part, based on the court’s residual discretion to exclude evidence which has a prejudicial effect outweighing its probative value, thereby ensuring the accused’s right to a fair trial, guaranteed by s.11(d) of the Charter.
7However, those remaining components of the application were not argued in their entirety during the course of the first substantive hearing before me in advance of trial.
8I instead was asked, if and as necessary after ruling on the section 7 Charter application, to make a preliminary ruling as to whether the remaining aspects of the defence application, addressing prejudicial effect in relation to probative value, should be governed by at least some of the principles outlined in R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544, which addressed statements and confessions made to police in the course of “Mr Big” operations. In that regard:
The typical hallmarks of “Mr Big” operations were described in detail by the Supreme Court Canada in R. v. Hart, supra. Generally, they target a person suspected of having committed a serious unsolved crime. Undercover officers, posing as criminals, engage in sustained efforts to recruit the target into a fictitious criminal organization. Those recruitment efforts usually involve the target being invited to participate in “simulated crimes”, and other methods aimed at persuading the target that membership in the supposed criminal organization carries significant social and financial rewards. The operation culminates in a meeting, akin to a job interview, at which the target meets with the person supposedly at the helm of the fictitious organization. That person then seeks a confession to the target’s suspected actual crime, as a condition of admission to the organization and its rewards.
The Supreme Court of Canada found that such “Mr Big” operations, and the confessions they generate, pose significant risks and concerns. In particular, they raise the spectre of unreliable confessions, (offered in the face of powerful inducements and sometimes veiled threats), which nevertheless provide compelling evidence of guilt and a corresponding clear and straightforward path to conviction. Such confessions also invariably are accompanied by highly prejudicial evidence that the accused willingly participated in simulated crimes, and was eager to join a criminal organization. Moreover, “Mr Big” operations are potentially abusive and coercive, particularly insofar as they cultivate an aura of violence to demonstrate that those betraying the criminal organization are met with violence.
As existing law provided insufficient protection to accused persons who confess during “Mr Big” operations, the Supreme Court of Canada formulated a “two-pronged response”. The first prong recognized a new common law rule of evidence whereby such confessions are treated as presumptively inadmissible; a presumption that is overcome only where the Crown can establish, on a balance of probabilities, that the probative value of the confession outweighs its prejudicial effect. The second prong of the response relies on the “abuse of process” doctrine to guard against state misconduct threatening the integrity of the justice system and the fairness of trials; e.g., by not permitting operations that overcome the will of an accused and coerce a confession, and/or operations that prey on an accused’s vulnerabilities, (such as mental health problems, substance addictions or youthfulness).
In this case, defence counsel readily and candidly acknowledged that the “cell insert” operation used by police, in relation to Mr Skinner, was not a “Mr Big” operation, as described by the Supreme Court of Canada. However, the defence argued that various aspects of the “cell insert” operation in this particular case raised very similar risks and concerns, warranting application of the “first prong” of the response fashioned in R. v. Hart, supra. In particular, the defence asked for a preliminary ruling that statements made by the accused during the “cell insert” operation are presumptively inadmissible, such that evidence of the statements should be excluded at trial unless the Crown established, on a balance of probabilities, that the probative value of the statements outweighed their prejudicial effect.
In response, the Crown argued that R. v. Hart was focused on “Mr Big” operations, which involve risks and concerns significantly different from the “cell insert” operation in this case, and that the specific response formulated by the Supreme Court of Canada to address “Mr Big” confessions therefore should not be extended, expressly or by analogy, to the statements made by Mr Skinner during the relevant “cell insert” operation. In effect, the Crown took the position that Mr Skinner’s statements should be presumptively admissible under the “party admissions” exception to the hearsay rule, unless the defence established, on a balance of probabilities, that the prejudicial effect of the evidence outweighed its probative value.
9During the hearing before me, the first pretrial application accordingly was argued only to the extent of addressing:
i. the section 7 and s.24(2) arguments raised by the accused; and
ii. the defence request for a preliminary ruling on the suggested application of R. v. Hart to later argument and determination of whether evidence of Mr Skinner’s statements during the “cell insert” operation should be excluded based on an assessment of probative value and prejudicial effect.
10The balance of the first defence pretrial application was then scheduled for hearing, if necessary, during the week of February 27 to March 3, 2017.
11A second defence pretrial application, concerning statements voluntarily and knowingly made by the accused to an investigating officer during the course of a formal police interview, (which the defence sought to exclude in whole or in part, relying on the same residual discretion of the court to exclude evidence with prejudicial effect outweighing probative value), was scheduled for argument on the same hearing dates.
12However, those arrangements then were overtaken by subsequent developments.
13In particular, I had intended to complete and release my reasons for decision on the initial aspects of the first pretrial application at least two weeks in advance of February 27, 2017, in order to provide counsel with ample time to reflect on that decision and make appropriate preparations for their further anticipated submissions. However, although I had reached a decision by February 13, 2017, it became clear that I would not have an opportunity to finalize my reasons before commencement, that day, of what was anticipated to be a busy three week trial sitting. I therefore instructed the trial coordinator to advise the parties:
that, for reasons to be set forth later in my extended typed endorsement, I was granting the defence application to exclude, in their entirety, evidence of the accused’s statements during the relevant “cell insert” conversation the Crown intended to offer in evidence; i.e., the conversation that took place between the accused and the two undercover officers following the accused’s formal police interview;
that, while I also had formed a view as to the possible application of R. v. Hart principles to this situation, (had the section 7 Charter argument not succeeded), my views and comments in that regard now would be obiter, and I therefore thought it best not to express such views in the circumstances; and
that my formal endorsement would follow as soon as possible.
14The parties subsequently advised that, in light of my decision, and after further discussion by counsel resulting in an agreed disposition of the second defence pretrial application, further submissions during the week of February 27th would not be required. On that date, the matter was simply adjourned to the May trial sittings, with Mr Skinner being remanded accordingly.
15What follows is my promised endorsement outlining the reasons for my decision on the argued aspects of the first defence pretrial application.
Evidence – General Comments
16The section 7 Charter application and defence request for a preliminary ruling on the possible application of R. v. Hart principles were argued on the basis of the same evidence, which included the following:
Portions of an affidavit sworn by Detective Jeff McGregor, (a constable with the Stratford Police Service, an investigating officer in this case, and the officer to whom the accused knowingly and voluntarily made statements during the aforesaid formal police interview), tendered in support of an application, prior to the relevant “cell insert” operation being carried out, for an “Authorization to Intercept Communications with consent” pursuant to s.184.2(1) of the Code, and a related sealing order pursuant to s.187(1) of the Code. The content of those excerpts from the relevant affidavit includes an outline of the contemplated operational plan for the “cell insert” operation, whereby:
The accused would be arrested at a correction centre, in Penetanguishene, and transported to the cell block area of the Stratford Police Service to await his show-cause bail hearing on the second-degree murder charge;
On July 7 and into July 8, 2015, as necessary, two undercover officers, “playing the role of arrested persons”, and “posing as prisoners”, would be placed in cells on either side of the cell holding the accused, to engage the accused in conversation, and “participate in the natural flow of conversation”, including “the reasons for being in jail” and “any discussion about the offences for which [Mr] Skinner is there”;
The accused would be removed from his cell at some point for an interview, (conducted by Detective McGregor), before then being placed back in his cell, beside and between the undercover officers; and
The conversations between the undercover officers and Mr Skinner, before and after Mr Skinner’s interview with Detective McGregor, would be recorded using the closed circuit television recording system of the Stratford Police Service, (with the undercover officers having provided a “One Party Consent Authorization” to the recording).
A video recording and corresponding transcript of the conversation, (referred to in the relevant application record as “Statement #1”), that took place between the accused and the two undercover officers before his removal from the cell block area for a formal interview conducted by Detective McGregor;1
A video recording and corresponding transcript of the conversation, (referred to in the relevant application record as “Statement #2”, that took place between the accused and the two undercover officers after his return to the cell block area, following the formal interview conducted by Detective McGregor;2
Viva voce testimony from Staff Sergeant Jason William Clarke, of the Stratford Police Service, who acted as a local “handler” in relation to the two undercover officers participating in the cell insert operation;
Viva voce testimony from Detective McGregor;
Viva voce testimony from U.C.H.3, a police officer from outside the Stratford Police Service, and one of the two undercover officers participating in the cell insert operation; and
Viva voce testimony from U.C.B., another police officer from outside the Stratford Police Service, and the other of the two undercover officers participating in the cell insert operation.
17A transcript of Detective McGregor’s formal interview of Mr Skinner did not form part of the material placed before the court in relation to the defence pretrial application I was called upon to address first. However, it did form part of the material filed in relation to the second defence pretrial application, requesting a ruling that would exclude portions of that admittedly voluntary statement from being admitted into evidence at trial.
18During the course of testimony from the two undercover officers, video recordings of the conversations they had with the accused, (corresponding to the two transcripts noted above), also were played, on consent, to refresh the officers’ memories, (e.g., as to what had been said and by whom, during the conversations with Mr Skinner), with a particular view to clarifying and correcting portions of the corresponding transcripts.
19Pursuant to a ruling I made at the outset of the application’s hearing, (for reasons delivered orally on December 13, 2016), all witnesses called to deliver viva voce testimony at the hearing of the application nominally were called by the defence. However, the rules normally applicable to questioning of one’s own witness were altered, such that testimony proceeded by way of an optional examination-in-chief by Crown counsel, (an opportunity generally declined by Crown counsel), cross-examination by defence counsel, and extended re-examination by Crown counsel, (in respect of which Crown counsel was given wide latitude).
20Finally, by way of general comments on the evidence received during hearing of the application, the intended purpose and relevance of the two video recordings and corresponding transcripts should be noted and emphasized. In particular:
As noted above, I was asked to consider, in relation to the accused’s application, video recordings and corresponding transcripts of the “cell insert” conversations that took place before and after the accused’s interview with Detective McGregor; i.e., both “Statement #1” and “Statement #2”.
However, the Crown confirmed that, at trial, (and subject to the court’s rulings in relation to the accused’s pretrial application), it intended to lead evidence only in relation to the statements made by Mr Skinner during the “cell insert” conversation that took place after his interview with Detective McGregor; i.e., what has been described in the relevant application record as “Statement #2”.
In terms of requested relief, the accused’s section 7 Charter application therefore focused on formal exclusion of the “cell insert” conversation reflected in the video recording and transcript associated with “Statement #2”.
It was not disputed, however, that evidence of both “cell insert” conversations was relevant to determination of the issues raised by the accused’s application.
Evidence – Background and context
21While I will have more to say about certain evidence in the course of my reasons, (including particular aspects of the “cell insert” conversations between the accused and the two undercover officers), the following findings form the basic context and background for my analysis:
As noted above, the matter which currently brings Mr Skinner before the court relates to the death of a one-year-old child, which occurred on or about September 12, 1994.
Although police carried out an investigation at the time of the child’s death, including questioning of Mr Skinner, it seems no charges were laid. Mr Skinner nevertheless apparently remained a suspect in what progressively became a “cold case”.
On December 31, 2014, Detective McGregor began working on renewed investigation of the case by looking at two persons of interest, one of whom was Mr Skinner. Those inquiries included contact with Mr Skinner’s former probation officer, who provided recent information about Mr Skinner which included the following:
he was no longer residing in the Stratford area;
he had no recent history of employment;
he had been living at a shelter for homeless people in Cambridge;
he was known to use illicit drugs; and
he had been seeing a named psychiatrist, who had made a formal diagnosis confirming that Mr Skinner also suffered from a mental illness known as “schizoaffective disorder”.4
Detective McGregor also spoke with Mr Skinner’s former partner, who confirmed that Mr Skinner was estranged from that partner and the couple’s children.
In March of 2015, members of the Stratford Police service carried out surveillance in relation to Mr Skinner.
In May of 2015, as part of his ongoing investigation, Detective McGregor requested further police surveillance of Mr Skinner, (by members of the Stratford Police Service including Staff Sergeant Clarke), in an effort to confirm Mr Skinner’s current whereabouts and activities. At the time, Mr Skinner was residing in the Town of Mitchell, at the home of his parents. During a day of such surveillance, carried out as Mr Skinner travelled alone around Mitchell on a bicycle, police noted that he was exhibiting unusual behaviour. His movements were erratic, as he proceeded in and out of various shops, paced back and forth, and consumed numerous sugar-laden products. He also carried out extended conversations with himself and/or imaginary companions, while looking off towards nothing and/or up into the sky.5
By the second or third week of June, 2015, Detective McGregor had concluded that he had reasonable and probable grounds to arrest Mr Skinner on a charge of second degree murder, and he intended to do so. At the same time, he also was contemplating formal questioning of Mr Skinner and the possibility of a “cell insert” operation, to be carried out shortly after the intended arrest. In that regard:
The possibility of a “cell insert” operation had been brought up during discussions Detective McGregor had with an Inspector and Deputy-Chief of police.
Detective McGregor in turn then broached the subject with Staff Sergeant Clarke. At the time, Staff Sergeant Clarke was head of the Stratford Street Crimes Unit, and therefore the member of the Stratford Police Service in charge of coordinating such undercover officer operations.
The goal of the contemplated operation was to obtain further relevant and legally admissible evidence about the alleged crime. In particular, the police were hoping to hear, from Mr Skinner’s own mouth, possible information about his recollections and involvement in relation to the alleged homicide that was being investigated. Detective McGregor had no idea whether Mr Skinner would speak with him during a formal interview, and therefore wanted arrangements in place to “capture” whatever Mr Skinner might say if he went back to the cells and started to discuss things. As emphasized by Detective McGregor, he wanted to be “thorough” and “cover all the bases”.
Staff Sergeant Clarke agreed that the contemplated “cell insert” operation was a viable option and possible investigative tool in the circumstances, if there was a confirmed indication of when and where Mr Skinner would be held in custody.
As it happened, Detective McGregor had learned that Mr Skinner was then being held at the Central North Correctional Centre in Penetanguishene, Ontario, as the result of criminal proceedings stemming from Mr Skinner’s use of methamphetamine. Moreover, Detective McGregor also had learned that Mr Skinner was scheduled to be released from that facility, and allowed to go free, on July 7, 2015. Detective McGregor therefore formed a plan whereby Mr Skinner would be arrested by the Stratford police, on a charge of second degree murder, as he was being released from the Penetanguishene corrections facility on July 7, 2015.6 Mr Skinner then would be transported back to Stratford, and a cell block of the Stratford Police Service, to await a “show cause hearing”. During that wait, Detective McGregor would question Mr Skinner, with the interview being bracketed by the contemplated “cell insert” operation. In Detective McGregor’s view, the timing and circumstances of the contemplated arrest would increase the likelihood of Mr Skinner being sober and clear-headed during the course of the anticipated formal interview and contemplated cell conversation with the undercover officers.
Shortly after his conversation with Detective McGregor, Staff Sergeant Clarke reached out to the officer in charge of overseeing the provincial “pool” of undercover officers used for such operations, asking for assistance. In doing so, Staff Sergeant Clarke indicated that the Criminal Investigation Division (C.I.D.) of the Stratford Police Service was investigating a “cold case” homicide, that an arrest was going to be made, and that the C.I.D. was looking for undercover officers from the provincial pool to conduct a “cell insert” operation at police headquarters in Stratford. Staff Sergeant Clarke did not request provision of any specific number of undercover officers for that purpose.
On or about June 30, 2015, the officer overseeing the provincial pool of undercover officers informed Staff Sergeant Clarke that two such officers would be provided, to the Stratford Police Service, to assist in carrying out the contemplated cell insert operation. Staff Sergeant Clarke then relayed that information to Detective McGregor, along with the names of the particular undercover officers who would be participating in the contemplated “cell insert” operation, (i.e., U.C.H. and U.C.B.), so that Detective McGregor could process the necessary application for an Authorization to Intercept Communications on consent.7
On or about the same day, (i.e., June 30, 2015), Staff Sergeant Clarke contacted U.C.H. and U.C.B. to advise that he would be their local “handler” in relation to a contemplated “cell operation”. At the time, Staff Sergeant Clarke provided little more than that simple description of what was intended. However, he did relay consent forms prepared by Detective McGregor, relating to the contemplated “interception” of cell communications between the undercover officers and Mr Skinner, for signature and return. Staff Sergeant Clarke also provided, by email, a copy of “R. v. Carter”, which U.C.H. described, in his notes, as being a “2011 O.J.” decision.8 In preparation for the contemplated “cell insert” operation, U.C.H. also independently reviewed a number of other reported legal decisions relating to such situations.9
On or about July 3, 2015, Detective McGregor applied for and obtained the “Authorization to Intercept Communications on consent” and corresponding sealing order described above.
On July 7, 2015, Detective McGregor and two other detectives from the Stratford Police Service, (Sergeants Kolkman and Campbell), attended at the corrections facility in Penetanguishene. At approximately 7:00am, they arrested Mr Skinner on a charge of second degree murder, as he was being released from custody. Detective McGregor confirmed that, according to the most recent information available at the time of Mr Skinner’s arrest, Mr Skinner was still unemployed and suffering from a formally diagnosed mental illness. Indeed, prescription medication for the treatment of that mental illness was in Mr Skinner’s possession at the time of his arrest.
Shortly after Mr Skinner’s arrest on the second degree murder charge, (which included his being advised of his rights to legal counsel and provision of the standard caution), steps were taken, at Mr Skinner’s request, to facilitate his access to legal counsel by telephone. The first two lawyers contacted, (Mr Cummings and Ms Van Drunen), were not available. However, Mr Skinner was able to speak privately by telephone with a third lawyer, (Ms Robern), shortly before the detectives and Mr Skinner departed for Stratford, in the same vehicle, at approximately 7:30am.
