COURT OF APPEAL FOR ONTARIO
Fairburn A.C.J.O., Simmons and Trotter JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Graham MacDonald
Appellant
Delmar Doucette and Cara Barbisan, for the appellant
Michael Dunn, for the respondent
Heard: November 24-25, 2025
On appeal from the convictions entered by Justice R. Cary Boswell of the Superior Court of Justice, on February 8, 2018, with reasons reported at 2018 ONSC 952.
A. introduction
1Carmela Knight was murdered in her home and dragged to her garage, which was then set ablaze. At the time she was killed, she was involved in acrimonious family law proceedings with her husband, David Knight.
2The police soon came to believe that the appellant was involved in the murder. He was the target of a “Mr. Big” operation. The appellant eventually confessed that Mr. Knight hired him to carry out the murder, that they planned it together, and that he then killed Carmela. The appellant was promised $100,000 and a job in Florida for his efforts.
3The appellant and Mr. Knight were charged with first degree murder, conspiracy to commit murder, and arson. They were initially charged on the same indictment, but they were subsequently tried separately. When Mr. Knight’s original trial counsel was appointed to the bench on the eve of trial, their charges were severed to avoid any further delay in the appellant’s trial. They were both convicted on all charges. This appeal was heard at the same time as Mr. Knight’s appeal (C68223). The judgment in that appeal is being released concurrently with these reasons: see R. v. Knight, 2026 ONCA 458.
4In accordance with the procedure established in R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544, the Crown applied to admit the appellant’s inculpatory statements derived from the Mr. Big operation. The motion was heard by Justice Alexander Sosna (the “motion judge”), who would go on to be the trial judge at Mr. Knight’s trial. The motion judge ruled that the evidence was admissible.
5With the consent of the Attorney General, the appellant then re-elected to be tried by a judge without a jury. The appellant entered pleas of not guilty on all three counts before the trial judge, Justice R. Cary Boswell.
6The trial proceeded on a largely uncontested basis, thereby preserving the appellant’s right to challenge the Mr. Big ruling on appeal. The parties filed an Agreed Statement of Fact. Further evidence was called, including the evidence of the primary undercover officer (“UCO”) in the Mr. Big operation, who introduced recordings of inculpatory utterances made by the appellant. The appellant was found guilty on all counts.
7On appeal, the appellant submits that the motion judge erred in admitting his inculpatory statements derived from the Mr. Big operation. He contends that the motion judge erred in failing to find that the actions of the UCOs in dissuading the appellant from consulting his lawyer amounted to an abuse of process.
8The following reasons explain why I would dismiss the appeal.
B. factual overview
9In setting out the factual foundation for this appeal, I rely on the streamlined record before the trial judge, which was not as extensive as the record at Mr. Knight’s trial.
1. The Murder of Carmela Knight
10On September 15, 2014, firefighters were called to the Pickering residence of David and Carmela Knight. The garage was ablaze. When the fire was brought under control, Carmela’s body was located in the garage. A pathologist determined that she sustained a number of blunt force injuries to her face and that she died as a result of neck compression. The scene appeared staged to make Carmela’s death look like a suicide. A tourniquet was wrapped around her arm. A syringe was found nearby. Someone had unsuccessfully tried to inject cocaine into Carmela’s arm.
11Mr. Knight was an obvious suspect in Carmela’s death, mainly because of their protracted family law dispute. A tip from Mr. Knight’s then sister-in-law caused the police to turn their attention to the appellant. The police suspected that the appellant and Mr. Knight conspired to kill Carmela.
2. The Mr. Big Operation
12The Mr. Big operation was commenced in November of 2014. It involved 40 interactions with the appellant over the course of three months and nine days. All conversations between the appellant and the UCOs were audio-recorded.
13The primary UCO, “Rob”, befriended the appellant in the Port Hope area, where the appellant lived at the time. Rob pretended to fence stolen property; he engaged the appellant in some of these dealings, providing him with modest remuneration.
14At some point during their relationship, the appellant told Rob that he had been questioned about a murder, but denied that he was involved. The appellant told Rob that he knew David Knight and did work at the house where his wife had been killed.
15Rob eventually introduced the appellant to another UCO, “Uncle Dan”. Rob told the appellant that he considered Uncle Dan to be his mentor. Uncle Dan helped Rob out in the past. The appellant was also introduced to another UCO, “James”, who was portrayed as a long-time friend of Rob. The appellant was told that James had terminal cancer and did not have long to live.
