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EVIDENCE - Admissibility - Prejudicial evidence - Confessions and statements by the accused - Voluntariness

Monday, August 14, 2017 @ 12:20 PM  

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Appeal by the accused, Kelly, from a conviction for first degree murder. In 2000, the accused reported his common law spouse missing. In 2004, her body was found by land surveyors in a remote wooded area. An autopsy revealed she died from a single .22-calibre gunshot wound to the back of the head. Police considered the accused the primary suspect and conducted several interviews. After one interview in 2006, the officer pursued the accused to his vehicle. During a heated exchange, the officer revealed the calibre of the weapon, the manner in which the body was stored, and the location in which it was found. In 2009, police targeted the accused using an undercover operation in which an officer posed as a private investigator retained by the spouse's insurance company. The officer contacted the accused and indicated he was a beneficiary entitled to $3,000. The officer noted that there was an odd provision in the release disentitling the accused to benefits under other policies. The officer subsequently told the accused he was a named beneficiary under two other policies, which were in fact fictitious, totalling $571,000. The officer indicated the policies were flagged for non-payment due to the suspicion the accused had murdered the insured. The officer proposed that the accused provide details of the murder to a terminally ill friend who would confess to the murder and allow all of them to share in the proceeds. The accused agreed to the scheme and, after initial denials, provided details of the murder and confessed. The accused was subsequently convicted by a judge sitting with a jury. The accused appealed, challenging the admissibility of his confession.
HELD: Appeal dismissed. The police undercover operation used on the accused did not involve many of the offensive tactics of a traditional Mr. Big operation. There was no criminal organization, violent culture, Mr. Big, or friendship and camaraderie. Nonetheless, the tactic of inducement through a large financial payout based on insurance fraud raised the potential for unreliable confessions, police misconduct, and the prejudicial effect on a trial arising from the accused's participation. The trial judge did not err in admitting the confession, as it met the Hart test for admissibility. The probative value of the accused's confession outweighed its prejudicial effect. The confession was precisely detailed and almost completely accurate. The nature of the police operation did not amount to an abuse of process. The charge to the jury sufficiently contained the cautioning directions identified in the Mack decision related to reliability and prejudice. No error arose in respect of the instructions related to planning and deliberation.

R. v. Kelly, [2017] O.J. No. 3867, Ontario Court of Appeal, K.N. Feldman, E.E. Gillese and M.L. Benotto JJ.A., July 26, 2017. Digest No. TLD-August142017001