The journey from Penetanguishene to Stratford would take approximately five hours, and to the knowledge of Mr Skinner, conversation within the police vehicle was being recorded for the duration. Along the way, stops were made to allow Mr Skinner opportunities to smoke, and to obtain snacks. While considerate, such stops were not out of the ordinary for a lengthy prisoner transport.
While still en route to Stratford with Mr Skinner, Detective McGregor was in telephone contact with Staff Sergeant Clarke, who advised that Ms Van Drunen, (the second lawyer whom Mr Skinner had attempted to reach earlier, and now Mr Skinner’s current counsel), had been located at the courthouse and wished to speak with Mr Skinner. Ms Van Drunen succeeded in reaching Detective McGregor by telephone shortly before 10:00am, (when the detectives and Mr Skinner were approximately half way through their journey to Stratford), and asked to speak with Mr Skinner. To facilitate that conversation, the detectives pulled to the side of the road, removed their recording device from the vehicle, and left Mr Skinner in the rear of the vehicle with Detective McGregor’s telephone. When the call ended, (after a temporary interruption in phone service), the detectives entered the vehicle again and resumed the journey to Stratford.
At approximately the same time, (i.e., around 10:00am on July 7, 2015), U.C.H. and U.C.B. arrived in Stratford to assist with the contemplated “cell insert” operation. They met with Staff Sergeant Clarke, who would be acting as their local “undercover handler” for the operation.10 In that regard:
Staff Sergeant Clarke formally would be responsible for the safety of the two undercover officers during the contemplated operation, (although it admittedly involved a low level of risk, given that the two undercover officers would be locked in their own separate holdings cells within the Stratford Police headquarters).
Staff Sergeant Clarke also would act as a “go between” or “buffer” between the undercover officers and the relevant investigating officer, (Detective McGregor), so that any questions or comments from one to the other would be relayed only indirectly. The purpose of the “buffer” arrangement was to help prevent possible “contamination” that might jeopardize effectiveness of the contemplated “cell insert” operation. In particular, while the undercover officers would be provided with a general indication as to the underlying offence being investigated, they deliberately would be given no specific details of how, when or where the alleged crime had occurred. That in turn would help prevent either undercover officer from asking leading questions or saying something else that might alert Mr Skinner, the target of the operation, to suspect or realize something was amiss; e.g., by either undercover officer inadvertently raising, in contemplated conversation with the suspect, any matter which should have been unknown to a person in the position of the role being played by the undercover officer.
Apart from the limited contact noted above, on June 30, 2015, there had been no previous meeting or discussion between Staff Sergeant Clarke and the two undercover officers concerning the operation. However, Staff Sergeant Clarke had worked with one of the two undercover officers, (U.C.B.), on a previous occasion.
During their meeting with Staff Sergeant Clarke, U.C.H. and U.C.B. were provided with basic information concerning Mr Skinner, the crime being investigated, and the intended operation. In particular:
The undercover officers were provided with Mr Skinner’s name, his date of birth, and an indication that Mr Skinner was believed to be a drug user with a preference for methamphetamine. No further information about Mr Skinner’s background or personal history, (including any possible criminal record), was provided. Nor did the undercover officers take it upon themselves to search for or review any records in that regard.
The undercover officers also were told that Detective McGregor was investigating a “cold case” homicide, in respect of which Mr Skinner was a suspect being arrested that day. No information about the victim was provided.
The undercover officers also were informed that, prior to Mr Skinner’s anticipated arrival later that morning, they would be placed in holding cells on either side of the one into which Mr Skinner would be placed.
Sergeant Clarke did not provide the undercover officers with any instructions or advice concerning what they should do or say during the course of the “cell insert” operation, or the limits of their involvement. In his view, it was part of the daily duties of the undercover officers, acting on their own, to “come up with the themes” and “cover story” concerning how they would act, and how they would portray themselves, during such an operation.
Staff Sergeant Clarke understood that the two undercover officers had reviewed case law dealing with such operations, but there were no specific discussions in that regard.11
U.C.H. and U.C.B. were told that the operation might last up to 24 hours. However, they also were told they would be removed from the holding cells at a time to be determined by Detective McGregor, (as the officer in charge of the investigation), when he felt, after discussions with Staff Sergeant Clarke, that their continued presence there was no longer required.
At the time, U.C.H. and U.C.B. each had received special training in undercover operations, including training on “rapport building”; i.e., how to build relationships with targets, usually by finding something the undercover officer’s chosen persona might have in common with the target, by cultivating an ability to speak with a target on his or her level, and/or by positive reinforcement through affirmative comments supporting or agreeing with what the target was saying. Indeed, U.C.H spent several weeks each year teaching covert operation skills to other officers. Each of U.C.H. and U.C.B. also had extensive experience working as undercover officers, in addition to performing other tasks for their respective police departments. Moreover, they previously had worked together in the course of various undercover operations, including major operations relating to more serious crimes.
As between themselves, U.C.H. and U.C.B. agreed that, to facilitate coordinated role playing during the course of the intended cell insert operation, and present themselves in a believable way to Mr Skinner, they generally would portray themselves as detainees who worked as a team on criminal enterprises, and who had been arrested together by local police, in or around Stratford, in connection with a warrant issued by police authorities in Montreal. Moreover, in the agreed scenario or “theme”, those same Montreal authorities supposedly would be coming to Stratford to retrieve the two men, and return them to Montreal, to face charges relating to their organized theft of goods transported in tractor trailers. U.C.H. and U.C.B. had used such a cover story successfully in the past, and it would make their contemplated role playing vis-à-vis Mr Skinner more credible, convincing and effective in a number of ways. In particular:
Engaging in a common criminal enterprise would help to explain why the two men had been arrested and detained at the same time. It similarly would explain why the two men would exhibit familiarity with each other during the course of any interaction with Mr Skinner.12
The alleged criminal activity of the two men was non-violent, which in turn would help the undercover officers avoid unnecessary and counterproductive intimidation of the accused; i.e., intimidation or fear that might make Mr Skinner less inclined to engage in conversation.13
The significant property value involved in the alleged criminal activity would nevertheless help to explain why police authorities in Montreal might consider it worthwhile to issue an arrest warrant with a wide geographic radius, and incur the time and expense of making a round trip journey to Stratford to retrieve the two men.14
Police authorities having to make the extended journey from Montreal to Stratford also would help to explain why the two men might be held in detention and remain in their Stratford holding cells for a lengthy period of time; e.g., throughout the duration of Mr Skinner’s contemplated detention in the same cell block area.15
The particular venue for detention of the accused upon arrival in Stratford, and the location for carrying out the contemplated “cell insert” operation, was an area of holding cells on the main floor of the Stratford Police Services building, located at 17 George Street here in Stratford. In that regard:
The configuration of the relevant area is depicted in a hand-drawn sketch prepared by Detective McGregor, and marked as Exhibit 1 on the voir dire. It includes, to the south, a large rectangular area with a row of six numbered holding cells of equal size, (i.e., approximately five feet wide and eight feet deep), aligned against the area’s southern wall.
Those six individual cells, usually used for male detainees, are separated by cement wall partitions. The front of each cell consists of steel bars, with some of those bars configured into a sliding door to the cell. A cell occupant therefore is able to look out through the bars of his cell into the common walking area in front of the six cells, (i.e., the area which runs along the northern portion of the rectangular area), but not into any of the other cells, including any adjacent cell.16 Conversation between those in separate cells is nevertheless possible.
There are permanent video and audio facilities in place to enable monitoring of the area containing the six individual holding cells described above, and a number of signs posted in and around the area provide notice that such monitoring is possible within the “police facility”.17 The system is typically monitored for the safety of those in custody. In this case, however, the police contemplated and engaged in use of that existing closed circuit television recording system to monitor and record interaction between the undercover officers and the accused during the planned “cell insert” operation.18
Those placed in the relevant six holding cells usually are males who have been detained and arrested. They are under the control of the police, and are not able to leave their area of confinement.
At approximately 11:55am, on July 7, 2015, U.C.B. and U.C.H. were placed in holding cell number 1 and holding cell number 3 respectively. Those holding cells were located to either side of holding cell number 2, wherein Mr Skinner would be placed after his arrival in Stratford.
Sometime between noon and 12:30pm that day, (July 7, 2015), Mr Skinner and the three detectives escorting him arrived at police headquarters in Stratford. The active portion of the relevant “cell insert” operation commenced shortly thereafter, at 12:38pm, when Mr Skinner arrived in the relevant cell block area and was placed into holding cell number 2. The operation generally then proceeded as follows:
From approximately 12:40pm to approximately 2:20pm, Mr Skinner remained in holding cell 2. Again, his conversation with the two undercover officers during that period, (“Statement #1), is reflected in the video recording marked as Exhibit 3, and the corresponding transcript at Tab 3 of the relevant application record.19
At approximately 2:25pm, Mr Skinner was then removed from holding cell 2 and taken to an interview room for formal questioning by Detective McGregor, after receiving a secondary formal caution.20
During Mr Skinner’s temporary absence from the holding cell area, the two undercover officers also were removed from their respective holding cells. After being driven to a local restaurant to eat a meal, U.C.H. and U.C.B. were returned to the office of Staff Sergeant Clarke, where the holding cell conversations were being monitored. Apart from minimal conversation to ensure that the undercover officers had no concerns, and to confirm their ongoing willingness to remain in the holding cells “for as long as it took”, there was no substantive discussion between Staff Sergeant Clarke and the undercover officers about the “cell insert” operation. In particular, there once again were no directions given to the undercover officers about how they should be doing their assigned task. The undercover officers nevertheless were aware of the fact that Mr Skinner had been removed from the cellblock for a formal police interview, and that they would be going back into their assigned cells, to continue the operation, prior to Mr Skinner being returned to his holding cell after that interview.21
Detective McGregor’s formal interview of Mr Skinner lasted approximately three hours. During that time, Detective McGregor felt that Mr Skinner was sober, able to speak well, and able to recall events that were being discussed. The detective personally had no concerns about Mr Skinner’s clarity of mind. The interview ended at approximately 5:18pm, and Mr Skinner was returned to holding cell 2 at approximately 5:24pm.
From approximately 5:24pm to approximately 7:28pm, Mr Skinner remained in holding cell 2. Again, his conversation with the two undercover officers during that period, (“Statement #2”), is reflected in the video recording marked as Exhibit 4, and the corresponding transcript at Tab 4 of the relevant application record.22
The undercover officers were removed from the holding cell area at approximately 7:28pm, after conversation between Mr Skinner and the undercover officers had tapered off, followed by a long period of quiet. In particular, Detective McGregor indicated to Staff Sergeant Clarke that he was satisfied with the holding cell conversations and his formal questioning of Mr Skinner, such that there was no point in continuing the “cell insert” operation. Staff Sergeant Clarke then formally terminated the operation.
Throughout the course of the “cell insert” operation, conversation taking place in the relevant holding cell area was being monitored contemporaneously by Staff Sergeant Clarke and another member of the Stratford Police Service, (Detective Serf), using the closed circuit television system described above. Timeline notes were being taken, with a view to providing the undercover officers with later assistance in recalling events after the operation had been completed. Although Detective McGregor was occupied with other aspects of the investigation, (including his formal interview of Mr Skinner), he also would stop in from time to time to view the ongoing holding cell conversations, and discuss developments with Staff Sergeant Clarke.
Throughout the duration of the “cell insert” operation, Mr Skinner gave no indication whatsoever of any suspicion or realization that U.C.H. and U.C.B. were police officers, or anything other than what they professed to be. In that sense, their efforts to present themselves to Mr Skinner in a believable way appear to have been successful.
22Again, I will have further comments about the evidence during the course of my analysis.
Charter applications - onus
23Before turning to the specific issues raised by the accused’s Charter application, I pause briefly to note and confirm who bears what burdens in that regard.
24In particular, although the Crown will have the overall onus at trial to establish the guilt of the accused beyond a reasonable doubt, in relation to Charter applications such as the one before me, an accused generally has the onus of proving, on a balance of probabilities, that there have been constitutional infringements and that evidence obtained as the result of any infringement should be excluded.23
Charter breach analysis – Section 7
25In this case, the accused claims that the “cell insert” operation breached his right to remain silent, and therefore the rights guaranteed to him by section 7 of the Charter, which reads as follows:
- Everyone has the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
26There is no question that the rights extended by section 7 include a detained person’s right to silence; a well-settled principle that has been part of the basic tenets of our law for generations.24
GENERAL PRINCIPLES – SECTION 7 AND THE RIGHT TO SILENCE
27Further general principles relating to the right to silence include the following:
The essence of the right to silence is the fundamental notion that the person whose freedom is placed in question by the judicial process must be given a free, meaningful and informed choice of whether to speak to authorities or not.25
The right to silence arises and applies only after detention of a suspect, when the state takes control over the suspect and assumes responsibility for ensuring that his or her rights are respected. At that point, the accused is subjected to the coercive powers of the state through his or her detention, and the need arises to protect the suspect from the greater power of the state.26
However, an express assertion of the right to silence, (e.g., in the form of a declaration that the accused does not wish to speak to the authorities), is not a condition precedent to the right to silence and the application of corresponding protections such as those applied by the courts in relation to “cell insert” operations. It would be absurd to impose, on the accused, an obligation to speak in order to activate his or her right to silence.27
The ambit of the right includes not only the negative right to be free from coercion induced by threats, promises or violence, but a positive right to make a free choice of whether to remain silent or speak to the authorities.28
There is no absolute right to silence, in the sense of a right capable of being discharged only by waiver. Nor can all of a detainee’s speech immediately be deemed involuntary merely by virtue of his or her being detained. In particular, although placed in the superior power of the state upon detention, a suspect retains the right to choose whether or not he or she will make a statement to the police, and if the suspect chooses to make a statement, the suspect may do so. The state accordingly is not obliged to protect the suspect against making a statement, and it is open to the state to use legitimate means of persuasion, (short of denying the suspect the right to choose or depriving him or her of an operating mind), to encourage the suspect to do so. For example, the police may question an accused in the absence of counsel, after the accused has retained counsel, and if the police are not posing as undercover officers and the accused chooses to volunteer information, there will be no violation of the Charter.29
However, the state is obliged to allow the suspect to make an informed choice about whether or not he or she will speak to the authorities. The state accordingly may not engage in conduct which effectively and unfairly deprives the suspect of the right to choose; e.g., by engaging in tricks which effectively deprive the suspect of such a choice. Similarly, if the suspect chooses not to make a statement to the authorities, the state is not entitled to use its superior power to override the suspect’s will and negate his or her choice.30
The right to choose whether or not to speak to authorities, and the corresponding test for determining whether a suspect’s right to choose has been violated, essentially is defined objectively rather than subjectively. In particular, the right does not necessitate a particular state of knowledge on the suspect’s part over and above a basic requirement that he or she possess an operating mind. Once that has been established, the focus under the Charter shifts to the conduct of the authorities vis-à-vis the suspect.31
GENERAL PRINCIPLES – RIGHT TO SILENCE AND “CELL INSERT” OPERATIONS
28Conduct of the authorities in relation to use of undercover officers and agents, (e.g., in the context of “cell insert” operations), and the possible impact of such techniques and subterfuge on a suspect’s right to silence, has been the subject of more specific observations, principles and guidelines. They include the following:
The purpose of the right to silence is to limit the coercive power of the state to force an individual to incriminate himself or herself; it is not to prevent individuals from incriminating themselves per se. In every case where the right to silence is raised, there accordingly will be a threshold question as to whether the person who allegedly subverted the right to silence was an agent of the state.32
For example, as the right to silence is predicated on a suspect’s right to choose freely whether to speak to authorities (such as the police) or not, it generally does not affect voluntary statements made to fellow cell mates.33
However, even when the person witnessing a statement by the accused is found to be an agent of the state, and his or her status in that regard was not known by the accused at the time the statement was made, such considerations alone do not entail a breach of the accused’s right to silence. In particular, the right to silence does not rule out the use of undercover police officers. To the contrary, in affirming a detainee’s right to silence, the Supreme Court of Canada has preserved and defined an area of police investigation where undercover operations, including “cell block interviews”, are perfectly legitimate. For example, the right to silence is not breached by the use of undercover agents to simply observe and/or listen to a suspect. More generally, the use of undercover agents in circumstances where there is no eliciting behaviour on the part of the police, or their agents, entails no violation of the right to choose whether or not to talk to the police. If the suspect speaks in those situations, (even to an undercover officer), it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police. In that sense, the detainee’s speech is voluntary.34
However, choosing to speak to a fellow prisoner is “quite a different matter” than choosing to speaking to an undercover police officer posing as a fellow prisoner, (or a cell mate acting at the time as a police informant), when the suspect is ignorant of the fact that he or she actually is talking to an agent of the state. It does not reflect a choice to speak to the police, raises different concerns, and “different considerations will apply”. In particular, when the police improperly use subterfuge to interrogate an accused, improperly eliciting information they were unable to obtain by respecting the suspect’s right to silence, the accused has been deprived of his or her choice, and his or her constitutional right to silence has been subverted and breached.35
In short, when dealing with cases involving the right to silence and the use of undercover police officers, (e.g., in “cell insert” operations), courts are not concerned with subterfuge per se, but with subterfuge that, in actively “eliciting” information, violates an accused’s right to silence by depriving him or her of his or her choice whether to speak to the police.36 It accordingly is of no consequence that a police officer was engaged in a subterfuge, permitted himself or herself to be misidentified, or lied, so long as the responses by the accused were not actively elicited or the result of interrogation. Police can, within the limits imposed by the law, engage in limited acts of subterfuge and a legitimate area of police investigation.37 For example, an undercover officer in a “cell insert” operation is not obliged to confess that he or she is an undercover agent, or say nothing.38 The Supreme Court of Canada unambiguously has rejected adoption of an “absolute right to silence” standard or a “listening post” standard of complete passivity. An undercover officer may and indeed must interact with a suspect in a natural and convincing way.39
An atmosphere of oppression, (typically but not exclusively thought of as persistent questioning, a harsh tone of voice, or explicit psychological pressure on the part of the state agent), is not required to ground a finding that a detainee’s right to silence was violated.40 There need not be an effective “interrogation” in that pejorative sense. Again, the focus is on whether the state agent, in the course of the subterfuge, actively “elicited” information so as to violate the accused’s right to silence. Subtle interrogation, (e.g., through gentle questioning in a congenial atmosphere, using “honey not vinegar”), may still constitute active elicitation.41
As for what may constitute active “elicitation” in the sense required to establish a violation of the right to silence:
The Supreme Court of Canada has emphasized that it is difficult to give a short and precise meaning of “elicitation” in this context. One instead looks to a series of factors which test the relationship between the state agent and accused so as to answer this question: “Considering all the circumstances of the exchange between the accused and the state agent, is there a causal link between the conduct of the state agent and the making of the statement of the accused?”42
While the Supreme Court of Canada provided a list of factors to be considered in that regard, (arranged into two groups “for convenience”), it was emphasized that the list was not exhaustive, and that no one factor necessarily would be dispositive. They are, rather, guidelines to test the relationship between the state agent and the accused so as to determine whether there was a causal link between the conduct of the state agent and the accused so as to determine whether there was a causal link between the conduct of the state agent and the making of the statement by the accused.43
The first set of factors concerns the nature of the exchange between the accused and the state agent.44 In that regard, the focus is not on the form of the conversation, but on whether the relevant parts of the conversation were the functional equivalent of an interrogation. To make that determination, courts generally ask whether the state agent actively sought out information, (such that the exchange could be characterized as akin to an interrogation), or conducted his or her part of the conversation as someone in the role the accused believed the informer to be playing would ordinarily have done.45 More specifically, courts have focused on considerations that include the following:
whether the state agent was instructed not to initiate a conversation with an accused, ask leading questions or otherwise elicit information, (although such instructions do not end the inquiry as the state agent may have exceeded his or her instructions, and the state ought not to benefit from such a failure);46
whether the state-determined circumstances of an accused’s confinement and proximity with an undercover officer influenced his or her “choice” to speak to cell mates; e.g., by effectively creating an inevitability of conversation, and/or a situation where the psychological impact of confinement encouraged the accused to speak about that which likely weighed most heavily on his or her mind, namely, the charges against him or her;47
whether it was the state agent or the accused who initiated a relevant exchange, perhaps after lengthy pauses;48
whether it was the state agent or the accused who broached or returned to a particular subject-matter providing the context of an exchange;49
whether the accused hesitated or spoke freely about a subject;50
whether the accused continued to speak freely despite indications or reminders by the state agent that comments and admissions of misconduct might be repeated to authorities;51
whether the state agent allowed the conversation to flow naturally, (e.g., conducting his or her part of the conversation as someone in the role the accused believed the state agent to be playing ordinarily would have done, which may include simple allusion to concerns that someone in a “cell mate role” naturally would have), or directed or redirected the conversation to areas where he knew the police needed or were seeking information, (e.g., by straying from the flow of conversation or asking clarifying questions), and/or directed the conversation in any manner which “prompted, coaxed or cajoled” the accused to respond;52 and
whether the state agent requested any information from the accused or offered inducement of any kind for that information.53
The second set of factors concerns the nature of the relationship between the state agent and the accused at the time a statement was made. In that regard, courts will consider matters that include:
whether the state agent exploited any special characteristics of the relationship to extract the statement;
whether there was a relationship of trust between the state agent and the accused, (e.g., a situation where an undercover officer cultivated a sustained relationship with the accused over time such that the accused arguably may have spoken to the undercover officer in the reasonable expectation that his or her communications would not wind up in the hands of the police, in contrast to a situation where the state agent and the accused had no prior knowledge of each other and speaking of a “relationship” at all may exaggerate the circumstances);
whether the accused was obligated or vulnerable to the state agent, (which may involve consideration of the accused’s apparent level of sobriety, confidence, fear, intelligence and/or experience with the justice system); and
whether the state agent manipulated the accused to bring about a mental state in which the accused was more likely to talk, (e.g., by undermining confidence in a lawyer’s advice to remain silent, and/or by manipulating sympathies and supposed common interests and experience).54
Active elicitation is therefore not only difficult to define with precision, but also highly fact dependent and context sensitive. It may also be difficult to identify, as underscored by the reality that principled and reasoned analysis of the same particular circumstances may result in quite different judicial conclusions.55
29With the above principles in mind, I turn next to a consideration of their application on the facts of this particular case.
