COURT FILE NO.: CR-18-870000538-0000

DATE: 20191218

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TRESTAN BROWN

Jay Spare and Michael MacDonald, counsel for the Crown

Alison Craig, counsel for the Accused

HEARD: November 4-8, 12-15, 18-22, and 25, 2019

M.A. CODE J.

REASONS FOR JUDGEMENT on a pre-trial motion concerning the admissibility of a “mr. big operation” confession

A. OVERVIEW

[1] The accused Trestan Brown (hereinafter, Brown) is charged with two separate homicides, one in Toronto and one in Brampton. Both indictments allege the offence of first degree murder. The Toronto trial is scheduled to commence in January 2020 and the Brampton trial is scheduled later in 2020.

[2] By order of Acting R.S.J. Archibald dated October 25, 2019, I was appointed “case management” judge for both trials, pursuant to s. 551.7 of the Criminal Code. The objective of this Order was so that I could hear one long complex pre-trial Motion that is common to both trials. The Motion concerns the admissibility of confessions made by Brown to both homicides, after a lengthy undercover police operation.

[3] The parties agree that the confessions in question are subject to the new common law rule of evidence that emerged out of the Supreme Court’s judgment in R. v. Hart (2014), 2014 SCC 52, 312 C.C.C. (3d) 250 (S.C.C.). That case concerned an investigative technique referred to as a “Mr. Big operation”. Although the particular investigative approach utilized in the present case differed in some ways from the typical or historical form of a “Mr. Big operation”, I am satisfied that the principles set out in Hart govern this case. That is because the Supreme Court set out the new rule of evidence in sufficiently broad terms that were not limited to the particular facts of the Hart case.

[4] The new rule of evidence was summarized in two key passages in R. v. Hart, supra at paras. 10-11 and 85-6, as follows:

… I would propose that where the state recruits an accused into a fictitious criminal organization of its own making and seeks to elicit a confession from him, any confession made by the accused to the state during the operation should be treated as presumptively inadmissible. This presumption of inadmissibility will be overcome where the Crown can establish, on balance, that the probative value of the confession outweighs its prejudicial effect. In this context, the confession’s probative value is a function of its reliability. Its prejudicial effect stems from the harmful character evidence that necessarily accompanies its admission. If the Crown is unable to demonstrate that the accused’s confession is admissible, the rest of the evidence surrounding the Mr. Big operation becomes irrelevant.

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.

The first prong recognizes a new common law rule of evidence for assessing the admissibility of these confessions. The rule operates as follows. Where the state recruits an accused into a fictitious criminal organization of its own making and seeks to elicit a confession from him, any confession made by the accused to the state during the operation should be treated as presumptively inadmissible. This presumption of inadmissibility is overcome where the Crown can establish, on a balance of probabilities, that the probative value of the confession outweighs its prejudicial effect. 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. If the Crown is unable to demonstrate that the accused’s confession is admissible, the rest of the evidence surrounding the Mr. Big operation becomes irrelevant and thus inadmissible. This rule, like the confessions rule in the case of conventional police interrogations, operates as a specific qualification to the party admissions exception to the hearsay rule.

Second, I would rely on the doctrine of abuse of process to deal with the problem of police misconduct. I recognize that the doctrine has thus far proved less than effective in this context. While the problem is not an easy one, I propose to provide some guidance on how to determine if a Mr. Big operation crosses the line from skillful police work to an abuse of process. [Emphasis added].

[5] In the present case, the accused Brown was undoubtedly “recruited” by the police “into a fictitious criminal organization of [their] own making” and the police then sought “to elicit a confession from him”. As a result, the two part approach to admissibility of the ensuing confession applies, as set out in Hart. The defence does not submit that the second abuse of process part of the test has any application in this case. Accordingly, the sole focus is on the first part of the test which requires a balancing of probative worth and prejudicial effect.

[6] The procedure to be followed on a Hart Motion is driven by the fact that the confession is presumptively inadmissible and the test for admissibility requires assessments of both reliability (or probative worth) and prejudicial effect (or moral prejudice and reasoning prejudice). The Court briefly described the Motion procedure in R. v. Hart, supra at para. 89, without elaboration:

“In practise, this two-pronged approach will necessitate that a voir dire be held to determine the admissibility of Mr. Big confessions”.

[7] The parties sensibly negotiated three Agreed Statements of Fact, summarizing the Crown’s evidence aside from the two confessions as well as some of the relevant context. The two officers in charge of the two investigations were both called. They testified mainly about the evidence in the two cases that had been disclosed to the public in press releases, or disclosed to witnesses or suspects in interviews, or disclosed to various accused in related proceedings. The undercover officers and their handlers were called and they testified about the elaborate steps taken to make contact with the target Brown, to win his trust and confidence, and to then obtain his confessions. Finally, the defence called one witness, namely, Brown’s lawyer who was acting in relation to four sets of charges that Brown was facing while the undercover operation proceeded.

[8] In the result, I heard evidence and argument over some 14 days, including many hours of wiretap, and then reserved judgement. These are my Reasons on the pre-trial Motion concerning admissibility of the two confessions.

B. FACTS

[9] At the beginning of the Motion, I made a number of Orders protecting the identity of those officers who are still engaged in ongoing undercover operations. In particular, I allowed them to testify using the same pseudonyms that they had used during the investigation (their real names are set out in sealed exhibits). I also allowed them to testify behind a screen so they were not visible to members of the public. See: R. v. Mentuck (2001), 2001 SCC 76, 158 C.C.C. (3d) 449 (S.C.C.) and ss. 486(1) and 486.31(1) of the Criminal Code.

(i) Circumstantial evidence connecting Brown to the two homicides

[10] The two homicides that are the subject of this Motion involved shootings and the use of handguns. The main issue in the Toronto homicide, if not the only issue, is the identity of the gunman who killed Abdullah Farah in a “drive-by” shooting on Danforth Avenue in the early morning hours of April 17, 2016. Identity is also a significant issue in the second homicide, which occurred about a month later on May 13, 2016, outside the All Stars bar on Lisa Street in Brampton. However, the Brampton homicide arose out of an altercation in which the victim, one Kadeem Bascombe, was also armed with a handgun which he fired several times before succumbing to a single gunshot fired by the other person involved in the altercation. Accordingly, there is a self-defence issue in the Brampton shooting, in addition to the identity issue.

[11] There is circumstantial evidence linking the accused Brown to the two homicides. As a result, he became a suspect in both police investigations. That body of circumstantial evidence was sensibly tendered on the Motion in the form of Agreed Statements of Fact, supplemented by testimony from the two officers-in-charge and by video surveillance depicting the Danforth Avenue “drive-by” shooting.

[12] The Danforth shooting occurred outside a “hookah lounge” known as Cloud Nine café. The video surveillance showed three males crossing Danforth Avenue at about 12:26:22 a.m. As they crossed the street, from the south side to the north side, a white four door sedan passed, heading west on Danforth Avenue. The three males who crossed the street spoke to someone at the entrance to the Cloud Nine café. Subsequent investigation revealed that they were denied entry to the café. As a result, they remained outside the café on the sidewalk. There were about six persons in front of the café when the white sedan (or a similar white sedan) returned and passed the café at about 12:26:47 a.m., now heading east on Danforth Avenue. A few minutes later, the same or similar white sedan passed the café for a third time at about 12:29:04 a.m., now heading west. The three males who had previously crossed to the north side of Danforth Avenue were still on the sidewalk in front of the café. Finally, at about 12:30:34 a.m., the white sedan (or a similar white sedan) passed the café for a fourth time, now heading east. By this point, the three males had moved towards the street, leaving the sidewalk and walking to the south between two parked cars, as they started to once again cross Danforth Avenue. The white sedan slowed, with its brake lights on, although the car did not come to a complete stop. The three males suddenly dropped to the ground, the white car’s brake lights went off, and it sped away to the east. The officer-in-charge, Detective Dunkley, testified that a cloud of smoke is visible on the video surveillance at this point. In my view, this video evidence is more accurately described as a trail of dust or debris along the pavement, close to the parked cars where the deceased was shot, perhaps indicating the path of a bullet.

[13] Eye witnesses reported hearing multiple gunshots (between five and seven). They saw the white sedan turn northbound off Danforth and onto Coxwell Avenue, traveling “really quickly” and going through a red light. The victim Farah, who was one of the three males at the front of the café, fell to the ground and died from a single gunshot wound to the right chest. Three 9 mm. Luger shell casings (Winchester brand) were found by the police on Danforth Avenue at a point in front of the café. In addition, the police found four bullets and 12 projectile fragments at the scene, including four projectiles embedded in the two cars parked on either side of the deceased. All the shell casings found at the scene were fired by the same gun. The police had no evidence of any second gun having been used in the shooting, although their investigation led them to believe there was more than one person in the car. With assistance from the manufacturer, the police were eventually able to identify the make and model of the white sedan as a Pontiac G5, made between 2007 and 2010. The license plate number of the car was not obtained.

[14] As noted previously, the Brampton homicide occurred about a month later, on May 13, 2016. It took place near the intersection of Queen Street and Dixie Road. The background to this shooting outside the All Stars bar concerns one Ronald Thomas (who is the accused Brown’s cousin and who is now co-accused with Brown in the alleged murder). Earlier in the day, Ronald Thomas was on the telephone and he appeared to be upset with someone. At about 8:46 p.m. in the evening, Thomas called a taxi to a residence in Brampton. When the taxi arrived to pick him up, Thomas was talking to two men in a white car. The taxi drove Thomas to the All Stars bar and the white car, a Pontiac G5 sedan, followed the taxi. Video surveillance at the All Stars bar showed the taxi and the white sedan arriving in the parking lot. The passenger who got out of the taxi (Thomas) and the person who got out of the passenger side of the white sedan (one Stephen Brown, who is not related to the accused Brown, although they were close friends) both entered the All Stars bar.

[15] The driver of the white sedan got out of the car. He did not enter the bar with Ronald Thomas and Stephen Brown. Instead, he approached one Kadeem Stephens outside the bar and a conversation ensued. During the conversation between the driver of the white sedan and Stephens, a third person (the eventual deceased, Kadeem Bascombe) approached and yelled at Stephens to move out of the way. The driver of the white sedan then fired a single shot at Bascombe, who drew his own handgun and fired at the driver of the white sedan who was now running away. Bascombe died in hospital later that evening from a single gunshot wound to the chest. He managed to fire seven shots at the fleeing driver of the white sedan. Shell casings and projectiles recovered from the scene of the shooting matched Bascombe’s gun.

[16] The single gunshot that killed Bascombe was a .22 calibre bullet. The white Pontiac G5 sedan that the gunman had driven to the scene was left in the parking lot. The police established a perimeter around the plaza where the bar was located, monitoring those persons who were entering and leaving. The accused Brown was identified leaving the area within 30 minutes of the shooting. In addition, Ronald Thomas and Stephen Brown were seen running from the area of the shooting and entering a nearby apartment building (at 11 Lisa Street). They went to apartment 1010, according to the building superintendent.

[17] The next day, May 14, 2016, the police executed a search warrant at the above apartment 1010, 11 Lisa Street and seized two firearms. One of the firearms was a 9 mm Luger semi-automatic handgun (Ruger model P85). No fingerprints were recovered from this gun. Forensic testing of the gun was completed on July 20, 2016. The Centre of Forensic Sciences (C.F.S.) concluded that the 9 mm Luger shell casings found at the scene of the earlier Danforth shooting in Toronto matched this gun seized from the Lisa Street apartment in Brampton.

[18] The next day, May 15, 2016, the police executed a search warrant on the white Pontiac G5 sedan left in the parking lot. The car was registered to the accused Brown’s mother (Zya Brown) and her fingerprints were found on the car. In addition, the police found a document in the accused Brown’s name in the car. Most importantly, they found one round of Winchester brand 9mm Luger ammunition in the car. This single round was stamped with the same manufacturer’s markings as the three shell casings found at the scene of the Danforth Avenue shooting. When Zya Brown attended at the police pound to pick up the car, a few days later on May 20, 2016, she was interviewed. The interview was tape recorded. When questioned as to who had the car on May 13, 2016, she stated: “I lent it to, we call him Steph. His name, real name is I think Stephen Brown”. When asked “who else has access to this car”, she stated: “I lend it to my son to go to work. During the week. On the weekends I have it … Trestan Brown … I usually lend it to him during the week. I took it back from him the Thursday. But I’m not sure if we did that to be honest with you”. After referring to her son’s “work stuff” located in the car, she stated: “Stephen doesn’t borrow this in the week. He just borrowed it that weekend. He asked for it for the night”. The May 13, 2016 homicide in Brampton was on a Friday evening.

[19] There was one further item seized by the police from the white Pontiac G5 sedan and that was an inactive cell phone (it had no SIM card). The memory in the phone contained text messages from “Trey” at phone number 437-999-9852. Ronald Thomas’ phone listed this same number for “Tristan”. The accused Brown’s foreman at work had received communications from the accused Brown using that same number as recently as May 10, 2016, that is, after the Toronto homicide and just before the Brampton homicide. Detective Dunkley testified that the police did not seize the foreman’s phone. He was unsure whether the police had copied it.

[20] The police carried out a cell tower analysis for the phone with this number (437-999-9852), at the time of both the Toronto homicide on April 17, 2016 and the Brampton homicide on May 13, 2016. On the former date, the phone connected to a cell tower close to the scene of the Danforth shooting at about the time of the shooting. The phone then connected to further towers, inferring that it travelled east on Danforth, north to the 401 highway, and west to Brampton. On the latter date, cell tower data located the phone in the vicinity of the All Stars bar, both before and after the shooting. Shortly after the shooting, the phone made calls to both Ronald Thomas and Stephen Brown. Finally, the phone was used to call a taxi at 9:11 p.m., shortly after the shooting. In response to this call, a taxi was dispatched to 2 Silver Maple Court, which is about 700 meters from the All Stars bar. Surveillance video in the lobby of this building showed a man on his cell phone at about the time of the call for a taxi.

