Keywords: Criminal; murder; false confession; inadequate jury charge; expert evidence.
Synopsis: Stuart Mark was discovered beaten to death lying face down on a sofa in his residence. He had received 57 blows from a golf club. Autopsy revealed Stuart was HIV positive. There was no obvious suspect or motive for the homicide. Police received a lead that a male had told a gas-station employee intimate details about the killing on two separate occasions. The Appellant, Mr. Pearce, voluntarily contacted police informing them he may be the gas-station witness. Police interviewed Pearce who explained Stuart was his friend and casual sex partner. Aside from Pearce’s link to the victim, the
interview provided no helpful information. Five days later Pearce again called police and requested a meeting. Police met with him but failed to record the meeting since Pearce was neither a witness nor a suspect. During the meeting Pearce explained four days prior to Stuart’s death they had argued after having sex because Stuart revealed he was infected with AIDS. Pearce marked an “X” on a diagram near the sofa explaining to police it was the spot he remembered the argument ended. While pointing at the “X” Pearce told police “I might’ve hit him here … I did something really bad.” Pearce was arrested and interrogated (on video) during which he explained “It got to the point where I just temporarily lost it” and later admitted to swinging a golf club iron and hitting Stuart on the head with it. Pearce explained he didn’t remember what transpired but when he left the residence post argument he felt a “very evil” presence. Pearce was convicted of manslaughter at trial by judge and jury. Pearce appealed arguing the judge erred in refusing to admit expert evidence on false confessions and inadequately instructed the jury. Appeal allowed and new a trial ordered.
Importance: The C.A was not satisfied the trial judge erred in her determination as to the admissibility of expert evidence. Three of the four areas of Dr. Peterson’s proposed evidence did not meet criteria for the admissibility of expert evidence outlined in R. v. Mohan,  2 S.C.R. 9. The trial judge made no error excluding the expert evidence of Dr. Moore in the areas of how police investigative techniques affecting the reliability of confessions. Dr. Moore’s evidence lacked scientific foundation and was unnecessary. Even if Dr. Moore’s evidence had met the Mohan criteria, it nonetheless lacked the necessary objectivity of an expert witness. Courts retain a residual discretion to exclude expert evidence when it is tainted by bias or partiality rendering it of minimal or no assistance (Alfano v. Piersanti et al., 2012 ONCA 297). The C.A. agreed Dr. Moore was more of an advocate rather than an impartial expert breaching the duty to prepare materials directed to the court and public and not to the retaining party (at para. 98). The trial judge’s instructions regarding false confessions met the basic requirement once a confession is ruled admissible. The trial judge properly instructed the jury and explained it was for them to decide (on all the evidence) whether Pearce’s confession occurred and if it was true. There was however, an air of reality to Pearce’s claim that he gave a false confession which gave rise to an obligation of the trial judge to instruct the jury about the potential of a false confession (Colpitts v. The Queen, 1965,  S.C.R. 739). The Court concluded:
“While the judge correctly kept from the jury the dubious expert opinion about false confessions of Drs. Peterson and Moore, she did not fill the gap with a caution to the jury to dispel the myth of false confessions and tell them that they should not begin their deliberations by dismissing the appellant’s claim of making a false confession because such a claim seemingly defies common sense as to normal human behaviour … In my view, this is a case of a non-direction amounting to a mis-direction on an important legal principle which prejudiced the appellant’s ability to have a fair trial because the truth of the appellant’s confession was the key issue in the case. A caution about the phenomenon of false confessions in the circumstances of this one issue case was mandatory; its omission from the jury charge amounts to a legal error within the meaning of s. 686(1)(a)(ii) of the Criminal Code”. (at paras. 142 and 145).
Counsel for Appellant: Gerri Wiebe (Bueti, Wasyliw Wiebe LLP, Winnipeg)
Counsel for Respondent: Neil Cutler & Deborah Carlson (Justice Manitoba, Winnipeg)