Suspicion - Smokescreen

Episode Date: May 16, 2025

There can be problems when using confidential informants and hearsay evidence, especially when a man’s freedom is at stake. Lawyer Dean Embry’s conversation with Kevin Donovan provides a back story for our Murder on Mount Olive investigation.  

Suspicion Season 4 is brought to you by Havelock Metal, quality metal roofing and siding. From the Toronto Star, I'm Kevin Donovan, and this is Season 4 of Suspicion, Murder on Mount Olive. To help you understand more about the case of Chris Sheriff, we're doing a number of bonus episodes expanding on themes in the series. Today, smoke screen, the perils of using confidential informants and hearsay evidence when a man's freedom is at stake. Why don't you start by telling me your name and what you do for a living? So my name is Dean Embry. I'm a defense lawyer in Toronto.

I'm a partner at Embry Dan, which is me and Aaron Dan. I have a practice and I've been practicing since 2004. I've been a defense lawyer my entire career. What do you see as the role of a defense lawyer in our justice system. My job, I get hired to try to help clients win their case and be acquitted if I can, or get them out of trouble with the least amount of consequences, I guess. But the way we do that is just by trying to keep everybody honest and make sure the rules are applied fairly

so that there's a fair trial. What I want to explore with you today, Dean, is this concept of the confidential informant, or the CI, as they're often referred to. Can we just kind of break it down at the start and tell me, what is a confidential informant in the court system? So a confidential informant is someone

who's given the police information on the promise of confidentiality. So there's an explicit or sometimes even implicit agreement whereby the person will tell the police or the office or something on the understanding that their identity will never be revealed to anyone else quite frankly and most importantly not revealed to anyone else, quite frankly. And most importantly, not revealed to the defense. And how does that, in your experience, come about? How does that, it's almost a contract between a police officer and the CI. Yeah, it's almost a contract. Sometimes it's explicitly a contract when there's confidential informants who are ongoing and have a relationship. But it can also just be a one-time thing where someone will say to an officer, I have information.

I'll give it to you if you don't tell anyone who I am, basically. And is that done out of the goodness of their heart? Sometimes, but usually in my experience, not. It's done either when the CI has gotten themselves into trouble and they're sort of under arrest. And they'll say, hey, I can give you some information for either

to get a recommendation for bail or for a lower sentence or that sort of thing. Or it's not uncommon, that's quite common actually, for money. And they'll do it for compensation. And can we just explore that a bit, the money part of it? Is there a set amount that you get ten thousand dollars or two dollars? What sort of money we talk about and how does that come about?

So that I don't know to be frank and I think why I don't know that is because when defense counsel Learn about confidence informants any information we get is highly highly vetted So if I'm doing a case where SCI is involved, I'll be told the confidential informant got compensation, but any other detail is vetted out and I'm not able to find that out. So they actually don't tell you that for this information that is being brought against your client, this person was paid X dollars. Yeah, we're not told that. And I think this is a bit more detailed,

but part of the confidential informant rules is that defense and the accused are not entitled to any detail that could possibly identify them. So that sort of thing, I mean, I think even, I think the argument would be, even to say

this person was paid X amount of money could tend to identify them because then the accused could say, well, you know, I had a friend who just bought a new car or et cetera, et cetera, came into 200 bucks or something. So even details that minute are denied to the fence. And so I think the Toronto police, which is the force that is involved in the case that I'm investigating, the Toronto police have a system where somebody is actually a registered CI. Can you tell me a bit about that?

And that's what I'd sort of allude to when I talked about the contract. I think there is a system, I don't know it intimately, but there is a system whereby informants are registered, I think they're given sort of a number or like an ID name to obfuscate that. And that's a way to track, I guess maybe their history of the information they've given and given that much more credibility for going forward. Do CIs form a crucial role in our justice system? Is it important that the police have this technique?