APPLICATION – SECTION 7 AND THE RIGHT TO SILENCE
30As noted above, although all concerned acknowledged the need to consider the circumstances of the “cell insert” operation in their entirety, the defence application sought to exclude evidence of remarks made by Mr Skinner during what has been described herein as “Statement #2”; i.e., the conversation which took place between Mr Skinner and the two undercover officers after Mr Skinner was returned to the Stratford holding cells after his formal interview with Detective McGregor. That was the only portion of the evidence generated by the “cell insert” operation upon which the Crown intended to rely at trial.
31In that regard, matters had not yet progressed to any final indication of the precise portions of Statement #2 upon which the Crown might rely; something which no doubt would have been clarified with more precision during contemplated submissions concerning probative value and prejudicial impact, had the section 7 Charter application not been successful.
32In my view, however, it seemed reasonably clear that the Crown was focused on aspects of Statement #2 capable of being grouped into two predominant categories.
33The first such category included comments made by Mr Skinner about the manner in which he claimed to approach and deal with police charges and questioning, including his formal interview with Detective McGregor, based on prior experience and legal advice. Evidence of such comments by Mr Skinner arguably might have relevance to the jury’s assessment of whether Mr Skinner was being candid and truthful during the course of formal questioning by Detective McGregor. For example, Mr Skinner talked about:
telling the police only what they already know;56
controlling his reactions when police assertions may come close to the truth, (“like playing darts and getting bulls eye and you weren’t trying for one”), when they “just…make something up [to] see if it sticks”;57
making a practice of counting to three before answering, so that “if you fucked up for an answer, you got three seconds to think of something”;58
attributing any noticeable “shaking on camera” to not having his “full medication”;59
looking examiners “in the eye” when they are talking;60
matching the physical movements of examiners, (e.g., leaning forward or backward in the same manner);61
taking care to control and balance his reactions and demeanour, (e.g., to not show disrespect while not letting them think he was “a bitch”, to avoid being “cocky” without “looking dumb”, and “checking” himself but not “too much”);62
being cautious of “tongue twister” questions that suggested no options but incriminating answers or incriminating non-answers;63
having “learned how to lie through [his] teeth”;64
being conscious of his body language and breathing;65
keeping his “story simple”66; and
sometimes admitting something, so the police will “know…you’re telling them … something that’s true”.67
34The second such category included comments made by Mr Skinner relating, or arguably relating, to the events underlying his second degree murder charge. In that regard, I think it fair to say that there was nothing in Statement #2 that came close to a clear “confession”, in the sense of any express indication or acknowledgment that Mr Skinner was responsible for the relevant infant death back in 1994. The comments he did make nevertheless included the following:
Shortly after referring to questioning by Detective McGregor, and expressing the view that the police had “fuck all”, were “just fishing”, and would not be interrogating him if they truly had new evidence against him, Mr Skinner said “But sometimes they’re bang on, and you, you think holy fuck, they know”.68
At a relatively early point during the second conversation, Mr Skinner referred to questions by Detective McGregor concerning Mr Skinner’s alcohol consumption of the day of the infant’s death, and allegations that Mr Skinner then “blacked out”, and/or “blacks out” or turns violent when drinking.69 Initially, nothing further was said about that, but the topics of drinking, blacking out and possible violence by Mr Skinner surfaced again intermittently, at various later points in the conversation. For example:
After an extended deviation in the conversation, Mr Skinner said: “Sure I blacked out drinking. I’m not telling him that.”70 Moreover, after apparently repeating a related question by Detective McGregor, (“Have you ever done something while you’re drinking you don’t remember?”), Mr Skinner said “Yeah, I pissed on the floor.”71
Still later in the conversation, (after a further extended deviation), Mr Skinner said, (with interjections by the undercover officers): “And I never hit, that I know of, anybody… Cause they’re saying that this person had lacerations in the liver, and … [the] skull was bashed in or something… And I said, well, I performed CPR on the person… That’s the only think I can think of. … I didn’t tell them anything different than in my statement 20 years ago… Cause, well, part of it’s true. I don’t remember from a certain point to a certain point. … No, I was blacked out, holy fuck. … I don’t know what’s going on, but… Sorta like shell shocked”.72
Towards the end of Statement #2, the conversation returned to the topic of Detective McGregor’s questioning, and Mr Skinner made additional comments, (again with interjections by the undercover officers), such as: “Cause if he (sic) had a lacerated liver, that would make it - - you’d bleed internally. … And then he said the skull was fractured. And that gave it a hematoma or whatever. Died instantly, he said. … Well, which is it? … I said, well, where’s your liver? Cause I told them at the hospital that I was trying to do CPR. … Maybe I did that, right? Maybe I broke the rib and that punctured the liver.”
After extended reference to police questioning techniques such as “tongue twister” questions supposedly leading to incriminating answers, and how Mr Skinner approached such questions, Mr Skinner referred to Detective McGregor’s questioning and said: “He’s not bad. Like if it was a kid…he would have had him, probably.”73
Mr Skinner recalled Detective McGregor’s questioning about the night of the infant’s death, and details of how the infant was taken to hospital. Mr Skinner described how he did not remember details of taking a cab, (e.g., as to the number of people in the cab at the time), although he did recall arriving at the hospital in one, emphasizing that it all had happened “fucking 20 years ago”, had “been a long fucking time”, and he had been “scared fucking shitless”.74
Much later in the conversation, Mr Skinner commented further on Detective McGregor’s questioning about the infant’s death and why it happened. He then said “Just ‘cause I was there doesn’t mean I did it”, and went on to reference a female who also was present at the time, (presumably the child’s mother), wondering if she was still alive, and whether she “fucked off”.75
35While the above examples may reflect the more pertinent aspects of Statement #2, I was mindful that the section 7 Charter application brought by the defence requested a ruling that the entire statement be made inadmissible at trial, based on an alleged pervasive and underlying breach of Mr Skinner’s right to silence.
36The allegation was firmly denied by the Crown, which took the position that nothing in the circumstances warranted exclusion of the comments Mr Skinner had made to the undercover officers.
37Before turning to what I considered to be the mandated analysis for addressing the issues raised by the section 7 Charter application, I note a number of considerations which were not relevant or determinative, in my view. In particular:
During questioning of police witnesses, Crown counsel initially placed some emphasis on the presence of signage in and around the cellblock area, advising people that areas of the police station were subject to audio and video monitoring. However, the point was not pressed by Crown counsel during argument. To the contrary, Crown counsel acknowledged that there was no evidence to suggest that Mr Skinner read those signs. Crown counsel also conceded that such signage did not make Mr Skinner’s statements to the two undercover officers admissible, and expressly indicated that the Crown was not asking the court to make its determination concerning the admissibility of Mr Skinner’s statements to the two undercover officers on the basis of such signs. I independently thought, and agreed with counsel, that this was not a case dealing with reasonable expectation of privacy.76 Mr Skinner was being detained in custody by the State, and the applicable and governing analysis instead related to his right to silence.
In contrast to a number of other authorities presented for consideration, this was not a case where statements made by Mr Skinner during the course of the “cell insert” operation occurred after express and repeated indications that the accused intended to assert his or her right to silence. However, as noted above77, an express assertion of the right to silence is not a condition precedent to the right to silence and the application of corresponding protections such as those applied by the courts in relation to “cell insert” operations. Moreover, there were numerous indications that Mr Skinner was focused on doing his best to follow his lawyer’s advice and exercise his right to silence.78
Crown counsel emphasized at numerous points during the course of submissions that Statement #2 followed Mr Skinner’s decision to make a number of voluntary statements to Detective McGregor during the course of his formal police interview. The implicit if not explicit suggestion was that Mr Skinner, by the time of Statement #2, had embarked on a course of conduct reflecting some form of personal decision not to embrace any determined exercise of a right to silence. However, as noted above79, the Supreme Court of Canada has emphasized that choosing to speak to a fellow prisoner is “quite a different matter” than choosing to speaking to an undercover police officer posing as a fellow prisoner, (or a cell mate acting at the time as a police informant), when the suspect is ignorant of the fact that he or she actually is talking to an agent of the state. Again, doing so does not reflect a choice to speak to the police, raises different concerns, and “different considerations will apply”.
38I accordingly turned to an application of what I considered to be the applicable and governing analysis relating to alleged breach of an accused’s right to silence in “cell insert” situations, set out above.
39Again, the focus in that regard was on whether, considering all the circumstances of the exchanges between Mr Skinner and the two undercover officers, (unquestionably “state agents” in this case), there was a causal link between the state agent conduct and the making of Mr Skinner’s statements.
40As for factors concerning the nature of the exchange between the accused and the state agents:
There was no evidence indicating that U.C.H. and/or U.C.B. received any express instructions not to initiate conversation with Mr Skinner, ask leading questions or otherwise elicit information. At most, there was evidence indicating that Staff Sergeant Clarke provided a case to U.C.H. and U.C.B. dealing with “cell insert” situations, and that U.C.H. supplemented that with a degree of “self-instruction” by independently reviewing additional authorities including R. v. Hebert, supra; R. v. Broyles, supra; and R. v. Liew, supra. There was no evidence indicating whether or not U.C.B. did the same. In any event, as noted above, instructions regarding elicitation, (however received), do not end the inquiry. There may or may not have been compliance with such instructions.
In my view, the state-determined circumstances of Mr Skinner’s confinement and proximity with U.C.H. and U.C.B. influenced his choice to speak to the two undercover officers. In that regard, I was not guided by the mere fact of confinement. To state the obvious, every person who is detained and/or arrested will experience feelings of isolation from familiar and trusted family members, friends and confidantes. However, in the particular circumstances of this case, I thought Mr Skinner was placed in a situation where those feelings, and a corresponding impulse to speak to those not perceived as being associated with the authorities, would have been reinforced and elevated. The circumstances combining to produce that result included the following:
Mr Skinner had just completed a period of incarceration, (and therefore isolation from any social support in the community), in a prison facility that was geographically distant from where he previously had been spending his time.
Anticipating release from custody and freedom, Mr Skinner suddenly was confronted with the reality of ongoing detention and probable continued custody on a charge of second degree murder.
He was then transported to Stratford, a community where he apparently had not resided for some time, and was not expecting to go. As he later indicated during the course of candid discussion with the two undercover officers, he worried that no one but his lawyer knew where he was.
While travelling to Stratford, Mr Skinner had spent, with the exception of two relatively brief telephone conversations with defence lawyers, over five hours in a confined space with three police detectives, in circumstances where he was made aware of the fact that everything said was being recorded. Upon placement in a Stratford holding cell, he was told that certain recording devices he knew about were being turned off.80
In contrast to other situations of incarceration, (such as a jail or detention centre ranges offering access to telephones and television), the holding cell arrangement in Stratford offered no means of external communication, and no other diversions and distractions to help pass time. Moreover, no one but police officers and other detainees visited or attended the relevant cellblock area during Mr Skinner’s time there.
While not having to share a holding cell, Mr Skinner nevertheless was situated between an undercover officer in each adjacent cell. In the result, Mr Skinner could not physically retreat very far from conversations with or between the undercover officers, or distance himself more than 6-12 feet from either undercover officer, (depending on where that particular officer was located within that officer’s own holding cell), and moving away from one undercover officer would simply bring Mr Skinner into closer proximity with the other. Mr Skinner then was exposed simultaneously to the conversational efforts of more than one undercover officer.81 Indeed, the authorities placed Mr Skinner literally in the middle of any conversation between the two undercover officers, in a cellblock area described by U.C.H. as being otherwise “extraordinarily quiet”. In my view, all of this naturally would have made it much more awkward and difficult for Mr Skinner not to join in any such conversation.
Mr Skinner had not yet been to court, where he might have encountered counsel, family or other supporters. He also had been informed that he had no prospect of making his first court appearance, in bail court, until the following day. In the intervening period, Mr Skinner would have no familial contact, no right to visitors, and no right to have his lawyer present during police questioning. In short, in the immediate wake of unexpectedly being arrested and charged with second degree murder, (a situation that inherently would be very stressful), and apart from his brief telephone conversations with lawyers, (whom he had not seen), Mr Skinner had been and would continue to be figuratively “on his own” vis-à-vis the authorities for a considerable period of time, generally confined to a relatively small space with nothing to occupy his attention but his own thoughts and possible conversation with those in adjacent cells. Apart from the police, U.C.H. and U.C.B., (who already were exhibiting friendship vis-à-vis each other), were and would be the only available points of human contact available to Mr Skinner.
