Court and Parties

Court: COURT OF APPEAL FOR ONTARIO Date: 2024-05-23 Docket: C68166

Judges: Fairburn A.C.J.O., Pepall J.A., Dawe J.A.

Between: His Majesty the King Respondent

And: Timothy Doug-Huyn Lee Appellant

Counsel: Richard Litkowski and Geoff Haskell, for the appellant Susan L. Reid, for the respondent

Heard: January 23, 2024

On appeal from the convictions entered on May 16, 2018 by Justice R. Cary Boswell of the Superior Court of Justice, sitting with a jury.

Reasons by: Dawe J.A.

A. Overview

1On the night of January 7, 2014, three people were shot – two fatally – in the parking lot of a housing complex in Richmond Hill. Forensic evidence revealed that shots had been fired from at least two guns.

2Text messages found on one of the deceased’s cell phone showed that the victims had come to the parking lot that night to do a marijuana deal. The police came to believe that the appellant, Timothy Lee, was the person who had set up this meeting. They launched a “Mr. Big” undercover operation, in which police officers posing as members of a powerful criminal organization arranged to meet and befriend the appellant.

3The Mr. Big operation lasted for nearly six months, and culminated with the appellant making a series of inculpatory statements to one of the officers, in which he admitted his involvement in a plan to lure one of the deceased, Premier Hoang, to the parking lot in order to kill him in connection with a gang dispute. The trial judge ruled that these statements were admissible.

4The appellant testified in his own defence. He acknowledged that he had sent the text messages that lured the victims to the scene, but denied knowing that the other people he was with that night had planned to kill Mr. Hoang, and denied that he had been armed with a gun or had fired any shots. The appellant explained that he had lied to the undercover officers about these things because he wanted the organization to protect him from prosecution, and did not think it would do so unless he had been culpably involved in the shooting.

5The jury found the appellant guilty of first degree murder in relation to Mr. Hoang, and guilty of manslaughter and attempting to unlawfully cause bodily harm in relation to the other two victims. ¹

6The appellant appeals against his convictions only. His main ground of appeal is that the trial judge erred by admitting his inculpatory Mr. Big statements. His second ground of appeal is that the trial judge made a further error by admitting an earlier statement in which he had told one of the undercover officers about his previous cocaine dealing.

7For the reasons that follow, I am not persuaded that the trial judge erred by admitting any of these statements, and would accordingly dismiss the appeal.

B. Factual background

(1) The shootings

8On the evening of January 7, 2014, Premier Hoang, who was 18 years old, exchanged a series of text messages with a person whose number was stored in his phone under the username “ArEx2”. Mr. Hoang was a drug dealer, and “ArEx2” expressed an interest in buying a quarter-pound of marijuana. They eventually agreed to meet in the parking lot of a housing complex in Richmond Hill to do the deal.

9Mr. Hoang arranged to get a ride to the meeting from his girlfriend’s older brother, Brandy Pathammovong, age 21. His girlfriend Brenda Pathammavong, age 16, went with them. When they arrived at the parking lot, Mr. Hoang got out of the back seat and walked up a nearby alley. Mr. Pathammavong then heard shots, and saw Mr. Hoang running back towards the car. Mr. Pathammavong got out of the driver’s seat, and saw a single shooter, who he thought was a Black male. He was then shot, but survived. His sister, who was sitting in the front passenger seat, had also been shot and died at the scene. Mr. Hoang, who paramedics found lying outside the car on the passenger side, was also shot multiple times. He was still alive when paramedics arrived, but later died.

10Police investigators found 19 spent 9 mm shell casings at and around the scene. Forensic analysts were able to determine to a high degree of probability that 10 had been fired from one gun, and the other 9 from a different gun. The police also found an unspent cartridge towards the south end of the parking lot.

11Several residents of the housing complex who had been woken up by the sound of shooting and had looked out their windows described seeing a single shooter, although one also recalled seeing a second man who may or may not have fired any shots. Three of these witnesses thought that the shooter or shooters were Black.

(2) The Mr. Big operation

12The police came to suspect that the appellant might have been the person who arranged the parking lot meeting with Mr. Hoang. This was in part because the appellant had previously used the name “ArEx” on social media and in a rap video, and because Mr. Hoang had a second number stored on his phone under the name “ArEx” which the police determined was in regular contact with the appellant’s girlfriend and siblings.

13The police commenced an undercover “Mr. Big” operation directed at the appellant that lasted for nearly six months. Over a series of meetings, undercover officers led the appellant to believe that they were part of a powerful and successful criminal organization. The trial judge referred to the two officers who served as the appellant’s main contacts by the pseudonyms “Mr. Gold” and “Mr. Green”, and I will do the same. Mr. Gold played the role of the head of the fictitious organization, while Mr. Green acted the part of one of his lieutenants.

14The appellant and Mr. Gold are both of Korean heritage, and the appellant began referring to Mr. Gold as “hyung”, which is a Korean term of respect for an older male. Mr. Green, who was the appellant’s closest contact in the fictitious criminal organization, took on what the trial judge characterized as “an almost father-like role”.

