R v Caissie, 2022 SKCA 48

Restriction on Publication An order has been made in accordance with s. 486.5 of the Criminal Code directing that any information identifying the undercover officers shall not be published. Court of Appeal for Saskatchewan Docket: CACR3221 Citation: R v Caissie , 2022 SKCA 48 Date: 2022-04-13 Between: Joseph David Caissie Appellant And Her Majesty the Queen Respondent Before: Ottenbreit, Whitmore and Tholl JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Ottenbreit In concurrence: The Honourable Mr. Justice Whitmore The Honourable Mr.

Justice Tholl On appeal from: 2018 SKQB 279 , Saskatoon 2019 SKQB 3 , Saskatoon Appeal heard: January 10, 2022 Counsel: Ronald Piché for the Appellant Grace Hession David for the Respondent Ottenbreit J.A. I. INTRODUCTION [ 1 ] Joseph David Caissie appeals his conviction after trial before a Court of Queen’s Bench judge sitting alone for the first degree murder of Carol King pursuant to s. 235(1) of the Criminal Code and offering an indignity to human remains pursuant to s. 182 (

b) of the Criminal Code : R v Caissie , 2019 SKQB 3 [ Trial Decision ]. Integral to the conviction is a voir dire decision: R v Caissie , 2018 SKQB 279 [ Voir Dire Decision ]. [ 2 ] Mr. Caissie’s convictions are based primarily on his confessions that he killed Ms. King. These were derived from what is known as a Mr. Big police undercover operation, the details of which follow. [ 3 ] For the reasons hereinafter set forth, Mr. Caissie’s appeal is dismissed. II. FACTS AND BACKGROUND [ 4 ] The facts in this case have been set out in great detail in the Trial Decision and Voir Dire Decision .

I will therefore set forth only the facts and background that are germane to the issues raised on appeal. [ 5 ] Ms. King lived near Herschel, Saskatchewan and was involved for some time in a romantic and sexual relationship with Mr. Caissie. She went missing on August 6, 2011. Her car was found later, partly submerged in a slough near Herschel. When the car was found, its contents had become very jumbled.

When the police removed the car from the slough both the driver and passenger side front windows of the car were rolled fully down, the keys were in the ignition in the “on” position, the gearshift was in the “drive” position and

a windshield washer fluid container [jug] was jammed between the brake pedal and the accelerator pedal, pushing the accelerator pedal down. Tests conducted later by the police on the car in relation to the accelerator pedal and the throttle of the vehicle indicated that the jug would have depressed the accelerator pedal approximately 30 per cent. [ 6 ] On finding the car, the police tried to determine if Mr. Caissie was involved in Ms. King’s disappearance. In furtherance of this objective, they obtained a court-ordered search warrant for Mr.

Caissie’s premises on August 21, 2011, and installed a court-ordered tracking device on Mr. Caissie’s truck. The tracking device recorded the time, date, latitude, longitude and the speed of the vehicle. The tracking device remained in place from August 21, 2011 to December 15, 2011. [ 7 ] Ms. King’s body was found on August 27, 2011, in the Herschel district, in a portion of an abandoned farmyard [farmyard]. It was badly decomposed and appeared to have been partially consumed by wild animals. The location of the majority of the body was in an area containing bush. Since the time when Ms.

King’s remains were found at the farmyard, the area had been cleaned for farming, buildings had been knocked down and the trees and bush had all been cleared. [ 8 ] The police interviewed Mr. Caissie a number of times, initially following Ms. King’s disappearance, and then after her body was found. He consistently denied involvement in her death during the interviews. [ 9 ] The police continued their investigation and, although it yielded some information, there was not enough evidence to lay any charges against Mr. Caissie or anyone else. By 2012, Ms.

King’s death had become a cold case. [ 10 ] In 2015, the police, believing that Mr. Caissie had been involved in Ms. King’s death, decided to conduct a major investigative operation focused on him. The type of investigative technique they used, as noted above, is commonly referred to as a “Mr. Big” operation. The police therefore set up what appeared to be a criminal organization [organization] to try to engage Mr. Caissie in joining its apparent illegal dealings, so that he might during such an operation disclose information that was relevant to the investigation of Ms.

King’s death. [ 11 ] This undercover operation was named Operation Falbedo [Falbedo] and consisted of a total of 49 scenarios or interactions with Mr. Caissie by dozens of RCMP undercover officers posing as members of the organization. I will refer to the officers by their pseudonyms used during Falbedo. [ 12 ] Falbedo took place between January 20, 2016 and July 19, 2016. During Falbedo various undercover officers established a relationship with Mr. Caissie; some developed a very close relationship with him. Throughout Falbedo, the undercover officers made it clear to Mr.

Caissie that there were no expectations on him to do anything criminal and he was offered the choice of performing criminal as well as non-criminal tasks for the organization. Mr. Caissie indicated that he wanted to work for the organization. He was told, and he appeared to understand, that admission to the organization was based on loyalty, honesty and trust. [ 13 ] At the time Falbedo started, Mr. Caissie had a variety of skills and qualifications which included a Class 1A license for large truck driving, and building and construction skills. In the past and he had been fairly successful financially.

During Falbedo he did a variety of work for the organization for which he was paid a total of $11,900. [ 14 ] During his interactions with the undercover officers, Mr. Caissie made statements wherein he confessed to killing Ms. King. Six scenarios containing such confessions are relevant to this appeal. I will refer to the salient details of each. I will also refer to them by the numbering used during Falbedo as adopted by the trial judge. [ 15 ] The first confession was made on May 12, 2016, in Calgary, Alberta, during scenario number 29. At this point, Mr. Caissie had bonded with Officer Purcell.

This confession occurred during an evening at a noisy club. Mr. Caissie spontaneously said that his girlfriend was murdered. After Officer Purcell asked, “Was it you?”, Mr. Caissie winked at him and said “Yeah”. [ 16 ] The second confession occurred on June 8, 2016, as part of scenario number 36, while Mr. Caissie was driving to Kelowna, British Columbia with Officer Purcell. Mr. Caissie decided to stop and he and Officer Purcell walked down a dirt sideroad. During their walk, Mr. Caissie described to Officer Purcell how he had killed Ms. King. He said that he went to Ms.

King’s house, grabbed her, tied her up and threw her in the back of her vehicle. He said he drove it to an abandoned farm, strangled her and got rid of the body. He indicated he then drove to another location, changed clothes and burned the clothes he was wearing during the killing. He then drove her car into a slough. [ 17 ] The third confession also occurred on June 8, 2016, in Kelowna as part of scenario number 36. During an interaction with Officer Smith at a restaurant, Mr. Caissie asked him to go outside for a walk. In discussions between them, Mr.

Caissie said his girlfriend had been trying to take everything from him. He again described how he did the killing. He stated, “I did her in”. He indicated he cleaned out her vehicle and put it into a lagoon but she was not in it. He said that after it was all over, he burned all of his clothes. He also indicated that he had hired two people to go to Ms. King’s residence to scare her. He said he planned the killing and while he was doing it, he had shut off his phone and removed the battery from it. [ 18 ] Confession number four was made on June 9, 2016, in Kelowna during scenario number 37.

It was made to Officer Malone, who played the part of “Mr. Big”, or the head of the organization. Mr. Caissie indicated that on the day he killed Ms. King, he had driven to Herschel from Olds, Alberta. He said he went to Ms. King’s residence, grabbed her, tied her hands, threw her into her vehicle and drove about eight miles away from her house. He indicated he had “done her in” and dumped her body her into the bush in a spot with about 10 acres of trees. He described the manner of death as strangulation.

He reiterated and described how he drove her car into a slough, how he changed clothes and burned the ones he had been wearing and how he drove the backroads to Alberta at a very high rate of speed. He indicated that he had left Olds around 10:00 a.m. and arrived in Saskatchewan around 3:30 p.m. He returned to Olds around 11:00 p.m. He said that he had been pulled over by a cop for speeding near Hanna, Alberta and had received a speeding ticket. He reiterated that he had turned his phone off. Mr. Caissie also indicated that at the time he killed Ms.

