R. v. Osmar (T.), (2007) 220 O.A.C. 186 (CA)

R. v. Osmar (T.) (2007), 220 O.A.C. 186 (CA)

MLB headnote and full text

Temp. Cite: [2007] O.A.C. TBEd. JA.056

Her Majesty the Queen (respondent) v. Timothy Osmar (applicant/appellant)

(C38643)

Indexed As: R. v. Osmar (T.)

Ontario Court of Appeal

Rosenberg, Goudge and LaForme, JJ.A.

January 29, 2007.

Summary:

The police in this case used the "Mr. Big" strategy to obtain a confession from the accused. That strategy involved undercover police officers offering the suspect a chance to join a criminal organization if he could prove he could be counted on to carry out criminal orders. In this case, in order to gain a job in a criminal organization the accused told undercover officers that he had killed two men. There was no other credible evidence to link him to these crimes. The accused was charged with first degree murder. He moved to have the statements excluded under the Charter or the common law. The trial judge rejected the accused's arguments, holding that the statements were admissible. The accused was convicted. He appealed his conviction.

The Ontario Court of Appeal dismissed the appeal.

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent and protection against self-incrimination (Charter, s. 7) - [See Civil Rights - Topic 4302 ].

Civil Rights - Topic 4302

Protection against self-incrimination - General - Right to remain silent - The police in this case used the "Mr. Big" strategy to obtain a confession from the accused which led to his conviction for first degree murder - That strategy involved undercover police officers offering the suspect a chance to join a criminal organization if he could prove he could be counted on to carry out criminal orders - In this case, in order to gain a job in a criminal organization, the accused told undercover officers that he had killed two men - There was no other credible evidence to link him to these crimes - Before trial, he had moved to have the statements excluded under s. 7 of the Charter - The trial judge refused - The accused appealed his conviction - He argued that although the Supreme Court of Canada had held in R. v. Hebert and R. v. McIntyre that the right to silence guaranteed by s. 7 was not infringed by undercover police operations where the suspect was not detained, the jurisprudence had evolved such that physical detention was no longer required to trigger the constitutionally protected right to silence - He attempted to avoid the impact of those cases by arguing that more recent decisions of the Supreme Court held that s. 7 was implicated whenever the state sought to use self-incriminating evidence by coercive methods - He claimed that trickery combined with elicitation could amount to coercion and that there was no requirement of detention - The Ontario Court of Appeal rejected the accused's argument and dismissed the appeal - See paragraphs 25 to 47.

Criminal Law - Topic 4375

Procedure - Charge or directions - Jury or judge alone - Directions regarding incriminating statements by accused or co-accused - The police in this case used the "Mr. Big" strategy to obtain a confession from the accused which led to his conviction for first degree murder - That strategy involved undercover police officers offering the suspect a chance to join a criminal organization if he could prove he could be counted on to carry out criminal orders - In order to gain a job in a criminal organization, the accused told undercover officers that he had killed two men - There was no other credible evidence to link him to these crimes - The trial judge refused to exclude the confession and also refused to admit expert testimony on false confessions - The accused appealed his conviction, arguing that the trial judge should have given a warning to the jury in the strongest terms as to the unreliability of the accused's confessions and the risk that they were false, especially since he did not admit the expert's evidence conviction - The Ontario Court of Appeal dismissed the appeal, holding that the trial judge's instructions were sufficient in the circumstances - See paragraphs 73 to 77.

Criminal Law - Topic 5351

Evidence and witnesses - Confessions and voluntary statements - Confessions excluded due to prejudicial effect - The police in this case used the "Mr. Big" strategy to obtain a confession from the accused which led to his conviction for first degree murder - That strategy involved undercover police officers offering the suspect a chance to join a criminal organization if he could prove he could be counted on to carry out criminal orders - In this case, in order to gain a job in a criminal organization, the accused told undercover officers that he had killed two men - There was no other credible evidence to link him to these crimes - Before trial, he had moved to have the statements excluded on common law grounds - The trial judge refused - The accused appealed his conviction, arguing that the court had a common law jurisdiction to exclude the statements because they were made under circumstances of unreliability or because their admission would shock the conscience of the community - The Ontario Court of Appeal rejected the accused's argument and dismissed the appeal - The court stated that it did not want to be taken as holding that the manner in which the Mr. Big strategy was executed could never shock the conscience of the community and lead to exclusion on common law grounds - However, the facts of this case did not meet that test - The court also rejected the accused's argument that the prejudicial effect of the evidence outweighed its probative value and an argument based on the admissions exception to the hearsay rule - See paragraphs 48 to 54.

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - [See Criminal Law - Topic 5351 ].

Evidence - Topic 1761

Hearsay rule - Hearsay rule exceptions and exclusions - Admissions - General - [See Criminal Law - Topic 5351 ].

Evidence - Topic 7062.3

Opinion evidence - Expert evidence - Particular matters - False confessions - The police in this case used the "Mr. Big" strategy to obtain a confession from the accused which led to his conviction for first degree murder - That strategy involved undercover police officers offering the suspect a chance to join a criminal organization if he could prove he could be counted on to carry out criminal orders - In this case, in order to gain a job in a criminal organization, the accused told undercover officers that he had killed two men - There was no other credible evidence to link him to these crimes - The accused appealed his conviction, arguing that the trial judge erred in refusing to admit the evidence of a leading expert on false confessions - The trial judge concluded that the evidence did not meet the requirements of relevancy and necessity for admission of expert evidence - The Ontario Court of Appeal refused to give effect to this ground of appeal and dismissed the appeal - See paragraphs 55 to 72.