I think it fair to say that it was the undercover officers who initiated conversation with Mr Skinner. As documented by U.C.H. himself in the notes he made immediately after the “cell insert” operation, Mr Skinner was noticeably quiet when placed in the holding cells, and did not respond to initial repeated efforts by the undercover officers to engage him in conversation.82 Apart from a belated and brief response to a question about the time of Mr Skinner’s arrival in the holding cell area, Mr Skinner did not engage with the undercover officers until he received the first indication of their cover story.83 Apart from occasional and relatively brief lulls, (often broken by comments from U.C.H. or U.C.B.)84, and interruption by attendance of a uniformed officer in the cell block, (after which U.C.H. and U.C.B. would restart dialogue with Mr Skinner)85, the first conversation between the undercover officers and Mr Skinner generally then proceeded without any extended silences until Mr Skinner was removed from the holding cells for his formal interview. Similarly, it was the undercover officers who immediately made efforts to resume the conversation upon Mr Skinner’s return to the holding cells86, and the conversation thereafter generally continued without any prolonged silences until things grew quiet toward the end of the operation. As during the first conversation, where there were pauses in the conversation, they frequently were interrupted by comments made by the undercover officers.87
Once initiated by the undercover officers, the conversation they had with Mr Skinner generally proceeded in a friendly and cordial way. Everything said by the two officers was “role appropriate”, in that their tone and substantive comments seemed consistent with what one might expect from characters such as those they were portraying. (Certainly, their role-playing was effective, insofar as it seems to have fooled Mr Skinner.) Moreover, I thought there were points in the two conversations when Mr Skinner himself was the one who arguably turned the discussion towards more sensitive subjects relevant to his second degree murder charge.88 However, such points occurred within a larger context affected not only by the various “relationship” considerations addressed below, but also by clear indications that the undercover officers periodically were directing and redirecting the overall flow of conversation in important ways, encouraging Mr Skinner to talk about the charge against him, the circumstances underlying the charge, and his response to police questioning in that regard.89 I also thought it noteworthy that, throughout the two conversations, the two undercover officers effectively encouraged Mr Skinner to keep talking through pervasive and almost constant comments of agreement, praise or other forms of positive reinforcement.90 In my view, the two undercover officers clearly were prompting, cajoling and coaxing information from Mr Skinner.
41As for factors concerning the nature of the relationship between the state agent and the accused at the time a statement was made:
I agreed with Crown counsel that Mr Skinner and the undercover officers clearly were not in any kind of long-standing or sustained relationship, and certainly not any relationship cultivated by the undercover officers over any significant length of time. There was no “relationship of trust” in that sense. The men had never met before the “cell insert” operation that day, and had shared no common prior experience or interaction that would have fostered any expectation that communications would remain confidential.
There similarly was no evidence to suggest that Mr Skinner was obligated to either of the state agents engaged in the relevant cell insert operation, in the sense of owing any duty or debt to either undercover officer.
In my view, however, I thought a combination of factors clearly made Mr Skinner much more vulnerable, (e.g., with less ability to remain stoic and silent, and a greater inclination to trust and talk with those apparently offering friendship and support), than others who may have been placed in a similar situation. Such factors included the following:
As noted above, Mr Skinner suffers from a serious and formally diagnosed mental illness. The extent to which that affliction was affecting him or under control at the time of his arrest and detention by the Stratford police was unclear. Certainly, many aspects of his recorded conversation with the undercover officers seemed lucid, organized and coherent. However, I also noted that the Stratford police apparently were having difficulty locating his prescription medication when he arrived at the holding cells in Stratford, and eventually were unable to locate at least one of the medications he was supposed to be taking at the time.91 Moreover, in my view, certain portions of Mr Skinner’s conversation seemed erratic and occasionally bizarre, and that tendency arguably became more pronounced over the course of the relevant day. For example, there were numerous instances when his thoughts apparently jumped rapidly between tangential or seemingly unrelated topics and memories, and/or where Mr Skinner blurted out inexplicable comments, the meaning of which occasionally became somewhat clear only by further statements indicating that his mind had moved on to another topic or memory.92 Other comments suggested beliefs and fears that seemed irrational and/or exaggerated.93 Other comments described, in a candid but disjointed way, one or more episodes of apparent mental breakdown.94
While I agreed with Crown counsel that various topics addressed by Mr Skinner in his conversations with the undercover officers suggested a level of experience and knowledge about various matters, including criminal activity and the justice system,95 I also agreed with U.C.B.’s assessment that Mr Skinner generally gave the impression of someone far from being a sophisticated, organized, urban criminal. To the contrary, in my view numerous aspects of Mr Skinner’s comments and tone strongly suggested an almost childlike naiveté.96
As noted above, Mr Skinner was addicted to drugs, and methamphetamine in particular, prior to his incarceration in Penetanguishene. While he apparently was sober and not under the influence of drugs at the time of his arrest by the Stratford police, his addiction and corresponding compulsions and needs remained firmly intact. In his candid conversations with U.C.H. and U.C.B., Mr Skinner repeatedly alluded to his involvement in the drug subculture, and his possession and use of drugs while out of custody.97 He also referred to his “four or five” unsuccessful courses of rehabilitation98, and indicated that he would have been “all fucked up” and “carrying” drugs within hours of his release from Penetanguishene had he not been “gated” by the Stratford police.99
Like many drug addicts, (who not only commit offences contrary to the Controlled Drugs and Substances Act, but also frequently resort to various forms of other criminal activity to finance their drug habit), Mr Skinner had an extended criminal history. This too was reflected in his conversations with the two undercover officers, wherein he described past numerous encounters with the police and episodes of detention and/or incarceration100, and awareness that his criminal record has limited his employment opportunities.101
Prior to his incarceration in Penetanguishene, Mr Skinner was unemployed and living the life of a transient in a homeless shelter, all of which reflects significant financial desperation. Such financial desperation would have been compounded by his period of incarceration, his ongoing drug addiction, and his corresponding need for money to purchase drugs and service that addiction. In my view, such considerations naturally would have enhanced Mr Skinner’s interest in pursuing associations or criminal activity promising substantial financial rewards.
At the time of his incarceration in Penetanguishene, Mr Skinner also was socially isolated. Again, he had no job and no home. He also was estranged from his partner and children. As noted above, such feelings of isolation, and his desire for supportive associations, would have been compounded by his incarceration and the circumstances of his ensuing arrest and detention by the Stratford Police on a charge of second degree murder.
Moreover, in my view the two undercover officers created a “temporary and situational” relationship that effectively exploited such vulnerabilities, and manipulated Mr Skinner to bring about a mental state in which the accused was more likely to talk. In that regard:
The defence highlighted certain aspects of the cellblock conversation wherein the undercover officers were said to have made comments effectively undermining the advice Mr Skinner received from legal counsel. I think there are indeed some indications of that, (although they are far more subtle than the sort of overt undermining of counsel advice demonstrated in cases such as R. v. Broyles, supra, and counterbalanced and offset to some extent by other comments arguably reinforcing the wisdom of the legal advice Mr Skinner had received). For example, in discussing anticipated questioning by police in relation to the second-degree murder charge, Mr Skinner reiterated some of the legal advice he had received, including instructions to “say nothing” and not talk, putting his head down on a table or curling up in a corner in a fetal position if necessary. U.C.H. and U.C.B. nevertheless respond immediately with suggestions that ongoing interaction with the police might allow Mr Skinner to “squeeze another cigarette” or obtain other police favours, such as the smoking opportunities and snacks he received while being transported back to Stratford.102 Such statements contrast with other instances where the undercover officers did not question or suggest deviation from the legal advice Mr Skinner had received.103
In their testimony, U.C.H. and U.C.B. also acknowledged their repeated use of techniques such as rapport building and “mirroring”, (e.g., generally agreeing with whatever Mr Skinner was saying and echoing his comments and experiences with similar or analogous ones), all of which clearly went a long way toward fostering an illusion of friendship between the three men.
However, of far greater importance, I think, is the relevance and impact of the particular cover story and personas adopted and played out by the undercover officers, which in my view amplified their efforts to engage and supposedly befriend Mr Skinner. To be clear, I accept that the choices made by U.C.H. and U.C.B. in that regard, as they embarked on the “cell insert” operation, were made for the general strategic reasons outlined above104, and did not reflect any deliberate intent to play upon Mr Skinner’s specific underlying vulnerabilities and interests. The two undercover officers clearly knew very little about Mr Skinner at the time and, in particular, initially were unaware of his familiarity with tractor-trailers. However, in watching and listening to the recorded holding cell interactions and conversations, I also think it abundantly clear that the cover story and personas adopted by U.C.H. and U.C.B. inadvertently but effectively hit upon matters of great interest to Mr Skinner, which strongly encouraged him to speak with the undercover officers. In particular, as it turned out, Mr Skinner felt that he had access to facilities and contacts which might offer considerable local opportunities and corresponding financial benefits to apparently experienced and mobile criminals engaged in the very lucrative theft of tractor-trailers, as well as drug related activities. In the result, the cover story and personas adopted, consistently played out and reinforced by the undercover officers strongly motivated sustained efforts by Mr Skinner to engage, befriend and hopefully impress his supposed “cell mates”, so that they would consider involving him in their particular supposed criminal enterprise, with corresponding social and financial benefits for Mr Skinner. That unexpected development was in turn reinforced by further role-playing statements of U.C.H. and U.C.B., all of which effectively aided U.C.H. and U.C.B. in eliciting statements from Mr Skinner.105 In my view, indications of that fundamental reality, context and explanation for Mr Skinner’s willingness to talk with U.C.H. and U.C.B. are evident throughout the two conversations. For example:
As noted above, Mr Skinner was noticeably quiet when placed in the holding cells, did not respond to initial repeated efforts by the undercover officers to engage him in conversation, and did not engage actively with the undercover officers until he received the first indication of their cover story; i.e., that U.C.H. and U.C.B. had just been arrested, and were being held, in relation to a matter prompting police to come from Montreal to retrieve the two men. Those indications obviously piqued Mr Skinner’s interest. In particular, they prompted further questions and comments by Mr Skinner, clearly reflecting a belief that the early cover story representations were an indirect indication of the two men being involved in significant crime.106 That in turn led the undercover officers to expand on their chosen cover story, making it clear they supposedly were involved in the lucrative theft and sale of tractor-trailer cargo shipments. Only then did Mr Skinner begin to discuss information about his own circumstances.107
Although other subjects were addressed, the conversations then returned repeatedly to the subject of lucrative tractor-trailer theft, and the possibility of Mr Skinner being able to assist U.C.H. and U.C.B. with those or other criminal activities in the future, including drug-related activity.108 For example:
The undercover officers referred to the multiple files the Montreal police supposedly would have in relation to U.C.H. and U.C.B., and the significant effort the Montreal police supposedly were expending to retrieve U.C.H. and U.C.B. from Stratford.109
The undercover officers repeatedly emphasized the significant “money to be made” from their tractor-trailer theft activity, that it was more than Mr Skinner expected, and that such activity generated “cash in hand” without drama, violence, “hassles” or significant repercussions, (e.g., as “Nobody even gives a fuck” because “it’s just insurance companies” who absorb the losses).110 Mr Skinner’s verbal reactions to such information, (e.g., “Holy shit”, “Yeah” and “Cool”), and requests for further details, (e.g., “So what, do you just find a driver and find out what he’s hauling and go from there?”), made it clear that he was very impressed by the information and opportunities the undercover officers were describing.111
The undercover officers reinforced their presentation as experienced criminals who had engaged in significant crimes over a broad geographic area; e.g., by making reference not only to their tractor-trailer thefts in Quebec, but also to their familiarity with money to be made from profitably selling illicit narcotics in Newfoundland, where they had a “wicked hustle going”.112 Such claims and opportunities also clearly impressed and interested Mr Skinner, who independently revisited the topic later in the conversation. For example, Mr Skinner proactively returned to the topic, suggesting to the undercover officers it would be a good idea to take narcotics directly from the manufacturing source to sell in Newfoundland and/or Vancouver, and the undercover officer embraced Mr Skinner’s suggestions emphasizing the “money to be made”.113
Mr Skinner repeatedly indicated to the undercover officers that he had local knowledge, contacts, and resources that might prove useful to the two undercover officers in their criminal activity, and repeatedly suggested that the three men could work profitably together. For example:
Mr Skinner emphasized that he had friends involved in the same sort of criminal activity114, including a “guy out this way” who “drives truck”, has “his licence”, and “knows all about trailers and shit”, as well as honey oil.115 Mr Skinner also offered to connect the undercover officers with the owner of a large seed-treating facility, (with international sales and therefore “trucks coming and going”), who might be willing to have stolen tractor-trailers, their cargo, and/or drugs hidden and/or unloaded in his large drive-in shed, and provide associated use of available fork-lift equipment, in exchange for a monthly payment of $5,000.116
Mr Skinner explained that he himself had access to two large tractor trailer units and a nearby “factory forklift”, facilitating storage of such stolen goods117, and that the two tractor-trailers were located in a rural location on a vacant property belonging to someone else, (thereby providing deniability in the event of detection), with limited and easily monitored approach roads, all of which would facilitate their use for offloading stolen goods, (particularly in the early morning hours), without “someone watching”.118 Mr Skinner even offered to build “a little unloading dock so a truck could back right in”.119
Mr Skinner claimed to have contacts who had experience committing crimes in Montreal and Quebec, (where the two undercover officers claimed to have committed theft of tractor trailers), as well as the aforesaid friend and a relative both capable of driving trucks.120
Mr Skinner claimed an ability to dispose of any stolen “rig and trailer”.121
Mr Skinner indicated that the tractor-trailers to which he had access also could be used for the drying and storing of marihuana. In that regard, he claimed to have experience with cultivating, harvesting and refining marihuana, (as well as associations with those able to refine marihuana into “honey oil”), and suggested that might be another joint enterprise in which the three men could participate.122 He claimed to “know people that, you know, would be interested probably in selling that”.123
Mr Skinner suggested to the undercover officers that it would be a bad idea to target or “deal with” a trucking company called Erb Transport, as he had noted posters for that company within the police station, suggesting that Erb Trucking might be “friends with the cops”.124
U.C.H. and U.C.B. did not discourage such overtures from Mr Skinner, or indicate in any way that they did not intend to involve Mr Skinner in their criminal activity. To the contrary, they responded with intermittent requests for further details about the property, contacts and resources Mr Skinner was describing, and other expressions of interest and approval.125 For example:
They asked Mr Skinner about the forklift he mentioned, the condition of the trailers he was describing, whether he had his “AZ”, (i.e., a specialized licence for operating a full size trailer equipped with airbrakes), and the location of the rural property Mr Skinner was describing.126
They asked for clarification and confirmation that one of Mr Skinner’s professed truck driver contacts was still in the area.127
They asked for confirmation that Mr Skinner knew the owner of the seed treating facility Mr Skinner described, and whether he was “cool”.128
They asked Mr Skinner for information about sources of wealth in the area, whether there were “opportunities for people like [them] to make some money”, and whether local criminals were “ripping each other off”.129
They responded to Mr Skinner’s requests for more information about their tractor-trailer theft activity by explaining their methodology.130
In response to Mr Skinner’s suggestion of three men cultivating, harvesting and refining marihuana together, the undercover officers responded positively by saying “it’d be perfect”, and discussed how long it would take for all three men to perform certain related tasks.131
When Mr Skinner independently returned to the topic of drug trafficking, with a suggestion to the undercover officers it would be a good idea to take narcotics directly from the manufacturing source to sell in Newfoundland and/or Vancouver, the undercover officers embraced Mr Skinner’s suggestions, emphasizing the “money to be made”.132
The undercover officers also offered to call people on Mr Skinner’s behalf when they were released.133
More generally, Mr Skinner made extensive references to further supposed criminal contacts, anecdotal experience with violence, and encounters with the police and court system.134 In my view, such references, (many of which seem disconnected, unrelated and/or otherwise tangential to the natural flow of conversation), were transparent efforts by Mr Skinner to display or at least claim relevant connections and credentials, in a further attempt to impress U.C.H. and U.C.B., with whom he hoped to have some kind of friendly and profitable criminal association.135 I think the same is true of Mr Skinner’s efforts to impress the two undercover officers through his descriptions of the manner in which he was dealing with his murder charge.136
A further indication of Mr Skinner’s hope of joining some kind of profitable criminal enterprise with the undercover officers was reflected in his proactively raising, towards the end of their interaction, the possibility of his supplying U.C.H. and U.C.B. with his phone number. Once again, the undercover officers did not discourage this. To the contrary, U.C.H. agreed that whoever was released first should supply his phone number by leaving it with the property of the person still detained.137 Upon being removed from the holding cells, U.C.H. then supplied Mr Skinner with a telephone number in the agreed manner, (and told Mr Skinner he had done that), supposedly to facilitate further contact between the three men.138
42Having regard to all of the circumstances of the exchanges between Mr Skinner and the two undercover officers, including those outlined above, I found that there was a causal link between the state agent conduct and the making of Mr Skinner’s statements.
43There accordingly was “elicitation”, in the sense required to establish a violation of Mr Skinner’s right to silence.
44More generally, having regard to all the evidence and circumstances, the defence satisfied me, on a balance of probabilities, that the “cell insert” operation breached Mr Skinner’s rights guaranteed by section 7 of the Charter, and his right to silence in particular.
Request to exclude evidence – Section 24(2) analysis
45I therefore turned next to the defence request for exclusion of evidence of the second “cell insert” conversation, in its entirety, pursuant to section 24 of the Charter.