King, she was wearing a pair of shorts or a skirt and a little top. [ 19 ] Confession number five was made to Officer Smith on June 15, 2016, in Lethbridge, Alberta as part of scenario number 39. Officer Smith told Mr. Caissie that his account of the death of Ms. King was not adding up. Officer Smith indicated to him that Officer

Malone did not believe Mr. Caissie and that he would not be allowed to continue with the group. Officer Smith stressed honesty as the key to entry into the criminal organization. Mr. Caissie admitted that he had lied to Officer Malone about how he had killed Ms. King. He indicated that his earlier explanation of what happened was 90 per cent accurate; he had, in fact, stabbed her instead of choked her. He explained he was trying to impress Officer Purcell during an earlier conversation, as Officer Purcell had suggested that strangulation was the best way to kill a person.

He reiterated the other details of how Ms. King’s death had happened, saying he had driven her away from her house in her car, killed her, dumped her body in the bush and driven her car into a dugout. He confirmed that Ms. King was wearing a pink tank top and either shorts or a skirt. He again described how he had dealt with his clothes. He said he then drove back to Alberta. [ 20 ] Officer Smith then suggested to Mr. Caissie that the organization had information that some object had been jammed onto the accelerator of Ms. King’s car and asked him why he would lie about this. Mr.

Caissie denied putting anything on the accelerator and said, “Who knows what happened after it went into the water?”. [ 21 ] In confession number six, Mr. Caissie was involved in a re-enactment of the killing with Officers Smith and Purcell. This occurred during scenario number 43 on June 30 and July 1, 2016, at Ms. King’s acreage. Mr. Caissie explained to Officers Smith and Purcell that when Ms. King came out of the house and walked towards the Quonset hut, he grabbed her. He showed the officers where he had parked his truck. [ 22 ] At the farmyard, Mr.

Caissie indicated where he had thrown the knife and explained that he threw the knife as far as he could. He said, “They’ve tore this all up since then too, hey. It’s not the same as it was. There was an old, abandoned house and shed there and the trees were all out to the road. Used to be a driveway. I suppose the driveway is still there. Yeah, this used to be the driveway right here.” In spite of the changes to the abandoned farmyard, Mr. Caissie took the officers directly to the site where he had left Ms. King’s body, an area that had been a square of trees and bush.

The body had been found in the northeast corner of this bushy area. This area had since been cleared of trees. At the site, Mr. Caissie indicated that he had stabbed Ms. King in the heart. He described where he had dragged her body into the trees. Mr. Caissie seemed sure of his directions but kept remarking on the change in the vegetation. [ 23 ] The parties then went to the slough where Ms. King’s car had been found. Mr. Caissie remarked that her car had picked up speed when it was rolling down the embankment of the slough. His description of how he drove Ms.

King’s car into the slough did not change from earlier descriptions given to the officers. [ 24 ] Mr. Caissie then took the officers to the place where he claimed to have burned all of his clothes. Mr. Caissie indicated that he stayed until everything was gone and he disposed of his shoes the next day at a dump site next to the job he was then working at in Alberta. He confirmed that during the entire course of events, he had shut off his phone and pulled the battery out of it and placed it on the center console of his truck.

He only turned it on when he got back to Alberta and called one of his workers and texted his wife. [ 25 ] Mr. Caissie also told the officers during a final series of questions that Ms. King was grabbed at her Quonset and that, at the time, the door to the Quonset was halfway up. He also indicated that, in his mind, the main goal was to separate the three pieces of evidence: the body, the vehicle and anything of his that would connect him to the murder, and that that was the focus of his plan. Mr. Caissie also confirmed that he had hired two “kids” to scare Ms. King and that he paid them $100 each.

He indicated they had gone to Ms. King’s residence two nights back-to-back, two days prior to her disappearance. [ 26 ] As a result of the analysis of the tracking device placed on Mr. Caissie’s vehicle shortly after Ms. King’s disappearance, the police obtained significant information. Between August 22, and 24, 2011, Mr. Caissie’s truck drove four times past the site where the body was eventually found. On August 24, it drove between that site and the slough were the car had been found, as well as past Ms. King’s residence. On August 25, 2011. Mr. Caissie’s truck moved past Ms.

King’s home and stopped just across from where the body was to be located. It then proceeded into the bush area, where her body was found two days later. Later in the day, his vehicle was stopped just south of where the body was found. On August 26, 2011, Mr. Caissie’s vehicle drove past the deceased’s residence and near the place where her vehicle was recovered. Mr. Caissie’s truck also stopped or drove by, on September 15 and 18, 2011, the site where he would years later, during Falbedo, take undercover officers and confess that he had burned his clothing after he killed Ms. King. [ 27 ] Mr.

Caissie was, at the end of Falbedo, arrested and charged with the offences noted above. III. DECISIONS OF THE JUDGE [ 28 ] Mr. Caissie appeals both the Voir Dire Decision and the Trial Decision . A. The Voir Dire Decision [ 29 ] Mr. Caissie argued that the evidence garnered from the Mr. Big operation was presumptively inadmissible on the basis of the principles set forth in R v Hart , 2014 SCC 52 , [2014] 2 SCR 544 [ Hart ].

He submitted that any admissions he made were either false or unreliable. [ 30 ] The judge reviewed the testimony of various undercover officers involved in Falbedo and reviewed in detail almost all of the scenarios or interactions between Mr. Caissie and those officers, as well as his confessions. He also reviewed the evidence respecting the discovery of Ms. King’s body, her vehicle and the chronology of the police and public’s involvement after the disappearance of Ms. King in attempts to find her.

He considered the evidence from the tracking warrant, the evidence of various officers regarding accident reconstruction related to the discovery of Ms. King’s vehicle, images seized from Mr. Caissie’s camera, forensic evidence in respect of Ms. King’s remains and evidence of Mr. Caissie’s and Ms. King’s interactions prior to the date she went missing. The judge also reviewed the evidence of a SaskTel employee who interpreted the records of Mr. Caissie’s cell phone. Finally, he reviewed the evidence of the employees that Mr. Caissie had hired for a job he was doing in Olds, Alberta at the time of Ms.

King’s killing. [ 31 ] With respect to the law, the judge canvassed at length the principles set forth in Hart and the two segment test enunciated therein related to admission of evidence obtained through the use of a Mr. Big investigation. He instructed himself with respect to the

methodology to be used to analyze whether such evidence and confessions were admissible. The judge noted that such confessions were presumptively inadmissible but that the presumption could be rebutted. He also reviewed the general law applicable to the admissibility of the statements. [ 32 ] The judge observed that the first segment of the Hart test, i.e., the circumstances in which the Mr. Big confessions were obtained, included a review of the circumstances and details of the operation, the confessions, the prejudicial effect of admission and a balancing of probative value versus prejudicial effect.

With respect to the second segment of the Hart test, he indicated it required him to determine whether it would be an abuse of process to allow the confessions to be admitted. The judge acknowledged that the Crown’s onus with respect to admissibility was on a balance of probabilities. [ 33 ] The judge reviewed the circumstances of Falbedo. He examined the length of the operation, the number of interactions between the police and Mr. Caissie, the nature of the relationship between the undercover operatives and Mr.

Caissie, the nature and extent of any inducements offered, the presence of any threats, the conduct of the interrogation itself and the personality of Mr. Cassie, including his age, sophistication and mental health. He was satisfied that there was nothing in all the foregoing that would make Mr. Caissie’s confessions inadmissible. [ 34 ] The judge then turned to reviewing the confessions themselves. He observed that there was substantial detail in the confessions provided. He noted that there were repetitive confessions with different recipients. He concluded: [401] Taken cumulatively, Mr.

Caissie’s statements are in the nature of a clear and detailed confession. His statements are confirmed by other evidence. His statements also led to the discovery of new evidence, not previously known to the police. When considered together, there is a significant degree of consistency in his utterances. They bear the required hallmarks of reliability. [ 35 ] He acknowledged that Mr.

