R. v. SKINNER, 2017 ONSC 2115

CITATION: R. v. SKINNER, 2017 ONSC 2115 COURT FILE NO.: 16-587 DATE: 2017/04/04 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) HER MAJESTY THE QUEEN ) ) ) Neil J. Deitrich and Elizabeth Wilson, for the Crown ) ) ) - and - ) ) ) CHRISTOPHER SKINNER ) ) ) Kirsten Van Drunen, for the accused ) ) ) ) ) HEARD: December 13-14, 2016, and January 10-11, 2017 LEACH J. Introduction and overview [ 1 ] The accused, Christopher Skinner, is charged with one count of second degree murder contrary to s.235(1) of the Criminal Code of Canada , (“the Code”).

The charge relates to the death of a one-year-old child, which occurred on or about September 12, 1994.

At the time, the accused apparently was in a relationship with the child’s mother. [ 2 ] A three week jury trial currently is scheduled for the Stratford trial sittings in May of 2017, and the defence brought a number of pretrial applications. [ 3 ] The first such application concerned statements made by the accused during the course of what is known variously in the vernacular as a “cell insert”, “cell plant” or “undercover cell” operation; i.e., an investigative exercise wherein an undercover officer, pretending to be another detainee, is placed in close proximity to the accused while the accused is in custody, after being arrested.

In this case, after being arrested on the murder charge that brings him before the court, the accused was placed in a holding cell between two other holding cells, each containing an undercover officer pretending to be another detainee. [ 4 ] The application itself essentially had several components to it, and was argued before me only in part. [ 5 ] In particular, the first component of that application claimed that the relevant “cell insert” operation breached the accused’s right to silence, guaranteed by

section 7 of the Canadian Charter of Rights and Freedoms , (“the Charter”). Relying on sections 7 and 24(2) of

the Charter, the accused argued that evidence of the statements made by him during the “cell insert” operation should be excluded. Inresponse, the Crown denied the existence of any

section 7 Charter breach, and argued in the alternative that the circumstances do notwarrant exclusion of the “cell insert” evidence pursuant to s.24(2) of the Charter. [6] The remaining components of that application effectively were conditional on the outcome of the first. In particular, if evidenceof the “cell insert” conversations was not excluded in its entirety pursuant to the aforesaid Charter arguments relating to

section 7, thedefence intended to argue that such evidence still should be excluded, in whole or in part, based on the court’s residual discretion toexclude evidence which has a prejudicial effect outweighing its probative value, thereby ensuring the accused’s right to a fair trial,guaranteed by s.11(

d) of the Charter. [7] However, those remaining components of the application were not argued in their entirety during the course of the firstsubstantive hearing before me in advance of trial. [8] I instead was asked, if and as necessary after ruling on the

section 7 Charter application, to make a preliminary ruling as towhether the remaining aspects of the defence application, addressing prejudicial effect in relation to probative value, should be governedby at least some of the principles outlined in R. v. Hart, 2014 SCC 52 , [2014] 2 S.C.R. 544, which addressed statements andconfessions made to police in the course of “Mr Big” operations. In that regard: • The typical hallmarks of “Mr Big” operations were described in detail by the Supreme Court Canada in R. v. Hart, supra. Generally, they target a person suspected of having committed a serious unsolved crime.

Undercover officers, posing as criminals,engage in sustained efforts to recruit the target into a fictitious criminal organization. Those recruitment efforts usually involve the targetbeing invited to participate in “simulated crimes”, and other methods aimed at persuading the target that membership in the supposedcriminal organization carries significant social and financial rewards. The operation culminates in a meeting, akin to a job interview, atwhich the target meets with the person supposedly at the helm of the fictitious organization.

That person then seeks a confession to thetarget’s suspected actual crime, as a condition of admission to the organization and its rewards. • The Supreme Court of Canada found that such “Mr Big” operations, and the confessions they generate, pose significant risks andconcerns. In particular, they raise the spectre of unreliable confessions, (offered in the face of powerful inducements and sometimesveiled threats), which nevertheless provide compelling evidence of guilt and a corresponding clear and straightforward path toconviction.

Such confessions also invariably are accompanied by highly prejudicial evidence that the accused willingly participated insimulated crimes, and was eager to join a criminal organization. Moreover, “Mr Big” operations are potentially abusive and coercive,particularly insofar as they cultivate an aura of violence to demonstrate that those betraying the criminal organization are met withviolence. • As existing law provided insufficient protection to accused persons who confess during “Mr Big” operations, the Supreme Courtof Canada formulated a “two-pronged response”.

The first prong recognized a new common law rule of evidence whereby suchconfessions are treated as presumptively inadmissible; a presumption that is overcome only where the Crown can establish, on a balanceof probabilities, that the probative value of the confession outweighs its prejudicial effect.

The second prong of the response relies on the“abuse of process” doctrine to guard against state misconduct threatening the integrity of the justice system and the fairness of trials; e.g.,by not permitting operations that overcome the will of an accused and coerce a confession, and/or operations that prey on an accused’svulnerabilities, (such as mental health problems, substance addictions or youthfulness). • In this case, defence counsel readily and candidly acknowledged that the “cell insert” operation used by police, in relation to MrSkinner, was not a “Mr Big” operation, as described by the Supreme Court of Canada.

However, the defence argued that various aspectsof the “cell insert” operation in this particular case raised very similar risks and concerns, warranting application of the “first prong” ofthe response fashioned in R. v. Hart, supra.

In particular, the defence asked for a preliminary ruling that statements made by theaccused during the “cell insert” operation are presumptively inadmissible, such that evidence of the statements should be excluded attrial unless the Crown established, on a balance of probabilities, that the probative value of the statements outweighed their prejudicialeffect. • In response, the Crown argued that R. v.

Hart was focused on “Mr Big” operations, which involve risks and concerns significantlydifferent from the “cell insert” operation in this case, and that the specific response formulated by the Supreme Court of Canada toaddress “Mr Big” confessions therefore should not be extended, expressly or by analogy, to the statements made by Mr Skinner duringthe relevant “cell insert” operation.

In effect, the Crown took the position that Mr Skinner’s statements should be presumptivelyadmissible under the “party admissions” exception to the hearsay rule, unless the defence established, on a balance of probabilities, thatthe prejudicial effect of the evidence outweighed its probative value. [9] During the hearing before me, the first pretrial application accordingly was argued only to the extent of addressing: i. the

section 7 and s.24(2) arguments raised by the accused; and ii. the defence request for a preliminary ruling on the suggested application of R. v.

Hart to later argument and determination ofwhether evidence of Mr Skinner’s statements during the “cell insert” operation should be excluded based on an assessment of probativevalue and prejudicial effect. [10] The balance of the first defence pretrial application was then scheduled for hearing, if necessary, during the week of February 27to March 3, 2017. [11] A second defence pretrial application, concerning statements voluntarily and knowingly made by the accused to an investigatingofficer during the course of a formal police interview, (which the defence sought to exclude in whole or in part, relying on the sameresidual discretion of the court to exclude evidence with prejudicial effect outweighing probative value), was scheduled for argument onthe same hearing dates. [12] However, those arrangements then were overtaken by subsequent developments.

[ 13 ] In particular, I had intended to complete and release my reasons for decision on the initial aspects of the first pretrial application at least two weeks in advance of February 27, 2017, in order to provide counsel with ample time to reflect on that decision and make appropriate preparations for their further anticipated submissions. However, although I had reached a decision by February 13, 2017, it became clear that I would not have an opportunity to finalize my reasons before commencement, that day, of what was anticipated to be a busy three week trial sitting.

