R. v. Moir

2020 BCCA 116 R. v. Moir

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Moir, 2020 BCCA 116 Date: 20200423 Docket: CA44328 Between: Regina Respondent And Dustin Blue Moir Appellant Restriction on publication: A publication ban has been imposed under subsections 486.5(1) and (9) of the Criminal Code, R.S.C. 1985, c. C-46 restricting the publication, broadcasting or transmission in any way of evidence that could identify any undercover police officers. This publication ban applies indefinitely unless otherwise ordered. Publication Ban imposed on the reasons for judgment dated March 3, 2016. Before: The Honourable Madam Justice Newbury The Honourable Mr. Justice Goepel The Honourable Mr. Justice Butler On appeal from: An order of the Supreme Court of British Columbia, dated March 3, 2016 (R. v. Moir, Chilliwack Registry File 53172). Counsel for the Appellant: E. Purtzki E. Holzman Counsel for the Respondent: M.K. Levitz, Q.C. Place and Date of Hearing: Vancouver, British Columbia March 10, 2020 Place and Date of Judgment: Vancouver, British Columbia April 23, 2020 Written Reasons by: The Honourable Madam Justice Newbury Concurred in by: The Honourable Mr. Justice Goepel The Honourable Mr. Justice Butler Summary: Appeal of conviction for first-degree murder dismissed. Trial judge had not erred in admitting into evidence appellant's confession to a "Mr. Big." Trial judge had followed the approach

mandated in R. v. Hart and had concluded the probative value of the confession outweighed any prejudicial effects. Although R. v. Bradshaw had been released after the trial judge issued her reasons in the voir dire, Bradshaw was found not to modify or replace Hart, which continues to apply to Mr. Big statements. Although there was overlap between many of the factors used to demonstrate the trustworthiness of a hearsay statement between the two approaches, the right of the accused to remain silent, the legal terminology used in assessing reliability, and the structure of the prescribed analyses in the two cases are clearly different. Trial judge had not erred in her treatment of purported corroborative evidence and in the particular circumstances of this case, the appellant's knowledge of the 'holdback' evidence did not assist in assessing the reliability of his confession, since the appellant admitted at trial that he had been at the scene. Nor had trial judge erred in considering the existence of consistencies and inconsistencies in the appellant's Mr. Big statement and other statements made to other witnesses. Finally, with respect to a conversation between the appellant and his father after they had been arrested for the murder, it was difficult to evaluate what weight, if any, the trial judge gave to the appellant's silence in response to a remark made by his father. If any

weight was given to his silence, it was very little and even without this evidence, the trial judge would have properly admitted the Mr. Big statement into evidence. Reasons for Judgment of the Honourable Madam Justice Newbury: [1] This appeal turns on the admissibility into evidence of a so‑called 'Mr. Big' confession made by the appellant, Mr. Moir, concerning his involvement in the murder of a 14‑year-old girl, Chelsey Acorn, in 2005. At his trial below, Mr. Moir was convicted (for the second time: see 2013 BCCA 36) by a jury of the first‑degree murder of Ms. Acorn, his father Mr. West also having been convicted in the same crime (see 2015 BCCA 379). At the time he made his inculpatory statement to an undercover police officer posing as a Mr. Big in 2006, Mr. Moir was 21 years old. R. v. Hart [2] In R. v. Hart 2014 SCC 52, the Supreme Court of Canada expressed serious concerns about the probative value of Mr. Big confessions and their potential for police abuse. Although the majority acknowledged that the technique (a Canadian invention) has proved valuable and has been used to secure convictions in "hundreds of cases", the majority concluded that such confessions "present unique dangers that must be addressed by placing a filter on their admissibility." (At para. 66.) [3] The majority described Mr. Big operations as generally involving undercover police posing as members of

a criminal organization and creating the impression that working with the organization would provide a glamorous lifestyle and large financial rewards for the suspect. Speaking for the majority, Moldaver J. continued: Throughout the operation, the suspect is also told that the organization demands honesty, trust and loyalty from its members. An aura of violence is cultivated to reinforce these values. Officers teach the suspect that those who betray the trust of the organization are met with violence. They do this by telling the suspect that the organization kills "rats", or by exposing him to simulated acts of violence perpetrated by members of the organization against other undercover officers as punishment for imagined betrayals [At para. 59.] The confession usually takes place at a meeting "akin to a job interview" between the suspect and Mr. Big, in which the former is given to understand that confessing to the crime "provides a ticket into the criminal organization and safety from the police." Again in the words of Moldaver J.: suspects are told that Mr. Big has learned from contacts within the police that a prosecution for the offence is imminent based on new evidence. The organization offers to protect the target through a variety of means -- by offering to eliminate a witness or by having someone else confess to the crime -- if the suspect confesses to Mr. Big.

Throughout the interrogation, any denials of guilt are dismissed as lies, and Mr. Big presses for a confession [At para. 60.] [4] The Hart majority reasoned that because of the incentives offered to targeted suspects in joining the fictitious criminal organization, the potential for false confessions exists, and that it increases in proportion to the nature and extent of the inducements held out to the suspect. In the past, the law had guarded against unreliable confessions by placing the onus on the Crown to prove the statement was made voluntarily. However, the majority said, Canadian courts had "failed to adopt a consistent approach to assessing the reliability [my emphasis] of Mr. Big confessions before they go to the jury." (At para. 72.) [5] A second concern expressed in Hart was the prejudicial effect of Mr. Big confessions, since they are "invariably accompanied by prejudicial facts regarding the accused's character." In the analysis of Moldaver J.: Bad character evidence causes two kinds of prejudice. It causes "moral prejudice" by marring the character of the accused in the eyes of the jury, thereby creating a risk that the jury will reason from the accused's general disposition to the conclusion that he is guilty of the crime charged, or that he is deserving of punishment in any event (Handy, at para. 31). And it causes "reasoning prejudice" by distracting the jury's

focus away from the offence charged, toward the accused's extraneous acts of misconduct (ibid.). As this Court held in Handy, the "poisonous potential" of bad character evidence cannot be doubted (para. 138). When a Mr. Big confession is admitted, the character evidence that accompanies it places the accused in a difficult situation. In these cases, the accused is often obliged, as a tactical necessity, to testify in order to explain why he falsely confessed to Mr. Big. The character evidence that has already been admitted is damaging in this context because it shrouds the accused with an aura of distrust before he or she steps into the witness box. This distrust is compounded when the accused asks the jury to disregard his confession because he was lying when he gave it. And all of this furnishes the Crown with ample fodder for a forceful attack on the accused's credibility in cross-examination. [At paras. 74-5.] The majority noted that despite the presumption that bad character evidence is inadmissible, it had been "routinely admitted" in Mr. Big cases because it provides information concerning how an accused's confession came about. Indeed, the accused often ends up in the position of depending on such evidence to buttress the argument at trial that his or her confession should not be believed. [6] Finally, the majority was of the view that Mr. Big operations create a risk

that the police will resort to "unacceptable tactics" in pursuing a confession. The operations often involve threats or acts of violence perpetrated in the presence of the suspect, creating the risk that police may go too far in an individual case, resorting to tactics that may affect the reliability of the confession or even amount to abuse of process. (At para. 78.) The doctrine of abuse of process had, the majority stated in Hart, never operated to exclude a Mr. Big confession in Canada; nor had it ever led a court to stay charges as a result of a Mr. Big operation. [7] The majority noted various alternative proposals, including subjecting Mr. Big confessions to the principled approach applicable to hearsay evidence, but found that these did not point to a clear solution. (At para. 82.) A new legal approach was sought that would guard against the Court's concerns while at the same time ensuring that police have the means needed to investigate serious crimes. The solution adopted by the majority was two‑pronged, involving a "new common law rule of evidence" and a "more robust conception" of the doctrine of abuse of process to deal with the problem of police misconduct. The first prong (with which we are concerned in this appeal) involves treating any inculpatory statement made by the accused to "the state" in a Mr. Big operation as presumptively inadmissible. The presumption

may be 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. [At para. 85.] The proposed new rule, Moldaver J. stated, was to operate as a "specific qualification to the party admissions exception to the hearsay rule". (He acknowledged in a footnote that the rule targeted Mr. Big operations in their present form and that a change in the way police use undercover operations to elicit confessions "may escape the scope of this rule.") [8] The second prong involved a "reinvigorated" approach to abuse of process which directs judges to scrutinize police conduct of Mr. Big operations carefully. While the mere presence of inducements was not problematic, police conduct may become problematic when it "approximates" coercion. Coercion will of course be proven where a confession is derived from physical violence or threats of violence against an accused; but it may also arise where

the operation preys upon the suspect's vulnerabilities -- such as mental health problems, substance addictions, or youth -- and thus creates trial unfairness. In this context, the exclusion of evidence will be justified where police have perpetrated misconduct that offends the community's sense of fair play and decency. (See paras. 116─8.) [9] The majority acknowledged that in practice, the two‑pronged approach would necessitate the holding of a voir dire in which the Crown would bear the burden of establishing that on balance, the probative value of the confession outweighs its prejudicial effect. The defence would bear the onus of proving abuse of process. (At para. 89.) [10] Under the heading "How Is Probative Value Assessed?", the majority noted that some weighing of the evidence by the trial judge will be necessary to assess its reliability. In carrying out this analysis, the judge is deciding only the threshold question of "whether the evidence is worthy of being heard by the jury" and not the ultimate question of whether the evidence should be accepted and acted upon by the trier of fact. The majority observed that a parallel may be drawn between assessing the reliability of a Mr. Big confession and assessing "threshold reliability" under the principled approach to the hearsay rule. In the Mr. Big context, however, the accused is not a compellable witness, so that there

is no opportunity to cross‑examine the speaker. In those situations, the relevant factors are the circumstances in which the statement was made and whether any confirmatory evidence exists. Moldaver J. explained: Confessions derive their persuasive force from the fact that they are against the accused's self-interest. People do not normally confess to crimes they have not committed (Hodgson, at para. 60). But the circumstances in which Mr. Big confessions are elicited can undermine that supposition. Thus, the first step in assessing the reliability of a Mr. Big confession is to examine those circumstances and assess the extent to which they call into question the reliability of the confession. 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. Special note should be taken of the mental health and age of the accused. In the United States, where empirical data on false confessions is more plentiful, researchers have found that those with mental illnesses or disabilities, and youth,

present a much greater risk of falsely confessing (Garrett, at p. 1064). A confession arising from a Mr. Big operation that comes from a young person or someone suffering from a mental illness or disability will raise greater reliability concerns. [At paras. 102-3.] These factors, Moldaver J. stated, were not to be considered mechanically; rather judges must examine all the circumstances surrounding the making of the confession and "assess whether and to what extent the reliability of the confession is called into doubt." [11] Next, the trial judge must look to the confession itself for "markers of reliability". Again in the words of the Hart majority: 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. [At para. 105; emphasis added.] [12] Turning next to the weighing of prejudice, Moldaver J. stated that trial judges must go through the "familiar exercise" of considering both "moral prejudice" and "reasoning prejudice". The former arises where the accused must argue to the jury that he was lying to Mr. Big when he boasted about committing a serious crime because he wanted to join Mr. Big's organization. Reasoning prejudice -- the risk that the jury's attention will be distracted away from the charges before the court -- can also pose a problem in the conduct of the trial. Of course, the risk of prejudice may sometimes be mitigated by excluding certain evidence that is not essential to the narrative, or by providing limiting instructions to the jury. [13] The majority acknowledged that the trial judge's task of deciding whether the Crown has met the onus of establishing that the probative value of the statement outweighs its prejudicial effect is "not an exact science" and that much attention will generally be paid to assessing the reliability of the confession in question. But trial judges routinely weigh the probative value of evidence as against its prejudicial effect in different contexts and, the majority said, are well positioned to do the same in the Mr. Big context. Given that they are in the best position to carry out this