Caissie’s statements did not correspond with all of the other evidence, such as the holdback evidence (i.e., evidence not made available to the public that only the killer would know) of the presence of the jug on the accelerator mentioned earlier. He dealt with this matter, stating: [402] I have already mentioned that Mr. Caissie’s statements do not correspond with all other evidence, such as the holdback evidence of the jug on the gas pedal of the PT Cruiser. Seldom, if ever, does evidence dovetail perfectly.

As well, I have emphasized that the present endeavour is one of determining threshold reliability, which the Crown must demonstrate on a balance of probabilities. Finally, and with respect, it may be that the defence argument conflates the absence of a confession’s details matching holdback evidence with the obtaining of confirmatory evidence. Here, the holdback regarding the jug was never proven out through Mr. Caissie’s confessions. Had it, it would have been powerful confirmatory evidence. But this does not preclude other powerful confirmatory evidence from reinforcing the probative value of Mr.

Caissie’s confessions, evidence such as Mr. Caissie’s confessions disclosing the involvement of the two men he hired to scare Ms. King at her home, which the police were able to completely verify. [ 36 ] The judge concluded: [403] I find there is enough of a degree of reliability within the confession itself to militate in favour of its admission at trial. The confession is detailed. Mr. Caissie described aspects of the crime that would not be known to a person uninvolved with its commission. It is internally consistent.

It led to the discovery of new evidence, which is confirmatory of part of the confession and which was not known to the public (Mr. Klareholm [ sic ] [one of the people hired to scare Ms. King], discussed in detail below). It matches much of the other evidence, some of which may have been widely known but some of which (on the evidence before me) was not. As well, I note Justice Moldaver’s statement in para. 105 of Hart : the greater the concerns as to the circumstances in which the confession was made, the more important it is to find markers of reliability.

Here, I have little concern as to the manner in which the statements were elicited from Mr. Caissie. [ 37 ] He noted that the confessions led to the discovery of additional evidence. This included the testimony of Joshua Klarholm, who confirmed Mr. Caissie’s disclosure during Falbedo that he had hired people to scare Ms. King. The judge also observed that the telephone records of Mr. Caissie matched Mr. Klarholm’s account and also supported the accounts of Mr. Caissie’s employees that he had turned off his cell phone for his trip to Saskatchewan: [413] I have also considered whether Mr.

Caissie’s confession sets out anything that might be considered holdback evidence . While the confession does not match the holdback evidence concerning the jug, it does match evidence that would not have been known to the public or to the media. The telephone records not only match Mr. Klareholm’s [ sic ] account, but support the accounts of Mr. McMaster and Ms. Renouf [Mr. Caissie’s employees] and support the notion that the accused turned off his cell phone for his trip to Saskatchewan. His confession matches even small details, such as the fact that the quonset door was halfway up.

He indicated to police that Ms. King had an appointment to see the RCMP to lay a complaint, which is confirmed by other evidence. While not all of this is classic holdback evidence some of it is. All of it is confirmatory. (Emphasis in original) [ 38 ] The judge found that Mr. Caissie’s confessions accurately described mundane details of the crime, which he would likely not have known had he not committed it. [ 39 ] The judge dealt with the matter of the presence of the jug in the context of whether it was non-confirmatory evidence. He noted that the evidence regarding the jug did not align with Mr.

Caissie’s confession. He concluded: [418] However, two things must be born in mind: - First, this is a voir dire . I am concerned about threshold reliability, not ultimate reliability. My present quest is to determine whether the statements have sufficient indicia of reliability to be considered by the trier of fact. The issue pertaining to the jug affects that threshold reliability but the standard of proof presently faced by the Crown is that of a balance of probabilities, not that of beyond a reasonable doubt.

Whether the jug issue has a greater effect when viewed through the lens of reasonable doubt remains to be seen.

- Second, this fact must be viewed not in isolation but in conjunction with all the other evidence. Mr. Caissie states he was the instrument of the PT Cruiser getting into the slough, even if there is a discrepancy as to the mode of accomplishing that task. As well, other evidence (such as his leading the police to the spot the vehicle went in) is confirmatory. It is not an all-or-nothing proposition. [419] Since Hart , cases have held that neither the absence of confirmatory evidence nor the contents of a confession being at odds with holdback evidence are necessarily fatal to the admission of the confession.

For example, in R v West the court held “A finding of threshold reliability is not precluded merely because there are some inaccuracies in an accused’s description of holdback evidence” (para. 87). … [421] So while this issue with the jug is a difficulty for the Crown to overcome, it is not insurmountable at this admissibility stage of the inquiry. [ 40 ] The judge indicated that there was also other evidence that confirmed Mr. Caissie’s confessions: [422] I have looked at evidence that is confirmatory of the statements made by Mr. Caissie: - The existence of the two men hired by Mr. Caissie to harass Ms.

King, which was unknown to the police before he made the statement but which was confirmed by further investigation. Mr. Klareholm [ sic ] and the telephone records (Exhibit P-12) simultaneously form two strong indicators of reliability: confirmatory evidence of a detail that Mr. Caissie offered in his confession, and new evidence obtained as a result of the details given in the confession. As previously noted, this is powerful confirmatory evidence. - The speeding ticket. Mr. Caissie was ticketed near Hanna, Alberta at 132 kilometres per hour, eastbound toward Saskatchewan.

This ticket confirms the account in the confession as to how he got to and from Herschel, the day he went there, and the fact that he was moving at a high rate of speed to go there and back in the shortest possible time. This piece of evidence not only matches aspects of Mr. Caissie’s confession but refutes other statements he made to known police, such as that he was just out looking at recreational vehicles as he needed to buy one. - The evidence from Mr. McMaster and Ms. Renouf that on August 6, 2011 Mr. Caissie telephoned them and asked them to fabricate an alibi for him.

This confirms a trip to and from Saskatchewan and confirms Mr. Caissie’s stated purpose for that trip, and confirms he was trying to cover up that trip. - Notwithstanding the alteration of the yard where Ms. King’s body was dumped, Mr. Caissie was able to confirm she was not placed where the main part of her body was found – in an open clearing within that treed area. Rather, he insisted on June 30th that he had put her in the bush, which is consistent with all sorts of other confirmatory evidence, including that of Dr. Walker.

His evidence was compelling. - Notwithstanding the issue regarding the plastic jug, during the re-enactment Mr. Caissie took the operatives to the point where the PT Cruiser entered the slough. The slough where the vehicle was found was general community knowledge, but there is no actual evidence before me that the exact entry point was either widely known or broadcast in the media. The general manner in which the vehicle went into the water is consistent with other evidence, and while the accused opined it may have “flipped” he also stated he did not stay to watch.

Remember, the re-enactment is some five years after the event. - The re-enactment itself is also broadly confirmatory. While neither a knife nor remnants of burned clothing could be found five years later, Mr. Caissie’s knowledge of the area and of the precise locations where events happened suggests more knowledge than a person equipped only with local gossip and/or media reports would possess. - Mr. Caissie, in his confession, described how he turned his cell phone off and took the battery out for an extended period on August 6, 2011.

The cell phone records and the evidence from the SaskTel representative corroborate this aspect of his confession. There was a “bulk delivery” of messages after he turned the phone on, which is reflected in the SaskTel cell phone records. - Mr. Caissie’s indication of his plan to disable his phone, and his implementation of that plan, is further confirmed by the evidence of Mr. McMaster. He said Mr. Caissie had stated there were SaskTel issues that would render him unreachable during that day. - The timeline makes his attendance that day for the murder broadly possible.

While the defence mounted challenges to some aspects of the timeline, evidence such as the speeding ticket and communications between the accused and others suggests it was possible for him to make this trip within the time limited. - There is substantial Crown/defence disagreement about the timeline and whether it was possible for Mr. Caissie to drive to and from Herschel from Olds within the time limited and commit the murder. However, there is evidence from Sgt.

Eric Lane of the RCMP (an investigator on this case) that on October 5, 2011 he and another officer made the drive, and found it could be done in 4 hours at 130 kilometres per hour on average. This would be reduced to 3 hours and 40 minutes, as they stopped for food and fuel for about 20 minutes. It was also noted traffic was heavy with oil industry vehicles, as it was a week day whereas August 6, 2011 was a Saturday. Further, Cst. Ruetz’s evidence suggests the trip from the Siesta Hotel in Olds to the spot near Herschel where Mr.

