Smokescreen

Summary

Suspicion: Murder on Mount Olive – Bonus Episode: “Smokescreen”

Date: May 16, 2025
Host: Kevin Donovan (Toronto Star)
Guests: Dean Embry and Aaron Dan (Toronto defence lawyers)
Theme: The perils of using confidential informants (CIs) and hearsay evidence in serious criminal cases

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Episode Overview

In this bonus episode, Kevin Donovan delves deeply into the controversial use of confidential informants (CIs) and hearsay evidence in the Canadian justice system, using the case of Christopher Sheriffe—serving life for a murder conviction he steadfastly denies—as a focal point. Donovan is joined by veteran defence lawyers Dean Embry and Aaron Dan, who illuminate the legal, ethical, and practical dimensions of relying on secret, untested information when a person’s liberty is at stake.

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Key Discussion Points & Insights

1. What is a Confidential Informant (CI)?

• CIs are individuals who provide information to police under a promise of anonymity, sometimes formalized in a contract, sometimes as a one-off verbal understanding.
• Motivations for acting as CIs vary: some help for leniency, lesser charges, bail consideration, or direct financial compensation.
  • “Usually in my experience, not out of the goodness of their heart… for either to get bail or a lower sentence, or for money.” – Dean Embry [03:00]
• The defense is rarely told anything specific about the CI, including compensation details:
  • “Any information we get is highly, highly vetted… 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.” – Dean Embry [03:34]

2. How CI Evidence is Treated in Court

• Strict legal protections exist to prevent the defense or the accused from learning any information that might identify a CI.
• CI information is mainly used to set police investigations in motion (e.g., obtaining a search warrant), but generally cannot be used as direct evidence at trial.
  • “Their evidence isn’t admissible… The Crown can’t rely on it directly. They can’t just put in a tip and say, ‘the CI said this person was dealing drugs.’” – Aaron Dan [06:38]
• The rationale: CIs are often “unsavory witnesses,” with incentives to lie, and their information cannot be challenged through cross-examination.

3. The CI-Hearsay Paradox

• Using CI information as trial evidence is dangerous, because hearsay is inherently unreliable.
  • “The big pitfall is they might be lying… Any other witness who… gave this evidence for money, the court would look at askance.” – Embry & Dan [06:02]
• Hearsay rules exist precisely because the defense can’t probe or cross-examine the source:
  • “A foundation of our criminal justice system… is adversarial. If someone comes and says, ‘That car was red,’ the other side gets to cross-examine… With hearsay, you can’t do that because Jim, in your example, is not in the room.” – Embry & Dan [08:50]

4. How CI Information Entered the Sheriffe Case

• Former Toronto Police Constable Aman Nasser used CI reports not just for search warrants, but incorporated them into his testimony as an expert witness on gangs.
• Nasser told the jury that CIs identified Sheriffe as a gang leader—the leader of the "Hustle Squad".
• This information entered the trial via an expert’s opinion—bypassing the usual prohibition—because experts can base their views on hearsay, a possibility originally designed for technical or scientific information, not untested criminal allegations.
  • “What Teg Nasser does is he is an expert witness about gangs… He gets information from two CIs… and uses that as a basis for his opinion… The CI information sort of sneaks in through the expert opinion. And that’s… extraordinary.” – Dean Embry [10:45–11:20]

5. Why the Approach is “Terrifying”

• The court instructed the jury they could not use the CI information to directly prove Sheriffe was a gang leader, but could consider it “as a piece of evidence.”
  • “I can’t imagine the jury wouldn’t just take it at face value… especially because it’s coming from an expert.” – Aaron Dan [14:51]
• The process is deeply flawed: neither the defense nor the jury can challenge the credibility, motivation, or accuracy of the CIs, yet their statements underpin a serious conviction.
  • “Anytime a bald conclusion of guilt comes into a trial, and there’s no way to challenge it, that’s terrifying.” – Dean Embry [16:21]
  • “The way this evidence came in, Chris Hicks (defense) could not challenge that evidence in any practical way… All he knows is the bald conclusion.” – Dean Embry [16:00]