assessment, the trial judge's decision to admit or exclude a Mr. Big confession is to be afforded deference on appeal. (At para. 110.) [14] In Hart itself, the Supreme Court agreed with the court of appeal below that the respondent's confessions that he had murdered his two daughters and his re-enactment of the crime for the benefit of the undercover officer had to be excluded. The accused had developed a deep commitment to the criminal organization of Mr. Big such that he was confronted with the "stark choice" of confessing or being deemed a liar "by the man in charge of the organization he so desperately wanted to join." (At para. 140.) These circumstances cast serious doubt on the reliability of his confessions, which contained various inconsistencies; and there was a complete lack of confirmatory evidence. There was also obvious potential for prejudice: in order to gain the approval of a group of criminals, the accused had repeatedly participated in what he thought were criminal acts and described himself as having "no limits" in what he would do for the organization, and had "bragged" about killing his three‑year‑old daughters. The majority in Hart concluded that the limited probative value of the statements was clearly outweighed by their prejudicial effect. The confessions were "not worth the risk they pose". (At para. 146.) [15] Given this conclusion, it was not

necessary for the majority to reach a conclusion on the second prong of abuse of process. Since that doctrine is not relied upon by Mr. Moir in this case, I will not discuss it further. [16] Having set the stage for the matters raised by Mr. Moir on this appeal, I turn to the trial judge's reasons given on voir dire No. 1 (indexed as 2016 BCSC 1720), concerning the admissibility of the statements made by him to Mr. Big. The appeal is focused solely on the voir dire ruling; no challenge is made to the judge's charge to the jury. The Voir Dire in this Case [17] The trial judge's ruling is 110 pages long and followed the legal framework established in Hart. The trial judge began by setting out the basic components of the new approach, and then referred to some more recent cases that show "some trends in the admissibility analysis." (At para. 28.) She noted inter alia R. v. Johnston 2016 BCCA 3, lve to app. ref'd [2016] S.C.C.A. No. 176, in which the fact the accused might have learned of the 'holdback' evidence from another was said not to diminish its "guarantee" of reliability at the threshold stage. (At para. 70.) As well, the judge cited R. v. Randle 2016 BCCA 125 for the proposition that if the confession is sufficiently detailed, its "content and context" may "speak to reliability even where there is no independently objective confirmatory evidence." [18] Randle was also of

interest to the trial judge in the case at bar because this court had made a distinction between coercive and non-coercive behaviour on the part of police. In the words of Willcock J.A. for the Court: the conduct of the police was intended to elicit disclosure of violent conduct on the accused's part but not to threaten him. There is considerable evidence to the effect that the accused was led to believe non-disclosure would lead to the accused's exclusion from the gang but not to violence. [At para. 89 of Randle; emphasis added.] Similarly, in R v. Campeau, 2015 ABCA 210, lve to app. ref'd [2016] SCCA No. 76, the Alberta Court of Appeal suggested that a "truth verification strategy" in the Mr. Big operation might add to the reliability of a suspect's confession. In the judge's words, "[t]hat is, 'we can help cover this up if we know what happened' scenario, as opposed to a 'strategy which might induce false bragging (are you tough enough for organization)'". (At para. 36.) This point has resonance in the case at bar as well. Factual Background [19] The trial judge began her narrative of the "background investigation" at para. 72 of her reasons, beginning in April 2006, with the discovery by hikers of what looked like a burial site. It was located off the Coquihalla Highway, approximately 19 km east of Hope. Police were called and forensic investigators carefully excavated the

site, where they found a female body in an advanced state of decomposition. It was later identified, from dental records, as the body of Ms. Acorn. [20] She was lying on her right side in a fetal position. Tree roots had been cut away and there were large rocks lying on top of the left side of the body, head and torso. There was no jewelry or clothing on the body or in the area. One particularly heavy rock was on top of the left side of the body, touching the left side of the head. The skull was crushed over the left eye socket. Unfortunately, none of the rocks was suitable for fingerprinting. Two pieces of duct tape were discovered nearby, but it had deteriorated and could not be fingerprinted. Because of the advanced state of decomposition, no DNA or tissue could be detected. [21] A forensic pathologist, Dr. Charlesworth, testified at trial that in his opinion, the body had been in the ground since some time in the fall of 2005. The judge recounted: Dr. Charlesworth found the left side of the frontal part of the skull was fractured and depressed consistent with head trauma that would result in death. It was a large area of fracturing, over the left eye, temple, and centre of the left side of the face, approximately a seven centimetre by seven centimetre area. It would have taken a large forceful impact to create that much damage, and would have required a large, broad, heavy

object consistent with a rock. [At para. 89.] Dr. Charlesworth testified at trial that the largest skull fracture could have caused death, but also said he could not rule out asphyxiation as a possible cause. [22] Chelsey Acorn was a 14-year-old girl who had led a troubled life in and out of foster homes and provincial care homes since 2003. She had associated with several men and according to some reports, had sold sexual services in order to support her drug habit. Near the time of her disappearance, several witnesses "associated" her with Mr. Moir and his father Mr. West, "but more with Mr. West." She had visited and stayed with him at his rented basement suite in Surrey where she had been seen in June 2005 and perhaps as late as September 2005. She had told someone she had a "sugar daddy" named "Blue". Mr. West went by that name. The trial judge noted that police had also been led to suspect that: c) Ms. Acorn likely had sexual relations with Mr. Moir, staying in the same room with him overnight, and she may have been considered his girlfriend as late as June 2005. d) Mr. West had a history of sexual relations and associations with young females and a history of alleged sexual assaults of young females. One witness suggested she may have been given a drug while visiting Mr. West with Ms. Acorn, as she passed out and woke up naked the next day. e) Mr. West was controlling

with females and dishonest. f) Mr. Moir had been accused three times of violent behaviour with young females aged 13, 15, and 17 respectively, in 2003 and 2004 (Mr. Moir would have been around 17, 18, or 19 years old). One of these instances was apparently consensual sex but the girl's parents had made a complaint. Another one of these resulted in charges for which Mr. Moir was acquitted. g) Mr. West may have been making pornography including with surreptitious cameras. h) Mr. West claimed to help troubled youth or that he was involved with "Child Find." i) In late June or early July 2005, Ms. Acorn told a witness that she was planning on moving with her "sugar daddy" to the interior or maybe the Edmonton area. [At para. 100.] [23] There was also information that suggested Mr. Moir was working in "nefarious ways" with his father, contacting young girls and introducing them to Mr. West for sex. Telephone records indicated that Ms. Acorn's phone had made and received various calls to and from Mr. West's phone and a phone that Mr. Moir had been using. Given this and other information, the police put Mr. West under surveillance in early June 2006. They became aware of a teenaged girl, Ms. Peter, who was thought to be a drug addict and prostitute, who often travelled with Mr. West in his truck. (He drove a freight truck to make a living beginning in the fall of 2005.) She described

Mr. West as the "father she never had." In an interview with police concerning Ms. Peter, Mr. West claimed he had been helping her out and helped out kids who had problems in their lives. (At para. 112.) He later said Ms. Peter was "going out" with Mr. Moir. The judge continued: The fact that Mr. Moir had apparently had sexual relations with Ms. Acorn, a 14-year-old, as did his father, Mr. West, was sinister in and of itself but perhaps more so in light of the historic complaint by K.S. and in light of Mr. Moir's introduction of Ms. Peter to Mr. West. [At para. 114.] [24] Mr. West had a lengthy criminal record and was facing a charge of sexual assault; Mr. Moir had no criminal record. [25] In June 2006, police investigators decided to conduct undercover investigations targeting Mr. West and Mr. Moir. At this time, they considered Mr. West a suspect and Mr. Moir only a "person of interest", partly because the two seemed to work "as a team in child exploitation activities." The police decided to target Mr. Moir first, since he seemed more "accessible" than his father, who was frequently out of the province. (At para. 135.) They hoped to get information from Mr. Moir and to use him to figure out how to 'get to' Mr. West. By this time, Mr. Moir and his 26-year-old girlfriend had moved from Abbotsford to Whistler and were living out of a van. (His girlfriend, Ms. White, later

married him and was thereafter referred to by the trial judge as Ms. Moir.) Mr. Moir was unemployed and did not have a valid driver's licence. He worked sporadically in construction jobs. The Undercover Operation [26] The judge provided an overview of the police undercover operation beginning at para. 136 of her reasons. The operation was obviously carried out with a view to minimizing some of the features that have concerned the courts in the past about Mr. Big investigations. As will be seen, the operation did not involve the payment of large sums of money to Mr. Moir; nor did he become financially dependent on the purported criminal organization. He was also told that if he did not want to continue working with the organization, he could leave at any time. [27] The operation commenced with an "exploratory" phase in which a relationship was established between Mr. Moir and "Primary" (i.e., the primary undercover officer involved in bringing about the meeting with Mr. Big). At one point, the conversation was steered around to Mr. Moir's father. Mr. Moir told Primary that his father was being investigated for some "heavy shit" in which Mr. West had involved him. This was part of the reason Mr. Moir had moved to Whistler. When Primary asked what would happen if his father found him, Mr. Moir said his father would probably "off" him. (At para. 162.) In another conversation, Mr.

Moir told Primary that his father got him involved in a "carry and bury". The father had showed up is at his place one time with a body and needed help in burying it, and "it was still alive". Mr. West told his son it was a contract hit and that he was being paid $18,000. He offered Mr. Moir $15,000 to help him, but never actually paid him the money. Instead his father gave him the use of a Jeep for a weekend, which Mr. Moir accidentally smashed up. [28] Mr. Moir told Primary he was interested in getting a job as a "cleaner", which the judge took to mean as a 'hitman'. Primary said such jobs were "not just given out" and a lot of trust would have to be developed first. The judge continued: On the same occasion, Mr. Moir told Primary that Ms. Moir had information on Mr. Moir that could put Mr. Moir away for the rest of his life. Primary took that to mean information about the "carry and bury" he had described the night before. Later on the ferry ride, Primary told Mr. Moir not to worry about Ms. Moir saying anything to the police and, without being specific, told him he did not intend on "whacking" Ms. Moir but that he could make sure everything was dealt with. On the ferry ride, Mr. Moir was sick and told Primary that sometimes he has a bad reaction to alcohol. The night before when with Primary he had half a beer and two ounces of Baileys liqueur. Primary told Mr. Moir he saw

a future for Mr. Moir with the organization, but asked that he never lie to him and told Mr. Moir that in turn he, Primary, would never lie to Mr. Moir. Primary repeated the theme that the organization adheres to of "honesty, dependability, and loyalty". Primary also told Mr. Moir that if he could not follow those rules he was free to go; they could just shake hands and part ways. [At paras. 168-9.] [29] In the second stage, "credibility‑building", Mr. Moir was given to understand that he could make more money by working with Mr. Big and the organization, but again, a necessary quality was honesty, the others being dependability and loyalty. Mr. Moir was given a number of different tasks for which he was paid in cash over the next few months. Primary repeated the idea that Mr. Moir could refuse to do a job and even walk away from the organization without any problem. On occasion, the suspect was given money for "expenses" in excess of his actual expenses, was permitted to use hotel rooms that were not required after the scenarios, and he was treated to many restaurant meals. Near the end of this phase, Mr. Moir was led to believe that a 'big score' was coming up, but that it might be jeopardized by police surveillance, which a "Cameo" had spotted. Interview with Mr. Big [30] On November 25, 2006, Mr. Moir met "the Boss", or "Mr. Big". Primary made sure that Mr. Moir understood

he had to tell the truth to the Boss, as the Boss had a way of knowing when someone was lying. Mr. Moir agreed he would tell him the truth. He understood the organization was concerned about the police surveillance. [31] The interview with Mr. Big was described by the trial judge at paras. 185-217 of her reasons and I do not intend to rehearse her narrative here. It is lengthy and detailed and in my view, is an accurate reflection of the videotaped version which was in evidence. [32] At the start, Mr. Big set the scene by informing Mr. Moir that he had learned the "heat" was not on the criminal organization but on Mr. Moir himself. This meant the organization could go ahead with the "big score" being planned. Mr. Big presented as reluctant to help Mr. Moir, but as also open to changing his mind if Mr. Moir was "worth saving". "The Boss" emphasized that he wanted to assess whether Mr. Moir was honest and trustworthy so that he could determine whether Mr. Moir had a future with him and the organization. (At para. 189.) He gave the impression he had ways of "fixing" police investigations and said he was expecting information from "Fred" to find out what the police knew. He said the police were waiting for some DNA samples to "come back", which would take a month or so. The trial judge continued: Prior to asking Mr. Moir to tell him what happened, the Boss told him he knew what Mr.