I therefore instructed the trial coordinator to advise the parties: • that, for reasons to be set forth later in my extended typed endorsement, I was granting the defence application to exclude, in their entirety, evidence of the accused’s statements during the relevant “cell insert” conversation the Crown intended to offer in evidence; i.e., the conversation that took place between the accused and the two undercover officers following the accused’s formal police interview; • that, while I also had formed a view as to the possible application of R. v. Hart principles to this situation, (had the

section 7 Charter argument not succeeded), my views and comments in that regard now would be obiter , and I therefore thought it best not to express such views in the circumstances; and • that my formal endorsement would follow as soon as possible. [ 14 ] The parties subsequently advised that, in light of my decision, and after further discussion by counsel resulting in an agreed disposition of the second defence pretrial application, further submissions during the week of February 27 th would not be required.

On that date, the matter was simply adjourned to the May trial sittings, with Mr Skinner being remanded accordingly. [ 15 ] What follows is my promised endorsement outlining the reasons for my decision on the argued aspects of the first defence pretrial application. Evidence – General Comments [ 16 ] The

section 7 Charter application and defence request for a preliminary ruling on the possible application of R. v.

Hart principles were argued on the basis of the same evidence, which included the following: • Portions of an affidavit sworn by Detective Jeff McGregor, (a constable with the Stratford Police Service, an investigating officer in this case, and the officer to whom the accused knowingly and voluntarily made statements during the aforesaid formal police interview), tendered in support of an application, prior to the relevant “cell insert” operation being carried out, for an “Authorization to Intercept Communications with consent” pursuant to s.184.2(1) of the Code , and a related sealing order pursuant to s.187(1) of the Code.

The content of those excerpts from the relevant affidavit includes an outline of the contemplated operational plan for the “cell insert” operation, whereby: o The accused would be arrested at a correction centre, in Penetanguishene, and transported to the cell block area of the Stratford Police Service to await his show-cause bail hearing on the second-degree murder charge; o On July 7 and into July 8, 2015, as necessary, two undercover officers, “playing the role of arrested persons”, and “posing as prisoners”, would be placed in cells on either side of the cell holding the accused, to engage the accused in conversation, and “participate in the natural flow of conversation”, including “the reasons for being in jail” and “any discussion about the offences for which [Mr] Skinner is there”; o The accused would be removed from his cell at some point for an interview, (conducted by Detective McGregor), before then being placed back in his cell, beside and between the undercover officers; and o The conversations between the undercover officers and Mr Skinner, before and after Mr Skinner’s interview with Detective McGregor, would be recorded using the closed circuit television recording system of the Stratford Police Service, (with the undercover officers having provided a “One Party Consent Authorization” to the recording). • A video recording and corresponding transcript of the conversation, (referred to in the relevant application record as “Statement #1”), that took place between the accused and the two undercover officers before his removal from the cell block area for a formal interview conducted by Detective McGregor; [1] • A video recording and corresponding transcript of the conversation, (referred to in the relevant application record as “Statement #2”, that took place between the accused and the two undercover officers after his return to the cell block area, following the formal interview conducted by Detective McGregor; [2] • Viva voce testimony from Staff Sergeant Jason William Clarke, of the Stratford Police Service, who acted as a local “handler” in relation to the two undercover officers participating in the cell insert operation; • Viva voce testimony from Detective McGregor; • Viva voce testimony from U.C.H. [3] , a police officer from outside the Stratford Police Service, and one of the two undercover officers participating in the cell insert operation; and • Viva voce testimony from U.C.B., another police officer from outside the Stratford Police Service, and the other of the two undercover officers participating in the cell insert operation. [ 17 ] A transcript of Detective McGregor’s formal interview of Mr Skinner did not form part of the material placed before the court in relation to the defence pretrial application I was called upon to address first.

However, it did form part of the material filed in relation to the second defence pretrial application, requesting a ruling that would exclude portions of that admittedly voluntary statement from being admitted into evidence at trial.

[ 18 ] During the course of testimony from the two undercover officers, video recordings of the conversations they had with the accused, (corresponding to the two transcripts noted above), also were played, on consent, to refresh the officers’ memories, (e.g., as to what had been said and by whom, during the conversations with Mr Skinner), with a particular view to clarifying and correcting portions of the corresponding transcripts. [ 19 ] Pursuant to a ruling I made at the outset of the application’s hearing, (for reasons delivered orally on December 13, 2016), all witnesses called to deliver viva voce testimony at the hearing of the application nominally were called by the defence.

However, the rules normally applicable to questioning of one’s own witness were altered, such that testimony proceeded by way of an optional examination-in-chief by Crown counsel, (an opportunity generally declined by Crown counsel), cross-examination by defence counsel, and extended re-examination by Crown counsel, (in respect of which Crown counsel was given wide latitude). [ 20 ] Finally, by way of general comments on the evidence received during hearing of the application, the intended purpose and relevance of the two video recordings and corresponding transcripts should be noted and emphasized.

In particular: • As noted above, I was asked to consider, in relation to the accused’s application, video recordings and corresponding transcripts of the “cell insert” conversations that took place before and after the accused’s interview with Detective McGregor; i.e., both “Statement #1” and “Statement #2”. • However, the Crown confirmed that, at trial, (and subject to the court’s rulings in relation to the accused’s pretrial application), it intended to lead evidence only in relation to the statements made by Mr Skinner during the “cell insert” conversation that took place after his interview with Detective McGregor; i.e., what has been described in the relevant application record as “Statement #2”. • In terms of requested relief, the accused’s

section 7 Charter application therefore focused on formal exclusion of the “cell insert” conversation reflected in the video recording and transcript associated with “Statement #2”. • It was not disputed, however, that evidence of both “cell insert” conversations was relevant to determination of the issues raised by the accused’s application.

Evidence – Background and context [ 21 ] While I will have more to say about certain evidence in the course of my reasons, (including particular aspects of the “cell insert” conversations between the accused and the two undercover officers), the following findings form the basic context and background for my analysis: • As noted above, the matter which currently brings Mr Skinner before the court relates to the death of a one-year-old child, which occurred on or about September 12, 1994. • Although police carried out an investigation at the time of the child’s death, including questioning of Mr Skinner, it seems no charges were laid.

Mr Skinner nevertheless apparently remained a suspect in what progressively became a “cold case”. • On December 31, 2014, Detective McGregor began working on renewed investigation of the case by looking at two persons of interest, one of whom was Mr Skinner.

Those inquiries included contact with Mr Skinner’s former probation officer, who provided recent information about Mr Skinner which included the following: o he was no longer residing in the Stratford area; o he had no recent history of employment; o he had been living at a shelter for homeless people in Cambridge; o he was known to use illicit drugs; and o he had been seeing a named psychiatrist, who had made a formal diagnosis confirming that Mr Skinner also suffered from a mental illness known as “schizoaffective disorder”. [4] • Detective McGregor also spoke with Mr Skinner’s former partner, who confirmed that Mr Skinner was estranged from that partner and the couple’s children. • In March of 2015, members of the Stratford Police service carried out surveillance in relation to Mr Skinner. • In May of 2015, as part of his ongoing investigation, Detective McGregor requested further police surveillance of Mr Skinner, (by members of the Stratford Police Service including Staff Sergeant Clarke), in an effort to confirm Mr Skinner’s current whereabouts and activities.

At the time, Mr Skinner was residing in the Town of Mitchell, at the home of his parents. During a day of such surveillance, carried out as Mr Skinner travelled alone around Mitchell on a bicycle, police noted that he was exhibiting unusual behaviour. His movements were erratic, as he proceeded in and out of various shops, paced back and forth, and consumed numerous sugar-laden products.