16On January 31, 2015, the appellant went ice fishing with Rob on Lake Simcoe. As they drove to the lake, they were pulled over by police engaged in a fictitious traffic stop. They were told that the police were looking for suspects in a recent robbery. After the appellant and Rob identified themselves to the officer, the officer contacted dispatch on his radio with their information and advised the appellant that an officer investigating Carmela’s murder wished to speak with him.
17The appellant and Rob continued on their trip to the lake. Rob testified on the voir dire that the appellant appeared to be shaken by this interaction with the police. The appellant told Rob that he had retained a lawyer to provide him with advice concerning the murder investigation. He said that the lawyer told him that the police did not have a case against him.
18After arriving at the ice fishing hut, the men chatted. Rob showed the appellant a fictitious newspaper article, dated ten years earlier, concerning the discovery of a body in the Niagara River. Rob told the appellant, “if it wasn’t for fuckin’ Uncle Dan, I would not be fuckin’ sitting here with you. Nor would fuckin’ James be fuckin’ walking the streets and fuckin’ living an extra nine years.” The two men continued to talk. Rob never specifically told the appellant what Uncle Dan did to help him. Nonetheless, the appellant asked Rob whether Uncle Dan could help him as well. Rob said he would do everything in his power to get Uncle Dan to help the appellant.
19What happened next is at the heart of this appeal and will be discussed in more detail below. The appellant and Rob talked about whether the appellant should call his lawyer before speaking to Uncle Dan. The two men went back and forth. Rob told the appellant that it was likely that his lawyer would call the police and they would simply tell him very little about the investigation. It would not be helpful. Rob told the appellant, “I think you need to talk to Uncle Dan, however you wanna do it”. Rob then made a call to Uncle Dan, who happened to be ice fishing in a nearby hut. Uncle Dan agreed to come to their hut. Before Uncle Dan arrived, the appellant confessed to Rob that he killed Carmela and that he and Mr. Knight planned the murder in advance.
20When Uncle Dan arrived, he asked Rob to leave so that he could have a private conversation with the appellant. The appellant confessed again and asked Uncle Dan for his help. Uncle Dan said he would be in touch and they would speak again soon about potential next steps.
21On February 7, 2015, Uncle Dan, Rob, James, and the appellant met at a location that was portrayed to be Uncle Dan’s boardroom. At this meeting, Uncle Dan agreed to assist the appellant. He proposed that James, who was dying of cancer, would make a statutory declaration in which he would admit to murdering Carmela. In return, Uncle Dan agreed to create trusts for James’ two children in the amount of $10,000 each. It was agreed that the appellant would repay this money over time.
22At the boardroom meeting, Uncle Dan insisted on a detailed confession from the appellant in order to make the statutory declaration appear more reliable. This involved a visit to the murder scene where the appellant provided further details about the plan and the murder. During the course of the appellant’s confessions to Rob and Uncle Dan on January 31 and February 7, 2015, the appellant revealed that Mr. Knight had promised to pay him $100,000 to kill Carmela. He also offered to arrange a job for the appellant in Florida. However, at that point, the appellant had only been paid $2,600.
23The appellant told the UCOs that, since the murder, Mr. Knight had disappeared. The appellant was frustrated and wanted to get paid what he was owed. Uncle Dan said he would locate Mr. Knight. On February 16, 2015, Uncle Dan and Rob arranged for the appellant to surprise Mr. Knight by attending at a Toronto pub. The appellant and Mr. Knight spoke privately outside. Mr. Knight acknowledged owing the appellant the money and promised to pay him. At this meeting, Mr. Knight told the appellant he had passed a polygraph test.
24The appellant and Mr. Knight met again a few days later. The appellant came away from the meeting with an envelope containing $5,000. At that meeting, the appellant asked Mr. Knight if he could give him one of Carmela’s necklaces that could be given to James to shore up the confession in his statutory declaration.
25On February 20, the two men met again. The appellant came away from the meeting with Carmela’s rosary.
26The appellant and Mr. Knight met for a final time on February 26, 2015. Mr. Knight did not provide the appellant with any further money. As Rob drove the appellant away from the meeting, he was arrested. Mr. Knight was arrested the same day.