Moir had told Primary but tried to give him an opportunity to change that story, suggesting Primary "might not have it quite right". This gave Mr. Moir room, if he needed it, to deviate from any earlier story he had told Primary by allowing for the possibility that Primary might have gotten some of the details wrong. The Boss told Mr. Moir he knew Mr. Moir had said something about a hit and if that's all it was then there probably would not be any heat on him. He also told Mr. Moir he knew it was a young girl and he knew Mr. Moir's "old man" was involved too. He told Mr. Moir to tell him the truth -- to tell him what Mr. Moir did and what Mr. Moir's old man did. [At paras. 192-3.] [33] Mr. Moir then made the following statement: Mr. Moir: Uh, there was a a thing that my Dad was talking about and uh, it could have made me some money he said. So he was going to uh he was going to pay me some money for this this uh, hit on this girl. And uh, so we went along with it and uh, drove out somewhere. And of course she was a girl and we were having sex with her and all kinds of things on the way out there. And uh and uh, then he uh, he dug a hole (indecipherable) somewhere and we uh ... he uh he came upon her and took her and when she uh, hit the ground she still moved kinda. So uh BOSS: Mm hmm. Mr. Moir: I choked her and then she was done. So I uh, did what my Dad said and put her in

the hole and we buried it and left. When Mr. Moir described choking "the girl," he put his hands out in a gesture consistent with what he was describing. [At paras. 194-95.] [34] In response to some follow-up questions, Mr. Moir said that once the body had been placed in the grave, his father told him to grab a big rock, which he did, throwing it on her "so I crushed her head" with the rock. He said she was not alive at that time. He said her blood would be on the rock, and described how the two men covered up the body first with a lot of rocks and then with dirt "over top." They had even pulled a small tree out of the ground and planted it. He said the grave was maybe 2½ to 3 feet deep. [35] Further on in the interview, Mr. Moir told Mr. Big that his father had told him he had "a job" (which the trial judge inferred meant a paid 'hit') and had promised to pay him $15,000. They planned it that day ─ i.e., the day before the killing. Mr. Moir stated: he came and he just he gave me the idea he told me that uh he has this thing to do and he's gonna go and do it and that it could pay good so I said well I'm in I guess. [Emphasis added.] Ms. Acorn was with Mr. West when Mr. West picked him up the next day in his car and they proceeded out onto the highway. (At para. 201.) She was in the back seat and according to Mr. Moir, the father and son took turns switching seats so each could

have sex with her as they drove to the site. They did not use condoms. [36] When the boss asked why Mr. West would have made up the story about a hit, Mr. Moir replied that he would not have assisted "unless...". The following question and answer followed: BOSS: So you mean, if he's just gonna kill her to kill her, you wouldn't do it then? Mr. Moir: Well, hell no. No. I thought there was some money in it for me. [37] Mr. Moir gave further details of the actual killing as follows: BOSS: [Were] you there when uh this started and your old man started choking her, [were] you there. Mr. Moir: Yeah. BOSS: You were watching. Mr. Moir: Hmm, she was right here in front of me, he was right there behind her. BOSS: So he choked her from behind. Mr. Moir: Yeah BOSS: And then I guess she what, she passed out or whatever. Mr. Moir: Yeah. BOSS: When did you figure out she wasn't dead Mr. Moir: Uh I think she was but uh she hit the ground and then there was a movement, I think maybe it might have just been air. BOSS: Mm hmm Mr. Moir: Releasing or something. So I kinda panicked I just when (makes a noise) for a minute. BOSS: So you did grab her though eh. Mr. Moir: Yeah. Mr. Moir again used hand gestures when describing how he grabbed the girl. Just as he did at the start of the interview before the confession, the Boss repeated the point that he did not want Mr. Moir to overstate his part

versus the part his father played in what happened. The Boss said: No and you know what like I said I don't want you exaggerate your part in this, I just need to know what you did cause I don't give a fuck about your old man. Mr. Moir confirmed that he was telling the truth, and provided more details of the killing. Mr. Moir described his role in choking the girl a third time in the interview: BOSS: Yeah. Okay, so you guys are digging this, she's in the tent. Um, so, so where's, where's uh, where's it all start? Where'd your dad choke her? Mr. Moir: Uh, in the tent. BOSS: In the tent? Mr. Moir: We uh, yeah, we he'd uh, come outside the tent and he told me to go look around and make sure nobody's around. BOSS: Yeah. Mr. Moir: So BOSS: Okay. Mr. Moir: I took a walk quite aways, you know, around everywhere. BOSS: Mmhm Mr. Moir: I'd uh, come back and she was just sitting there in the tent, so he told me, okay, this is what we're gonna do, you sit down and I'll go behind her. And I was like, okay, sure. So uh, he did. Her eyes rolled and she hit the floor and BOSS: How did he choke her? Mr. Moir: Um BOSS: Oh he used that? Mr. Moir: Yeah BOSS: That's the fuckin sleeper or whatever you call that thing, right? Mr. Moir: Yeah. So if there's any hand marks or anything, they'd be mine, I'm guessing, right, I don't think BOSS: Okay. So he does that and then what happens? Mr. Moir: And uh,

he, he was like for I guess two minutes, maybe more. BOSS: Mmhm. Mr. Moir: And then he uh, dropped her down. And when he had dropped her down she flopped down but moved a little, like a little or something. And uh, I would just, I just kinda jumped on her, I was like, whoa, you know, stay down. And uh - BOSS: Then you choked her from the front? Mr. Moir: Yeah. For just a couple of seconds kinda thing like, you know, and then uh, and then he said, okay, wrap a blanket around her and pick her up. So I did and threw her over my shoulder, and threw her down into the hole. In the above passage, Mr. Moir used gestures to show how his father choked the girl with his arms instead of his hands, explaining that therefore any "hand marks" are likely to be Mr. Moir's. [At paras. 205-10; emphasis added.] [38] Mr. Moir named the dead girl as Chelsey Acorn, and said she was not clothed or wearing jewelry when buried -- a fact that was part of the "holdback evidence" in the case. At para. 212, the judge listed additional details provided by Mr. Moir as to how the killing had occurred and how Mr. Moir and Mr. West had disposed of her clothes in a dumpster. He also said he had cut out a newspaper article in which the girl's mother pleaded for the killer to come forward after Ms. Acorn's disappearance. Mr. Moir had put the article in his safe at his mother's house. Mr. Big said Mr. Moir should go

with Primary and retrieve the article. [39] The trial judge observed at para. 213 that Mr. Moir's demeanour was "nervous" initially in the meeting, but that he became more comfortable as the conversation went on, "even laughing at one point when the Boss borrowed Fred's eyeglasses. Mr. Moir stated 'I can see fine, but I love the look of glasses on me'." (At para. 213.) [40] At the end of the interview, Mr. Moir was told he would have to "sit out" the "big score" because it was too risky to involve him until the Boss had figured out what to do. In the meantime, he would be looked after and had a "bright future" with the organization. The Boss told him to stay away from his father and not even talk to him. In response to his question, the Boss assured him that there was "no heat" on his phone. Mr. Moir left with Primary, whom he thanked for supporting him. He told Primary he had told the Boss the truth and seemed to believe the Boss could indeed help him. He retrieved the news clipping and gave it to Primary. [41] Over the ensuing couple of months (December 2006 - January 2007), the police concentrated their efforts on the investigation of Mr. West. The undercover officers who had previously taken Mr. Moir's phone gave him a new one in the hope that he would not contact his father. Mr. Moir was also given the task of retrieving a suitcase in Toronto and took the train to that

city on December 24, returning on January 2. A few more small "jobs" were given to him, but he also did some legitimate construction work during this period, when he and Ms. Moir stayed at a motel in North Vancouver. Arrest and Trial [42] On March 16, 2007, the police attempted to arrange a meeting between Mr. Moir and Mr. West, which they hoped to record. However, the recording "did not work out" for unexplained reasons and both men were arrested at that time. Mr. Moir received counsel and met with his lawyers. [43] Both men were charged with first degree murder. Notably, the Crown did not charge Mr. Moir with being an accessory to a murder after the fact contrary to s. 240 of the Criminal Code. [44] The two men were tried separately. The trial of Mr. Moir with which we are concerned lasted 52 days, of which voir dire No.1 concerning the admissibility of the statement to Mr. Big occupied 24 days. The Crown was reluctant to acknowledge at trial that if the statement were not admitted, its case against Mr. Moir would collapse, but that would seem to have been the case. Assessing Probative Value Mr. Moir's Personal Circumstances [45] Following the Hart model, the trial judge at para. 227 began a discussion of Mr. Moir's personal circumstances at the time of the investigation, which, she said, were relevant both to the probative value of his statement to the Boss, and the question

of abuse of process. At the beginning of the investigation, the police knew Mr. Moir was young, employed sporadically, had a girlfriend, and was living in a van. They had no evidence of any mental illness or other weakness. (At para. 228.) They soon learned that he was economically vulnerable: in the trial judge's words, "it would also be fair to conclude this meant Mr. Moir was economically 'ripe for the picking', and might be induced to take part in the fictitious criminal organization if you could make money from it." During the investigation, he continued to see friends and family (with the exception of Mr. West) and his wife's family. Regarding Mr. West, the trial judge observed: Mr. Moir indicated during the undercover investigation that he did not want to have contact with his father, Mr. West, and even suggested that he was scared of him. He indicated that he went to Whistler to avoid running into his father. This information suited investigators who did not want Mr. Moir talking to his father about his involvement with the fictitious criminal organization. They did not attempt to threaten or manipulate Mr. Moir based on his desire to be kept separate from his father or based on any fear of his father. Ms. Moir's evidence on the voir dire was that before they moved to Whistler she had witnessed Mr. Moir's father hit and insult him, argue with him, and order him around.