6. Catch-22 of “Innocence at Stake”

• The Supreme Court’s “innocence at stake” exception allows a defense lawyer, in extreme cases, to seek to unmask a CI—but only if revealing the CI’s identity would prove their client’s innocence. In practice, this is almost impossible.
  • “You basically need the idea of the CI to show that (they could prove innocence)… But you can’t get to first base.” – Interviewer/Embry [18:39–18:59]
  • “In 20 years of practice, I’ve never heard of it happening.” – Aaron Dan [17:39]

7. The Emotional Toll and Unfairness

• Defense lawyers express frustration and powerlessness when shut out from mounting a meaningful challenge.
  • “It’s a terrible sinking feeling… because it’s this adversarial system. A huge part of it is just being able to challenge it… In a situation like this, I can’t imagine what Chris felt, but all that’s taken away.” – Aaron Dan [19:15–20:05]

8. Sheriffe’s Perspective

• He remains baffled: police apparently believed he had “bodies to his name” but made no effort to investigate further.
  • “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?” – Paraphrasing Sheriffe [21:20]
• Had the defense been allowed to challenge the CI claim, they could have shown Sheriffe was a student and soccer player.

9. Crown Attorney’s Role and Systemic Lessons

• Crowns must be careful with CIs, balancing the need for secrecy with the risk of injustice.
  • “Their job… is to seek the truth, not to get a result… With the use of a CI like this, you’d think… Crowns would be equally concerned with saying, ‘How do we know this is true?’” – Aaron Dan [22:46–22:58]

10. Uniqueness and Implications of the Case

• This use of CI-hearsay-expert evidence is highly unusual, perhaps singular in Canadian law.
  • “This is a real outlier… The confluence of expert evidence, hearsay, and gang expert evidence… If this case came up today, it may not be allowed.” – Dean Embry [23:07–23:50]
• The central danger remains: unchallengeable, possibly false, evidence can ruin lives.
  • “The danger is just you just can’t challenge them… These CIs could have either been lying or just been wrong. And now Mr. Sheriffe has been convicted… That is the danger come to life.” – Dean Embry [24:18–24:45]

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Notable Quotes & Timestamps

• “The big pitfall is they might be lying.” – Dean Embry [06:02]
• “Any other witness who… gave this evidence for money, the court would look at askance.” – Aaron Dan [06:14]
• “This case is a real outlier in terms of use of CI information in an expert’s opinion… The principles underlying expert evidence and hearsay and CIs kind of all gets muddled.” – Dean Embry [12:20]
• “I just can't imagine a jury wouldn't surrender to the temptation of just taking that at face value and just believing it.” – Aaron Dan [15:01]
• “Anytime a bald conclusion of guilt comes into a trial, and there’s no way to challenge it, that's terrifying…” – Dean Embry [16:21]
• “You basically need the idea of the CI to show that (innocence is at stake), but you can’t get to first base…” – Interviewer/Embry [18:48]
• “In 20 years of practice, I’ve never heard of it happening.” – Aaron Dan [17:39]
• “It just feels like you’ve been… unfairly (treated) and your client, who’s going to go to jail, is being unfairly… The injustice of it is really, really disheartening.” – Aaron Dan [20:12]
• “Their job… is to seek the truth… With the use of a CI like this, you’d think, Crowns would be equally concerned with saying how do we know this is true.” – Aaron Dan [22:46–22:58]
• “The danger is just you just can’t challenge them… These CIs could have either been lying or just been wrong. And now Mr. Sheriffe has been convicted… That is the danger come to life.” – Dean Embry [24:18–24:45]

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Important Segments & Timestamps

• [00:33] Episode introduction and topic overview (Donovan)
• [01:03–03:20] Explaining what a confidential informant is, why people become CIs, and how little is shared with the defense
• [05:23–07:13] Benefits and serious dangers of using CIs in criminal cases
• [10:38–13:23] How CI information was used in the Sheriffe case—“sneaking” it in through expert testimony
• [15:01–16:21] Jury psychology and why this evidentiary approach is “terrifying”
• [18:39–19:15] Discussing the catch-22 of “innocence at stake” and its unlikelihood in practice
• [20:24–22:07] Sheriffe’s reaction, the impact on his defense, and the inability to challenge key evidence
• [23:07–24:45] Summation: why this case is an outlier, dangers of untested evidence, and what’s at stake for justice

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Final Thoughts

This episode powerfully underscores the fragility of justice when legal safeguards are bent or bypassed. The Sheriffe case—a rare instance where CI information entered substantively into the jury’s deliberation—demonstrates the catastrophic risk of relying on secret, untested accusers. The guests’ candid insights, and Sheriffe’s own voice from prison, remind listeners that real lives hang in the balance when “smokescreens” obscure due process.