He also carried out extended conversations with himself and/or imaginary companions, while looking off towards nothing and/or up into the sky. [5] • By the second or third week of June, 2015, Detective McGregor had concluded that he had reasonable and probable grounds to arrest Mr Skinner on a charge of second degree murder, and he intended to do so. At the same time, he also was contemplating formal questioning of Mr Skinner and the possibility of a “cell insert” operation, to be carried out shortly after the intended arrest.

In that regard: o The possibility of a “cell insert” operation had been brought up during discussions Detective McGregor had with an Inspector and Deputy-Chief of police.

o Detective McGregor in turn then broached the subject with Staff Sergeant Clarke. At the time, Staff Sergeant Clarke was head of the Stratford Street Crimes Unit, and therefore the member of the Stratford Police Service in charge of coordinating such undercover officer operations. o The goal of the contemplated operation was to obtain further relevant and legally admissible evidence about the alleged crime. In particular, the police were hoping to hear, from Mr Skinner’s own mouth, possible information about his recollections and involvement in relation to the alleged homicide that was being investigated.

Detective McGregor had no idea whether Mr Skinner would speak with him during a formal interview, and therefore wanted arrangements in place to “capture” whatever Mr Skinner might say if he went back to the cells and started to discuss things.

As emphasized by Detective McGregor, he wanted to be “thorough” and “cover all the bases”. o Staff Sergeant Clarke agreed that the contemplated “cell insert” operation was a viable option and possible investigative tool in the circumstances, if there was a confirmed indication of when and where Mr Skinner would be held in custody. o As it happened, Detective McGregor had learned that Mr Skinner was then being held at the Central North Correctional Centre in Penetanguishene, Ontario, as the result of criminal proceedings stemming from Mr Skinner’s use of methamphetamine.

Moreover, Detective McGregor also had learned that Mr Skinner was scheduled to be released from that facility, and allowed to go free, on July 7, 2015. Detective McGregor therefore formed a plan whereby Mr Skinner would be arrested by the Stratford police, on a charge of second degree murder, as he was being released from the Penetanguishene corrections facility on July 7, 2015. [6] Mr Skinner then would be transported back to Stratford, and a cell block of the Stratford Police Service, to await a “show cause hearing”.

During that wait, Detective McGregor would question Mr Skinner, with the interview being bracketed by the contemplated “cell insert” operation.

In Detective McGregor’s view, the timing and circumstances of the contemplated arrest would increase the likelihood of Mr Skinner being sober and clear-headed during the course of the anticipated formal interview and contemplated cell conversation with the undercover officers. o Shortly after his conversation with Detective McGregor, Staff Sergeant Clarke reached out to the officer in charge of overseeing the provincial “pool” of undercover officers used for such operations, asking for assistance.

In doing so, Staff Sergeant Clarke indicated that the Criminal Investigation Division (C.I.D.) of the Stratford Police Service was investigating a “cold case” homicide, that an arrest was going to be made, and that the C.I.D. was looking for undercover officers from the provincial pool to conduct a “cell insert” operation at police headquarters in Stratford.

Staff Sergeant Clarke did not request provision of any specific number of undercover officers for that purpose. o On or about June 30, 2015, the officer overseeing the provincial pool of undercover officers informed Staff Sergeant Clarke that two such officers would be provided, to the Stratford Police Service, to assist in carrying out the contemplated cell insert operation.

Staff Sergeant Clarke then relayed that information to Detective McGregor, along with the names of the particular undercover officers who would be participating in the contemplated “cell insert” operation, (i.e., U.C.H. and U.C.B.), so that Detective McGregor could process the necessary application for an Authorization to Intercept Communications on consent. [7] o On or about the same day, (i.e., June 30, 2015), Staff Sergeant Clarke contacted U.C.H. and U.C.B. to advise that he would be their local “handler” in relation to a contemplated “cell operation”.

At the time, Staff Sergeant Clarke provided little more than that simple description of what was intended. However, he did relay consent forms prepared by Detective McGregor, relating to the contemplated “interception” of cell communications between the undercover officers and Mr Skinner, for signature and return. Staff Sergeant Clarke also provided, by email, a copy of “ R. v.

Carter ”, which U.C.H. described, in his notes, as being a “2011 O.J.” decision. [8] In preparation for the contemplated “cell insert” operation, U.C.H. also independently reviewed a number of other reported legal decisions relating to such situations. [9] o On or about July 3, 2015, Detective McGregor applied for and obtained the “Authorization to Intercept Communications on consent” and corresponding sealing order described above. • On July 7, 2015, Detective McGregor and two other detectives from the Stratford Police Service, (Sergeants Kolkman and Campbell), attended at the corrections facility in Penetanguishene.

At approximately 7:00am, they arrested Mr Skinner on a charge of second degree murder, as he was being released from custody. Detective McGregor confirmed that, according to the most recent information available at the time of Mr Skinner’s arrest, Mr Skinner was still unemployed and suffering from a formally diagnosed mental illness.

Indeed, prescription medication for the treatment of that mental illness was in Mr Skinner’s possession at the time of his arrest. • Shortly after Mr Skinner’s arrest on the second degree murder charge, (which included his being advised of his rights to legal counsel and provision of the standard caution), steps were taken, at Mr Skinner’s request, to facilitate his access to legal counsel by telephone. The first two lawyers contacted, (Mr Cummings and Ms Van Drunen), were not available.

However, Mr Skinner was able to speak privately by telephone with a third lawyer, (Ms Robern), shortly before the detectives and Mr Skinner departed for Stratford, in the same vehicle, at approximately 7:30am. • The journey from Penetanguishene to Stratford would take approximately five hours, and to the knowledge of Mr Skinner, conversation within the police vehicle was being recorded for the duration. Along the way, stops were made to allow Mr Skinner opportunities to smoke, and to obtain snacks.

While considerate, such stops were not out of the ordinary for a lengthy prisoner transport. • While still en route to Stratford with Mr Skinner, Detective McGregor was in telephone contact with Staff Sergeant Clarke, who advised that Ms Van Drunen, (the second lawyer whom Mr Skinner had attempted to reach earlier, and now Mr Skinner’s current counsel), had been located at the courthouse and wished to speak with Mr Skinner.

Ms Van Drunen succeeded in reaching Detective McGregor by telephone shortly before 10:00am, (when the detectives and Mr Skinner were approximately half way through their journey to Stratford), and asked to speak with Mr Skinner. To facilitate that conversation, the detectives pulled to the side of the road, removed their recording device from the vehicle, and left Mr Skinner in the rear of the vehicle with Detective McGregor’s telephone. When the call ended, (after a temporary interruption in phone service), the detectives entered the vehicle again and resumed the journey to Stratford.

• At approximately the same time, (i.e., around 10:00am on July 7, 2015), U.C.H. and U.C.B. arrived in Stratford to assist with the contemplated “cell insert” operation.

They met with Staff Sergeant Clarke, who would be acting as their local “undercover handler” for the operation. [10] In that regard: o Staff Sergeant Clarke formally would be responsible for the safety of the two undercover officers during the contemplated operation, (although it admittedly involved a low level of risk, given that the two undercover officers would be locked in their own separate holdings cells within the Stratford Police headquarters). o Staff Sergeant Clarke also would act as a “go between” or “buffer” between the undercover officers and the relevant investigating officer, (Detective McGregor), so that any questions or comments from one to the other would be relayed only indirectly.

The purpose of the “buffer” arrangement was to help prevent possible “contamination” that might jeopardize effectiveness of the contemplated “cell insert” operation. In particular, while the undercover officers would be provided with a general indication as to the underlying offence being investigated, they deliberately would be given no specific details of how, when or where the alleged crime had occurred.

