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Clayton George Mentuck

From Judge MacInnes' acquittal, Court of Queen's Bench Manitoba, September 28, 2000

In conclusion, and for any one or all of the reasons expressed, I conclude that Mr. Benson is an untruthful and unreliable witness, and his evidence likewise is untruthful and unreliable. I do not accept that the accused made the so-called confession to Benson as testified to by him.

[73]   The remaining alleged confessions occurred within or as a part of a 'Mr. Big' sting operation conducted by the RCMP and known as Operation Decisive.

[74]   The RCMP hired Douglas Brau to act as an informant and aide in involving the accused in the sting operation. The accused was a prisoner at BCI in August 1998. Mr. Brau agreed with the RCMP, in exchange for a payment of $25,000 with a possible further payment of $25,000 for relocation purposes, to approach the accused and sell him on the possibility of his working with Mr. Brau in a criminal organization following his release.

[75]   Mr. Brau visited the accused on approximately four occasions in August and September, 1996, picked the accused up at BCI when he was released on September 8, and took him to a residence in Brandon which, unknown to the accused, had been rented to the RCMP That house, which was described by those in the sting operation as the front house, was wired for both audio and video and for the recording of telephone calls made from the residence.

[76]   The scheme was that an RCMP officer, Constable Teufel, would meet regularly with Brau and the accused as their boss in this criminal organization, would instruct them as to the jobs which they were to perform and pay them for their services. On September 8, 1998, the date of the accused's release, Teufel visited the front house, was introduced to the accused by Brau, and loaned the accused $100 to buy clothes, the accused having no clothes other than those which he was wearing when released from jail. On September 9 and each successive day thereafter through September 16, except for Sunday, September 13, Teufel met with the accused and Brau, instructed them as to the jobs to be performed each day and paid them upon completion of the job. To describe the work as minimal in nature and the payment as easy money would be an exaggeration in the extreme. For those seven days, performing work that took approximately 20 hours, the accused was paid $1,800.

[77]   Throughout the period of the sting operation, which concluded with the accused's arrest on September 19, Constable Teufel, acting undercover, sought to impress the accused with the fact that this was an opportunity for him to earn considerable money over a prolonged period as part of this criminal organization, that the criminal organization was a large and powerful organization smarter than and with more resources than the police, and that sums of money which the accused was asked to count or participate in the count of, $20,000 and $50,000, were "chump change" compared to what the accused was capable of making if he continued to be a part of the criminal organization. Teufel proceeded to impress upon the accused that in order to be and remain a member of this criminal organization, honesty, integrity and loyalty were paramount. Specifically, the accused was told that this meant he had to come totally clean with Teufel (and therefore with the organization), and had to tell them all of the bad things he had done so that they would be fully aware of the details of his past criminal conduct. It was made clear to the accused throughout that the organization did not care what it was he may have done. Indeed, he was told of the heinous offences of some members of the organization and how they had prospered in the organization. It was drummed into the accused that he tell Teufel and the organization exactly what he had done, both as proof to them of his honesty and so that they would be able to protect him and not be faced with any surprises resulting from police attendance or arrests of the accused for things which the organization were not aware of.

[78]   Between September 8 and 17, activities were structured in such a way as to ensure that Teufel had lengthy one-on-one time with the accused so that he could repeat over and over this mantra of honesty, loyalty and integrity, of the fact that the organization had to know everything the accused had done and all of its details, that the organization did not care what it was he had done, and that if he were honest and loyal, he would have a lengthy and lucrative future in the organization.

[79]   On the first occasion where Teufel and the accused spent time one-on-one, namely, a car ride together from Winnipeg to Brandon, they had some detailed discussion about the accused's family and his background. The accused, however, made no mention of the Amanda Cook murder.

[80]   On September 17, Teufel met with the accused at the front house. The meeting involving just the two of them was videotaped. The videotape and the transcript of their exchange were marked as exhibits 29 and 30 respectively. At the outset, Teufel raised with the accused the fact that in their earlier discussion where the accused was telling him about all the bad things he had done, the accused forgot to tell him something. The accused responded:

Mentuck:      About that uh murder eh?

Teufel:         Yeah.

Mentuck:      Yeah. They tried to charge me with that but ... they couldn't do it cause they found out I didn't do it.