I mean, I'd say yes. I mean, I think it makes sense that they have this technique. I think there's definitely crimes that would go undetected or at least unsolved were it not for CIs. I mean, I think that situation they used mostly, think in drug cases to get to accused but also in you know murder cases and things like that. They serve an important role because they can give information that would otherwise not be given. And what is the pitfall of using a CI? The big pitfalls they might be lying and it's a real danger because they tend to be a sort of unsavory

witnesses, you know, people with their own involvement in the criminal justice system. I mean, any other witness who came and said, well, I, I did this, I came to give this evidence for money. The court would look at, you know, a scant. And so there must be a protection somehow in this situation so that doesn't happen. Yeah, and the protection is sort of on the back end when there's a trial, so their evidence isn't admissible. So the Crown can't rely on it directly, and they can't just sort of put in a tip and say, well, this person was, we were told by the CI that this person was dealing drugs, that can't go in at a trial to prove that the

person was dealing drugs. And so the function that they really serve is that they can give police information that sets them on an investigatory path to get other admissible evidence that they can then be used. But the protection is that the police can use them, but the Crown can't use the evidence in court. And where is that protection? Is that in the criminal code? It's in the criminal code.

It's also a lot of case law is the basis of it. So you're saying that the Crown cannot rely on what a CI says to aid in getting a person convicted? Yes, that's right. Okay, so my head is swimming right now because in the case that I'm investigating, the Chris Sheriff and Awet Asvaha case, the Crown seemed to use that information and how it was used as it

came out through the police officer, Constable Nasser. So before we talk about the case and just to be clear, Dean, you're not involved in this at all, but I've sent you some documents, transcripts and things like that. So since it seems to me it's almost moving towards the hearsay and so in hearsay can I go into a court and say oh Jim told me that so-and-so is a gang member. Can I say that? So no. No you couldn't. That's hearsay. That's hearsay. Okay and why why can't I say that? Well, because again, sort of like a CI, I mean hearsay has inherent dangers,

which is, well, maybe Jim didn't say that, or maybe Jim didn't mean it when he said it, or I mean, more importantly, how does Jim know that? And so, I mean, the foundation of our entire criminal justice system in terms of how our trials work, it's adversarial, so if someone comes and says that that car was red, the other side gets to cross-examine them and say, well, how long did you see

the car, like, how many times have you seen the car, how do you know what shade of red, et cetera. You're allowed to probe that evidence, and with hearsay, you can't do that because Jim and your example is not in the room. So you can't ask the question you'd want to ask the person who actually has the information. We'll be right back. I grew up in the renovation business. If I wasn't a reporter, I would have been a builder. And I know quality is key. So whether it's for your house, cottage, or building, make

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told me that before he got involved in this case, he said, CIs were typically used to get a search warrant. He said, that's kind of the common situation where a CI would say, oh, there is a gun over there and then the police would go and using this evidence, get a search warrant and they would get the gun or the drugs or whatever it was. So from what I've sent to you, can you just kind of tell me what happened in this case

in the sheriff and the Aspaha case? So having reviewed the appeal decision and as well as a portion of the transcripts, what happens which is strange is that what Tate Nasser does is he is an expert witness about sort of gangs generally and part of the information he gets as part of putting together his expert opinion is he gets information from two CIs who say that Mr. Sheriff is involved in gang activity and he uses that information as a basis for his opinion about how gangs, specifically this gang

operates and then the CI information, I'll say sort of sneaks in through the expert opinion and that's that sort of extraordinary because he's right I mean most of the time we see CIs it's as part of search warrant applications. And again, for the defense, it's just a big blacked out section saying the CI said, and then we don't see what they actually said. But in this case, the CI information underpins an expert's opinion. And that's, that's quite extraordinary really. So as I understand it, in this case, Nasser, yes he testifies about gang colors, gang affiliations, things like that, but then he comes and he says that the CI has told him that both of these people show signs of being in a gang and that the sheriff is not only in a gang called the Hustle Squad,

but also is the leader. And so I agree it is sort of sneaked in as you said it, but how does that happen in our modern justice system? I mean the short answer is it doesn't. This case is a real outlier in terms of the use of CI information in an expert's opinion. What happens is the principles underlying expert evidence and hearsay and CIs all gets muddled. I think generally the rule for expert evidence is that they're allowed to use hearsay because if you think of, this is a strange example, if you think of, you know, this is sort of a strange example, but you think a scientist who has run, you know,

