R. v. Pearce (M.L.), 2014 MBCA 70

Citation: R. v. Pearce (M.L.), 2014 MBCA 70 Date: 20140717 Docket: AR 12-30-07845 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Marc M. Monnin Mr. Justice Christopher J. Mainella BETWEEN : ) G. F. Wiebe HER MAJESTY THE QUEEN ) for the Appellant ) Respondent ) N. M. Cutler and ) D. L. Carlson - and - ) for the Respondent ) ) Appeal heard: MICHAEL LYNN PEARCE ) December 16, 2013 ) (Accused) Appellant ) Judgment delivered: ) July 17, 2014 MAINELLA J.A. I. Introduction and Issues [ 1 ] This appeal raises difficult questions about false confessions.

The appellant was convicted by a judge and jury of manslaughter and received a seven-year sentence. The question the jury had to resolve was whether they had a reasonable doubt as to whether what appeared to be a penitent confession by the appellant to killing his friend and lover was actually false. [ 2 ] The Crown alleged that after having sex with Stuart Mark (the deceased), and learning the deceased was HIV positive, the appellant killed the deceased in a rage. The key evidence against the appellant was his video-recorded confession to two police officers admitting to the crime.

The appellant’s defence to the allegation was that his confession was false; he testified he did not kill the deceased.

The appellant told the jury his confession was false for three reasons: he was emotionally unstable when he confessed; he was confused during the interrogation as he was under the influence of the drug Tylenol No. 3; and finally, the two police officers manipulated him into admitting to something he did not do. [ 3 ] The appellant alleges that the principal error of the judge during the trial was that she accepted, without explaining why, that a jury can understand the counterintuitive concept of a false confession without any assistance either from an expert witness or an instruction from the judge in her charge to the jury. [ 4 ] The appellant says the cumulative effect of the judge’s conduct of the trial prejudiced his defence that his confession was false.

He says the jury was left in the dark about the phenomenon of false confessions and lacked the necessary context for him to have a fair trial. [ 5 ] While the appellant raised many grounds of appeal as to his conviction, at the hearing of the appeal the Crown was called upon to address the only two that had merit: (

i) did the judge err in refusing to admit expert evidence on false confessions; and (ii) did the judge adequately instruct the jury? [ 6 ] For the following reasons, I am satisfied that a new trial is required. While the judge was quite right to refuse to admit expert evidence on false confessions in the circumstances of this case, the context of this case required her to caution to the jury about the phenomenon of false confessions to ensure a fair trial. II. Admissibility of Expert Evidence on False Confessions Background The homicide and its investigation

[ 7 ] On January 17, 2007, the deceased was found with his head face down on a sofa in the sitting area of the main floor of his Winnipeg residence. The autopsy established that the deceased had been beaten to death, likely with a golf club, suffering at least 57 blows as well as being stabbed in the left flank, likely with the broken shaft of a golf club. The bloodstain pattern evidence confirmed that the beating had been brutal, prolonged and the location of the body was where the assault ended.

The autopsy also confirmed that the deceased was HIV positive. [ 8 ] The police investigation quickly came to a standstill; there was no obvious suspect or motive for the homicide. One lead was an unknown male, who had told a gas-station employee intimate details about the killing. On March 24, 2007, and again on May 31, 2007, the police asked for the public’s assistance in identifying this potential witness. The appellant contacts the police – July 8, 2007 [ 9 ] On July 8, 2007, the appellant contacted the police. The appellant was unknown to the police.

There was no reason to believe that he and the deceased knew each other. He told the police he may be the gas-station witness. [ 10 ] The appellant was interviewed by Det. Sgt. John O’Donovan (O’Donovan) and Det. Chad Depencier (Depencier). While the appellant explained his link to the deceased as a friend and casual sex partner, the interview provided no helpful information to the investigation. The appellant agreed to take a polygraph to allow police to determine if he was the gas-station witness. The polygraph examination – July 10, 2007 [ 11 ] O’Donovan told the polygraph examiner, Det.

Donald MacAulay (MacAulay), that the likely murder weapon was a golf club. This was unknown to members of the public except the killer. As part of the polygraph examination on July 10, 2007, MacAulay questioned the appellant on eight possible murder weapons (knife, crowbar, handgun, baseball bat, golf club, shotgun, hockey stick and tire iron) to test his knowledge of the crime.

He denied using any of those weapons to kill the deceased. [ 12 ] After conducting a polygraph examination, MacAulay told the appellant, O’Donovan and Depencier that he was of the opinion that the appellant had nothing to do with the deceased’s death. Rather than being relieved, oddly, the appellant appeared to MacAulay to be upset by the news. The confession – July 15, 2007 [ 13 ] On July 15, 2007, the appellant contacted Depencier and insisted on a meeting.

O’Donovan and Depencier were not interested in speaking to him again, but they eventually agreed to meet him because he was insistent. [ 14 ] At the police station, the appellant explained he was upset and had gone to the hospital the previous evening because he had taken too much Tylenol No. 3. The officers were satisfied he was sober and agreed to listen to him.

The interview, which began just before 11:00 a.m., was not recorded because the appellant was not a witness or a suspect. [ 15 ] The appellant told the officers that after the polygraph examination he became upset because the officers had mentioned the deceased had AIDS. He explained that this caused him to remember an argument with the deceased which he thought he should share with the police. [ 16 ] The appellant explained he was with the deceased at the deceased’s house on January 13, 2007. An argument ensued after the two had sex when the deceased revealed he had AIDS.

Despite using a condom, the appellant was angry because the deceased had open sores. [ 17 ] During the interview, the appellant referred to notes he had written (Ex. 43). The notes said he and the deceased had fooled around sexually, the deceased had told him he had AIDS and then they fought, but he could not remember what happened. Part of the notes said, “Dad please forgive me if I have done anything wrong, I could not live with myself.” [ 18 ] To help explain the argument in the residence, the appellant was asked to draw a map (Ex. 40).

He marked an “X” on the map near the sofa in the sitting area on the main floor and said this is where he remembered the end of the argument. While pointing at the “X” on the map, he said, “I might’ve hit him here … I did something really bad.” [ 19 ] The appellant was immediately arrested for murder because he had identified the exact location where the deceased’s body was found, information that was unknown to any member of the public except for the killer.

O’Donovan and Depencier then left the appellant alone for two hours to discuss what to do and to arrange for a video-recording of an interrogation. [ 20 ] At 2:16 p.m. the officers began an interrogation of the appellant that lasted for just over two and one-half hours.

Although the admissibility of this statement was disputed at trial, the judge’s ruling that the statement was both voluntary within the meaning of the confessions rule and was not obtained in a manner that infringed the appellant’s rights under the Canadian Charter of Rights and Freedoms (the Charter ), is not challenged on appeal. [ 21 ] During the interrogation, the appellant repeated that he and the deceased had sex and then had an argument after the deceased revealed he had AIDS.

The deceased reacted to the appellant being upset by saying words to the effect of “Fuck you” or “Who gives a fuck.” The appellant said he felt horrible and had a lot of anger. He told the officers, “It got to a point where I just temporarily lost it.” He said when he left the residence after the argument he felt a “very evil” presence. [ 22 ] The appellant repeatedly told the officers during the interrogation that he did not remember what happened during the argument except for being very angry. Eventually he said, “I must have hit him somehow.” Later the following exchange occurred:

DET. O’DONOVAN : What did you hit him with? It’s very important to us. I think it’s equally important to you. DET. DEPENCIER : What was it you picked up? [ APPELLANT] : I don’t know. DET. DEPENCIER : Do you remember picking something up? [APPELLANT] : Why don’t we say that I just think of the list of things that you think it could have been. And -- DET. DEPENCIER : You mean the list of things that Detective MacAuley asked you about last week? Or last Tuesday? [APPELLANT] : Yeah. [ 23 ] The interrogation continued with reference to the list of eight weapons used by MacAulay in the polygraph examination.

The appellant told the officers that he was so angry he must have grabbed something and hit the deceased with it. The following exchange occurred: DET. DEPENCIER : And you know what? If you want to just throw out an idea, throw out just a brainstorm of whatever’s going on in your head. Whatever thoughts in your head, throw it out there. DET. O’DONOVAN : We’ll know if it’s right or wrong. And we -- just closer for you. DET. DEPENCIER : Go ahead, Mike, just throw out anything that’s on your mind here. What happened here? And we’ll talk about it, that’s what we’re here for.

Just throw anything out. [APPELLANT] : I just keep going through that list of things they -- DET. DEPENCIER : Yeah. I know you like -- do you want to go one at a time through each one of those things and stop for a moment and think about each one of those things in relation to this incident? Maybe that would help you. Do you want to do that? What’s one of the things you remember from the list? [ 24 ] The appellant mentioned some of the weapons from MacAulay’s list: a pry bar, a knife, a handgun, a bat, a golf club and a tire iron.