She testified that what led them to move to Whistler was a telephone call that Mr. Moir had with his father, in which Mr. Moir was screaming, after which Mr. Moir appeared panicky and they packed up as much as they could in less than half an hour and left their basement suite in Abbotsford to go to Whistler. While the undercover investigators did take steps to try to avoid Mr. Moir talking to his father, the evidence does not suggest that the steps taken by the police to prevent contact between Mr. Moir and his father, including taking his phone, giving him a new one, and sending him on a trip over the 2006 Christmas holiday period, left Mr. Moir feeling isolated or vulnerable. He had already chosen to distance himself from his father, and he still had his relationship with his girlfriend, Ms. Moir, and his mother and stepfather. There is no evidence he was disappointed or felt isolated because of the train trip. [At paras. 235-7.] [46] There is no doubt that Mr. Moir's economic situation was not good, especially after he and Ms. Moir moved to Whistler, where accommodation was very expensive. For the most part, the couple stayed in the van provided by Ms. Moir's family, although she testified that she did not equate their living arrangements to being homeless or living on the street. She considered that they might have been able to afford to rent had they not been spending

their money on restaurants, her cigarettes, and his marijuana. (At para. 250.) The judge observed that knowing of Mr. Moir's desire to have a better place to live, Primary manipulated him with "dreams of one day having a better place to live and with several gifts of paid hotel rooms." (At para. 254.) [47] With respect to his employment, there was some evidence that Mr. Moir turned down some legitimate work as a painter or labourer in order to "work" with Primary. Although Mr. Moir told Primary that in the past he had sold cocaine in Vancouver, Primary actively discouraged the selling and taking of illicit drugs. The trial judge found that the undercover operation had not interrupted Mr. Moir's career path or diminished his future employment opportunities. On the other hand, she inferred that Mr. Moir was "perhaps more susceptible to the inducement of easy money offered by the undercover operators, in contrast to a person with more lucrative and legitimate career prospects." (At para. 279.) [48] As might have been expected of a young man would who was relatively uneducated and unsophisticated, Mr. Moir appeared to enjoy the new experiences he had in the course of the police operation. He told his father in the sheriff's van that he had enjoyed the trip to Toronto and that he had "lived the life, that's for sure". During the course of the investigation, Mr. Moir said he had an

attention deficit disorder and that he did not read very well. Nevertheless, he was able to follow instructions given to him and to express himself and follow conversation normally. The judge noted that he was able to make decisions for himself as an adult, citing his decision to move from Abbotsford to Whistler; and that he was able to find work in the construction industry. [49] When he was first questioned by police, Mr. Moir exercised his right to silence throughout the interview, as advised by his lawyer. (At para. 296.) He was not afraid to contradict the officers questioning him and stood his ground in refusing to talk about the murder of Ms. Acorn. He was also quick to distance himself from what he had said in the Mr. Big interview, although he described Primary as a "great guy". Overall, the trial judge commented, Mr. Moir did not leave the impression that he was intellectually vulnerable to suggestion or emotional pressure, or unable to follow a conversation or understand social or emotional cues. (At para. 302.) Intellectual Ability [50] The defence called expert evidence from a psychologist, Dr. Reimer, who administered certain intelligence and memory tests and assessed Mr. Moir's intellectual abilities. The trial judge ruled this evidence admissible in separate reasons indexed as 2016 BCSC 386. As she noted at para. 305 of voir dire No. 1, Dr. Reimer found that Mr.

Moir's intellectual abilities were in the "mildly impaired to borderline range"; his academic skills were "variable"; and his math and reading skills were in the low to very low range. On the other hand, his ability to converse and understand words spoken to him was close to a grade 12 level. [51] The trial judge observed that Dr. Reimer's opinion evidence was limited somewhat by the fact that the psychologist had not had as much opportunity to observe Mr. Moir interacting with others as the judge had; and that his ability to read, write and do math was "not particularly important" in the context of the Mr. Big investigation. However, she concluded: it is important to weigh into the mix the fact that Mr. Moir's limited academic ability likely increased the significance of the inducements offered to him. An inference can be drawn that Mr. Moir may have had limited career options. The ease of making money with the fictitious criminal organization may have been all the more powerful an inducement to him compared to someone with more employment options. [At para. 311.] [52] There was also evidence from Ms. Moir as to her husband's abilities, but the judge noted that she was at times evasive and showed a strong loyalty to her husband that called her evidence into question. (See paras. 312-28.) Given the "reliability and credibility issues" of Ms. Moir's evidence, the judge indicated

that she had not given any weight to her evidence "as to the substance of what Mr. Moir told her regarding how the death of Ms. Acorn occurred" for purposes of determining the threshold reliability of his confession to the Boss. (At para. 454.) [53] Under the heading "Health", the trial judge noted that aside from occasional moodiness, there was no evidence to suggest Mr. Moir suffered from any mental illness or vulnerability. He had a low tolerance to alcohol, which the undercover officers did not exploit. Overall, the trial judge concluded, he had the intellect and comprehension to understand what was portrayed to him as going on in the operation and that it had not involved him in any real crime or behaviour that risked his safety or that of the public. [54] The trial judge then turned to analyze the factors relevant to the reliability of the confession evidence. I will briefly summarize her comments concerning each factor. "Threats of Violence" [55] The trial judge reviewed some of the "scenarios" that had been acted out in front of Mr. Moir by undercover police in the course of the investigation, noting that some of the scenarios had suggested the "gang" was capable of violence. One involved the firing of someone who had lied to the organization about being arrested for impaired driving while carrying out a delivery for the organization. Mr. Moir initially suggested the

employee should be "erased", but Primary responded (somewhat ambiguously) that "We're not going to erase anyone just anyone just yet -- we have to do our checks first." In Mr. Moir's presence, the employee's phone was taken and thrown away, and the employee was pushed by Primary and told to "fuck off". The judge noted that after this scenario, Primary had tried to emphasize to Mr. Moir that the fired employee was now worse off because he would have to find work elsewhere. The judge continued: Primary tried to create the impression that the worst that would happen to a fired employee was that he would not work for the organization, not that he would be killed. . . . The defence suggests this scenario was capable of implying to Mr. Moir that something worse happened to the fired employee than he saw and that the organization needed to give Mr. Moir an alibi. I accept that this was a possible inference; however there were other possible inferences. We do not know what Mr. Moir thought of the scenario as he did not give evidence. [At paras. 353, 355.] [56] Overall, the trial judge said, the scenarios were capable of conveying to Mr. Moir that power and intimidation were important aspects of being a "successful gangster". At the same time, there was also an "aura of brotherhood and support" (at para. 362), and there was no express suggestion that he might be treated violently if he

tried to leave the organization or did not follow its rules, including being honest in his dealings with its members. (At paras. 343-4.) The judge ruled out the notion that Mr. Moir had been effectively coerced into making the statement he had to Mr. Big: I do not conclude that the violent aspects of the Mr. Big operation were coercive of a confession from Mr. Moir. At worst the intimidation expressed by the gang members was through threats to others, and not direct violence. Also, Mr. Moir was not led to believe that random violence was a necessary part of being a gangster; but only that if it happened, the organization had connections and the ability to cover it up. [At para. 363; emphasis added.] Inducements [57] It was clear Mr. Moir had received various material inducements for his "work" and believed that if he was able to take part in the "big score", he stood to receive $27,000 plus a $4000 bonus. The defence argued that these inducements were "powerful and coercive motivators" for him to lie and exaggerate, analogizing Mr. Moir's situation to that of the respondent in Hart. Indeed, Mr. Moir had told Primary some "tall tales" about fast driving and dealing in drugs and stolen credit cards, and about his father. (See paras. 400, 423.) According to the defence, Mr. Moir would have felt bound to exaggerate in his interview with Mr. Big as well. [58] The trial judge pointed

out, however, that the Boss had not portrayed himself as knowing that Mr. Moir killed the girl, nor did he confront Mr. Moir with a scenario implicating him in the killing. Mr. Big also made it clear that he did not care what Mr. Moir had told Primary; he only wanted to know the truth. The trial judge distinguished Hart (see paras. 139-40) on this basis, observing: Again, here, the Boss did not confront Mr. Moir with a scenario implicating him in the killing, but left it up to Mr. Moir to describe his and his father's degree of involvement in the death. The only pressure on Mr. Moir was to tell the Boss why the police might be interested in him. This could well have been explained as due to his association with his father and Ms. Acorn and his assistance in the burial, if that was all Mr. Moir had done. If Mr. Moir's father had been the only person involved in the murder, the structure of the interview allowed Mr. Moir room to say that, without pressure to say that Mr. Moir was in fact involved in the planning and execution of the murder. I conclude that Mr. Moir's will was not overcome by inducements. I find on the voir dire evidence that Mr. Moir's confession to being involved in the actual murder was not coerced but was a voluntary choice. [At paras. 377-8; emphasis added.] 'Markers' of Reliability [59] The trial judge recognized that in light of Mr. Moir's young age,

sporadic employment, lack of proper accommodation, unsophistication and lower than average intellect in some ways, his statements to Mr. Big required "enhanced scrutiny". As mentioned earlier, the majority in Hart had suggested that one indicator of reliability was the level of detail contained in the confession, whether it leads to the discovery of additional evidence, and whether it identified any elements of the crime that had not been made public. (At para. 105, noted by the trial judge at para. 381 of her reasons.) Mr. Moir's confession to Mr. Big identified all four items of "holdback" evidence -- Ms. Acorn's body was unclothed; large rocks had been placed over the body including one near the head; the skull was crushed over the left eye socket; and many tree roots had to be cut away to form the grave. As well, Mr. Moir correctly told Mr. Big that she wore no jewelry and there were no wounds that would have been consistent with the use of a knife or gun. The trial judge recounted these facts, but did not comment on how they factored into her analysis of reliability. [60] With respect to consistency, the judge found that the confession was internally consistent. In her words: Mr. Moir repeated several times in the course of the Mr. Big Interview a single version of the killing: about how his father asked him to take part in a "hit" the day before and he agreed because he

was promised money; they dug the hole while the girl was still alive in the tent; his father was sitting behind her when he choked her with Mr. Moir in front of her; and that she fell down and moved before Mr. Moir jumped in and choked her from the front. Mr. Moir used hand gestures to describe his role in choking Ms. Acorn, in throwing the rock on her head, and in describing the size of the rock and the size of the grave. Mr. Moir did not appear distressed during his interview with the Boss. His demeanour, which was controlled but expressive, as well as his repeated but consistent descriptions of the killing, add to the weight of the confession as being a reliable recitation from memory as opposed to a fictionalized account. [At paras. 387-9; emphasis added.] [61] At para. 393, the trial judge recalled the conversation between Mr. Moir and Mr. West after their arrest on March 19, 2007. Riding in the sheriff's van together, they acknowledged they had been "sucked in" by the undercover operations and that the game played by the police had "worked well". (Each had been shown the video of the other's Mr. Big statement.) The trial judge noted that Mr. Moir did not assert when talking to his father that what he had confessed to Mr. Big had been a lie or an exaggeration. When Mr. West warned Mr. Moir to 'watch himself' in prison, the following exchange took place: Mr. West: Ah I'm

sure there's a lot of people that don't like people that kill fourteen year old girls. Mr. Moir: Yeah, but they're not gonna know that when we go in. The judge noted that "Mr. Moir's reply was not that he did not murder a 14-year-old girl, just that others in prison would not know that when he went into the facility." (At para. 395.) Indicators of Unreliability [62] Boasting? The defence contended that there were strong indicators of unreliability in Mr. Moir's confession to Mr. Big. Counsel cited various conversations with Primary in which Mr. Moir had exhibited a tendency to lie and to inflate his own connection to criminality. He told Primary about some "larger than life" exploits of both himself and his father. As the trial judge summarized the defence argument: This may have been to make him seem like a more seasoned criminal and thus be seen as a more valuable member of the criminal organization to which he clearly wanted to belong. The defence submits this means he could have been similarly boasting during the Mr. Big Interview, by taking credit for something his father did, and making the confession inherently unreliable. [At para. 397.] [63] The defence recalled that in the course of "scenario 8", Mr. Moir had told Primary that his father had "showed up at his place one time with a body and needed help burying it, and that it was still alive." As mentioned earlier, Mr.

