Review of Sobotiak murder conviction revealed undisclosed police evidence, court filing says
New trial ordered for Roy Sobotiak, 61, after he spent nearly 36 years in prison
The murder conviction stemming from the 1987 disappearance of an Edmonton woman has been thrown out, in part because there was undisclosed evidence from the police investigation.
Roy Sobotiak's lawyers filed written arguments in support of his bail application on Friday, which shed light on issues they raised with the investigation and trial that ended in 1991, convicting Sobotiak of second-degree murder in the death of Susan Kaminsky.
Namely, they outline issues around undisclosed evidence, an undercover "Mr. Big" police operation in the late 1980s and additional forensic evidence linked to the case — some of which was discovered after Sobotiak's conviction.
"In 1991, the case against Mr. Sobotiak was seemingly very strong. He was with Ms. Kaminsky the night before her disappearance and it was believed that she never left his mother's house alive because of his confessions to [the undercover officer] and his further confession on arrest," the brief says.
"Today, the factual landscape has fundamentally changed. There is a reasonable likelihood that the murder charge will be stayed on account of non-disclosure and/or due to the manner in which the Mr. Big operation was conducted."
Kaminsky, a 34-year-old mother, vanished in February 1987 and her body was never found.
Sobotiak, who was in his early 20s at the time, was the last known person to see her alive. He had told police that Kaminsky drove him home from his mother's house, where the two had spent time together after running into each other at a bar after midnight.
The federal justice minister ordered a new trial for Sobotiak this year, nearly 36 years after Sobotiak was arrested and imprisoned.
Court of King's Bench Justice Eric Macklin granted Sobotiak's release Friday. He is under a curfew and other court-ordered conditions.
James Lockyer, a founding director of Innocence Canada and one of Sobotiak's lawyers, called him "the longest-serving wrongly convicted man in Canadian history."
He noted the only other comparable case is Romeo Phillion, who spent nearly 32 years in prison before his murder conviction was quashed in 2003. A new trial was also ordered in that case, but Crown prosecutors in Ontario withdrew the murder charge against him in 2010.
Sobotiak, now 61, applied for the justice minister to review his conviction, Lockyer told the court.
A subsequent investigation by federal officials unearthed undisclosed evidence from police files, including evidence of other possible suspects in Kaminsky's disappearance, according to a written memorandum from Sobotiak's legal team.
"Its impact on the outcome of the applicant's trial and the fairness of his trial had to be assessed," the brief says.
The document, filed in the Court of King's Bench earlier this month, says the lawyers can't disclose specifics from the investigative report due to a confidentiality agreement.
'Mr. Big' investigation
Sobotiak's lawyers argued the Mr. Big operation that was used to elicit Sobotiak's original confession was abusive, and can't stand up to legal scrutiny.
In a Mr. Big sting, undercover police officers draw a suspect into a fictitious criminal organization. A Supreme Court of Canada ruling in 2014 set new standards for how this evidence can be used, with stricter rules about the legal admissibility of confessions made during these kinds of investigations.
In this case, the written arguments say, the operation came with implicit threats of violence and induced Sobotiak to confess by portraying membership in the fake criminal group as a path to emotional and financial security.
"The officers preyed on his vulnerabilities: his poverty, his mental health problems and his addictions," the brief says.
"It is surprising that Mr. Sobotiak held out as long as he did."
Sobotiak consistently denied any involvement in Kaminsky's disappearance over nearly 11 months of the Mr. Big sting — which started after police investigated Sobotiak through surveillance, wiretaps and a police informant who lived with him for several months.
Details of the investigation were revealed in court during the original trial.
Starting in October 1988, an undercover Edmonton Police Service detective befriended Sobotiak and took him along to staged drug deals and fake scouting trips to search for places to hide a dead body. The detective also bought Sobotiak food and alcohol, and paid him for being a "lookout" during drug transactions.
By September 1989, police decided to try getting Sobotiak drunk "to see if it would cause him to 'say something.'"
The undercover officer then pushed for details about Kaminsky's death in a hotel room, while Sobotiak drank an entire 26-ounce bottle of vodka.
In the videotaped meeting, Sobotiak becomes visibly intoxicated. The officer continued to press him with statements including, "'Our circle' knew he had killed Kaminsky and he needed to be honest if he wanted to be in their organization."
Sobotiak then "adopted" the officer's suggestion that Kaminsky died by accident, the lawyers' brief says. He said she fell and broke her neck while he was trying to carry her down the stairs at his mother's house.
The undercover detective prompted Sobotiak for details of Kaminsky's death in three more meetings over the following week. Sobotiak told a variety of stories, first repeating the death was an accident but adding that he'd transported her body from his mother's home in a duffel bag, dismembered it in his apartment, and disposed of it in two dumpsters. Then, he said he'd strangled her after a sexual encounter.
The fourth and final time, after the officer told Sobotiak about "the importance of his confession as a means of entry into their criminal organization," he repeated the story, claiming he "just went berserk."
Sobotiak was arrested the next day. The man he had been spending time with was officially revealed to him as a police officer.
Questions over witness statement disclosure
There's limited evidence about what was disclosed during Sobotiak's original trial, since the Crown and former defence lawyer's files have been destroyed, according to the brief filed in court.
But the brief alleges "substantial" non-disclosure of evidence, saying the "most striking" examples are statements Sobotiak's mother and sister gave to police that suggested Kaminsky was alive when she left the home, before she disappeared.
Another witness told police she saw a woman who resembled Kaminsky walking with a man, who wasn't Sobotiak, later on the day she disappeared — after the time police contended Sobotiak killed her.
A young neighbour also told police about possible sightings of Kaminsky and her car on that day, later than the time Sobotiak told the undercover police officer he killed her.
"Their statements would have undermined the veracity of Mr. Sobotiak's Mr. Big confessions and his further confession on arrest," the brief says.
During the original trial, the defence received a police investigation report that mentioned "several ex-boyfriends" of Kaminsky had allegedly been violent to her, including one who an RCMP officer suggested should be considered a suspect in her disappearance.
"No further information was provided about these partners of Ms. Kaminsky and what steps were taken to investigate them," the brief says.
It adds that DNA analysis done in 2023 also doesn't support claims Sobotiak made during his confession in the Mr. Big sting, about putting Kaminsky's body in a duffel bag he owned and dismembering her in his apartment.
The Alberta Crown Prosecution Service has yet to make a decision about whether they will put Sobotiak on trial a second time, nearly four decades after Kaminsky disappeared.
The province has applied for a judicial review of the decision to order a new trial.
There's no date yet when it might be heard in Federal Court, and Sobotiak's lawyers say it could take years to resolve.
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