After being pressed to search his memory without making anything up, he admitted to swinging a golf club at the deceased. He said little more except than the golf club was an iron and he hit the deceased on the head with it. [ 25 ] In the kitchen sink at the crime scene police located a 4 iron and a 2 iron. Near the deceased’s body, police found the heads of a 3 iron and a driver; the broken shafts of the golf clubs (one of which was bloodied) were found elsewhere in the residence. The appellant’s testimony recanting the confession [ 26 ] During the trial, the appellant testified that his confession was false.

He said he was emotionally upset and suicidal because he had been outed as a homosexual and was concerned he might have AIDS. He said the reference in Ex. 43 to forgiveness was for being a homosexual, not a killer. He said this was a suicide note. [ 27 ] He further testified that in the days prior to the confession he had been abusing Tylenol No. 3 and was under the influence of that drug when he was interrogated by O’Donovan and Depencier. [ 28 ] The appellant also claimed that O’Donovan and Depencier coaxed him to make up the confession.

He admitted he marked an “X” on the map, however, he says the officers suggested where to place the “X” in the unrecorded interview. He said his

knowledge of the crime was not from committing it. He said he learned from media reports that the deceased was beaten to death. Hesaid he learned from the polygraph examination that a golf club was a possible murder weapon. He said the officers’ questioning pushedhim into making a false confession to a crime he did not commit. Proposed false confession experts – Drs. Peterson and Moore [29] The appellant proposed to call two psychologists (Drs. Jordan B. Peterson and Timothy E. Moore) as expert witnesses tosupport his false confession defence.

The purpose of these expert witnesses was to inform the jury on matters related to the phenomenonof false confessions and to highlight the supposed unreliability of the appellant’s confession. [30] The judge’s voir dire ruling restricted Dr. Peterson’s proposed evidence significantly and prevented Dr. Moore fromtestifying at all. Dr. Peterson [31] The judge ruled that three of the four areas of Dr. Peterson’s proposed evidence did not meet the criteria required for theadmissibility of expert evidence (R. v. Mohan, (SCC), [1994] 2 S.C.R. 9 at 20). [32] Dr.

Peterson was allowed to testify on the area of whether there is a phenomenon of repressed memory (to address theappellant’s repeated claims of not remembering what happened during the argument with the deceased and the officers’ invitation to himto try and unblock his memory). Dr.

Peterson was not allowed to explain why the appellant’s confession was unreliable based on hisconsideration of the three areas of: how interviewing techniques affect the reliability of responses; how personality traits can make aperson more prone to suggestion; and how a person’s physical condition, such as intoxication or hunger, can affect responses. Theappellant concedes that the judge did not err in refusing to admit expert evidence on the last area relating to a person’s physicalcondition.

It is readily understandable to a jury that a confession from a person who is intoxicated, tired or hungry may be less reliable. [33] On the proposed area of how interviewing techniques affect the reliability of responses, Dr. Peterson’s opinion was thatsuggestive or leading questions, such as the style of questioning of O’Donovan and Depencier, can cause the interviewee to infer thedesired or correct response through deduction as opposed to stating what they actually remember. The judge ruled that Dr. Peterson’sopinion had two shortcomings.

He was not properly qualified as he had no experience in the area of the psychology of policeinterrogations. Also, his opinion had no scientific qualities and was unnecessary. The judge held that the jury was quite capable ofviewing the confession and coming to their own conclusions about its reliability in light of the other testimony in the trial and thesubmissions of counsel. [34] On the proposed area of how personality traits can make a person more prone to suggestion, Dr.

Peterson’s opinion wasbased on an online personality assessment that the appellant had completed called “the Unfakeable Big Five.” The Unfakeable Big Fivepurports to scientifically measure the five recognized areas of a person’s personality (agreeableness, stress tolerance, conscientiousness,openness and extraversion). The Unfakeable Big Five was devised by Dr. Peterson for his private consulting business and is used as atool for hiring employees.

According to this online personality assessment, the appellant was a highly agreeable adult (97th percentile)as well as being above average in tolerating stress (71st percentile). [35] Dr. Peterson’s opinion was that people with an agreeable personality trait like the appellant are susceptible to beingmanipulated during questioning. [36] The judge summarized Dr. Peterson’s opinion of why the appellant’s confession was unreliable as follows (at para. 18): Dr.

Peterson opined that there are a number of factors which affect the reliability of [the appellant’s] confession and which hesummarized in the conclusion to his written report: In conclusion: [the appellant] was subject to an extremely leading interrogation, conducted after he convincingly cleared a polygraphtest, in the aftermath of a drug-related suicide attempt, by detectives who completely and explicitly accepted the validity of a (sic)unsubstantiated theory of repressed memory.

His susceptibility to a confession under these conditions is not surprising, 1) given thenature of his personality and his recent emotional experiences and 2) given the contents of the psychological literature on the distortionof autobiographical memories as a consequence of interrogation. [37] The judge concluded that Dr. Peterson’s methodology about the appellant’s personality lacked a sufficient scientificbasis and was unreliable. Dr.

Peterson had never met the appellant, nor watched the confession and his opinion (at para. 45): …. … [D]id not explain how the significance of these results on the reliability of [the appellant’s] confession or how the other traitsidentified by the test scores interrelated or informed the

interpretation of the results. There was no explanation as to the legitimacy ofisolating one personality trait from the others in determining a person’s response to interrogation. Dr. Moore [38] Dr. Moore was called to testify on the areas of how police investigative techniques can affect the reliability of aconfession and to give his opinion on the reliability of the appellant’s confession. Part of his proposed expert evidence was to explain

the police interviewing strategy known as “the Reid Technique.” The Reid Technique has coercive aspects such as the use ofconfrontation, deception, false empathy and minimization of the suspect’s conduct. According to Dr. Moore, this can cause a falseconfession. Dr. Moore’s opinion was that the appellant’s confession was not reliable because of the manner of interrogation, the lack ofconfirmatory evidence as to the details of the confession and the personal circumstances of the appellant. [39] The judge ruled, for reasons similar to her conclusions about Dr. Peterson, that Dr.

Moore’s proposed evidence did notmeet the requirements of Mohan because it lacked any scientific foundation and was unnecessary evidence. The judge noted that thefactors Dr. Moore uses to assess the reliability of a confession are not “matters of scientific study” (at para. 62). She said such factors“are routinely canvassed by counsel and can be understood by the jury without the assistance of an expert” (ibid). [40] The judge also held that Dr. Moore lacked the necessary objectivity of an expert witness.

Position of the Parties The appellant’s position [41] The appellant argues that the proposed evidence from Drs. Peterson and Moore about how the reliability of a confessionis undermined by the manner of police interrogation and the personality of the suspect met the Mohan requirements. The appellant saysthe average juror cannot understand how the manner of interrogation can produce a false confession merely from watching the videorecording of a confession.

He says the jury needs to be educated about how the combination of coercive questioning and the vulnerablepersonality of a suspect can produce a false confession. He submits that for the jury to make a proper assessment of the reliability of hisconfession, they required expert evidence from Drs. Peterson and Moore. [42] The appellant also submits that the judge’s finding that Dr.

Moore lacked the necessary objectivity to be an expert wascontrary to the record and the appropriate procedure should have been to allow the jury to make their own credibility assessment of Dr.Moore if he otherwise met the criteria of Mohan, as opposed to the judge excluding his evidence all together on the basis of lack ofobjectivity. [43] The appellant argues that one consequence of the judge’s expert witness ruling was that the cross-examination ofO’Donovan about the Reid Technique was improperly curtailed. The judge ruled that questioning about the Reid Technique wasirrelevant and would only confuse the jury.

The appellant submits that the jury was entitled to make their own assessment of theconfession’s reliability and to do so they should have heard evidence through cross-examination of the techniques O’Donovan andDepencier used in the interrogation. The Crown’s position [44] The Crown argues that the judge’s decision on the admissibility of expert evidence from Drs. Peterson and Moore islargely a discretionary decision that should not be disturbed. [45] The Crown argues neither witness met the Mohan criteria of relevance, necessity and a properly qualified expert. In thecase of Dr.

Moore, the Crown says the record supports the finding that Dr. Moore lacked the required objectivity expected from anexpert witness. [46] The Crown argues that the judge did not improperly curtail the cross-examination of O’Donovan. The Crown says theappellant’s counsel at trial was not prevented from exploring the surrounding circumstances of the confession, including the purpose(s)behind the officers’ questions. The officers were not experts on the Reid Technique, nor was it relevant whether they used aspects of thatstrategy in interrogating the appellant.