Teufel:         Heh?

Mentuck:        They found out I didn't do it. And that's why ... most of the time I don't want to talk about it sometimes.

The interview then continued for some considerable period of time. Throughout, Teufel told the accused repeatedly that the organization had its sources, that the organization knew that he had committed the murder, that they didn't care what he had done but they simply had to hear from him his admission that he had done it, consistent with the need for him to display honesty, loyalty and integrity. Despite Teufel's insistence that the organization knew that Mentuck had committed the crime and his pressing the accused to admit to it, the accused denied a dozen times or more that he had committed the offence. By the end of the interview, the accused made clear to Teufel that despite all that the organization was giving him and how much he was enjoying his involvement in the organization, he would be willing to give it all up and walk away. This despite the fact that Mentuck had complained bitterly about the fact that the police still thought he had committed the offence and would not leave him alone, and Teufel's assurance to him that the organization had somebody who was dying of cancer willing to confess to the offence as long as the organization took care of his family after his death, as a result of which the matter would come to an end and the police would never bother the accused again about the offence. When the accused consistently maintained his denial and said that he was prepared to walk away, Teufel responded that he would have to check with his boss first and urged the accused to think further about that which they had been discussing.

[81]   On September 18, the sting continued with a further one-on-one interview between the accused and Teufel at the front house. The interview began with Teufel saying:

Well I was busy all night. On the phone to my boss. Guess what we were talking about?

Mentuck responded:

About me?

And Teufel said:

About you. I'm in shit now. He's sending his right hand man out cause they say I'm fuckin' up here. So my ass is on the fuckin' line here. You were lying to me yesterday, weren't you? George, don't bullshit, okay? I told you they have contacts. Now my fuckin' ass is on the line here too. I was vouching for you. I could lose my fuckin' job. I don't want to lose my job. Because it's too nice of a life. I don't want to fuckin' give it up.

The thrust of that entire interview was Teufel impressing upon Mentuck, firstly, that the organization knew he had committed the offence and was lying to them and, secondly, that in doing so not only would the accused be out of the organization, but that Teufel, his sponsor, would likewise lose his job. Early in the interview and after pressing the accused and urging him to confess so that they could go and have a beer and get on with business, the following exchange occurs:

Mentuck:        Let's go have that beer.

Teufel:           What are you tellin' me? What are you tellin? Tell me, George. Huh?

Mentuck:        I guess I did then.

Teufel:           You killed her?

Mentuck:        [His response was unintelligible but he appears on the videotape to have nodded his head affirmatively.]

Teufel:           Now, does that feel better, George? Mmm? Do you feel better? [followed by a period of silence]

Teufel then asks him why he killed her and Mentuck responds "I was drunk". He then goes on to say that he can hardly remember what happened and proceeds to give brief detail as to how he and the deceased left the fairgrounds. Mentuck then says that the story he gave to the cops was not true. Teufel asks him to tell the truth and Mentuck responds:

Mentuck:        Yeah, that's what - that's what I just did.

Teufel:           Okay, she was bothering you?

Mentuck:        Yeah.

Teufel:           So you killed her?

Mentuck:        I guess I must of cause I can't remember that part.

Teufel:           Well, we got to try to remember here George.

[There was then a period of silence]

Teufel:           We got to try to remember. How did you kill her?

Mentuck:        They said I used a rock.

Teufel:           Well they said that. But how did you do it?

Mentuck;       I don't know.

Teufel challenges him again for details "so we can cover things up, George", and Mentuck responds:

Well, from what I all learned, like cause I don't fuckin' remember anything. I just remember running down that road ... that track there.

Teufel then proceeds to press him for more detail so that they can cover it up. Mentuck is unable to give any detail other than detail which he makes clear he has heard from others. At a later point in the interview, Teufel says:

But you know you killed her?

Mentuck responds:

Well, that's they're ... what everyone's saying.

Mentuck goes on to maintain that he does not remember what happened that night. Teufel presses further saying:

Well you know what happened.

And Mentuck responds:

The things ... the things what I'm sayin' ... it's because I've heard 'em from the courts and that's the only information I have.