That in turn would help prevent either undercover officer from asking leading questions or saying something else that might alert Mr Skinner, the target of the operation, to suspect or realize something was amiss; e.g., by either undercover officer inadvertently raising, in contemplated conversation with the suspect, any matter which should have been unknown to a person in the position of the role being played by the undercover officer. o Apart from the limited contact noted above, on June 30, 2015, there had been no previous meeting or discussion between Staff Sergeant Clarke and the two undercover officers concerning the operation.

However, Staff Sergeant Clarke had worked with one of the two undercover officers, (U.C.B.), on a previous occasion. o During their meeting with Staff Sergeant Clarke, U.C.H. and U.C.B. were provided with basic information concerning Mr Skinner, the crime being investigated, and the intended operation. In particular: ▪ The undercover officers were provided with Mr Skinner’s name, his date of birth, and an indication that Mr Skinner was believed to be a drug user with a preference for methamphetamine.

No further information about Mr Skinner’s background or personal history, (including any possible criminal record), was provided. Nor did the undercover officers take it upon themselves to search for or review any records in that regard. ▪ The undercover officers also were told that Detective McGregor was investigating a “cold case” homicide, in respect of which Mr Skinner was a suspect being arrested that day.

No information about the victim was provided. ▪ The undercover officers also were informed that, prior to Mr Skinner’s anticipated arrival later that morning, they would be placed in holding cells on either side of the one into which Mr Skinner would be placed. ▪ Sergeant Clarke did not provide the undercover officers with any instructions or advice concerning what they should do or say during the course of the “cell insert” operation, or the limits of their involvement.

In his view, it was part of the daily duties of the undercover officers, acting on their own, to “come up with the themes” and “cover story” concerning how they would act, and how they would portray themselves, during such an operation. ▪ Staff Sergeant Clarke understood that the two undercover officers had reviewed case law dealing with such operations, but there were no specific discussions in that regard. [11] ▪ U.C.H. and U.C.B. were told that the operation might last up to 24 hours.

However, they also were told they would be removed from the holding cells at a time to be determined by Detective McGregor, (as the officer in charge of the investigation), when he felt, after discussions with Staff Sergeant Clarke, that their continued presence there was no longer required. • At the time, U.C.H. and U.C.B. each had received special training in undercover operations, including training on “rapport building”; i.e., how to build relationships with targets, usually by finding something the undercover officer’s chosen persona might have in common with the target, by cultivating an ability to speak with a target on his or her level, and/or by positive reinforcement through affirmative comments supporting or agreeing with what the target was saying.

Indeed, U.C.H spent several weeks each year teaching covert operation skills to other officers. Each of U.C.H. and U.C.B. also had extensive experience working as undercover officers, in addition to performing other tasks for their respective police departments.

Moreover, they previously had worked together in the course of various undercover operations, including major operations relating to more serious crimes. • As between themselves, U.C.H. and U.C.B. agreed that, to facilitate coordinated role playing during the course of the intended cell insert operation, and present themselves in a believable way to Mr Skinner, they generally would portray themselves as detainees who worked as a team on criminal enterprises, and who had been arrested together by local police, in or around Stratford, in connection with a warrant issued by police authorities in Montreal.

Moreover, in the agreed scenario or “theme”, those same Montreal authorities supposedly would be coming to Stratford to retrieve the two men, and return them to Montreal, to face charges relating to their organized theft of goods transported in tractor trailers. U.C.H. and U.C.B. had used such a cover story successfully in the past, and it would make their contemplated role playing vis-à-vis Mr Skinner more credible, convincing and effective in a number of ways. In particular: o Engaging in a common criminal enterprise would help to explain why the two men had been arrested and detained at the same time.

It similarly would explain why the two men would exhibit familiarity with each other during the course of any interaction with Mr Skinner. [12] o The alleged criminal activity of the two men was non-violent, which in turn would help the undercover officers avoid unnecessary and counterproductive intimidation of the accused; i.e., intimidation or fear that might make Mr Skinner less inclined to engage in conversation. [13] o The significant property value involved in the alleged criminal activity would nevertheless help to explain why police authorities in Montreal might consider it worthwhile to issue an arrest warrant with a wide geographic radius, and incur the time and expense of

making a round trip journey to Stratford to retrieve the two men. [14] o Police authorities having to make the extended journey from Montreal to Stratford also would help to explain why the two men might be held in detention and remain in their Stratford holding cells for a lengthy period of time; e.g., throughout the duration of Mr Skinner’s contemplated detention in the same cell block area. [15] • The particular venue for detention of the accused upon arrival in Stratford, and the location for carrying out the contemplated “cell insert” operation, was an area of holding cells on the main floor of the Stratford Police Services building, located at 17 George Street here in Stratford.

In that regard: o The configuration of the relevant area is depicted in a hand-drawn sketch prepared by Detective McGregor, and marked as Exhibit 1 on the voir dire . It includes, to the south, a large rectangular area with a row of six numbered holding cells of equal size, (i.e., approximately five feet wide and eight feet deep), aligned against the area’s southern wall. o Those six individual cells, usually used for male detainees, are separated by cement wall partitions. The front of each cell consists of steel bars, with some of those bars configured into a sliding door to the cell.

A cell occupant therefore is able to look out through the bars of his cell into the common walking area in front of the six cells, (i.e., the area which runs along the northern portion of the rectangular area), but not into any of the other cells, including any adjacent cell. [16] Conversation between those in separate cells is nevertheless possible. o There are permanent video and audio facilities in place to enable monitoring of the area containing the six individual holding cells described above, and a number of signs posted in and around the area provide notice that such monitoring is possible within the “police facility”. [17] The system is typically monitored for the safety of those in custody.

In this case, however, the police contemplated and engaged in use of that existing closed circuit television recording system to monitor and record interaction between the undercover officers and the accused during the planned “cell insert” operation. [18] o Those placed in the relevant six holding cells usually are males who have been detained and arrested. They are under the control of the police, and are not able to leave their area of confinement. • At approximately 11:55am, on July 7, 2015, U.C.B. and U.C.H. were placed in holding cell number 1 and holding cell number 3 respectively.

Those holding cells were located to either side of holding cell number 2, wherein Mr Skinner would be placed after his arrival in Stratford. • Sometime between noon and 12:30pm that day, (July 7, 2015), Mr Skinner and the three detectives escorting him arrived at police headquarters in Stratford. The active portion of the relevant “cell insert” operation commenced shortly thereafter, at 12:38pm, when Mr Skinner arrived in the relevant cell block area and was placed into holding cell number 2.

The operation generally then proceeded as follows: o From approximately 12:40pm to approximately 2:20pm, Mr Skinner remained in holding cell 2.

Again, his conversation with the two undercover officers during that period, (“Statement #1), is reflected in the video recording marked as Exhibit 3, and the corresponding transcript at Tab 3 of the relevant application record. [19] o At approximately 2:25pm, Mr Skinner was then removed from holding cell 2 and taken to an interview room for formal questioning by Detective McGregor, after receiving a secondary formal caution. [20] o During Mr Skinner’s temporary absence from the holding cell area, the two undercover officers also were removed from their respective holding cells.

After being driven to a local restaurant to eat a meal, U.C.H. and U.C.B. were returned to the office of Staff Sergeant Clarke, where the holding cell conversations were being monitored. Apart from minimal conversation to ensure that the undercover officers had no concerns, and to confirm their ongoing willingness to remain in the holding cells “for as long as it took”, there was no substantive discussion between Staff Sergeant Clarke and the undercover officers about the “cell insert” operation.

In particular, there once again were no directions given to the undercover officers about how they should be doing their assigned task. The undercover officers nevertheless were aware of the fact that Mr Skinner had been removed from the cellblock for a formal police interview, and that they would be going back into their assigned cells, to continue the operation, prior to Mr Skinner being returned to his holding cell after that interview. [21] o Detective McGregor’s formal interview of Mr Skinner lasted approximately three hours.

