Overview

[1] There is a housing complex at 172 Centre Street East in Richmond Hill. Some of the residents of the complex were alarmed to hear gunfire around midnight on January 7, 2014. A number of residents looked out their windows towards a parking lot on the west side of the building. And some of those that looked said they saw two figures with guns. They described shots being fired into and around a red Lexus automobile parked in the lot.

[2] Later the police would find a young female dead in the front passenger seat of the Lexus. Her brother was hanging out of the driver’s side door of the car, badly, but not fatally wounded. Her boyfriend – Premier Hoang – was on his knees outside the open passenger door, with his head leaning into the car. He was barely alive and died a short time later in hospital.

[3] The police were short on suspects but came to believe that Mr. Lee may have had some connection with the shootings, based on data recovered from Mr. Hoang’s cell phone. In particular, they believed that a party identified in the phone as ArEx2 had lured Mr. Hoang to the residential complex where he was killed. They further believed that Mr. Lee was one and the same person as ArEx2. They decided to run a Mr. Big undercover operation. They enticed Mr. Lee to join a fictitious criminal organization. They got him to trust them. They stimulated him to talk about the homicides and eventually to describe playing a role in them.

[4] Mr. Lee’s confession is the central piece of the Crown’s case against him. Its admissibility was dealt with by way of a pre-trial motion. I held that the probative value of the confession exceeded its prejudicial effect and I ruled it admissible, subject to some potential editing of particularly prejudicial bits and pieces of the evidence recorded during the undercover operation. The admissibility ruling is reported at 2018 ONSC 308.

[5] Crown and defence counsel were able to agree on what portions of the body pack recordings should be edited out. Accordingly no further editing order was required. The Crown’s position shifted somewhat, however, during the evidence of their penultimate witness.

[6] The witness in question is Officer “E”. He was Mr. Lee’s principal contact in the fictional criminal organization created by the police. The Crown sought to introduce through Officer E, statements Mr. Lee purportedly made to Officer E regarding his involvement in the cocaine trade. Defence counsel objected, arguing that the evidence was unjustifiably prejudicial and should not be admitted.

[7] I heard brief submissions from counsel and held that the evidence was admissible. I said I would provide some brief, written reasons. These are those reasons.

The Impugned Utterances

[8] The utterances sought to be introduced by the Crown were made in Officer E’s car while he and Mr. Lee were driving to a location where they were going to participate in a staged theft.

[9] According to Officer E, Mr. Lee made comments that included the following:

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

(b) He was dealing at the ounce level. He would buy an ounce for about $1200 and sell it for up to $1800;

(c) He had runners working for him. Sometimes they would short him or ask for advances. He used to speak to them 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 to see who was around and what the entrances and exits were.

The Parties’ Positions

[10] Evidence relating to a Mr. Big operation inevitably includes bad character evidence. If nothing else, it will involve a jury hearing that the accused was willing to join a criminal organization and participate in a variety of offences of dishonesty and possibly even violence. In this case the jury has heard and will continue to hear evidence of Mr. Lee’s involvement in the sale of marijuana as well as his willingness to join a criminal organization and participate in thefts, frauds and obstruction of justice.

[11] Defence counsel objected to the jury hearing about Mr. Lee’s involvement in the cocaine trade. He submitted that this evidence was acutely prejudicial. While conceding that evidence of marijuana dealing was necessary to demonstrate the connections between some of the principal parties of interest in this case, there is no such necessity in terms of the evidence of cocaine dealing.

[12] In the defence submission, evidence of Mr. Lee’s involvement in the sale of cocaine and his interactions with runners adds little of probative worth but entails significant prejudice. Mr. Miglin asserted, I think fairly, that in the present social climate, evidence of cocaine dealing will be viewed far more negatively than evidence that Mr. Lee dealt in marijuana.

