I’m bad, I’m bad!

“I am so bad that you can’t rely on my confession”: like the Cretan liar, the accused in R v Bonisteel [2008] BCCA 344 (9 September 2008) presents a paradox.

He had boasted about his criminal past in order to gain acceptance into a criminal organisation. At least, that’s what he thought the organisation was. In fact he was talking to undercover police officers. They were trying to get him to confess to the murder of two girls who had died from stab wounds. In pretending to be potentially violent and a person not to be messed with, the main interviewing undercover officer questioned the accused in ways that the accused claimed at trial were oppressive. As a result the accused said he did the killings, but he was inaccurate in his account of the wounds inflicted and in his description of the girls.

If his confession to the killings was admissible at trial, his defence tactic was to say that he was lying in order to gain acceptance into the organisation. The bad things he said about himself, including accounts of other offending and prison sentences served, were said with that objective. The reasons that the gang should think he was bad were the same as the reasons the jury should think he was not bad.

There are some unsatisfactory aspects to the British Columbia Court of Appeal judgment (a judgment by Levine J, with which Lowry and Bauman JJ agreed): see CriminalReview.ca. In particular, these concern whether the defence should have been allowed to call expert evidence on false confessions (67-71). There is a floodgates danger, of course, in allowing such evidence.

What is odd is the Court’s treatment of the admissibility of bad character evidence. This came first in order of points considered, whereas one would have expected it to come after the oppression point. If the undercover officer’s evidence was not obtained through oppression, or other impropriety, then should it be edited to exclude reference to the accused’s bad conduct on other occasions?

Instead, the Court approved the trial judge’s reasoning (48):

“Thus, 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 appellant’s confession – their probative value outweighed their prejudicial effect, and the prejudice could be dealt with by a prophylactic warning. In other words, the prejudicial evidence was neither ‘irrelevant’ nor ‘unnecessarily prejudicial to the accused’, so the duty to edit did not arise.”

This led the Court to address the decision on whether a warning to the jury would be an adequate substitute for exclusion of the evidence, and it held that the judge had correctly decided that a warning would suffice.

There is no suggestion in the Court’s judgment that the prosecution was able to call evidence of the accused’s character other than what the accused had said to the undercover officer. The focus was on the relevance of that evidence to the truth of the confession, that is, to its reliability. However reliability does not cure oppression or impropriety which are logically the prior considerations.

Well, if the Court had addressed the confession admissibility issue first, would it have decided that it had been correctly ruled admissible?

Probably yes: the accused had put himself in a position where he must have realised that the sort of conduct that persuaded him to confess (or more likely, to boast) was likely to occur. In the absence of oppression, the next question is whether there was improper police conduct such as to justify exclusion of the confession on public policy grounds. Unlikely, as far as one can tell from the judgment (86-94). So, the confession was admissible. What then of the bad conduct evidence?

The answer is that, once the confession became admissible, the defence would want the bad conduct evidence in to support its claim that the confession was just big talk. Boasting about his criminal past was part of the accused’s tactic to gain acceptance into what he thought was a criminal organisation. His defence was, in effect, “I’m bad, but not that bad.”

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