Shortly thereafter, another RCMP undercover officer, Cpl. Guilcher, enters the front house. The whole purpose in his involvement here was to impress upon the accused that he was Teufel's superior, that Teufel was not doing his job because he was not able to get the necessary information from the accused, and that if Teufel was unable to get the information, he'd be out of the organization. As well, in exchange, it was made clear that 'Mr. Big' in the organization, Larry, was coming into town the next day so that he could meet the new prospect, the accused. After Guilcher left the interview continued, with Teufel reiterating that if he could not get the accused to confess and provide the details to that which the organization knew he had done, that Teufel would be out of his job. He stated again that he did not want to give up that life and went on to say to the accused:

And I don't think you do either. Cause where the fuck are you gonna end up? Back on the reserve and back in jail. Do you want to do that? Huh? George do you want to do that?

[82]   Again the accused offered to step out of the organization, return the money he had received and the clothing that had been bought and leave. In response Teufel made clear to the accused that it wasn't that simple, that they were in this together and that if the accused were to step out, Teufel would be out too. Teufel then said:

You know ... they know you killed her. You told me you killed her, but you're saying you don't remember. You gotta remember something George.

Mentuck responded:

I said, I guess I killed her.

Teufel said:

You guess?

And Mentuck responded:

Yeah. Cause I don't fuckin' remember anything from the fuckin' night there. I just remember fuckin' leaving the grounds, being tripped, getting picked up on the road, going home, playing Nintendo and passed out. ...

The accused maintained his denial and Teufel continued to assert that if the accused would not come clean, Teufel would lose his job in the organization.

[83]   Brau testified that that night, he and the accused and a girl had left the front house around 10:00 p.m. and returned around 2:30 a.m., spending the intervening time at a bar or bars. He testified that following their return, they had had a few drinks, and the accused asked him to tell the girl to go upstairs. Shortly thereafter the accused went over to the stairs, ostensibly for the purpose of ensuring that the girl had gone upstairs, and then called Brau over. He first denied killing the deceased and then admitted it. One immediately wonders why, if the accused's purpose was to ensure that the girl was out of ear shot, he would then have confessed to Brau at the foot of the stairs, the point nearest the girl, rather than walk back to Brau at the opposite side of the room and confess there. Doubtless though, stranger things have happened.

[84]   The Crown asserts that this is another confession (one of five) by the accused. As with the witness Benson, I find the witness Brau to be incredible and unreliable and, in particular, as regards this alleged admission.

[85]   It is true that Brau made notes of many of the occurrences in which he was involved in the sting operation. To the extent his notes and/or evidence are independently corroborated, such as by the evidence of Teufel, I am prepared to accept it as credible. However, where not so confirmed, I reject them as being untruthful or unreliable.

[86]   Mr. Brau is an individual with a lengthy criminal record. He admitted to being a drug trafficker over many years and, in reality, has derived his livelihood from that. In addition, he is an alcoholic who, by his own admission, had been known to consume up to 66 ounces of alcohol in a day and this, not on one isolated or a few occasions only. As well, he has been a longtime drug user. He testified, however, that at the time of this sting operation he was not drinking heavily and particularly during the course of the day while involved in sting activities, they were under instructions not to drink. He admitted, however, that in the evening they could drink as much as they wanted. On the night in question, it is unclear as to exactly how much he had had to drink. I am satisfied, however, that it was considerable.

[87]   While he testified that they were away from the front house from 10:00 a.m. until 2:30 a.m. and was adamant in that, he was then cross-examined with reference to the transcripts of telephone calls which he had made from the front house the evening of September 18 and the early morning of September 19, and it was obvious that there were a number of calls made by him from the front house during the time when on his testimony they were not home. He could not recall any of them. Moreover, he testified that on the Friday night or Saturday morning (September 18/19) he found a note written by Mr. Mentuck which he turned over to the RCMP on the evening of September 19. That note was filed as exhibit 38 and reads:

Sept. 18/98

What I'm about to say to this person is untrue. The information I gave is from what I learned from these two officers (Frank Harvey, Gary Bardal). As I write this I'm in confusion, what I say was said in confusion. I still think I am innocent. I did not kill Amanda Cook. George Mentuck.

I note that Frank Harvey and Gary Bardal were two of the investigating officers who testified at the preliminary inquiry and on the voir dire at the commencement of the first trial.