(ii) Dissemination of information about the two homicides

[21] Detective Dunkley was the officer-in-charge of the Toronto homicide investigation. Police press releases were issued on April 17 and 18, 2016, shortly after the shooting. They identified the victim as 20-year-old Abdullah Farah, the location of the “shooting” as “near Danforth Avenue and Coxwell Avenue”, and the time of the shooting as 1:30 a.m. on Sunday, April 17, 2016. A photograph of the deceased was attached to the press release and information was sought from the public. Media reports gave more information, based on police sources (including Detective Dunkley), stating that the location of the shooting was “outside of Cloud Nine café”, that it was “a drive-by shooting”, that “the assailants fired several shots from a moving vehicle”, that “it appears to be a targeted shooting”, that “it is unclear how many shooters”, and that a “white four door sedan” was seen “fleeing the scene east on Danforth”. Several of the media reports devoted considerable attention to the fact that there had been two previous homicides, in 2013 and 2015, associated with the café located at this particular address.

[22] A few days later, on April 21, 2016, Detective Dunkley held a press conference and released additional details. The media attended and reported these further details. In particular, Detective Dunkley played the surveillance video, showing a white four door sedan passing the Cloud Nine café four times, both before and at the time of the shooting, and showing the three men crossing Danforth Avenue and attending at the front of the Cloud Nine café. He asked for the deceased Farah’s two companions to come forward and he sought the public’s help in identifying the white sedan. The deceased’s sister also spoke at the press conference, insisting that her brother was not involved in gangs and denouncing media speculation to this effect. Detective Dunkley confirmed that Farah was working, he had no criminal record, he had no charges before the courts, and he had no known gang affiliations. Detective Dunkley, however, did assert that the shooting appeared to be “targeted”, given the police belief that the occupant/occupants of the white sedan had passed by the targeted location four times, prior to the shooting. Detective Dunkley added that Farah had been turned away from the café and was leaving when he was shot. In terms of the white sedan, Detective Dunkley advised that the police had not yet identified its make and model. A police bulletin was issued with three still photographs of the car, stating that “a firearm is believed to have been discharged from this vehicle” and that it is “unknown how many occupants were inside this vehicle”. The police were never able to identify the specific car in question from its license plate or from the video surveillance. The police never found any known link between the deceased Farah and the accused Brown.

[23] After the investigation of the Brampton homicide in May 2016, summarized above, the Toronto police concluded that the white Pontiac G5 sedan owned by Zya Brown (left at the scene of the Brampton homicide) was the vehicle involved in the Danforth shooting. They also received advice from a General Motors engineer that the white sedan seen in the video surveillance at the time of the Danforth shooting was a Pontiac G5. As a result of these developments, Detective Dunkley attended at Zya Brown’s home on August 25, 2016 and advised her that he was investigating the Danforth shooting, that her name had come up in the investigation, and that he wanted to know who was operating her car on the night in question. He told her the name of the deceased and the date of the shooting but did not disclose any other information. He asked her to attend for a formal interview. She never did attend, although she called back once and told Detective Dunkley that she had looked up the homicide online.

[24] By November 2016, the accused Brown had become a suspect in the Danforth shooting. Production Orders leading to the above summarized cell phone and cell tower analysis had been completed. At this point, Detective Dunkley requested a covert operation targeting Brown and it was authorized. That covert operation proceeded between January and October 2017.

[25] Detective Dunkley held a second press conference on September 21, 2017. This was part of various “stimulation techniques” used in furtherance of the covert operation. At this second press conference, the following further details were released to the public and were reported in the media: that the gun used in the Danforth shooting had now been identified and forensically analysed but its make and model were not being released; that the car used in the shooting had also been identified and it was a Pontiac G5 model; that the police still believed the shooting was “targeted” but that the motive was unknown. Detective Dunkley played the surveillance video again at this press conference and asked for the public’s assistance. The media reported that the Cloud Nine café had closed and the premises were now being used as “a daycare”. Detective Dunkley confirmed in his testimony that the police could not determine a motive for the shooting. They examined the deceased Farah’s phone records and spoke to his friends and family. There were no known contacts between Farah and the accused Brown.

[26] In addition to the above press conference, the further “stimulation techniques” carried out by Detective Dunkley in the same time period involved speaking to persons who were close to Brown. The telephone that Brown was believed to be using at the time of the Danforth shooting showed over 40 text messages between Brown and his friend Marissa Taylor, both before and after the shooting. Detective Dunkley spoke to Ms. Taylor on October 2, 2017, told her that her name had come up in the investigation, and asked her about the homicide. He told her that she was in certain phone records but he did not provide any further details.

[27] On October 24, 2017, Detective Dunkley called Zya Brown twice and told her the following: that he wanted to speak to her about the Pontiac G5 involved in the homicide; that he also wanted to speak to her son Trestan Brown and to have him call Detective Dunkley; and that Brown was a suspect in both the Toronto and the Brampton homicides.

[28] Also on October 24, 2017, Detective Dunkley called and then met with Brown’s girlfriend Navasha Richards. He told her the following: that her name had come up in the homicide investigation; that her boyfriend Trestan Brown was a suspect in both the Toronto and Brampton homicides; and that he wanted her to ask Brown to contact him. He told her the locations of the two homicides but did not provide any further details. She replied that she was not on good terms with Brown and had not spoken to him in a week, that she was pregnant with their second child, that she was in the process of moving to her grandmother’s, and that she knew nothing about the two homicides.

[29] Detective Dunkley testified as to what was not disclosed to the public or to witnesses, in particular, the following: the make and model of the gun used in the Danforth shooting; the fact that shell casings were found at the scene; the fact that forensic analysis of the shell casings matched the gun seized in the 11 Lisa Street apartment in Brampton; the fact that no fingerprints were found on this gun; the cell tower evidence tracking the movements of the phone allegedly used by Brown at the time of the Danforth shooting; and the police belief that more than one person was in the white car.

[30] The Brampton homicide involved less dissemination of information to the public as no press conference was held. The Peel Regional Police issued only one press release, on May 14, 2016. It disclosed little more than the time and place of the shooting, as follows:

On Friday May 13, 2016, at approximately 9:01 p.m., Peel Regional Police responded to a call in the area of Lisa Street and Dixie Road in Brampton for reports of a shooting in the parking lot of a strip plaza. Officers arrived on scene and located the male with obvious signs of trauma. He was rushed to a Toronto area trauma hospital where he succumbed to his injuries.

The victim is a 24-year-old resident of Mississauga.

There is no suspect information at this time.

Investigators would like to speak to witnesses who may have been in the area of Dixie Road and Queen Street East in Brampton at the time of the murder.

The police also told the media, and it was reported, that the deceased was Kadeem Bascombe and he “suffered a gunshot wound to the chest”.

[31] There was another means by which information about the Brampton homicide was disseminated and that was during police interviews of witnesses and suspects, and through disclosure to the accused in certain related proceedings. At the time when apartment 1010 at 11 Lisa Street was secured and then searched by the police, shortly after the May 13, 2016 shooting, a number of persons were arrested at the apartment and were detained for some 8 to 10 hours before they were released without charges. Ryan Newhook, Stephen Brown, and Ronald Thomas, who had been seen fleeing to the 11 Lisa Street apartment building, were amongst those initially arrested. There is no suggestion that any relevant information about the shooting was disclosed by the police at the time of these initial arrests. Stephen Brown and Ronald Thomas both told the police upon arrest that they had seen the victim bleeding from “his chest” as they left the crime scene.

[32] It was almost a year after the Brampton shooting, that is on March 1 and 15, 2017, that Stephen Brown and Ryan Newhook were again arrested. This time they were charged with possession of the two firearms seized from apartment 1010 shortly after the shooting. It will be recalled that one of these firearms was the 9 mm Luger allegedly used in the Danforth shooting and that Stephen Brown was a close friend of the accused Trestan Brown. An Agreed Statement of Fact (Exhibit 40) sets out in detail the information or evidence that was put to Stephen Brown by the police, when questioning him during a recorded interview, including the following: surveillance video showing the taxi and the white sedan arriving at the scene, showing the two passengers in the taxi and the white sedan entering the All Stars bar, showing the altercation and shooting between the driver of the white sedan and the deceased Bascombe outside the bar (including Bascombe firing a gun), and showing the driver of the white sedan (and shooter of Bascombe) running away; surveillance video from 11 Lisa Street showing Stephen Brown, Ronald Thomas, and Ryan Newhook running into the building and a bag being passed from Thomas to Newhook; the assertion by the interviewing officer that Stephen Brown was the passenger who exited the white car and that Trestan Brown was the driver (Stephen Brown had previously told the police, inconsistently, that he had arrived in the taxi and then that he had arrived driving the white sedan); the fact that the white car belongs to Zya Brown; the assertion that Stephen Brown left his phone in the white car and the phone had been seized by the police; photographs of the two guns seized from apartment 1010; the assertion that several cell phones had been analysed showing Stephen Brown and Trestan Brown communicating several times on the day of the Brampton shooting and showing that they were in the area of 8200 Dixie Road shortly before the shooting; the fact that the taxi driver had given a statement to the police and the white car had followed the taxi to the bar; and the assertion that Stephen Brown’s girlfriend gave a statement to the police to the effect that Stephen Brown told her that he was with “Trey Brown” (Zya Brown’s son) at 8:35 p.m. on May 13, 2016, just prior to the shooting.

[33] Once Stephen Brown was charged with possession of the two seized guns on March 15, 2017, the police and Crown were careful when making disclosure to the defence because Trestan Brown and Ronald Thomas were not charged until much later (October 20 and 26, 2017 in Thomas’ case and October 26, 2017 in Trestan Brown’s case). For example, none of the forensic evidence from the crime scene was disclosed, such as the number of shots fired, the bullet that caused death, the shell casings, and the results of fingerprint analysis. The connection between the Brampton homicide and the Toronto homicide, such as the July 20, 2016 C.F.S. analysis of the seized guns, was also not disclosed. The fact that a single .22 calibre bullet caused death to Bascombe was not disclosed, either to counsel or in interviews with suspects. Detective Bryers, the office-in-charge of the Brampton investigation, testified that a witness described the man who shot Bascombe as wearing a hoody that was pulled up. The witness did not say that the shooter was wearing a face covering or mask.

[34] Ronald Thomas and Trestan Brown were seen together by surveillance officers, shortly before October 20, 2017 when Thomas was arrested and charged with possession of the two guns seized from apartment 1010. A week later, on October 26, 2017, Ronald Thomas was arrested and charged with the murder of Bascombe. Trestan Brown had been arrested and charged with murder the previous day, October 25, 2017, when the undercover operation concluded.

(iii) The initial steps in the police undercover and wiretap operation

[35] The police undercover operation, eventually leading to the accused Brown’s confessions in late October 2017, began in January 2017. It was accompanied throughout by a “one party consent” wiretap. As a result, all of the important inter-actions between Brown and the undercover officers were tape-recorded. The initial s. 184.2 Criminal Code authorization was granted on January 13, 2017 by Mocha J. and it was renewed a number of times by both Mocha J. and Shamai J. Needless to say, the tape recordings of all the important police contacts with Brown has resulted in a very reliable record on the present Motion.

[36] The homicide officers in Toronto and Peel had certain information about Brown which was passed to the undercover team and which led to the initial design of the undercover operation. For example, Detective Dunkley had information in early December 2016 that Brown had a union job but there was also information to the effect that Brown was “possibly pimping” women through Backpages and Kijiji. In particular, the police had information that Brown was pimping a woman named Lexi. After this information was passed to the undercover team, their initial attempts to make contact with Brown utilized this apparent connection between Brown, Lexi, and prostitution. Phone calls were made in late January 2017 by “S.A.” (an undercover officer) to a person who identified himself as “Romeo” (a name used by Brown). S.A. expressed interest in an escort named Lexi. After three phone calls about this subject, Romeo said that he was busy and would call back. He never did call back. As a result, these initial efforts to make contact and meet with Brown in January 2017, through the prostitution business, were unsuccessful.

[37] Brown had two sets of outstanding charges at this early stage of the undercover investigation. On December 20, 2016 he had been charged in Barrie with possession of a prohibited weapon (a knife that opens automatically). He was released on an appearance notice. On January 13, 2017 Brown was charged in Tay Township (near Midland) with possession of 29 grams of crack cocaine (packaged in three baggies) for the purpose of trafficking. He was released on a promise to appear. In addition to the previously summarized information about Brown’s involvement in prostitution, the police had information that he was involved in street level drug trafficking in the Barrie area. They learned that Brown had left a car parked outside an auto body shop in Barrie. The police proceeded to leave a note on the car with a phone number stating, “looking to buy your car, need it for parts”. This second attempt to make contact with Brown was successful as he called back on February 3, 2017 and a meeting was arranged to discuss buying the car.

[38] The undercover officer who first met with Brown in order to buy his car went by the name of “Robbie”. After a number of phone calls in early February 2017, the first meeting between Brown and Robbie took place at Milestones restaurant in Barrie on February 9, 2017. Robbie was accompanied by a second undercover officer named “R.J.”. Both undercover police officers, Robbie and R.J., were and are large black men with clean cut appearances. They have short hair and they dressed professionally, in “business casual” style, that is, wearing a jacket and shirt but no tie. Robbie was playing the role of a successful businessman who had many connections. Brown is also a black man. He was neat and clean but he dressed more casually than the officers and wore his hair long with a top knot, as he did before me in court.

[39] The three men ate a meal, which Robbie paid for. Brown provided the ownership for his Nissan Altima car, which was registered in Alberta in the name of Trestan Brown. Robbie paid him a deposit of $200. There was to be a further payment of $200 upon final inspection of the car. The lengthy tape recorded conversation at the restaurant lasted one hour and 38 minutes. There was a lot of discussion about food and diet as Brown was vegan and he chose his food carefully. He did not eat meat or drink alcohol. Brown said that he had been in Alberta, that he had a young daughter here in Ontario, that he was saving money to buy a house and he had paid off debt, and that he was working as a bricklayer. He had a Mercedes car but there was a problem with the key fob and so he had travelled to Barrie by bus. Robbie agreed to help Brown fix the key fob and also offered to get Brown a cell phone, when Brown mentioned that he needed one. Robbie spoke about his own extensive travels and Brown expressed a desire to travel. The tone of the conversation was light-hearted and friendly with a lot of laughter. Brown showed some ambition, stating that he wanted to improve himself from his job as a bricklayer and indicating that he was proud and pleased that he had paid off the debt that he owed. They arranged to meet again as it was snowing heavily and they did not go to inspect the car.