3. The Appellant’s Inculpatory Statements
27Before addressing the motion judge’s ruling on the admissibility of the appellant’s confessions, it is helpful to understand in more detail what the appellant told the UCOs. The trial judge provided the following helpful summary, the accuracy of which is not disputed on this appeal:
Over the course of two meetings in particular, Mr. MacDonald told undercover officers the following:
He agreed with Carmela Knight’s husband, David Knight, to kill her, in exchange for $100,000 and a job in Florida. Mr. Knight apparently was involved in what was becoming a bitter separation from Ms. Knight, which apparently motivated his desire to have her killed. He also required almost $400,000 in cash to close a deal involving the purchase of a business. He had no money. But he was the beneficiary of an $800,000 policy of insurance on the life of Carmela Knight;
Mr. MacDonald discussed with David Knight various ways to commit the killing[;]
He eventually settled on a plan to hide in the house awaiting Ms. Knight’s arrival home from work, with the intention of strangling her to death. It was further planned that a fire would be started as a way of, as he put it, “cleaning things up”;
Ahead of time, he was hired to do some minor renovation work in the Knights’ home, so that there would be a valid reason for his fingerprints and DNA to be found in the house;
He acquired “burner” phones so that he and Mr. Knight could communicate with one another;
On September 15, 2014, he was dropped off at the Knights’ residence by Mr. Knight at approx. 2:30 p.m. He initially waited in the basement. The Knights’ two children got home from school at about 3:20 p.m. Mr. Knight gathered up some hockey equipment for the boys and they all left. Mr. MacDonald was alone in the home. He came upstairs and waited in the living room until he saw Ms. Knight’s car pull up at about 5:05 p.m., at which point he went and hid in a powder room;
Ms. Knight came into the house and put her purse down on a counter in the kitchen. At that point Mr. MacDonald came up behind her and attempted to wrap a ratchet strap around her neck. He apparently wrapped it across her mouth instead and a significant struggle took place. He said he struggled with Ms. Knight for ten to fifteen minutes. He finally got her to ground and repeatedly kicked her in the face. Once subdued he strangled her to death with the strap;
He talked about the sound of the remaining air being expelled from Ms. Knight’s lungs and of her urinating at the moment of death;
Exhausted from the struggle, he sat on a chair and rested for some time. He then pulled Ms. Knight’s body into the garage and laid her face down on the floor. He cleaned up the kitchen as best he could. He then proceeded with his attempt to make the death look like a suicide. In particular, he attempted to make it look like Ms. Knight had been injecting cocaine into her arm, while seated in a chair, then fallen over onto the floor on her face. At the same time, it was meant to appear that she had knocked over a can of gasoline which was ignited by a burning candle nearby. He also mentioned that he had hidden a little baggie of cocaine in her purse to support the notion that she was a cocaine abuser;
He said that in truth he had merely doused Ms. Knight’s body in gasoline, let it soak in for a bit, then set it aflame. He described the ignition and fire as being more significant than he expected it to be and how the negative air pressure created by the fire made it difficult for him to open a man door in the garage and escape. At one point he feared for his own safety;
He described the route he walked away from the home and his movements in the minutes and hours after the killing;
Later, he participated in a meeting with David Knight, where he was paid $5,000. Several days later he met again with David Knight and obtained a rosary belonging to Ms. Knight that he intended to pass on to the ultimate fall guy to make that person’s confession all the more compelling.
C. The Mr. Big VOir Dire and the motion judge’s ruling
28As noted earlier on, the Crown applied to admit the appellant’s confessions made during the Mr. Big operation. This motion was heard with other motions in a blended fashion. The evidence of the officer acting as “Rob” was heard over a number of days. On January 26, 2018, the motion judge ruled that the evidence was admissible with written reasons to follow.
29On March 19, 2018, the motion judge released his written reasons: R. v. MacDonald, 2018 ONSC 1846. He recognized that confessions derived from Mr. Big scenarios are presumptively inadmissible and that he was required to determine whether the probative value of the utterances outweighed their prejudicial effect: Hart, at paras. 10, 85.
30A significant portion of the motion judge’s ruling is devoted to threshold reliability. He referred to Hart, in which the majority identified a non-exhaustive list of factors for a court to consider, at para. 102:
These circumstances include — but are not strictly limited to — the length of the operation, the number of interactions between the police and the accused, the nature of the relationship between the undercover officers and the accused, the nature and extent of the inducements offered, the presence of any threats, the conduct of the interrogation itself, and the personality of the accused, including his or her age, sophistication, and mental health.
31The motion judge characterized the operation as relatively brief in duration (three months and nine days), involving roughly 40 interactions with the appellant. He described the fictitious relationship as one of friendship and trust. The operation involved engaging the appellant in fictitious criminal scenarios that did not involve violence. The appellant was not the subject of any threats.
32The motion judge assessed the nature of the inducements offered to the appellant as minimal. The appellant was paid modest amounts for his participation in Rob’s small-time fencing activities. On one occasion, Rob loaned the appellant $750 so that he could buy Christmas presents for his family. The appellant repaid this money with the $5,000 he subsequently received from Mr. Knight. The trial judge found:
Overall, MacDonald only received modest monies and never expressed any particular interest in money. The monies provided did not improve or change his lifestyle. I find the monies were not an inducement that had any bearing on MacDonald’s ultimate confessions.