[88]   Brau admitted that he read this note before he turned it over to the RCMP Brau knew the purpose of the sting operation. It is inconceivable to me that having read the note and knowing the purpose of the sting operation, he would simply turn the note over to the RCMP and not tell them of the confession made to him by the accused, that he had killed the girl. He admits having had the opportunity to do that, and this was confirmed by RCMP officers who testified. Brau did not tell the RCMP of this confession until September 20, after Mr. Mentuck's arrest and after he had been told that the sting operation was over. Was this statement made by him to the RCMP because he realized that with the sting operation over, his involvement was at an end as well, whereas his having received such a confession would necessitate his testifying at a subsequent trial and continue to entitle him to earn some part of the second $25,000?

[89]   Regardless, I conclude that his character and condition are such as to make his evidence, unless independently corroborated, unreliable. And as regards the specific evidence, namely the confession, I find it incredible that knowing as he did the purpose of the sting operation and therefore the importance of such a confession, and having had a clear and easy opportunity to make disclosure of it to the RCMP, he did not do so. I do not believe the alleged confession occurred.

[90]   On September 19, the accused was taken by Mr. Teufel to a hotel in Winnipeg to meet 'Mr. Big'. That meeting was orchestrated in such a way as to impress upon the accused the wealth and power of this organization. That interview was also videotaped and a written transcript provided (exhibits 36 and 37). In the interview, the big boss confirmed to the accused that they had this individual dying of cancer and aids who was prepared to admit guilt and that they had concocted a scam whereby, following his so doing, the accused would then be provided by the organization with a lawyer and the necessary financing to sue the government for having been wrongfully charged and jailed with respect to the murder. The accused was told by the big boss that his lawyer estimated the claim to be worth a million dollars and he guaranteed the accused a minimum of $85,000 or 10%, whichever was the greater, from the proceeds of the lawsuit, as well as a job in the organization. He impressed upon the accused that in order for this admission and scam to be successful, the individual who would take the rap would have to know all of the details of the murder because, undoubtedly, he would be interviewed extensively by the police before they would be prepared to accept his admission of guilt to the offence.

[91]   The accused then proceeded to provide details of the murder of Amanda Cook. The big boss drew the details from the accused and they were purportedly written down by Teufel, although the entire interview was being videotaped. Following completion of the interview, the accused was returned to the front house in Brandon where he was then arrested and subsequently charged with the murder of Amanda Cook.

[92]   There is no question that the accused confessed to the offence. The question however is, is his confession reliable? Is it evidence that the accused did in fact commit the offence in question, or is it the case that the accused has confessed to something which he did not do because of the circumstances which he was in and the inducements which he received? I conclude on all of the evidence that it is the latter.

[93]   I have reviewed the interview of September 19 in detail. I am not aware of the evidence in detail given at the preliminary inquiry, nor of the evidence given by the accused to the police which was ruled inadmissible on the voir dire which preceded the initial trial. As well, I am not aware of that which the investigating officers may have told the accused in their dealings with him. I am aware, however, of the witnesses who testified at the preliminary inquiry and of many of the exhibits that were introduced on it. I am aware as well that pursuant to Stinchcombe, the Crown is under an obligation to make full disclosure to defence counsel and would undoubtedly have done so in connection with the preliminary inquiry and the intended first trial, both of which occurred prior to the sting operation in September 1998.

[94]   As is evident from the interviews, much of that which the accused related to both Teufel and 'Mr. Big' on September 17, 18 and 19 was, as he described them, the result of things he'd been told or had seen in connection with the court proceedings. Having reviewed and analyzed the interview of September 19, there appears to me nothing disclosed by the accused in his confession relative to the activity which occurred at the crime scene and/or in the commission of the offence itself, which was knowledge peculiar to the accused and not simply information that had come out as part of the police investigation and/or by way of disclosure and/or evidence at the preliminary inquiry or voir dire preceding the first trial.

[95]   It is true that the accused gave some details of him and the deceased proceeding together to or toward the murder scene. But they were in my view really innocuous comments, easily made up. In fact, on the evidence, part of it at least was untrue.