Moir's father had said this was a contract hit for which he was being paid $18,000, and offered to pay $15,000 to his son. It was on the day after this scenario that Mr. Moir told Primary he hoped he could get a job with the criminal organization as a "cleaner". At para. 400, the trial judge set out other things Mr. Moir told Primary about his father, including that Mr. West had killed 24 people. The 24th person, referred to as a male by Mr. Moir, had been choked by the father from behind. When "he" came to, Mr. Moir had grabbed the person by the throat and "finished him and they then buried him." The body had been discovered "five months ago" and that was the reason Mr. Moir had left Abbotsford. (At para 400(e).) [64] The trial judge acknowledged at para. 401 that Mr. Moir's relationship with his father was a "strange" one, on any theory of the facts. It was possible Mr. West had told his son "tall tales" about himself and that the son had believed him. It was also possible, the trial judge said, that Mr. West told Mr. Moir he was being paid $18,000 for the job and would pay the son $15,000 to take part. The promise of $15,000 was consistent with what he told the Boss in the later interview, although the $18,000 was not mentioned. [65] Although counsel for Mr. Moir argued that the evidence suggested he was bragging in his conversations with Primary and in the Mr. Big

interview, the judge found that "this is not an obvious inference nor the only available inference." (At para. 412.) Her reasoning on this point is sufficiently important to warrant reproducing it here: When Mr. Moir described the stories about his father to Primary, it appeared that he wanted to distance and distinguish himself from his father, implying that he is not as stupid as his father. Primary scoffed at some of what Mr. Moir told him. Perhaps this made him wonder if what his father told him was true, because in the Mr. Big Interview Mr. Moir began to express some doubt. He told the Boss that his father told him he had killed 24 people and that he used to be a professional hit man. Mr. Moir suggested to the Boss that he did not believe him but that maybe his father killed one or two others, maybe another little girl. He felt this was possible because his father was so natural about wanting to go and kill this time. This latter remark is consistent with Mr. Moir being in on the planning of the killing of Ms. Acorn. Also, a regular theme of Mr. Moir's description of his father's exploits was that Mr. Moir thought his father was crazy and it was unsafe to be near him. For example, Mr. Moir told the Boss that he did not know his father when he was young and that when he came back into his life "the whole time I knew him I was scared for my own life basically right". This is

not consistent with Mr. Moir trying to brag about how tough Mr. Moir is, which is contrary to the defence theory that he overstated his role in the murder to look more like a gangster. Mr. Moir did not take all the credit for the murder, or describe what he did in obviously exaggerated ways. He did not describe using any weapon. His version of events was not consistent with someone boasting of his own toughness or trying to enhance his criminality. Further, as already mentioned, Mr. Moir had ample opportunity to say in the Mr. Big Interview that his father did the murder and he had no part in the planning or execution of the murder, just in the burial. He was not led in any way to say he took part in the planning and murder or that he had been offered money to do so. Mr. Moir was told in the interview by the Boss not to take credit for things his father did and to distinguish between the two of them. Mr. Moir was also given openings in the Mr. Big Interview to blame his father. Despite this he clearly laid out his own role in the murder. He also suggested to the Boss that he would be fine if the Boss could make his father "take the rap instead of me". If Mr. Moir was falsely boasting, it is difficult to point to a single exaggeration as being inconsistent with known evidence. To the contrary, what Mr. Moir did say about the murder and burial are consistent with the known

physical evidence. [At paras. 404-11; emphasis added.] [66] As well, the judge noted that except for the sex of the deceased, Mr. Moir's earlier description to Primary of his involvement in the murder of his father's 24th victim "sounded very much like" what he told the Boss. The details regarding the newspaper clipping and Mr. Moir's having been given the use of a Jeep by his father were confirmed by other evidence. (See paras. 413-7.) The defence suggested Mr. Moir may have felt, going into the interview, that he had to repeat the story he had told Primary about "finishing off" a murder victim with his father, he would be kicked out of the organization as a liar. However, the trial judge reasoned: That might be one possible explanation, but another explanation would be that Mr. Moir's description of his involvement in the "carry and bury" conversations with Primary evolved as Mr. Moir became closer to Primary and trusted him more. It is possible that Mr. Moir did not yet trust Primary enough to tell him the gender of the victim but that he otherwise told him the truth when he described finishing off the victim and taking the newspaper clipping, which is consistent with what he told the Boss. Mr. Moir said this to the Boss in the interview: Um if I might add Uh for my own safety not knowing uh [Primary] that long it's why I wouldn't have told him. I didn't tell [Primary]

lies... I just didn't tell him the truth... Or the whole everything... I definitely wouldn't lie to him I just wouldn't tell It's not really something you run around talking It's not really something you would tell somebody you just met right. The Boss did not put pressure on Mr. Moir to keep telling the same story he had told Primary, quite the opposite. The Boss let Mr. Moir know in the same passage of the interview that he did not have to be concerned if what he told the Boss was different than what he told Primary, that Primary did not care or he would not have asked the Boss to help him: BOSS: No. You know what it's not really important what you said to [Primary]. As long as what you're telling me is the truth. That's what the important thing is today. . . . While some of the stories told by Mr. Moir to others on social occasions may have been exaggerations or untrue, we do not know. It does not mean that Mr. Moir's confession to the Boss in a different context was therefore necessarily untrue. [At paras. 420-2, 424; emphasis added.] [67] With respect to Mr. Moir's relationship with Ms. Acorn, it is clear he attempted in the interview to distance himself from her, suggesting she was his father's "slut", whereas Mr. Moir had a girlfriend at the time (later his wife). There was evidence from Mr. Dudley, another friend of Mr. Moir, to the effect that Ms. Acorn had spent the

night in Mr. Moir's room when he was living in Mission and that both Mr. West and Mr. Moir had gone into a bedroom with her at a party at Mr. West's home. The defence argued that in lying to Mr. Big about Ms. Acorn, Mr. Moir had been trying to bolster the story that his involvement in the killing was motivated by the fact it was a "contract hit". [68] The trial judge found this to be "speculative" and suggested that another "plausible but also speculative" theory was that Mr. Moir was not proud of having a sexual relationship with a young girl and was reluctant to confess his sexual conduct fully to Mr. Big. The trial judge concluded: He confessed just enough to cover off the possibility that his DNA might be found because he had sex with Ms. Acorn on the day of the murder. The possible reasons for Mr. Moir to minimize his prior knowledge of Ms. Acorn, and his statement to the Boss, do not rise to the level of undermining all that he said to the Boss. [At paras. 472-3; emphasis added.] [69] Holdback Evidence: With respect to the holdback evidence, the defence relied strongly on Mr. Moir's earlier statement to a friend, Mr. Gordon, regarding a "carry and bury" carried out by his father. In counsel's submission, this supported the inference that the reason Mr. Moir was aware of the holdback evidence was that he had helped to bury the body -- not because he had assisted in the

murder of Ms. Acorn. The judge agreed this was "certainly possible" but said it was only one possibility. (At para. 460.) She pointed out that the inducements that were present in his interview with the Boss were not present for his statement to Mr. Gordon: his friend had no ability to help him in dealing with the evidence of the crime, whereas the Boss was thought to be in a position, through connections with the police, to ensure the matter went away. In short, the trial judge said, Mr. Gordon's evidence did not offer the same kind of reinforcing detail as was present in the Mr. Big interview and did not in the judge's view "shake the threshold reliability" of Mr. Moir's later confession; it just offered another less detailed version of events. (At para. 463.) Prejudice [70] After dealing with some other details, the trial judge turned to the question of prejudice. She acknowledged at para. 477 that as the Court stated in Hart, there is prejudice to an accused in allowing in a confession obtained through a Mr. Big investigation. In this case, Mr. Moir's involvement in the fictitious "scenarios" enacted by the police had been non-violent and benign, mostly involving his acting as a deliveryman or conducting surveillance for Primary. However, Mr. Moir had said things in the course of the investigation and in his interview with the Boss that suggested he had been involved in

criminal behaviour in the past and was willing to resort to violence for the gang, including being a 'hitman'. This of course could place the defence in the difficult position described in Hart at para. 106. [71] Nevertheless, the trial judge expressed the view that jurors are capable of understanding that being a liar and a braggart in order to fit in and make money is a different thing than being a murderer. She concluded that with careful jury instructions, and a careful winnowing of the evidence from the undercover operation, the prejudice could be ameliorated. (See para. 73 below.) (In fact, the trial judge excluded much of this evidence in a later ruling described at para. 77 below.) Trial Judge's Conclusions [72] Beginning at para. 484, the trial judge summarized her conclusions concerning the probative value of Mr. Moir's statements to the Boss, as weighed against prejudicial effect. The defence now said it "[took] no issue" with the fact that Mr. Moir had been present when Ms. Acorn was murdered and buried. (See para. 459.) Counsel submitted that Mr. Moir had been vulnerable to the "powerful inducements" offered by the organization and could have falsely enhanced his role from that of only being present at the burial to actually participating in the murder. [73] In the judge's analysis, this argument was met at this threshold stage by the "level of detail and sequence

of events" described by Mr. Moir in the interview. She reasoned: This includes the promise of money from his father that got him involved; he and his father taking Ms. Acorn to a remote site; the taping up her hands with duct tape; the time and effort it took to dig a grave while she was in the tent; his father behind her strangling her; Mr. Moir moving forward to strangle her, showing his hand gesture in the videotaped interview; and Mr. Moir taking the extra step to smash her head with a large rock, again using gestures, which is consistent with wanting to make sure she was dead and not simply with covering her up. These events, combined with Mr. Moir's gestures while describing his role in the killing and burial, make the confession logically consistent and plausible. In contrast, there is no other explanation on the evidence as to how Mr. Moir ended up at the burial site with his father and Ms. Acorn while she was still alive, if Mr. Moir did not know the plan was to kill her. [At paras. 485-6; emphasis added.] [74] More important in my view, the trial judge did not consider the "structure" of the Mr. Big operation to be an inducement for Mr. Moir to lie in his statement to the Boss. While not attaching much weight to the many "entreaties" to Mr. Moir to be honest in the interview, she suggested that the most powerful inducement for Mr. Moir to describe his role in the

actual murder had been the hope that the Boss could 'fix' things for him such that the risk of arrest would fall away. In her words: The scenarios were structured so that Mr. Moir would believe the Boss wanted to and could help him and so would be persuaded to confess. As the interview commenced, Mr. Moir was led to believe that Primary had vouched for him personally and had described him as a good employee, and that was the reason the Boss might be willing to help him. Mr. Moir's demeanour and the substance of what he said in the interview and afterwards was consistent with him believing that the Boss could help to protect him by preventing the police from finding or using evidence that would implicate him in the murder of Ms. Acorn. While it is true he did not disclose everything honestly to the Boss, including how long he'd known Ms. Acorn and who he'd talked to about her murder, what he did disclose was consistent with what he thought the police might find out, most of which had to do with physical evidence that might link him to the scene: that he had had sex with Ms. Acorn the day of her murder; that they had buried her; that they had used rocks; that they had disposed of her clothes; and that they had cleaned his father's residence and the car that was used. After being informed that the police were investigating him, if Mr. Moir's only misconduct was helping his father

bury the body, Mr. Moir could have said to the Boss "I did not take part in the murder but I am afraid my father will implicate me because I helped bury the body". He did not need to exaggerate his role in order to obtain help from the Boss. [At paras. 489-91; emphasis added.] [75] This led the Court to conclude that the inconsistencies and outlandish stories told to Primary by Mr. Moir earlier in the operation, combined with the inducements and his own characteristics, did not "raise such a problem with the confession evidence that it undermines the threshold reliability of the evidence when considered in the overall context of the interview and the other indicia of reliability." The judge ruled that the confession evidence met the level of threshold reliability and that the probative value of the interview outweighed its prejudicial effect. If Mr. Moir wanted to argue that his confession to Mr. Big was false and that the accuracy of the details was simply the result of his having been involved in the burial of Ms. Acorn, the judge said, the defence could lead evidence to that effect and the argument could be pursued in front of the jury. (At para. 493.) [76] At paras. 496-552, the trial judge considered the accused's assertion of abuse of process. She decided inter alia that the reason the police had targeted Mr. Moir was not that they thought he was particularly vulnerable;

nor had they taken advantage of him because of any perceived vulnerability. Ultimately, she said, the totality of evidence on the voir dire did not give rise to a concern that Mr. Moir had been subjected to any threats of violence, express or implicit. The community would not be "shocked" by the conduct of the police in this case. She continued: In all the circumstances I conclude that the police conduct in targeting and carrying out the undercover investigation of Mr. Moir would not offend societal notions of fair play and decency and it would not be contrary to the integrity of the justice system to allow the evidence of Mr. Moir's confession to the undercover police officer posing as Mr. Big to be admitted at trial. [At para. 551.] [77] In a separate voir dire the trial judge acceded to the defence application to exclude certain statements made by Mr. Moir in the course of the various Mr. Big scenarios on the basis of prejudice. Among the excluded statements were Mr. Moir's expression of interest 'out of the blue' in being a 'cleaner' or hitman for the organization, and the ambiguous conversation that may have suggested the organization was willing to kill people. The trial judge found that this evidence was "not necessary to understand and evaluate his confession and [was] too highly prejudicial because of the dangers of propensity reasoning." (See 2016 BCSC 1995 at paras.