During that time, Detective McGregor felt that Mr Skinner was sober, able to speak well, and able to recall events that were being discussed. The detective personally had no concerns about Mr Skinner’s clarity of mind. The interview ended at approximately 5:18pm, and Mr Skinner was returned to holding cell 2 at approximately 5:24pm. o From approximately 5:24pm to approximately 7:28pm, Mr Skinner remained in holding cell 2.

Again, his conversation with the two undercover officers during that period, (“Statement #2”), is reflected in the video recording marked as Exhibit 4, and the corresponding transcript at Tab 4 of the relevant application record. [22] o The undercover officers were removed from the holding cell area at approximately 7:28pm, after conversation between Mr Skinner and the undercover officers had tapered off, followed by a long period of quiet.

In particular, Detective McGregor indicated to Staff Sergeant Clarke that he was satisfied with the holding cell conversations and his formal questioning of Mr Skinner, such that there was no point in continuing the “cell insert” operation. Staff Sergeant Clarke then formally terminated the operation. • Throughout the course of the “cell insert” operation, conversation taking place in the relevant holding cell area was being monitored contemporaneously by Staff Sergeant Clarke and another member of the Stratford Police Service, (Detective Serf), using the closed circuit television system described above.

Timeline notes were being taken, with a view to providing the undercover officers with later assistance in recalling events after the operation had been completed. Although Detective McGregor was occupied with other aspects of the investigation, (including his formal interview of Mr Skinner), he also would stop in from time to time to view the ongoing

holding cell conversations, and discuss developments with Staff Sergeant Clarke. • Throughout the duration of the “cell insert” operation, Mr Skinner gave no indication whatsoever of any suspicion or realization that U.C.H. and U.C.B. were police officers, or anything other than what they professed to be. In that sense, their efforts to present themselves to Mr Skinner in a believable way appear to have been successful. [ 22 ] Again, I will have further comments about the evidence during the course of my analysis.

Charter applications - onus [ 23 ] Before turning to the specific issues raised by the accused’s Charter application, I pause briefly to note and confirm who bears what burdens in that regard. [ 24 ] In particular, although the Crown will have the overall onus at trial to establish the guilt of the accused beyond a reasonable doubt, in relation to the alleged offence, it is settled law that, in relation to Charter applications such as the one before me, an accused generally has the onus of proving, on a balance of probabilities, that there have been constitutional infringements and that evidence obtained as the result of any infringement should be excluded. [23] Charter breach analysis –

Section 7 [ 25 ] In this case, the accused claims that the “cell insert” operation breached his right to remain silent, and therefore the rights guaranteed to him by

section 7 of the Charter , which reads as follows: 7. Everyone has the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [ 26 ] There is no question that the rights extended by

section 7 include a detained person’s right to silence; a well-settled principle that has been part of the basic tenets of our law for generations. [24] GENERAL PRINCIPLES –

SECTION 7 AND THE RIGHT TO SILENCE [ 27 ] Further general principles relating to the right to silence include the following: • The essence of the right to silence is the fundamental notion that the person whose freedom is placed in question by the judicial process must be given a free, meaningful and informed choice of whether to speak to authorities or not. [25] • The right to silence arises and applies only after detention of a suspect, when the state takes control over the suspect and assumes responsibility for ensuring that his or her rights are respected.

At that point, the accused is subjected to the coercive powers of the state through his or her detention, and the need arises to protect the suspect from the greater power of the state. [26] • However, an express assertion of the right to silence, (e.g., in the form of a declaration that the accused does not wish to speak to the authorities), is not a condition precedent to the right to silence and the application of corresponding protections such as those applied by the courts in relation to “cell insert” operations.

It would be absurd to impose, on the accused, an obligation to speak in order to activate his or her right to silence. [27] • The ambit of the right includes not only the negative right to be free from coercion induced by threats, promises or violence, but a positive right to make a free choice of whether to remain silent or speak to the authorities. [28] • There is no absolute right to silence, in the sense of a right capable of being discharged only by waiver. Nor can all of a detainee’s speech immediately be deemed involuntary merely by virtue of his or her being detained.

In particular, although placed in the superior power of the state upon detention, a suspect retains the right to choose whether or not he or she will make a statement to the police, and if the suspect chooses to make a statement, the suspect may do so. The state accordingly is not obliged to protect the suspect against making a statement, and it is open to the state to use legitimate means of persuasion, (short of denying the suspect the right to choose or depriving him or her of an operating mind), to encourage the suspect to do so.

For example, the police may question an accused in the absence of counsel, after the accused has retained counsel, and if the police are not posing as undercover officers and the accused chooses to volunteer information, there will be no violation of the Charter . [29] • However, the state is obliged to allow the suspect to make an informed choice about whether or not he or she will speak to the authorities. The state accordingly may not engage in conduct which effectively and unfairly deprives the suspect of the right to choose; e.g., by engaging in tricks which effectively deprive the suspect of such a choice.

Similarly, if the suspect chooses not to make a statement to the authorities, the state is not entitled to use its superior power to override the suspect’s will and negate his or her choice. [30] • The right to choose whether or not to speak to authorities, and the corresponding test for determining whether a suspect’s right to choose has been violated, essentially is defined objectively rather than subjectively. In particular, the right does not necessitate a particular state of knowledge on the suspect’s part over and above a basic requirement that he or she possess an operating mind.

Once that has been established, the focus under the Charter shifts to the conduct of the authorities vis-à-vis the suspect. [31] GENERAL PRINCIPLES – RIGHT TO SILENCE AND “CELL INSERT” OPERATIONS [ 28 ] Conduct of the authorities in relation to use of undercover officers and agents, (e.g., in the context of “cell insert” operations), and the possible impact of such techniques and subterfuge on a suspect’s right to silence, has been the subject of more specific observations, principles and guidelines.

They include the following: • The purpose of the right to silence is to limit the coercive power of the state to force an individual to incriminate himself or

herself; it is not to prevent individuals from incriminating themselves per se .

In every case where the right to silence is raised, there accordingly will be a threshold question as to whether the person who allegedly subverted the right to silence was an agent of the state. [32] • For example, as the right to silence is predicated on a suspect’s right to choose freely whether to speak to authorities (such as the police) or not, it generally does not affect voluntary statements made to fellow cell mates. [33] • However, even when the person witnessing a statement by the accused is found to be an agent of the state, and his or her status in that regard was not known by the accused at the time the statement was made, such considerations alone do not entail a breach of the accused’s right to silence.

In particular, the right to silence does not rule out the use of undercover police officers. To the contrary, in affirming a detainee’s right to silence, the Supreme Court of Canada has preserved and defined an area of police investigation where undercover operations, including “cell block interviews”, are perfectly legitimate. For example, the right to silence is not breached by the use of undercover agents to simply observe and/or listen to a suspect.

More generally, the use of undercover agents in circumstances where there is no eliciting behaviour on the part of the police, or their agents, entails no violation of the right to choose whether or not to talk to the police. If the suspect speaks in those situations, (even to an undercover officer), it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police.

In that sense, the detainee’s speech is voluntary. [34] • However, choosing to speak to a fellow prisoner is “quite a different matter” than choosing to speaking to an undercover police officer posing as a fellow prisoner, (or a cell mate acting at the time as a police informant), when the suspect is ignorant of the fact that he or she actually is talking to an agent of the state. It does not reflect a choice to speak to the police, raises different concerns, and “different considerations will apply”.