15As the Mr. Big operation continued, the officers paid the appellant to perform tasks that he was told were connected to the organization’s criminal activities, and led him to believe that if he kept working with the organization, he would be able to earn significantly more. At one point, the undercover officers involved the appellant in what they claimed was a scheme to shield one of the organization’s members from criminal liability for a serious assault.

16The Mr. Big investigation culminated on May 20, 2015 when Mr. Green took the appellant to a meeting in Niagara Falls with Mr. Gold and some members of a (fictitious) Russian criminal organization, ostensibly to finalize a lucrative deal to supply the Russians with fake credit cards. The appellant was told that he would receive a share of the profits if the deal was consummated.

17As Mr. Green and the appellant were driving back to Toronto together after the meeting, the police conducted a staged traffic stop, during which they told the appellant that there was an entry on CPIC advising that the York Regional Police wanted to question him as a suspect in some Richmond Hill shootings.

18Mr. Green then told the appellant that his being a suspect in a murder investigation could jeopardize the deal with the Russians, but that if the appellant was involved in the shootings the organization could protect him by arranging for a terminally ill person to falsely assume responsibility. However, Mr. Green added that for this cover-up scheme to work, the appellant would need to explain in detail exactly what had happened. He encouraged the appellant to be open and honest about any role he might have played, emphasizing that he did not care if the appellant was implicated in the shootings, but only wanted to arrange to have any such involvement covered up.

19The appellant and Mr. Green continued to discuss this for the rest of the day. For the first few hours, the appellant denied any knowledge of or involvement in the shootings, and expressed puzzlement about why the police would suspect him. However, he then changed his story and admitted to Mr. Green that he had been present during the shootings. He explained that he had “set up” Mr. Hoang by luring him to the scene at the request of a friend named “P.”, who had a gang‑related “beef” with the deceased regarding a previous shooting in Toronto. The appellant added that he had helped P. because he expected P. to reward him by supplying him with cocaine.

20The appellant explained further that they had driven to the meeting place in Richmond Hill with a group of eight to ten other men, travelling in three vehicles. In this first version, the appellant told Mr. Green that when they arrived at the meeting place he had stayed in the car, and that “P.” and another Asian male named J.T. had been the shooters.

[21] The appellant initially told Mr. Green that he had known from the outset that P. meant to kill Mr. Hoang, but he later equivocated about this, telling Mr. Green:

I knew it, but like I didn’t, like you know, when it happens is that’s when - like, you know, reality hits.

Mr. Green replied, “You knew they were gonna do it though? The appellant responded, “I knew they – they, well I – I kinda did”.

22Mr. Green told the appellant that it was unsafe for him to go home while the police were looking for him, and arranged to put him up in a hotel overnight. When they met again the next morning, Mr. Green pressed the appellant to explain how he been able to describe the shootings if he had waited in the car. The appellant then changed this part of his account, and told Mr. Green that he had actually left the car and witnessed the shootings. However, he continued to maintain that he had not been armed with a gun and had not been one of the shooters.

[23] Mr. Green then told the appellant: “So then I don’t need a guy to cover for you from what you’re telling me”, to which the appellant responded: “Yeah, well, what do I have to do then?”. Mr. Green reiterated that the organization had a terminally ill man who would come forward early the next week, and that the organization would have to “get [the appellant] outta here before Monday or Tuesday”. He then pressed the appellant to give the details about his new story of having seen the shooting after getting out of the car, stating:

I need to know if you did it or not. If you … merked him, that’s fine, I don’t care. I honestly don’t care, but, I wanna make sure that everything’s covered up, honestly. I’m not fucking lying here.

24After some further conversation, the appellant said: “Okay. I’ll tell you. It was me and P”. He proceeded to explain that P had given him a gun and they had gone to the alley together. When Mr. Hoang approached them, P started shooting and then followed Mr. Hoang as he ran back towards his car. The appellant stayed where he was and fired only one shot, which missed, after which his gun jammed. P then ran back to where the appellant was standing, and the appellant gave P his gun. P cleared the jam before running back to Mr. Hoang’s car and firing more shots.

25The appellant also explained how he and P had left the area afterwards, and told Mr. Green that he had later helped the others throw the dismantled guns onto the ice near Port Credit.

26Mr. Green and the appellant spent the rest of the day preparing for the organization to fly the appellant to Calgary the next morning. They also planned for Mr. Green to provide the appellant with an alibi for the night of the shootings. That afternoon, they drove to Port Credit and the appellant unsuccessfully tried to find the place where they had thrown away the disassembled guns. Mr. Green eventually took the appellant to a hotel near the airport and booked him a room for the night.

27The next morning, Mr. Green picked up the appellant and they had a further discussion about the shootings, during which the appellant told Mr. Green that P’s real name was Kevin Pham. Later that morning, the police moved in and arrested the appellant.