33The motion judge found that the appellant “was neither sophisticated in a classic sense, nor highly educated, but he acquired street smarts that served him daily.” There was no evidence of any mental health concerns during or before the Mr. Big operation. The appellant’s social life was not overly active, but he was not socially isolated.
34In terms of the reliability of the appellant’s utterances about murdering Carmela, the motion judge said the following:
MacDonald’s confessions contain significant markers of reliability throughout. In part, those markers are as follows:
a. MacDonald advised that he tried to make Carmela’s death look like a suicide/accident by placing a syringe with the body after attempting several times to inject cocaine into her arm. He was unsuccessful in injecting the cocaine. During the autopsy a syringe and tourniquet were found with the body. Puncture wounds were found in the back of Carmela’s right arm. Cocaine was located in drops of blood from the inside of Carmela’s right elbow. The elbow exhibited a puncture wound.
b. MacDonald stated that he planted cocaine in Carmela’s purse. The police were unaware of this until MacDonald’s confession. The police then searched Carmela’s purse after the confession and discovered the cocaine.
c. MacDonald described how he killed Carmela. He said it was a “good fight” and took a lot out of him. He said he struck Carmela in the face and kicked her in the head as she lay on the ground. He said he tried to get a ratchet strap around her neck but it caught on her chin. He said that he strangled her when he finally got the strap around her neck. The autopsy report concluded that Carmela died as a result of neck compression and blunt force facial trauma. The report noted significant injuries to Carmela’s face and head, and an injury to her lower lip.
d. MacDonald advised that he murdered Carmela in the kitchen and dragged her body to the garage. He stated that he doused the body with gasoline and lit it on fire. The fire Marshall opined that arson caused the fire. He determined that the fire’s starting and focal point was in the garage where Carmela’s body was discovered. The police located burnt remnants of red plastic gas cans near the body.
e. MacDonald advised that David drove him to the house, and that he hid in the basement until sometime after 5:00 PM when Carmela returned home from work. Rogers Home Security records confirm movement in the house and the interior garage door’s opening and closing when neither Carmela nor David would have been home (between 4:03 and 4:30 PM).
f. MacDonald stated that he murdered Carmela around 5:30 PM. He described his movements in the house after the murder, which included opening the back patio doors and pulling a laundry mat onto the outside patio (he had dragged Carmela’s body over the mat). He described lighting the fire at approximately 8:00 PM and escaping through the garage’s side door. A neighbour’s 911 call reporting the fire occurred at 7:51 PM. The last door opened at the home was the garage’s side door, opened at 7:49 PM — two minutes before the 911 call.
g. MacDonald stated that when Carmela entered her home she entered the kitchen and placed her purse on the left corner of the kitchen counter. MacDonald stated he then attacked Carmela from behind. Scenes of Crime Officer (SOCO) photos taken after the murder on September 15, 2014, show Carmela’s purse on the left corner of the kitchen counter.
35The motion judge engaged in a similar reliability analysis in relation to the conspiracy with Mr. Knight:
Additional markers of reliability were present in MacDonald’s confession to conspiring with David to murder Carmela:
a. In statements to Rob and Uncle Dan, MacDonald advised that a “friend” [David] told him that he was having issues in his marriage and the divorce was going to be costly. MacDonald advised that it was getting down to crunch time, and his friend wanted it done [Carmela’s murder] before the divorce for financial reasons.
b. Family court documents confirm that, after separating, Carmela sought child and spousal support and exclusive possession of the matrimonial home. Carmela filed an emergency motion for support and exclusive possession of the matrimonial home returnable September 18, 2014. Carmela was murdered September 15, 2014.
c. At the boardroom meeting with Uncle Dan, Mac[D]onald explained that David promised he would work on MacDonald’s passport and get him across the border, once Carmela was murdered.
d. At the preliminary hearing, Heather testified that David was attempting to obtain a passport for MacDonald to have him possibly obtain employment out of the country.
e. At the boardroom meeting with Uncle Dan, MacDonald advised that he and David planned to have MacDonald renovate the Knights’ home to explain MacDonald’s possible DNA or fingerprint presence there. At the preliminary hearing, Heather testified that David told her that MacDonald was working on the Knights’ home.