[40] The second meeting was four days later, on February 13, 2017, at Joey’s restaurant at the Yorkdale mall in Toronto. Once again, they ordered a meal which Robbie paid for and they had a lengthy conversation that lasted one hour and 31 minutes. They talked about the sale of the Nissan Altima and Brown gave Robbie the fob to his Mercedes car, which Robbie said he would try to have repaired. They talked about diet and health, including a book written by a doctor that Brown had read. Brown again showed some ambition, stating that he was “willing to learn”, wanted to reach the “next level”, and needed a “mentor”. He mentioned that he had purchased a juicer and he wanted to open a juice bar, consistent with his interest in diet and health.

[41] After about 20 minutes of conversation at the restaurant, they were joined by “Karen” who was another undercover officer. She was playing the role of a “high end” escort. It was apparent that she worked with Robbie, who arranged her clients. Karen was and is 5’6” tall and 130 pounds. She had shoulder length straight hair and wore a knee length dress and high heels. The purpose of this aspect of the meeting, from the perspective of the undercover operation, was to leave the impression that Robbie was involved in criminality and to see if Brown was comfortable discussing criminality with Robbie. In this regard, Brown spoke of being tired of his “construction” job working as a bricklayer, he spoke of wanting to be a “boss” and wanting to travel, and he also mentioned having “been through a lot of shit”. Robbie was sympathetic and supportive on this latter point, stating that he too “had things happen to me” when he was young in Jamaica and that these difficulties “make you strong”. Brown spoke about being frustrated with his outstanding charges and stated that he wanted to represent himself. After Karen left the restaurant, Brown spoke at length about his experience in Alberta working as a pimp with an aboriginal woman and collecting all the money that she earned. She apparently drank and caused difficulties for Brown, whereas Robbie made it clear that his own prostitution operation involved “high end” escorts and sophisticated clients and that there were no difficulties. By the end of the conversation, they appeared to agree to work together. Robbie referred to Steph as the person who worked directly with the escorts. The tone of the conversation was light, comfortable, and free-flowing. An apparent rapport developed between the two men who were both interested in the same line of work.

[42] The third meeting was two days later, on February 15, 2017 in Barrie, when Robbie and Brown met to inspect the Nissan Altima and to finalize the sale. At the end of the meeting Robbie took possession of the car. The car’s engine was not working so the $400 sale price was essentially for car parts. While Robbie and Brown were inspecting the car, an associate of Robbie named “Jay” arrived in another car. Jay was also an undercover officer who played the role of someone with knowledge as to whether the car parts were suitable for their intended purpose. Jay was a black male dressed in casual street clothes, wearing his hair in long braided corn rows. In addition to having Jay inspect the Nissan Altima, Robbie handed Jay plane tickets, a passport, and a bundle of cash, as well as two boxes containing a new iPad and a new MacBook, which Jay then put in his car. This exchange of “props” was intended by the undercover team, once again, to leave the impression with Brown that Robbie had connections to business and to possible criminal activity, in order to “stimulate” a further meeting with Brown, after the sale of the car was completed. Robbie had referred to various business opportunities and he made a fairly explicit reference, early on during this third meeting, to opportunities for Brown to make money, stating to him “if you really do want to make a little bit”. The bundle of cash that Robbie handed to Jay had large bills on the outside and the intention was to let Brown see it.

[43] The lead handler, P.W., testified that the objective of the undercover operation at this stage was to establish some kind of business relationship with Brown. It was unclear what the particular business would be, as it depended on the direction of the conversations with Brown. The plan was to present Robbie as a successful businessman, involved in various businesses including prostitution.

[44] The fourth meeting was five days later, on February 20, 2017 at the Lonestar restaurant in Barrie. Text messages were exchanged between Robbie and Brown and they agreed to meet in order to discuss the Mercedes key fob and to pay Brown the $200 balance that was owing on the sale of the Nissan Altima. Brown arrived at the restaurant in a car that he said he had purchased. He also arrived with two friends. Robbie paid Brown the $200 debt owing for the car sale. The four men sat and ordered a meal, which Robbie paid for. After general conversation about diet and sports, Robbie initiated a discussion about a business opportunity that he was involved in. He asked whether Brown wanted to get involved. This business opportunity or plan was to buy land and build a complex that would include a gym, restaurant, and escort/prostitution service. In other words it would involve certain lawful and certain unlawful activities. Brown would contribute to the project with his knowledge about food and drinks. The undercover operation had deliberately designed this business opportunity around Brown’s perceived interests and knowledge about health, food, and prostitution. Robbie referred to “Steph” explicitly as the person who was in charge of this new business venture. He wanted to introduce Brown to Steph. The objective was to get Brown interested and to facilitate a further meeting. Robbie had not told Brown not to bring others to this fourth meeting but Brown’s two friends, who were present throughout the meeting, sat on the other side of the table and did not participate in the discussion between Robbie and Brown. Brown said that he was “broke now” and needed to “make some money” and that Robbie’s business plan about the gym with a restaurant and escort service sounded like an “amazing idea”. Robbie was once again sympathetic to Brown’s current difficulties, stating that he too had to “pay my dues” in the past, before he climbed up to his present successful status as a “professional” with a very different clientele than Brown’s.

[45] A considerable period of time went by between the fourth meeting on February 20, 2017, summarized above, and the fifth meeting which was to take place on April 11, 2017. Brown and Robbie had agreed to meet again about the gym, restaurant, and escort business venture but Brown was unable to meet, in spite of a number of phone calls and texts from Robbie during the intervening six week period. Finally, on April 10, 2017 Robbie called Brown and asked if he could help out Steph by selling her some cocaine. Robbie understood that Brown was involved in drug trafficking and that this may have explained why Brown had been busy and unavailable during this period. Brown agreed to the proposed drug transaction which then led to his first meeting with Steph. She was to become the main undercover officer in the case.

[46] The lead handler, P.W., testified that the police feared losing Brown’s interest after the car sale transaction with Robbie in February 2017. They had little contact with Brown for a period of time. The broad objective of an undercover operation like this is to establish a relationship with the target and so the undercover officers were trying to get Brown to like them and befriend them. They knew that Brown had interests in prostitution, drug trafficking, diet, and healthy lifestyle and so they used all of these interests in order to establish a relationship. P.W. explained that Brown was already engaged in drug trafficking when they made contact with him. The police felt that they had to make use of this existing criminal lifestyle in order to build a relationship.

(iv) Brown’s nine early meetings with Steph between April 11 and June 9, 2017

[47] The undercover officer who went by the name “Steph” played the role of a business woman who ran a “high end” prostitution or escort service. She was also a vegan. She was an authority figure within the business, who expected trust and respect from those who worked for her. Robbie was senior to her and was referred to as her “boss” and as the “money guy” who provided finances for her business ventures. She phoned Brown, who was using the name “Romeo”, on April 10, 2017 and they arranged to meet the next day to complete the sale of three grams of cocaine for $300. They referred to the drug on the telephone as “soft”. Steph said that she needed the drugs for “my girls” because “they don’t work without shit”. Brown and Steph both seemed eager to meet.

[48] The first meeting between Steph and Brown was on April 11, 2017 in the parking lot of Fairview Mall. It was a short meeting, lasting 11 minutes. He got into the front passenger side of her car, a mid-range SUV. She was alone. She is a small woman, 5’1” tall and 115 pounds. She always tried to exhibit a “classy” appearance, wearing pants and high heels with her hair pulled back. However, she spoke in a coarse manner, frequently using swear words and street slang. She had a gym bag in the back of the car and they talked enthusiastically about fitness and about both being vegan. Brown handed her the cocaine and she gave him $300. What is noteworthy about this initial meeting is that the two of them “hit it off” and that Brown was an active participant, having a lot to say about his life and his views. He appeared to be quite confident.

[49] Two weeks went by before Steph’s next contract with Brown. She called him on April 24, 2017 and they arranged to meet for lunch at a vegan restaurant. The purpose of this proposed second meeting was to get Brown’s input concerning various business ideas that Steph was pursuing. Brown was enthusiastic to meet again. Steph told him that the “girls were really happy” with the cocaine that he had sold her.

[50] This second meeting between Steph and Brown took place on April 26, 2017. It was a lengthy meeting, lasting two hours and 21 minutes. They met at the Life Time Fitness gym in Mississauga where Steph was completing a work-out with her girlfriend “Keira” (another undercover officer). The roles played by Steph and Keira were as trainers and business partners. They would train the escorts who worked for them, as well as training their “high end” clients. There was a certain amount of “name dropping” about these supposed clients, such as the musician Drake and some of the Blue Jays baseball players. They talked in the juice bar at the gym for 30 minutes. Steph, Keira, and Brown then drove to the Vegebitz restaurant where they ate a meal and talked. There was extensive discussion about their shared interest in food and diet. Brown participated actively, showing considerable knowledge about these topics. Steph told Brown about her plan to develop a gym, restaurant, jazz bar, and prostitution/escort complex with multiple floors (essentially the same idea that Robbie had previously introduced). It was to be known as the “Syn Gym”. Steph sought Brown’s input concerning the proposed restaurant at the gym. She told him, “we’re looking to build a team” and “there could be a future”. Brown replied, “hopefully me being around you women … that things in my life could change”. Steph also pretended to take a phone call from a difficult client, in Brown’s presence, during the lunch meeting. The client was said to be young, wealthy and spoiled. Steph treated him with firmness on the telephone, making clear the substantial sum of money he would have to pay. She was intending to communicate to Brown both her authority and the financial stature of her clientele. Steph also spoke to Brown about her apparently extensive travels. Once again, Brown showed some confidence during this conversation as he expressed pride in certain of his abilities, stating that “when I am passionate about something … I let it be known and everybody knows around me … so I know I have that gift or power”. They agreed to meet again to complete a further sale of cocaine. Steph paid for the meal.

[51] The third meeting between Steph and Brown was the next day, April 27, 2017. They met in the juice bar at the Life Time Fitness gym and then walked to Steph’s car in the parking lot. The entire meeting lasted 24 minutes. Steph was with her partner Keira throughout. One of Steph’s “girls”, another undercover officer named “Sarah”, was also present. There was a lot of discussion about food and exercise. Another aspect of this meeting was that Sarah was causing difficulties, showing belligerence and disrespect, and she was reprimanded by Steph and Keira in Brown’s presence. Keira told Sarah to “snap out of it” or she would “knock out one of those teeth out of your pretty face”. The purpose of this scene was, once again, to show Steph’s authority and her insistence on being respected, in return for paying and treating her “girls” well. In the car, Brown gave a gram of cocaine to Steph and she paid him $100, as they had previously agreed. Brown’s response to the threat and reprimand to Sarah, in his presence, was to say “I see nothing and I hear nothing”.

[52] After the two early meetings between Steph and Brown on April 11 and 27, 2017, where Steph purchased small amounts of cocaine from Brown, this drug trafficking aspect to the relationship came to an end. There were no further purchases of drugs from Brown by any undercover officers. The lead handler, P.W., testified that Brown appeared to be interested in diet, healthy lifestyle, and prostitution and so these activities became the main focus of the ongoing undercover operation. Steph was clearly presented as a “Madam”, in charge of a “high end” prostitution operation, but she was also a trainer, a vegan, and a business woman developing a gym complex that would include a focus on healthy food and lifestyle. Furthermore, Steph’s business partner Keira was a trainer and was not a prostitute. P.W. was of the view that acting as a “Madam” was only part of Steph’s persona. However, he agreed that this criminal prostitution aspect of Steph’s relationship with Brown remained a constant component of Steph’s relationship with Brown throughout the undercover operation. When pressed in cross-examination, P.W. defended the decision made by the police undercover team to include a criminal element in the relationship and not focus solely on Brown’s lawful interests in food, diet, and health. P.W. testified that the eventual object of the undercover operation was to obtain a confession to serious crimes. To achieve this objective, the undercover officers needed to lead the target to believe that they would listen in a non-judgmental way to such a confession. In P.W.’s experience, you can only build this kind of trust if the target believes that you too are also involved in criminal activity.

[53] There had been some discussion between Steph and Brown about getting together for a work-out. On May 2, 2017 she texted him and they agreed to meet for this purpose. As a result, the fourth meeting between Brown and Steph took place on May 4, 2017 at the Life Time Fitness gym. It lasted two hours and 11 minutes. Brown drove to the gym from Barrie and was “running late”, stopping to buy some work-out clothes on the way. The two of them worked out together at the gym. Brown had to excuse himself in the middle of the work-out. He went to the bathroom and vomited, stating that he ate too soon before the work-out. They went to the juice bar at the gym and talked. Brown discussed his successful drug trafficking business in Barrie, saying that he made “$2000 every day”. He confidently described his style and his persona in this business, stating “people love me, they just love me … Like I listen to everybody. Like I show everybody respect”. He referred with apparent pride to all his missed calls and texts from customers.

[54] They exchanged texts over the next ten days. Brown said how great he felt about their work-out. Steph tried to schedule another work-out but Brown had to cancel it due to his commitment to a family event with his mother. On May 15, 2017 they again exchanged texts. Steph said that she had just returned from Las Vegas. Brown said that he was “good, on the grind, trying to save”. He said that he had been working long hours, making money on a “shift up north”. She commended his work ethic and said “the future is promising” and “you will succeed”. He could not meet to work-out, stating “I gotta make some money, I’m hurting”. On May 16, 2017, Steph texted Brown and he called back. She asked him to accompany her on a business trip to Niagara Falls to meet a client from Buffalo for a “drop off”. The man who would normally accompany her was said to be unavailable. The purpose of this plan was to show Brown that Steph and Robbie could “solve problems” and to see if Brown was willing to become a business partner. They agreed to meet the next day, after Brown had attended a court appearance in Midland.

[55] On May 18th, 2017, Brown met Steph at the Life Time Fitness gym and they drove to Niagara Falls and back. This lengthy fifth meeting between them lasted four hours and 20 minutes. On the drive down to Niagara Falls, Brown mentioned that he had been “busy”, that he had missed a drug deal by coming on the trip with Steph, but that one of his “boys” would look after the deal for him. He said, “I’m hustling, like I’m making money, that’s all I try to do”. He explained that he had almost been caught by the police in Barrie while carrying over half an ounce of cocaine in his boxer shorts. He discussed his future and said “I don’t wanna be selling drugs for the rest of my life … I’m not happy with what I’m doing now … I just need to stack some money up … like 20 grand … having no money thinking about it makes it even worse”. He said he had not been on vacation in 11 years. He also spoke about getting away from “all the shootings” and violence in Toronto “where I could carry a gun … down there, it’s like a gun thing”. He spoke about a friend being shot recently in Brampton and about “people dying that I know”. He concluded, “Toronto is not good for me”. Steph explained the job in Niagara Falls, involving dropping off some phones and iPads to an associate named “Jay” who would wipe them clean and then provide Steph’s organization with phones that could not be traced. They met with Jay, another undercover officer, in a parking lot in Niagara Falls. Steph asked Brown to stand “six” and keep a look-out, implying that there was something illegal about this exchange of digital devices. She gave Jay a bag from the trunk of her car, containing the devices, and Jay counted out $3000 from a much larger $10,000 amount of cash that he produced. The purpose of producing this money in Brown’s presence was to impress him with a “high level” business deal involving substantial amounts of money. Brown’s response to seeing this transaction was to say, “hear no evil, see no evil”.