a thousand experiments in an area and becomes an expert in that area, their expertise is based on all sorts of information they receive from others, tons of which could be hearsay. So when they show up and they say, well, I did this clinical trial and these a hundred people told me these various things, it sort of undercuts an expert, the whole idea of an expert to say, well, you can't say any of that because it would be impractical and sort of ludicrous to

require the Crown to then call those 100 people for the experiment. And so that's traditionally why we allow experts to use a hearsay. But in this case, the hearsay is so direct, but the court doesn't treat it like that, which is a weird way to put it. But the hearsay is these young men are gang members and Mr. Sheriff is the leader of the gang. But what the court does with it is they say,

you can't use it for that to say that the sheriff is the leader of a gang, but you can use it as a piece of evidence the expert used to talk about gangs generally. Now I think you're referring to retired justice, US Chuck's instructions to the jury. So this is a jury trial. And of course we don't know what goes on inside any jurors mind because that's something that's forbidden in our law. But would it not have had an effect on a jury

to have heard those words about sheriff being not only in this gang, but the leader of this gang? Yeah, I think what's strange about Justice U is Chuck's instruction is he's sort of telling them, well, you can't use this for the plain meaning of it. Like when the Texas says that a CI says that a sheriff was the leader of a gang, you can't use it for that purpose, but you can use it to think about whether or not sheriff was the leader of a gang and

We don't know how juries think but I can't imagine The jury wouldn't just take it at face value and especially because it's coming from an expert I just can't imagine a jury wouldn't surrender to the temptation of just taking that out at face value and just believing it When we were chatting before we started recording he used the word terrifying. Why is that terrifying? So I think it's terrifying. I'm is terrifying for defense lawyers, but I should be terrifying for everyone as terrifying because It can't be challenged like when

NASA comes and says, DCI said Mr. Sheriff was the head of a gang, there's just no way to challenge that. And I think the role of a defense lawyer, as I'd say, is to uphold the rules, but it's also to challenge the Crown's evidence, whatever it is. So anytime you see a piece of evidence,

your first thought is, well, how can I challenge this or discredit it or at least attempt to? And the way that this evidence came in, Chris Hicks, the defense lawyer, could not challenge that evidence in any practical way or any direct way because he just wasn't allowed to know the ideas of the CIs. My read of it is he doesn't even know what the CIs said. He doesn't know how it was said and the actual phrasing of it. All he knows is the sort of the bald conclusion. Any time sort of a bald conclusion of guilt comes into a trial and there's no way to challenge it, that's terrifying because how do you avoid a conviction in that? When

the jury is told this person is the head of a gang, they're just going to accept that. I mean, why wouldn't they? Chris Hicks did make a motion and these words were used, innocence at stake. I don't understand that. Can you explain that? So Innocence SIG is an incredibly high standard. So just to back up one second with regard to CIs, I mean, why there's such extreme rules around their identities is because there's a real danger. There's a real safety concern. And that's a real thing that if a CI's identity comes out that they might, a harm might befall them. And that's why there's such extreme rules.

The flip side of that rule is that if you can show the defense has the burden, show that revealing the identity of the, the CI will result in showing that your client is innocent, then their identity can be shown. Their very innocence is at stake. And the only way we can show that they're innocent is by unveiling the CI. And has that ever happened? I mean, not to my knowledge.

I've been practicing for 20 years. I've never heard of it happening. We'll be right back. I've never heard of it happening. We'll be right back. Whether it's for your house, cottage or building, make your next roof last with Havelock Metal. Havelock Metal has been specializing in steel roofing, siding, trim and accessories for over 30 years. Visit HavelockMetal.com to request your quote today.

Isn't it, Dean, a bit of a catch-22 that to show the innocent at stake, Chris Hicks, who's Chris Sheriff's lawyer, would have had to get the information so that he could show that to the judge without the jury present. And then he'd use that information to show innocence at stake, but he can't get to first base. Yes. I mean, that is the catch-22 is that to be able to show that unveiling the CI would prove the innocence. Number one, yes, you basically need the idea of the CI to show that. And so in this situation, would it be the judge who is being called upon to say, yes, innocence is at stake, we're going to dig into the CI

and find out who he or she is? Yes, yeah. Okay. The judge has to make that decision. That must be, you've been a lawyer for 20 years, it must be frustrating when a judge shuts the door completely. Yes. What goes through your mind as a lawyer when that happens?