28The appellant’s inculpatory statements to Mr. Green were central to the Crown’s case against him at trial. After a lengthy voir dire, the trial judge ruled that the statements were admissible. This ruling is the subject of the appellant’s main ground of appeal.

(3) The appellant’s trial testimony

29The appellant testified in his own defence. He acknowledged that on the night of the shooting he had arranged to meet Mr. Hoang in Richmond Hill, at Mr. Pham’s request, but testified that he had believed that Mr. Pham genuinely meant to purchase marijuana from Mr. Hoang. The appellant explained that when they got to the meeting place, two more vehicles arrived with some more of Mr. Pham’s friends, and Mr. Pham directed him to go sit in one of these vehicles. A few minutes later, the appellant heard gunshots and saw a man he knew as J.T. running around a building. Another man approached J.T. and then left again, and the appellant heard more gunshots. Everyone then left the scene. Some time later, Mr. Pham and J.T. both got into the vehicle where the appellant was a passenger. He inferred from their conversation that they had been the shooters, and recalled J.T. saying that his gun had jammed.

30The appellant maintained that the inculpatory statements he made to Mr. Green between May 20 to 22, 2015 were a mixture of truth and lies. He explained that he feared that he was a suspect in the shootings and wanted the criminal organization to shield him from prosecution, but understood from what Mr Green told him that this would not happen if he was merely a witness. This was why he falsely told Mr. Green that he had known in advance about the plan to kill Mr. Hoang, and later falsely claimed to have been one of the shooters. He explained that he pieced his accounts of the shootings together from his own observations and from things he was later told by Mr. Pham and others.

C. Grounds of appeal

31The appellant advances two grounds of appeal. His first ground is that the trial judge erred by ruling that his Mr. Big statements were admissible under the legal test established by the Supreme Court of Canada in R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544. Specifically, the appellant argues that the Crown failed to meet its onus of establishing that the appellant’s statements were sufficiently reliable to overcome the risk of moral and reasoning prejudice.

32This first ground of appeal has two branches, since the appellant argues that the evidence should have been excluded under both prongs of the two-part Hart test.

33The appellant’s second ground of appeal is that the trial judge erred by admitting earlier statements the appellant made to Mr. Green in which he discussed his previous activity as a cocaine dealer. He argues that the trial judge erred by finding that the probative value of this prior discreditable conduct evidence outweighed its prejudicial effect.

(1) The admissibility of the appellant’s “Mr. Big” confessions

(1) The Hart test

34The admissibility of statements made to undercover officers by the targets of Mr. Big investigations is governed by the two-prong test established by the majority judgment in Hart. The Hart test applies to all statements made by the accused to the undercover officers participating in the Mr. Big investigation which the Crown seeks to adduce as part of its case: R. v. Amin, 2024 ONCA 237, at para. 40.

[35] The first prong of the Hart test requires the Crown to displace the presumption of inadmissibility by establishing, on a balance of probabilities, that the probative value of the inculpatory statement outweighs its prejudicial effect. As Moldaver J. explained in his majority reasons in Hart, at para. 85:

In this context, the confession’s probative value turns on an assessment of its reliability. Its prejudicial effect flows from the bad character evidence that must be admitted in order to put the operation and the confession in context.

[36] Under the second prong of the Hart test, the defence bears the burden of establishing on a balance of probabilities that the police conduct while carrying out the Mr. Big operation amounted to an abuse of process. As Moldaver J. stated at para. 11:

Trial judges must also carefully scrutinize the conduct of the police to determine if an abuse of process has occurred. No matter how reliable the confession, the courts cannot condone state conduct — such as physical violence — that coerces the target of a Mr. Big operation into confessing. Where an accused establishes that an abuse of process has occurred, the court can fashion an appropriate remedy, including the exclusion of the confession or a stay of proceedings.

37Moldaver J. explained further, at paras. 115-18, that a main focus of the abuse of process analysis will be on whether the police made coercive inducements and threats, but he also did not “foreclose the possibility that Mr. Big operations can become abusive in other ways”: Hart, at para. 118.

[38] Importantly, both branches of the Hart test require trial judges to make discretionary judgment calls. Discussing the first prong of the test, Moldaver J. explained at paras. 109-10 of his majority reasons:

Determining when the probative value of a Mr. Big confession surpasses its potential for prejudice will never be an exact science. As Justice Binnie observed in [Handy] (R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908), probative value and prejudicial effect are two variables which “do not operate on the same plane” (para. 148). Probative value is concerned with “proof of an issue”, while prejudicial effect is concerned with “the fairness of the trial” (ibid.). To be sure, there will be easy cases at the margins. But more common will be the difficult cases that fall in between. In such cases, trial judges will have to lean on their judicial experience to decide whether the value of a confession exceeds its cost.

Despite the inexactness of the exercise, it is one for which our trial judges are well prepared. Trial judges routinely weigh the probative value and prejudicial effect of evidence. And as mentioned, they are already asked to examine the reliability of evidence in a number of different contexts, as well as the prejudicial effect of bad character evidence. They are well positioned to do the same here. Because trial judges, after assessing the evidence before them, are in the best position to weigh the probative value and prejudicial effect of the evidence, their decision to admit or exclude a Mr. Big confession will be afforded deference on appeal.