[56] On the drive home, they stopped at a restaurant in St. Catharines to have dinner. Brown spoke about the money he made from prostitution and drug trafficking activities in Alberta and Ontario. He said that he had one girl in the escort business in Alberta and made “a lot of money” but when he brought her back to Ontario the escorting work with her did not succeed. In Ontario, he would buy two ounces of cocaine and sell it in gram amounts, making $2000 a week. He said, “I was making money in Alberta. Down here I have to sell those drugs. I gotta do this, this makes me my money”. They also talked about relationships and how men and women are “a little bit different”. Brown participated actively in this particular discussion, sharing his experiences and his views about how “relationships are rough, I hate relationships”. Steph paid for their meal and she paid Brown $200 for accompanying her on the trip.

[57] Over the next eight days, Steph and Brown exchanged text messages. They agreed to meet on May 26, 2017 at the gym in Mississauga, after Brown completed a trip to Guelph to see a client. This sixth meeting between Steph and Brown lasted 52 minutes. They met in the juice bar area of Life Time Fitness. No one else was present as they sat and talked. It was an important conversation for a number of reasons. First, Steph offered Brown a position in her business because her “right side” man Marcus was “moving up” to work with Robbie. Brown was pleased to accept this offer, stating “I don’t know where it can take me to but … I’m happy about it you know” and “this is a great opportunity, I’m optimistic about it, it’s something that could open up doors”. When she said, “it’s a good way to move in a different direction”, he replied “safer from what I’m doing”. Second, both Brown and Steph made it clear that this new position in her business was not intended to replace or interfere with Brown’s existing line of work in the drug trafficking business. In particular, Brown referred to the regular customer he had in Guelph who paid him $600 every week. Steph said, “I know you have a job that you do apart from this” and Brown replied, “just have to find a way that works around … both of our lifestyles … I’m busy some days of the week … just have to work a way around it now … what I’m doing is important too but whatever I can do to help out in your life, I’ll definitely do that”. Third, Brown once again expressed some confidence in his own abilities stating, “problem solving should be something easy for me. I’m like around lots of hostility all the time so I know to calm situations down … I could solve problems”. In this regard, he added, “of course I’m good with the ladies” and “I know I’m a somebody, I’m God’s creation”. Fourth, Steph told Brown explicitly that she was in a relationship with Keira. She said this to Brown so that there would be no expectations of any romantic interest between the two of them. Finally, Brown told Steph at some length about difficulties in his relationship with his girlfriend. He said that he was only staying with her because of their daughter. He also said that he had “cut off” all his past associations, that there were now only “two people that I chill with”, that “I don’t trust nobody … some guy I know died yesterday”, and so “right now … I’m just small circle”.

[58] Over the next five days, Steph and Brown exchanged texts and phone calls. She offered to come with Keira to Brown’s next court appearance in Midland, in order to offer support, but he asked them not to come. Instead, they agreed to meet for lunch in Barrie after his court appearance.

[59] This seventh meeting between Brown and Steph took place on June 1, 2017 at the Boon Burger restaurant in Barrie. It lasted about two hours. Brown apologized for keeping them waiting, saying that he was “super busy” working in Barrie after his court appearance. He showed Steph $3000 in cash that he had made from drug sales, also showing her all the calls that he had received and all the contacts in his cell phone. He stated, “I had a lot of people like waiting for me still … as I’m dealing with them I have more people calling me … The phone is crazy right now … this is only three [$3000] because I don’t have no more [cocaine]”. Brown stated, “I just want to take a little break … I don’t know what life’s all about. I’m so stuck in like driving mode … Sometime it’s stressful but sometime it’s like you need to have that go again … if you don’t and you get comfortable and get lazy then you’re done … Better to have money than to be broke, I’ll tell you that”.

[60] Steph went on to speak about the new “high end” “gentlemen’s club” they were planning. It was to be located on a piece of property near the Buttonville Airport and members would pay up to $200,000 in membership fees if they wanted “unlimited food” and “unlimited girls”. She stated that “we have six investors so far”. Keira said that she had just brought “some girls” back from a trip to Mexico and Steph said that she was leaving soon for Russia where “we have four girls lined up to bring back”. Steph explained that Brown’s new role in her business would be arranging “pick up and drop off” of the escorts and accompanying Steph on certain trips. Keira and Steph explained that their business style is not to be “obnoxious and … try to put you in your place” but “to make everybody happy”. Brown agreed with this approach, stating “I’m a big business person … making everybody happy … everybody loves me … if someone sees you treat them with that respect and give them that power … you could be more effective just for having manner … using a different tone, no matter what lifestyle you’re living is always more effective”.

[61] Over the next five days, Brown and Steph exchanged texts and phone calls. They were trying to arrange a trip to Collingwood in order to see a spa and to meet a client/investor, as they had discussed at their previous meeting in Barrie. Brown said that he was busy “grinding it out” and that he needed time with his daughter. They eventually agreed to meet on June 6, 2017 at Life Time Fitness. After meeting at the gym, Steph drove with Brown to Blue Mountain where they toured the spa and then met with a representative of the client/investor at a restaurant, before driving back to Toronto. This entire trip lasted five hours and 50 minutes. It was the eighth meeting between Steph and Brown.

[62] The topics discussed on the drive up to Collingwood included Brown’s efforts to rent an apartment, as he was living at his girlfriend’s mother’s home in Hamilton. Once again, he also referred to his busy drug trafficking business stating, “the job that I have is all day every day … I’m making money, I’m hustling … when I’m not doing that … I go home, chill with my friend for a little bit and I’m back out here, I don’t have no life, I don’t party”. Steph replied, “I respect you that way, you’re definitely a hard worker”. Brown stated, “Nobody gonna do it for me … Trying to make a next power move … I’m trying to get like a nine pack, nine ounces”. Brown stated that he wanted to “give my Mom two grand right now” and that his car had broken down and may need an “expensive” repair. He explained that “I have money right now to buy a nine pack … I’m a pretty good business man … I’m on a level where I don’t take no consignments”. His goal was to save $10,000 and he already had $9,000 saved. He stated, “I just wanna know that money is put away somewhere” so that “whenever something happen … any creative idea comes in my head, I have money there”. Steph told Brown about his role in her business while she travelled to Russia. He would have to schedule and arrange the escorts’ appointments. Brown expressed confidence in his ability to take on this role but explained that he would need to get a new phone chip.

[63] After touring the Scandinave Spa in Collingwood for about 15 minutes, getting ideas for the spa that Steph was planning for her new Syn Gym complex, she and Brown went to the Copper Blues restaurant to meet “Gavin” (another undercover officer). His role was to be the agent or representative of a wealthy investor and client named “Sean”. The three of them had dinner and talked. Gavin was a tall slim East Indian with short hair, dressed in business attire. Steph introduced Brown as “my sidekick”, explaining that “Marcus is no longer working for me”. They made arrangements for “two girls” to be brought to Collingwood for “two nights” with Sean, who was described as a wealthy businessman returning from a trip to Dubai. It was made clear by Steph that this arrangement was for “intercourse” but “there’s no bondage … no choking, no nothing … assaultive”. Gavin readily agreed to these terms. It was implicit that Brown would play some role in carrying out this arrangement. Brown did not participate in this part of the discussion. He simply listened.

[64] There was a lengthy and significant conversation between Steph and Brown on the drive back from Collingwood to Toronto. He spoke at length about the difficulties in his relationship with his girlfriend. He felt that she had not been supportive when he had been in jail awaiting trial on an earlier homicide charge (which was eventually dismissed or withdrawn). He went on to say that “you can forgive but you can’t forget”. He described these feelings about his girlfriend as “my own little issue in life … my battle in my head”. He then spoke about forgiveness more generally stating, “when I do something bad … the only thing that can make me get out of it is if I forgive myself and just not look back at what I did … So it’s something that you always have to live with, but you can learn from and hopefully you do not make the same mistake again”. Brown dominated this part of the conversation, engaging in a considerable amount of reflection and self-analysis. The topic of forgiveness, which he raised, was to come up again in Brown’s eventual confession to the Danforth shooting. Steph noted that Brown was being particularly “truthful” and “honest” and “upfront” with her and he replied, “I’ve never been like that with nobody … when I do it with you I’m seeing that it’s working out good”.

[65] It is apparent from the above summarized conversation, that a strong rapport had developed by this point between Steph and Brown. He went on to show her photographs on his cell phone, of his cousin, his uncle, and his girlfriend’s brother, while Steph was driving them back to Toronto. He also showed her photographs of him firing guns at a shooting range, stating that “I love guns” and that “it’s a skill”. He referred to the bad neighbourhoods that he grew up in and some of the violence during his youth, including one incident when he was 16 in which he pulled out a knife and stabbed a man in the neck, as well as another incident where “I had to defend myself”. This led into a discussion as to whether Brown would be willing to resort to violence as part of his new position in Steph’s business. He said, “I’ll break some legs, I’ll break a couple legs, I’ll break a couple bones”. He also said that, “I know people that take care of that shit … People that do take hits, people that do all types of shit … people paying for hits”. Brown made it clear that he was not one of these people stating, “the only time I do these types of things is like you’re harming my fam or you’re harming someone else. And those things I don’t pay for, that’s family stuff … I have an obligation because that’s my family and I love them … People are getting shot … in the neighbourhoods that we live in, it’s like we’re dealing with … tribal wars… It’s the neighbourhoods are our tribes … and that’s where our love is … certain warfare requires guns”. This theme about “guns” and “tribal wars” between “neighbourhoods” was to come up again in Brown’s eventual confession to the Danforth shooting.

[66] The next meeting between Brown and Steph was three days later, on June 9, 2017. This was their ninth meeting and it took place at the Life Time Fitness gym. Brown said that he was too busy for a work-out but he agreed to meet because Steph had something she wanted to discuss in person. They met in the juice bar area of the gym. The meeting lasted 42 minutes. Steph was leaving for Russia and she wanted to explain certain arrangements she had made to assist Brown in looking after her responsibilities with the escorts while she was away. He appeared to be comfortable with this role. In particular, Steph offered Brown the use of “fraudulent” credit cards that would be provided for his expenses, up to a maximum of $400. She explained that “my girls, basically they all have them [the fraudulent credit cards] and they use them pretty regularly”. When asked if he wanted such a card, Brown replied “of course … for sure”. He said that he had “basically chilled … with my girl” for the last three to four days, since their previous trip to Collingwood, so “that stuff is cleared out, I’m basically free … so this will work perfect … I wanna go and make some money now”. Brown told Steph that his girlfriend, his daughter, and his puppy were outside in his car waiting for him. He wanted Steph to meet them so she came outside with Brown to his parked car and she was introduced as someone who Brown “worked for”, and as “part of the team”.

[67] After this ninth meeting between Steph and Brown on June 9, 2017, there was a significant development. As noted previously, Brown had been out on bail on two sets of outstanding charges (possession of a prohibited weapon and possession of an ounce of crack cocaine for the purpose of trafficking) since December 2016 and January 2017. On June 12, 2017, that is, three days after the above summarized meeting, Brown failed to appear in Barrie on the weapons charge and a warrant was issued for his arrest. Two days later, on June 14, 2017, he was stopped by the police in his car in Barrie while using a cell phone. The outstanding arrest warrant was discovered, it was executed, and he was taken to the police station. He was searched at the police station and an amount of cocaine (just over two ounces) was found on his person. He was charged with possession for the purpose of trafficking. One day later, on June 15, 2017, Brown’s two previous bails were revoked and he was released on a new global bail Order that applied to all four sets of charges. Its terms were much more restrictive than his previous bails, now requiring him to reside at the Hamilton residence of his girlfriend’s mother on “house arrest”, except “while at work” or in the presence of one of his two sureties (his girlfriend Navasha Richards and her mother).

[68] This new bail Order was to have an impact on Brown and on the police undercover operation, as will be explained in the next section of these Reasons.

(v) Brown’s final fourteen meetings with the undercover officers between July 22 and October 24, 2017

[69] Brown met with various members of the undercover team 14 times between July 22 and October 24, 2017. He was on “house arrest” bail throughout this period. Eight of these meetings included substantive interactions with Steph. Five of the meetings were relatively brief encounters with other individual members of the undercover team. There was one lengthier meeting with R.J., Sarah, and Amy. At the last meeting, on October 24, 2017, Brown confessed to the Brampton and Toronto homicides during a series of conversations with Steph.

[70] Steph had last met with Brown on June 9, 2017. More than a month went by before their next meeting on July 22, 2017. During the intervening six weeks, they exchanged a number of texts and phone calls. Brown advised her of his most recent charges and his new “house arrest” terms of bail. Steph advised him that she was back from Russia and asked if he needed anything. He replied that he had a good lawyer and that his family was supportive. He apologized for not being able to help her in the business. He explained that he was laying low, trying to be “smarter and better”, and not trafficking drugs. They eventually arranged to meet at his girlfriend’s mother’s home in Hamilton on July 22, 2017. Both Keira and Steph attended this meeting. They sat with Brown on a park bench outside the townhouse complex where he was living.

[71] This first meeting between Steph and Brown, while he was on “house arrest”, lasted one hour and 45 minutes. Steph gave Brown the Mercedes key fob from Robbie, as Brown had inquired about it in one of his earlier texts. She also gave him a gift of two jumpers for his daughter’s first birthday. The gift cost $57. There was a lengthy conversation that covered a number of topics. Brown discussed his outstanding charges and appeared to acknowledge that he had no realistic defence to the most recent charges, although he was looking for some way to avoid conviction and/or a jail sentence. He stated, “the last one … I can’t really get out of … how do I get out of this legally”. I will review the evidence from Brown’s lawyer later in these Reasons. The lawyer’s testimony on the Motion was to the effect that he advised Brown that there was no defence to the latest charges. The lawyer was trying to get instructions to negotiate a guilty plea and sentence but Brown was resisting these efforts. Steph advised Brown at this July 22, 2017 meeting that her organization could have helped him at an earlier stage. She stated, “the big thing with us … when something’s a problem, to make them disappear before the charges come in … once that happens … the cops are involved … the charges are laid and the courts are involved, the judges are involved … it’s out of our hands”. This topic of offering to help Brown with a criminal matter at the early pre-charge stage was to emerge again, just prior to his eventual confessions.