Analysis and Decision [47] I am satisfied that the judge did not err in her determination as to the admissibility of expert evidence from Drs. Petersonand Moore. I am also satisfied that her ruling regarding the admissibility of expert evidence from Dr. Moore did not lead to the impropercurtailment of the cross-examination of O’Donovan. Review of the trial judge’s decision on the admissibility of the expert evidencebegins with discussion of the phenomenon of false confessions.

The phenomenon of false confessions [48] A confession is a statement by an accused, whether by words or assertive conduct, to a person in authority, which theprosecutor seeks to introduce as part of their case. The statement can be either inculpatory, exculpatory, or both. The statement canaddress all or some of the material facts of the offence(

s) the accused is being tried on; it need not be a full admission of guilt (Piché v.The Queen, (SCC), [1971] S.C.R. 23 at 36-37; R. v. J. (J.T.), (SCC), [1990] 2 S.C.R. 755 at 771;Commissioners of Customs & Excise v. Harz and Power (1967), 51 Cr.App.R. 123 at 155 (H.L.)). [49] Historically an accused’s out-of-court statement to a person in authority is called a confession while a similar statementto someone who is not a person in authority is called an admission.

That distinction is driven by the application of the confessions rule,where an accused’s statement to a person in authority is presumptively inadmissible unless demonstrated to be voluntary (R. v.Grandinetti, 2005 SCC 5 at paras. 34-45, [2005] 1 S.C.R. 27; R. v. Spencer, 2007 SCC 11 at para. 11, [2007] 1 S.C.R. 500; and R. v.S.G.T., 2010 SCC 20 at para. 20, [2010] 1 S.C.R. 688). The different terminology has nothing to do with the potential probative value ofthe statement. An admission may be more incriminating in a given context than a confession.

For the purposes of my reasons I use thesetwo terms inter-changeably by reference to the expression confession. [50] A confession is like no other evidence. Our system of justice accepts that an accused can be convicted solely on thebasis of their own confession without any confirmatory evidence of its truth (Kelsey v. The Queen, (SCC), [1953] 1S.C.R. 220 at 227-28; R. v. Singh, 2007 SCC 48 at para. 29, [2007] 3 S.C.R. 405). A confession is seen as such a powerful piece of

evidence because of the logic that an innocent person is unlikely to incriminate themselves (R. v. Hodgson, (SCC),[1998] 2 S.C.R. 449 at paras. 14, 17; and R. v. Rojas, 2008 SCC 56 at para. 35, [2008] 3 S.C.R. 111). [51] Until recently there were few documented cases of false confessions leading to a wrongful conviction because of thedifficulty of proving, post-conviction, that a confession was indeed false (The Honourable Fred Kaufman, The Admissibility ofConfessions, 3d ed. (Toronto: The Carswell Company Limited, 1979) at 15-17). [52] However, in R. v.

Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, the Supreme Court of Canada recognized that falseconfessions during police interrogations do occur and can contribute to wrongful convictions. The phenomenon is, as Iacobucci J.explained, “counterintuitive” (at paras. 34-35): …. … [I]t may seem counterintuitive that people would confess to a crime that they did not commit. And indeed, research with mockjuries indicates that people find it difficult to believe that someone would confess falsely. …. However, this intuition is not always correct.

A large body of literature has developed documenting hundreds of cases whereconfessions have been proven false by DNA evidence, subsequent confessions by the true perpetrator, and other such independentsources of evidence. …. [53] The counterintuitive nature of false confessions can lead to miscarriages of justice. Bruce MacFarlane, Q.C. explains: False confessions easily lead to miscarriages of justice because of the significant impact they have on the decision-making process ofjustice officials and lay juries.

Except in the rare situation where a perpetrator is actually caught in the act of committing the crime, aconfession is regarded as the most powerful, persuasive, and damning evidence of guilt that the state can adduce. It follows, therefore,that a false confession is the most prejudicial evidence that can arise at trial.

Judges and juries tend to disbelieve claims of innocence inthe face of a confession, and are usually unwilling to accept that someone who has confessed did not actually commit the crime.[Footnotes omitted] (Bruce MacFarlane, “Convicting The Innocent: A Triple Failure of the Justice System” (2006) 31 Man. L.J. 403 at 474.) [54] According to Dr.

Gisli Gudjonsson, a leading international researcher on false confessions, the extent of the problem isunknown, and cannot be estimated, as there is no adequate method to calculate false confession incident rates in any country (Gisli H.Gudjonsson, The Psychology of Interrogations and Confessions (West Sussex: John Wiley & Sons, Ltd., 2003) at 174-78). [55] What little empirical evidence that does exist suggests the phenomenon of false confessions is real and cannot beignored.

In the United States of America, research about wrongful convictions has documented that false confessions occurred in 16 percent of cases that resulted in post-conviction exonerations based on DNA evidence (Brandon L. Garrett, “Judging Innocence” (2008) 108Colum. L.R. 55 at 88).

According to the Innocence Project, that number rises to about 30 per cent of such cases if all forms ofincriminating admissions, short of a full confession, are considered (Innocence Project, “False Confessions,” online:http://www.innocenceproject.org/understand/False-Confessions.php). [56] Why someone would falsely confess to a particular crime is often difficult to pinpoint.

Legal and academic sources citefrequent causes of a false confession in the context of a custodial interrogation as being a combination of factors such as: (1) thevulnerability of a suspect (e.g., low intelligence, poor memory, mental illness, youth or extreme age, a significant personality trait ordisorder, the fulfillment of a psychological need such as a desire for notoriety or a temporarily diminished condition for reasons such ashunger, sleep deprivation or intoxicant withdrawal); (2) the circumstances and nature of the custodial confinement and interrogation; and(3) the manner of police interrogation (e.g., use of fabricated evidence) (Oickle at paras. 38-43, and The Psychology of Interrogationsand Confessions at 173). [57] According to Dr.

Gudjonsson, some care must also be taken in analyzing the causes of false confessions because notevery occurrence is a situation of the police inducing the innocent to say they are guilty. Some false confessions are made voluntarilyand for a deliberate purpose. For example, sometimes a police interrogation is corrupted for reasons unknown to the police, particularlyin situations where peer loyalty or peer pressure may be a factor. In such cases, according to Dr. Gudjonsson, suspects may falselyconfess to protect others (The Psychology of Interrogations and Confessions at 177, and R. v.

Phillion (R.J.), 2009 ONCA 202 at para.203, 246 O.A.C. 317 (Phillion 2009)). [58] Our system of justice accepts that police interrogation of a suspect, when properly done, is a “fruitful source” ofinformation to solve crimes (Singh at para. 45).

Together with that willingness to rely on confessions as evidence, however, is thecountervailing desire to ensure that claims of false confessions have a fair process to ensure their proper adjudication. [59] Judicial concern about false confessions is a longstanding rationale of the confessions rule (Singh at paras. 29-30, andJohn Henry Wigmore, Evidence in Trials at Common Law, revised by James H. Chadbourn (Boston: Little, Brown & Company(Canada) Limited, 1970) vol. 3 at 291-308).

The Supreme Court of Canada in Oickle noted that the confessions rule is designed toaddress the most common type of false confession, the classical “coerced-compliant confession” (at para. 39) to a person in authority thatis the product of improper inducements (such as a threat or promise) or oppressive circumstances (e.g., R. v. Eaton (1978), 1978

2381 (MB CA), 39 C.C.C. (2d) 455 at 460 (Man. C.A)). [60] However, by definition, it must be acknowledged that not all claims of false confession can be properly adjudicated byapplication of the confessions rule which focusses on the issue of voluntariness and is limited to statements made to persons in authority. The confessions rule can only exclude “putatively unreliable statements, not actually unreliable statements” (Hodgson at para. 19).

Asthe Supreme Court of Canada explained in Oickle (at paras. 38-41) and Hodgson (at paras. 26, 30), there are examples of falseconfessions that may not be excluded from being admitted into evidence by the confessions rule, for example: false confessions withoutexternal pressure because of an ulterior purpose (notoriety, to relieve guilt, illness or a disorder, or to protect another); false confessionsto escape the pressure of police interrogation; false confessions because of being temporarily persuaded of guilt by a skillful interrogator;and false confessions because of inhuman or degrading treatment by a person not in authority. [61] While not argued in this case, I think it is important to note that the confessions rule is not the only judicial safeguardagainst false confessions (R v.