39With respect to the second prong, abuse of process, the question of whether the constellation of circumstances in a particular Mr. Big investigation rises to the level of an abuse requires a fact-driven and case-specific balancing of competing interests that also commands appellate deference: see e.g., R. v. Keene, 2020 ONCA 635, 394 C.C.C. (3d) 160, at para. 46; R. v. Baranec, 2020 BCCA 156, 387 C.C.C. (3d) 502, at paras. 172-73, leave to appeal refused, [2020] S.C.C.A. No 287; Amin, at para. 33.

(2) Arguments on appeal

40The appellant does not challenge the trial judge’s description of the appliable legal principles or assert that he made any palpable and overriding errors in his factual findings. Rather, he argues that the trial judge failed to give proper effect to the presumption of inadmissibility.

41On the first prong of the Hart test, the appellant places particular emphasis on the evidence that multiple eyewitnesses described at least one of the shooters as a Black male. This contradicted both of the appellant’s two inculpatory accounts to Mr. Green, in which he described the two shooters as Asian, with the main shooter being Mr. Pham and the second shooter being either J.T. or the appellant himself.

42In relation to the abuse of process prong of the Hart analysis, the appellant emphasizes the evidence that at one point during the interaction on May 20, 2015, before the appellant first made any inculpatory admissions, Mr. Green had discouraged him from seeking legal advice from a lawyer.

(1) Probative value versus prejudicial effect

43I do not agree the trial judge made reversible errors in his balancing the probative value of the appellant’s inculpatory Mr. Big statements against their prejudicial effect. He carefully and correctly instructed himself on the governing legal principles, and gave extensive reasons that show that he also carefully considered all of the relevant factors that potentially affected the probative value of these statements in the context of this case.

(a) Potential incentives for the confessions

44The trial judge was mindful that even though Mr. Green repeatedly told the appellant that the organization prized honesty and trust among its members, the appellant had nevertheless lied to Mr. Green and Mr. Gold on multiple occasions. He also recognized that the officers had held out powerful incentives to the appellant, including “the promise of future lucre” and “the promise of help in covering up any role he may have played in the homicides”, that would have motivated the appellant to want to remain in the fictitious criminal organization’s good graces. In addition, even though the trial judge did not agree with the defence’s characterization of the appellant as having been socially isolated, he accepted that the social connections the appellant formed with Mr. Green and Mr. Gold “were important to [him]”.

45However, the trial judge also found that Mr. Green never said or implied that the appellant would be expelled from the organization unless he admitted his involvement in the shootings. Rather, the trial judge concluded that Mr. Green did not threaten any repercussions if the appellant continued denying his involvement, as long as he was telling the truth. Mr. Green had also assured the appellant that the organization would not hold it against the appellant if he admitted being involved in the shootings, and would be able to protect the appellant from criminal charges.

46It was open to the trial judge to come to these conclusions. It is true that Mr. Green expressed skepticism to the appellant about his initial denial that he knew anything about the shootings, telling the appellant that the police would not suspect him for no reason, and that the appellant must be holding something back. Importantly, however, Mr. Green never suggested that the fictitious criminal organization had any independent information linking the appellant to the shootings: see, contra, R. v. Mentuck, 2000 MBQB 155, at para. 80; R. v. Skiffington, 2004 BCCA 291, 186 C.C.C. (3d) 314, at para. 34, leave to appeal refused [2013] S.C.C.A. No 291; Dix v. Canada (Attorney General), 2002 ABQB 580, at para. 130. Rather, Mr. Green’s main recurring theme was that he did not know or care what the appellant may have done, but only wanted him to be truthful.

[47] The trial judge also recognized that Mr. Green told the appellant that the organization would not put money and effort into protecting him from the police if he was merely a witness. The trial judge agreed that it was “a fair interpretation” that when the appellant said to Mr. Green “what do I have to do then?”, he was “asking what it will take from him to get the organization’s protection”. However, the trial judge concluded that:

Mr. Green did not tell [the appellant] that he was supposed to confess, or that failure to confess would lead to ejection from the organization. He merely said they would not be going through a cover-up for a guy who didn’t need a cover-up.

48It is also significant that the appellant never told Mr. Green that he had merely been a witness to the shootings. Rather, as the appellant’s account evolved he went directly from denying any knowledge of the shootings to admitting that he had lured Mr. Hoang to the meeting place, knowing that Mr. Pham and his friends meant to kill Mr. Hoang in connection with a gang‑related “beef”. This account implicated the appellant as a party to first degree murder, even though on this version he denied firing any shots himself. Although the appellant later equivocated about whether he had truly believed that the others would actually kill Mr. Hoang, he acknowledged to Mr. Green that he had at least “kinda” known all along that this was what they were planning.