[72] The above discussion about his recent charges led Brown into a new but somewhat related topic. He stated that he had been spending a lot of time online and that “as soon as I start touching this computer again… I just started learning … just trying to find a way … give me the less time or house arrest. I have a child”. He explained, “I’ve been studying” Moorish American history and beliefs and that “as a Moor, that’s someone that’s indigenous to this land, they have territorial rights. And one of them is to travel … freely … I was travelling when this guy [the police officer] probably pulled me over … I have the right to travel … I’m Moorish by blood”. Brown wanted to raise this “territorial rights” issue as a possible defence to his charges but he said that his lawyer was unwilling to assist him in this regard. When Brown’s lawyer testified on the Motion, he confirmed his unwillingness to raise such a defence. This was the first time Brown had raised this “Moorish” topic in his meetings with Steph. He was to revisit it in their subsequent meetings.

[73] Steph tried to reassure Brown that his legal problems were minor compared to “some of the shit that we’ve dealt with”. She wanted to communicate to Brown that her organization could solve much more serious problems, stating “I’m not proud of some of the shit my boys have done”. She explained that her job was to “keep that shit becoming a problem moving forward … you’re family with us”. She gave an example of this problem solving ability, stating “one of the girls from Russia … gets pregnant” and was told on threat of death to get a abortion and was then sent back to Russia. Steph implied that this “girl” would have been murdered “back in the day” but that “situations today and problems are a bit different than how we used to deal with them in the past”. She gave a second example, involving the Nissan Altima car parts that Robbie had bought from Brown in Barrie in February 2017. Steph explained that Marcus was connected to a certain car and “something went really bad … one of the things we needed to do is like get some parts for my car and switch it up … different total identification … to make it look like this didn’t fucking happen … cleaning up a murder”. Steph told Brown, “the only reason I’m telling you all this stuff is just I don’t want you to be so hard on yourself … as long as you learned from it … just chill and lay low for a little bit … we’re just a lot smarter at how we deal with problems today … let’s make sure that it’s taken care of before heat gets on it … then we’ll roll it back … if heat were going to come then we could cover … that’s the main thing with getting in shit in general. It’s knowing and it’s being truthful with one another. If you fucking tell me what happened right now, I’ll take care of it. But when I don’t know … You’re done. We can’t do nothing … gets past a certain point it’s out of our hands”. This topic of being able to “take care of it,” if and when there was “heat”, provided that Brown was “truthful”, was to become central in Brown’s eventual confessions to Steph.

[74] Towards the end of this July 22, 2017 meeting, Steph asked Brown how he was doing “in terms of like work and money”? Brown replied, “I still have some like stuff left”. He explained that there were still a couple of clients he could sell to, even while on his “house arrest” terms of bail. He advised that “I have like four grand worth … Slowly that money will be used until it’s done”. Steph said that she was thinking about ways he could make money. Brown replied, “that would be cool … But there’s nothing. What could we do? I don’t like the legal jobs right?” She asked if he still had a gun, stating “We have ways of renting [a gun]”. He replied that he did not have a gun. He said that he was getting “seven hundred dollars at the end of the month … I do my little thing here. I have my little bit of something just to maintain … I’m trying to find that master plan now because I ain’t going back to selling that shit. Even though I know how the money is … I’m just gonna do something different … I have to do something different”. Steph said that she had “a couple like great business ideas” where Brown could make “a percentage on something … from home … nobody’s gonna leave you”. Brown replied, “This is love right here … I never really experienced stuff like this so I know it’s a team … I know this is love … the future’s good”. Steph replied, “we’ll take care of you”.

[75] One final topic in this lengthy conversation was Brown’s girlfriend. He stated that he was “arguing like crazy” with her. He also mentioned that there were “bed bugs” in her mother’s home. He was very forceful and animated when discussing his differences with his girlfriend. He stated, “I’m like the hard truth … if you’re gonna be with me you have to change or we’re not gonna be together … I’m not caught up in this stupid lifestyle [of his girlfriend] … wake up to life … I’m a fighter”.

[76] Another three weeks went by before Steph went to Hamilton again to meet with Brown at the same park bench area outside the townhouse where he was living on “house arrest”. This second meeting since Brown’s most recent charges and more restrictive bail Order was on August 11, 2017. It lasted 59 minutes. Steph told Brown about difficulties she had with one of her “girls” who had apparently sent a nude photo to her boyfriend. The photo was of herself with another man. She was fighting with this boyfriend named “Shaun” and was trying to provoke him. Steph had “fired” her and then sent D.J. (“one of our … take care guys … big black guy”) to “threaten” Shaun (who was said to live in Brampton) in order to get him to hand over the phone with the nude photo. Steph elaborated that D.J. had “kinda roughed him [Shaun] up a bit” and may have “left a few marks”. She also implied that D.J. may have pulled a gun. The reason for telling Brown this story about using violence to solve a problem in the organization (somewhat inconsistently with the message communicated at the previous July 22, 2017 meeting) was to see if Brown still had current contacts in Brampton. The Peel homicide officers were seeking this information in furtherance of their investigation of the Brampton homicide. Steph asked Brown to contact his friends/associates in Brampton to see if “you hear anything about anybody roughing up” Shaun. She explained her concern because Shaun seemed to have implied to D.J. that there would be retaliation. She asked Brown if “you got good connects there [in Brampton] … like I know you broke away from a lot of people that you … used to hang out with”. Brown replied, “I’ll definitely look into that for sure … I know a lot of people”.

[77] Brown also discussed his recent interest in Moorish history and beliefs during this August 11, 2017 meeting. He stated that he had been “going to the Moorish Temple”. He was now wearing all white Muslim clothing. He described “selling dope” as “going off harmony … not meant for me … I have to do something different”. He had gone to court with his lawyer and “had declared my nationality … I’m a Moorish American National Citizen … I’m a Muslim”. The judge had noted this on the record. Brown was in the process of getting “my nationality card … then it’s like I could use my constitutional rights”. He went on to discuss various defences he hoped to raise in relation to his outstanding charges. In particular, he planned to say that “No one’s selling drugs … I do the drugs with people, with girls, I just do the drugs … I started doing drugs as a kid and it just got worse and worse. So hopefully I’m gonna get out of that one”. Brown’s lawyer confirmed, in his testimony on the Motion, that Brown stated his new Moorish American or Muslim identity on the record in Court at an appearance in Midland on August 2, 2017. He was wearing all white clothing and his new Muslim name was noted on the Information charging him with possession of crack cocaine for the purpose of trafficking.

[78] The lead handler, P.W., testified that there was a discussion amongst the undercover officers about Brown’s recent interest in this Moorish identity. P.W. did not initially understand it but when he looked into it he discovered that it is a real movement. It was apparent to P.W. that Brown genuinely believed in the Moorish ideology that he was following. The officers felt that Brown was not fixated on this issue, there was no change in his personality, and he remained respectful and intelligent. As a result, they were not concerned. Indeed, they regarded it as an indication that Brown had become close to them because he was being open about personal matters.

[79] Steph made arrangements for a further meeting, stating that “Robbie wanted to come down and talk to you … We have some things going on … Robbie and I have some good ideas, we could really use you … we’ll take care of you … we trust you so much … we think the world of you”. Brown replied, “Hopefully the fucking judge looks at me like that too and says ‘Okay I’m not going to give you no time but house arrest’”. Steph reassured Brown stating, “we want to involve you still … You’re not really … making much [money]”. Brown repeated, “Hopefully I don’t get no time [in jail]”. He referred to various upcoming court appearances. Steph stated, “there’s better for you, given the situation you’re in right now, we’re gonna work around it … once that’s taken care of let’s just try to keep things clear for you”. Brown replied, “I’m done with selling drugs … not saying it’s not me, I’m very good at it but … you’re going off harmony with who you are … that’s not meant for me … I have to do something different”. Steph concluded this conversation stating, “we have a lot to teach you, there’s lots that you can do … in terms of opportunities which you can do … afterwards … you got to keep yourself clear from … whatever happens after this, just keep yourself clear … we need to work that way”.

[80] The third meeting with Brown, after his most recent charges and new bail Order, took place on August 16, 2017 at the same Hamilton location. It lasted 57 minutes. Both Robbie and Steph attended, as arranged in the above summarized conversation. There had been some concern amongst the undercover handlers that the previous August 11, 2017 meeting had left the impression that Steph and Robbie’s organization resorted to violence in order to resolve problems. The plan was to have Robbie (acting as an authority figure or “boss”) correct this impression. The lead handler, P.W., testified that they wanted to leave Brown with the impression that they did not condone violence but they would still help with it.

[81] Brown began the discussion at the August 16, 2017 meeting by pointing out that his “house arrest” bail Order had an exemption “if I’m working”. He reiterated that “I’m not selling no more drugs … obviously the money’s good … but … it’s not in harmony with who I am and my universe”. Steph then asked Brown, “have you heard anything from Brampton”, referring to their previous meeting and the story about D.J. using violence against Shaun. Brown replied that he had not heard anything about this incident from his sources. At this point, Robbie intervened in the discussion and stated, “in that situation … I said go on deal with them but … [it was] not the way that I do it … those days are done … those days are done and sometimes you have to move on from stuff like that, there’s different ways to deal with things … can’t be so reckless like before … you have to talk to them … anything that is done again it can be fixed … need to talk to those guys”. Brown appeared to agree with this approach.

[82] Robbie then raised a second topic of discussion at this August 16, 2017 meeting by asking Brown, “if I get a boy who drop off some files, could you hold onto these files for a little bit?” Brown replied, “for sure”. There was said to be some kind of sensitive information on the “files”, Robbie and Steph were going to be away for about two weeks on a trip to St. Martin, and they needed someone to “hold” this sensitive information. Robbie testified that the investigative objective behind introducing this potential criminal activity was to see if Brown was comfortable with it. Robbie explained to Brown at the meeting that “you’ll be taken care of, don’t worry about this … we’ll take care of you”. Steph added, “you’re working”. Brown asked if they could provide him with a phone, offering to “put [his own] money towards it”. Steph replied, “we’ll get you a phone”. Brown assured them, “I will not use that [phone] for nothing else … just strictly for you guys”. Brown seemed envious of their trip to St. Martin, stating that it had been “eleven years” since he had traveled. Robbie replied, “your time soon come”.

[83] Brown seemed pleased with the above arrangements, stating repeatedly “you guys are making me feel good … you guys have been keeping me close”. Steph replied, “Yeah, because you’re family … don’t just drop somebody”. Brown told them that he was back in court on August 28, 2017, that he was getting “all my medical records” prepared for his lawyer, and that “most likely I will not do no time [in jail] for that”.

[84] Steph exchanged text messages with Brown over the next few days, arranging for “Delroy” (another undercover officer) to drop off the “files” that Brown has agreed to hold. On August 22, 2017, Delroy had a 14 minute meeting with Brown outside his residence in Hamilton. He dropped off a hard drive for a computer, as well as a new cell phone for Brown. Delroy was and is a clean cut black male, 5’11” tall, dressed in “business casual” clothes, and driving a Toyota Camry. The next day, Steph texted Brown to say that there was a “mess”, that something on the “files” had to be erased, and that Delroy would attend again in Hamilton to pick up the hard drive. On August 24, 2017, Delroy again drove to Brown’s residence in Hamilton. They met for five minutes and Brown gave the hard drive back to Delroy. Brown was carrying his daughter when he got into Delroy’s car in order to meet and return the hard drive. Brown was clearly pleased with his daughter. He and Delroy discussed how Brown was “already blessed”. Brown stated, “you’re probably gonna see me with four kids in the next two more years … life is the best thing. It’s priceless”.

[85] On August 27, 2017, Steph phoned Brown and advised that she and Robbie were flying home from St. Martin. They discussed Brown’s court appearance the next day and he said, “you gonna be shocked if I do any time for this”. Steph stated, “best of luck. I’m thinking of you … it’s gonna work out fine … It’s one more thing we are getting past and then we’ll just forward”. Steph also told Brown in this phone call about the reason they had needed to pick up the hard drive. She explained for the first time, that Delroy had an unspecified problem (“got himself in a bit of shit there”) and that the information on the hard drive related to his problem in some unspecified way (“some part of the stuff that was on there had a lot to do with him … We have to remove it all, like completely delete it off of there”). Resolving Delroy’s problem was to become important context for Brown’s eventual confessions to Steph.

[86] The next day, August 28, 2017, Brown and Steph exchanged text messages. He said that he had “great news” as he did not go to jail. The court records show, and it is admitted, that Brown received a suspended sentence and probation on the weapons charge in Barrie on August 28, 2017. He and Steph made arrangements to meet on August 30, 2017.

[87] The fourth time that Steph and Brown met at his “house arrest” residence in Hamilton was on August 30, 2017. The meeting lasted 26 minutes. Brown was extremely angry with his girlfriend because she apparently did not understand that she had to attend court with him (as his surety). The discussion then turned to Delroy’s problem. Steph explained that Delroy “got himself in some shit and rather than telling me and Robbie about it right away, he tried to deal with it on his own … you know, people who feel they cannot let the bosses see something”. Now that they knew about the problem, she and Robbie were “flying out … to Haiti tonight … we have business partners in Haiti … we’re bringing someone back with us to take the hit for [Delroy] … He’s gonna do the time for [Delroy]”. Steph further explained that people in Haiti “live a shit life there … what we do in return is we give their family a better life in Haiti … So we’ll take care of it in that way … [Delroy’s] laying low … we have someone who is very similar to him, size, height, weight, all of that … [Delroy’s] part of our family … I just wish he had been upfront with me from the beginning”. Steph stated that they hope to “remove whatever, any fucking investigation … heat coming forward”. She asked Brown to help out, while she and Robbie were away in Haiti for the next four or five days, by holding a “key to a Mercedes car … [and] a lock box key” that was somehow connected to Delroy’s problem. Steph said that she did not “trust anyone else right now but you”. Brown agreed to help. Steph said, “We’ve done this a few times”. This plan to help Delroy, by having someone from Haiti “take the hit” for him, was to become the template for a similar proposed arrangement when dealing with Brown’s impending “heat”.