Wells (S.W.), 2003 BCCA 242 at paras. 59-64, 181 B.C.A.C. 271). At common law a judge has discretionto exclude relevant and otherwise admissible evidence in two situations (R. v. Buhay, 2003 SCC 30 at para. 40, [2003] 1 S.C.R. 631). First, applying a cost-benefit analysis, a judge may exclude such evidence if its prejudicial effect exceeds its probative value (R. v.Seaboyer; R. v. Gayme, (SCC), [1991] 2 S.C.R. 577 at 610-11, and Mohan at pp. 20-21). In such cases the integrity ofthe jury’s reasoning is preserved by preventing their misuse or overuse of evidence of questionable value.

Second, a judge may alsoexclude evidence if its admission would result in an unfair trial to an accused because of concerns about the process by which theevidence was obtained in the absence of a breach of the Charter (R. v. Harrer, (SCC), [1995] 3 S.C.R. 562 at paras. 23-24; R. v. Buric (1996), (ON CA), 28 O.R. (3d) 737 at 749-50 (C.A.), aff’d, (SCC), [1997] 1 S.C.R.535; and R. v. Osmar, 2007 ONCA 50 at para. 48, 84 O.R. (3d) 321, leave to appeal to S.C.C. ref’d, [2007] S.C.C.A.

No. 157 (QL)). [62] In a rare case where there is clear, cogent and compelling evidence that an otherwise admissible confession is false, ajudge may be satisfied that it is necessary to use their common-law discretion to exclude the confession. Such an exercise of judicialdiscretion is not a backdoor way to usurp the role of the jury to determine the truth of a confession. Rather, such an exercise of judicialdiscretion is directed to preventing the unfairness of exposing an accused to the possibility of conviction on evidence upon which itwould be unreasonable to rest a verdict (see R. v.

Humaid (2006), (ON CA), 81 O.R. (3d) 456 at para. 57, leave toappeal to S.C.C. ref’d, [2006] S.C.C.A. No. 232 (QL); and R. v.

Hay, 2013 SCC 61 at para. 41, [2013] 3 S.C.R. 694). [63] Once a confession is determined to be admissible, the principal safeguard against a wrongful conviction based on a falseconfession is the trier of fact, in this case a jury, aided by the features of the adversary system, because the ultimate truth of a confession Sicotte (1983), (ON CA), 1 O.A.C. 1 at para. 39, aff’d (SCC), [1987] 1 S.C.R. 1253). [64] In cases of an alleged false confession, it is not uncommon for an accused to attempt to adduce expert evidence toexplain why a confession, declared voluntary within the meaning of the confessions rule, is nevertheless false or unreliable (e.g., Phillionv.

The Queen, (SCC), [1978] 1 S.C.R. 18 at 22-24 (Phillion 1978)). Here, the appellant attempted to call expertevidence from Drs. Peterson and Moore to explain to the jury issues related to the phenomenon of false confessions and to give theiropinion on the reliability of the appellant’s confession. [65] Review of the judge’s decision regarding the admissibility of expert evidence from Drs.

Peterson and Moore in supportof the appellant’s defence of false confession necessitates discussion of the relevant principles for the admission of expert evidence andthe standard of review of a trial judge’s admissibility determinations on expert evidence. Admissibility of expert evidence and appellate review [66] Expert opinion evidence is presumptively inadmissible.

The party seeking to introduce it must establish on the balanceof probabilities that the evidence is: (1) relevant; (2) necessary to assist the trier of fact; (3) there is an absence of any exclusionary rule;and (4) the witness proffered is a properly qualified expert (Mohan at p. 20). [67] The admission of expert evidence under the Mohan criteria is not a matter of precedent; rather, it is a case-specificexercise where the critical duty of a trial judge is to balance competing interests in the context of the particular trial. Charron J.A., as shethen was, explained in R. v.

K. (A.) (1999), (ON CA), 45 O.R. (3d) 641 (C.A.) (at para. 75): .… The Supreme Court in Mohan identifies a number of factors that should be considered in this balancing process. The proposedevidence will only be admissible if its probative value exceeds its prejudicial effect. …. (See Mohan at 21-25; R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600; R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275; R. v. Sekhon, 2014SCC 15 at paras. 43-47; and R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, leave to appeal to S.C.C. ref’d, [2010] S.C.C.A.

No. 125(QL).) [68] The trial judge discharges a “gatekeeper” function to ensure that the fact-finding process is not distorted by the dangersassociated with expert evidence (J.-L.J. at paras. 25-29). In particular, expert evidence relating to “novel science” requires specialscrutiny as to its reliability before admission (Mohan at p. 25 and J.-L.J. at paras. 35-37). [69] Expert evidence of a scientific nature must meet a standard of threshold reliability to ensure that the expert’s reasoningor methodology is scientifically valid before being admitted to prove a fact at issue.

In some cases this is not a contentious issue as thescience in question is well recognized by the courts to be reliable (R. v. Trochym, 2007 SCC 6 at para. 31, [2007] 1 S.C.R. 239). However, in cases like this where the science, or its use, is novel, the trial judge, as part of their gatekeeper function, must carefully

scrutinize the reliability of the proposed opinion evidence. The factors discussed in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S.579 at 593-94 (1993) (cited with approval in J.-L.J. at para. 33, and Trochym at para. 36) provide guidance.

They can be summarized asfollows: (1) whether the theory or technique can be tested – a theory or technique is not science if it can be falsified, refuted or is not testable; (2) whether the theory or technique has been subject to peer review and publication – dissemination helps detection of flaws inmethodology; (3) the known or potential rate of error of the theory or technique; and (4) whether the theory or technique is “generally accepted” in the relevant scientific community. See Best v.

Revere (Paul) Life Insurance Co., (MB CA), 2000 MBCA 81 at para. 37, 150 Man.R. (2d) 105. [70] The trial judge’s focus is on the methodology used by the proposed expert, not the conclusions generated. The inquiryfor the trial judge on the Daubert factors is also a “flexible one” where the overarching consideration is one of scientific validity(Daubert at 594-95). As noted in Abbey (at paras. 109-11), scientific validity is not a requirement for the admissibility of all expertopinion.

In some cases, depending on the context, concerns regarding threshold reliability are satisfied by the personal knowledge orexperience of the proposed expert (see Kumho Tire Co. v.

Carmichael, 526 U.S. 137 at 148-49 (1999), and Best at para. 37). [71] In exercising the gatekeeper function, the trial judge must also be mindful, before admitting the expert evidence, toalternatives within the trial process such as the jury instruction, which “may provide the jury with the tools necessary to adjudicateproperly on the fact in issue without the assistance of expert evidence” (Abbey at para. 95). [72] In our system of justice, a trial judge is encouraged to comment on the key evidence in his or her instructions to the jury,and in some cases is obligated to do so (R. v.

McIntosh (1997), (ON CA), 35 O.R. (3d) 97 at 107 (C.A.), leave toappeal to S.C.C. ref’d, [1997] S.C.C.A. No. 610 (QL)). A trial judge’s instructions to the jury may provide the method to dispelcommon misconceptions a jury may hold about questions relating to credibility. For example, in D.D., a case involving credibility issuesthat may arise from delayed disclosure of sexual abuse, Major J. explained that a jury instruction, as opposed to expert evidence, was thepreferable way to assist the jury on the credibility issue.

He stated (at para. 67): A jury instruction, in preference to expert opinion, where practicable, has advantages. It saves time and expense. But of greaterimportance, it is given by an impartial judicial officer, and any risk of superfluous or prejudicial content is eliminated. I will say more about this later in my discussion of the adequacy of the judge’s instructions to the jury. [73] Finally, admitting expert evidence is not an “all or nothing proposition” (Abbey at para. 63). A trial judge may admit all,some or none of an expert’s evidence depending on the given context.

Accompanying this discretion over whether the content of theevidence is properly admissible under the Mohan criteria is the duty of the trial judge to define and enforce the proper scope of the expertevidence during the trial (Sekhon at paras. 46-47). [74] Appellate deference will be afforded to determinations as to the admissibility of expert opinion evidence.

The balancingof its potential probative value, reliability, significance to the trial, necessity and its potential prejudicial effect to the trial process, ifadmitted, in the context of the particular case “does not involve the application of bright line rules, but instead requires an exercise ofjudicial discretion” (Abbey at para. 79).

Therefore, absent an error in law, a misapprehension of evidence, a failure to consider relevantevidence or abdication by the trial judge of his or her gatekeeper function, an appellate court should decline to interfere with a trialjudge’s admissibility decision (K. (A.) at para. 93; D.D. at paras. 12-13, 70; J.-L.J. at para. 61; and R. v. Woodard (J.), 2009 MBCA 42 atpara. 14, 240 Man.R. (2d) 24). Judge’s ruling on the admissibility of Dr.