Caissie hid his truck would be roughly 3.5 hours if travelled at an average speed of 130 kilometres per hour, and about 2 hours between the location of the speeding ticket and the truck hiding place. Knowing Mr. Caissie left the ticket scene about noon, this makes it possible for him to be in the Herschel area around 2:00 p.m. Further, the photos recovered from his camera were taken around 9:00 p.m. near Torrington, only 22 kilometres from his hotel. To get there at that time Mr. Caissie would have had to have left Herschel around 6:00 p.m.

This leaves him about four hours to commit the murder and do all the coverup work. That window closes a bit if the evidence of [a friend of Ms. King] is considered, as she had a telephone call with Ms. King around 3:30 or 3:45 p.m. Still, this leaves over two hours in which to accomplish what was done. I am certainly not determining at this stage whether the timeline does or does not “work”, but this evidence is at least some confirmation that the trip Mr. Caissie described in his confession is possible. In that sense, and at this stage, it operates as confirmatory evidence. - Mr.

Caissie described to the police his ongoing dispute with Ms. King as to the disposition of the house, including the involvement of her

sister. There is substantial evidence confirming that aspect of this matter. - His description of Ms. King’s clothes from the day in question is, at least in part, confirmatory. The pink top he described matches the type of top found at the scene of the body, saturated in decomposition fluid. While there is some difference in his description of the shorts or bottoms, there is a general matching. - In the course of making his confessions Mr. Caissie told the undercover operatives Ms. King had an appointment to see the RCMP that day.

That was true and is confirmed by other evidence. - The tracking device placed on Mr. Caissie’s vehicle provides a small amount of confirmatory evidence. Between the date Ms. King’s vehicle was found and the date her body was located, the evidence discloses Mr. Caissie’s vehicle was driven past both sites. If he had no knowledge of the body dump site prior to the discovery of Ms. King’s remains, why would he be driving past (and stopping near) a remote, abandoned farmyard where her body had been left?

I am mindful that in and of itself this tracking information would have very limited probative value but taken in conjunction with all the other evidence, it is a matter that bears examination. - At one point Mr. Caissie told an undercover operative that he had a slip tank in his truck, thus did not need to stop for gas. While this conflicted slightly with a prior version wherein he said he paid cash for everything, Sgt. Kelly’s evidence was that when he attended at Mr. Caissie’s yard he saw a slip tank there. - In giving the undercover police his confessions, Mr.

Caissie stated the door to the quonset in which Ms. King kept her vehicle was open halfway. The photographs after her disappearance contained in Exhibit P-16 confirm this to be the case. As well, Cst. Ralphene Allen stated that when she attended the King residence August 6, 2011 (the same evening Ms. King disappeared) the door was in the same state. Mr. Caissie had knowledge of the way the door had been left. - Mr. Caissie described to the undercover police how he had wiped down the PT Cruiser and dumped it into a slough, then later disposed of all his clothing by burning it.

He said this was to eliminate DNA evidence. In fact there was nothing of the accused’s located on or near Ms. King’s body, or in her vehicle, or at her home. It has been held that an absence of evidence accompanying such an explanation can be confirmatory. See R v M.M. , 2015 ABQB 692 at para 136 , where Justice Horner stated: [136] While I acknowledge that the statement provided by the accused did not lead to the discovery of additional evidence, that may simply be because there was no evidence to be found.

The accused described taking meticulous steps to ensure that he did not leave DNA at the crime scene stating that any items linking him to the shooting were properly disposed of. In giving his statement the accused was extremely confident that the police would not have any evidence linking him to the scene and that their renewed interest in the killing could only be based upon something somebody said.

This is simply an instance where the lack of physical confirmatory evidence is, in fact, confirmatory evidence. [423] Having examined all components of the overall confession itself, and comparing its contents to other evidence put before me, I am persuaded that the confession is reliable on a threshold basis. That is, it is reliable enough to be considered by the trier of fact in ultimately determining whether the Crown can prove beyond a reasonable doubt that Mr. Caissie murdered Ms.

King. [ 41 ] The judge then moved on to review the prejudicial effect of the admission of the confession: [426] I also note that the prejudicial effect of the evidence in this case is not as acute as in some other cases. In large measure this is because violence played the most minimal role in this undercover operation. Unlike other cases where the accused witnessed or participated in violence or simulated violence, even killings, this case involved a single use of violence wherein an undercover player was knocked to the ground and stripped to his underwear in a rural location.

While there is undeniably prejudice arising from the nature of this ruse as criminal activity, I have taken steps to guard against it, and it is less concerning than in other cases. [ 42 ] He then turned to balancing the probative value of the confessions against their prejudicial effect and concluded: [433] Here, taking the entire body of evidence on this voir dire into account, I am satisfied that the probative value of Mr. Caissie’s Mr. Big statements far exceed any prejudicial effect.

One of the keys to managing such prejudice is being aware of it, and defence counsel has done a good job of ensuring the court considers this factor.

But in the end analysis, the weighing of these two competing factors ends up in favour of admitting the statements due to their high probative value and (after due consideration and self-instruction) relatively low prejudicial effect. [434] In assessing the overarching principles of Hart as to reliability, and in assessing the non-exhaustive enumerated factors set out in Hart , I find this case to far more closely resemble the facts in [ R v Mack , 2014 SCC 58 , [2014] 3 SCR 3]. There, the admission of a Mr. Big confession was upheld by the Supreme Court. The inducements were relatively modest.

The factors pertaining to Mr. Mack are much closer to Mr. Caissie’s circumstances than are the circumstances surrounding Mr. Hart. [ 43 ] The judge ended his analysis by turning to the issue of abuse of process, i.e., the second segment of the Hart test. Counsel had agreed that abuse of process, per se, was not engaged by the case and they acknowledged there was no evidence of an abuse of process or power by the police. [ 44 ] The judge concluded: [442] In terms of the strict Hart analysis, I find the Crown has met its onus of demonstrating the reliability of the utterances of Mr.

Caissie, at least at this threshold level. There is significant probative value to his statements. There is comparatively little prejudice. Just how much probative value these statements bear, in relation to whether the guilt of Mr. Caissie is established beyond a reasonable doubt, remains to be seen. [ 45 ] On this basis, he admitted the confessions of Mr. Caissie into evidence on the trial.

B. The Trial Decision [ 46 ] The judge noted that his reasons and analysis in the Trial Decision must be read in conjunction with the Voir Dire Decision . He referenced his analysis of the evidence as set out in the Voir Dire Decision and reviewed some of the evidence again in more

summary form with respect to the ultimate issue of guilt or innocence. [ 47 ] The judge then reviewed the governing laws and principles with respect to the presumption of innocence and reasonable doubt. He also noted that the burden of proof rested with the Crown and never shifted, and Mr. Caissie was not obligated to prove anything during the trial. As well, he instructed himself that the totality of the evidence must be assessed to determine whether the Crown had proven guilt beyond a reasonable doubt. He again reviewed the law governing confessions and, specifically, Mr.

Big confessions. [ 48 ] He observed that Mr. Caissie’s confessions were all admissible. He found that they were also reliable and they had an internal and external consistency which was remarkable insofar as the confessions had been repeated several times to three different officers. The only exception to that was the mode of killing of Ms. King. However, the trial judge noted that Mr. Caissie had explained why he had given inconsistent accounts of the manner of her death. [ 49 ] The judge again applied the Hart test and methodology, this time in the context of the trial.

He determined that his conclusions were unchanged from those set out in the Voir Dire Decision . He concluded that the confessions were reliable when viewed through the lens of reasonable doubt. [ 50 ] The judge then dealt with specific examples of evidence that Mr. Caissie submitted cast doubt on the reliability of his confessions. The most significant piece of evidence was the disconnect between the placement of the jug found wedged against the accelerator and Mr. Caissie’s denial that he had put it where it was found.