GENERAL PRINCIPLES – SECTION 24 OF THE CHARTER
46Applicable general principles in that regard include the following:
Anyone whose guaranteed Charter rights or freedoms have been infringed may apply to the court to obtain such remedy as the court considers appropriate and just under the circumstances. Where the court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter, “the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute”.139
Accordingly, more than a violation of a Charter right is necessary before such evidence will be excluded. The evidence must not only have been obtained in a manner that infringed or denied a right or freedom guaranteed by the Charter, but it also must be established that the admission of the evidence “would bring the administration of justice into disrepute”.140
The person seeking to exclude the evidence bears the burden of persuading the court, on a balance of probabilities, that admission of the evidence could bring the administration of justice into disrepute in the eyes of a reasonable person, “dispassionate and fully appraised of the circumstances of the case”.141
When faced with an application for exclusion of evidence under s.24(2) of the Charter, a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system. The subsection is not aimed at punishing the police or providing compensation to the accused. Rather, its focus is on the “broad impact of admission of the evidence on the long-term repute of the justice system”.142
Whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s.24(2), viewed in a long-term, forward-looking and societal perspective. In particular, when faced with an application for exclusion pursuant to s.24(2) of the Charter, a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to the following:
First, the seriousness of the Charter-infringing state conduct that led to the discovery of evidence, (bearing in mind that admission of the evidence may send the message that the justice system condones serious state misconduct). The more severe or deliberate the violation, the more likely the evidence ought to be excluded. Extenuating circumstances and “good faith” on the part of the police must be weighed in the balance. However, ignorance of Charter standards must not be encouraged, (especially in the very persons who are charged with upholding the law), and courts must not equate wilful blindness with good faith.
Second, the extent to which the Charter breach undermined the protected interests of the accused, (bearing in mind that admission of the evidence may send the message that individual rights count for little). The more serious the incursion on these interests, the greater the risk that admission of the tainted evidence would bring the administration of justice into disrepute.
Third, society’s interest in the adjudication of the case on its merits. This aspect of the three-pronged inquiry requires the court to evaluate whether the truth-seeking function of the criminal trial process would be better served by the admission or exclusion of the evidence, and reflects society’s collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law. Factors to be weighed into this balance include the reliability of the evidence, and its importance to the Crown’s case. Moreover, the court must consider not only any negative impact of the admission of the tainted evidence, but also the impact of failing to admit evidence.143
The three-pronged inquiry is intended to be flexible, and there is no precise rule as to how the balance of these factors is to be struck. In particular, the balancing exercise mandated by s.24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Disassociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.144
GENERAL PRINCIPLES – BREACH OF RIGHT TO SILENCE AND SECTION 24
47As for the application of s.24(2) in cases where the accused has demonstrated a violation of his or her right to silence, and therefore a breach of his or her section 7 Charter rights:
Such a violation does not entail automatic exclusion of evidence obtained as a result of the breach. The usual s.24(2) analysis must still be applied to determine whether or not reception of the evidence would be likely to bring the administration of justice into disrepute. Admission of incriminating statements and confessions, despite a breach of an accused’s right to silence and section 7 Charter rights, pursuant to the s.24(2) analysis mandated by authorities such as R. v. Grant, supra, is still a possibility.145
The absence of negligence or bad faith on the part of police, in carrying out a “cell insert” operation, may be a relevant consideration in determining the seriousness of a Charter violation. However, wilful and deliberate police conduct, (e.g., intentionally setting out on a course to undermine the appellant’s asserted right to silence, by having an undercover police officer engage the accused in conversation), may be regarded as a serious Charter violation. So may systematic undermining of an accused’s confidence in his or her counsel, so as to get him or her to talk in spite of instructions to remain silent. Moreover, where the fairness of a trial will be or has been effected by the admission of tainted evidence, good faith on the part of the police cannot reduce the seriousness of the violation.146
The impact of state conduct breaching an accused’s right to silence and section 7 Charter rights usually will be significant and substantial, because the admission of self-incriminating statements obtained as a result of a breach of the Charter, unlike the admission of real evidence which would have existed regardless of the breach, generally will make the trial unfair.147 That unfairness will increase in cases where the impugned evidence is the only evidence tending to incriminate the accused, and conviction of the accused depends on self-incriminatory evidence such as a confession. In such cases, the accused would be deprived of his presumption of innocence, and would be placed in the position of having to take the stand if he or she wished to counter the damaging effect of the confession. However, the fact that evidence effectively is obtained by active elicitation and conscripting the accused to give evidence against himself, (e.g., by use of an unfair trick practiced by the authorities), generally will be sufficient on its own to render the trial unfair. In particular, self-incriminatory evidence renders a trial unfair because it “strikes at one of the fundamental tenets of a fair trial, the right against self-incrimination”, and not because of the effect of its admission on the outcome of the trial. This factor therefore may receive considerable weight in the required s.24(2) balancing exercise, as “it has long been felt inappropriate”, and “contrary to the notions of justice fundamental to our system of law”, that an accused “should be required to betray himself”.148
As for society’s interest in adjudication of a case on its merits:
Where the fundamental fairness of the trial would be affected by the admission of the evidence obtained by a serious Charter violation, the mere fact that the offence is a serious one provides no justification for admitting the evidence.149
The importance of tainted “cell insert” evidence to such an adjudication obviously will vary with the extent to which it forms an essential feature of the Crown’s case. Where it represents virtually the only evidence against an accused, exclusion of such an evidence obviously may result in an acquittal.150 However, where the impugned evidence is not the only evidence incriminating the accused, and/or the Crown seeks to introduce the evidence only for a limited purpose, that further reduces the effect on the reputation of the administration of justice of excluding the evidence.151
Similarly, the extent to which such evidence may or may not be demonstrably reliable, (e.g., to the extent the substantive content of an inculpatory statement is or is not corroborated by physical evidence and/or other witnesses who are available to testify), also may be relevant to an evaluation of whether the truth-seeking function of the criminal trial process would be better served by the admission or exclusion of the evidence.152
48With the above principles in mind, I turn now to the mandated s.24(2) analysis, having regard to the particular circumstances of this case.
APPLICATION
49Turning to the first avenue of inquiry outlined by the Supreme Court of Canada, relating to the seriousness of the relevant Charter-infringing state conduct:
It bears repeating, I think, that the police subterfuge inherent in “cell insert” operations is not, by itself, regarded as state misconduct. When conducted properly, such operations remain a legitimate area of police investigation.153 The Charter breach in this case results from the particular circumstances and manner in which the relevant “cell insert” operation was conducted.
While the relevant “cell insert” operation in this case obviously was planned and coordinated, in my view there was no evidence to indicate that any of the officers involved, (including U.C.H. and U.C.B.), embarked on a course of action deliberately aimed at undermining Mr Skinner’s right to silence. To the contrary, there were numerous indications that various officers involved in the operation were concerned about the propriety of the operation, mindful of underlying Charter concerns, and willing to engage in measures that would help minimize the possibility of a Charter violation.154 Similarly, there were indications that timing of the operation was planned with a view to making the operation potentially more fair to Mr Skinner.155 Moreover, there was nothing to suggest U.C.H. and/or U.C.B. had any foreknowledge whatsoever that their independently chosen cover story would be of any special interest to Mr Skinner, thereby strongly motivating him to engage with and hopefully impress the two undercover officers.
There nevertheless were indications that officers involved in the “cell insert” operation were aware of Mr Skinner’s particular vulnerabilities, (even if they were not all communicated to U.C.H. and U.C.B.), and for the reasons outlined above, those vulnerabilities effectively were accentuated by the deliberate decisions made in relation to Mr Skinner’s arrest, transport and detention. Moreover, it seems to me that some of those vulnerabilities would or should have been increasingly clear to U.C.H. and U.C.B., who nevertheless still made comments and posed questions that effectively steered or redirected Mr Skinner’s conversation to sensitive areas, (sometimes in very overt ways), despite their training and experience.
On the whole, while I thought the Charter-infringing state conduct was seriousness, I also thought it was on the lower end of the scale. In particular, it did not involve the sort of deliberate and sustained efforts to circumvent the accused’s right to silence seen in some of the other cases noted above. It nevertheless provided a measure of support for exclusion of the impugned evidence.
50As for the second avenue of inquiry in the required s.24(2) analysis, concerning the extent to which the relevant Charter breach undermined Mr Skinner’s protected interests:
For the reasons outlined above, any breach of an accused’s right to silence usually is regarded as significant and substantial, and I saw no reason to depart from that view in this particular case. The evidence the Crown sought to tender at trial was self-incriminating, tainted, and would not have come into existence but for state conduct which undermined Mr Skinner’s voluntary decisions regarding statements to the police. It accordingly would have affected the fundamental fairness of Mr Skinner’s trial.
If anything, I thought Mr Skinner’s need for protection pursuant to his section 7 rights was even more marked in this case, owing to the particular vulnerabilities outlined above.
On the whole, I thought the negative impact of the relevant Charter-infringing state on Mr Skinner’s section 7 Charter rights was entitled to considerable weight in the circumstances, and strongly favoured exclusion of the impugned evidence.
51As for the third avenue of inquiry in the mandated s.24(2) Charter analysis, relating to society’s interest in adjudication of the case on its merits:
It bears repeating that, although Mr Skinner is facing a very serious charge, that underlying reality provides no justification for admitting tainted self-incriminating evidence, obtained by an inherently serious Charter violation, where doing so would affect the fundamental fairness of Mr Skinner’s trial.
It also needs to be borne in mind that, in contrast to many other cases calling for a s.24(2) analysis, the particular evidence the defence sought to exclude in this case was not a sine qua non of the Crown’s prosecution. The police decided that they had reasonable and probable grounds to arrest Mr Skinner, and charge him with second degree murder, before embarking on the relevant “cell insert” operation. As emphasized by Detective McGregor, that further operation was undertaken merely in an effort to be “thorough”.
Moreover, in my view the probative value of the evidence generated by the “cell insert” operation was questionable, in terms of reliability, and of dubious probative value in relation to the underlying second degree murder charge. In particular:
In the application material before me, there was no obvious corroboration of the evidence generated by the “cell insert” operation which the defence sought to exclude.
As noted above, that evidence also involved no express or clear confession by Mr Skinner indicating or acknowledging that he was responsible for the child’s death.
Nor did Mr Skinner acknowledge that he was prone to violence when drinking, as Detective McGregor apparently alleged during the course of his formal interview of Mr Skinner. Indeed, in his candid comments to U.C.H. and U.C.B. Mr Skinner expressly denied having ever hit anyone, to his knowledge.
In speaking with U.C.H. and U.C.B., Mr Skinner apparently did acknowledge that he “was blacked out” from drinking, and accordingly had no memory “from a certain point to a certain point”, around the time of the events leading to the infant’s death. However, as Mr Skinner himself noted, evidence that Mr Skinner was present but blacked out may be equally or more consistent with innocence rather than guilt; e.g., if Mr Skinner was unconscious, and another adult was present at relevant times.
In my view, Mr Skinner’s comments to U.C.H. and U.C.B. about not knowing what had happened, and being “scared fucking shitless” as the infant was being taken to hospital, seemed similarly ambiguous in terms of guilt or innocence.156
As for Mr Skinner’s comments about his manner of dealing with police questioning, (including questions posed to him by Detective McGregor), it seemed to me that such evidence was also problematic. In addition to possible concerns about the reliability of such statements made by Mr Skinner during the “cell insert” operation, (e.g., if Mr Skinner was focused on efforts to impress the undercover officers rather than accuracy), Mr Skinner’s comments did not always make it clear whether he was speaking about how he had dealt with police questioning on other occasions, (as he clearly mentions past dealings with the police), or in relation to specific questioning by Detective McGregor. Nor did his comments indicate, (with the exception of reference to Detective McGregor’s assertion that Mr Skinner blacked out after drinking), that any specific questions or assertion by Detective McGregor were “bang on” about anything in particular, or any admission that Mr Skinner actually lied to Detective McGregor about anything.
While the analysis I was asked to perform did not proceed to formal assessment of whether prejudicial impact may have outweighed probative value in relation to certain evidence generated by the “cell insert” operation, I thought there self-evidently also would have been concerns about letting the jury hear evidence concerning Mr Skinner’s past involvement with the police, which supposedly led to his claimed expertise in dealing with police questioning.
On the whole, it seemed to me that such considerations significantly reduced the effect on the reputation of the administration of justice that might stem from exclusion of the impugned evidence. More generally, in my view, the “third avenue of inquiry” required by the mandated s.24(2) analysis did not provide any strong or significant support for admission of the impugned evidence.
52Again, the balancing exercise mandated by s.24(2) of the Charter is not an exact science, but a qualitative one incapable of mathematical precision.
53Having regard to all the circumstances, and weighing each line of inquiry mandated by authorities such as R. v. Grant, supra, individually and collectively, I nevertheless was satisfied on a balance of probabilities that admission of the accused’s statements made during the second “cell insert” conversation, (i.e., the conversation between Mr Skinner with the two undercover officers after his interview with Detective McGregor, or what has been described herein as “Statement #2”), would bring the administration of justice into disrepute.
54In particular, I was satisfied on a balance of probabilities that admitting the evidence in question would bring the administration of justice into disrepute in the eyes of a reasonable person “dispassionately and fully appraised of the circumstances of the case”.
55Moreover, in my view, the appropriate remedy under s.24(2) of the Charter was exclusion of Statement #2 in its entirety, and I accordingly found that evidence to be inadmissible.157
Application of principles in R. v. Hart
56During the course of their written and oral submissions, the parties devoted considerable attention and effort to the question of whether or not the particular circumstances of this case, while admittedly not involving a “Mr Big” operation in all the respects outlined above, nevertheless raised sufficiently analogous concerns to warrant imposition of a similar presumption of inadmissibility.
57In essence, the defence argued that the undercover officers in this case effectively created the illusion of a fictitious criminal enterprise offering significant potential social and economic benefits to the isolated, vulnerable and impoverished Mr Skinner, which in turn strongly motivated Mr Skinner to engage and hopefully impress his new cellmate acquaintances with statements emphasizing his supposed experience, contacts and resources.
58In speaking for the majority in R. v. Hart, supra, Justice Moldaver expressly noted that the approach adopted therein might need to be extended and adapted, in the future, to address situations beyond traditional “Mr Big” operations. In his words:
This rule targets Mr Big operations in their present form. A change in the way the police use undercover operations to elicit confessions may escape the scope of this rule. However, it is not for this Court to anticipate potential developments in policing. To do so would be speculative. Time will tell whether, in a future case, the principles that underlie this rule warrant extending its application to another context.158
59However, having already found the entirety of Statement #2 to be inadmissible, for reasons relating to the section 7 right to silence protections extended to a detained person such as Mr Skinner, I thought it unnecessary and inappropriate to comment on how the principles in R. v. Hart may or may not have applied to this situation had those other protections been insufficient. In my view, such important determinations should await a decision where they are required.
Conclusion
60For the reasons set out above, I granted the section 7 Charter application brought by Mr Skinner, ruling that evidence of the statements made by Mr Skinner to the two undercover officers, (and particularly what has been described herein as “Statement #2), were inadmissible.
61In my view, a decision in relation to the further relief requested in the defence application therefore was unnecessary and inadvisable.
“Justice I. F. Leach”
JUSTICE I. F. LEACH
Released: April 4, 2017
Schedule “A”
Required revisions to Statement #1 transcript – Application record, Tab 3
On page 4 of 34, the comments attributed to “SKINNER” between 12:41 and 12:52 should instead be attributed to “MALE 2”, (U.C.B.). Mr Skinner did not participate in those conversations between U.C.H. and U.C.B.
On page 6 of 34, the words “I’m not getting (inaudible) for shit” attributed to “MALE”, and the word “Yeah” immediately thereafter attributed to “SKINNER”, should instead both be attributed to “MALE 2”, (U.C.B.).
On page 7 of 34, the words attributed to “MALE 2” between time markers 01:15 and 01:16 should instead be attributed to “UNKNOWN MALE”. In his testimony, U.C.H. explained that another male prisoner, (other than Mr Skinner and the two undercover officers), was being released by the Stratford Police during that time period, and the verbal exchanges between that prisoner and the releasing officer were being picked up on the audio recording.
On page 12 of 34, the seventh comment attributed to “SKINNER”, marked “(Inaudible)”, should read: “Had a friend did that too”.
On page 13 of 34, the third comment attributed to “SKINNER” should read” “Uh, 48, thir -, 34 or 40 plus box”.
On page 13 of 34, the final comment attributed to “MALE” should read: “Yeah. That’s easy to offload, man.”
On page 14 of 34, the third comment attributed to “MALE 2” should read: “It’s good, man. There’s no drama, there’s no fucking - , barely any fucking bullshit collecting fucking debts and fucking violence and all that shit.”
On page 14 of 34, the eighth comment attributed to “SKINNER” should instead be attributed to “MALE 2” (U.C.B.).
On page 15 of 34, the fourth comment attributed to “MALE 2” should read: “So they’re parked. They’re at least the one (inaudible).”
On page 15 of 34, the last comment attributed to “MALE” should read: “(Inaudible) the old guy in the suit looked like he was (inaudible) years old”.
On page 19 of 34, the fourth comment attributed to “MALE 2” should read: “Sounds like you’re a man with a plan”.
On page 22 of 34, the seventh comment attributed to “SKINNER” should read: “There’d be only a handful. Because that’s the thing. Who, who’s talking bullshit and who’s real?”