Peterson’s evidence [75] The general parameters of when expert evidence on a question relating to credibility may be admitted was explained byMcLachlin J., as she then was, in R. v.

Marquard, (SCC), [1993] 4 S.C.R. 223, as follows (at p. 249): … [W]hile expert evidence on the ultimate credibility of a witness is not admissible, expert evidence on human conduct and thepsychological and physical factors which may lead to certain behaviour relevant to credibility, is admissible, provided the testimony goesbeyond the ordinary experience of the trier of fact. …. [76] Thus, information outside the knowledge and experience of the jury relevant to making a credibility assessment maypotentially be the subject of expert evidence, however, opinion evidence about the credibility of a person may not be the subject ofexpert evidence (K. (A.) at para. 96; R. v.

R. (D.), (SCC), [1996] 2 S.C.R. 291 at para. 40; and David M. Paciocco &Lee Stuesser, The Law of Evidence, 6th ed. (Toronto: Irwin Law Inc., 2011) at 188-89).

[77] Dealing first with Dr. Peterson’s proposed evidence on the area of how interviewing techniques affect the reliability ofresponses, I see no reason to interfere with the judge’s decision to not admit the evidence because it failed to meet the necessity criterionin Mohan. [78] The hypothesis of Dr. Peterson was that an interview is an interview no matter its context. According to Dr. Peterson,one can extrapolate from the psychology of job interviews to explain why people falsely confess in a police interrogation. His view wasthat suggestive or leading questions in any setting can produce false responses. Dr.

Peterson’s theory was that O’Donovan andDepencier’s use of leading and suggestive questions caused the appellant to infer a response, rather than state what he truly remembered. [79] In my view, this is not a proper area of expert evidence on credibility as defined by Marquard. As the judge explained,the jury could watch the video recording and assess the confession in light of the appellant’s testimony about it and other features of theadversary system, such as the submissions of counsel. The appellant’s argument that juries are not sophisticated enough to understandinferential thinking is not persuasive.

It is a central tenet of our legal system that a properly instructed jury can evaluate the reliability ofevidence (R. v. Corbett, (SCC), [1988] 1 S.C.R. 670 at 692-93; and Mezzo v. The Queen, (SCC), [1986]1 S.C.R. 802 at 844-45). The concept of inferences in the weighing of evidence is part of the standard wording of a proper jury charge. It is trite that drawing inferences and using deductive logic are familiar concepts to juries. [80] I also would not interfere with the judge’s decision that Dr.

Peterson’s theory that the appellant’s personality traits madehim more prone to being induced to falsely confess, and the methodology Dr. Peterson relied on to come to that conclusion, did not meetthe Mohan criterion of legal relevance. [81] As a general proposition, expert evidence of a person’s “distinctive behaviourial characteristics” may be admissible inan appropriate case (Mohan at p. 37). It is accepted that the personality and particularities of an individual can play a

part in theoccurrence of false confessions (Oickle at para. 42). [82] In R. v.

Dietrich, (ON CA), [1970] 3 O.R. 725 at 741-43 (C.A.), leave to appeal to S.C.C. ref’d, [1970]S.C.R. xi (a case involving an accused who, according to psychiatric evidence, was a psychopath with a propensity to lie), the court heldthat a psychiatrist could testify about the reliability of an accused’s confession to police by explaining to the jury the disease, defect orabnormality of the mind that affected the accused’s ability to be truthful (see also Phillion 2009 at para. 218). [83] English authorities go further than Dietrich and allow for expert evidence on the veracity of a confession, not just whenan accused is suffering from a diagnosed mental illness or defect, but also where an accused’s personality disorder is severe enough thatit may undermine the reliability of their confession (R. v.

Ward (1993), 96 Cr.App.R. 1 at 66 (C.A.); and R. v. Robinson (1994), 98Cr.App.R. 370 at 374 (C.A.)). This approach is consistent with Sopinka J.’s discussion in Mohan (at p. 37) that expert evidence as to aperson’s “distinctive behavioural characteristics” may be admissible in an appropriate case. [84] The concern expressed by the English courts about not being seen as extending an “open invitation to every defendantwho repents of having confessed and seeks to challenge the truth of his confession to seek the aid of a psychiatrist” is also worth noting(Ward at p. 66).

The English allowance for expert evidence in cases of false confession beyond just situations of recognized mentalillness or defect, is carefully circumscribed. The courts have required that: (1) the personality disorder must be of a type which mightrender a confession unreliable; (2) the accused’s condition must be a “very significant deviation from the norm;” and (3) there must be averifiable history of the personality disorder pre-dating the confession which points to or explains it (R. v. O’Brien et al., [2000] EWCACrim 3, [2000] Crim LR 676; R. v. Fell, [2001] EWCA Crim 696 at para. 101; R. v. Pinfold; R. v.

MacKenny, [2004] 2 Cr.App.R. 32 at37-38 (C.A.)). [85] In the case at bar, no credible evidence was adduced at the voir dire that the appellant had “distinctive behaviourialcharacteristics” (Mohan at p. 37). The appellant had not historically suffered from a mental illness, mental defect or severe personalitydisorder analogous to Dietrich or Ward that might render his confession unreliable.

The appellant said when he confessed he wasemotionally upset to the point of being suicidal because his homosexuality had been revealed and he was fearful he may have AIDS.Such stress was transitory in nature and not a distinctive behaviourial characteristic outside the experience and knowledge of the jury. Moreover, Dr.

Peterson’s opinion is drawn, in part, from the technique of measuring personality (the Unfakeable Big Five) that lacks aproper scientific basis when it is subjected to the special scrutiny that Mohan requires. [86] In Phillion 2009, Moldaver J.A., as he then was, explained that expert evidence on the phenomenon of false confessionsis often “novel science” and, therefore, requires careful scrutiny before being admitted. He stated (at para. 217): … [T]he admissibility of expert evidence on false confessions is anything but obvious and should be approached with considerablecaution.

Of particular concern is whether the proposed evidence reaches the level of scientific reliability required by Mohan to warrantits reception. [87] In both R. v. Warren (1995), (NWT SC), 35 C.R. (4th) 347 (N.W.T. S.C.), and Phillion 2009, expertevidence regarding a technique devised by Dr. Gudjonsson specifically to measure the probability or possibility that a confession topolice is unreliable based on an accused’s personality trait(

s) was not permitted because the technique lacked a proper scientificfoundation. [88] The situation here is even more remote. It is difficult to see how Dr. Peterson’s technique of assessing the personality ofa person for his private consulting business satisfies the Daubert factors to make it admissible for a forensic purpose. Dr. Petersonprovided no evidence that his technique of personality assessment has been properly tested for the purpose it is being used for here,detecting when an agreeable person may falsely confess to the police. All Dr.

Peterson could say is he hired university students to tryand fake the personality assessment and they couldn’t do it. That is not scientific validation. There has been no peer review of the

technique of the Unfakeable Big Five. Dr. Peterson provided no rate of error or accepted deviations. In fact, he claimed, without anyproof, that his assessment tool cannot be deceived while other personality assessment techniques can be. Finally, there is no evidencethat the Unfakeable Big Five is generally accepted as a forensic tool. It was designed and is used for Dr. Peterson’s private consultingclients to hire employees. [89] I would also add that Dr. Peterson’s evidence on the appellant’s personality does not meet the Mohan criterion ofnecessity.

A properly instructed jury is quite able to assess the credibility of ordinary individuals in stressful situations (R. v. Turner(1974), (BC CA), 60 Cr.App.R. 80 at 83 (C.A); R. v. Dubois (1976), (ON CA), 30 C.C.C. (2d) 412at 414 (Ont. C.A.); R. v. Weightman (1991), 92 Cr.App.R. 291 at 297 (C.A.)).

The fact that the appellant was emotionally distraught circumstances, given they have the assistance of a video recording of it, the testimony of the witnesses to the interrogation, thesubmissions of counsel and instructions from the trial judge. [90] While not necessary to decide this appeal, I would close discussion of the judge’s ruling on Dr. Peterson’s proposedexpert evidence by expressing concern about the decision to attempt to proffer Dr. Peterson as an expert witness on areas that he wasclearly not qualified as he had no background whatsoever regarding police interrogations.

This decision unnecessarily complicated anddelayed this trial and is proof positive of the concern expressed in D.D. (at para. 56) of the detrimental impact on the justice system ofattempting to use dubious expert opinion. Judge’s ruling on the admissibility of Dr. Moore’s evidence [91] I also see no reason to interfere with the judge’s decision to not admit Dr. Moore’s evidence because it failed to meet thenecessity criterion in Mohan. [92] The thesis of Dr.