36The motion judge found there would be minimal potential prejudice associated with the admission of the Mr. Big evidence. Mr. MacDonald had conceded reasoning prejudice was a non-factor in this case. As for moral prejudice, there was no evidence that the appellant was attempting to gain membership in a criminal organization. The appellant was not required to engage in any violent acts as part of the operation; his fictitious criminality involved property offences. The appellant confessed in an effort to extricate himself from Carmela’s death. In terms of any moral prejudice that might have arisen from his involvement in the scheme to have James execute a false statutory declaration, and his willingness to contribute $20,000 to the cause, the motion judge said the following:
Any such possible moral prejudice pales in comparison to the confessions’ exceedingly high probative value. MacDonald’s confessions are replete with facts, details, and circumstances known only to Carmela’s actual killer. The confessions are corroborated by medical evidence, telephone records, home security records, and physical evidence located at the scene.
37The appellant does not submit that the motion judge erred in how he balanced probative value and prejudicial effect. Instead, he challenges the motion judge’s abuse of process analysis. His position on appeal is more focused than the submissions advanced before the motion judge. Before the motion judge, the appellant submitted that an abuse of process arose from a number of factors, including implicit threats of violence, exploiting the appellant’s vulnerabilities, exposing the appellant and the public to danger by arranging for the appellant and Mr. Knight to meet in public, and Rob piercing the appellant’s solicitor-client privilege with the lawyer advising the appellant about the murder investigation. The motion judge found that none of these factors amounted to or contributed to an abuse of process. These aspects of the motion judge’s ruling are not challenged on appeal.
38The appellant focuses on the motion judge’s conclusion concerning Rob’s alleged interference with the appellant’s contact with his lawyer in the ice hut before Uncle Dan entered the picture. This theme is picked up in the following passage from the motion judge’s reasons:
MacDonald asked if Uncle Dan could help him too. He questioned if he should speak to his own lawyer before speaking to Uncle Dan. At this juncture, Rob commented on the utility of speaking to a lawyer before speaking to Uncle Dan.
Rob: But you know the … the lawyer. I know, I know what you want to, like, you don’t wanna be asking cops but you know, if he … if he calls the detective, the detective is gonna say we’re fuckin’ investigating it, fuckin’ Graham’s a suspect, Graham’s fuckin’ …
MacDonald: Whatever.
Rob: […] I don’t know, obviously I don’t know what the fuck he’s gonna say but…
MacDonald: But that’s…
Rob: I mean from fuckin’ this angle, from this end, we gotta fuckin’ take care of this for you.
MacDonald: Hmm. Exactly and that’s … so do you think …
Rob: ___ [unintelligible].
MacDonald: … I should talk to uh… this Uncle Dan or should I …
Rob: A hundred (100) percent. I think you should.
MacDonald: Should I do that before I talk to this lawyer and have him call?
Rob: Like, Uncle Dan’s not gonna talk to a lawyer, is that what you mean?
MacDonald: No, no, no, no, no, no, no.
Rob: Oh, okay.
MacDonald: Should I talk to Uncle Dan and see his opinion on the situation before I go get the lawyer to call.
Rob: I think you need to talk to Uncle Dan, however you want to do it … like I said, you … when you talk to the lawyer, the lawyer’s gonna say, okay, yeah, this is normal or whatever …
MacDonald: Hmmm. But he already told me …
Rob: … and then …
MacDonald: … if uh they …
Rob: And that’s fine.
MacDonald: … try and contact me again, to give him the number.
Rob: Oh no, and that’s fine.
MacDonald: So I’ll stick with that.
Rob: But if … if the lawyer calls that fuckin’ detective, the detective’s going, yeah, we’re fuckin’ investigating. And the lawyer’s gonna go, okay, thanks.
MacDonald: Well, the lawyer … no, I’m pretty sure the lawyer’ll ask questions to find out what’s … what do you do … what do you need from Graham, what … what gives you any, uh …
Rob: I don’t think the police tell him what the fuckin’ … what they have. Like, I don’t know what the fuckin’ cops have on you right? [Emphasis added.]
39On the voir dire, Rob testified that, during this exchange, he did not believe that it would be a problem, operationally, if the appellant were to speak to his lawyer before speaking to Uncle Dan. It was his impression that the appellant wished to speak to his lawyer to learn what the police had on him so that he could pass this information along to Uncle Dan. However, during cross-examination, Rob agreed that, just before the introduction to Uncle Dan, he attempted to dissuade the appellant from speaking to his lawyer, suggesting that all the police would tell his lawyer was that he, the appellant, was a suspect. Rob suggested to the appellant that he and Uncle Dan could “take care” of the problem. Defence counsel asked Rob the following question and received the following answer: “So ultimately what you’re saying is that’s a waste of time but we, we can help, right? A: Yes.”