On page 25 of 34, the second comment attributed to “SKINNER” should read: “Exactly. His name’s Louie. There’s not too many Louies.”
On page 28 of 34, the third comment attributed to “MALE 2” (U.C.B.) should read: “That is a fucking cold case. That’s fucking crazy.”
On page 30 of 34, the second comment attributed to “OFFICER” should read: “Okay. You guys didn’t want your mustard?”
On page 30 of 34, the first comment attributed to “SKINNER” should read: “Yeah. Fuck. So I’m kind of glad they did gate me, like instead of getting me like 12 hours from now when I’m all fucked up.”
On page 32 of 34, the last comment attributed to “MALE” should read: “They say this place is a lot cleaner than their fucking place is (inaudible)”.
Schedule “B”
Required revisions to Statement #2 transcript – Application record, Tab 4
On page 2 of 46, the third comment attributed to “MALE” should read: “I smell smoke. Did they give you a couple of smokes?”
On page 4 of 46, the first comments attributed entirely to “MALE 2” should be divided into two comments. The first, (“Well, that’s fucking smart”), should be attributed to “MALE 2”, (U.C.B.), and the second, (“Send that lawyer friend of yours a message to send out a search party”), should be attributed to “MALE”, (U.C.H.).
On page 5 of 46, the fourth comment attributed to “MALE” similarly should be subdivided into two separate comments. The first should be attributed to “MALE 2”, and read: “Yeah, they still need (laughs) (inaudible)”. The second should be attributed to “MALE”, and read: “Well, they’d be like, all right, well pay up time big shooter”.
On page 5 of 46, the last comment attributed to “SKINNER” should read: “Yeah. You always count three seconds and then you answer.”
On page 7 of 46, the fourth comment attributed to “SKINNER” should read: “Oh yeah. Pretty good. But I’m, I’m old, you get, uh, what, wisdom and knowledge?”
On page 8 of 46, the first comment attributed to “MALE” should read: “It’s good feeling that, one time”.
On page 9 of 46, the first comment attributed to “MALE 2” should read: “Yeah, is it gone?”
On page 9 of 46, the first reference to “SKINNER”, and the corresponding entry of “(Inaudible)”, should be deleted. Only U.C.H. and U.C.B. are talking at that point.
On page 11 of 46, the fourth comment attributed to “MALE” should read: “That’s why I wanna know, that’s why I’m fucking sitting in this bed for the whole night, why, why are they fucking coming all the way down for that?”
On page 11 of 46, the fifth comment attributed to “MALE” should read: “53 bars on one street”.
On page 12 of 46, the second comment attributed to “MALE 2” should read: “Yeah, no shit.”
On page 15 of 46, the last comment attributed to “MALE 2” should read: “Yeah, I mean, fuck, man, like we got our hustle, but you can’t put a price tag on experience, right.”
On page 22 of 46, the penultimate comment attributed to “SKINNER” should read: “Oh, and that cop at the computer, I was fucking calling him on. Get your fucking suit on, come on in, you fucking cocksucker.”
On page 22 of 46, the last comment attributed to “SKINNER” should read: “’Cause he’s, well, he’s in Sebringville, he’s in Listowel, he’s in Stratford.”
On page 23 of 46, the second comment attributed to “MALE 2” should read: “Fuck. (Inaudible) when I was (inaudible) probably go to heaven, but I got my story to tell on the (inaudible).”
On page 23 of 46, the fifth comment attributed to “SKINNER” should read: “Well, take that and it doesn’t take long to figure out what - - where the pieces go. Right?”
On page 24 of 46, the penultimate comment attributed to “SKINNER” should read: “Two hundred – or 2000 pound big bag that the fork lift lifts up.”
On page 25 of 46, the fifth comment attributed to “SKINNER” should read: “That’s where they are. Um, cash crop, dairy farm, pigs. Agricultural.”
On page 26 of 46, the third comment attributed to “SKINNER” should read: “Right. Somehow he got caught. Then there’s an - - another guy that was in cahoots with him. He had a diesel – diesel mechanic’s shop and they were doing like, uh, chop shop (video skips) selling - - must have been the – I don’t know if they were doing (inaudible) or not, but they were doing chop shop, yeah. And what they couldn’t do, it goes up to Seaforth. There’s a guy there. He does some chopping.”
On page 27 of 46, the fourth comment attributed to “MALE 2” should read: “Thought that was just a ticket?”
On page 28 of 46, the seventh comment attributed to “SKINNER” should read: “Yeah. Like the one I kn – I went to school with two guys that—they became cops just the last few years.”
On page 33 of 46, the seventh comment attributed to “SKINNER” should read: “You know, I had ‘em drop me off - - Picked me up from my hometown and dropped me off kinda on the outskirts of where I wanna be.”
On page 34 of 46, the third comment attributed to “MALE 2” should read: “Bitches, eh?”
On page 34 of 46, the fourth comment attributed to “MALE 2” should read: “Booze and fucking broads. Those are the two things…”
On page 40 of 46, the sixth comment attributed to “SKINNER” should read: “They bring it in raw. Fuck. Grab that, right?”
On page 40 of 46, the penultimate comment attributed to “SKINNER” should read: “Fucking right. And then go to Newfoundland.”
On page 41 of 46, the second comment attributed to “MALE” should read: “Fuck. It’s crazy man. They’re fucking – I was telling you earlier – coke prices are fucking insane.”
On page 41 of 46, the seventh comment attributed to “MALE” should read: “Makin’ good money”.
On page 41 of 46, the last comment attributed to “MALE 2” should read: “Just fucking random shit. Fucks you up man.”
On page 42 of 46, the first comment attributed to “MALE 2” should read: “Yeah, he was a fucking loser. I think he was fucking terrified when our IDs came back”.
On page 42 of 46, the third comment attributed to “MALE” should read: “That bar was actually pretty good, man”.
On page 42 of 46, the fifth comment attributed to “MALE 2” should read: “It was big.”
On page 43 of 46, the sixth comment attributed to “MALE 2” should read: “Buddy, life’s all about who you know”.
After Mr Skinner had provided an initial explanation as to why and how he came to be in the Stratford holding cells, Mr Skinner turned the discussion to lunch, and the conversation drifted into numerous comments about food. U.C.H. redirected the conversation to the charges Mr Skinner was facing and the officers involved in that investigation, with comments such as “Fuck, they must really want you then, eh?”, and “Someone wants to make a name for himself.” See the transcript of Statement #1, at p.11 of 34. The effort by the undercover officer was not immediately successful.
When Mr Skinner seemed intent on discussing matters relating to tractor-trailers, U.C.H. effectively attempted to turn the conversation back to the matter of Mr Skinner’s arrest, by making a completely unrelated remark about one of the arresting detectives. See the transcript of Statement #1, at p.15 of 34. At the time, Mr Skinner nevertheless remained intent on discussing his presentation of possible opportunities relating to the theft of tractor-trailers and their cargo.
After the conversation had moved into an extended discussion of matters entirely unrelated to the reasons for Mr Skinner’s current arrest and detention, U.C.B. interrupted a pause with an unrelated comment, abruptly turning the conversation back to Mr Skinner’s pending interview with the detectives investigating the charge against him: “Well, I wonder if you’re gonna get good cop or bad cop first”. See the transcript of Statement #1, at p 26 of 34. The intervention had the desired effect of prompting Mr Skinner to talk about the murder charge against him, the advice he received from his lawyer, police efforts to investigate and question Mr Skinner about the underlying death, and how Mr Skinner may respond to such further questioning. See the transcript of Statement #1, at pp.26-29 of 34.
When Mr Skinner was returned to his holding cell following the interview by Detective McGregor, the undercover officers immediately restarted their dialogue with Mr Skinner and directed the conversation to what Mr Skinner experienced while he was gone; e.g., by statements noting that Mr Skinner “made it back in one piece”, questions about the food and/or cigarettes he may have been given, and a return to comments about “good cop or bad cop” treatment. See the transcript of Statement #2, at pp.2-3 of 46.
When Mr Skinner started to digress into a discussion of his having contraband cigarettes, followed by a lull in the conversation, U.C.H. proactively restarted and redirected the conversation by making a disconnected reference to Mr Skinner’s lawyer. See the transcript of Statement #2, at p.4 of 46. That successfully prompted Mr Skinner’s return to a discussion of the legal advice he received, police questioning in relation to the charge against him, (including his formal interview by Detective McGregor), and how he deals with police questioning.
When Mr Skinner then drifted into telling a drug-related anecdote, (after which the conversation stalled, with discussion of mundane subjects such as time, food and hangovers), U.C.B. abruptly returned to the topic of police questioning and how best to respond to that. See the transcript of Statement #2, at p.9 of 46.
When Mr Skinner drifted into telling a further anecdote about the past criminal experiences of a friend, (including that friend’s stealing various items such as “four-wheelers”), U.C.H. effectively redirected focus of the conversation back to the present, and the criminal proceedings the three men were facing, by asking Mr Skinner about bail court the next morning. See the transcript of Statement #2, at pp.9-10 of 46.
After the undercover officers turned the discussion to release from custody, and Mr Skinner mentioned his hope of being released the next day, U.C.B. focused the conversation on whether the police would be able to prove the charge against Mr Skinner. See the transcript of Statement #2, at p.12 of 46. Doing so set Mr Skinner off on a further discussion of his formal questioning by Detective McGregor. When Mr Skinner’s comments in that regard drifted away from specific discussion of his interview with Detective McGregor, and into a more general discussion of how Mr Skinner tries to deal with police questioning, U.C.B. again redirected the focus back to the relevant murder investigation. In particular, he generally praised Mr Skinner’s skill in dealing with police questioning, and then said: “Especially when you fucking look at this is the second time around, and you’re still fucking sitting pretty”. See the transcript of Statement #2, at p.16 of 46.
After Mr Skinner’s thoughts and comments diverged to a series of seemingly random topics, U.C.B. again redirected the conversation to discussion of how Mr Skinner deals with police questioning. Moreover, U.C.B. abruptly and specifically steered the conversation back to something Mr Skinner said earlier in the second conversation, about police questioning sometimes being “bang on”, so that “you think holy fuck, they know”. (See the transcript of Statement #2, at p.5 of 46.) Although Mr Skinner had long ago moved away from that topic, U.C.B. raised it again with pointed questions: “So what do you do, man, like what do I do if I’m fucking getting talked to and they hit something that’s like dead on, bang on, and I know it is and I’m, fucking, do you just sit there and just stare at them and don’t fucking say anything?” (See the transcript of Statement #2, at p.19 of 46.) In my view, that was a transparent effort to have Mr Skinner return to the subject, and perhaps give further indications of what Detective McGregor may or may not have been “bang on” about during the course of his formal police interview of Mr Skinner.
Similarly, following discussion of Mr Skinner’s police interview with Detective McGregor and allegations of physical injury sustained by the alleged murder victim, Mr Skinner moved the conversation in a significantly different direction; e.g., recounting a number of prior unrelated encounters with the police. (See the transcript of Statement #2, at pp.32-34 of 46.) U.C.B. then abruptly steered the conversation back to discussion of the alleged murder victim’s physical injuries: “Fucking lacerated liver. How the fuck did that even happen without you fucking stabbing him? That’s fucked.” (See the transcript of Statement #2, at p.34 of 46.) I found it difficult to view such questioning as something other than functional interrogation relating to the murder charge against Mr Skinner.
When Mr Skinner’s thoughts and comments again drifted to further general and unrelated matters, (e.g., his tendency to drink, smoke and “party” in younger days), U.C.B. made further efforts to redirect the focus to the murder investigation and related police questioning of Mr Skinner: “At least they haven’t dragged you back yet. … Well, really, what more can you fucking say, right?” (See the transcript of Statement #2, at p.37 of 46.) This had the desired effect of prompting further comments by Mr Skinner concerning questions posed by Detective McGregor, and events underlying the murder charge. Moreover, in the course of those comments, U.C.B. specifically directed the conversation back to the subject of Mr Skinner possibly “blacking out” at relevant times, as alleged by Detective McGregor: “I can’t believe fucking - - I can’t imagine blacking out and coming to in the middle of all that.” (See the transcript of Statement #2, at p.38 of 46.) In my view, that too reflected the underlying desire and efforts of the undercover officers to interrogate Mr Skinner in relation to sensitive areas relevant to the murder investigation.
After expressing a hope that the current attempt to investigate him for murder would be unsuccessful and the last he heard of this, (i.e., that the police will then “burn the file”), Mr Skinner’s thoughts jumped to what he understood to have been a recent incursion into the Stratford police station, and speculation as to what the person or persons responsible may have intended. (See the transcript of Statement #1, at p.11 of 34.)
In the course of alluding to and apparently mentally reliving Detective McGregor’s conduct of the formal interview, Mr Skinner made comments which in my view had no apparent meaning: “You are the detective. You know, you are playing short stop. … You don’t have a short stop. Now, fuck, you’re a truck stop.” (See the transcript of Statement #2, at p.6 of 46.)
At one point during the second conversation, Mr Skinner and the undercover officers were having a discussion about Mr Skinner’s thoughts for dealing with police questioning and court appearances when his comments diverted abruptly to a cascade of somewhat random thoughts and memories that seemed only marginally related. In rapid succession, Mr Skinner talked about presentation in court, the perceived attitude of a particular judge towards suggestions of police misconduct, a criminal associate who sold pieces of walnut that tested positive for crack cocaine, another criminal associate who had a large spider bite on his face, and how that criminal associate had ordered a pizza before shooting at the pizza delivery boy. Mr Skinner was then brought back to the original topic of conversation only by comments and effective redirection from the undercover officers. (See the transcript of Statement #2, at pp.17-19 of 46.)
At another point during the second conversation, Mr Skinner and the undercover officers were having a discussion about the topics put to Mr Skinner by Detective McGregor during the formal police interview, including the topic of whether Mr Skinner had ever “blacked out” while drinking. Mr Skinner then embarked on another extended diversion into various marginally-related thoughts and memories. In particular, while all related to drinking, not all related to Mr Skinner, and in my view there was an increasingly strange quality to both the behavior being described and the manner in which Mr Skinner described it. For example, Mr Skinner talked in rapid succession of having “pissed on the floor”, having “pissed in [a] fucking buddy’s bedroom”, and another “buddy” having “pissed in his closet”, before he then claimed to have engaged in particular conduct he attributed to “the devil”: “Have you ever done this? Pissed on whiskey and piss in your hands and throw it at the cop, and while you’re pissing, you’re stopping and going, pissing, stopping and going? … I did that one time.” (See the transcript of Statement #2, at pp.21-22 of 46.)
In my view, (noted above), the disjointed and random nature of Mr Skinner’s thoughts became increasingly noticeable as the day wore on, and particularly during the course of the second conversation. For example, with little or no logical connection, his comments careened from discussion of his police interview with Detective McGregor, (transcript of Statement #2, at pp.27-28 of 46), to discussion about becoming a police officer, (transcript of Statement #2, at pp.28-29 of 46), to recounting incidents where he apparently was inside police vehicles and “smashed [his] head against the, the bullet proof glass and cut [his] head open”, “kicked out the side window”, and “one other time…took the door handles off from the inside of the back seat”, (transcript of Statement #2, at p.29 of 46), to recounting an apparently unrelated motor vehicle accident, (transcript of Statement #2, at pp.29-30 of 46), to renewed discussion of his police interview with Detective McGregor, (transcript of Statement #2, at pp.31-32 of 46), to further recollection of completely unrelated additional encounters with the police, (transcript of Statement #2, at pp.32-34). After a brief interval of further discussion relating to physical injury possibly sustained by the alleged murder victim, (prompted by U.C.B. in the manner indicated below), Mr Skinner’s thoughts and comments then jumped abruptly to further unrelated incidents that took place approximately four years earlier. (See the transcript of Statement #2, at pp.35-36 of 46.)
Perhaps the most striking instance of such erratic or bizarre thought and/or speech occurred approximately 49 minutes into the second conversation, when Mr Skinner had been discussing his formal interview with the two undercover officers, including mention of the desirability of admitting things to the police that are true. Without any apparent logical segue whatsoever, he suddenly embarked on playing out an imagined conversation where he is asked why he has red dye or paint all over him and responds that he has been “fucking Red Riding Hood on her … fucking wings”. (See the transcript of Statement #2 at pp.38-39 of 46.) Only gradually did it emerge, from further statements, that his mind has turned suddenly to a memory of a former cellmate having encountered an activated “dye pack” following a robbery. Even then, however, in my view there was really nothing to explain rationally why or how Mr Skinner’s memory of that anecdote was connected to the preceding conversation, or his bizarre and ribald reference to a story book character. (See the transcript of Statement #2, at pp.39-40 of 46.)
Footnotes
- The relevant video recording was marked as Exhibit 3 on the voir dire. The corresponding transcript is found at Tab 3 of the relevant application record.
- The relevant video recording was marked as Exhibit 4 on the voir dire. The corresponding transcript is found at Tab 4 of the relevant application record.
- For reasons delivered orally on December 13, 2016, I made an order, (on application by the Crown, not opposed by the defence), pursuant to ss.486(1) and 486.5(1) of the Code, directing exclusion of the public during testimony by the undercover officers, and imposing restrictions on the publication of their identities. Pursuant to that order, the two undercover officers are referred to herein as “U.C.H.” and “U.C.B.”, respectively.