Moore is that while the Reid Technique is quite successful in getting true confessions from genuinelyguilty people, it can also result in false confessions from innocent people. He conceded at the voir dire that the error rate of the ReidTechnique is unknown and there is no interrogation procedure he knows of “that will elicit genuine valid confessions from the guilty butnot from the innocent.” [93] The methodology Dr. Moore uses to prepare an opinion about a confession’s reliability is to review the context of theconfession to identify what he believes are reliability risks.

He explained his methodology during the voir dire as follows: …. So when I look at the disclosures that I get, I mean I also look at the context, I mean where did this come from, I mean what was thecrime, what other evidence, if there is any other evidence, is accompanying the so-called confession, how was the interrogationconducted, over what period of time, what do we know about the suspect, do they have any idiosyncratic susceptibilities. …. [94] Expert evidence directed solely to the question of credibility is not admissible because it usurps the function of the jury(Marquard at p. 248). I fail to see how Dr.

Moore’s opinion evidence is necessary for the jury. There is nothing unique or scientific tohis methodology. He does exactly what the jury is asked to do, consider all the evidence in assessing the weight to give to a confession. If Dr. Moore’s methodology can be described as a field of expertise, it would have to be treated as novel science requiring greaterthreshold reliability before being admissible. Sopinka J. explained in Mohan (at p. 25): In

summary, therefore, it appears from the foregoing that expert evidence which advances a novel scientific theory or technique issubjected to special scrutiny to determine whether it meets a basic threshold of reliability and whether it is essential in the sense that thetrier of fact will be unable to come to a satisfactory conclusion without the assistance of the expert. The closer the evidence approachesan opinion on an ultimate issue, the stricter the application of this principle. [95] Dr. Moore conceded in his evidence that his methodology is not “an exact science,” nor does he claim that it is.

Thesubject matter of his evidence is not outside the experience and knowledge of a jury; a jury is quite capable of determining the reliabilityof a confession looking at the overall context without the help of an expert (Mohan at p. 23-24). There is also a danger to the fact-finding process in allowing such expert evidence. Such evidence usurps the jury’s province and the jury may simply attorn to theexpert’s opinion (D.D. at para. 53). [96] After stating Dr.

Moore’s evidence failed to meet the necessity requirement of Mohan, the judge also expressed herconcerns as to him being objective in the following manner (at para. 66): … I found much of Dr. Moore’s report to read like that of an advocate rather than an impartial expert. For this reason and because hisevidence does not canvass areas that would not or could not be canvassed by counsel without the assistance of an expert, I find that it isnot admissible. [97] As the appellant points out, traditionally questions of the impartiality of an expert witness are matters of weight reservedfor the jury to decide.

However, that does not mean a trial judge is powerless to act at the admissibility stage if he or she has palpableconcerns about an expert witness’s objectivity or independence as the judge did here. The trial judge’s gatekeeper role, particularly in

the context of a jury trial, mandates that the fact-finding process is not distorted by inappropriate expert testimony (J.-L.J. at para. 61). This includes the power to exclude the evidence of a proposed expert when it can provide no or minimal assistance to the trier of fact dueto the witness’s lack of objectivity or independence. As O’Connor A.C.J.O. explained in Alfano v.

Piersanti et al., 2012 ONCA 297, 291O.A.C. 62 (at para. 111): … [T]he court retains a residual discretion to exclude the evidence of a proposed expert witness when the court is satisfied that theevidence is so tainted by bias or partiality as to render it of minimal or no assistance. In reaching such a conclusion, a trial judge maytake into account whether admitting the evidence would compromise the trial process by unduly protracting and complicating theproceeding: see R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, at para. 91.

If a trial judge determines that the probative value of theevidence is so diminished by the independence concerns, then he or she has a discretion to exclude the evidence. (See also Abbott and Haliburton Co. Ltd. et al. v. WBLI Chartered Accountants, 2013 NSCA 66 at para. 76, 330 N.S.R. (2d) 301; andDeemar v. College of Veterinarians of Ontario, 2008 ONCA 600 at paras. 21-22, 92 O.R. (3d) 97.) [98] The judge’s finding that Dr.

Moore was more of an advocate rather than an impartial expert would, in my view, underAlfano be reason to exclude his evidence on the basis of a lack of impartiality even if it had met the criteria of Mohan. The paramountduty of an expert witness when participating in the litigation process either in preparing a report or testifying is to the court and thepublic, not to the party that retains him (Jones v. Kaney, [2011] UKSC 13 at paras. 46-50, [2011] 2 A.C. 398; Glenn R. Anderson, Q.C.,Expert Evidence, 2d ed. (Markham.: LexisNexis Canada Inc., 2009) at 42, 336-38).

On review of the record, I am not satisfied that thejudge erred in law in finding that Dr. Moore lacked the necessary objectivity expected of an expert witness. Cross-examination on the Reid Technique after the expert evidence ruling [99] Despite the judge’s ruling that Dr. Moore could not testify on the Reid Technique, the appellant’s counsel at trial cross-examined Depencier and O’Donovan on the Reid Technique.

The judge did not intervene during the cross-examination of Depencier,but sustained the Crown’s objection on the basis of relevance during the cross-examination of O’Donovan. [100] Once the confession was determined to be voluntary and admissible, it was a question for the jury to decide if it was trueapplying normal principles of evidence (Gauthier at p. 448-49; Erven at p. 931; and Park at p. 77). The fact that the confession had beenruled voluntary was meaningless to the jury’s consideration of the appellant’s claim that he made a false confession.

No mention of ajudge’s ruling as to admissibility of a confession can be made in front of the jury because it may prejudice an accused by giving the jurythe impression that the judge has already decided on the credibility of the witnesses against the accused (R. v. Viszlai (J.G.), 2012 BCCA442 at paras. 67-72, 330 B.C.A.C. 46; Mitchell v. The Queen, [1998] A.C. 695 at 703-4; and R. v.

Main (B.J.) (1993), 67 O.A.C. 350 atpara. 5 (C.A.)). [101] It was perfectly acceptable and necessary for counsel for the appellant to challenge and ask questions of O’Donovan andDepencier about the circumstances surrounding the taking of the confession in order to address its reliability, which was a live issue forthe jury (R. v. Murray, [1950] 2 All E.R. 925 at 927 (C.A.); Viszlai at para. 73; and R. v. Orel (1944), (SK CA), 82C.C.C. 35 at pp. 37-38 (Sask. C.A.)).

A jury is entitled to consider all of the circumstances of the taking of the confession, such aswhether there was a threat or inducement or the conditions of interrogation were oppressive, in deciding whether they should give anyweight to the confession (Murray, and R. v. McAloon, (ON CA), [1959] O.R. 441 at 444-45 (C.A.)). [102] However, I see no error in the way that the judge dealt with defence counsel’s questions to Depencier and O’Donovanabout the Reid Technique in light of her expert evidence ruling regarding Dr. Moore.

The appellant failed to establish that the officers’knowledge of the Reid Technique had any probative value to the facts at issue. Depencier and O’Donovan were not expert witnesses onpolice interrogations, nor was an attempt made to qualify them as such by the proper procedure of a voir dire. Once Dr. Moore’s opinionevidence about the Reid Technique was excluded, the mere fact the officers may have used strategies in the Reid Technique had nosignificance to the facts in issue for the jury. Conclusion [103] Wrongful convictions can and do occur despite the justice system’s safeguards (United States v.

Burns, 2001 SCC 7 atparas. 1-3, [2001] 1 S.C.R. 283). In Canada, it is accepted that the phenomenon of false confessions is real and can lead to wrongfulconvictions. The judge was well aware of the phenomenon of false confessions and their correlation to some wrongful convictions. During the voir dire on the admissibility of expert evidence, the judge stated: .… And as I said, no one takes issue with the fact that there is a phenomenon of false confessions.

I think that’s well accepted, thatthere are people out there who, for whatever reason, will falsely confess to a crime -- …. and we’ve had, unfortunately, too many of those cases in Canada. That’s not the question. The question is whether there are expertswho can provide an opinion as to whether or not a confession is true or false on the basis of some scientific process and whether there’s arecognized scientific process for establishing the validity of a confession.

[104] As explained in Oickle, the phenomenon is challenging because it is often counterintuitive to juries.

While some claimsof false confessions can be addressed by the judiciary through the confessions rule or a judge’s common law discretion to excludeotherwise admissible evidence, the jury is often responsible, as was the case here, to adjudicate a claim of false confession with theassistance of the features of the adversary system. [105] In an appropriate case, expert evidence from a psychiatrist or a psychologist may be relevant to a jury’s assessment of anaccused’s confession because of an accused’s “distinctive behaviourial characteristics,” such as a diagnosed mental illness, mental defector severe personality disorder.