49A further significant factor is that after the appellant gave his first account of the shooting, Mr. Green did not react by saying that the organization would only put resources into protecting the appellant if he had been one of the shooters. To the contrary, Mr. Green continued to tell appellant that the organization had someone lined up “to take the … fall” for the appellant. He then called Mr. Gold, in the appellant’s presence, to discuss making the necessary arrangements. It was only the next morning that Mr. Green first suggested to the appellant that if he had not been one of the shooters, the organization would not “need a guy to cover for [him]”.

50The appellant’s response to Mr. Green’s comment – “Yeah, well, what do I have to do then?” – needs to be considered in its full context. During their extensive discussions about the cover-up plan the day before, on May 20, Mr. Green had never suggested that the organization’s willingness to protect the appellant was contingent on his having been one of the shooters, which the appellant was at that point denying. Moreover, Mr. Green followed up his comment on May 21 about the appellant not needing protection if he were merely a witness by telling the appellant that he “need[ed] to know if you did it or not”, because he wanted to “make sure that everything’s covered up”. This tends to undermine any suggestion that the appellant only admitted to being one of the shooters on May 21 because he thought that the organization would otherwise not protect him.

51In any event, it was not the trial judge’s task to decide whether any of the appellant’s inculpatory admissions were true. Rather, his job was to assess whether the appellant’s admissions to Mr. Green had sufficient probative value to outweigh the prejudicial impact of the jury learning about the appellant’s eagerness to join what he believed was a criminal organization, such that their ultimate truth or falsity could properly be considered by the jury.

(b) Confirmatory and contradictory evidence

52When considering the balance of probative value against prejudicial effect, the trial judge carefully reviewed and considered the independent evidence that either corroborated or contradicted the appellant’s inculpatory statements to Mr. Green.

53There was extensive circumstantial evidence confirming the truth of the appellant’s admission that he was the person who had arranged the meeting with Mr. Hoang. Among other things, the details the appellant gave about how he had arranged the meeting accorded with the text messages the police found on Mr. Hoang’s phone. The appellant takes no issue with the trial judge’s finding that the text messages and phone records “rule[d] out, on a balance of probabilities” any explanation other than that this aspect of Mr. Hoang’s account to Mr. Green was true. (Indeed, it is worth noting that the appellant also acknowledged this in his trial testimony, after his statements were ruled admissible).

54The trial judge also recognized that there was evidence that confirmed some of the other aspects of the appellant’s inculpatory accounts, but that there also evidence that contradicted certain other parts of his statements.

55For instance, on the confirmatory side of the ledger, the appellant consistently described there having been two shooters. This accorded with the evidence that shell casings from at least two different handguns were found at the scene. Even more notably, the appellant’s account about how his gun had jammed, and about how Mr. Pham then took the gun and racked it to clear the jam, accorded with the evidence that an unspent bullet was found at the southern end of the parking lot, as well as with the evidence of some of the eyewitnesses who, after having heard gunshots, saw a man run south before returning to the victims’ car and continuing to shoot at it.

56I do not agree with the appellant that the significance of this confirmatory evidence should be discounted because “[t]he objectively verifiable elements of the confession were known to many people”. The trial judge considered the possibility that the appellant might have learned details of the shootings from media reports, from the internet, or from people who had been there, but concluded that it was unlikely that he would have been able to learn “so many accurate details” from any of these sources. This conclusion was open to him on the evidential record.

57The appellant’s account of there being two shooters was also not contradicted to any real extent by the eyewitnesses who described seeing only one shooter. In the version of events in which the appellant admitted to firing one shot, he described himself as hanging back in the alleyway while Mr. Pham chased Mr. Hoang to his car, and said that Mr. Pham then came back and took the appellant’s gun before returning to the victims’ car and firing more shots. There is no meaningful inconsistency between this account, in which Mr. Pham did nearly all of the shooting and was the only person to approach the victims’ car and fire at it from close range, and the evidence of the eyewitnesses who saw only one shooter. Moreover, three of the eyewitnesses saw the shooter run south in the parking lot and then come back and resume shooting. This accords with the appellant’s story about how Mr. Pham came and took the appellant’s gun before returning to the victims’ car, as well as the evidence of the unspent bullet cartridge that was found at the southern end of the parking lot.

[58] The trial judge also recognized that there was independent evidence that contradicted some of what the appellant told Mr. Green about the shooting. He noted that some of these contradictions were minor, but that others were “arguably more significant”. These included:

I. The appellant said that the glass in the victims’ car did not shatter. This was contradicted by another witness and by the photographic evidence;

II. The appellant agreed with Mr. Green’s suggestion that the “baby 9” handgun that he said Mr. Pham gave him was a Glock, but the firearms expert’s evidence was that none of the spent cartridge shells found at the scene had been fired by a Glock;

III. The appellant told Mr. Green that after the shooting he and Mr. Pham both ran across the park to the south and left the scene in a waiting Toyota Camry. Video footage from a security camera showed only one person getting into the Camry.

