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| John L. Hill |
Colin Raymond Correia, a member of a rival gang, had been convicted of conspiracy to murder Mahon in 2013. The plan was never carried out, although after the conspiracy ended, the double homicide occurred at Mahon’s former residence. It was believed that a hitman hired to kill MacFarlane and Taylor made a mistake. Mahon was the intended victim.
Correia was sentenced to 13 years imprisonment for his part in the conspiracy and was on parole when he was arrested for first-degree murder on June 8, 2018. The Crown theorized that the conspiracy for which he had been convicted and served time ended on May 14, 2010. The MacFarlane and Taylor murders occurred 15 days later, and Correia was involved.
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In the decision dismissing the charges, the trial judge made reference to police conduct, such as conducting the interview when the accused was tired, telling Correia that police were his friends, wanting further information about the person who had been the prime mover of the murders and allowing him to continue speaking when discussion related to the possibility of immunity or giving evidence for the Crown.
The British Columbia Court of Appeal reviewed the trial judge’s decision and decided to allow the appeal and order a new trial in a decision dated Oct. 24, 2024 (R. v. Correia, 2024 BCCA 361).
In its examination of the trial judge’s decision, the appeal court began by noting that the Crown was required to prove an error in law in assessing the voluntariness of the inculpatory statements (R. v. Oickle, 2000 SCC 38). Once an error is established, it is also necessary to show the error contributed to a wrong verdict (R. v. Hodgson, 2024 SCC 25).
The appeal court’s review of the record failed to show facts amounting to police trickery. Those facts the trial judge found to amount to trickery are unsupported and contrary to the record of the interviews. The trial judge used speculation to infer improper questioning instead of realizing that there would inevitably be an overlap between the offence of conspiracy for which Correia had been convicted and the new murder charges. Secondly, even where there are facts indicative of police use of “techniques” to induce the making of inculpatory statements, they are not of such a degree as to violate the principles established by the jurisprudence that admission would create unfairness or interfere with the detainee’s operating mind in exercising his free will in speaking with police.
The Oickle decision would hold all inculpatory statements inadmissible unless the Crown can satisfy the court beyond a reasonable doubt that the statements were voluntary. The court then has to determine if an accused had a meaningful choice in speaking to the police (R. v. Tessier, 2022 SCC 35).
The transcript of police interview notes show that Correia asked, “If you guys can give me a deal,” and he volunteered to be a Crown witness. He recognized the consequences and mandatory sentence for first-degree murder and said, “I want to be let off lighter. I don’t wanna have a life tag.”
Correia clearly understood his predicament and the possibility of serving a life/25 sentence. Police officers constantly reminded him that his words could be used as evidence. Police promptly rejected any promise of immunity or “a deal.”
The appeal court judgment is summarized in paragraph 68 of the reasons: “I conclude that a fair and objective consideration of the transcript reveals no evidence of police conduct that could reasonably be seen as “police trickery.” The judge’s reference to such underhandedness, or characterization of it as improper police conduct, demonstrates an error in law that fatally undermines the verdict.”
With the issues of police trickery and Correia’s anxiety disorder being seen as a basis that he had a diminished ability to think clearly is at the heart of the appeal, it is surprising to read in paragraph 8 of the appeal court’s reasons that Correia’s counsel on appeal confirmed that neither trickery nor his anxiety disorder were sufficient basis on their own for the judge to exclude the evidence.
With the defence admission that the trial judge’s reasoning was faulty, the appeal decision was to be expected. The verdict of acquittal was not allowed to stand. A new trial was ordered.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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