In such cases, it is properly admissible in accordance with the requirements of Mohan and does not runafoul of the general rule in Marquard that expert evidence may not be given on a question of credibility. This, however, was not such acase. The jury was quite able to weigh the relevance of the circumstances of the appellant’s state of mind at the time of his confession tothe issue of the reliability and credibility of the confession with the assistance of the other aspects of the adversary system. [106] In

summary, I have not been persuaded that there is any reason for this court to interfere with the judge’s expert evidenceruling relating to Drs. Peterson and Moore. III. Adequacy of Judge’s Jury Instructions Background [107] Both before and after their jury addresses, counsel were given a copy of a draft of the judge’s charge to the jury. Counselfor the appellant made a few minor objections to the charge that are not material to this appeal. Counsel for the appellant did not requestthat the judge caution the jury on the phenomenon of false confessions (e.g., Osmar at paras. 73-74; and R. v.

Bonisteel (R.), 2008 BCCA344 at para. 66, 259 B.C.A.C. 114). The judge did not do so on her own initiative. Position of the Parties [108] The appellant argues that the judge’s charge to the jury was inadequate because the judge failed to explain thephenomenon of false confessions and that they do occur despite being counterintuitive.

The appellant critiques the judge’s charge to thejury as follows in his factum: “[t]his was a ‘false confession case’ with no mention ever made of the possibility of a false confession.” [109] The Crown says that the judge’s charge to the jury on the defence of false confession was adequate on a functionalreview. It argues that both counsel in their jury addresses focussed on the question of whether the appellant confessed to matters ofwhich he had no actual knowledge due to manipulation by O’Donovan and Depencier.

The judge, in her charge, outlined the opposingpositions of the parties on the reliability of the appellant’s confession.

The Crown argues in its factum: “[a]fter hearing the evidence,counsels’ addresses and the Learned Trial Judge’s instructions, the members of the jury would have understood that although falseconfessions sometimes occur, the issue for them to decide was whether the Appellant’s confession might be a false confession” (see R. v.Daley, 2007 SCC 53 at para. 57, [2007] 3 S.C.R. 523). [110] The Crown points out that at the pre-charge conference counsel for the appellant did not ask the judge to instruct the juryon the issue of the potential of a false confession.

The Crown argues that counsel’s failure to raise the issue is a factor suggesting thejudge’s charge was adequate. Analysis and Decision Introduction [111] A fair trial cannot occur unless the trial judge’s instructions to the jury are adequate. Instructions are adequate when theyallow the jury to “understand the issues involved, the law relating to the charge the accused is facing, and the evidence they shouldconsider in resolving the issues” (R. v. Cooper, (SCC), [1993] 1 S.C.R. 146 at 163). [112] An accused is entitled to a properly instructed jury, not a perfectly instructed jury (R. v.

Jacquard,(SCC), [1997] 1 S.C.R. 314 at para. 2). The functional approach to appellate review of the adequacy of a jury charge considers not onlythe charge to the jury, but the conduct of the trial as a whole including the nature of the evidence, the live issues that were raised, thepositions of the parties on the issues, the addresses of counsel and counsel’s submissions (or lack thereof) on the judge’s charge (R. v.Lesuk (R.W.), 2000 MBCA 24 at para. 22, 148 Man.R. (2d) 39; Daley at para. 58; and R. v.

Kociuk (R.J.), 2011 MBCA 85 at para. 72,270 Man.R. (2d) 170, aff’d 2012 SCC 15, [2012] 1 S.C.R. 529). [113] If the appellate court concludes that the jury was properly instructed on the law and the overall effect of the charge left thejury with a sufficient understanding of the facts as they relate to the relevant issues, the charge is proper (Jacquard at para. 14; R. v.Pickton, 2010 SCC 32 at para. 10, [2010] 2 S.C.R. 198; Daley at para. 31; and Kociuk at para. 72). [114] In Daley, Bastarache J. explained a trial judge’s duty to relate the evidence to the issues in their jury instructions in thefollowing manner (at para. 57): The extent to which the evidence must be reviewed “will depend on each particular case.

The test is one of fairness. The accused isentitled to a fair trial and to make full answer and defence. So long as the evidence is put to the jury in a manner that will allow it to fullyappreciate the issues and the defence presented, the charge will be adequate”: see Granger [The Criminal Jury Trial in Canada, 2d ed. explain the critical evidence and the law and relate them to the essential issues in plain, understandable language” (para. 39).

(See also R. v. Sophonow (1984), (MB CA), 29 Man.R. (2d) 1 at paras. 5, 93 (C.A.) aff’d, (SCC),[1984] 2 S.C.R. 524 (Sophonow (No. 1).) [115] While counsel have a duty to assist a trial judge in identifying errors, inadequacies or omissions in the instructions to thejury, ultimately it is the trial judge’s responsibility to ensure that the jury is properly instructed, even if the instructions do not accordwith the positions advanced by either the Crown or the defence (Daley at para. 58; R. v. Khela, 2009 SCC 4 at para. 49, [2009] 1 S.C.R.104; and Pickton at para. 27).

Jury instructions regarding false confessions [116] The basic requirement of a trial judge, after a confession is ruled admissible, is to properly instruct the jury that it is forthem to decide, based on all of the evidence, whether the confession was actually made and whether it was true (i.e., the weight, if any,to be given to it) (R. v. Minhas (1986), (ON CA), 16 O.A.C. 42 at paras. 39-41 (C.A.), leave to appeal to S.C.C. denied,[1987] S.C.C.A. No. 370 (QL)). There is no dispute that the judge properly directed the jury in that regard.

She told the jury (beforereviewing the evidence in detail as to each of the factors she mentioned): To consider whether the statements that are alleged to have been made in the unrecorded part of the interview and whether the statementsmade in the recorded part of the interview are true, you should consider all of the evidence, including [the appellant’s] testimony incourt, Dr.

Peterson’s evidence about memory, [the appellant’s] condition during the interview, and the circumstances in which thestatements were made. [117] A trial judge has no obligation to instruct the jury about the potential of a confession being false absent an air of reality tosuch a claim (Kelsey at p. 226; French v. The Queen, (SCC), [1980] 1 S.C.R. 158 at 163-64; and R. v. Welsh, 2013ONCA 190 at para. 114, 115 O.R. (3d) 81, leave to appeal to S.C.C. ref’d, [2013] S.C.C.A.

No. 383 (QL)). [118] Based on the testimony of the appellant at trial recanting his confession, there was an air of reality to his claim that hegave police a false confession (Colpitts v. The Queen, (SCC), [1965] S.C.R. 739 at 752).

When a claim of a falseconfession does have an air of reality, in addition to outlining the theory of the defence to the jury, the trial judge is required to relate theessential evidence to the claim of false confession so that the jurors may appreciate the value and effect of that evidence in arriving at ajust conclusion (Colpitts at p. 752-53). [119] As explained in Kelsey (at p. 226) and Rustad v.

The Queen, (SCC), [1965] S.C.R. 555 at 561-63, thenature of the accused’s narrative of their commission of the crime in the confession is important to its probative value and the substanceof an accused’s claim of false confession. [120] Whether an accused’s narrative in their confession is consistent with or conflicts with the independently verifiablecircumstances of the crime is important for a trial judge to review with the jury (Rustad at p. 562; and Colpitts at p. 756). The trial judgeshould also direct the jury to any evidence from the trial as to the accused’s knowledge of the crime and the source(

s) of that knowledge(Osmar at para. 77). Relevant is whether the accused’s knowledge of the crime, as set out in his or her confession, is information onlythe real perpetrator would know, or alternatively, is information the accused may have learned from the police, the media or some othersource before the confession, thereby decreasing the potential probative value of the confession. [121] In the case at bar, the judge properly instructed the jury on the evidence relating to the narrative of the appellant in hisconfession and the evidence the jury heard about the potential sources of the appellant’s knowledge of that information. She did so, inpart, in her

summary of the theories of the Crown and defence to the jury, where she stated (before reviewing the evidence in detail as toeach of the factors she mentioned): The Crown says that [the appellant’s] statement to police on July 15th is an admission of the crime by him. The Crown says that [theappellant’s] involvement in the crime is supported by the fact that he knew two pieces of information that had not been disclosed by thepolice to the public. [The appellant] knew the location where [the deceased’s] body was found and he knew that it was a golf club thatwas used in the attack. . . . . .

The position of the defence is that [the appellant] had nothing to do with the death of [the deceased]. When [the appellant] told policethat he had argued with [the deceased] over him having AIDS, he was referring to a verbal argument only. The defence says that theevidence does not establish that the argument over AIDS occurred around the time of [the deceased’s] death.