[88] The next day, August 31, 2017, Steph and Brown exchanged a text and a phone call, arranging for “Tony” (another undercover officer) to drop off the keys that Brown was to hold for Steph. Shortly afterwards, Tony arrived outside Brown’s residence in Hamilton and gave Brown a Mercedes key fob and two small padlock keys. The meeting lasted two minutes. Tony was and is a 5’8” white male with short hair and a beard, wearing a tee shirt and jeans. Tony told Brown, “she must really trust you brother”. Brown replied, with some apparent confidence, “they pick the right people for the job”.

[89] There was no contact between Brown and Steph for a week. On September 7, 2017 she called him, ostensibly from Haiti. She advised that “everything got sorted out” and she and Robbie would be returning to Toronto. Brown advised that he was now living with his mother in Brampton and was “trying to get back to school”. Steph asked Brown if he could “help me out” again. He replied “for sure” and she said, “I am so thankful for you and I owe you”. Brown replied, “No you don’t … please don’t say that … we’re a class family, we are family”. Steph proceeded to set up two meetings where Brown would assist her. One involved “one of my girls … she owes me money”, and she would bring the money and give it to Brown at his Brampton residence. The second meeting involved “the Mercedes key and a lock box key” that Brown was holding. These keys apparently had to “be moved”. Steph advised that “someone’s gonna come pick up” the keys. Brown stated, “you just give me instructions and I’ll do it”. Steph replied, “I love you man. You are awesome … I trust you”.

[90] Five days later, on September 12, 2017, Steph called Brown. She was ostensibly at the airport on her way back from Haiti. They arranged the first of the above two meetings and “Karen” arrived at Brown’s residence in Brampton and gave him $1000. She had previously met Brown on February 13, 2017, when Brown was with Robbie at Joey’s restaurant in Yorkdale (see para. 41 above). Karen’s meeting with Brown on September 12, 2017 lasted seven minutes. She wore a short dress and high heels. She complained about having to bring the money by car to Brown in Brampton, instead of just giving it directly to Steph. Brown replied that Steph is “the boss and she’s great … she’s family, she’s the best … we love each other … I don’t question the boss”. Brown told Karen’s driver (from Uber) as she was leaving, “You see beautiful women? You got to take care of them … protect her with your life”, in reference to Karen.

[91] In Steph’s September 12, 2017 phone call with Brown, she went on to arrange the second meeting which concerned the Mercedes key and lock box keys that Brown had been holding since August 31, 2017. Steph explained that a “runner” named “Doug … big white dude” with dreadlocks and tattoos who is “not family”, would arrive at Brown’s residence in Brampton the next day. Doug would be carrying a lock box (a small safe) and Brown was to give him the two padlock keys so that Doug could open the safe. Brown was then to verify that there was a passport, $500 U.S. and $500 Canadian, a cell phone, and a “burner” (a gun) in the safe. Finally, after verifying the contents of the safe and locking it, Brown was to use the $1000 that he had received from Karen and pay Doug $500, keep the remaining $500 for himself, and give Doug the keys to the safe. Steph further explained that these items being transported by Doug all related to Delroy’s problem. They were being given to the man from Haiti, who they were bringing from Detroit to Windsor in order to “take the hit”, so that this Haitian man would have a passport, money, a phone, and a gun. She stated, “we’re planting [the gun] … for the guy who’s coming to take the hit”. Steph told Brown, “you’re a part of us, you’re working with us”. She asked if the above tasks were “too much for you?” Brown replied, “No, that’ll get done, not an issue … crystal clear”.

[92] The next day, September 13, 2017, “Doug” arrived in the parking lot at Brown’s residence in Brampton. He is and was a large white unshaven male, 6’4” tall and 320 pounds, wearing “street clothes” and long dreadlocks at the time. Their meeting lasted five minutes. Brown approached Doug’s car, Doug opened the trunk, Brown produced two keys, and Doug opened an outer lock box that was in the trunk. There was $500 U.S., $500 Canadian, a new iPhone in its box, and a Canadian passport, all located in this outer lock box. Brown counted the money and then Doug opened a small inner lock box that contained a silver handgun. There was no ammunition in the gun and it was inoperable. The gun was never removed from its lock box. After verifying the contents of the two lock boxes, Brown paid Doug $500. Doug referred to Brown as “the new Marcus” and asked him, “How do I get to where you’re at dog?” Doug was trying to make Brown feel like he was in charge and that Doug was beneath him. Brown demurred, stating “I gotta follow you man … I’m pawn right now … I’m trying to get where you’re at … she just throws me some fucking dibs. It’s a family, that’s what”. Doug replied, “she speaks very highly of you”.

[93] After the above meeting with Doug, Brown sent a text to Steph confirming that “everything” was in the lock box. The next day, September 14, 2017, they arranged to meet at Brown’s mother’s home in Brampton, outside in the parking lot. Both Steph and Robbie attended this meeting, with Robbie arriving first. It lasted just over an hour. Robbie brought a gift for Brown. It was a pair of Nike running shoes. They cost $288. Robbie thanked Brown effusively and repeatedly for all his work. Brown downplayed the significance of his help. He also showed some degree of self-confidence, stating “I am always talking to people and communicating so I had to have some skills”. He added, “it’s family … You guys were here for me”. Robbie said, “if you need anything you just tell me … I do what I can to try to help you out”. Brown replied, “You guys need me to do whatever … you tell me instructions. I am gonna get it done … I know my place and I know eventually … as things go better … a little bit more work but I understand where am I right now”. This was Robbie’s last contact with Brown. His assessment of Brown’s personality was that he was resourceful and determined but that he was also reserved at times. Robbie saw no indication of any mental health issues.

[94] Once Steph arrived at this September 14, 2017 meeting, she too repeatedly and effusively expressed her gratitude for Brown’s work (“we appreciate you so much … we owe you”). Brown replied calmly, “you guys call me anytime”. He referred to the work that he had done for them as “light stuff”. He replied, “come-on man” in response to Steph’s extravagant praise. After Robbie left the meeting, Steph proceeded to tell Brown that “everything worked out” with the man they had brought from Haiti. She explained that they flew him into the U.S.A. and now “he’s coming to Ottawa” with “his fake ID”, in order to “take the hit” for Delroy. They provided him with a Canadian passport “because we don’t want to link him to Haiti … we want him to have a complete different identity … we do what we have to do to cover our family and friends”. Brown was clearly impressed by Steph’s story about how she and Robbie were resolving Delroy’s problem. Brown stated, “It’s like a book … I’ve never seen stuff like this” and “you guys are master of what you guys are doing, I’ve never seen this before”. Steph attributed their success to Robbie stating, “without him … like he’s got all the contacts”. She repeated their view, that “everybody makes mistakes and we don’t dwell on it”. Brown replied, “obviously you gonna make mistakes but … you guys clean it up … seeing this is like wow … How do you guys come up with that … I’ve never even heard of stuff like that”. Steph provided some details for the first time as to the nature of Delroy’s problem. She stated that one of “my girls … got robbed man, like beat and robbed” and Delroy “meant well to take care of that guy”, implying some kind of homicide. She said that “things may have been able to be dealt with differently, if it was in our hands … We have ways to deal with things, maybe not having to have to deal with what we’re dealing with today … people make mistakes … that’s not by any means … the choice we make”. Steph asked Brown if he “needs anything” and he replied, “You guys blessed me … I want for nothing”. She repeated, “if you need anything … for you or for your family … you just let me know”.

[95] Over three weeks went by before Steph’s next meeting with Brown. They had contact by text message and phone calls in this period between the above September 14, 2017 meeting and their next meeting on October 6, 2017. Some of these text messages and phone calls involved substantive matters. For example, Brown inquired about how the plan with the man from Haiti had worked out. He also advised that he was watching mock trials on YouTube and was planning to represent himself at one of his upcoming criminal proceedings (a development that his lawyer confirmed in testimony on the Motion). Steph also suggested a potential “business opportunity” with Brown involving Vega vitamin supplements, the planned health bar at the Syn Gym, and a partnership between her and Brown. A number of the texts and phone calls involved their failed efforts to meet or contact each other. For example, Steph apologized for being busy with meetings and Brown explained his unavailability as being due to a girl he had just met and having put his phone away so that he could spend time with this girl.

[96] They eventually arranged to meet on October 6, 2017. The meeting was in Steph’s car in the parking lot of Brown’s residence in Brampton. It lasted just over an hour. It was the sixth time that Steph had met with Brown since his arrest on further charges in June 2017. It will be recalled that there had been certain developments in the police undercover operation, during the above three week period between Steph’s September 14 and October 6, 2017 meetings with Brown. In particular, Detective Dunkley had begun “stimulation techniques” (summarized above at paras. 25-26) by holding a further press conference on September 21, 2017 and then interviewing Brown’s friend Marissa Taylor on October 2, 2017. These “stimulation techniques” were to intensify in the next few weeks.

[97] The main topic of discussion at this October 6, 2017 meeting was the above “business opportunity” involving a proposed partnership between Steph, Vega supplements, and Brown. The plan was to develop healthy vegan products including vitamins and supplements that would be provided at the Syn Gym health bar. Steph described the plan to Brown and produced a legal document, titled “Non-disclosure agreement”, for him to sign. It was a four page document setting out various confidentiality obligations relating to the proposed partnership (Exhibit 19). Brown was impressed, stating “That would be amazing. Sounds amazing … I’m gonna sign it”. Once Steph presented the proposal to him, Brown became actively engaged in the discussion and planning, including making suggestions about certain changes that he recommended. In particular, he wanted to develop energy bars from “alkaline based fruits”. Brown was of the view that this would be a superior source of energy after a work-out, as opposed to conventional “protein shakes”. He showed considerable knowledge about the subject of alkaline-based foods, appearing to rely on studying or reading that he had done. None of this enthusiastic business planning between Steph and Brown involved any criminal activity.

[98] There was also some relatively brief discussion at this October 6, 2017 meeting about Brown’s recent interest in attending the Moorish Temple. He said that he had ordered “my national headdress” (a red hat or fez with a tassel), he had changed his name to Ahab Abdul Rafe Beh (“it attaches me to my state and my birthrights”), and he was engaged in “a process of rising and elevating mentally, physically” through being “a strong servant of Allah … getting permission from Allah”.

[99] Finally, the October 6, 2017 meeting concluded with some discussion about Brown’s uncle, who was trying to entice Brown back into the drug trafficking business. Brown was resisting these efforts, stating “it’s fake money … I’m not going to go put my life on the line for something I know doesn’t really have no value … I’m bigger than that now”. Steph encouraged and supported this attitude. Brown stated, “It’s good that I met you … I’m meant to learn about … implementing stuff and doing this … you’re bringing me into a new light … who would ever thought that I would be like researching all this stuff”. Steph replied, “We were meant to be, you know, work together like this … I really appreciate and value our friendship a lot”. Brown stated that, “I’m going back to school” in order to study “alternative sustainable agriculture”. He also reflected on his past “growing up in Metro Housing and my whole family … they’ve been dependent on the system … they’re depending on someone to give them houses, they’re depending on welfare cheques … they’re dependent, they don’t believe that they have the power to do anything … that’s not how it’s supposed to be … put your shoes on and start working towards your goal … I’m really that passionate to even want to save this money to get myself in school, then I’m gonna take it serious … I should’ve been thinking like this for long time ago”.

[100] It was apparent, by the end of the October 6, 2017 meeting, that Brown had formed a strong bond with Steph and that he saw her as part of his path out of a criminal lifestyle. It also appears that his strong interest in food, diet, and health had become the basis for both his business interests and his further studies.

[101] Six days after the above meeting, on October 12, 2017, the police undercover handlers met with the Crown and proceeded to obtain “designations” pursuant to s. 25.1 of the Criminal Code. This was because the final three meetings with Brown would all involve taking him away from his home in Brampton, contrary to his “house arrest” terms of bail.

[102] Brown and Steph exchanged text messages and phone calls between October 14 and 17, 2017 about the Vega bar. She described it as a “great business decision”. They agreed to meet on October 17, 2017. R.J. picked up Brown from his Brampton home and drove him to Hockley Valley Resort, north of Toronto. At the resort, Brown met with Steph and a client named “Amy” (another undercover officer). After the meeting, R.J. drove Brown back to Brampton. This entire series of contacts with the undercover officers lasted four hours and 15 minutes. Steph told Brown that the purpose of the trip was an “important business meeting with one of the top clients” (Amy). Brown had previously met R.J. on February 9, 2017 in Barrie, at the initial meeting with Robbie at Milestones restaurant (see para. 38 above). Brown had not previously met Amy.

[103] There was a lengthy conversation between Brown and R.J. on the drive north to Hockley Valley Resort. They talked mainly about Brown’s interest and beliefs in Moorish American history and religion. He told R.J., a large clean cut black male, that the Moorish people had settled both Europe and the Americas, prior to Christopher Columbus’ voyage to the Americas, and that Brown was an aboriginal “Moorish American”. As such, he was entitled to “travel” on the land and not be subject to tax. He explained his view that Canada is a mere “corporation” and that it is “occupying our land”. He rejected the identity of being “black” and from Africa. R.J. testified that he knew nothing about this topic but he found Brown to be coherent and articulate. He seemed to be informed about this ideology or belief that he was now trying to practice.

[104] R.J. gave Brown $300 at the start of their trip, stating that it was from Steph for the help that Brown had previously provided. Brown explained that he had been selling drugs for “eight nine months” and had been caught with “59 grams like crack”. He had been making “like 15 grand, I was doing nice”, but now “I’m shut down basically so been trying to find a job”. He referred to meeting Steph and the $300 that she had just given him: “it’s a blessing … you just gave me, I had no money”. He added, “Steph will bring us to places I have never been”. He spoke again about the money Steph had just given him and his determination for the future: “this little 300 [dollars], like I had no money … that’s how I started selling drugs … I should have stayed … more stronger … I feel like I can’t get money … somehow if I kept strong enough I would have never had all these charges right now … I would have gotten through … so I’m at that point again, so I realize … this is my choice, what am I gonna do now … to take back control … I ain’t gonna do no foolishness … if I have to sit down with no money for two, three, four days … I am not gonna do what I know I’m not gonna do”.