The judge noted that this was not an element of the offence charged and the Crown was not required to explain how the jug ended up where it was or the reason for the disconnect in order to obtain a conviction. [ 51 ] The judge again reviewed the evidence of Mr. Klarholm and his involvement in what transpired and the fact that Mr. Caissie had attempted to set up an alibi through Mr. Klarholm. He noted that this evidence was discovered entirely as a result of Mr. Caissie’s confessions. He found that it was confirmatory of Mr. Caissie’s account about hiring people to scare Ms. King days before her killing.

He noted that it was evidence derived solely from Falbedo and was powerful confirmation of aspects of the confessions. [ 52 ] The judge determined that the Crown did not have to prove the precise way in which Ms. King was killed. He found that, given the degree of decomposition of Ms. King’s body and animal and insect predation, any meaningful analysis of her cause of death had been eliminated. He also found that the lack of any punctures in Ms. King’s clothing indicating she was stabbed was not fatal to the Crown’s case. [ 53 ] The judge dealt at length with the matter of the jug.

He noted that how the jug got into position was not known. He acknowledged Mr. Caissie argued that someone must have placed it there, but found there was no evidence on this point. He determined that he could not conclude how the jug ended up where it did, and acknowledged that while some police officers and Mr. Caissie assumed someone put it there, he had no evidence on the point at all. He concluded he was left with the consistency of Mr. Caissie’s accounts regarding getting the vehicle into the slough and the fact of the jug as holdback evidence never being confirmed by Falbedo.

He found that the lack of explanation for the jug did not lead to a finding of inconsistency, but rather a lack of fulfillment of potentially powerful confirmatory evidence. [ 54 ] The judge determined that Mr. Caissie had made attempts to provide himself with alibis. He observed that the statements that were made to the police by him attempted to show he was not in and around Herschel when Ms. King was killed. He also concluded that Mr.

Caissie tried to enlist the aid of his employees in concocting a false alibi and that they had initially cooperated and provided statements to the police supporting his fabricated whereabouts but later recanted those statements. [ 55 ] He reviewed the timeline of Mr. Caissie’s movements on the day of Ms. King’s death and concluded: [186] From all the evidence before me, that timeline is certainly possible and in any event, based on the actual evidence before me, the impossibility claimed by the defence does not pertain. My conclusion, based on all the evidence, is that Mr.

Caissie certainly would have had enough time to get from Olds to Herschel, abduct and kill Ms. King, get rid of the body, her vehicle, the knife and his clothing, and get back to Olds. [187] The timeline does not prove Mr. Caissie committed the murder, but contrary to what the defence asserts it does not disprove that it was possible for him to do so. Based on a review of all of the evidence I find that while tight, the timeline allows sufficient time that it was possible for Mr. Caissie to travel, kill Ms. King, make his disposals, and return to Olds. [ 56 ] The judge then turned to consider the disposal of Ms.

King’s car in the slough and the position of the shed door at her yard site. He noted: [191] There is physical evidence consistent with Mr. Caissie’s account of how the vehicle went into the water. He said a window was open; in fact, two were found to be open. The keys were in the ignition in the “on” or “run” position. The gear shift was in a forward gear. [192] As well, Mr. Caissie indicated that when he grabbed Ms. King at her home she was opening a shed door which was part-way up when he took control of her and took her keys. This corresponds with the photographs of Ms.

King’s yard site as well as the testimony of Cst. Williams and Sgt. Robinson. Again, this door position is a “mundane detail” that only the killer would know, but is the type of evidence contemplated by Hart and Mack . [ 57 ] With respect to Mr. Caissie’s cell phone, the judge noted that, based on SaskTel records and the testimony of the SaskTel employee, it had been turned off for a significant amount of time on August 6, 2011; between at least 2:20 p.m. and 7:45 p.m.

[ 58 ] The judge also found that the original placement of Ms. King’s body and the fact that it had been moved around by animals was not widely known. He observed that the public in the locale knew of the location of the abandoned farmyard where Ms. King’s body had been discovered, but that details of a more precise location were not publicized by the police. He noted Mr. Caissie not only took the officers to the location where he had left the body, but he also pointed to the farmyard as a location of the body and indicated that he had left her in the bush – bush that had been removed in the intervening years.

The judge found this was important evidence confirming portions of Mr. Caissie’s statements. [ 59 ] The judge also reviewed the evidence of the tracking device which I have detailed above that showed that Mr. Caissie’s vehicle had been driven close to the site where Ms. King’s body was found and her car had been disposed of numerous times. The judge noted that these locations were not within the knowledge of the public and supported the conclusion that Mr. Caissie’s confessions were reliable. [ 60 ] The judge answered the question of whether Mr. Caissie killed Ms.

King as follows: [236] I am prepared to, and do, place significant reliance on the confessions obtained through the Mr. Big operation. That operation contained minimal violence against people outside the “organization”, no violence against organization insiders, and no threats or coercion whatsoever against Mr. Caissie. His free will remained operative. His personal traits are set out in the voir dire decision, and I concluded he was not a person to be easily swayed or led around. [237] Mr. Caissie told the undercover operatives that he killed Ms. King. He told them this not once, not twice, but numerous times.

He admitted to lying only as to one matter (the manner in which he killed her) but quickly corrected himself. His various statements to undercover operatives were consistent, internally and externally. … [239] In assessing the totality of the evidence I have not only looked for findings and inferences consistent with guilt. I have also searched for findings and inferences inconsistent with guilt. Overall, the evidence points to Mr. Caissie’s guilt with certainty. The evidence does not raise a reasonable doubt for me; if it did, I would find Mr.

Caissie not guilty. [240] The fact that some questions raised by the evidence remain unanswered is not tantamount to inconsistency with guilt. In a criminal case, the evidence does not have to provide an answer to every question. The elements of the offences charged are outlined earlier in this judgment and I find the Crown has proven each required element beyond a reasonable doubt. [241] I find as a fact that Mr. Caissie killed Ms.

King on August 6, 2011, then placed her body in a treed area in an abandoned farmyard. [ 61 ] The judge then concluded that the Crown had proven that the murder was planned and deliberate and/or the murder was took place while committing a kidnapping. He also found the Crown had proven the charge of offering an indignity to the body or remains of Ms. King by disposing of her body in the treed area. [ 62 ] Accordingly, the judge convicted Mr. Caissie. IV. ISSUES [ 63 ] Mr. Caissie’s appeal raises the following issues: (

a) Did the judge err by admitting the confessions? (

b) Did the judge err by misapprehending evidence related to the location of Ms. King’s body and the jug? V. ANALYSIS A. Did the judge err by admitting the confessions? [ 64 ] Mr. Caissie makes a number of arguments on this issue. He submits that the judge erred in finding his confessions were reliable and therefore admissible because he failed to take into account the significant financial and other inducements offered to him during Falbedo. He also submits the judge failed to properly deal with the evidence regarding the presence of the jug and the placement of the body.

Last, he argues that the judge found evidence to be confirmatory of the confessions when it was not so. He submits that as a result and applying the test in Hart , his confessions should never have been admitted into evidence. [ 65 ] It is not disputed that the law governing the admissibility of Mr. Big confessions is set forth in Hart . Hart enunciated a new test for analyzing the admissibility of such statements, summarized in the following excerpt: [85] The first prong recognizes a new common law rule of evidence for assessing the admissibility of these confessions.

The rule operates as follows: Where the state recruits an accused into a fictitious criminal organization of its own making and seeks to elicit a confession from him, any confession made by the accused to the state during the operation should be treated as presumptively inadmissible. This presumption of inadmissibility is overcome where the Crown can establish, on a balance of probabilities, that the probative value of the confession outweighs its prejudicial effect. In this context, the confession’s probative value turns on an assessment of its reliability.

Its prejudicial effect flows from the bad character evidence that must be admitted in order to put the operation and the confession in context. If the Crown is unable to demonstrate that the accused’s confession is admissible, the rest of the evidence surrounding the Mr. Big operation becomes irrelevant and thus inadmissible. This rule, like the confessions rule in the case of conventional police interrogations, operates as a specific qualification to the party admissions exception to the hearsay rule.

(Footnotes omitted) [ 66 ] The first prong or segment of the test has four steps. In the first step, a court is to review the circumstances in which the admission was made.