59Perhaps most importantly, four residents of the housing complex who saw the shooting through their windows described the shooter or the shooters as Black, as did the surviving shooting victim, Mr. Pathammovong. In contrast, in all of the appellant’s inculpatory accounts to Mr. Green he described both shooters as Asian, although his story changed about whether the second shooter had been J.T. or himself.

60The trial judge properly considered this evidence. He noted some of the well-known frailties associated with eyewitness identifications, as well as the undisputed evidence that the eyewitnesses who described the shooter as Black had made their observations in poor lighting conditions. He nevertheless observed: “Even so, it is hard to brush aside four witnesses who described the shooters as [B]lack, whereas none described them as Asian”, and described himself as “obviously troubled” by this discrepancy.

[61] After referring to the strength of the evidence that the appellant was the person who lured Mr. Hoang to the scene, the trial judge concluded:

I am also of the view that it would be arrestingly remarkable for anyone who was not a shooter to be able to provide the level of accurate detail that [the appellant] provided.

In short, I conclude that the only likely explanation, considering the combined effect of the corroborative evidence in all the circumstances of this case, is that [the appellant] was being truthful when he told Mr. Green that he was a shooter.

In my view, this conclusion was reasonably open to him to reach on the evidence as a whole.

62Finally, I am satisfied that the trial judge properly considered the prejudicial effect of admitting the Mr. Big statements, and that he did not err by concluding that the risk of prejudice could be attenuated to some extent through a carefully worded jury instruction. I also note that the appellant takes no issue with the limiting instructions that the trial judge later provided in his jury charge.

[63] In Hart, Moldaver J.A. noted at para. 109 that “[d]etermining when the probative value of a Mr. Big confession surpasses its potential for prejudice will never be an exact science”, and added at para. 110:

Because trial judges, after assessing the evidence before them, are in the best position to weigh the probative value and prejudicial effect of the evidence, their decision to admit or exclude a Mr. Big confession will be afforded deference on appeal.

In the case at bar, the trial judge supported his conclusion that the probative value of the appellant’s Mr. Big confessions outweighed their prejudicial effect by giving careful, thoughtful, and thorough reasons that commands significant appellate deference. I see no basis for interfering with his decision that the evidence was admissible under the first prong of the Hart test.

(2) Abuse of Process

64The appellant argues further that the trial judge erred by not excluding the Mr. Big statements under the abuse of process branch of the Hart test. He emphasizes the evidence that during Mr. Green’s initial conversation with the appellant about the Richmond Hill shooting on May 20, the undercover officer at one point discouraged the appellant from speaking to a lawyer.

65This exchange took place shortly after the staged traffic stop on May 20, 2015, during which a police officer told the appellant that he had been “flagged as a suspect … in a Richmond Hill murder” on CPIC, and that there was a message for him to contact a York Regional Police detective. The appellant called the phone number he had been given, and was apparently told by the detective that the homicide under investigation had occurred in January 2014. The appellant told the detective that he was out of town, but would “try to come as soon as possible”.

[66] For the next two hours, the appellant expressed bemusement to Mr. Green about why the police viewed him as a murder suspect, and denied any knowledge of the shootings, even after he and Mr. Green used the Internet to search for information about them. The appellant suggested to Mr. Green that the only way he would be able to find out why he was a suspect would be to “go in here”. This led to the following exchange a short while later:

The appellant: Like, should I go in with a lawyer or something?

Mr. Green: Well, why would you need a lawyer?

The appellant: I don’t know.

Mr. Green: Why would you need a lawyer?

The appellant: That’s what people always tell me when you’re going to [inaudible]

[67] Mr. Green then reminded the appellant that a few weeks earlier, in April 2015, when the appellant had been contacted by the Peel police about a homicide in Brampton, he had gone to speak with them without a lawyer. ² This led to the following further exchange:

Mr. Green: Then why you gotta go for this one with a lawyer?

The appellant: I don’t know.

Mr. Green: ‘Cause you fucking know something’s up. Be – what a difference, you know?

The appellant: What?

Mr. Green: What a difference with you. You just – why didn’t you go with a lawyer to Peel?

The appellant: Huh?

Mr. Green: Why didn’t – you heard me, man.

The appellant: ‘Cause I – you told me – I was with you that time, so I just …

Mr. Green: What am I, a lawyer?

The appellant: No.

Mr. Green: Fuck.

The appellant: I was taking legal advice from you, so that’s …

Mr. Green: Well, I ain’t no fucking lawyer.

The appellant: Well, right now we’re, fuck.

Mr. Green: Well, if you go to a lawyer, you think that something’s up? You think they – you need to speak to a lawyer?

The appellant: I don’t think so. I just want some legal advice, you know.

Mr. Green: What are they – what are they gonna say? I can give you my fucking advice. If you’re gonna go legal shit, you got money to pay for that shit?

The appellant: I’ll get money.

Mr. Green: Yeah? What happens to all of us? All of us. Hey, man, like I said, we’re a 100K away from a lot of shit.

The appellant: Yeah.