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For those new to this season or the Canadian justice system, "Smokescreen" is an indispensable listen, laying bare the tensions between public safety, informant protection, and fair trials—leaving listeners with urgent questions about how we balance these crucial values.

Transcript

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[Kevin Donovan]

from the Toronto Star, I'm Kevin Donovan and this is season four 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. Smokescreen the perils of using confidential informants and hearsay evidence when a man's freedom is at stake.

[Interviewer]

Why don't you start by telling me your name and what you do for a living?

[Dean Embry]

So my name is Dean Embry.

[Aaron Dan]

I'm a defence lawyer in Toronto. I'm a partner at Embry Dan, which is me and Aaron Dan.

[Dean Embry]

I have a practice and I've been practicing since 2004.

[Aaron Dan]

I've been a defense lawyer my entire career.

[Interviewer]

What do you see as the role of a defense lawyer in our justice system?

[Aaron Dan]

In my job, I get hired to try to help clients win their case

[Dean Embry]

and be acquitted if I can or get them out of trouble with the

[Aaron Dan]

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.

[Interviewer]

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?

[Dean Embry]

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

[Aaron Dan]

implicit agreement whereby the person will tell

[Dean Embry]

the police or the officer something on

[Aaron Dan]

the understanding that their identity will never be revealed to anyone else, quite frankly,

[Dean Embry]

and most importantly, not revealed to the defense.

[Interviewer]

And how does that in your experience, come about? How does that. It's almost a contract between a police officer and the CI.

[Dean Embry]

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

[Aaron Dan]

to an officer, I have information. I'll give it to you if you don't tell anyone who I am, basically.

[Interviewer]

And is that done out of the goodness of their heart?

[Dean Embry]

Sometimes, but usually in my experience, not.

[Aaron Dan]

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

[Dean Embry]

or for a lower sentence or that sort of thing, or it's not uncommon.

[Aaron Dan]

That's quite common, actually, for money, and they'll do it for compensation.

[Interviewer]

And can we just explore that a bit? The money part of it? Is there a set amount that you get $10,000 or $2? What sort of money are we talking about and how does that come about?

[Aaron Dan]

So that I don't know, to be frank.

[Dean Embry]

And I think why I don't know that is because when defense counsel learn about comp intelligence informants, any information we

[Aaron Dan]

get is highly, highly vetted. So if I'm doing a case where

[Dean Embry]

SCI is involved, I'll be told the

[Aaron Dan]

confidential informant got compensation, but any other detail is vetted out, and I'm not able to find that out.

[Interviewer]

So they actually don't tell you that for this information that is being brought against your client, this person was paid X dollars?

[Aaron Dan]

Yeah, we were not told that.

[Dean Embry]

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

[Aaron Dan]

that could possibly identify them.

[Dean Embry]

So that sort of thing.

[Aaron Dan]

I mean, 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, I had a friend who just bought a new car, or et cetera, et cetera, came in to 200 bucks or something. So even details that minute are denied to defense.

[Interviewer]

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?

[Dean Embry]

And that's what I'd sort of alluded

[Aaron Dan]

to when I talked about the contract.

[Dean Embry]

I think there is a system. I don't know it intimately, but there is a system whereby informants are registered.

[Aaron Dan]

I think they're given sort of a number or 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 give it that much more credibility going forward.

[Interviewer]

Do CIS form A crucial role in our justice system. Is it important that police have this technique?

[Dean Embry]

I mean, I'd say yes.

[Aaron Dan]

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're

[Dean Embry]

used mostly, I think, in drug cases to get to accused, but also in

[Aaron Dan]

murder cases and things like that.