At this step, the factors guiding the court’s analysis is set out in the following excerpt from Hart : [102] … These circumstances include — but are not strictly limited to — the length of the operation, the number of interactions between the police and the accused, the nature of the relationship between the undercover officers and the accused, the nature and extent of the inducements offered, the presence of any threats, the conduct of the interrogation itself, and the personality of the accused, including his or her age, sophistication, and mental health. [ 67 ] At the second step, the court examines the confession itself: [105] … Trial judges should consider the level of detail contained in the confession, whether it leads to the discovery of additional evidence, whether it identifies any elements of the crime that had not been made public (e.g., the murder weapon), or whether it accurately describes mundane details of the crime the accused would not likely have known had he not committed it (e.g., the presence or absence of particular objects at the crime scene).

Confirmatory evidence is not a hard and fast requirement, but where it exists, it can provide a powerful guarantee of reliability. The greater the concerns raised by the circumstances in which the confession was made, the more important it will be to find markers of reliability in the confession itself or the surrounding evidence. [ 68 ] The third step involves the court considering the prejudicial effect of admitting the confessions with attention to both moral and reasoning prejudice: [106] Weighing the prejudicial effect of a Mr. Big confession is a more straightforward and familiar exercise.

Trial judges must be aware of the dangers presented by these confessions. Admitting these confessions raises the spectre of moral and reasoning prejudice. Commencing with moral prejudice, the jury learns that the accused wanted to join a criminal organization and committed a host of “simulated crimes” that he believed were real. In the end, the accused is forced to argue to the jury that he lied to Mr. Big when he boasted about committing a very serious crime because his desire to join the gang was so strong.

Moral prejudice may increase with operations that involve the accused in simulated crimes of violence, or that demonstrate the accused has a past history of violence.

As for reasoning prejudice — defined as the risk that the jury’s focus will be distracted away from the charges before the court — it too can pose a problem depending on the length of the operation, the amount of time that must be spent detailing it, and any controversy as to whether a particular event or conversation occurred. [ 69 ] The fourth step consists of weighing the probative value of the confessions against the prejudicial effect. [ 70 ] The second segment of Hart relates to the potential abuse of process by the police. I need not say more about this part of the test because Mr.

Caissie has acknowledged that he is not making an abuse of process argument. 1. Financial and other inducements [ 71 ] I turn to Mr. Caissie’s first submission that the judge failed to appreciate that the significant financial and other inducements offered to him undercut the reliability and probative value of his statements. He argues that the financial and other incentives were endless and bordered on the irresistible. He submits that the allure of being accepted into the organization was so attractive that he would have done or said anything to gain acceptance.

He submits that, while his wage with the organization was not extraordinary, the perks and lifestyle that were flaunted to him were enough to signal that eventual full-time membership within the organization would entail significant wealth. He argues that the organization was depicted as a lucrative business, with life-changing potential for him. Mr. Caissie argues that the relational benefits of the organization to him were also inducements.

He submits that the judge failed to recognize that the totality of the financial and social inducements offered to him during Falbedo bordered on coercion and that this jeopardized the reliability of his confessions. He argues that his situation is much like that of the accused in Hart . [ 72 ] The Crown argues that the judge correctly dealt with the evidence of financial and other inducements to Mr. Caissie and properly concluded that they were not so significant that they caused Mr. Caissie to give a false confession. It submits moreover that Mr.

Caissie was not particularly vulnerable to those inducements and, in any event, was not coerced into fabricating a confession thereby. [ 73 ] Mr. Caissie’s submissions on this point cannot succeed. [ 74 ] Mr. Caissie was not lifted out of poverty through his role in the organization. He was open to opportunities where he could make “easy money” but had always been employed and had been able to look after his family since he had moved to western Canada years ago. He did so during the course of Falbedo. Mr. Caissie had his own means of earning a living and those means were varied.

Much of the work he did was as an independent contractor. [ 75 ] Mr. Caissie had owned a business with employees. He also had a Class 1A driver’s licence for driving long-distance trucks. This was potentially lucrative employment. He was an excellent craftsman and had skills in carpentry and mechanics. During Falbedo, he also made money by trading oil for a boat and trailer, and fixing old trucks and reselling them for a profit. [ 76 ] During the course of Falbedo, Mr. Caissie was paid a total of $11,900 for his labour and fees.

Throughout Falbedo, the undercover officers either encouraged him to obtain employment or did not discourage him from doing so. Mr. Caissie stated that he had turned down an offer of employment. [ 77 ] The judge carefully reviewed the financial situation of Mr. Caissie at paragraphs 353 to 367 of the Voir Dire Decision . His conclusion that Mr. Caissie was neither desperate nor entirely destitute was reasonable and fully supported by the evidence. He was correct in concluding that Mr.

Caissie’s financial situation, and any potential for bettering his financial position in belonging to the organization, did not pose a bar to the admissibility of the confessions. [ 78 ] The judge also dealt with the issue of whether Mr. Caissie was so emotionally vulnerable that the feeling of acceptance,

belonging and friendship offered by the organization effectively resulted in his will being overborne. He found it was not so: [360] … He had children from two relationships, and an ongoing relationship with those children and grandchildren. He was not friendless. His friend “Steve” stayed at the Alberta acreage. When in Kindersley with other gang members he arranged for friends to come to the Boston Pizza. He made independent stops, such as purchasing cigars from a friend. He was not alone in the world. He clearly had a social network. This distinguishes him from other Mr.

Big targets. [ 79 ] I agree with the following ultimate conclusion of the judge with respect to inducements related to Mr. Caissie’s dealing with the organization: [367] I do not find that Mr. Caissie was financially, socially or emotionally vulnerable during the currency of the Mr. Big operation. There can be no doubt that this operation offered Mr. Caissie inducements, but what was offered to him was not excessive and he had no weaknesses for the offer of those inducements to exploit. 2. The jug and the location of the body [ 80 ] Mr.

Caissie also submits that the judge failed to properly deal with two pieces of evidence that were germane to whether his confessions should be admitted, namely, the presence of the jug and the identification of the location of the body. The Crown argues that the presence of the jug was a peripheral matter, not central to the admissibility or the verdict. The Crown acknowledges that the identification of the location of the body is not a peripheral matter. However, it submits that Mr.

Caissie’s identification of that place during his re-enactment of the crime was strongly confirmed by the forensic evidence. [ 81 ] I turn first to the jug. Mr. Caissie argues that the presence of the jug was the “single most important piece of exculpatory evidence” in the trial. I disagree. [ 82 ] During Falbedo, Mr. Caissie consistently denied that he had placed the jug on the pedal of Ms. King’s car when he described how he drove it into the slough. The evidence of the presence of the jug was therefore not confirmatory of that part of his confessions.

There was, however, no evidence as to how the jug became wedged between the pedals. In the absence of such evidence, Mr. Caissie makes the following submission. The starting premise is that the killer drove the car into the slough. That person placed the jug on the accelerator pedal of the car. He was being honest when he insisted it was not him that placed the jug where it was found. Therefore, he was not the one that drove Ms. King’s car into the slough and, a fortiori , he was not the one who killed her.

Therefore, he was being dishonest when he specifically confessed in substantial detail on several occasions that he had killed her; or so the logic goes. As observed by the judge, such a line of reasoning requires accepting the assumption that the jug got where it was found through the actions of a person. [ 83 ] Admittedly, the presence of the jug is not explained in light of Mr. Caissie’s denial that he put it there. Several officers who testified ventured an opinion that it might have been placed there by someone. However, they were not qualified to give such an opinion.

Their evidence, taken cumulatively and in context, amounts to no more than the assumption noted above. That assumption was not proven in evidence. [ 84 ] The only possible reliable evidence on the placement of the jug might have been given by Corporal Douglas Green. He was qualified to give opinion evidence with respect to the cause of the damage to the vehicle, vehicle paths from tire tracks and the mechanical condition of vehicles upon collision. He was called for his expertise in making the determination of how objects might have moved within the vehicle.

Corporal Green testified there were too many missing variables to give a firm opinion on how the jug ended up where it did. There was, accordingly, no evidence that the jug got where it was found either as a result of the movement of the car as it entered the slough or as a result of someone placing it there. [ 85 ] The judge noted that Mr. Caissie’s failure to admit that he placed the jug did not “mean a huge hole is poked in the Crown’s case”, because it rested on the unproven assumption as mentioned above.

