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

Monday, October 02, 2017 @ 8:45 AM  


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Appeal by the accused, Niemi, from a conviction for first degree murder. In 2006, the victim's partially clad, mutilated body was discovered in a rural area along a decommissioned railway line. She was strangled to death with a ligature. The accused was the last individual known to have been in the company of the victim the evening prior to her body's discovery. After the police investigation stalled, they commenced an undercover operation targeting the accused. An operative befriended the accused, holding himself out as involved in a fictitious criminal organization. The operation was initially abandoned after failure to elicit a confession. One year later, the operation was renewed using new operatives. During the second operation, the accused made a series of inculpatory statements that mentioned details of the killing that had not been made public. The accused was arrested and charged with first degree murder. He was convicted by a judge sitting with a jury. The accused appealed, challenging the admission of his inculpatory statements, the renewal of a wiretap authorization in conjunction with the second operation, and the adequacy of the jury charge.

HELD: Appeal dismissed. The statements made by the accused during the undercover operation would have been ruled admissible, even had the trial judge had the benefit of the subsequent Supreme Court of Canada Hart decision. The details provided by the accused were so closely interlinked with details of the killing that had not been made public that the probative value of his statements overwhelmed any risk of prejudice arising from presenting them to the jury. Additionally, the undercover operation did not give rise to an abuse of process or involve abusive methods targeting a particularly vulnerable individual. The trial judge was entitled to find the renewal of the initial wiretap authorization validly issued. The first wiretap had showed reasonable grounds to believe the accused was likely to talk about the victim's killing. Prior to renewal, there was an increased likelihood the undercover operation would encourage inculpatory statements given adverse changes in the accused's financial circumstances. The resulting conviction for first degree murder was unassailable and supported by ample evidence. No misdirection arose from the jury charge.

R. v. Niemi, [2017] O.J. No. 4805, Ontario Court of Appeal, D.H. Doherty, J.L. MacFarland and D. Paciocco JJ.A., September 18, 2017. Digest No. TLD-Oct22017003