Mr. Green: So we got to think about this.

The appellant: Yeah.

68The conversation then turned to the question of whether the appellant could remember where he had been on the night of the Richmond Hill shootings. The subject of the appellant getting legal advice never came up again, either that day or over the next two days.

69Mr. Green acknowledged in his Hart voir dire testimony he had been trying to leave the impression with the appellant that if he went to see a lawyer he might be jeopardizing the lucrative deal with the Russians, which would threaten the appellant’s continued involvement in the organization. Mr. Green also agreed that it had been part of the operational plan that if the appellant ever wanted to seek legal advice, the undercover officers were to let him do so.

[70] The trial judge carefully considered this evidence. He concluded that the appellant was not physically or psychologically restrained. The trial judge correctly noted that the appellant’s s. 10(b) Charter right to counsel was not engaged because he was not detained, and accordingly, that “Mr. Green’s dissuasive conduct must be assessed within the broader framework of the abuse of process doctrine”. He asked whether, when considered in the context of the actions of the undercover officers generally, this was conduct that the public would find unacceptable. The trial judge observed further that:

State interference with [the appellant’s] ability to seek legal advice in the context of this case may not amount to a Charter breach, but it remains a matter of serious concern.

The trial judge added that he was “definitely troubled by the lengths Mr. Green went to in an effort to dissuade [the appellant] from speaking to counsel”, but concluded:

On balance, however, I am not persuaded that he crossed the line into misconduct that would warrant an exclusion of the confession from evidence.

71As I have already noted, trial judges’ decisions under the abuse of process doctrine attract considerable appellate deference: see e.g., Keene, at para. 46. I am not persuaded that there is any basis for us to interfere with the trial judge’s determination that Mr. Green’s actions did not rise to a level that required the appellant’s inculpatory statements to be excluded.

[72] The trial judge rightly viewed Mr. Green’s attempts to discourage the appellant from speaking with a lawyer as a matter of “serious concern”. However, these attempts came in the context of the appellant discussing whether he should “go in with a lawyer” to talk to the homicide investigators, at a time where he was still denying to Mr. Green that he knew anything about the Richmond Hill shootings. Once he admitted his involvement in the shootings to Mr. Green a few hours later, he never again raised the subject of speaking with a lawyer, nor did he make any attempt to contact counsel during the two nights that he stayed in hotels and Mr. Green left him on his own or with his girlfriend. As the trial judge explained:

I agree that the undercover officers ultimately did not prevent [the appellant] from seeking legal advice. He was always in possession of his phone. He was left alone for two separate nights in a hotel before his arrest. One of those nights he was visited by [his girlfriend]. In my view, he ultimately elected not to go to a lawyer because he trusted that the organization was going to help him. He thought their solution better than his original plan to go in and speak to a homicide detective. I cannot even say, frankly, whether he was serious about that plan.

It is also the case that [the appellant’s] confession started less than two hours after the legal advice discussion. It started during the same car ride. In other words, the confession was offered well before there would have been time to obtain legal advice even if [the appellant] had not been dissuaded from doing so. Moreover, it was not [the appellant’s] suggestion that he should consult with a lawyer in general terms. He suggested that if he went in to speak to the homicide detective, he should maybe take a lawyer with him. Any prospective appointment with the homicide detective was some time off in the future.

[73] Once the appellant first admitted his involvement in the shootings to Mr. Green, he also seems to have also abandoned any thought of going to speak with the York homicide investigators. After making his first inculpatory statement admitting that he had set up Mr. Hoang, but denying being one of shooters, the appellant agreed with Mr. Green’s comment that “now, if you go and talk to fucking this detective, we got fucking problems”, and then added: “That’s why I didn’t really want to go in”. The appellant also agreed with Mr. Green’s further comment:

That’s why we’re not going in. That’s why you said you need a lawyer and all that shit.

Instead, once the appellant admitted his involvement in the shootings, he seems to have fully embraced the organization’s plan to hide him from the police by sending him to Calgary, and have their “fall guy” come forward and falsely claim responsibility for the crimes.

74The trial judge’s conclusion that Mr. Green’s discouraging the appellant from speaking with a lawyer ultimately had no real impact on the appellant’s actions was one he was entitled to reach on the record before him. His assessment that the balance of interests favoured admitting the appellant’s statements under the abuse of process branch of the Hart test was a discretionary judgment call, and I see no basis for interfering with his determination.

(2) The admissibility of the appellant’s statements regarding cocaine dealing

75The appellant’s second ground of appeal challenges the trial judge’s further ruling admitting additional evidence of prior discreditable conduct by the appellant: namely, a statement to Mr. Green in which he admitted to having previously sold cocaine. This ruling, which was made after the trial judge had admitted the evidence of the appellants inculpatory Mr. Big statements from May 20-22 2015, is reported at 2018 ONSC 2374.