In particular, when the police improperly use subterfuge to interrogate an accused, improperly eliciting information they were unable to obtain by respecting the suspect’s right to silence, the accused has been deprived of his or her choice, and his or her constitutional right to silence has been subverted and breached. [35] • In short, when dealing with cases involving the right to silence and the use of undercover police officers, (e.g., in “cell insert” operations), courts are not concerned with subterfuge per se , but with subterfuge that, in actively “eliciting” information, violates an accused’s right to silence by depriving him or her of his or her choice whether to speak to the police. [36] It accordingly is of no consequence that a police officer was engaged in a subterfuge, permitted himself or herself to be misidentified, or lied, so long as the responses by the accused were not actively elicited or the result of interrogation.

Police can, within the limits imposed by the law, engage in limited acts of subterfuge and a legitimate area of police investigation. [37] For example, an undercover officer in a “cell insert” operation is not obliged to confess that he or she is an undercover agent, or say nothing. [38] The Supreme Court of Canada unambiguously has rejected adoption of an “absolute right to silence” standard or a “listening post” standard of complete passivity.

An undercover officer may and indeed must interact with a suspect in a natural and convincing way. [39] • An atmosphere of oppression, (typically but not exclusively thought of as persistent questioning, a harsh tone of voice, or explicit psychological pressure on the part of the state agent), is not required to ground a finding that a detainee’s right to silence was violated. [40] There need not be an effective “interrogation” in that pejorative sense. Again, the focus is on whether the state agent, in the course of the subterfuge, actively “elicited” information so as to violate the accused’s right to silence.

Subtle interrogation, (e.g., through gentle questioning in a congenial atmosphere, using “honey not vinegar”), may still constitute active elicitation. [41] • As for what may constitute active “elicitation” in the sense required to establish a violation of the right to silence: o The Supreme Court of Canada has emphasized that it is difficult to give a short and precise meaning of “elicitation” in this context.

One instead looks to a series of factors which test the relationship between the state agent and accused so as to answer this question: “Considering all the circumstances of the exchange between the accused and the state agent, is there a causal link between the conduct of the state agent and the making of the statement of the accused?” [42] o While the Supreme Court of Canada provided a list of factors to be considered in that regard, (arranged into two groups “for convenience”), it was emphasized that the list was not exhaustive, and that no one factor necessarily would be dispositive.

They are, rather, guidelines to test the relationship between the state agent and the accused so as to determine whether there was a causal link between the conduct of the state agent and the accused so as to determine whether there was a causal link between the conduct of the state agent and the making of the statement by the accused. [43] o The first set of factors concerns the nature of the exchange between the accused and the state agent. [44] In that regard, the focus is not on the form of the conversation, but on whether the relevant parts of the conversation were the functional equivalent of an interrogation.

To make that determination, courts generally ask whether the state agent actively sought out information, (such that the exchange could be characterized as akin to an interrogation), or conducted his or her part of the conversation as someone in the role the accused believed the informer to be playing would ordinarily have done. [45] More specifically, courts have focused on considerations that include the following: ▪ whether the state agent was instructed not to initiate a conversation with an accused, ask leading questions or otherwise elicit information, (although such instructions do not end the inquiry as the state agent may have exceeded his or her instructions, and the state ought not to benefit from such a failure); [46] ▪ whether the state-determined circumstances of an accused’s confinement and proximity with an undercover officer influenced his or her “choice” to speak to cell mates; e.g., by effectively creating an inevitability of conversation, and/or a situation where the psychological impact of confinement encouraged the accused to speak about that which likely weighed most heavily on his or her mind, namely, the charges against him or her; [47] ▪ whether it was the state agent or the accused who initiated a relevant exchange, perhaps after lengthy pauses; [48] ▪ whether it was the state agent or the accused who broached or returned to a particular subject-matter providing the context of an exchange; [49]

▪ whether the accused hesitated or spoke freely about a subject; [50] ▪ whether the accused continued to speak freely despite indications or reminders by the state agent that comments and admissions of misconduct might be repeated to authorities; [51] ▪ whether the state agent allowed the conversation to flow naturally, (e.g., conducting his or her part of the conversation as someone in the role the accused believed the state agent to be playing ordinarily would have done, which may include simple allusion to concerns that someone in a “cell mate role” naturally would have), or directed or redirected the conversation to areas where he knew the police needed or were seeking information, (e.g., by straying from the flow of conversation or asking clarifying questions), and/or directed the conversation in any manner which “prompted, coaxed or cajoled” the accused to respond; [52] and ▪ whether the state agent requested any information from the accused or offered inducement of any kind for that information. [53] o The second set of factors concerns the nature of the relationship between the state agent and the accused at the time a statement was made.

In that regard, courts will consider matters that include: ▪ whether the state agent exploited any special characteristics of the relationship to extract the statement; ▪ whether there was a relationship of trust between the state agent and the accused, (e.g., a situation where an undercover officer cultivated a sustained relationship with the accused over time such that the accused arguably may have spoken to the undercover officer in the reasonable expectation that his or her communications would not wind up in the hands of the police, in contrast to a situation where the state agent and the accused had no prior knowledge of each other and speaking of a “relationship” at all may exaggerate the circumstances); ▪ whether the accused was obligated or vulnerable to the state agent, (which may involve consideration of the accused’s apparent level of sobriety, confidence, fear, intelligence and/or experience with the justice system); and ▪ whether the state agent manipulated the accused to bring about a mental state in which the accused was more likely to talk, (e.g., by undermining confidence in a lawyer’s advice to remain silent, and/or by manipulating sympathies and supposed common interests and experience). [54] o Active elicitation is therefore not only difficult to define with precision, but also highly fact dependent and context sensitive.

It may also be difficult to identify, as underscored by the reality that principled and reasoned analysis of the same particular circumstances may result in quite different judicial conclusions. [55] [ 29 ] With the above principles in mind, I turn next to a consideration of their application on the facts of this particular case. APPLICATION –

SECTION 7 AND THE RIGHT TO SILENCE [ 30 ] As noted above, although all concerned acknowledged the need to consider the circumstances of the “cell insert” operation in their entirety, the defence application sought to exclude evidence of remarks made by Mr Skinner during what has been described herein as “Statement #2”; i.e., the conversation which took place between Mr Skinner and the two undercover officers after Mr Skinner was returned to the Stratford holding cells after his formal interview with Detective McGregor.

That was the only portion of the evidence generated by the “cell insert” operation upon which the Crown intended to rely at trial. [ 31 ] In that regard, matters had not yet progressed to any final indication of the precise portions of Statement #2 upon which the Crown might rely; something which no doubt would have been clarified with more precision during contemplated submissions concerning probative value and prejudicial impact, had the

section 7 Charter application not been successful. [ 32 ] In my view, however, it seemed reasonably clear that the Crown was focused on aspects of Statement #2 capable of being grouped into two predominant categories. [ 33 ] The first such category included comments made by Mr Skinner about the manner in which he claimed to approach and deal with police charges and questioning, including his formal interview with Detective McGregor, based on prior experience and legal advice.

Evidence of such comments by Mr Skinner arguably might have relevance to the jury’s assessment of whether Mr Skinner was being candid and truthful during the course of formal questioning by Detective McGregor.

For example, Mr Skinner talked about: • telling the police only what they already know; [56] • controlling his reactions when police assertions may come close to the truth, (“like playing darts and getting bulls eye and you weren’t trying for one”), when they “just…make something up [to] see if it sticks”; [57] • making a practice of counting to three before answering, so that “if you fucked up for an answer, you got three seconds to think of something”; [58] • attributing any noticeable “shaking on camera” to not having his “full medication”; [59] • looking examiners “in the eye” when they are talking; [60] • matching the physical movements of examiners, (e.g., leaning forward or backward in the same manner); [61] • taking care to control and balance his reactions and demeanour, (e.g., to not show disrespect while not letting them think he was “a bitch”, to avoid being “cocky” without “looking dumb”, and “checking” himself but not “too much”); [62] • being cautious of “tongue twister” questions that suggested no options but incriminating answers or incriminating non-

answers; [63] • having “learned how to lie through [his] teeth”; [64] • being conscious of his body language and breathing; [65] • keeping his “story simple” [66] ; and • sometimes admitting something, so the police will “know…you’re telling them … something that’s true”. [67] [ 34 ] The second such category included comments made by Mr Skinner relating, or arguably relating, to the events underlying his second degree murder charge.