40-3.) Conviction [78] The trial resumed and on its 59th day, the judge charged the jury. (I note parenthetically that the instructions included information on the meaning of "aid" for purposes of s. 21(1) of the Code.) After deliberating for nearly three days, the jury found Mr. Moir guilty of the first-degree murder of Ms. Acorn. On Appeal Grounds of Appeal [79] In this court, the appellant argues that the trial judge erred in assessing the reliability of the Mr. Big confession in three ways, namely: (1) The trial judge erred in her assessment of the confirmatory evidence; (2) The trial judge erred in finding the "internal consistencies" bolstered the reliability of the Mr. Big confession; and (3) The trial judge erred in relying on the appellant's lack of denials as an indicator of reliability. Standard of Review [80] It will be recalled that in Hart, the majority observed at para. 110 that a trial judge's decision whether or not to admit a Mr. Big confession into evidence should be accorded deference by appellate courts. The majority did not elaborate, but I note that in R. v. Ledesma, 2017 ABCA 131, a Mr. Big case, the Court observed: A trial judge's findings of fact on their assessment of the record are entitled to deference, absent palpable and overriding error. An appellate court should only intervene if the trial judge has made a manifest error, has ignored conclusive

or relevant evidence, has misunderstood the evidence, or has drawn erroneous conclusions from it: Toneguzzo-Norvell v Savein, [1994] 1 SCR 114 at para. 13 ; Geffen v Goodman Estate [1991], 2 SCR 353 at paras. 66-67; and Stein v The Ship "Kathy K", [1976] 2 SCR 802 at paras. 6-7. [At para. 27.] [81] Other Canadian appellate courts have offered slightly different formulations of the standard of review on the question of the admissibility of hearsay evidence in criminal cases not involving Mr. Big operations. In R. v. Youvarajah 2013 SCC 41, Karakatsanis J. for the majority said this: The admissibility of hearsay evidence, such as the prior inconsistent statement in this case, is a question of law. Of course, the factual findings that go into that determination are entitled to deference and are not challenged in this case. As well, a trial judge is well placed to assess the hearsay dangers in a particular case and the effectiveness of any safeguards to assist in overcoming them. Thus, absent an error in principle, the trial judge's determination of threshold reliability is entitled to deference: R. v. Couture, 2007 SCC 28 , at para. 81. [At para. 31; emphasis added.] In R. v. Smith 2007 NSCA 19, Cromwell J.A., as he then was, for the Court expressed the standard thus: Appellate review of the admission of these statements must accept the trial judge's findings of fact absent

manifest error. However, the correctness standard of review applies to the questions of whether the judge invoked an incorrect legal standard, failed to consider a required element of a legal test or made some other error in principle. In addition, the judge's application of the legal principles to the facts will generally be reviewed for correctness in rulings such as this concerning the admissibility of evidence: R. v. Merz (1999),140 C.C.C. (3d) 259 (Ont. C.A.) at para. 49; R. v. Underwood (G.B.) (2002), 170 C.C.C. (3d) 500 (Alta. C.A.) at paras. 60-63. R. v. Assoun [2006], 207 C.C.C. (3d) 372 (NSCA), leave to appeal ref'd [2006] S.C.C.A. No. 223(SCC) at para. 54 [At para. 166; emphasis added.] And in R. v. Mullings 2014 ONCA 895, Strathy C.J.O. stated for the Court: The standard of review on an appeal of a ruling on the admissibility of hearsay evidence is correctness: R. v. Duong, 2007 ONCA 68 , at para.

54. As the respondent notes, however, this analysis is generally fact-specific and deference should be given to the trial judge's weighing of the factors going to the reliability of the statement. As this court observed in R. v. S.(S.), 2008 ONCA 140 , at para. 30: As long as the trial judge addressed the factors germane to the reliability of the hearsay statement, did not fall into any material misapprehension of the evidence relevant to those factors, and made a reasonable assessment of the weight to be assigned to those factors, this court should not redo the weighing process, but should defer to the trial judge's weighing of those factors. See also: R. v. Carroll, 2014 ONCA 2 , at para. 112, leave to appeal to S.C.C. refused, [2014] S.C.C.A. No. 193 (SCC). [At para. 28; emphasis added.] [82] I proceed, then, on the basis that the standard of correctness governs the question of what 'test' or standard should be applied to admissibility, and to any other issue of principle; but that in the actual assessment or 'weighing' of the relevant factors, the trial judge should not be 'second guessed' by this court. As stated in R. v. Berry 2017 ONCA 17: The exercise of weighing the probative value of proffered evidence against its potential prejudicial effect in the course of the dynamics of a trial is a discretionary task for which trial judges are particularly suited. Their

decisions in that regard are entitled to deference. Absent an error of law or principle, a material misapprehension of the evidence, or a palpable and overriding error of fact in the exercise of that discretion, there is no basis for an appellate court to interfere. [At para. 42.] The Bradshaw Question [83] Although Mr. Moir's first ground of appeal was stated in general terms, his argument requires us to address a very specific question at the outset -- whether the Supreme Court's decision in R. v. Bradshaw 2017 SCC 35 applies to the admissibility of a Mr. Big confession. Bradshaw was decided after the trial judge's voir dire ruling in the case at bar. Since then, a justice of the Supreme Court of British Columbia has reasoned, in R. v. Handlen 2018 BCSC 1330, that although it could not be said that the "key point" in Bradshaw is inapplicable to the Hart regime: the effect of the decision in Hart is not to make Mr. Big statements subject to the same presumption of inadmissibility that flows from the application of the hearsay rule. Justice Moldaver's use of language is telling. He did not find that Mr. Big admissions were subject to the principled exception regime. Rather, he created a new regime which "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": Hart at para.

85. I conclude that Hart is concerned with creating a framework to modify the effect of the party admissions exception on Mr. Big operations, but not to abandon it. [At para. 614; emphasis added.] See also R. v. Lee 2018 ONSC 308 and R. v. Bahia 2016 BCSC 60, which is now under appeal. [84] In Bradshaw, a statement had been made to a Mr. Big, but that fact was only incidental. The statement at issue was not a confession but an exculpatory statement made not by the accused Mr. Bradshaw to a supposed crime boss, but by a Mr. Thielen, an alleged accomplice with him in two murders (and thus a Vetrovec witness) after his arrest. Mr. Thielen had told the undercover Mr. Big earlier that he had shot one victim and that Mr. Bradshaw had shot the other. After his arrest, he performed a re-enactment of the murders for the police and implicated Mr. Bradshaw in both. Mr. Thielen and Mr. Bradshaw were both charged and Mr. Thielen pleaded guilty to second degree murder. However, he refused to testify at Mr. Bradshaw's trial. The Crown therefore sought to introduce into evidence Mr. Thielen's re-enactment and statement to the police, both of which implicated Mr. Bradshaw. The re-enactment included his recollection of the weather on the nights of the murders and other "extrinsic" details. [85] The trial judge admitted the statement and re-enactment under the principled exception to the hearsay

rule, relying in part on the extrinsic evidence provided by Mr. Thielen as corroborative evidence. Mr. Bradshaw was convicted by a jury on both counts of first degree murder. This court allowed the appeal and ordered a new trial. On further appeal, the Supreme Court of Canada agreed a new trial was required. [86] The "principled approach" to hearsay evidence had been the subject of considerable discussion in the Supreme Court of Canada since the early 1990s when cases such as R. v. Khan [1990] 2 S.C.R.531 and R. v. B.(K.G.) [1993] 1 S.C.R. 740 opened the door to admitting hearsay that did not fall under any of the established exceptions but that met the criteria of necessity and reliability. In R. v. Khelawon 2006 SCC 57, the Supreme Court referred to the "threshold reliability" of hearsay statements, as opposed to their "ultimate reliability". The former referred to admissibility, while the latter referred to the decision of the trier of fact as to "whether, and to what degree, the statement should be believed." In the words of Charron J. for the Court: The distinction between threshold and ultimate reliability reflects the important difference between admission and reliance. Admissibility is determined by the trial judge based on the governing rules of evidence. Whether the evidence is relied upon to decide the issues in the case is a matter reserved for the ultimate trier of

fact to decide in the context of the entirety of the evidence. The failure to respect this distinction would not only result in the undue prolongation of admissibility hearings, it would distort the fact-finding process. In determining the question of threshold reliability, the trial judge must be mindful that hearsay evidence is presumptively inadmissible. The trial judge's function is to guard against the admission of hearsay evidence which is unnecessary in the context of the issue to be decided, or the reliability of which is neither readily apparent from the trustworthiness of its contents, nor capable of being meaningfully tested by the ultimate trier of fact. In the context of a criminal case, the accused's inability to test the evidence may impact on the fairness of the trial, thereby giving the rule a constitutional dimension. Concerns over trial fairness not only permeate the decision on admissibility, but also inform the residual discretion of the trial judge to exclude the evidence even if necessity and reliability can be shown. As in all cases, the trial judge has the discretion to exclude admissible evidence where its prejudicial effect is out of proportion to its probative value. [At para. 3; emphasis by underlining added.] [87] The Court in Bradshaw moved beyond Khelawon by clearly delineating two categories of reliability -- "procedural" and "substantive" -- to

be considered in determining the admissibility of hearsay by trial judges under the principled exception to the hearsay rule. In the analysis of Karakatsanis J. for the majority: The hearsay dangers can be overcome and threshold reliability can be established by showing that (1) there are adequate substitutes for testing truth and accuracy (procedural reliability) or (2) there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability) (Khelawon, at paras. 61-63; Youvarajah, at para. 30). Procedural reliability is established when "there are adequate substitutes for testing the evidence", given that the declarant has not "state[d] the evidence in court, under oath, and under the scrutiny of contemporaneous cross-examination" (Khelawon, at para. 63). These substitutes must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement (Khelawon, at para. 76; Hawkins, at para. 75; Youvarajah, at para. 36) . . . A hearsay statement is also admissible if substantive reliability is established, that is, if the statement is inherently trustworthy (Youvarajah, at para. 30; R. v. Smith, [1992] 2 S.C.R. 915, at p. 929). To determine whether the statement is inherently trustworthy, the trial judge can consider the circumstances in which it was made and evidence