That I'm going to call my law partner who does more appeals and she'll deal with it on appeal for one, but I mean, it's a terrible sinking feeling. I think because it's this adversarial system, a huge part of it is just being able to challenge it. And I think when you have a fair trial where everything runs as it should, you can challenge the evidence and then the trier of fact, the jury or the judge can go the other way and you can still lose, but you still feel like you've had a fair trial and you were able to at least challenge it. In a situation

like this, I can't imagine what Chris felt, but all that's taken away because he can't even challenge it. So it's a real feeling of unfairness. It just feels like you've been sort of unfairly. And your client, who's the one who's going to go to jail, is being unfairly, that's an unfair result. Just the injustice of it is really, really disheartening. There's a two-page document summary which I obtained, which is heavily redacted, but it shows some of the things that Nassar, it's a report he prepared, Detective Nassar prepared saying to the court, here's what I can reveal about my CIs. And some of it gets into

court. One thing that doesn't get into court is the following quote that one of the CIs said that Chris Sheriff had quote bodies to his name. That doesn't get conveyed to the jury, but the judge sees that. I asked Chris Sheriff who's serving his life sentence in Collins Bay about that. And he said, well, where's the follow-up? He said, if I have all these bodies to my name, if I'm this big gang leader, why didn't they check to see if there's other cases they could close? He's, I won't say resigned to this, but he feels that the justice system wasn't fair to him. I mean, I think he's certainly entitled to feel that way. I mean, because I think as you say, this door gets slammed shut, and you can't even examine it. And I mean, that,

what he points out is really an astute observation. And the irony is probably why that peace guts held back from the jury is because they would say, well, that's prejudicial. Like to suggest that he had killed other people is prejudicial. But of course, the flip side, in my understanding, is that he had no criminal record, was sort of a soccer. Soccer player, working. Yeah, studying to be a carpenter.

And so either here or Chris Hicks could have used sort of that piece to discredit the CI to say, well, this is how ridiculous that this is. Crown attorneys are supposed to represent the people, am I correct? They're not just to prosecute. And so do crowns have a role here going forward to make sure that CIs, which are used from time to time, are used correctly? What do you think about that? I mean, they do for sure. I mean, I think Crowns have to be very, very careful with CIs because of the danger that CIs can be in. But then also, again, like as you say,

I think they represent the public, but their job in a trial is to seek the truth. Is not to get a result, but to call the appropriate evidence so that the truth is got at at the end of the day. And with the use of a CI like this, you'd think, I would hope, Crowns would be equally concerned with saying, well,

how do we know that this is true? And they should be on guard of that just as much as defense counsel or the court. I mean, this case, the Chris Sheriff case, was 12 years ago. And I've looked for other examples of CIA evidence being used in this way, and I just haven't been able to find it. You've not heard it. What do we take from that?

As I said, I think this is sort of a confluence of expert evidence, hearsay and gang expert evidence. And I think all three of those have evolved in a way that would make this less likely to happen now in the last sort last 12 years. And I think, I wonder if this case came back around today and the crown tried to do the same thing, whether or not it would actually go in. And it may not now. The final thoughts from you about the danger of CIs.

Well, I mean, the danger is just you just can't challenge them. And juries, in my view, if you just tell them something that's such a straight line, like this person is the leader of a gang, it's very difficult to walk that back or explain how they can't use it. And so, I mean, and the danger is it's just not tested. There's lots of reasons why someone can be lying. And in this case specifically, these CIs could have either been lying or just been wrong. And now Mr. Sheriff has been convicted on the strength of that. And we truly don't know whether they're lying or whether they're reliable or whether they were wrong. And that was a big factor, it would seem, in his conviction. That is the danger come to life.

Dean, thanks for coming in today. Sure. Thanks so much for having me. Murder on Mount Olive was written and narrated by me, Kevin Donovan. It was produced by Angeline Francis and Sean Pattendon. Our executive producer is JP Fozo. Additional production by Kelsey Wilson, Matt Hearn and Tanya Pereira. Sound and theme music by Sean Pattendon.