He found that the placement of the jug did not support the Crown's case, but as an “unknown”, it did not seriously damage it either ( Trial Decision at para 161). He noted that the evidence of the jug on the gas pedal, while discordant with Mr. Caissie’s denials, did not automatically disqualify his confession from being admitted as evidence. [ 86 ] As noted above, at paragraph 35, the judge correctly considered the matter of the presence of the jug in the context of other confirmatory evidence ( Voir Dire Decision ): [402] I have already mentioned that Mr.

Caissie’s statements do not correspond with all other evidence, such as the holdback evidence of the jug on the gas pedal of the PT Cruiser. Seldom, if ever, does evidence dovetail perfectly. As well, I have emphasized that the present endeavour is one of determining threshold reliability, which the Crown must demonstrate on a balance of probabilities. Finally, and with respect, it may be that the defence argument conflates the absence of a confession’s details matching holdback evidence with the obtaining of confirmatory evidence. Here, the holdback regarding the jug was never proven out through Mr.

Caissie’s confessions. Had it, it would have been powerful confirmatory evidence. But this does not preclude other powerful confirmatory evidence from reinforcing the probative value of Mr. Caissie’s confessions, evidence such as Mr. Caissie’s confessions disclosing the involvement of the two men he hired to scare Ms. King at her home, which the police were able to completely verify. [ 87 ] This was the correct approach to have taken to determine the reliability of Mr. Caissie’s’ statements pursuant to the test in Hart in light of the discordant evidence regarding the jug .

There was substantial confirmatory evidence that allowed the judge to conclude that Mr. Caissie’s confessions were convincing and reliable, notwithstanding the anomaly of the presence of the jug. [ 88 ] Mr. Caissie also submits the trial judge erred in his conclusion that the forensic evidence pertaining to the placement of Ms. King’s body was confirmatory evidence of his confession. He submits that he was imprecise about where he put Ms.

King’s body during his re- enactment of the crime and, accordingly, it was not possible to determine whether the forensic evidence of the initial location of the body was congruent with his confession. He argues he was unable to identify the exact place he had left the body and gave only vague assertions of where it was located. He submits additionally that his description has little probative value because it was no different than

the public’s understanding of where the body had been found. There is no merit to these arguments. [ 89 ] The record indicates that, during the re-enactment, Mr. Caissie was certain of the area in the abandoned farmyard where he had left the body. His identification of the area was admittedly complicated by the fact that, at the time he disposed of the body, the location was covered with bush and on the day of the re-enactment, that bush had been cleared.

Notably, he tried to provide a more precise location by reference to the foundation of the abandoned farmhouse nearby. [ 90 ] The fact the body was found somewhere in the abandoned farmyard was known to the public. However, the precise location at the site was not. Mr. Caissie was able to give such more accurate location during the re-enactment. In short, his description of where he put the body was not vague but rather relatively specific given the layout of the farmyard, the passage of time and the change in the landscape. [ 91 ] Mr.

Caissie’s identification of the area where he left the body was confirmed by the forensic evidence of where the body had likely been originally placed. The judge found that this detail of the more precise location of the body was holdback evidence that only the perpetrator would know. The judge appropriately analyzed how the forensic evidence as to the location of the body meshed with Mr. Caissie’s description of the location of the body. He was correct to find the forensic evidence was strongly confirmatory of that description. [ 92 ] Before turning to the evidence that Mr.

Caissie submits is not confirmatory of his confessions, I note the judge reviewed the circumstances of the making of the confessions prior to the examination of the confirmatory evidence as directed by Hart . He correctly concluded that the confessions were sufficiently detailed; Mr. Caissie described particulars of the offence that would only be known to the person who was intimately knowledgeable of their occurrence. 3. Evidence alleged to be non-confirmatory [ 93 ] Mr.

Caissie submits that, notwithstanding the details of the killing provided by him, there was insufficient confirmatory evidence of his confessions to warrant their admission into evidence. Mr. Caissie challenges 7 of the 17 separate pieces of confirmatory evidence referred to in the judge’s voir dire ruling. He does not challenge the other ten and, therefore, they must be taken to be confirmatory. [ 94 ] With respect to the items of evidence challenged by Mr. Caissie, I conclude, with some exceptions that I will note, that the judge made no error in determining they are confirmatory.

I will deal with each of these in turn. [ 95 ] With respect to whether the evidence of the SaskTel witness confirmed that Mr. Caissie had powered off his phone when he left Olds, Alberta, on the day of the murder, I conclude that the judge was correct to find that it is confirmatory. Mr. Caissie, during several confessions, indicated that when he left Olds on the day of the murder, he had powered off his cell phone and left its battery on the center console of his truck. The SaskTel witness testified that, on the basis of SaskTel records, Mr.

Caissie’s cell phone was powered off and not connected to its system from 2:20 p.m. until 7:45 p.m. that day, when his phone received a bulk delivery of text messages. [ 96 ] The SaskTel witness also testified that, although SaskTel was switching to a new system at the time and its records might, as a result, have been incomplete, the records that SaskTel was able to produce to the court were accurate. The evidence contained in the SaskTel records and the evidence of the SaskTel witness was not seriously challenged in cross-examination. This evidence was highly confirmatory of Mr.

Caissie’s confession that he had powered off his phone for some hours on the day of the murder. Moreover, Lincoln McMaster testified that Mr. Caissie told him before he left the job site on August 6, 2011, that he would not be reachable by cell phone. [ 97 ] I cannot agree that the judge gave undue weight to the SaskTel employee’s evidence or that he was wrong to conclude it was confirmatory. [ 98 ] Mr. Caissie argues the judge erred by determining that the position of the Quonset door found by the police on the day of Ms. King’s disappearance was confirmatory of his confession.

He had confessed on the day of the re-enactment of the murder that, at the moment he grabbed Ms. King, she had rolled the Quonset door up halfway. This was, in fact, the position of the door as pointed out by Ms. King’s sister to the police and accorded with the observations of the police who had attended at Ms. King’s residence prior to and after her sister’s arrival there. The pictures of the Quonset taken by the police show the door in the same position. In short, the position of the door as observed confirms Mr. Caissie’s description of its position five years after the murder.

The judge did not err in concluding this evidence was confirmatory. [ 99 ] Mr. Caissie next argues that, because the forensic evidence that the top Ms. King was wearing showed no rips consistent with stab marks and that her bones bore no carving marks, she was not stabbed as he had confessed. He submits these lacunae do not confirm his description of how he killed her. While it is true that there was no evidence consistent with Ms. King having been stabbed, the forensic pathologist was unable to give an opinion on whether she had been strangled or stabbed due to the state of her remains.

This aspect of the evidence was not considered by the judge in his voir dire ruling but was considered in his trial decision. The judge concluded that the cause of death could not be determined based on the forensic evidence and, in any event, that the Crown did not need to prove the exact cause of death. [ 100 ] Mr. Caissie also argues that the judge improperly considered the fact that he had received a speeding ticket in Hanna on the day of the murder as confirmatory. He submits it bears no relation to the actual murder. I disagree. Mr. Caissie had confessed he had been stopped by a “cop” for speeding in Hanna.

The evidence of the police officer who gave him the ticket confirmed this part of Mr. Caissie’s confession. The judge concluded the speeding ticket was confirmatory of the fact that Mr. Caissie was travelling at very high rates of speed towards Saskatchewan just hours before the murder. The judge made no error in this regard. [ 101 ] I turn next to the evidence of Mr. Klarholm. Mr. Caissie had confessed that he had hired two kids from Kindersley to scare Ms. King days before the killing. Mr. Klarholm testified he was one of those “kids” and was asked to attend at Ms. King’s house and scare her.

Even the mundane detail of the $100 Mr. Caissie paid to them for the “job” was confirmed by Mr. Klarholm. Mr. Klarholm’s credibility was not diminished in cross-examination.