[13] The Crown concedes that the proffered evidence is prejudicial, but contends that it is relevant to a number of live issues in this proceeding including:

(a) explaining the connection between Mr. Lee and Mr. Hoang;

(b) establishing that Mr. Lee and ArEx2 are one and the same person; and,

(c) aiding the jury in their consideration of the reliability of Mr. Lee’s confession. In particular, the jury will have to consider the inducements on offer during the Mr. Big operation. The inducements will not be considered in isolation but rather in the context of how powerful they would have been on Mr. Lee. Each juror will have to consider Mr. Lee’s personality, his experiences, education and sophistication. The level he was at in dealing cocaine, in managing his runners and in taking steps to ensure his security are all factors that may bear upon the jury’s assessment of his level of “street smarts” and sophistication.

[14] In the Crown’s submission, the probative value of the evidence exceeds its prejudicial impact and it should therefore be admitted.

Governing Principles

[15] The law governing the admissibility of bad character (propensity) evidence is easily stated, but often not so easily applied.

[16] Propensity evidence is presumptively inadmissible. The presumption is rebuttable. The modern test for admissibility of propensity evidence was formulated by McLachlin J., as she then was, in R. v. B. (C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717 where she said, at para. p. 732, that “propensity evidence, while generally inadmissible, may exceptionally be admitted where the probative value of the evidence in relation to an issue in question is so high that it displaces the heavy prejudice which will inevitably inure to the accused where such evidence of prior immoral or illegal acts is presented to the jury.”

[17] In in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, Binnie J. provided a functional framework for determining the admissibility of propensity evidence. There are four steps:

(a) The relevance of the evidence to an issue in the case must be established.

(b) The probative value of the evidence must be assessed;

(d) Probity must be balanced against prejudice.

Discussion

Relevance

[18] The Crown’s case is, for the most part, constructed on Mr. Lee’s confession. Obviously the reliability of that confession is of central importance to both sides in this case.

[19] The jury will hear, as part of the confession, that Mr. Lee said he lured Premier Hoang to 172 Centre Street; that he and someone he identified as “P” waited in an alleyway between buildings; that he waved Mr. Hoang over to the alley when he arrived; and that he and P started shooting when Mr. Hoang came into the alley. The confession is much more detailed, but these brief particulars will serve my present purposes.

[20] The jury will be instructed that when assessing the reliability of the confession, they should consider the circumstances leading up to and surrounding the confession, the details of the confession itself and the extent to which those details match other known or accepted facts of the case.

[21] The circumstances surrounding the confession include, amongst other things, the particulars of the undercover operation, the inducements on offer and Mr. Lee’s personal circumstances. The jury will need to consider whether Mr. Lee was particularly vulnerable to any of the inducements offered by the undercover officers.

[22] I am satisfied that each of the issues identified by the Crown are indeed live issues in this proceeding and that the proffered evidence is relevant to those issues.

[23] In a broad sense, the central live issue in this case is identity. More particularly, was Mr. Lee one of the individuals involved in the attack on Mr. Hoang and his companions? Establishing a connection (through drugs or otherwise) between Mr. Lee and Mr. Hoang and establishing that Mr. Lee was one and the same person as ArEx2 are factors that tend to implicate Mr. Lee in the offences. More compellingly, obviously, the confession directly implicates Mr. Lee in the offences. Evidence that supports or undermines the reliability of the confession is undeniably relevant.

[24] Defence counsel did not seriously dispute the relevance of the proffered evidence. Mr. Miglin’s argument focused on the balancing of probity and prejudice. I will turn to those issues now.

Probity

[25] In my view, evidence that Mr. Lee and Mr. Hoang were both associated with cocaine dealing and perhaps even knew one other, may make it more likely that Mr. Lee and ArEx2 were one and the same person. It may also provide some corroboration of a small piece of the confession. In particular, Mr. Lee said that the shooting of Mr. Hoang was a retaliatory gang hit. He said his friend, Kevin Pham, asked him to lure Mr. Hoang to his death because Mr. Lee knew Mr. Hoang.

[26] It must be remembered that relevance is a low threshold. While I would consider the proffered evidence relevant to first two issues identified by the Crown, I find it to be only slightly probative of the ultimate issue of identity. It is apparent, from a review of the ArEx2 messages retrieved from Mr. Hoang’s phone, that ArEx2 and Mr. Hoang were acquainted with one another and that each was familiar with the drug trade and drug culture. In the result, evidence that puts Mr. Lee into that group tends to support his identity as a person involved in the offences. Having said that, I suspect that group to be relatively large. As such, the probative value of the evidence remains slight in relation to the issue of identity.