40The motion judge commenced his analysis of this issue by ruling out the applicability of the right to counsel in s. 10(b) of the Canadian Charter of Rights and Freedoms. Referring to R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, and R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, he held that the appellant’s right to counsel was not engaged because he was neither arrested nor detained during the Mr. Big operation.
41The motion judge then evaluated this sequence of events through the lens of the abuse of process doctrine. Adverting to the excerpts above, the motion judge said:
Further, there is no evidence that Rob directed MacDonald to speak to Uncle Dan before contacting counsel. Rob’s response to MacDonald’s question whether he should speak to counsel before speaking to Uncle Dan, was unequivocally an option and not a direction: “I think you need to talk to Uncle Dan, however you want to do it…”. When MacDonald raised the issue of speaking to counsel a second time, Rob responded “oh no, and that’s fine”.
Although MacDonald may have been swayed or influenced to not contact counsel before confessing in the ice hut, I find those factors did not elicit the confessions. Rather, the confessions were stimulated by Rob’s successful deployment of the fictitious themes of trust and friendship. [Italics in original; underlining added.]
42The motion judge emphasized that, during the exchange reproduced in para. 38 above, the appellant was questioning whether he should speak to his lawyer before speaking to Uncle Dan. He went on to find:
In confessing to Rob, MacDonald never raised the issue of speaking to counsel first, as he had when he pondered whether to speak to Uncle Dan. The issue did not arise — whether MacDonald was dissuaded or not to speak to a lawyer — because at this particular time, MacDonald was successfully duped to believe he was in no jeopardy confessing to a friend and a confidant.
43After reproducing the appellant’s ice hut confession to Uncle Dan, the motion judge found that the appellant then raised the counsel issue “only as an afterthought” in the following passage, excerpted in the motion judge’s ruling:
MacDonald: Well, I gotta call the lawyer on Monday.
Uncle Dan: Yeah.
MacDonald: And then he said if they try to talk to me [then] I can get them the number and whatnot, right?
Uncle Dan: Yeah.
MacDonald: Like I said, it’s not a big rush. I’m gonna have a little bit more information on Monday, like I said, I’m gonna call my lawyer, he’s … I’m gonna have him talk to this homicide guy, find out why he’s calling. ‘Cause the cop that, you know, that talked to me is like, oh, homicide …
Uncle Dan: Well, there is a bit of a rush ‘cause if the cops are bugging you we need to get on to this sooner than later.
MacDonald: Okay.
Uncle Dan: We really do.
Mac[D]onald: Absolutely.
44The motion judge found that there was no evidence that Rob actually prevented the appellant from contacting his lawyer prior to the boardroom meeting with Uncle Dan on February 7, 2015. He noted that the appellant had seven days to contact his lawyer before this meeting: from January 31 to February 7. Although the appellant’s efforts were unsuccessful, there is no suggestion that the UCOs interfered with these attempts, nor that he was directed to speak to Uncle Dan before speaking to his lawyer.
45The motion judge concluded his analysis on abuse of process in the following passage:
If a target is coerced into providing a confession during an undercover police investigation, an abuse of process is made out (Hart, at para. 11). This Mr. Big was a cleverly designed sting. There is no doubt that MacDonald was misled and deceived when he confessed his involvement in Carmela’s murder to Rob and Uncle Dan. For the aforementioned reasons, however, MacDonald was not coerced into that confession.
I find no abuse of process by the police that would make inadmissible MacDonald’s confession to Rob and the two confessions subsequently made to Uncle Dan. [Emphasis added.]
D. the issues on appeal
46The appellant submits that the motion judge erred in not finding that the conduct of the police leading up to the appellant’s ice hut confession amounted to an abuse of process. The appellant contends that the motion judge erred by focusing unduly on whether the actions of the UCOs coerced the appellant into confessing, rather than taking a broader approach and gauging whether their actions otherwise amounted to an abuse of process. The appellant relies on a number of features of the ice hut interaction which he submits the motion judge overlooked, especially the fact that, in his testimony, Rob acknowledged attempting to prevent the appellant from calling his lawyer at the time. He also submits that the fact that the appellant already had a lawyer whom he trusted was an important factor that weighed in favour of finding an abuse of process.
47The respondent submits that the motion judge made no error. The motion judge recognized that the abuse of process question extended beyond the narrower concept of coercion. The respondent downplays the significance of Rob’s intention during the ice hut encounter, as well as the fact that the appellant had already retained counsel. Lastly, and perhaps most importantly, the respondent submits that, notwithstanding Rob’s intention and the appellant’s pre-existing solicitor-client relationship, the record demonstrates that Rob was not successful in interfering with this relationship.
