R. v. Bonisteel (R.), (2008) 259 B.C.A.C. 114 (CA)

• Judge: Levine, Lowry and Bauman, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: September 09, 2008
• Jurisdiction: British Columbia
• Citations: (2008), 259 B.C.A.C. 114 (CA);2008 BCCA 344

R. v. Bonisteel (R.) (2008), 259 B.C.A.C. 114 (CA);

    436 W.A.C. 114

MLB headnote and full text

Temp. Cite: [2008] B.C.A.C. TBEd. SE.014

Regina (respondent) v. Robert Bonisteel (appellant)

(CA033209; 2008 BCCA 344)

Indexed As: R. v. Bonisteel (R.)

British Columbia Court of Appeal

Levine, Lowry and Bauman, JJ.A.

September 9, 2008.

Summary:

In 2005, the accused was convicted by a jury of the first degree murders of two 14 year old girls in 1975. The Crown relied on, inter alia, the accused's confession in a 2002 "Mr. Big" undercover sting operation. The accused appealed his convictions, submitting that the confession was inadmissible as being inherently unreliable where obtained under powerful psychological pressure on the accused to falsely confess. The accused claimed that confessions obtained under such undercover operations were inadmissible because the operations were unfair to an accused and prejudice to the accused could not be overcome by any warning or instructions to a jury. In particular, the accused alleged that "(a) The trial judge erred in allowing the Crown to introduce and misuse bad character evidence of Appellant's previous rape convictions. (b) The trial judge erred in failing to undertake other essential edits of highly prejudicial, misleading and non-probative material in the Statements, including purported admissions to the Appellant's previous counsel. (c) The trial judge deprived the defence of any meaningful opportunity to challenge the admissibility of the Statements. (d) The trial judge erred in disallowing defence expert evidence concerning the inherent unreliability of Appellant's Mr. Big Statements or by adequately addressing the issue in his charge to the jury. (e) The trial judge erred in admitting unreliable evidence of Appellant's hearsay statements to undercover officers during the course of the Mr. Big operation. (f) The undercover Mr. Big operation employed tactics that would shock the community such that the Statements should have been excluded.".

The British Columbia Court of Appeal dismissed the appeal. There were no errors in any of the trial judge's rulings or instructions to the jury.

Criminal Law - Topic 4375

Procedure - Charge or directions - Jury or judge alone - Directions regarding incriminating statements by accused or co-accused - The accused was suspected of two 1975 murders - In 2002, he was the target of a "Mr. Big" undercover sting operation, during which he confessed to the murders - A jury convicted the accused of two counts of first degree murder - The accused appealed, submitting that the trial judge's failure to properly direct the jury respecting the danger of false confessions, given the inherent unreliability of confessions in "Mr. Big" undercover operations - The British Columbia Court of Appeal dismissed the appeal, stating that "the trial judge's instructions ... went beyond explaining to the jury the motives for the [accused] to lie. He discussed the known risk in criminal law of false confessions, and warned the jury that it is wrong to assume that people confess only to crimes they have actually committed. He spoke of the 'manipulation of the target during an undercover sting', and instructed the jury to take 'great care' in considering the 'veracity or credibility' of the [accused's] statements to Buck. He specifically told the jury that 'confessions produced by an undercover operation such as this are viewed as inherently unreliable' and 'highly suspect without independent confirmation of the truth'. He referred the jury to the circumstances in this particular case, including whether the [accused] '[got] something wrong in his story to the Big Boss - such as the difference you may find it to be between his version of the number of the stab wounds inflicted on the girls and reality ...'. He expressed the opinion to the jury that 'the accused got the number of stab wounds wrong'. There is no merit to the argument that the trial judge's instructions to the jury about false confessions were insufficient." - See paragraphs 72 to 78.

Criminal Law - Topic 5209

Evidence and witnesses - Admissibility and relevancy - Prejudicial evidence - [See Criminal Law - Topic 5357 ].

Criminal Law - Topic 5337

Evidence and witnesses - Confessions and voluntary statements - Admissibility - General - The accused was subjected to a "Mr. Big" undercover sting operation that resulted in his confession to two murders - The accused submitted that the statements should have been ruled inadmissible upon the principled approach to hearsay and on the basis that the police tactics would "shock the community" - The British Columbia Court of Appeal rejected the submissions - The principled approach to the admission of hearsay (necessity/reliability analysis) did not extend to the admissibility of an accused's statements against interest - The tactics employed by the police in the undercover operation to elicit the confession would not "shock the community" - See paragraphs 81 to 94.