[Dean Embry]

They serve an important role because they

[Aaron Dan]

can give information that would otherwise not be given.

[Interviewer]

And what is the pitfall of using a CI?

[Dean Embry]

The big pitfall is they might be lying.

[Aaron Dan]

And it's a real danger because they tend to be sort of unsavory witnesses,

[Dean Embry]

people with their own involvement in the criminal justice system.

[Aaron Dan]

I mean, any other witness who came and said, well, I did this, I came to give this evidence for money, the court would look at askance.

[Interviewer]

And so there must be a protection somehow in this situation. So that doesn't happen.

[Dean Embry]

Yeah. And the protection is sort of on the back end when there's a trial,

[Aaron Dan]

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.

[Dean Embry]

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. That they really serve is that they can give police information that sets them

[Aaron Dan]

on an investigatory path to get other admissible evidence that they can then be used, but the protection is that the

[Dean Embry]

police can use them, but the Crown

[Aaron Dan]

can't use the evidence in court.

[Interviewer]

And where is that protection? Is that in the criminal code?

[Dean Embry]

It's in the criminal code. It's also a lot of case law

[Aaron Dan]

is the basis of it.

[Interviewer]

So you're saying that the Crown cannot rely on what a CI says to aid in getting a person convicted?

[Aaron Dan]

Yes, that's right.

[Interviewer]

Okay, so my head is swimming right now because in the case that I'm investigating, the Chris Sheriff and Awed Asfaha case, the Crown seemed to use that information and how it was used as it came out through the police officer, Constable Nassar. 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.

[Aaron Dan]

Yeah.

[Interviewer]

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?

[Aaron Dan]

So no. No, you couldn't.

[Interviewer]

That's hearsay.

[Aaron Dan]

That's hearsay.

[Interviewer]

Okay, and why can't I say that?

[Dean Embry]

Well, because, again, sort of like a CI.

[Aaron Dan]

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.

[Dean Embry]

Or, I mean, more importantly, how does Jim know that? And so, I mean, a foundation of our entire criminal justice system in terms of how our trials work.

[Aaron Dan]

It's adversarial.

[Dean Embry]

So if someone comes and says that

[Aaron Dan]

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, in 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.

[Kevin Donovan]

We'll be right back.

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[Interviewer]

Aman Nasser, who was the former Toronto police constable, I interviewed him and he 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 Asfaha case?

[Dean Embry]

So, having reviewed the appeal decision and

[Aaron Dan]

as well as a portion of the

[Dean Embry]

transcripts, what happens, which is strange, is that what Tegnassar does is he is an expert witness about sort of gangs generally. And part of the information he gets

[Aaron Dan]

as part of putting together his expert opinion is he gets information from two CIS who say to Mr. Sheriff is involved in gang activity.

[Dean Embry]

And he uses that information as a

[Aaron Dan]

basis for his opinion about how gangs, and specifically this gang operates.

[Dean Embry]

And then the CI information, I'll say,

[Aaron Dan]

sort of sneaks in through the expert opinion. And that's sort of extraordinary because he's right.

[Dean Embry]

I mean, most of the time we

[Aaron Dan]

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 CIA information underpins an expert's opinion. And that's quite extraordinary, really.

[Interviewer]

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 CIA 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?

[Dean Embry]

I mean, the short answer is it doesn't.

[Aaron Dan]

This case is a real outlier in terms of the use of CI information in an expert's opinion.

[Dean Embry]

And what sort of happens is the principles underlying expert evidence and hearsay and

[Aaron Dan]

CIs kind of all gets muddled.

[Dean Embry]

And I think generally the rule for expert evidence is that they're allowed to use hearsay. Because if you think of this is

[Aaron Dan]

sort of a strange example. If you think a scientist who has

[Dean Embry]

run

[Aaron Dan]

a thousand experiments in an area

[Dean Embry]

and becomes an expert in that area, their expertise is based on all sorts of information they receive from others, tons

[Aaron Dan]

of which could be hearsay.