E. analysis
48The appellant’s submissions on appeal operate in a highly discretionary domain. In R. v. Lee, 2024 ONCA 411, 438 C.C.C. (3d) 119, Dawe J.A. said, at para. 39: “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 also R. v. Keene, 2020 ONCA 635, 394 C.C.C. (3d) 160, at para. 46, citing R. v. Baranec, 2020 BCCA 156, 387 C.C.C. (3d) 5092, at paras. 172-173, leave to appeal refused, [2020] S.C.C.A. No. 287.
49Since Hart was decided in 2014, there have been numerous decisions of this court that address the application of the general principles respecting the admissibility of confessions derived from Mr. Big operations: see e.g., Keene; R. v. Amin, 2024 ONCA 237, 171 O.R. (3d) 561; R. v. Quinton, 2021 ONCA 44, 399 C.C.C. (3d) 514; R. v. Zvolensky, 2017 ONCA 273, 135 O.R. (3d) 401, leave to appeal refused, [2017] S.C.C.A. No. 403; R. v. Kelly, 2017 ONCA 621, 387 C.R.R. (2d) 93, leave to appeal refused, [2017] S.C.C.A. No. 474.
50Being presumptively inadmissible, the general onus is on the Crown to satisfy the motion judge that the balancing of probative value and prejudicial effect favour admission. However, on the abuse of process side of the equation, the onus is on the accused person to establish on a balance of probabilities that state actors acted in a manner that society finds unacceptable, and which threatens the integrity of the justice system: Hart, at para. 113. As Dawe J.A. observed in Lee, at para. 37, a main focus of this part of the Hart analysis is whether the police overcame the will of the accused and coerced a confession. According to Moldaver J. in Hart, at para. 115: “This would almost certainly amount to an abuse of process.” However, he also said, at para. 118: “While coercion is an important factor to consider, I do not foreclose the possibility that Mr. Big operations can become abusive in other ways.” The Supreme Court entrusted trial judges with the task of identifying abuses of process in this broader context.
51As noted above, the appellant submits that the motion judge was singularly focused on whether the actions of Rob and Uncle Dan were impermissibly coercive and that he did not sufficiently consider whether the operation was abusive in “other ways”, as alluded to in Hart.
52I accept that coercion was a major focus of the motion judge; it was the major focus in Hart. It was a major theme in the submissions of trial counsel. While the motion judge referred to the broader scope of the abuse of process inquiry mentioned in Hart, his concluding words in his reasons focus only on coercion, reproduced above at para. 45.
53However, in substance, the motion judge properly assessed the ice hut scenario and found that there was no impropriety in the conduct of the officers. In short, he found that Rob had not directed the appellant to speak to Uncle Dan before calling his lawyer. Rob left it up to the appellant to decide what he wanted to do – i.e., “however you wanna do it”. Before the appellant eventually confessed to Rob, he never raised the issue of speaking to counsel first. The trial judge found that this was because the appellant believed he was confessing to a friend and was “in no jeopardy” at the time.
54Since the appellant’s trial, this court considered the propriety of a similar scenario in Lee, in which the police discouraged the accused from consulting counsel during the course of a Mr. Big operation. This court held that the conduct of the officers did not amount to an abuse of process.
55The police investigated Mr. Lee for his suspected role in a homicide. The Mr. Big operation in that case followed the more traditional model involving UCOs posing as members of a powerful criminal organization that offered the target, Mr. Lee, the potential for large material benefits. Similar to the appellant’s case, the police in Lee staged a traffic stop during which Mr. Lee was told that he had been flagged as a suspect in a murder investigation. As Mr. Lee discussed his options with a UCO about contacting the officer who wished to speak with him, he asked the UCO whether he should go to the meeting with a lawyer. The UCO responded, “Well, why would you need a lawyer?” The UCO reminded Mr. Lee that he had already spoken to the police without a lawyer and then asked, “Then why you gotta go for this one with a lawyer?” As the conversation continued, the officer continued to dissuade Mr. Lee from consulting a lawyer, suggesting that doing so might undermine a lucrative deal, which would threaten Mr. Lee’s continued involvement with the organization. The trial judge in that case admitted the evidence derived from the Mr. Big operation. Mr. Lee was convicted.
56In dismissing Mr. Lee’s appeal, Dawe J.A. shared the trial judge’s “serious concern” about the UCO’s attempts to discourage the accused from speaking to a lawyer. However, like the motion judge in this case, the trial judge in Lee concluded that the conversation about a lawyer had no real impact on Mr. Lee’s subsequent inculpatory statements. Dawe J.A. concluded that the trial judge was entitled to reach this conclusion on the record before him. I would reach the same conclusion on the record on this appeal.