Criminal Law - Topic 5357

Evidence and witnesses - Confessions and voluntary statements - Exclusion of irrelevant or prejudicial portions (editing) - The accused was suspected of two 1975 murders - In 2002, he was the target of a "Mr. Big" undercover sting operation, during which he confessed to the murders - A jury convicted the accused of two counts of first degree murder - The accused appealed, submitting that if the statements were admissible, the trial judge erred in failing to edit them to remove prejudicial evidence (bad character evidence, including two prior rape convictions) - The trial judge determined that the prejudicial evidence was relevant and probative, and that all of the evidence was admissible because its probative value outweighed its prejudicial effect - Notwithstanding that there existed a real potential for prejudice, "the trial judge did not expressly consider editing the statements because his analysis led him to the conclusion that the prejudicial portions were relevant to an issue in the case -- the truthfulness of the [accused's] confession -- their probative value outweighed their prejudicial effect, and the prejudice could be dealt with by a prophylactic warning" - The accused did not challenge the content of the warning to the jury on the prohibited use of bad character evidence, but argued that a prophylactic warning would not offset the prejudice - The British Columbia Court of Appeal held that the trial judge did not err in refusing to edit the statements - See paragraphs 30 to 55.

Criminal Law - Topic 5449

Evidence and witnesses - Evidence respecting the accused - Character of accused (incl. discreditable conduct) - General - [See Criminal Law - Topic 5357 ].

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - [See Criminal Law - Topic 5337 ].

Evidence - Topic 7062.3

Opinion evidence - Expert evidence - Particular matters - False confessions - The accused was suspected of two 1975 murders - In 2002, he was the target of a "Mr. Big" undercover sting operation, during which he confessed to the murders - A jury convicted the accused of two counts of first degree murder - The accused appealed, submitting that the trial judge erred in refusing to allow him to call expert evidence by a psychologist on false confessions generally - The proposed evidence did not deal with the specific undercover operation and the accused had not been interviewed - The British Columbia Court of Appeal held that the trial judge did not err in refusing to allow the expert evidence, stating that "the evidence of the expert was not necessary, in that it did not deal with the specific nature of the evidence in this case, but only with matters about which the jury could form a judgment based on their own experience, assisted by instructions from the trial judge. ... where the proposed opinion evidence is not technical, such as engineering principles involved in the construction of a bridge, but is about human behaviour, it is up to the trial judge to make a judgment call about whether the opinion will provide information that is likely to be outside the experience of the trier of fact" - The judge made no error in principle and his decision to exclude the expert evidence was not unreasonable - See paragraphs 62 to 71.

Police - Topic 3106

Powers - Investigation - Stratagem and subterfuge (incl. trickery) - [See Criminal Law - Topic 5337 ].

Cases Noticed:

R. v. Creek (P.W.), [1997] B.C.T.C. Uned. J07 (S.C.), refd to. [para. 29].

R. v. Sims (M.G.) (1995), 59 B.C.A.C. 64; 98 W.A.C. 64 (C.A.), refd to. [para. 39].

R. v. Redd (V.B.) (2002), 168 B.C.A.C. 304; 275 W.A.C. 304; 165 C.C.C.(3d) 412; 2002 BCCA 325, leave to appeal refused (2003), 308 N.R. 198; 190 B.C.A.C. 160; 311 W.A.C. 160 (S.C.C.), refd to. [para. 39].

R. v. F.F.B., [1993] 1 S.C.R. 697; 148 N.R. 161; 120 N.S.R.(2d) 1; 332 A.P.R. 1; 79 C.C.C.(3d) 112, refd to. [para. 39].

R. v. B.F.F. - see R. v. F.F.B.

R. v. S.G.G., [1997] 2 S.C.R. 716; 214 N.R. 161; 94 B.C.A.C. 81; 152 W.A.C. 81, refd to. [para. 39].

R. v. Kanester, [1966] 4 C.C.C. 231 (B.C.C.A.), revd. [1967] 1 C.C.C. 97 (S.C.C.), refd to. [para. 45].

R. v. Beatty, [1944] S.C.R. 73, refd to. [para. 45].

R. v. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201; 164 C.C.C.(3d) 481; 2002 SCC 56, refd to. [para. 47].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 64].