In that regard, I think it fair to say that there was nothing in Statement #2 that came close to a clear “confession”, in the sense of any express indication or acknowledgment that Mr Skinner was responsible for the relevant infant death back in 1994.

The comments he did make nevertheless included the following: • Shortly after referring to questioning by Detective McGregor, and expressing the view that the police had “fuck all”, were “just fishing”, and would not be interrogating him if they truly had new evidence against him, Mr Skinner said “But sometimes they’re bang on, and you, you think holy fuck, they know”. [68] • At a relatively early point during the second conversation, Mr Skinner referred to questions by Detective McGregor concerning Mr Skinner’s alcohol consumption of the day of the infant’s death, and allegations that Mr Skinner then “blacked out”, and/or “blacks out” or turns violent when drinking. [69] Initially, nothing further was said about that, but the topics of drinking, blacking out and possible violence by Mr Skinner surfaced again intermittently, at various later points in the conversation.

For example: o After an extended deviation in the conversation, Mr Skinner said: “Sure I blacked out drinking.

I’m not telling him that.” [70] Moreover, after apparently repeating a related question by Detective McGregor, (“Have you ever done something while you’re drinking you don’t remember?”), Mr Skinner said “Yeah, I pissed on the floor.” [71] o Still later in the conversation, (after a further extended deviation), Mr Skinner said, (with interjections by the undercover officers): “And I never hit, that I know of, anybody… Cause they’re saying that this person had lacerations in the liver, and … [the] skull was bashed in or something… And I said, well, I performed CPR on the person… That’s the only think I can think of. … I didn’t tell them anything different than in my statement 20 years ago… Cause, well, part of it’s true.

I don’t remember from a certain point to a certain point. … No, I was blacked out, holy fuck. … I don’t know what’s going on, but… Sorta like shell shocked”. [72] o Towards the end of Statement #2, the conversation returned to the topic of Detective McGregor’s questioning, and Mr Skinner made additional comments, (again with interjections by the undercover officers), such as: “Cause if he (sic) had a lacerated liver, that would make it - - you’d bleed internally. … And then he said the skull was fractured. And that gave it a hematoma or whatever.

Died instantly, he said. … Well, which is it? … I said, well, where’s your liver? Cause I told them at the hospital that I was trying to do CPR. … Maybe I did that, right? Maybe I broke the rib and that punctured the liver.” • After extended reference to police questioning techniques such as “tongue twister” questions supposedly leading to incriminating answers, and how Mr Skinner approached such questions, Mr Skinner referred to Detective McGregor’s questioning and said: “He’s not bad.

Like if it was a kid…he would have had him, probably.” [73] • Mr Skinner recalled Detective McGregor’s questioning about the night of the infant’s death, and details of how the infant was taken to hospital.

Mr Skinner described how he did not remember details of taking a cab, (e.g., as to the number of people in the cab at the time), although he did recall arriving at the hospital in one, emphasizing that it all had happened “fucking 20 years ago”, had “been a long fucking time”, and he had been “scared fucking shitless”. [74] • Much later in the conversation, Mr Skinner commented further on Detective McGregor’s questioning about the infant’s death and why it happened.

He then said “Just ‘cause I was there doesn’t mean I did it”, and went on to reference a female who also was present at the time, (presumably the child’s mother), wondering if she was still alive, and whether she “fucked off”. [75] [ 35 ] While the above examples may reflect the more pertinent aspects of Statement #2, I was mindful that the

section 7 Charter application brought by the defence requested a ruling that the entire statement be made inadmissible at trial, based on an alleged pervasive and underlying breach of Mr Skinner’s right to silence. [ 36 ] The allegation was firmly denied by the Crown, which took the position that nothing in the circumstances warranted exclusion of the comments Mr Skinner had made to the undercover officers. [ 37 ] Before turning to what I considered to be the mandated analysis for addressing the issues raised by the

section 7 Charter application, I note a number of considerations which were not relevant or determinative, in my view. In particular: • During questioning of police witnesses, Crown counsel initially placed some emphasis on the presence of signage in and around the cellblock area, advising people that areas of the police station were subject to audio and video monitoring. However, the point was not pressed by Crown counsel during argument. To the contrary, Crown counsel acknowledged that there was no evidence to suggest that Mr Skinner read those signs.

Crown counsel also conceded that such signage did not make Mr Skinner’s statements to the two undercover officers admissible, and expressly indicated that the Crown was not asking the court to make its determination concerning the admissibility of Mr Skinner’s statements to the two undercover officers on the basis of such signs.

I independently thought, and agreed with counsel, that this was not a case dealing with reasonable expectation of privacy. [76] Mr Skinner was being detained in custody by the State, and the applicable and governing analysis instead related to his right to silence. • In contrast to a number of other authorities presented for consideration, this was not a case where statements made by Mr Skinner during the course of the “cell insert” operation occurred after express and repeated indications that the accused intended to assert his or

her right to silence. However, as noted above [77] , an express assertion of the right to silence is not a condition precedent to the right to silence and the application of corresponding protections such as those applied by the courts in relation to “cell insert” operations.

Moreover, there were numerous indications that Mr Skinner was focused on doing his best to follow his lawyer’s advice and exercise his right to silence. [78] • Crown counsel emphasized at numerous points during the course of submissions that Statement #2 followed Mr Skinner’s decision to make a number of voluntary statements to Detective McGregor during the course of his formal police interview.

The implicit if not explicit suggestion was that Mr Skinner, by the time of Statement #2, had embarked on a course of conduct reflecting some form of personal decision not to embrace any determined exercise of a right to silence.

However, as noted above [79] , the Supreme Court of Canada has emphasized that choosing to speak to a fellow prisoner is “quite a different matter” than choosing to speaking to an undercover police officer posing as a fellow prisoner, (or a cell mate acting at the time as a police informant), when the suspect is ignorant of the fact that he or she actually is talking to an agent of the state.

Again, doing so does not reflect a choice to speak to the police, raises different concerns, and “different considerations will apply”. [ 38 ] I accordingly turned to an application of what I considered to be the applicable and governing analysis relating to alleged breach of an accused’s right to silence in “cell insert” situations, set out above. [ 39 ] Again, the focus in that regard was on whether, considering all the circumstances of the exchanges between Mr Skinner and the two undercover officers, (unquestionably “state agents” in this case), there was a causal link between the state agent conduct and the making of Mr Skinner’s statements. [ 40 ] As for factors concerning the nature of the exchange between the accused and the state agents: • There was no evidence indicating that U.C.H. and/or U.C.B. received any express instructions not to initiate conversation with Mr Skinner, ask leading questions or otherwise elicit information.

At most, there was evidence indicating that Staff Sergeant Clarke provided a case to U.C.H. and U.C.B. dealing with “cell insert” situations, and that U.C.H. supplemented that with a degree of “self- instruction” by independently reviewing additional authorities including R. v. Hebert , supra ; R. v. Broyles , supra ; and R. v. Liew , supra . There was no evidence indicating whether or not U.C.B. did the same. In any event, as noted above, instructions regarding elicitation, (however received), do not end the inquiry.

There may or may not have been compliance with such instructions. • In my view, the state-determined circumstances of Mr Skinner’s confinement and proximity with U.C.H. and U.C.B. influenced his choice to speak to the two undercover officers. In that regard, I was not guided by the mere fact of confinement. To state the obvious, every person who is detained and/or arrested will experience feelings of isolation from familiar and trusted family members, friends and confidantes.