[27] The proffered evidence is, however, far more probative in terms of the assessment of the reliability of Mr. Lee’s confession. That confession, if accepted by the jury as truthful and reliable, is essentially conclusive of the issue of identity – at least insofar as Mr. Lee is concerned. Evidence that tends to support or undermine the reliability of the confession may therefore be significantly probative.

[28] Mr. Lee was a young man at the time the undercover operation was run. His parents had both died before he turned 20. He had not finished high school. In fact he may have only a grade 9 education. He had a brother and sister who he maintained a relationship with, but who were not terribly helpful to him in terms of his care and support. He appears to have been left, more or less, to his own devices since he was a teenager. There is no doubt that he has had a difficult go of it from the time of his mother’s death when he was about 14.

[29] Mr. Lee appears to have made close connections to the two main undercover operatives in surprisingly short order. He was arguably sucked in pretty quickly by their many false assertions of trust, honesty, family and mutual support. He made it clear that he had never had friends like these before in his life. No one had ever helped him like his crime family was helping him.

[30] The jury has heard all of this evidence. They have also heard that Mr. Lee was involved in the sale of marijuana at the pound level. But they had not, until now, heard anything about his involvement in cocaine; about him employing runners; about him being savvy and strong enough to know to meet with his runners face to face to make sure no one lied to him; and sophisticated enough to scope out the locations where he was going to be consummating his deals.

[31] It is up to the jury to determine what kind of person Mr. Lee 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. Mr. Miglin submitted that it was sufficient that the jury knew Mr. Lee was involved in marijuana sales. With respect, I disagree. His involvement with cocaine and the other factors I mentioned are qualitatively different than selling marijuana. They tend to support the notion that Mr. Lee 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 Mr. Lee for the jury to consider.

Prejudice

[32] The prejudice of the evidence is obvious. Dealing in cocaine is a serious criminal offence. It is a socially destructive enterprise. The jury will no doubt look unfavourably upon it. Moreover, there is evidence that Mr. Hoang was a drug dealer. It is widely known that drug dealing is a dangerous business. Drug dealers kill each other with some degree of regularity. There is definitely a risk that the jury could look upon Mr. Lee as just the type of person who would commit the murder of another drug dealer.

[33] The significance of this prejudice is inescapable. There is a genuine risk of both moral and reasoning prejudice associated with this evidence.

[34] The risks of prejudice can, however, be attenuated to some extent through a carefully worded jury instruction. The jury was instructed about bad character evidence – its risks and limitations – before any of the undercover officers began to testify about the Mr. Big operation. They can be given a further limiting instruction now, which specifically addresses the evidence about involvement in the cocaine trafficking business.

[35] I cannot say that I have complete confidence that the risk of prejudice will be eradicated by an instruction, however carefully worded and well-timed it is. That said, juries are presumed to understand and follow legal instructions from the bench: R. v. Suzack, (2000), 2000 CanLII 5630 (ON CA), 141 C.C.C. (3d) 449, at para. 128.

Balancing Probity and Prejudice

[36] The reliability of Mr. Lee’s confession is the central factual issue in this case. The jury needs a complete and, hopefully, accurate picture of all of the circumstances surrounding the making of the confession in order to properly gauge its trustworthiness. The evidence of Mr. Lee’s involvement in the cocaine trade, of using runners and so on, is important evidence in my view. It is also prejudicial. There can be no doubt about that.

[37] In the final analysis, my view is that while there is a real risk of prejudice, that risk can be managed through an appropriate jury instruction. The prejudice, attenuated in that way, is readily exceeded by the probative value of the evidence.

[38] In the result, the proffered evidence is admissible.

Boswell J.

Released: April 12, 2018

R. v. Lee, 2018 ONSC 2374

Case Summary

Overview

The Impugned Utterances

The Parties’ Positions

Governing Principles

Discussion

Relevance

Probity

Prejudice

Balancing Probity and Prejudice

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legal Tests 2