R. v. Osmar (T.) (2007), 220 O.A.C. 186; 217 C.C.C.(3d) 174; 2007 ONCA 50, leave to appeal refused (2007), 374 N.R. 396; 241 O.A.C. 397 (S.C.C.), refd to. [para. 67].

R. v. D.D., [2000] 2 S.C.R. 275; 259 N.R. 156; 136 O.A.C. 201; 2000 SCC 43, refd to. [para. 69].

R. v. Rogers (D.L.) (2005), 214 B.C.A.C. 195; 353 W.A.C. 195; 198 C.C.C.(3d) 449; 2005 BCCA 377, refd to. [para. 69].

R. v. A.K. and N.K. (1999), 125 O.A.C. 1; 137 C.C.C.(3d) 225 (C.A.), refd to. [para. 70].

R. v. M.C.H., [1998] 2 S.C.R. 449; 230 N.R. 1; 113 O.A.C. 97; 127 C.C.C.(3d) 449, refd to. [para. 74].

R. v. Hodgson - see R. v. M.C.H.

R. v. Terrico (W.J.) (2005), 214 B.C.A.C. 135; 353 W.A.C. 135; 199 C.C.C.(3d) 126; 2005 BCCA 361, leave to appeal refused (2006), 350 N.R. 400; 231 B.C.A.C. 319; 381 W.A.C. 319 (S.C.C.), refd to. [para. 75].

R. v. McCreery (T.S.) (1998), 108 B.C.A.C. 161; 176 W.A.C. 161; 62 B.C.L.R.(3d) 1 (C.A.), leave to appeal refused [1998] 2 S.C.R. ix; 231 N.R. 399; 120 B.C.A.C. 319; 196 W.A.C. 319, refd to. [para. 75].

R. v. Carter (B.) (2001), 156 B.C.A.C. 255; 255 W.A.C. 255; 157 C.C.C.(3d) 165 (C.A.), refd to. [para. 75].

R. v. Forknall (P.C.) (2003), 176 B.C.A.C. 284; 290 W.A.C. 284; 172 C.C.C.(3d) 61; 2003 BCCA 43, refd to. [para. 75].

R. v. Skiffington (W.W.) (2004), 197 B.C.A.C. 308; 323 W.A.C. 308; 186 C.C.C.(3d) 314; 2004 BCCA 291, refd to. [para. 75].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161, refd to. [para. 75].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 2000 SCC 40, refd to. [para. 81].

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338; 2006 SCC 57, refd to. [para. 81].

R. v. Oickle (R.F.), [2000] 2 S.C.R. 3; 259 N.R. 227; 187 N.S.R.(2d) 201; 585 A.P.R. 201; 2000 SCC 38, refd to. [para. 86].

R. v. Roberts (D.C.) (1997), 90 B.C.A.C. 213; 147 W.A.C. 213; 1997 CarswellBC 772 (C.A.), refd to. [para. 87].

Unger v. Canada (Minister of Justice) et al. (2005), 196 Man.R.(2d) 280; 2005 MBQB 238, refd to. [para. 87].

R. v. Rothman, [1981] 1 S.C.R. 640; 35 N.R. 485, refd to. [para. 88].

R. v. McIntyre (M.), [1994] 2 S.C.R. 480; 168 N.R. 308; 153 N.B.R.(2d) 161; 392 A.P.R. 161, refd to. [para. 90].

R. v. Trochym (S.J.), [2007] 1 S.C.R. 239; 357 N.R. 201; 221 O.A.C. 281; 2007 SCC 6, refd to. [para. 97].

Counsel:

J. Millar, for the appellant;

H. Reiner, Q.C., and E. Campbell, for the respondent.

This appeal was heard on June 10-11, 2008, at Vancouver, B.C., before Levine, Lowry and Bauman, JJ.A., of the British Columbia Court of Appeal.

On September 9, 2008, Levine, J.A., delivered the following judgment for the Court of Appeal.