[105] Upon their arrival at Hockley Valley Resort, Steph introduced R.J. and Brown to Amy. They sat at a table in the restaurant and Amy left to make a phone call. An important conversation then took place between Steph, R.J., and Brown. This was Steph’s seventh and last meeting with Brown, since his new charges and bail Order but before his October 24th confessions to her. She told the two men that she was “promoting” them to new “positions” in her business. R.J. was to become a driver, replacing Delroy. She explained that they had to “keep him [Delroy] on the back … out of the way” for a little while because of his problem. Brown’s new role was to take on Steph’s position as coordinator of “the girls”, in relation to “three of my top clients”, while Steph concentrated more on the Syn Gym project. She referred to R.J.’s “promotion” variously as “a perfect job for you” and “this position” and “you’ll be taken care of now”. When referring to Brown’s new “position”, she stated “everybody’s got a role” and “you’re the only man I want for this job” and “you’re gonna be taken care of” and there was no one “I can respect more to take care of that job for me”. The two men were very appreciative of their “promotions”. During cross-examination, Steph strongly resisted the suggestion that she was offering Brown a job, insisting that it was more of a “business partnership”. Although there was no explicit discussion about pay, income, or remuneration, the clear inference to be drawn from this October 17, 2017 meeting at Hockley Valley Resort was that Brown was to be provided with a certain amount of work (“this job”) in return for payment of some kind (“you’re gonna be taken care of”).

[106] While Steph, R.J., and Brown were still seated at the table, and before Amy’s return, Steph told them about Amy. She was described as “one of my biggest investors in the gym” as she was “about to give over” $500,000. She was also a client as “she likes women”, especially the escort Sarah, and “she’s got a crazy sex fetish”. Brown seemed comfortable during this discussion stating, “We’re glad if she’s into stuff like that … That’s her world … When in Rome do what the Romans do”. They all laughed.

[107] When Amy returned to the table, R.J. got up and went to the bar. Steph introduced Brown as her “vegan partner”. Amy is and was a small woman, 5’3” tall and 130 pounds, dressed in “business attire”. The three of them ordered dinner. Steph advised Amy that “Romeo”, as she called Brown, would be taking over her role, organizing appointments between “her girls” and the client. As a result, Steph advised that Amy would be “doing mainly your dealing with him [Brown]”. Amy was having business meetings at Hockley Valley and she would be seeing Sarah that evening (with Amy apparently in a dominatrix role). Brown again seemed comfortable with this discussion stating, “I love dominant women … I love when women are [in] control … women are the creators. We’re just here to protect the women, that’s my role”. They went on to discuss the Syn Gym project and Amy confirmed her intent to invest.

[108] At one point during dinner, Steph left the table to go to the washroom, leaving Brown and Amy alone. Brown proceeded to tell Amy about his recent interests which involved “a lot of studying … reading about the Moors … there’s like a website called RV Bay Publications. It’s like a university online”. Amy replied, “knowledge is good. Knowledge is never a bad thing”. They talked about Steph, and Brown said “I love her honestly … genuinely love her … Just play my role … I don’t see nothing, I don’t hear nothing … I have little goals right now … dealing with the land, dealing with food mainly … the alkalinity in food”.

[109] When Steph returned to the table, Amy excused herself and left. She paid for their meal. R.J. returned to the table. Steph gave Brown the phone numbers for both Sarah and Amy, so that he could contact them about their next appointment. Steph gave Brown $500 to pay Sarah for the next appointment with Amy. At this point, R.J. and Brown left and drove back to Brampton.

[110] On the drive back, Brown and R.J. discussed their new promotions. Both men were excited. R.J. described it as an “opportunity”. Brown said, “you show me love … we’re family”. Brown again expressed some confidence in his own abilities, stating that Steph “has a good eye for certain things … the way I talk, nobody around me talks like this … I even use that skill to my advantage. So she’s capitalized on the skill … this is something that I noticed about myself too”. He said that he had been “kind of skeptical” at first about this new group of associates but he now thought that “everybody is just a regular human being”. Brown again reflected on the changes from his past, stating that he “used to like the streets … doing dumb shit and getting caught for dumb shit … Like people robbing the bank … when they live right next to it”. In terms of the present, he described not being “used to that level of people, thinking and putting things in order the way it should be … It’s mind blowing what I’m seeing … I just love how she [Steph] bases everything off of love … having love for everybody that you deal with … very gentle, I love that … I’m so honoured for real … that could take care of the rest of my problems”. They both talked about the unconditional nature of their relationship with Steph. In particular, R.J. stated “she don’t force nothing on nobody”. Brown replied, “No pressure. No pressure”. R.J. said, “like you don’t have to do it”. Brown replied, “No pressure and she still loves you … I’m not even used to stuff like that … not used to this type of love”. R.J. stated, “Yeah, unconditional”.

[111] The next day, October 18, 2017, Steph and Brown exchanged text messages about picking up Sarah for her next appointment with Amy at Hockley Valley Resort. Once again, R.J. would do the driving. Steph explained that Sarah was being difficult and that Brown would have to “set her in her place”. The next day, October 19, 2017, Sarah and Brown spoke on the phone and exchanged texts. Sarah agreed to the proposed appointment but only if Brown spoke to Amy and established the “ground rules”, as Sarah said that she was not willing to “get hurt”. R.J. picked up Sarah and then picked up Brown. The three of them drove north to the Hockley Valley Resort. Brown gave Sarah the $500 that Steph had given him. Brown promised Sarah that Steph would pay a further $500 for Sarah’s appointment with Amy. He showed Sarah a text from Steph to this effect. Brown appeared to take on his new job confidently, reassuring Sarah at some length that he and Steph had spoken to Amy and had told her that “we have rules and there’s standards” and she was to “treat them properly”.

[112] Once they arrived at Hockley Valley Resort, Steph was not present. Brown met alone with Amy, while Sarah and R.J. went to the bar. Amy told Brown that she had “pushed the limits” with Sarah at their previous appointment and “got pretty rough”, but she “didn’t leave any marks”. Brown told Amy to “go a little easy on her … respect her”. Amy replied, “I didn’t hurt her … I didn’t burn her … I love the mixture of pain and pleasure and don’t leave her with marks”. Brown told her to “tone it down”. After this initial discussion with Amy, Brown came over to the bar and told Sarah that everything was “good to go”. At this point, Sarah walked over to Amy’s table. Brown and R.J. then left and drove back to Brampton.

[113] On the drive home, Brown appeared excited about his job, having successfully taken a difficult escort to a rough, demanding, and important client. Brown said, “it was good” and R.J. replied, “it was a great job”. Brown said, “we made it work” and R.J. replied, “you made it work, you convinced her”. R.J. and Brown went on to talk about the pleasures of travel and the need for a vacation. Brown said that he had not taken a vacation in the “last ten years”. Brown again reflected on the changes in his life. He said, “I need … start enjoying my life … can’t be wasting my life … I’m so happy I met you, I met Steph, I met Robbie … I’m coming from a place where it’s just craziness man … Dying. Getting shot. You know how much people I know die, you know how much friends … six friends already. And you know how much people I know got shot … A lot of people … War going on”.

[114] R.J. gave Brown $350 from Steph for his work. The entire trip to and from Hockley Valley lasted two hours and 11 minutes. The fact that Brown was paid $350 for this first job in his new position in Steph’s organization, confirms the inference (referred to above at para. 105) that he was being offered remunerative work. This was the last time R.J. had contact with Brown. R.J. testified that he had no concerns about Brown’s mental health during the time they were together. The lead handler, P.W., agreed in cross-examination that Brown was now actively involved in their criminal prostitution business. The objective was to make Brown sufficiently comfortable with them that he would confess.

[115] The next day, October 20, 2017, Steph called Brown. She praised him for handling Sarah and Amy so well. Brown seemed comfortable in his new role. Once again, he expressed confidence about his own abilities, telling Steph “You’re a genius … you know how to pick people to do the right things … you have [an] eye for certain skills”. He advised Steph that he and his girlfriend were now living apart, apparently taking a break in their relationship, but that he would be looking after their daughter for the next day. They agreed to meet in a few days. Three days later, on October 23, 2017, they exchanged texts and arranged for Delroy to pick up Brown early the next day as they were anticipating a “busy day”.

(vi) Brown’s confessions to Steph in Kingston on October 24, 2017

[116] On October 24, 2017, the police escalated their “stimulation” activities (as summarized above at paras. 27-28). Detective Dunkley called Brown’s mother twice and he also called Brown’s girlfriend and met with her. He told both of them that Brown was a suspect in the Toronto and Brampton homicides. He asked both of them to have Brown contact him as he wanted to speak to Brown. As will be seen below, it is apparent that they did contact Brown later in the day.

[117] In addition to the above “stimulation activity”, it should also be noted that four days earlier, on October 20, 2017, the Peel police arrested Brown’s cousin, Ronald Thomas. He was charged with possession of the two handguns seized from the Lisa Street apartment shortly after the Brampton homicide. One of these handguns had been used in the Toronto homicide (as summarized above at para. 17 and 34). Brown had been seen with his cousin Ronald Thomas shortly before this October 20, 2017 arrest (as summarized above at para. 34).

[118] At 9:00 a.m. on October 24, 2017, Delroy picked up Brown at his mother’s home in Brampton and they drove to Kingston for various meetings with Steph. Brown was to spend 17 hours with the undercover officers that day, prior to his arrest at 2:00 a.m. on October 25, 2017. Brown had met Delroy previously, on August 22 and 24, 2017, when Delroy dropped off and then picked up the hard drive (containing information about Delroy’s “problem”). In the following two months, Brown had learned more about Delroy’s “problem” and how Steph and Robbie resolved it by bringing the man from Haiti to “take the hit” for Delroy.

[119] Delroy was driving an Acura SUV. He spent three hours in the car alone with Brown as they drove to Kingston. Delroy was and is a clean-cut 5’11” black male and he was dressed in “business casual” style. Delroy had been briefed by the handlers about the plan that day to “stimulate a confession” from Brown. Delroy’s role was to bolster Steph’s credentials as someone Brown could go to with a problem, using his own experience as an example.

[120] Early on during the drive, Brown talked about his own experiences learning the relationship between diet, energy, and a good sex life. He went on to say that, “I’m not making as much money as I should be right now … I’m going to school for alternative sustainable agriculture”. He showed some knowledge about this subject that he was studying. Eventually the conversation turned to the topic of Delroy’s “problem”. He said that he knew “Steph like told you some stuff, you know what I mean”. Brown reassured him of its confidentiality, stating “I forgot everything bro”. Delroy continued, “if it wasn’t for that chick [Steph] … I wouldn’t be here driving you right now … Because you know what … like I fucked up. It is what it is but I know I will be back in a place where I’m gonna … like contribute to her”. Brown agreed, stating “I need to stay out of trouble now because I gotta make sure that I answer these calls … because Steph come in my life too, so it’s like a blessing … I’m down for this bro … I’m down for this fam”. Delroy did not go into details about what he had done, although he did say, “I can’t forget that guy, I can’t forget that”, and he said that he now wanted to “stay on … like a good path”. The implication was that Delroy had committed a homicide of some kind. The lead handler, P.W., testified that Delroy’s “problem” was introduced into the undercover operation in order to send a message to Brown that they could “fix” a homicide.

[121] Later in the conversation, Brown talked about his experience in Steph’s organization stating, “all this is new to me … I freestyle basically … I have the speaking skills … now … this skill could be used in something … be used properly”. He also spoke about Steph and how she had made him feel comfortable in the organization, explaining that “everybody who deals with her trusts her, so … when she brings somebody in … when she says this person is good …” Delroy again alluded to his problem stating, “my mind was not in the right place at that time … that one time man … like if it wasn’t for her sitting me down, because I was … honestly man, if you saw me, I was wilding out … everything started to fucking come at me … I was spinning because I didn’t know what to actually fucking do … And she was like … I got you … Now I’m indebted”. Brown replied, “I know, straight love bro”. Delroy said, “I couldn’t even call my sister with that shit”.

[122] Later still in the conversation, Brown spoke about his own past and about how Steph had called him at exactly the right time. He stated, “two years I’ve been doing this … I thought I was doing something that I love … I started selling the drugs … I got two drug charges now so now I just stop doing that too. And now I’m in that position where … things are kinda slow and she came, call me up right at the right time, like I had no money, I literally had no money … The reason why I started selling drugs in the first place because I didn’t have no money and I should have been strong … so now I’m back in this position again, now I gotta have a different energy towards it. Now I have no money again but I’m not gonna … do something reckless or go sell drugs … I’m just gonna keep the faith, keep my composure. And then who called me? Steph called me … me having no money … now is time to get serious … I didn’t even know I was gonna get money, was gonna talk to her, whatever, and then, bam, money in my pocket … It’s good that I met her, it’s good that I’m like in this environment”.

[123] Later still in the conversation, Brown told Delroy about some of his criminal history and his experiences in jail. He said, “when you go to jail and almost realize you could lose your fucking life … I been to jail for second degree murder and attempted murder … It’s not good … Not at all, so who the hell would wanna go do something again without thinking … like in the blink of an eye, you thought life was good, you’re chilling, and you forgot what you did to the person … Can’t even get that back”. This led into a discussion about forgiveness. Brown said, “in this life you have to learn how to forgive yourself. You have to learn how to master the skill of forgiving yourself … Let’s say you did something wrong … you have to know how to forgive yourself … if you do not master that, then you’re gonna be fighting with yourself”. Delroy acknowledged struggling with these feelings, stating that “some days … I’m good” but other days “I don’t … respect myself”. Brown continued to reflect on his past saying, “I never … lost control … I never snap … I never got to that point … But sometimes you could lose yourself … that will still make you do certain shit … Where I’m at right now … it’s a learning process … you have to be able to forgive yourself through that transition”.