However, in the particular circumstances of this case, I thought Mr Skinner was placed in a situation where those feelings, and a corresponding impulse to speak to those not perceived as being associated with the authorities, would have been reinforced and elevated.

The circumstances combining to produce that result included the following: o Mr Skinner had just completed a period of incarceration, (and therefore isolation from any social support in the community), in a prison facility that was geographically distant from where he previously had been spending his time. o Anticipating release from custody and freedom, Mr Skinner suddenly was confronted with the reality of ongoing detention and probable continued custody on a charge of second degree murder. o He was then transported to Stratford, a community where he apparently had not resided for some time, and was not expecting to go.

As he later indicated during the course of candid discussion with the two undercover officers, he worried that no one but his lawyer knew where he was. o While travelling to Stratford, Mr Skinner had spent, with the exception of two relatively brief telephone conversations with defence lawyers, over five hours in a confined space with three police detectives, in circumstances where he was made aware of the fact that everything said was being recorded.

Upon placement in a Stratford holding cell, he was told that certain recording devices he knew about were being turned off. [80] o In contrast to other situations of incarceration, (such as a jail or detention centre ranges offering access to telephones and television), the holding cell arrangement in Stratford offered no means of external communication, and no other diversions and distractions to help pass time.

Moreover, no one but police officers and other detainees visited or attended the relevant cellblock area during Mr Skinner’s time there. o While not having to share a holding cell, Mr Skinner nevertheless was situated between an undercover officer in each adjacent cell.

In the result, Mr Skinner could not physically retreat very far from conversations with or between the undercover officers, or distance himself more than 6-12 feet from either undercover officer, (depending on where that particular officer was located within that officer’s own holding cell), and moving away from one undercover officer would simply bring Mr Skinner into closer proximity with the other.

Mr Skinner then was exposed simultaneously to the conversational efforts of more than one undercover officer. [81] Indeed, the authorities placed Mr Skinner literally in the middle of any conversation between the two undercover officers, in a cellblock area described by U.C.H. as being otherwise “extraordinarily quiet”. In my view, all of this naturally would have made it much more awkward and difficult for Mr Skinner not to join in any such conversation. o Mr Skinner had not yet been to court, where he might have encountered counsel, family or other supporters.

He also had been informed that he had no prospect of making his first court appearance, in bail court, until the following day. In the intervening period, Mr Skinner would have no familial contact, no right to visitors, and no right to have his lawyer present during police questioning.

In short, in the immediate wake of unexpectedly being arrested and charged with second degree murder, (a situation that inherently would be very stressful), and apart from his brief telephone conversations with lawyers, (whom he had not seen), Mr Skinner had been and would continue to be figuratively “on his own” vis-à-vis the authorities for a considerable period of time, generally confined to a relatively small space with nothing to occupy his attention but his own thoughts and possible conversation with those in adjacent cells.

Apart from the police, U.C.H. and U.C.B., (who already were exhibiting friendship vis-à-vis each other), were and would be the only

available points of human contact available to Mr Skinner. • I think it fair to say that it was the undercover officers who initiated conversation with Mr Skinner.

As documented by U.C.H. himself in the notes he made immediately after the “cell insert” operation, Mr Skinner was noticeably quiet when placed in the holding cells, and did not respond to initial repeated efforts by the undercover officers to engage him in conversation. [82] Apart from a belated and brief response to a question about the time of Mr Skinner’s arrival in the holding cell area, Mr Skinner did not engage with the undercover officers until he received the first indication of their cover story. [83] Apart from occasional and relatively brief lulls, (often broken by comments from U.C.H. or U.C.B.) [84] , and interruption by attendance of a uniformed officer in the cell block, (after which U.C.H. and U.C.B. would restart dialogue with Mr Skinner) [85] , the first conversation between the undercover officers and Mr Skinner generally then proceeded without any extended silences until Mr Skinner was removed from the holding cells for his formal interview.

Similarly, it was the undercover officers who immediately made efforts to resume the conversation upon Mr Skinner’s return to the holding cells [86] , and the conversation thereafter generally continued without any prolonged silences until things grew quiet toward the end of the operation. As during the first conversation, where there were pauses in the conversation, they frequently were interrupted by comments made by the undercover officers. [87] • Once initiated by the undercover officers, the conversation they had with Mr Skinner generally proceeded in a friendly and cordial way.

Everything said by the two officers was “role appropriate”, in that their tone and substantive comments seemed consistent with what one might expect from characters such as those they were portraying. (Certainly, their role-playing was effective, insofar as it seems to have fooled Mr Skinner.) Moreover, I thought there were points in the two conversations when Mr Skinner himself was the one who arguably turned the discussion towards more sensitive subjects relevant to his second degree murder charge. [88] However, such points occurred within a larger context affected not only by the various “relationship” considerations addressed below, but also by clear indications that the undercover officers periodically were directing and redirecting the overall flow of conversation in important ways, encouraging Mr Skinner to talk about the charge against him, the circumstances underlying the charge, and his response to police questioning in that regard. [89] I also thought it noteworthy that, throughout the two conversations, the two undercover officers effectively encouraged Mr Skinner to keep talking through pervasive and almost constant comments of agreement, praise or other forms of positive reinforcement. [90] In my view, the two undercover officers clearly were prompting, cajoling and coaxing information from Mr Skinner. [ 41 ] As for factors concerning the nature of the relationship between the state agent and the accused at the time a statement was made: • I agreed with Crown counsel that Mr Skinner and the undercover officers clearly were not in any kind of long-standing or sustained relationship, and certainly not any relationship cultivated by the undercover officers over any significant length of time.

There was no “relationship of trust” in that sense.

The men had never met before the “cell insert” operation that day, and had shared no common prior experience or interaction that would have fostered any expectation that communications would remain confidential. • There similarly was no evidence to suggest that Mr Skinner was obligated to either of the state agents engaged in the relevant cell insert operation, in the sense of owing any duty or debt to either undercover officer. • In my view, however, I thought a combination of factors clearly made Mr Skinner much more vulnerable, (e.g., with less ability to remain stoic and silent, and a greater inclination to trust and talk with those apparently offering friendship and support), than others who may have been placed in a similar situation.

Such factors included the following: o As noted above, Mr Skinner suffers from a serious and formally diagnosed mental illness. The extent to which that affliction was affecting him or under control at the time of his arrest and detention by the Stratford police was unclear. Certainly, many aspects of his recorded conversation with the undercover officers seemed lucid, organized and coherent.

However, I also noted that the Stratford police apparently were having difficulty locating his prescription medication when he arrived at the holding cells in Stratford, and eventually were unable to locate at least one of the medications he was supposed to be taking at the time. [91] Moreover, in my view, certain portions of Mr Skinner’s conversation seemed erratic and occasionally bizarre, and that tendency arguably became more pronounced over the course of the relevant day.

For example, there were numerous instances when his thoughts apparently jumped rapidly between tangential or seemingly unrelated topics and memories, and/or where Mr Skinner blurted out inexplicable comments, the meaning of which occasionally became somewhat clear only by further statements indicating that his mind had moved on to another topic or memory. [92] Other comments suggested beliefs and fears that seemed irrational and/or exaggerated. [93] Other comments described, in a candid but disjointed way, one or more episodes of apparent mental breakdown. [94] o While I agreed with Crown counsel that various topics addressed by Mr Skinner in his conversations with the undercover officers suggested a level of experience and knowledge about various matters, including criminal activity and the justice system, [95] I also agreed with U.C.B.’s assessment that Mr Skinner generally gave the impression of someon

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