- As for further information obtained from Mr Skinner’s probation officer, Detective McGregor could not recall whether he had any discussion with the probation officer about Mr Skinner’s ability to read. However, the detective later formed an impression that Mr Skinner could read, based on Mr Skinner being able to place two brief room labels on a diagram during the course of his formal interview with Detective McGregor on July 7, 2015.
- Staff Sergeant Clarke participated in the relevant surveillance operation, and during his testimony, opined that such behaviour was consistent with the sort of drug psychosis he had seen users of methamphetamine experience in the Stratford area. However, Staff Sergeant Clarke also acknowledged that he had no familiarity with Mr Skinner’s personal history. As noted above, that personal history includes formally diagnosed mental illness, including schizoaffective disorder.
- In the vernacular, this process is known as “gating”. The term is used when someone in custody, due for release, and anticipating his or her freedom at a scheduled date and time, is the subject of a warrant held by a police service, and/or is the subject of an intended arrest by that police service, in relation to a different charge. The relevant police service will communicate with the facility currently holding the subject, and confirm that members of the police service will attend at the facility, at the specified date and time of the subject’s scheduled release, to effect an arrest and take the subject into their custody. In the result, the subject notionally is arrested at the exit “gate” of the facility where he or she was being held. Hence the term “gating”.
- Although Detective McGregor had not previously met or worked with U.C.H., he was familiar with U.C.B. as the two men had worked together in the past. To the best of his recollection, Detective McGregor nevertheless refrained from any direct contact with either undercover officer about the contemplated “cell insert” operation prior to its implementation on July 7, 2015. In his testimony, U.C.H. similarly confirmed that he had no direct contact with Detective McGregor prior to July 7, 2015.
- It seems likely that the decision in question was either R. v. Carter, [2011] O.J. No. 6298 (S.C.J.), or R. v. Carter, [2011] O.J. No. 62998 (S.C.J.), two decisions of Justice Pomerance in relation to the same first degree murder proceeding.
- In his testimony, U.C.H. indicated that, “as a matter of practice”, he reviews authorities such as “Liew, Broyles, Hebert, McIntyre and Van Osselaer”. The first three case names almost certainly refer to three decisions of the Supreme Court of Canada, (properly cited and considered in more detail below), which deal with the right to silence and cell insert situations. It is not clear what U.C.H. was referring to in providing the last two case names. “McIntyre” may refer to R. v. McIntyre, 1993 CanLII 5357 (NB CA), [1993] N.B.J. No. 293 (C.A.), appeal dismissed 1994 CanLII 95 (SCC), [1994] S.C.J. No. 52, although that case dealt with a situation in which the accused made statements to an undercover officer not while detained, but after being released from custody. I was unable to locate any reported and relevant “Van Osselaer” decision.
- Staff Sergeant Clarke confirmed that the meeting took place at an undisclosed “off-site” police facility; i.e., a location other than Stratford Police headquarters.
- Staff Sergeant Clarke thought Detective McGregor may have provided such case law to the undercover officers directly by email. However, Staff Sergeant Clarke also confirmed that he had no specific information in that regard, and as noted above, Detective McGregor himself testified that, to the best of his recollection and information, neither he nor any member of his investigative team had any contact with U.C.H. and U.C.B. about the contemplated cell insert operation, by email or otherwise, prior to completion of the active operation on July 7, 2015. By the time Detective McGregor first met the two undercover officers in relation to this matter, they already had been removed from the Stratford holding cells after their interactions with Mr Skinner.
- As emphasized by U.C.H., he and U.C.B. would be able to play off each other’s verbal cues, and avoid the awkwardness one might expect to occur in conversation between strangers, without arousing suspicion. In other words, the genuine familiarity, friendship and trust that had developed between the two officers made their cover story and interaction during undercover operations seem more believable.
- U.C.H. indicated that, as he was a larger man, he usually made efforts during jail and cell insertions to avoid such counterproductive intimidation; e.g., by avoiding cover stories or conduct that would “build himself up”, or make him ever come across as “too bad”, “too mean” or “too much of a criminal”. However, he emphasized that a similar approach was advisable even in situations such as this, where the target would be in a separate cell such that physical interaction was unlikely. To avoid intimidating a target, (thereby discouraging conversation), he and U.C.B. deliberately would focus on cover stories involving non-violent crime, such as property theft or insurance fraud. They would avoid themes involving violence, guns or other weapons.
- In the course of cross-examination, Staff Sergeant Clarke and Detective McGregor explained some of the realities inherent in whether and how a police service in one geographic location may pursue arrest and retrieval of suspects who have travelled to more distant locations. For example, if the relevant crime is perceived as being more serious in nature, the geographic radius stated in “remarks” accompanying arrest warrants may be expanded, as an indirect indication of how far police in the warrant-issuing area may be willing to travel in order to retrieve the suspect. However, when a police service receives notice that a wanted suspect has been detained by the police service in another community, the reality is that steps are not always taken to effect a “return on the warrant”; i.e., to send officers to the other location, retrieve the suspect, and return him or her to the community where the arrest warrant was issued. In making such decisions, the police service in the warrant-issuing community will consider factors such as the seriousness of the underlying crime, the distance to the location of the suspect’s arrest, and whether devoting staff and other resources to retrieval of the suspect is possible and justified. (While one uniformed officer usually is used to carry out a “return on the warrant”, at least two detectives usually would be sent to retrieve a suspect wanted in relation to a more serious crime, such as murder.) Generally, the lengths to which a police service will go, in retrieving a subject, increase with the seriousness of the underlying crime. Although U.C.H. suggested in his testimony that tractor trailer theft was not regarded as a serious crime, and was punished by fines or sentences not involving lengthy periods of incarceration, defence counsel cited a number of authorities indicating that the opposite was true; e.g., R. v. Bhatti, [2013] O.J. No. 171 (C.A.), and R. v. Maloney, [2013] N.S.J. No. 288 (Prov.Ct.).
- To use an example provided by U.C.H., if the two men supposedly had been wanted by the Ontario Provincial Police, they likely would have been retrieved from the Stratford holding cells “within minutes or hours”. Their continued presence in the cells next to Mr Skinner, beyond such relatively short periods, therefore would have become more unbelievable with the passage of time.
- In the course of his testimony, U.C.H. confirmed that the only time he and Mr Skinner could see each other’s face and appearance occurred when either Mr Skinner or U.C.H. was entering or leaving his holding cell.
- The location of some of those signs, each roughly the size of a standard piece of paper, was marked on the aforesaid Exhibit 1 by Detective McGregor. They include signs in the sally port through which Mr Skinner entered the building, on a door through which Mr Skinner passed, in the hallway of the cell block area through which Mr Skinner passed a number of times, and three signs posted on the wall facing the six holding cells in the area where the relevant “cell insert” operation took place. One of those three particular signs speaks only to video monitoring, while the other two make reference to possible video and audio monitoring.
- Paragraph 54 of the affidavit tendered by Detective McGregor, in support of the police Application for an Authorization to Intercept Communications with consent, made reference to use of this system or use of an “Officer Protection Kit”, (e.g., a kit containing a “body pack microphone”). However, Staff Sergeant Clarke confirmed that only the former was used in carrying out the relevant cell insert operation.
- I will have more to say about specific aspects of that conversation later in my reasons. For now, having personally reviewed the video and the transcript relating to Statement #1, and having heard testimony from U.C.H. and U.C.B. concerning aspects of the transcript they considered to be inaccurate or incomplete, I find the transcript at Tab 3 of the motion record is somewhat more extensive than the video recording, in that it apparently includes transcribed comments made during a roughly two minute period before the video recording begins. However, I also find that the transcript of comments covered by the video recording generally is accurate, (including indications of what seems inaudible), apart from required revisions indicated in Schedule “A” to these reasons.
- As noted above, a transcript of Detective McGregor’s formal interview of Mr Skinner did not form part of the material placed before the court in relation to the defence pretrial application I was called upon to address first. However, it did form part of the material filed in relation to another defence pretrial application, requesting a ruling that would exclude portions of that admittedly voluntary statement from being admitted into evidence at trial.
- In their testimony, U.C.H. and U.C.B. each candidly acknowledged that they would have discussed, during their lunch break together, their views on how the “cell insert” operation was going. However, neither officer had any memory of specifics in that regard.
- I will have more to say about specific aspects of that conversation later in my reasons. For now, having personally reviewed the video and the transcript relating to Statement #2, and having heard testimony from U.C.H. and U.C.B. concerning aspects of the transcript they considered to be inaccurate or incomplete, I find the transcript at Tab 4 of the motion record generally is accurate, apart from required revisions indicated in Schedule “B” to these reasons.
- See, for example: R. v. Kutynec, 1992 CanLII 7751 (ON CA), [1992] O.J. No. 347 (C.A.), at paragraph 16; and R. v. Sadikov, 2014 ONCA 72, [2014] O.J. No. 376 (C.A.), at paragraph 35.
- See, for example: R. v. Wooley (1988), 1988 CanLII 196 (ON CA), 40 C.C.C. (3d) 531 (Ont.C.A.), at p.539; R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151, at paragraph 9; and R. v. Broyles, 1991 CanLII 15 (SCC), [1991] 3 S.C.R. 595, at pp. 605-606.
- See R. v. Hebert, supra, at paragraphs 48, 51, 53, 57, 67 and 68; and R. v. Broyles, supra, at p.606.
- See R. v. Hebert, supra, at paragraph 74; and R. v. Broyles, supra, at p.606.
- R. v. Hebert, supra, at paragraph 44.
- R. v. Hebert, supra, at paragraph 54.
- See R. v. Hebert, supra, at paragraphs 53, 65, 72 and 73; R. v. Broyles, supra, at p.609; and R. v. Liew, 1999 CanLII 658 (SCC), [1999] 3 S.C.R. 227, at paragraphs 39 and 41.
- R. v. Hebert, supra, at paragraphs 53, 55, 65 and 66.
- See R. v. Hebert, supra, at paragraphs 55 and 69.
- R. v. Broyles, supra, at p.607.
- R. v. Hebert, supra, at paragraph 75.
- See R. v. Hebert, supra, at paragraphs 76-77; R. v. Liew, 1999 CanLII 658 (SCC), [1999] 3 S.C.R. 227, at paragraphs 41, 50 and 58; and R. v. Spence, 2016 MBQB 53, [2015] M.J. No. 352 (Q.B.), at paragraph 26.
- See R. v. Hebert, supra, at paragraphs 75-77; and R. v. Broyles, supra, at pp. 606 and 609-610.
- R. v. Liew, supra, at paragraph 41.
- R. v. Liew, supra, at paragraphs 45 and 58.
- R. v. Liew, supra, at paragraph 48.
- See R. v. Liew, supra, at paragraph 58; and R. v. Spence, supra, at paragraphs 28 and 32.
- R. v. Liew, supra, at paragraph 37.
- R. v. Deboo, [2015] B.C.J. No. 80 (S.C.), at paragraphs 53.8 and 63-64.
- See R. v. Broyles, 1991 CanLII 15 (SCC), [1991] 3 S.C.R. 595, at p.611, and R. v. Liew, supra, at paragraph 42.
- See R. v. Broyles, supra, at p.611; R. v. Liew, supra, at paragraphs 42 and 46; and R. v. Spence, supra, at paragraph 27.
- The fact that an accused may have spoken to others following his arrest, and to identified police officers in particular, is a matter of little if any consequence. On such occasions, the accused will have known to whom he or she was speaking, and have made an informed choice when deciding whether or not to speak. See R. v. Deboo, supra, at paragraph 62.
- See R. v. Broyles, supra, at p.611; and R. v. Liew, supra, at paragraphs 42, 46 and 50.
- See R. v. Broyles, supra, at pp. 611-612. In some cases, such as R. v. Connors, [2006] N.J. No. 381 (T.D.), at paragraph 29, reference has been made to attempts at “self-instruction” by undercover officers who review relevant case law, (such as R. v. Hebert, supra, and R. v. Broyles, supra), before embarking on a particular cell insert operation.
- See, for example, R. v. Connors, supra, at paragraphs 47-50. That decision in turn makes reference to writers, including Justice Fuerst, who have outlined and emphasized the effective ability of the police to ensure that, if the pressures of confinement lead a suspect to confide in anyone, it will be a police agent, and/or create circumstances where it “may take far less than a leading question to prompt the suspect to talk about the very subject in which the officer is interested”. Although considered in the Connors decision as a factor relating to the “nature of the conversation” between an undercover officer and the accused, reference is also made there to the impact this has on a suspect’s vulnerability
- See R. v. Liew, supra, at paragraph 47; and R. v. Spence, supra, at paragraphs 30 and 32.
- R. v. Liew, supra, at paragraph 47; and R. v. Spence, supra, at paragraph 31.
- R. v. Spence, supra, at paragraph 30.
- R. v. Spence, supra, at paragraph 30.
- See R. v. Broyles, supra, at p.611 and p.613; R. v. Liew, supra, at paragraphs 43, 47-49 and 51; R. v. Connors, supra, at paragraphs 51-54 and 58-59; R. v. Deboo, supra, at paragraphs 66-67; R. v. Leung, [2013] B.C.J. No. 3079 (S.C.), at paragraph 76; and R. v. Spence, supra, at paragraphs 32-33. As emphasized in R. v. Liew, supra, at paragraph 51, “role-appropriateness” of an undercover officer’s statements, by itself, does not “sanitize” an exchange. The focus is on whether was said by the undercover officer elicited information from the accused. In that regard, as also noted in the Liew decision, at paragraph 48, the mere fact that a comment by the state agent was in the form of a question does not necessarily mean that the comment should be seen as some form of elicitation. However, as noted in R. v. Deboo, supra, at paragraph 50, while a question will be more likely provoke a response than a statement or observation, it is not necessary that a cell plant’s words be framed as a question to amount to active elicitation. Again, the focus is not on the form of the conversation.
- R. v. Liew, supra, at paragraph 49, (again bearing in mind, as noted in the preceding footnote, that the mere fact of expressing a comment in the form of a question does not necessarily constitute elicitation).
- See R. v. Broyles, supra, at p.611 and pp.614-615; R. v. Liew, supra, at paragraphs 42, 50, 52, and 54-55; R. v. Connors, supra, at paragraphs 63-69 and 73; R. v. Leung, supra, at paragraphs 58 and 71-73; and R. v. Spence, supra, at paragraphs 29, 33 and 43. As illustrated by R. v. Leung, supra, an undercover officer might, despite the absence of any prior or sustained relationship, proactively establish and then effectively exploit a “temporary and situational” relationship of empathy and understanding, based on supposed common interests and experiences.
- See R. v. Deboo, supra, at paragraphs 53.5 and 53.6; and R. v. Liew, supra, where judges of the Alberta Court of Appeal were divided as to whether the circumstances involved active elicitation, and similar divisions emerged in the Supreme Court of Canada.
- See the transcript of Statement #2, at p.5 of 46. These remarks include the following comment by Mr Skinner: “Sometimes they’re bang on, and you, you think holy fuck, they know”.
- Ibid., at pp.5 and 19-20 of 46.
- Ibid., at pp.5-6 and 13 of 46.
- Ibid., at pp.7 and 20 of 46.
- Ibid., at pp.12 and 19 of 46.
- Ibid., at pp.12-13 of 46.
- Ibid., at pp.13-14 of 46.
- Ibid., at pp.14 and 19 of 46. This elaborates on earlier discussion Mr Skinner had with the undercover officers about possible “entrapment” wording. See the transcript of Statement #1, at p.28 of 34.
- See the transcript of Statement #2, at p.15 of 46.
- Ibid., at pp.15 and 19-20 of 46.
- Ibid., at p.19 of 46.
- Ibid., at p.38 of 46.
- Ibid., at p. 5 of 46. In my view, however, whether or not Mr Skinner was referring to Detective McGregor’s particular questions, or to his wider experience with police questioning, is not clear, as Mr Skinner immediately segued into a discussion of the latter.
- Ibid., at p.6 of 46.
- Ibid., at p.21 of 46.
- Ibid., at p.21 of 46.
- Ibid., at pp.31-32 of 46.
- Ibid., at p.16 of 46. Again, in my view, it is not clear from these comments and the broader context whether Mr Skinner was indirectly suggesting that he was responsible for the child’s death and that would have been confirmed had he been less skilled in dealing with Detective McGregor’s questions, or whether Mr Skinner was suggesting that Detective McGregor would have succeeded in using “tongue twister” or “entrapment” questions, (as Mr Skinner called them), to paint an incriminating picture of a younger and less experienced accused, regardless of actual guilt.
- Ibid., at pp.20-21 of 46.
- Ibid., at pp.27-28 of 46.
- There was no suggestion that anything said by Mr Skinner would have been admissible evidence in the absence of the “one party consent” executed by the undercover officers.
- See the third bullet point of paragraph 27, supra.
- See, for example, the transcript of Statement #1 at pp.9-10 and pp.28-29 of 34, as well as the transcript of Statement #2 at p.16 of 46.
- See the fourth bullet point of paragraph 28, supra.
- See the transcript of Statement #1, at p.2 of 34.
- I was not presented with any authority dealing with a “cell insert” operation involving the presence and conversational efforts of more than one undercover officer or other state agent. Indeed, defence counsel emphasized in written submissions that this particular “double teaming” cell insert operation appeared to be unusual and perhaps unique in that regard. As she put it, the “undercover operation in this case was distinct from all of the operations detailed in the case law in one very important way: it involved two undercover officers rather than the usual one”.
- See the transcript of Statement #1, at pp.2-7 of 34.