(if any) that corroborates or conflicts with the statement (Khelawon, at paras. 4, 62 and 94-100; R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 55). While the standard for substantive reliability is high, guarantee "as the word is used in the phrase 'circumstantial guarantee of trustworthiness', does not require that reliability be established with absolute certainty" (Smith, at p. 930). Rather, the trial judge must be satisfied that the statement is "so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process" (Khelawon, at para. 49) [At paras. 27-29; emphasis by underlining added.] Clearly, these categories complicate the reliability analysis, although the Court indicated the two types of reliability "may work in tandem": para. 32. [88] More importantly for purposes of the case at bar, the Bradshaw court also took the opportunity to confirm a markedly stringent standard for the use of confirmatory or corroborative evidence -- in this case, Mr. Thielen's recollection of the weather on the night of the murders and other verifiable details about the scene -- in assessing "substantive" reliability. The majority reasoned: at the threshold reliability stage, corroborative evidence must work in conjunction with the circumstances to overcome the specific hearsay dangers raised by the tendered statement. When assessing

the admissibility of hearsay evidence, "the scope of the inquiry must be tailored to the particular dangers presented by the evidence and limited to determining the evidentiary question of admissibility" (Khelawon, at para. 4). Thus, to overcome the hearsay dangers and establish substantive reliability, corroborative evidence must show that the material aspects of the statement are unlikely to change under cross-examination (Khelawon, at para. 107; Smith, at p. 937). Corroborative evidence does so if its combined effect, when considered in the circumstances of the case, shows that the only likely explanation for the hearsay statement is the declarant's truthfulness about, or the accuracy of, the material aspects of the statement (see U. (F.J.), at para. 40). Otherwise, alternative explanations for the statement that could have been elicited or probed through cross-examination, and the hearsay dangers persist. In assessing substantive reliability, the trial judge must therefore identify alternative, even speculative, explanations for the hearsay statement (Smith, at pp. 936-37). Corroborative evidence is of assistance in establishing substantive reliability if it shows that these alternative explanations are unavailable, if it "eliminate[s] the hypotheses that cause suspicion" (S. Akhtar, "Hearsay: The Denial of Confirmation" (2005), 26 C.R. (6th) 46, at p. 56 (emphasis

deleted)). In contrast, corroborative evidence that is "equally consistent" with the truthfulness and accuracy of the statement as well as another hypothesis is of no assistance (R. v. R. (D.), [1996] 2 S.C.R. 291, at paras. 34-35). Adding evidence that is supportive of the truth of the statement, but that is also consistent with alternative explanations, does not add to the statement's inherent trustworthiness. [At paras. 47-8; emphasis by underlining added.] And further: Clarifying when corroborative evidence can be relied on to establish substantive reliability is not a departure from the functional approach to the admissibility of hearsay. There is no bright-line rule restricting the type of corroborative evidence that a trial judge can rely on to determine that substantive reliability is established. In all cases, the trial judge must consider the specific hearsay dangers raised by the statement, the corroborative evidence as a whole, and the circumstances of the case, to determine whether the corroborative evidence (if any) can be relied on to establish substantive reliability. In sum, to determine whether corroborative evidence is of assistance in the substantive reliability inquiry, a trial judge should 1. identify the material aspects of the hearsay statement that are tendered for their truth; 2. identify the specific hearsay dangers raised by those aspects of the

statement in the particular circumstances of the case; 3. based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement; and 4. determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant's truthfulness about, or the accuracy of, the material aspects of the statement. [At paras. 56-7; emphasis added.] [89] Applying this to the facts of Bradshaw, the majority was of the view that given Mr. Thielen's motive to lie about Mr. Bradshaw's role in the murders, it could not be said the corroborative evidence helped to rule out all plausible explanations other than the truthfulness of the re-enactment. The obvious alternative explanation (and perhaps a more likely one) was that Mr. Thielen was lying to minimize his own culpability. Taken as a whole, then, the corroborative evidence did not assist in establishing threshold reliability. (At para. 85.) The majority ruled that the trial judge had erred in admitting the re-enactment statement into evidence and that the Crown had failed to establish the threshold (sic; substantive?) reliability of the statement on a balance of probabilities. (At para. 96.) [90] Notably, the majority in Bradshaw also likened the case to Hart

in terms of restricting the "type" of corroborative evidence that can be relied on to establish the threshold reliability of Mr. Big statements. Karakatsanis J. noted that in Hart, Moldaver J. had observed that there was a "complete lack of confirmatory evidence", disregarding corroborative evidence that merely confirmed the accused's presence at the scene of the crime when it took place, because the Mr. Big statement was tendered to show that the accused killed his daughters, not that he was present at the scene of the crime." (At para. 46.) Application to this Case [91] In the case at bar, counsel for Mr. Moir submits that in light of Bradshaw, the trial judge erred in relying on the confirmatory evidence -- Mr. Moir's knowledge of the four pieces of "holdback" evidence and other details of the murder (see paras. 382-4) -- without satisfying herself that the "only likely explanation" of the corroborative evidence was that Mr. Moir had told the truth to Mr. Big about strangling Ms. Acorn and throwing the rock on her head. Since the confirmatory evidence was probative only of the fact he had been present at the scene (a fact the defence purported to concede in its written submissions on the voir dire) it is said the trial judge could not rule out the alternative explanation that he had only assisted in burying Ms. Acorn after she had died. [92] The Crown submits in response

that this court need not decide whether the Bradshaw approach to confirmatory evidence applies in the Mr. Big context because the judge's treatment of that evidence was consistent with Bradshaw. Alternatively, the Crown submits that the approach to corroborative evidence is similar in both those cases, in that both require that it "go to the truthfulness or accuracy of the material aspects of the hearsay statement or confession." At the same time, the Crown disagrees with the proposition that the effect of Bradshaw is to make the reliability assessment of a Mr. Big confession "the same as" the reliability assessment of a statement sought to be adduced under the principled exception to the hearsay rule. [93] I agree with some aspects of this submission, but I am not persuaded that it is unnecessary for us to decide whether Bradshaw applies in this case. The analyses of reliability mandated by each of Hart and Bradshaw are quite different in their objectives, terminology and structure and if Bradshaw modified or replaced the Hart "approach" to Mr. Big confessions, the trial judge might well be said to have applied the "wrong test" and thus to have erred in law. [94] In my opinion, the trial judge did not so err. Setting aside for the moment the issue of corroborative evidence, I view the legal regimes established by Hart and Bradshaw as different and distinct. Looking at the

matter first on a common sense level, it seems to me highly unlikely that, having made a major substantive change in 2014 in the common law of evidence as it applies to Mr. Big operations, the Supreme Court would not have acknowledged in Bradshaw that it was again changing or 'recasting' the prescribed analysis -- if that had been intended. No mention was made in Bradshaw of the factors unique to Mr. Big statements -- the accused's right to silence, his or her personality and vulnerability, the material inducements, the references to violence, etc. [95] More important, the ratio of Bradshaw does not extend to the Mr. Big context. As already noted, the statement sought to be adduced in Bradshaw was not an inculpatory statement or 'confession' made by the accused Bradshaw (who of course had the right to remain silent at trial) to undercover police; it was an exculpatory statement made by a witness who had already been convicted and who refused to testify at Mr. Bradshaw's trial. Notably, the majority stated in Bradshaw at para. 82 that the accused's own statements were "of course" admissible as admissions against Mr. Bradshaw, "quite independently of whether Thielen's re-enactment video is admitted." This remark strongly suggests that the majority did not intend to modify, much less replace, the approach outlined in Hart to Mr. Big statements. [96] As we have seen, Hart created a

very specific "solution" to a very specific problem -- how to "[guard] against the dangers posed by Mr. Big operations, while ensuring the police have the tools they need to investigate serious crime." (At para. 84.) Prior to Hart, (voluntary) confessions made to an undercover police officer were admissible under the well-established exception to the hearsay rule for 'admissions against interest' or 'party admissions', even though the accused believed when making the statement that it was in his or her interest to admit the crime. This exception had a different rationale than other exceptions to the hearsay rule: as noted by Sopinka J. in R. v. Evans [1993] 3 S.C.R. 653: The rationale for admitting admissions has a different basis than other exceptions to the hearsay rule. Indeed, it is open to dispute whether the evidence is hearsay at all. The practical effect of this doctrinal distinction is that in lieu of seeking independent circumstantial guarantees of trustworthiness, it is sufficient that the evidence is tendered against a party. Its admissibility rests on the theory of the adversary system that what a party has previously stated can be admitted against the party in whose mouth it does not lie to complain of the unreliability of his or her own statements. As stated by Morgan, "[a] party can hardly object that he had no opportunity to cross-examine himself...". [At

664.] (See also R. v. Terrico 2005 BCCA 361 at paras. 48-50 and R. v. Bonisteel 2008 BCCA 344 at paras. 81-3.) [97] We have seen that because of the particular policy concerns expressed by the majority in Hart, the Court reversed the common law exception to reflect the fact that Mr. Big confessions "undermine" the usual assumption that people do not confess to crimes they did not commit. The Court made such confessions presumptively inadmissible, such that the Crown was required to establish on a balance of probabilities that the probative value of a Mr. Big confession outweighs its prejudicial effect. This weighing, the majority said, will "never be an exact science", but trial judges routinely weigh the probative value and prejudicial effect of evidence. [98] Moldaver J. acknowledged in Hart that a "parallel perhaps can be drawn" between this process and the assessment of "threshold reliability" that occurs under the principled approach to hearsay statements; but he also pointed out the difference between the two situations. (At para. 100.) In the Mr. Big context, there is no opportunity to cross-examine the hearsay declarant, since the accused is not a compellable witness. Bradshaw, on the other hand, was concerned with the "exceptional" cases in which none of the recognized exceptions applies. This may occur in a wide variety of fact situations. [99] In Mr. Big cases, of

course, there will always -- or almost always -- be the possibility that the accused was not truthful in his statement to the Boss. Here, counsel for Mr. Moir contend that he knew of the holdback evidence because he was at the scene to help 'carry and bury' the deceased after his father had killed her. This type of argument can arise whenever an accomplice or helper was involved. In other cases, the defence might argue, or the judge might speculate (and evidently is expected to speculate), that it is possible another person, perhaps the 'real' killer, told the accused how the crime was committed. (See Johnson, supra.) Alternatives like this could seldom be 'ruled out' to the degree of certainty Bradshaw requires. Thus if the law required that as a condition to admissibility, corroborative evidence (including holdback evidence) must exclude all other plausible explanations for the statement than that it was truthful, such evidence could rarely if ever be admitted. In my opinion, this result would upset the balance that was carefully struck by the majority in Hart between the Crown and the accused in Mr. Big cases. (It will be recalled that at para. 82, the majority in Hart rejected the notion of treating Mr. Big confessions on the same basis as hearsay statements under the principled exception.) [100] Interestingly, Moldaver J. dissented in Bradshaw. He expressed the view that

the majority had departed from the "functional approach" to the principled exception and replaced it with a "restrictive test that unnecessarily complicates the analysis and discards crucial information for evaluating threshold reliability." The new approach, he said, created a "threshold test within a threshold test" and conflated threshold and ultimate reliability. In his words: The trial judge does not need to be satisfied that the hearsay statement is true for it to meet the threshold reliability requirement under any of the three ways set out above. As with the common law tests for Mr. Big statements and expert evidence, the reliability of a hearsay statement need not be established to a point of certainty before it can be admitted: R. v. Hart, 2014 SCC 52 R. v. Abbey, 2009 ONCA 624 at para.