The position of the defenceis that [the appellant] last saw [the deceased] weeks before he was killed and that any admission he made to police was a result of beingcoerced by police while he was in a suicidal state after taking a large quantity of Tylenol 3. The defence says that any information that[the appellant] gave to the police about the crime was not a result of his true memories of what happened but rather was a result of himrepeating to the police information they had given to him during the course of the polygraph examination on July 10th, 2007 and theirinterview on July 15th, 2007.

It was not information that he would otherwise have known. Specifically, the defence says that [theappellant] was told what the murder weapon was by the polygraph examiner and that he was told where [the deceased’s] body was foundby Officers Depencier and O’Donovan.

[emphasis added] [122] In her charge, the judge also properly reviewed for the jury the evidence as to the circumstances surrounding the taking ofthe confession such as the appellant’s claim of drug use and emotional weakness, the manner of questioning by O’Donovan andDepencier, Dr. Peterson’s evidence about repressed memory, and the fact the confession closely followed a polygraph examinationwhere features of the crime were related to the appellant. [123] Finally, the judge integrated the instruction in R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742 at 758, into hercharge to assist the jury in deciding that, if they believed the appellant’s testimony that he falsely confessed or were left in reasonabledoubt in that regard, they must acquit. [124] The only potential error by the judge in her jury instruction was one of omission. The question of concern is whether thejudge was required in law to go further than she did given the context of this case, and caution the jury about the phenomenon of falseconfessions despite counsel’s failure to request such an instruction (R. v.

Thomas, 2010 ONCA 209 at para. 4, leave to appeal to S.C.C.ref’d, [2011] S.C.C.A. No. 34 (QL), and Osmar at paras. 73-74). Caution on the phenomenon of false confessions [125] Cautions and limiting instructions during a trial judge’s charge to the jury are a common feature of jury trials. Modernjuries are sophisticated and are expected to be able to understand a bewildering amount of situations (e.g., post-offence conduct, hearsay,similar-fact evidence, an unsavoury witness, identification evidence, and “cut throat” defences) based on proper jury instructions (see R.v.

Griffin, 2009 SCC 28, at paras. 72-74, [2009] 2 S.C.R. 42). Moreover, it is well established that juries are presumed to be able tofollow and apply instructions given to them by trial judges (R. v. Bouchard (S.), 2013 ONCA 791 at para. 92, 314 O.A.C. 113). [126] Rothstein J. described the function of cautions about certain types of evidence in a trial judge’s charge to the jury in thefollowing manner in R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433 (at para. 56): A warning or caution does not serve to remove the evidence from the jury’s consideration.

Instead, providing a caution allows for juriesto benefit from judicial experience concerning the risks associated with certain types of evidence, while respecting the jury’s competencein fulfilling its fact-finding role. The point is that once jurors are alerted to the risks that are not necessarily apparent to the averagecitizen, they can be trusted to properly weigh the evidence. Our jury system is predicated on the conviction that jurors are intelligent andreasonable fact-finders.

It is contrary to this fundamental premise to assume that properly instructed jurors will weigh the evidenceunreasonably or draw irrational and speculative conclusions from relevant evidence. I agree with the view expressed by Dickson C.J., inR. v. Corbett, (SCC), [1988] 1 S.C.R. 670, that “it would be quite wrong to make too much of the risk that the jury mightuse the evidence for an improper purpose. This line of thinking could seriously undermine the entire jury system.

The very strength ofthe jury is that the ultimate issue of guilt or innocence is determined by a group of ordinary citizens who are not legal specialists and whobring to the legal process a healthy measure of common sense” (p. 692 (emphasis in original)). [emphasis added] [127] Cautions are given not because a jury is considered to be unintelligent, but because they are uninformed about theproblem with the particular type of evidence (Khela at para. 4).

The education of a jury provided by a judge’s caution serves twoessential purposes: to alert the jury to the potential danger of the evidence in question, and also to provide assistance to the jury with thenecessary tools to evaluate the evidence in their fact-finding function (White at para. 58; R. v. Brooks, 2000 SCC 11 at para. 130, [2000]1 S.C.R. 237). [128] Cases that have discussed a jury caution on the phenomenon of false confessions have typically been non-custodialsituations involving undercover police operations.

There are two important features of such cases that distinguish them from a custodialinterrogation: the confessions rule does not apply to screen out some forms of potentially false confessions because of the person inauthority requirement, and second, the motivation for an accused to falsely confess is often understandable to the jury withoutassistance. For example, the accused is motivated to confess because of a desire for status and/or fortune in the underworld (Osmar atpara. 19; R. v. Fry (N.R.), 2011 BCCA 381 at para. 6, 311 B.C.A.C. 90; and R. v.

James (J.A.), 2013 BCCA 11 at para. 35, 331 B.C.A.C.292, leave to appeal to S.C.C. ref’d, [2013] S.C.C.A. No. 87 (QL)); is fearful of a putative organized crime figure (Bonisteel at paras. 24,74-76); or is seeking spiritual assistance (Welsh at para. 21), to name a few. [129] False confessions arising from custodial interrogations are often more difficult for a jury to understand because theinducement or motivation to falsely confess may be less obvious.

As mentioned previously, a jury will not likely see a classical coerced-compliant confession based on an improper inducement or oppressive circumstances because of the confessions rule. Therefore, absent acase like Colpitts (where the accused said he falsely confessed to help a fellow inmate) or Thomas (where the accused said he falselyconfessed to get police protection as people wanted to kill him), where the motivation to falsely confess is not complicated and isunderstandable, the jury will be faced with the counterintuitive problem discussed in Oickle.

Professor Trotter (as he then was) explains(at pp. 183-84):

…. Social science research teaches us that people have great difficulty accepting the fact that others confess to crimes that they did not commit. In other words, researchers suggest that laypersons (and presumably jurors) think that false confessions are more or less a myth, when research suggests that they are not. This phenomenon, which was explicitly recognized in Oickle , seems all the more anomalous in light of the growing social awareness of false confessions in popular culture. [citations omitted] (Garry T. Trotter, “False Confessions and Wrongful Convictions” (2003-2004) 35 Ottawa L.

Rev. 179.) [ 130 ] The decision to give a jury caution on the phenomenon of false confessions, and the content of such a caution, is within the discretion of a trial judge. Where the explanation for the potential false confession is not complicated and readily understandable by the jury such a caution, while prudent, is not necessary as a matter of law ( Thomas at para. 2 ).

Like any caution, what the jury needs to be told about the phenomenon of false confessions, if such a caution is given, will vary with the facts of a particular case. [ 131 ] There are examples in the case law as to possible jury instructions on the phenomenon of false confessions (see Bonisteel at para. 66 ; and R. v. Earhart (B.A.) , 2011 BCCA 490 at paras. 84-85 , 313 B.C.A.C. 226).

I would not endorse a particular wording given the question of the content of such a caution was not argued before us in relation to the facts of this case, only that a caution should have been given by the judge to the jury about the phenomenon of false confessions. [ 132 ] What I would say is that the content of a caution about the phenomenon of false confessions is best suited for the trial judge to craft given the exigencies of the particular case.

The comments of the Supreme Court of Canada in Khela in relation to cautions for an unsavoury witness, in my view, apply equally in the case of cautions about the phenomenon of false confessions (at para. 13): The crafting of a caution appropriate to the circumstances of the case is best left to the judge who has conducted the trial. No particular set of words is mandatory. In evaluating its adequacy, appellate courts will focus on the content of the instruction and not on its form.

Intervention on appeal will not be warranted unless a cautionary instruction should have been given but was not, or the cautionary instruction that was given failed to serve its intended purpose. See also R. v.

Hibbert , 2002 SCC 39 at para. 53 , [2002] 2 S.C.R. 445, in relation to a similar approach for cautions for eyewitness identification evidence. [ 133 ] When given, a jury caution on the phenomenon of false confessions is akin to similar instructions given about the frailties of eyewitness identification evidence or delayed disclosure of sexual abuse; the trial judge dispels a common misconception that the jury may hold about a question relating to credibility ( D.D. at paras. 67-68 ; Woodard at paras. 38-39 ; and R. v.

Henderson (W.E.) , 2012 MBCA 93 at paras. 109-10 , 284 Man.R. (2d) 164, leave to appeal to S.C.C. ref’d, [2012] S.C.C.A. No. 524 (QL)). [ 134 ] Properly done, a jury caution on the phenomenon of false confessions will dispel the assumption, or as Prof. Trotter put it “the myth,” that nobody would confess to something that they did not do.

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