[Dean Embry]

So when they show up and they

[Aaron Dan]

say, well, I did this clinical trial and these 100 people told me these

[Dean Embry]

various things, it sort of undercuts an

[Aaron Dan]

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.

[Dean Embry]

And so that's traditionally why we allow

[Aaron Dan]

experts to use hearsay.

[Dean Embry]

But in this case, the hearsay is so direct. But the court doesn't treat it like

[Aaron Dan]

that, which is a weird way to put it.

[Dean Embry]

But I mean, the hearsay is, you

[Aaron Dan]

know, these, these young men are gang members and Mr. Sheriff is the leader of the gang.

[Dean Embry]

But what the court does with it is they say you can't use it

[Aaron Dan]

for that to say that sheriff is the leader of a gang, but you

[Dean Embry]

can use it as a piece of evidence.

[Aaron Dan]

The expert used to talk about gangs generally.

[Interviewer]

Now, I think you're referring to retired Justice Yoischuk's instructions to the jury. So this is a jury trial, and of course, we don't know what goes on inside any a juror's 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?

[Dean Embry]

Yeah. I think what's strange about Justice Yugeshuk's instruction is he's sort of telling them, well, you can't use this for the

[Aaron Dan]

plain meaning of it.

[Dean Embry]

Like when the detective says that a

[Aaron Dan]

CI says that a sheriff was the leader of a gang, you can't use it for that purpose, but you can

[Dean Embry]

use it to think about whether or

[Aaron Dan]

not Sheriff was a leader of a gang.

[Dean Embry]

And we don't know how juries think.

[Aaron Dan]

But I can't imagine the jury wouldn't just take it at face value, and

[Dean Embry]

especially because it's coming from an expert.

[Aaron Dan]

I just can't imagine a jury wouldn't

[Dean Embry]

surrender to the temptation of just taking

[Aaron Dan]

that at face value and just believing it.

[Interviewer]

When we were chatting before we started recording, you used the word terrifying. Why is that terrifying?

[Dean Embry]

So I think it's terrifying. I mean, it's terrifying for defense lawyers,

[Aaron Dan]

but it should be terrifying for everyone.

[Dean Embry]

And it's terrifying because it can't be challenged.

[Aaron Dan]

Like when Deputy Nasser comes and says, these CIS said Mr. Sheriff was the

[Dean Embry]

head of a gang, there's just no

[Aaron Dan]

way to challenge that.

[Dean Embry]

And I think the role of a

[Aaron Dan]

defense lawyer, as I'd said, is to

[Dean Embry]

uphold the rules, but it's also to

[Aaron Dan]

challenge the Crown's evidence, whatever it is.

[Dean Embry]

So anytime you see a piece of

[Aaron Dan]

evidence, your first thought is, well, how

[Dean Embry]

can I challenge this or discredit it

[Aaron Dan]

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

[Dean Embry]

just wasn't allowed to know the ideas of the cis. My read of it is he doesn't

[Aaron Dan]

even know what the CIS said.

[Dean Embry]

He doesn't know how was said and the actual phrasing of it. All he knows is the bald conclusion. And anytime sort of a bald conclusion of guilt comes into a trial and

[Aaron Dan]

there's no way to challenge it. That's terrifying, because how do you Avoid a conviction in that when the jury

[Dean Embry]

is told this person is the head

[Aaron Dan]

of a gang, they're just going to accept that. I mean, why wouldn't they?

[Interviewer]

Chris Hicks did make a motion and these words were used, innocence at stake. I don't understand that. Can you explain that?

[Dean Embry]

So innocence at stake is a incredibly high standard. So just to back up one second

[Aaron Dan]

with regard to cis, I mean, why

[Dean Embry]

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

[Aaron Dan]

comes out that they might a harm might befall them. And that's why there's such extreme rules.

[Dean Embry]

The flip side of that rule is

[Aaron Dan]

that if you can show the defense

[Dean Embry]

has the burden, show that revealing the identity of the CI will result in showing that your client is innocent, then

[Aaron Dan]

their identity can be shown. Their very innocence is at stake.

[Dean Embry]

And the only way we can show

[Aaron Dan]

that they're innocent is by unveiling the CI.

[Interviewer]

And has that ever happened?