[96]   The accused said he had fallen and banged his head, causing him to black out so that the next thing he recalled was being picked up on the road as he headed home. He also said he was very drunk and, on arriving home, passed out. Evidence of many witnesses is to the contrary. There is no evidence that he complained to anyone of striking his head, being concussed or blacking out. There is much evidence, though, that the accused appeared normal, acted normal, was not drunk, and on arriving home did laundry, ate a meal, played Nintendo and went to bed.

[97]   Is the accused's blackout and extreme intoxication, as he asserts, his way of being able to go along with the demands of the organization, while at the same time allowing himself some escape from even falsely admitting to the murder?

[98]   And what of the note - exhibit 38? If one puts too fine a point on it, one wonders why some of it is in the past tense, whereas some of it appears to refer to a future event? But one must remember the circumstances surrounding the writing of the note, that is, that it was written towards the end of the sting operation following the intensive interrogations by Teufel on September 17 and 18, and in the face of the prospect of meeting the big boss on September 19. As well, it is the product of an unsophisticated young man with probably no more than a grade 7 education and a life of deprivation, in at least the material sense. Does the note refer to that which he told Teufel on September 18, or that which he was expecting to tell the big boss on September 19? Or, is it simply the accused's way of saying that he did not kill Amanda Cook, that he still believes he is innocent, but that with all that he has heard, he is confused? I don't know the answer. But the note is not conclusive of any fact in any event.

[99]   Overall, when one analyzes the position that the accused found himself in by reason of the sting operation, I conclude that the inducement for him to admit the offence was positively overwhelming. There was nothing but upside for him to admit and nothing but downside for him to deny the offence. If he were to admit to the killing, he would thereby demonstrate his honesty, loyalty and integrity to the organization, having been told repeatedly that the organization knew he had done it, did not care that he had done it, and had someone who would admit to the offence. All he had to do was admit to that which they knew in any event he had done. Indeed, Teufel made it clear that in the circumstances being truthful equalled admitting the murder; denying it meant he was lying because of course the organization knew he had done it. Were he to admit it, because someone else was then going to take the rap, his name would effectively be cleared and he would never be bothered about the matter by the police again, something that was a source of ongoing annoyance for him. In addition, he would be able to successfully sue the government as part of the scam for which he was guaranteed a minimum of $85,000. As well, he would be guaranteed an ongoing position in the criminal organization, an occupation which over a period of seven days had paid him $1,800. for doing little in the way of work and which perhaps, as one police witness admitted, may have been more money than he'd seen in his life. As compared with that, to maintain his denial would mean that the stigma of this offence would continue to hang over his head, that the police would continue to bother him about it in the future, that he would not receive the $85,000 and indeed would be out of the criminal organization and the job and income which that provided. As well, the person with whom he was working and who had appeared to take him under his wing, Teufel, would likewise be out of a job. What would that leave him for the future? Probably that which Teufel himself described, namely, back on the Reserve and back in jail.

[100]   I fully recognize that when the police are attempting to solve crimes and, in particular, to obtain admissions from people they honestly believe to be suspect, that they may be required to resort to tactics which some may describe as unfair or dirty. It is unnecessary for me to consider or make comment about that here. But, in my view, the police must be aware that as the level of inducement increases, the risk of receiving a confession to an offence which one did not commit increases, and the reliability of the confession diminishes correspondingly. In this case, in my view, the level of inducement was overpowering. As I have already said, it provided nothing but upside for the accused to confess and a downside of frustration and despair in maintaining his denial. I conclude that the confession, if not false, is certainly too unreliable for acceptance as an admission of guilt.

[101]   When I consider the totality of the evidence, namely, the circumstantial evidence including the physical and scientific evidence, the evidence pertaining to opportunity, and the sting operation in its entirety, including the accused's adamant denials, his insistence upon his being drunk and concussed in an attempt at explaining away that to which he was confessing (and for which there is no evidence, indeed there is evidence to the contrary), and the note which he wrote on September 18 prior to his attendance in Winnipeg on the 19th, I am not satisfied that the Crown has proved the guilt of the accused beyond a reasonable doubt. Indeed, I conclude that it would be unsafe to convict the accused based upon the evidence and, as stated at the outset of these reasons, I therefore find the accused not guilty of the murder of Amanda Cook as charged.