57The appellant submits that Lee should be distinguished because, in this case, the appellant had already retained a lawyer and demonstrated some trust in that lawyer prior to Rob’s comments. In Lee, the accused had yet to make contact with a lawyer. The appellant also seeks to distinguish Lee on the basis that Rob intentionally undermined the appellant’s pre-existing relationship with his lawyer.
58I do not accept that these differences in the two cases are meaningful to the abuse of process analysis of the motion judge.
59In terms of Rob’s stated intention, it is important to distinguish between what he intended and what he actually said to the appellant in the ice hut before the appellant’s first confession, prior to Uncle Dan’s arrival. While his intention may have been to discourage the appellant from reaching out to his lawyer before speaking to Uncle Dan, by his words, he left it up to the appellant to decide what to do. He was not forceful with the appellant at all. The appellant made the decision to speak to Uncle Dan before speaking to his lawyer.
60The appellant submits that, had he contacted his counsel before speaking to Uncle Dan (or Rob), he would have told his lawyer about the traffic stop and his lawyer would have immediately advised the appellant that he was enmeshed in a Mr. Big operation. Any lawyer of reasonable competence would have detected the true nature of the traffic stop and advised the appellant accordingly. It would have brought the Mr. Big operation to an end.
61These submissions rest largely on speculation. Because the appellant did not testify on the voir dire, we have no way of knowing what information the appellant may have conveyed to his lawyer (i.e., whether he would have spoken about his new “friendship” with Rob and the opportunity for an introduction to Uncle Dan) or what advice the lawyer might have provided. As Rob said in his evidence, he believed the appellant hoped that his lawyer would call the police and be able to ascertain more details about the investigation, which the appellant would then share with Rob and Uncle Dan.
62In his references to contacting counsel, Rob was not in any way disparaging of the appellant’s counsel in terms of his competence or his role in the system as defence counsel. The appellant accepts that Rob’s comments did not personally denigrate the appellant’s lawyer. Rather, the appellant submits that Rob challenged the utility of the appellant speaking to any lawyer. This argument was squarely before the motion judge, who considered whether Rob “denigrat[ed] and diminish[ed] the utility that a lawyer’s help would provide”. He found that Rob’s attempted dissuasion did not constitute an abuse of process. I see no error in the motion judge’s analysis on this point. If anything, Rob was more disparaging of the police in suggesting that they would not provide any useful information to the appellant’s counsel.
63Moreover, after both ice hut confessions (the first to Rob, and the second to Uncle Dan), neither UCO attempted to discourage the appellant from speaking with his lawyer. The appellant attempted to contact his lawyer during the lengthy interval between the ice hut confessions and the boardroom meeting. Even though the appellant was not successful in reaching his lawyer, his attempts demonstrate that the actions of the officers did not undermine any confidence the appellant may have had in his lawyer. Presumably, the appellant could have delayed this meeting until he spoke to his lawyer. He chose not to do so.
64Lastly, the fact that the appellant already had a lawyer is not an important distinction from the scenario that unfolded in Lee. The fact that the appellant seemed to trust his lawyer rested on the impressions gained by Rob in his interactions with the appellant. Again, the appellant did not testify on the voir dire to provide greater context for this issue.
F. conclusion
65The motion judge conducted a careful analysis of the appellant’s unequivocal Mr. Big confessions that he murdered Carmela at the request of Mr. Knight. Engaging the principles in Hart, he determined that the utterances were reliable and they were admissible. He conducted a thorough balancing of their probative value against their prejudicial effect, a determination left unchallenged on appeal.
66The motion judge’s conclusion that the actions of the UCOs did not give rise to an abuse of process was available on the record before him. It cannot be said that the single, brief exchange between the appellant and Rob in the ice hut about consulting a lawyer would offend society’s notions of fair play and decency so as to undermine the integrity of the justice system. The appellant’s incriminatory comments were not the product of abusive or coercive conduct on the part of the UCOs. The utterances were admissible.
G. disposition
67I would dismiss the appeal.
Released: June 24, 2026 “J.M.F.”
“Gary Trotter J.A.”
“I agree. Fairburn A.C.J.O.”
“I agree. Janet Simmons J.A.”
1This appeal is subject to a publication ban pursuant to s. 486.5 of the Criminal Code, R.S.C. 1985, c. C-46. No information that could identify any undercover police witness shall be published in any document or broadcast or transmitted in any way.