[102] The judge found Mr. Klarholm’s evidence to be not only confirmatory evidence, but also evidence derived from the confessionthat would not otherwise have been known by Mr. Caissie. Mr. Caissie submits that it is inconsistent with him planning and executing themurder of Ms. King. He argues there was no point to him trying to diminish the credibility of Ms. King, that he was harassing her, bydemonstrating he was in Alberta while she was being harassed by Ms. Klarholm and his companion if he was going to kill her anyway. Idisagree. Mr. Caissie’s purpose in hiring Mr.

Klarholm was to create an alibi for himself for the disappearance of Ms. King shortlythereafter and to throw the police off his trail. The judge made no error in concluding that this evidence was confirmatory of Mr. Cassie’sconfession. [103] With respect to Ms. King’s clothing, Mr. Caissie submits that because he got the description of Ms. King’s clothing wrong, hisconfession is unreliable. He told the officers during several confessions that Ms. King was wearing a pink top and shorts or a skirt when hekilled her.

He submits that, although there was a consistency between the colour of the top found with the body and his description of thetop as pink, there was a lack of precision in his description of the top that would preclude the drawing of an conclusions with regard toconfirmation of his confession. The judge was satisfied that Mr. Caissie’s description was, at least in part, confirmatory based on thepicture of remains of the top that was submitted into evidence. I agree with that conclusion. [104] In regard to wiping down of Ms. King’s vehicle, Mr.

Caissie had spoken to the undercover officers about wiping it down severaltimes during his confessions. He submits that the judge’s finding that the absence of any evidence linking him to the car confirmed hisstatements that he had wiped it down was in error. I need not determine if the trial judge was correct in making this finding. Even if heerred, there is substantial other evidence confirmatory of the reliability Mr. Caissie’s confessions. [105] This evidence consisted of the following: (

a) Mr. Caissie’s request that Jennifer Renouf and Lincoln McMaster provide a false alibi that he was in Alberta during the timehe was in Saskatchewan on the day of the murder; (

b) The physical evidence of the exact entry place of Ms. King’s car into the slough was congruent with the entry place pointedout by Mr. Caissie on the day of the re-enactment; (

c) The level of detail accompanying Mr. Caissie’s re-enactment of the murder and disposal of Ms. King’s body and car; (

d) The evidence of the officers that it was possible to make the round trip from Alberta to Saskatchewan in the timeline asdescribed by Mr. Caissie. This was bolstered by evidence that Mr. Cassie had a slip tank in his truck, confirming his disclosure that henever had to stop for gas on the day of the murder because he had such a tank in his truck; (

e) Confirmation by other witnesses of Mr. Caissie’s description of the ongoing dispute with Ms. King; (

f) Confirmation of Mr. Caissie’s disclosure of his knowledge of Ms. King’s appointment with the RCMP on August 6, 2011; and (

g) Evidence from the tracking devices on Mr. Caissie’s truck which showed that between the date Ms. King’s car was found andthe date her body was found, Mr. Caissie had driven past the sites where each was found. [106] Based on all the foregoing, I cannot say the trial judge made an error in determining that the statements of Mr. Caissie would beadmitted into evidence. He correctly identified the applicable law, followed the steps of the test set out in Hart and, in doing so,thoroughly reviewed the germane evidence.

On that basis, he concluded that the confessions had met the test in Hart and that the Crownhad met its burden to show that Mr. Caissie’s confession were admissible. B. Did the judge err by misapprehending evidence related to the location ofMs. King’s body and the jug? [107] Mr. Caissie’s arguments that the judge misapprehended these two items of evidence reiterate his submissions thereon in respectof the issue of the admissibility of his confessions.

I have already dealt with this evidence in relation to admissibility and repeat my earliercomments. [108] The principles governing misapprehension of evidence were summarized in R v Lohrer, 2004 SCC 80, [2004] 3 SCR 732. Amisapprehension of evidence includes a failure to consider evidence relevant to a material issue, a mistake as to the substance of theevidence, or a failure to give proper effect to such evidence. In order for a misapprehension of evidence to result in a miscarriage ofjustice, it must relate to evidence central to the finding of guilt.

This was explained in R v Morrissey (1995), (ON CA),97 CCC (3d) 193 (Ont CA) at 221: … Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential

part in thereasoning process resulting in a conviction, then, in my view, the accused’s conviction is not based exclusively on the evidence and is nota “true” verdict. Convictions resting on a misapprehension of the substance of the evidence adduced at trial sit on no firmer foundationthan those based on information derived from sources extraneous to the trial. If an appellant can demonstrate that the conviction dependson a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim ofa miscarriage of justice.

This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction. [109] The Supreme Court in Lohrer, referring to Morrissey, stated that the misapprehended evidence must be central to the trial judge'sreasoning: [2] Morrissey, it should be emphasized, describes a stringent standard. The misapprehension of the evidence must go to the substancerather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge.

Once those hurdles are surmounted,there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essentialpart not just in the narrative of the judgment but “in the reasoning process resulting in a conviction”.

[ 110 ] Mr. Caissie argues that the judge misapprehended his evidence of where, during the re-enactment of the murder, he placed the body of Ms. King. He reiterates his earlier argument that in the re-enactment, he did not identify a precise location where he had left the body, but only a vague and inexact description thereof. I have already indicated that Mr. Caissie’s description of where he placed the body was not vague and inexact. [ 111 ] Mr. Caissie argues the judge erred by treating the evidence on this point as powerful confirmatory evidence that only the perpetrator would know.

The Crown concedes that the evidence with respect to the placement of the body was a crucial piece of evidence that goes to the substance of the offence rather than to detail. [ 112 ] The judge had before him documentary and photographic evidence of where Ms. King’s body was found as well as substantial testimonial evidence given by the undercover officers who were present on the day that Mr. Caissie re-enacted where he killed Ms. King and placed her body. The evidence of the re-enactment indicates that Mr. Caissie was certain where he left Ms. King’s body.

He indicated that he had placed it in the same spot that was generally marked as the initial location of the body by Dr. Ernest Walker, the expert witness called in respect of the analysis of human remains; that is, near exhibit marker 18 in the photographic evidence tendered at trial. [ 113 ] The Crown did not need to prove that Mr. Caissie was able to find the precise spot within feet of where he placed the body. The body had been disturbed by animal predation. It was also clear that the topography of the farmyard had changed and Mr.

Caissie was surprised at the absence of the bush where he had previously “tucked her into the trees”. Nevertheless, he was able to explain what he did and where he did it: that he parked her vehicle behind the abandoned farmhouse which he noted was gone except for the foundation; that he walked her further down the path, which was still there when the re-enactment took place; and that he took her to a bushy area, where he had stabbed her and dragged her into the bushes. [ 114 ] Mr. Caissie pointed to the area where he had left Ms. King’s body.

He used the foundation of the abandoned farmhouse as a point of reference on the day of the re-enactment. The area that Mr. Caissie indicated he had put her body is the area where Dr. Walker postulated that the body had been secreted. Although Mr. Caissie submits that the public knew of the location where the body was first found, there is no basis for that suggestion in the evidence. Only the police knew Dr. Walker’s specific determination and this was not shared with the public. [ 115 ] The judge determined that Mr.

Caissie’s description of where the body had been placed on the day of the re-enactment provided detail to which only the perpetrator of the offence would be privy. I cannot find that the judge misapprehended the evidence either of Mr. Caissie’s description of where he placed the body or the forensic evidence of where the body had been placed. [ 116 ] I turn now to the matter of the jug. Mr. Caissie repeats the arguments he made with respect to the jug on the issue of admissibility, i.e., that it is actually exculpatory evidence.

I have earlier indicated that this submission is based on faulty logic and on an unproven assumption. The Crown argues that the presence of the jug is a peripheral piece of evidence that is not central to the conviction and, in any event that the judge did not misapprehend the evidence in relation to the jug. [ 117 ] As I indicated above, the evidence of the presence of the jug is not exculpatory for the reasons mentioned. The judge was correct to find that how the jug got to be wedged on the accelerator pedal of Ms. King’s car was unexplained.

He was correct to find that there was no expert evidence on this point and that the evidence of several officers that it might have been placed there by someone was evid

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