- In my view, that reality has added significance for reasons discussed further below; i.e., in my consideration of the nature of the relationship between the undercover officers and Mr Skinner, and whether the officers effectively manipulated Mr Skinner to bring about a mental state in which he was more likely to talk.
- See, for example, the transcript of Statement #1, at pp.26 and 28 of 34.
- See, for example, the transcript of Statement #1, at pp.6, 7, 30 and 32 of 34.
- See the transcript of Statement #2, at p.2 of 46.
- For example, see the transcript of Statement #2, at pp.3-4 and 10-11 of 46.
- For example, to explain his presence towards the start of the first conversation, (after the undercover officers have explained theirs), Mr Skinner said the police were “just fishing” with him, in relation to “something that happened [a] long time ago”, and shortly thereafter returned to the subject by saying “they interrogated me for five and a half hours last time”. (See the transcript of Statement #1, at pp.8 and 10 of 34.) Similarly, during the second conversation, there were points where, after discussion of various unrelated criminal opportunities and experiences, Mr Skinner himself turned the conversation back to questions and topics raised during his formal police interview with Detective McGregor. (See the transcript of Statement #2, at pp.27-28 and pp.31-21 of 46.)
- I thought there were numerous instances of this, some of which took the form of open questions, seeking information, and some of which were more subtle than others. However, by way of example:
- Throughout the conversations, the two undercover officers were unfailingly polite and attentive vis-à-vis Mr Skinner, regardless of what he is saying. Moreover, apart from a limited number of isolated instances where the undercover officers effectively impressed Mr Skinner with their superior knowledge and experience about tractor-trailer theft and the sale of drugs in other jurisdictions, (e.g., to emphasize that stolen cargo actually was worth far more than Mr Skinner’s estimated, and that illicit drugs could be sold for higher prices in eastern Canada), U.C.H. and U.C.B. never disagreed with Mr Skinner. To the contrary, both officers consistently responded to Mr Skinner’s comments with ready affirmations and agreement, (e.g., “Yeah”, “Right”, “Absolutely”, “No shit” and “Fucking right”), which permeated the conversations. Those reinforcements were supplemented by numerous interjections and exclamations, (e.g., “Wow”, “Jesus” and “Fuck”), conveying amazement at supposedly impressive things Mr Skinner was saying, even when his comments seemed nonsensical, odd and/or outrageous. More extended comments by the two officers lavished admiration and praise on Mr Skinner for his supposed criminal contacts, experience and advice; e.g., “Sounds like you’re a man with a plan”, (transcript of Statement #1 at p.19 of 34); “Do you have a fucking couple of aces in the back pocket?”, (transcript of Statement #2, at p.7 of 46); “Where do you learn that shit man?”, (transcript of Statement #2 at p. 13 of 46); “That’s fucking smart, man” and “Fuck, man, you should teach this shit”, (transcript of Statement #2 at p. 15 of 46). Mr Skinner’s open contemplation of possibly acting as a legal advisor was met with “Yeah, I mean, fuck, man, like we got our hustle, but you can’t put a price tag on experience”; (transcript of Statement #2 at p.15 of 46).
- See the transcript of Statement #1, at pp. 3-6 of 34.
- To cite some of the many examples of this:
- For example, at one point Mr Skinner expressed a fear that the police effectively might arrange his disappearance, (i.e., make him “go missing”), if his lawyer did not know his whereabouts. (See the transcript of Statement #1, at pp.26-27 of 34.) At another point, Mr Skinner expressed anxiety that, during his formal police interview, Detective McGregor was going to stab Mr Skinner with a pen. (See the transcript of Statement #2, at p.6 of 46.) Later, he spoke of police officers “that take you back to the detachment and fucking taser you, like, uh, three or four times and watch you bounce off the ground”. (See the transcript of Statement #2, at p.29 of 46.)
- See the transcript of Statement #2, at p.36 of 46. Mr Skinner described an experience approximately four years earlier where he felt so frightened, (“scared shitless”), that it was “like being on meth, a meth trip”, as he “went into, like, a black out inside of a--, like going inside yourself to save yourself … like a baby being born and it --, a trauma happens and so it slows itself down, its breathing and all that…so to save itself.” He then went on to say: “So I, I went crazy, then came back. I lost my mind one time, oh, I was fucked right, I should be right cuckoo, man.”
- In the course of the conversations, Mr Skinner made reference to his experience with crime, his familiarity with the criminal justice system, including his right to silence, (e.g., transcript of Statement #1 at p.9 of 34 and pp.28-29 of 34, and transcript of Statement #2 at p. 4 of 46, p.13 of 46, and pp.16-17 of 46), his past encounters with police in connection with unrelated matters, (e.g., transcript of Statement #1 at p.30 of 34, and transcript of Statement #2 at p.5 of 46), and his prior involvement with police many years earlier concerning their investigation into the same death underlying his second degree murder charge, (e.g., transcript of Statement #1 at pp.10 and 28 of 34). However, proceedings in our court repeatedly and regularly demonstrate that a person’s lengthy criminal history is not necessarily indicative of sophistication, and that the reverse may very well be true.
- Mr Skinner’s words convey this to some extent, but in my view his demeanor, manner of speaking and voice inflections recorded in the video strongly reinforce the impression. For example, Mr Skinner was excited about the comfortable seat and snacks he received on the way back to Stratford, and about the police treating him to a bagel with cream cheese. (See the transcript of Statement #1, at pp.11 and 29 of 34). He used childlike phrases such as “my tummy’s rumbling”, (transcript of Statement #1, at p.33 of 34), verbally repeated advice he had been given in an apparent effort to reinforce and remember it, (transcript of Statement #1 at pp.28-29 of 34 and transcript of Statement #2 at p.16-17 of 46), and spoke wistfully about unrealistic possibilities such as his becoming a police officer were it not for his criminal record, (transcript of Statement #2 at p.28 of 46).
- For example, see the transcript of Statement #1, at pp.30-31 of 34, and the transcript of Statement #2, at pp.7-8 of 46, and p.32 of 46.
- See the transcript of Statement #2, at p.13 of 46.
- See the transcript of Statement #1, at p.30 of 34.
- For example, as he described it to the undercover officers, (see the transcript of Statement #2 at p.13 of 46), “I’ve been in jail a lot.”
- See, for example, the transcript of Statement #2, at p.13 of 46, and p.28 of 46.
- See the transcript to Statement #1, at p.34. Similarly, it is striking that Mr Skinner, following statements made to Detective McGregor despite his lawyer’s advice to remain silent, begins to express regret about having done so as the officers are assuring him that he “fucking did all the right things”. See the transcript of Statement #2, at p.16 of 46.
- For example, at a relatively early point in the first conversation, Mr Skinner says “My lawyer says don’t say nothing, don’t do nothing”, and U.C.B. responds “Oh, that’s good; that’s what a lawyer is paid for, right?” See the transcript of Statement #1, at p.9 of 34.
- See pp.14-15, supra.
- U.C.H. and U.C.B. both indicated in cross-examination that they had no idea going into the operation what Mr Skinner would say, and did not expect Mr Skinner to have any knowledge of tractor-trailers. However, U.C.H. confirmed that Mr Skinner then was “definitely curious”, “engaged” and “interested” about the supposed tractor-trailer theft operation; e.g., offering information about his access to tractor-trailers and posing questions. Similarly, U.C.B. recalled Mr Skinner being very “interested”, “curious” and “engaged” in discussion of the undercover officers’ supposed criminal activity, and the notes made by U.C.B. immediately after the operation described Mr Skinner as being “very interested in our load thefts and appears to be wanting to be involved”. U.C.H. candidly acknowledged, (and U.C.B. independently confirmed), that Mr Skinner’s intense interest in the supposed criminal activity of the two undercover officers “helped with the flow of conversation” and “advanced the operation”. As U.C.H. also fairly acknowledged, no attempts were made to discourage such interest or efforts on the part of Mr Skinner, as the undercover officers were “in the business of opening doors versus closing them”. The undercover officers instead admittedly used such developments in furtherance of their “rapport building” exercise vis-à-vis Mr Skinner.
- See the transcript of Statement #1, at p.8 of 34. After learning that Montreal police supposedly are coming to retrieve the two men, Mr Skinner asks whether they are involved in “bank robbery”, and then says: “Well, it’s gotta be something worth coming to get you for”.
- See the transcript of Statement #1, at p.8 of 34.
- In the course of cross-examination, U.C.H. and U.C.B. each agreed that the possibility of Mr Skinner’s participation in the undercover officers’ supposed criminal activity was “a theme that was repeated throughout the operation”.
- See the transcript of Statement #1, at p.12 and 14 of 34. In his testimony, U.C.H. confirmed that the reference to files was an intended reference to the supposed tractor-trailer theft activity of the two undercover officers.
- See, for example, the transcript of Statement #1, at pp.12, 14 and 15 of 34, and the transcript of Statement #2, at pp.44-45 of 46.
- Ibid., at p.12, 14 and 15 of 34. Such references are echoed again in Statement #2, at p.44 of 46, where the undercover officers were said to have engaged in tractor-trailer theft along the “Toronto to Montreal corridor”.
- See the transcript of Statement #1, at p.32 of 34. The undercover officers emphasized their familiarity with the price of heroin, that they had “touched that a couple of times”, and indicated that they similarly were familiar with the price at which bricks of “powder” could be sold. They also returned to the subject of their criminal activity, and familiarity with Newfoundland, later in the conversation. See Statement #2, at pp.11-12 of 46.
- See the transcript of Statement #1 at p.32 of 34, and the transcript of Statement #2, at pp.40-41 of 46.
- Ibid., at p.12 of 34.
- Ibid., at p.19 of 34.
- See the transcript of Statement #2, at pp.23-24 of 46.
- Ibid., at pp.13-15 of 34.
- Ibid., at pp.16-17 of 34. By his comments, Mr Skinner clearly indicated that he was contemplating joint criminal activity with the two undercover officers; e.g., saying, in relation to monitoring of the approach road to the relevant property, “we can have someone watching that”. [Emphasis added.]
- Ibid., at p.16 of 34.
- Transcript of Statement #1, at pp.23-25 of 34. In relation to one particular contact named “Louie”, Mr Skinner emphasized that he “drives”, “probably can get her done”, and that Mr Skinner still knew “how to get a hold of him indirectly too, because he’s still around”. Mr Skinner also emphasized that he had “a cousin” who “drives for a, a truck for a livestock company”.
- See the transcript of Statement #2, at p.24 of 46.
- See the transcript of Statement #1, at pp.17-18 of 34. Whether or not Mr Skinner actually had such marihuana-related knowledge or expertise seems questionable, given his reference to “KHC” (sic), rather than THC (tetrahydrocannabinol), being the active mind-altering ingredient in marihuana and “honey oil”.
- Ibid., at pp.19-2- of 34.
- Statement #2, at pp.43-46. Mr Skinner voiced that suggestion and advice, along with a request to supply the two undercover officers with his telephone number, towards the end of the second conversation. In my view, that was significant, as it underscores the reality that the supposed criminal activities of U.C.H. and U.C.B., and the possibility of Mr Skinner joining in such activities if he impressed the two men sufficiently, were never far from Mr Skinner’s mind during the course of his interaction with the two undercover officers. (Statement #2, at p.43 of 46.)
- Ibid., at pp.13, 15, 16, and 17 of 34.
- Ibid., at pp.13, 15, 16 and 17 of 34.
- See the transcript of Statement #1, at pp.25-26 of 34.
- See the transcript of Statement #2, at p.24 of 46.
- See the transcript of Statement #2, at p.25 of 46.
- See the transcript of Statement #1, at pp.14 and 25 of 34.
- Ibid., at pp.17-18 of 34. As noted above, whether or not Mr Skinner actually had such marihuana-related knowledge or expertise seems questionable.
- See the transcript of Statement #1 at p.32 of 34, and the transcript of Statement #2, at pp.40-41 of 46.
- See the transcript of Statement #2, at p.12 of 46.
- There are numerous examples of this, but they include the following: his association with those who made and marketed drugs, (transcript of Statement #1 at pp.18-20 of 34); his association with smugglers of contraband, money and drugs, (transcript of Statement #1 at pp.22-24 of 34); his preference for dealing with criminals of certain ethnicities whom he perceived to be less violent than others, (transcript of Statement #1 at pp.13 and 20 of 34); and numerous stories of such violence and threats of violence, (transcript of Statement #1 at pp. 20-26).
- In cross-examination, U.C.H. indicated that such efforts succeeded in making him personally believe that Mr Skinner was a seasoned criminal with extensive criminal connections and associates.
- In addition to his description of particular legal advice he has received and methods he used to deal with police questioning, Mr Skinner generally emphasized that he was not going to “fuck around” when it came to dealing with the murder charge against him. See the transcript of Statement #1, at p.27 of 34.
- See the transcript of Statement #2, at p.43 of 46.
- In his testimony, U.C.H. indicated that the number supplied to Mr Skinner was “real”, in the sense that it connected to a cellular phone U.C.H. was then using in connection with his undercover operations. However, U.C.H. also confirmed that he subsequently received no calls or messages from Mr Skinner. U.C.B. similarly confirmed that he had no further conversation, communications or contact with Mr Skinner following the “cell insert” operation.
- The Charter, ss. 24(1) and 24(2).
- See R. v. Genest (1989), 1989 CanLII 109 (SCC), 45 C.C.C. (3d) 385 (S.C.C.), at p.401.
- See R. v. Simmons (1988), 1988 CanLII 12 (SCC), 45 C.C.C. (3d) 296 (S.C.C.), at p.323.
- See R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.
- See R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at paragraph 31; R. v. Genest, supra; R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199, at pp.1219-1220; R. v. Kokesch, 1990 CanLII 55 (SCC), [1990] 3 S.C.R. 3, at pp.32-33; R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297; and R. v. Grant, supra, at paragraph 71.
- See R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paragraph 36.
- See R. v. Hebert, supra, at paragraphs 79 and 88; R. v. Broyles, supra, at pp.616-617; R. v. Connors, supra, at paragraphs 23 and 71; R. v. Deboo, supra, at paragraph 53.8; and R. v. Spence, supra, at paragraphs 49-50.
- See R. v. Hebert, supra, at paragraph 89; R. v. Broyles, supra, at pp. 618-619; R. v. Connors, supra, at paragraph 76; and R. v. Spence, supra, at paragraph 52.
- R. v. Broyles, supra, at p.616.
- See R. v. Hebert, supra, at paragraph 88; R. v. Broyles, supra, at pp. 617-618; and R. v. Deboo, supra, at paragraph 53.8
- See R. v. Brydges, 1990 CanLII 123 (SCC), [1990] 1 S.C.R. 190; and R. v. Broyles, supra, at p.619.
- R. v. Hebert, supra, at paragraph 90.
- See R. v. Broyles, supra, at p.619; R. v. Connors, supra, at paragraph 77; and R. v. Deboo, supra, at paragraph 70.
- R. v. Spence, supra, at paragraph 54.
- See above, at pp.21-22.
- Detective McGregor did not embark on plans for the operation lightly; he instead reviewed the contemplated operation with his superiors and the head of the Street Crimes Unit, before setting it in motion. Once the operation was approved, a decision was made at the outset to employ undercover officers with special training and experience to carry it out. Steps also were taken to create a “buffer” between investigating officers and the relevant undercover officers, thereby minimizing the information the latter were given and the corresponding likelihood of the undercover officers steering the conversation to sensitive areas, (although doing so also reduced the risk of arousing suspicion in Mr Skinner by inadvertent mention of knowledge true detainees would not have known). Detective McGregor, Staff Sergeant Clarke and/or U.C.H., at least, also were mindful of relevant court authorities emphasizing the bounds of propriety in relation to such “cell insert” operations, (in terms of due regard to an accused’s right to silence), and took at least some steps to encourage or undertake a review of such legal principles before the undercover officers embarked on their interaction with Mr Skinner.
- As noted above, the police were aware of Mr Skinner’s movements in the community, prior to his arrest. However, Detective McGregor deliberately arrested Mr Skinner immediately upon his release from unrelated incarceration so that Mr Skinner would be sober and clear-headed during formal questioning and the contemplated cell insert operation.
- They might suggest that Mr Skinner had done something to the child while intoxicated that he could not remember, and feared the consequences of his actions. Alternatively, they might suggest that Mr Skinner was truly ignorant of what had happened to the child, and nevertheless was frightened in any event that the child was going to die.
- In coming to that conclusion, I gave consideration to the possibility, (highlighted in cases such as R. v. Liew, supra), that some portions of Statement #2 might be admitted while others might be excluded. In my view, however, the circumstances made that sort of approach inappropriate. In particular, attempts to isolate certain portions of the conversation artificially would ignore such matters as who initiated, perpetuated and steered the broader conversations, viewed in their entirety. (For example, I think it inappropriate to focus, in isolation, on portions of Mr Skinner’s statements about sensitive matters, to which Mr Skinner occasionally returned, without recognizing the reality that the undercover officers effectively and repeatedly encouraged Mr Skinner to speak to them, and directed or redirected discussion towards such sensitive matters, earlier in the conversations.) It also effectively would ignore realities and pervasive concerns such as the particular vulnerabilities of Mr Skinner, the somewhat unusual circumstances of incarceration that made him more likely to speak with the undercover officers about his situation, and the perhaps unintended but nevertheless effective cultivation of a mental state, (for the reasons outlined above), that encouraged Mr Skinner to be more talkative and open vis-à-vis the undercover officers, which in my view influenced and permeated the conversations as a whole.
- R. v. Hart, supra, at paragraph 85, Footnote 5.