[Dean Embry]

I mean, not to my knowledge.

[Aaron Dan]

I've been practicing for 20 years. I've never heard of it happening.

[Kevin Donovan]

We'll be right back.

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[Aaron Dan]

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[Interviewer]

Isn't 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

[Kevin Donovan]

so that he could show that to

[Interviewer]

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.

[Dean Embry]

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?

[Aaron Dan]

Yes.

[Dean Embry]

You basically need the idea of the

[Aaron Dan]

CIA to show that.

[Interviewer]

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?

[Aaron Dan]

Yes. The judge has to make that decision.

[Interviewer]

That must be. You've been a lawyer for 20 years. It must be frustrating when a judge shuts the door completely.

[Aaron Dan]

Yes.

[Interviewer]

What goes through your mind as a lawyer when that happens?

[Aaron Dan]

That I'm gonna call my law partner who does more appeals and she'll deal

[Dean Embry]

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.

[Aaron Dan]

And I think when you have a fair trial where everything runs as it

[Dean Embry]

should, you can challenge the evidence and

[Aaron Dan]

then the trier of fact, the jury or the judge can go the other

[Dean Embry]

way and you can still lose, but

[Aaron Dan]

you still feel like you've had a fair trial and you were able to

[Dean Embry]

at least challenge it. In a situation like this, I can't imagine what Chris felt, but all that's

[Aaron Dan]

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

[Dean Embry]

of unfairly and your client, who's the

[Aaron Dan]

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.

[Interviewer]

There's a two page document summary which I obtained, which is heavily redacted, but it shows some of the things that Nasser. It's a report he prepared, Detective Nasser 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.

[Dean Embry]

I mean, I think he's certainly entitled

[Aaron Dan]

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

[Dean Embry]

out is really an astute observation. And the irony is probably why that piece gets held back from the jury

[Aaron Dan]

is because they would say, well, that's prejudicial. Like to suggest that he had killed other people is prejudicial.

[Dean Embry]

But of course, the flip side, my

[Aaron Dan]

understanding is that he had no criminal record, was sort of a soccer.

[Interviewer]

Soccer player walking, studying to be a carpenter.

[Dean Embry]

And so either here or Chris Hicks could have used sort of that piece to discredit the CIA, to say, well, this is how ridiculous that this is.

[Interviewer]

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 I use from time to time, are used correctly? What do you think about that?

[Dean Embry]

I mean, they do for sure. I mean, I think Crowns have to

[Aaron Dan]

be very, very careful with CIS because

[Dean Embry]

of the danger that CIS can be in.

[Aaron Dan]

But then also, again, as you say,

[Dean Embry]

I think they represent the public, but their job in a trial is to

[Aaron Dan]

seek the truth, is not to get a result, but. But to call the appropriate evidence so that the truth is got out at the end of the day. And with the use of a CIA

[Dean Embry]

like this, you'd think, I would hope

[Aaron Dan]

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.

[Interviewer]

I mean, this case, the Chris Sheriff case, was 12 years ago. And I've looked for other examples of CI 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?

[Dean Embry]

As I said, I think this is

[Aaron Dan]

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 of 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.

[Interviewer]

Now, final thoughts from you about the danger of cis.

[Dean Embry]

Well, I mean, the danger is just you just can't challenge them. And juries, in my view, if you

[Aaron Dan]

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

[Dean Embry]

is it's just not tested.

[Aaron Dan]

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

[Dean Embry]

on the strength of that, and we truly don't know whether they were lying

[Aaron Dan]

or whether they were liable or whether they were wrong.

[Dean Embry]

And that was a big factor, it

[Aaron Dan]

would seem, in his conviction. That is the danger come to life.

[Interviewer]

Dean, thanks for coming in today.

[Dean Embry]

Sure.

[Aaron Dan]

Thanks so much for having me.

[Kevin Donovan]

Murder on Mount Olive was written and narrated by me, Kevin Donovan. It was produced by Angelyn Francis and Sean Pattenden. Our executive producer is JP Fozo. Additional production by Kelsey Wilson, Matt Hearn and Tonya Pereira. Sound and theme music by Sean Pattenen.

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