Cases Noticed:

R. v. Todd (1901), 4 C.C.C. 514 (Man. C.A.), refd to. [para.1, footnote 1].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1; 57 C.C.C.(3d) 1, refd to. [para. 3].

R. v. Oickle (R.F.) (2000), 259 N.R. 227; 187 N.S.R.(2d) 201; 585 A.P.R. 201; 147 C.C.C.(3d) 321 (S.C.C.), refd to. [para. 20].

R. v. McIntyre (M.), [1994] 2 S.C.R. 480; 168 N.R. 308; 153 N.B.R.(2d) 161; 392 A.P.R. 161, refd to. [para. 25].

R. v. M.C.H. (1998), 230 N.R. 1; 113 O.A.C. 97; 127 C.C.C.(3d) 449 (S.C.C.), refd to. [para. 26].

R. v. White (J.K.), [1999] 2 S.C.R. 417; 240 N.R. 1; 123 B.C.A.C. 161; 201 W.A.C. 161; 135 C.C.C.(3d) 257, refd to. [para. 26].

R. v. Turcotte (T.) (2005), 339 N.R. 32; 216 B.C.A.C. 1; 356 W.A.C. 1; 200 C.C.C.(3d) 289; 2005 SCC 50, refd to. [para. 26].

R. v. Rothman, [1981] 1 S.C.R. 640; 35 N.R. 485; 59 C.C.C.(2d) 30, refd to. [para. 27].

R. v. Henry (D.B.) et al. (2005), 342 N.R. 259; 219 B.C.A.C. 1; 361 W.A.C. 1; 202 C.C.C.(3d) 449 (S.C.C.), refd to. [para. 43].

R. v. McIntyre (M.) (1993), 135 N.B.R.(2d) 266; 344 A.P.R. 266 (C.A.), refd to. [para. 45].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 147 C.C.C.(3d) 449, refd to. [para. 52].

R. v. Foreman (R.E.) (2002), 166 O.A.C. 160; 169 C.C.C.(3d) 489 (C.A.), refd to. [para. 53].

R. v. Evans (C.D.), [1993] 3 S.C.R. 653; 158 N.R. 278; 145 A.R. 81; 55 W.A.C. 81; 85 C.C.C.(3d) 97, refd to. [para. 53].

R. v. Wytyshyn (D.G.), [2002] A.R. Uned. 301 (C.A.), refd to. [para. 53, footnote 6].

R. v. Mohan (1994), 166 N.R. 245; 71 O.A.C. 241; 89 C.C.C.(3d) 402 (S.C.C.), refd to. [para. 63].

R. v. J.-L.J. (2000), 261 N.R. 111; 148 C.C.C.(3d) 487 (S.C.C.), refd to. [para. 63].

R. v. Grandinetti (C.H.) (2005), 329 N.R. 28; 363 A.R. 1; 343 W.A.C. 1; 191 C.C.C.(3d) 449 (S.C.C.), refd to. [para. 76, footnote 8].

Unger v. Canada (Minister of Justice) et al. (2005), 196 Man.R.(2d) 280 (Q.B.), refd to. [para. 76, footnote 8].

R. v. Raza, [1998] B.C.J. No. 3242 (S.C.), refd to. [para. 76, footnote 8].

R. v. Redd, [1999] B.C.J. No. 1471 (S.C.), refd to. [para. 76, footnote 8].

R. v. Roberts (D.C.) (1997), 90 B.C.A.C. 213; 147 W.A.C. 213 (C.A.), refd to. [para. 76, footnote 8].

R. v. Terrico (W.J.) (2005), 214 B.C.A.C. 135; 353 W.A.C. 135; 199 C.C.C.(3d) 126 (C.A.), refd to. [para. 76, footnote 8].

R. v. Forknall (P.C.) (2003), 176 B.C.A.C. 284; 290 W.A.C. 284; 172 C.C.C.(3d) 61; 2003 BCCA 43, refd to. [para. 76, footnote 8].

R. v. MacMillan, [2003] B.C.T.C. 1705 (S.C.), refd to. [para. 76, footnote 8].

R. v. Mentuck (C.G.), [2001] 3 S.C.R. 442; 277 N.R. 160; 163 Man.R.(2d) 1; 269 W.A.C. 1; 2001 SCC 76, refd to. [para. 76, footnote 8].

Authors and Works Noticed:

Stuart, Don, Charter Justice in Canadian Criminal Law (4th Ed. 2005), pp. 129, 130 [para. 26, footnote 4].

Counsel:

Philip Campbell, for the appellant;

J. Sandy Tse and Michelle Campbell, for the respondent.

This appeal was heard on December 19 and 20, 2006, before Rosenberg, Goudge and LaForme, JJ.A., of the Ontario Court of Appeal. Rosenberg, J.A., delivered the following decision for the court on January 29, 2007.