36144 Johnston v. The Queen  (Criminal law — Evidence — “Mr. Big” confessions)

On appeal from the judgment of the Court of Appeal for British Columbia pronounced April 11, 2014. In 1998, the victim went to his sister’s home to diagnose a water leak while she was at work.  The Crown’s case was that the applicant, Mr. Johnston, had broken into the home and was discovered there by the victim when he arrived.  Mr. Johnston attacked the victim savagely.  The deceased was found in the kitchen.  He had been stabbed many times in the neck, and a knife blade that had broken from its handle was found in his neck.  A second broken blade was under his body.  The headset of a telephone was missing, as was the victim’s wallet.  Bicycle tire tracks were located on the property.  Mr. Johnston and his brother Michael were “persons of interest” to the police but were not immediately arrested.  The police apprehended Michael on another matter later in 1998.  He asked to speak to a police officer and gave to him a lengthy statement implicating Mr. Johnston in the crime; however, the Crown did not lay any criminal charge at that time.  Between March and September 2009, Mr. Johnston was the subject of a “Mr. Big” operation that resulted in him admitting to Mr. Big that he had killed the victim.  The judge admitted this statement into evidence.  Mr. Johnston also was alleged to have made statements to an accomplice in another killing, but the judge refused to place much weight on that evidence.  Also at trial, Michael testified that he could not remember the statement that he gave to the police.  The Crown sought to introduce a video of the statement.  After a voir dire, the trial judge was satisfied as to the threshold reliability of the statement and admitted it into evidence.  Having relied on Michael’s videotaped statement and Mr. Johnston’s confession to Mr. Big as corroborative of one another, the judge went on to conclude that he was satisfied beyond a reasonable doubt that Mr. Johnston had killed the deceased and found him guilty of second degree murder.  The judge later sentenced Mr. Johnston to life imprisonment and fixed the period of parole ineligibility at 17 years.  Mr. Johnston appealed unsuccessfully, both his conviction and his sentence.

The motion for an extension of time to serve and file the application for leave to appeal is granted.  Pursuant to subsection 43(1.1) of the Supreme Court Act, the case forming the basis of the application for leave to appeal is remanded to the Court of Appeal for British Columbia for disposition in accordance with R. v. Hart, 2014 SCC 52.