76The defence at trial did not seek to have all references to the appellant’s prior cocaine dealing expunged from the evidence that went to the jury. Rather, the defence acknowledged that some of this evidence was inextricably intertwined with the appellant’s later inculpatory statements to Mr. Green about the Richmond Hill shootings. When the appellant told Mr. Green that he had set up Mr. Hoang in the hope that Mr. Pham would reward him by supplying him with cocaine, he had explained that selling cocaine was something he had done before.

[77] After the trial judge ruled the appellant’s inculpatory statements about the shootings to Mr. Green between May 20 and 22 admissible under Hart, the defence did not seek to have these statements edited to remove the appellant’s references to his previous cocaine dealing. However, the defence objected to the admission of an earlier conversation the appellant had with Mr. Green in April 2015, in which had he talked about his past cocaine dealing. Specifically, during this conversation, which took place while the appellant and Mr. Green drove together to meet another undercover officer to carry out a staged theft of cigars, the appellant told Mr. Green that:

a) He was no longer dealing in cocaine but at one time had a good connection for “blow”;

b) He had dealt at the ounce level, and would buy an ounce for about $1200 and sell it for up to $1800;

c) He had “runners” working for him, who would sometimes short him or ask for advances. He used to speak to his runners in person, rather than on the phone, so he could better tell if they were lying to him; and

d) He used to scope out the locations of drug sales thirty minutes in advance, to check who was around and identify the entrances and exits.

78Defence counsel at trial took the position that he “ha[d] no trouble with the cocaine dealing coming out”, and acknowledged that the appellant’s comments about scoping out locations in advance had probative value in the context of this case that outweighed any prejudicial effect. However, defence counsel objected to the admission of the appellant’s statements that he had sold cocaine at the ounce level and had “runners” who worked for him: that is, items (b) and (c) in the above list.

[79] The trial judge disagreed that the prejudicial impact of this latter evidence outweighed its probative value. In his view, the evidence had some bearing on the jury’s assessment of whether the appellant’s later confessions about his involvement in the Richmond Hill shootings were true. The trial judge noted that it would be:

…up to the jury to determine what kind of person [the appellant] was and whether he had any particular vulnerabilities that were exploited by the undercover officers. To make that determination, they should have a full appreciation of his circumstances.

He noted further that the appellant’s statements about his prior cocaine dealing:

… tend to support the notion that [the appellant] had some street smarts and was no pushover. And they may go part of the way to explain how he was meeting his living expenses. In my view, these are important facts for the jury to know. Leaving this evidence out may leave a distorted image of [the appellant] for the jury to consider.

80The trial judge also acknowledged that the evidence was prejudicial, but concluded that the prejudicial effect could “be attenuated to some extent through a carefully worded jury instruction”. He provided the jury with such an instruction in his final charge.

[81] As Charron J.A. (as she then was) noted in R. v. Higginbottom (2001), 156 C.C.C. (3d) 178 (Ont. C.A.), at para. 9:

A [t]rial [j]udge’s decision on the admissibility of evidence of prior discreditable conduct involves a delicate balancing of the probative value of the evidence against its prejudicial effect and is entitled to a high degree of deference upon appellate review. [Citations omitted.]

See also R. v. B.(C.R.), [1990] 1 S.C.R. 717 at 733-34.

82I am not persuaded that there is any basis for us to interfere with the trial judge’s conclusion that the balance in this case tipped in favour of admission. The probative value of the disputed evidence was reduced to some extent by the possibility that the appellant may have exaggerated the scale of his prior cocaine dealing in order to impress the undercover officer, but this also reduced its potential prejudicial effect. Moreover, since the Mr. Big evidence had already been ruled admissible, the jury would be hearing evidence about the appellant’s apparent willingness to participate in the crimes that were supposedly being committed by the fictitious criminal organization, as well as the claims about having sold cocaine in the past that he made during his inculpatory May 20-22, 2015 Mr. Big statements when he explained why he had helped Mr. Pham lure Mr. Hoang to the meeting place. In short, the risk of moral and reasoning prejudice were already substantial and unavoidable, except to the extent that this prejudice could be reduced through appropriate limiting instructions.

83In this context, I agree with the Crown that the additional risk of prejudice that would arise when the jury learned that the appellant claimed to have previously sold cocaine at the ounce level, and to have had “runners” working for him, was comparatively slight. It was open to the trial judge to conclude as he did that the probative value of this evidence outweighed its prejudicial effect. This was a discretionary judgment call that is entitled to substantial appellate deference.

84I would accordingly not give effect to this ground of appeal.

D. Disposition

85For these reasons, I would dismiss the appellant’s conviction appeal.

Released: May 23, 2024 “J.M.F.” “J. Dawe J.A.” “I agree. Fairburn A.C.J.O.” “I agree. S.E. Pepall J.A.”

Footnotes

Footnotes

1. 1The appellant was charged with first degree murder and attempted murder in relation to these victims, but the trial judge directed acquittals on these charges and left the included offences of manslaughter and attempting to unlawfully cause bodily harm with the jury.
2. 2The earlier Peel police contact had not been staged as part of the Mr. Big investigation.