89. Otherwise, the trier of fact's role of determining the ultimate reliability of a hearsay statement will have been usurped. [At para. 113; emphasis added.] [101] I end this too-long discussion by concluding that the Court in Bradshaw did not intend to change or supersede the "approach" established by the majority in Hart for the assessment of confessions made to a Mr. Big. It follows that the trial judge did not apply the "wrong test" in assessing probative value versus prejudicial effect in accordance with Hart. Contrary to what Mr. Moir asserts at para. 71 of his factum, the reliability assessment of a Mr. Big confession under the Hart framework is not "the same as" the assessment of the threshold reliability -- procedural or substantive -- of a hearsay statement under the principled exception. Many of the factors used to demonstrate the trustworthiness of a hearsay statement are "apposite", but the particular dangers sought to be guarded against, the right of the accused in Mr. Big cases to remain silent, the legal terminology used in assessing reliability, and the structure of the prescribed analyses make the two approaches, in my respectful view, clearly different. Corroborative Evidence and Materiality [102] I return to Mr. Moir's submission that the trial judge erred in considering the "holdback" and other confirmatory evidence as "markers" of the reliability of Mr.

Moir's statement to Mr. Big when that evidence was consistent with two possibilities -- that the accused only assisted with the burial of Ms. Acorn's body, or that he strangled her after his father was unsuccessful in doing so. (In other words, it was not relevant, or material, to the issue of Mr. Moir's direct participation in the murder.) In fairness to the trial judge, it was only at the end of the voir dire that counsel for Mr. Moir purported to concede that he had even been at the scene. Up to that point, the Crown of course had the burden of proving this fact, and the corroborative evidence was clearly relevant. [103] While the trial judge was required by Hart in any event to consider evidence offered up by the Crown as confirmatory, I see no indication in her reasons on the voir dire that she did in fact rely on the purported corroborative evidence as probative of either version of events over the other. To the contrary, as already mentioned, the judge acknowledged at para. 460 that it was "certainly possible" Mr. Moir had helped 'carry and bury' the body, but that it was "only one possibility." She acknowledged that the description of how Mr. Moir and his father had destroyed the physical evidence, and the fact that no such evidence was found at the gravesite, in the car or elsewhere was consistent not only with the confession but "also consistent with innocence". (My

emphasis.) Her treatment of the holdback and other corroborative evidence was brief -- three paragraphs long -- and contained no finding that it was of assistance in the determination of the reliability of the Mr. Big confession. It did not figure in the key analysis at paras. 485-95, before which the trial judge noted, again without comment, the argument that the circumstances of Ms. Acorn's death were equally consistent with the 'carry and bury' story told to Mr. Gordon as with the version of facts given to Mr. Big. [104] In short, the case was similar to Hart in that all the objectively verifiable details of Mr. Moir's confession flowed from his "acknowledged presence at the time the [murder] occurred." (Hart at para. 143.) It was also similar to the situation in Bradshaw in this sense. The confirmatory evidence was relevant to the narrative of events in a general way, but once the defence had conceded Mr. Moir had been at the scene, it obviously did not assist in assessing the reliability of his confession to Mr. Big of a direct role in the murder. This is a simple matter of logic and did not require any more complicated formula to apply. [105] At the end of the day, it was the "detail and sequence of events" and the consistencies, external and internal, in the confession that led the judge to find it was "logically consistent and plausible". (At para. 485.) Mr. Moir's

demeanor, his adherence to a single version of the killing throughout the interview with Mr. Big, his use of hand gestures to describe choking Ms. Acorn and smashing her skull with the rock -- were found to "add to the weight of the confession as being a reliable recitation from memory as opposed to a fictionalized account." (At para. 389.) There were also the facts that he had been told to be honest in the interview, that he was concerned about having left marks or DNA on Ms. Acorn's body or prints on the rock, that he believed Mr. Big's organization could 'fix' his situation, and that his statement was not consistent with "someone boasting of his own toughness or trying to enhance his own criminality." (At para. 407.) As the judge noted, he did not disclose everything honestly to the Boss (especially about his relationship with Ms. Acorn) but did disclose "what he thought the police might find out, most of which had to do with physical evidence that might link him to the scene." He was not aware, of course, that the state of decomposition of the body was such that no prints or DNA could be found. [106] As against this, the judge also had to consider the different versions of the events told to others prior to the Mr. Big interview. In particular, Mr. Gordon testified that Mr. Moir had told him his father had killed Ms. Acorn by strangling and hitting her and had pressured his

son to help bury the body by digging the hole. Mr. Gordon said he was unsure whether Mr. Moir had told him Ms. Acorn was still alive when they took her to the burial site. Again, the judge considered this was "possible", but that it was only one possibility. It would be for the jury to determine whether it should be accepted and relied upon. The judge pointed out, however, that none of the others to whom Mr. Moir spoke about the murder had, in his mind, the ability Mr. Big had to deal with what the police investigation might turn up. [107] Weighed against the factors relevant to the prejudice to the accused -- his "non-violent and benign" involvement in the criminal organization and his stated involvement in past criminal behaviour -- the probative value of his statement prevailed. As the judge noted: Despite this, I am of the view that jurors are capable of understanding that being a liar and a braggart in order to fit in and make money, which is the defence theory, is a far different thing than being a murderer. I am of the view that with careful jury instructions, and a careful winnowing of the evidence from the undercover operation, the prejudice can be ameliorated. The jury in my view will be capable of weighing the evidence with unbiased minds to determine if the Crown has proven its case beyond a reasonable doubt. [At paras. 482─3.] [108] I see no reversible error in the

trial judge's conclusion on this point. I would not accede to the first ground of appeal. Internal Consistencies [109] I turn next to Mr. Moir's related submission that the trial judge erred in finding that the "internal consistencies" in his statement to Mr. Big bolstered its reliability. Here the defence relies in particular on paras. 385-92 and 455-6 of the trial judge's reasons in the voir dire. Again, it will be recalled that Mr. Moir had, prior to the Mr. Big interview, told one story to his friend Mr. Gordon -- that he had done a "carry and bury" for his father, who had "hit and then strangled" Ms. Acorn (at para. 457); and another story to Primary -- that his father "showed up at his place one time with a body and needed help burying it, and it was still alive." (At para. 166.) In the meeting with Mr. Big, he told a third story -- that he had choked Ms. Acorn after his father's chokehold from behind had failed to do so, and "then she was done". Not surprisingly, the defence relied heavily at trial (see para. 46) on these inconsistencies as weakening the reliability of what Mr. Moir told Mr. Big. On that occasion, however, Mr. Moir described three times the version recounted at para. 387, using hand gestures to illustrate how he had choked Ms. Acorn and smashed her skull with the large rock. The judge found at para. 389 that his repeated but consistent descriptions of

the killing added to the "weight of the confession as being a reliable recitation from memory as opposed to a fictionalized account." [110] It is a fundamental principle of evidence that the mere repetition of a statement cannot bolster its credibility: see R. v. M.J.B. 2015 ABCA 146, aff'd 2015 SCC 48 at para. 37, quoted with approval by this court in R. v. Untinen 2017 BCCA 320, lve. to app. ref'd. [2017] S.C.C.A. No. 485, at para.

77. As the Court observed in R. v. Ellard 2009 SCC 27, "repetition does not, and should not be seen to, enhance the value or truth of testimony". (At para. 31.) Counsel for Mr. Moir note correctly that this principle is often applied in the context of prior consistent statements and is the primary reason why such statements are usually inadmissible. [111] At the same time, inconsistencies and consistencies in testimony are a legitimate subject for scrutiny in determining credibility. As Doherty J.A. for the Court noted in R. v. L.O. 2015 ONCA 394: Juries are routinely told to consider the entirety of a witness's testimony when assessing the reliability of that witness's evidence. Consistencies and inconsistencies in a witness's testimony are relevant to that assessment. In this case, L.F.'s video statement became part of her testimony. Consequently, as with any witness, the jury had to look at the entirety of her testimony, including the video-recorded statement and the in-court testimony, and consider whether any consistencies or inconsistencies within the entirety of her testimony shed light on the reliability of that testimony . The instructions in this case, like the trial judge's reasons in F. (C.C.), identify both consistencies and inconsistencies between the video-recorded statement and the trial testimony. Both factored into the assessment of the overall reliability of

the child's evidence. [Paras. 44─5, quoted in Untinen at para. 79; emphasis added.] [112] In the present context, it seems to me that the trial judge was entitled to consider the internal consistency of the Mr. Big confession as suggesting "reliable recitation from memory" as opposed to a made-up story. The judge was not relying on "mere repetition" but carried out a nuanced analysis of the confession itself, its inconsistency (relied on by the defence) with the two other versions of Ms. Acorn's death, and (as required by Hart) the circumstances of the interview and the police investigation, including Mr. Moir's motivation to tell Mr. Big the truth. The Supreme Court of Canada has warned appellate courts on countless occasions that trial judges are better placed to make determinations of this kind than are appellate judges, and that their findings are to be accorded deference. [113] I would not accede to the second ground of appeal. Conversation in Sheriff's Van [114] Mr. Moir's final ground of appeal is that the trial judge erred in relying on Mr. Moir's failure to deny specifically that he had killed a 14-year-old girl when he and his father spoke in the sheriff's van three days after their arrest. The judge observed at para. 395: Mr. Moir's reply was not that he did not murder a 14-year-old girl; just that others in prison would not know that when he went into prison. In

counsel's submission, the trial judge here treated Mr. Moir's silence on the point as some kind of "adoptive admission" that bolstered the reliability of the confession and was therefore in error. [115] There is no doubt that, as the Manitoba Court of Appeal observed in R. v. Scott 2013 MBCA 7, "great caution should be exercised when considering a question of adopted or implied admission by silence as there may be other reasons for an accused's silence." (At para. 21.) The Court went on to state that a statement made in the accused's presence is not evidence of the facts contained therein, even if it is reasonable to expect an explanation or denial, unless the accused accepts or adopts this statement, expressly or by inference, as his or her own. [116] Mr. Moir submits that the exchange in the van simply did not create an "expectation" of a denial and indeed that if Mr. Moir had responded in the van that he did not kill Ms. Acorn, that would have been seen as gratuitous and self-serving. [117] The Crown responds that when the trial judge's reasons are read as a whole, she appears to have given little weight to the conversation in her analysis. In any event, the Crown says, the same conversation in the van could be interpreted as an admission of sorts. Indeed, in R. v. West 2015 BCCA 379, the same conversation in the van was referred to as a marker of reliability on the basis

that it "could be interpreted as an admission [the father] had been involved in killing Ms. Acorn." The Crown also points out that the conversation was led in evidence at Mr. Moir's trial and that the judge strongly cautioned the jury about the use they could make of it: see Transcript vol. 9 at 3323. [118] Counsel for Mr. Moir did not offer an opinion as to whether the error being asserted was one of law, fact or mixed fact and law. If the judge were taken to have believed a denial could reasonably have been expected from Mr. Moir, the defence would have to show that that was a palpable and overriding error. I am not persuaded that this degree of error has been shown and indeed, it is difficult to evaluate exactly what weight, if any, the trial judge gave to the conversation in the van. As the Crown points out, the judge did not refer to the conversation in the crucial part of her analysis (at paras. 484-95); nor did she make any comment to the effect that Mr. Moir's reply did serve to bolster the credibility of his confession to Mr. Big. I am inclined to believe that if any weight was given to it, it was very little and that even without this evidence, the trial judge would have properly admitted the statement into evidence. Disposition [119] In the result, I conclude that the trial judge did not err in admitting the Mr. Big statement into evidence. I would dismiss the appeal, with thanks to counsel for their able arguments. "The Honourable Madam Justice Newbury" I AGREE: "The Honourable Mr. Justice Goepel" I AGREE: "The Honourable Mr. Justice Butler"