[124] As they got closer to Kingston, Brown spoke about how forgiveness could motivate you to lead a better life, even if you had killed an innocent person. He said, “I try to keep those people [who you have harmed] close to my mind so that could make me stronger and to make me a better person. So I use that energy. Let us say that person that died in my case … let’s say he was an innocent person … who got hurt and whatever happened … I keep that person in my thoughts … so I could use that to make me better. And to have them in my thoughts so that it does motivate me to be better. So I’m using them to say, ‘I can’t do that ever again and I want to make things right in my life, so I have to keep you close’ … So you have to use that energy in a positive way … You can’t be trying to forget that, when it’s so fresh in your mind, you have to say, ‘you know what … I fucked up, I created a sin and I just want you to forgive me too … And because of this, now I’m gonna change my life’ … So in honour of them, you’re gonna save souls now. Instead of taking souls you’re gonna save a soul now. If you could take a soul then you should be able to save a soul. So I’m gonna use this person whose soul was taken and I’m gonna save souls now”. Delroy acknowledged struggling with this process. He said that he had tried to “completely eliminate” the memory [related to his problem]. Delroy testified that he thought Brown was talking about the historical murder charge for which he had apparently been in jail awaiting trial. Brown also spoke about the environment that he grew up in, stating “Down in these neighbourhoods … you shoot somebody, that is respect … you see how it’s twisted … when you do something wrong you’re supposed [to] recognize what you did in your heart was wrong … remorseful, say ‘yeah, I did this’”.

[125] Interspersed between the above conversations about Steph and about their past and about forgiveness, Brown talked extensively about his recent interest in Moorish American history and his related beliefs. Delroy knew nothing about this topic so it was all new to him. Brown seemed passionate and knowledgeable on the subject. He had obviously researched and read about it. At one point during the trip to Kingston, he was reading from a document that he had found on the internet. He also read from a website that he looked up on his phone when they stopped at a rest station on the highway. In brief summary, the political and historical theory that Brown had learned and apparently believed was that the Moors were the original aboriginal settlers of the Americas, dating back to the time of the Aztecs, and they had mixed with other aboriginal tribes at a point in history long before 1492 when Columbus came to the Americas. Brown also explained that this belief was related to his court case, stating that he had already raised it with the judge on a court appearance and that he planned to represent himself at trial (all of which was confirmed in his lawyer’s testimony on the Motion).

[126] Brown and Delroy arrived in Kingston some time after 12:00 noon. They met Steph at the Delta Hotel at 12:51 p.m. Delroy left them alone and went to his room. Steph and Brown then walked to Chez Piggie restaurant for lunch. In the course of their conversations at lunch, Steph explained that the plan for the day was to attend two business meetings, one with a Vega supplements representative and one with the real estate agent for the Syn Gym complex. Finally, there was to be a dinner meeting with the investor/client Amy, who was also in Kingston for meetings. Steph told Brown that she would refer to him as “my business partner”, that he was not to “worry about the money”, and that she “appreciates your [Brown’s] knowledge”. Brown, in turn, expressed his loyalty and appreciation towards Steph stating, “we’re all one family and we’re here to help [you] … I bet anybody else who has been around you has seen what you did in their life and seen … how you show love”.

[127] Almost immediately upon meeting up with Steph, and while they were walking to the restaurant, Brown returned to the theme of forgiveness that he had been discussing with Delroy, although he now appeared to add a religious aspect to it, speaking of forgiveness by a God figure who Brown referred to as “the Most High”. He told Steph about a friend of his who had done something wrong and who had died. Brown stated, “the main key in this life, you gotta learn how to forgive yourself for anything that you do … You gotta learn how to love yourself and loving yourself is forgiving yourself … my friend who you know did some shit in his life … he died … he’s dead right now because he didn’t forgive himself … He didn’t think that the Most High would forgive him so he just gave up on himself … he did certain shit because he had no hope … once you repent in your heart and change from the things that you did in the past, then you already signed the application for forgiveness and because the Most High is all forgiving, all merciful and all loving, you got forgiveness … No matter what you do, if you kill someone, do whatever, you can be forgiven. But you have to be able to forgive yourself first”. Brown explained that his friend’s life was taken because “he did some shit … because he believed in his heart the things that he did, he wouldn’t of got forgiveness for it”. Brown stated that, “I’ve been through more than what he’s been through … I’ve been through all of that … remember my second degree [murder] charge … okay someone died in that and having to live with that … but you have to be able to forgive yourself … you can’t beat up on yourself bro, we all make mistakes … in your heart you see what you do is wrong and you’re actually sorry and you’re remorseful. You got delivered … so now it’s for you to receive the forgiveness and live your life and be happy”.

[128] After lunch, Steph and Brown walked back to the hotel. It was about 2:15 p.m. Brown told her that he was having difficulties with his lawyer, who wanted him to plead guilty, and that he was going to represent himself. At the hotel, Steph and Brown conducted their first business meeting with “Vidge” (another undercover officer who was playing the role of a Vega supplements representative). Brown participated in the meeting, making suggestions about ingredients for the energy bars.

[129] After the meeting with Vidge, there was an important development during a period when Steph and Brown were alone, prior to their next business meeting. It was 4:04 p.m. Steph asked Brown, “everything good with you man? You look like you got something on your mind”. Brown replied, “No, I’m just thinking, just thinking, not serious”. He went on to explain, “That was my girl that called … I don’t know why she really called”. He suggested that her call might relate to “something we gotta talk about in person”. Steph and Brown continued to discuss this missed call from Brown’s girlfriend and the mistrust that had developed in the relationship between Brown and his girlfriend. Brown’s tone of voice during this part of the wiretap was quiet and serious. The conversation ended when Brown’s phone rang and he took the call. He went out of the hotel room and into the hallway (so there is no wiretap of his end of this telephone conversation). Delroy came into the hotel room and joined Steph while Brown was on his phone in the hallway. After the phone call ended, Brown returned to the room. Steph asked, “Everything okay”. Brown replied, “yeah everything’s good”. Steph testified that Brown became quiet and seemed to be thinking. She asked, “Are you sure?” He replied, “yeah everything’s good”. Steph then left the room, ostensibly to make a phone call. In fact, she went to meet with her handlers.

[130] When Steph returned to the hotel room, the second business meeting proceeded. It was 4:54 p.m.. The meeting was with “Dion” (another undercover officer who was playing the role of a real estate agent involved in the Syn Gym project). Steph and Dion discussed the status of various permits that were needed before the building project could proceed. Brown did not participate in this meeting, with one minor exception when he asked Dion a question. Steph testified that Brown sat beside her quietly, looking at the ground, as if there was something on his mind. Delroy remained in the room for this meeting. It should be noted that the above two business meetings (with Vidge and with Dion), that led up to Brown’s confessions to Steph, did not involve any criminal activity or discussions about criminal activity.

[131] After the meeting with Dion ended, Steph took a phone call, ostensibly from Amy (who was said to be thanking Steph for bringing two guns to Kingston for Amy to play with as sex toys). It was Delroy who had brought the two guns for Amy. When Steph got off the phone, she confronted Delroy about having transported these guns to Kingston in his car, without telling Steph and while Brown was a passenger in the car. She stated, “my only concern … is that you carried two guns with you today in your car. While you’re disrespecting my brother [Brown] here … look what’s happened from you not telling me things”. Delroy explained that he was just trying to keep Amy happy. Steph stated that she has “no problems” with keeping Amy happy but she insisted, “you have to tell me these things. That’s all … We don’t keep secrets here right? We’re family”. Steph explained, “you have to think of other people that you are with”, indicating her concern that Delroy was putting Brown in some jeopardy by having the guns in their car. Steph, Brown and Delroy all ended up lauging about the incident, as Amy was said to be “over the fucking moon right now”. Delroy apologized for not telling Steph about the guns. Steph said that Amy was “twisted”, even though the guns were “just to play with”. Brown laughed repeatedly as they speculated about how Amy would use the two guns as sex toys.

[132] Steph asked Delroy to go and get the guns and show them to her. He went to get them. They were in a brown paper bag and they were both inoperable. It took Delroy about a half hour to get the guns and bring them to Steph’s room. During this time, while Delroy was out of the hotel room, Steph and Brown were left alone between 5:25 p.m. and 6:00 p.m. They were seated at a table across from each other. It was at this point that Brown first started to tell Steph about the two homicides. The conversation began with Steph apologizing for the incident with Delroy, Amy, and the guns. She then stressed the importance of telling her about these kinds of things. She said, “Sorry about that … so it’s one of her [Amy’s] requests … he [Delroy] has basically done it because Amy’s the money for me … you just gotta just tell me”. Brown replied with his usual promise of confidentiality stating, “at the end of the day I don’t know nothing”. Steph reiterated the need for candour stating, “there’s no liars here … everyone’s open”.

[133] The television was on in Steph’s room, with the sound muted, and they both referred to a show that was playing on the screen. Brown then raised the subject of the homicides, without any preceding question or inquiry from Steph. He stated, “Alright, I’m about to let you know something … I have to really … think about it really hard … this past history coming back in my life right now … That phone call I got is my girl basically saying that detectives wanna come talk to me about some shit that happened a little while back … I just found out … serious case. So I have to let you know that. Because I don’t want nothing that I’m dealing with to draw on anybody right. Just being real with you … just some shit is coming back in the past and most likely I’m gonna have to deal with it or it’s gonna have to be dealt with”. Steph said, “You need to tell me”. Brown replied, “Like big case, like murder … So right now my cousin got arrested like, about … four days ago. And as soon as they arrested him, now it’s like they wanna come talk to me. … It’s basically three people involved in the case. … They have no … hard core evidence … They might have phone calls linking us … So right now it’s at that stage … where investigations are being done”. He explained that detectives “wanna question me … Obviously I ain’t answering no questions”.

[134] At this point in the conversation, Steph offered to help Brown with the matter. She stated, “Okay, you know any problems you have I can help you with. You understand that?” Brown replied, “It took me a long time … I’m the type of person … I keep it private”. Steph encouraged him to talk stating, “You’re doing the right thing right now by talking to me”. Brown stated that he did not want to talk in front of Delroy. Steph texted Delroy and told him to “hang off for a sec”. Brown then continued: “this is the situation that’s going on right now … I just wanna make sure that you’re clear, everybody’s clear, and that’s what it is”. Steph stated, “I’m the fixer”. Brown said that, “there’s two other people who are involved … might talk”. Steph said, “why don’t you tell me about you first”. Brown replied, “They don’t really have me. The only thing that they kinda have me on is communicating with these two people”. He said that his cousin “got caught with two guns” and is in jail now. Steph asked, “what can I do to help you?” Brown replied, “make sure that this phone is clean … keeping yourself and your circle away from what I have to do”. Steph disagreed with this approach, stating “You’re family … if you have a problem I want to help you”. Brown replied, “It’s not really a problem … these two other people … If they shut the fuck up … then it could go smooth”.

[135] Brown tried to reassure Steph that “it’s not even that serious”, that the police “don’t know what happened”, and that he would have been arrested by now “if it was something serious”. Steph again encouraged Brown to talk, stating “You’re leaving me in the dark … You can talk to me”. Brown continued to refer to the lack of evidence, stating that it was just “me talking to someone on the phone … around the area … somebody shooting … somebody running … That guy’s face is covered up … right now they just have an unknown person that came out of a car”. He stated that his cousin and a person who came “out the passenger side … they were inside a bar. When everything was happening they weren’t there … They don’t know what happened”. He stated that the person “that came out the driver’s side … They don’t know who it is … They think I’m the driver … they think I’m the shooter”.

[136] At this point in the conversation, Brown began to implicate himself more directly, rather than just referring to the state of the evidence. There had been no further prompting or questioning by Steph prior to Brown stating, “When everything happen, I made the call … to make sure everybody was okay … then minutes after, I made the call to see if my cousin was good … my boy and my cousin … And that car is in my Mom’s name … that I’m driving, is in my Mom’s name”. Steph made a more explicit offer of help at this point, stating “you know we have contact in Haiti right?” She stated that Delroy’s situation “was actually kind of the same … and then we were able to find someone from Haiti to come and take the spot … it fucking worked amazing … But the only thing I need from you is the truth. … I need to know exactly so that I can take care of it … things that I can do for you right? But … you need to be upfront with me … You’re not pulling a [Delroy]”. Steph laughed and Brown stated, “I was gonna shut up … certain people don’t need to know nothing … But obviously, something was telling me to tell you this”. He insisted, with his usual confidence, that he was “calm … super-duper calm” and that “when my back’s against the wall, that’s when I perform well”. Brown identified the “two guys” he was concerned about as “my cousin” and “a friend”. He said that he had seen his cousin recently, that they believed the police had his cousin under surveillance, and that his cousin was arrested shortly afterwards. He again stressed the importance of these two persons not talking to the police. Steph said, “we need to find out who the detective is, because I have connections”.

[137] Steph explicitly said to Brown at this point, “you know the truth … the more information that we know … then the better off it is … If you’re saying it wasn’t you. You weren’t there … That’s a whole other story … But like you’re talking to me here … the fact that you’ve brought this up to me is making me feel like there’s probably a bit to it”. Brown replied, “Is just really, or what these two guys could say”. Steph asked, “where was this?” Brown replied, “around Brampton”. Brown said that he had been with the guy who he described as “a friend” just “yesterday”, that this friend was “the first person that got arrested”, that the police said “he was lying about driving”, that “they must have found him on camera with a bag”, and that they “found two guns in the house”.

[138] It is apparent that Brown had been referring only to the Brampton homicide up until this point. However, after the above reference to the police finding “two guns”, Brown made a veiled reference to another gun and to some other incident or incidents. He said that, “there’s three guns”, that the police did not have “the one for … that”, and that the two guns they did seize “are the ones that are link to other stuff”. He went on to state, “gets deeper into the hole because these things are linked to other things and is just bringing in more stuff”. These veiled references to “other stuff”, “other things”, and “three guns” were made by Brown without prompting or questioning by Steph.

[139] Brown then returned to discussing the Brampton homicide. He said that two guns were seized “in a bag in a house away from the scene”, that the police do not have the gun used on “the guy that got shot”, and that “they probably know I drive that car more than usual” and they know about “the phone, calling eachother … So that’s really what it is”. Brown went on to state that “the guy who got shot, he was shooting at the person while they running … They see this guy, boom, boom, boom, boom, boom”. Steph asked, “trying to shoot at you?” Brown laughed and said, “I don’t know who that guy was trying to … We don’t know who that guy is. They don’t have no facial, nothing … They don’t have no weapon … The only thing they have is these phones”. Brown repeated, in reference to the guy who was running and being shot at, “I don’t know who that guy is”.

[140] Steph appeared to take the above statements made by Brown, up to this point, as either implied or express admissions that he was involved in the Brampton homicide. She proceeded to ask him questions on the assumption that Brown was the person who ran away and who was being shot at. She asked Brown, “when you ran away, where did you go?” Brown replied, initially speaking in the third person and then in the first person: “When that person ran away, they didn’t really go nowhere … they were still in the same area. When the police came and everything … that person ran, the whole police blocked off the area … now they have to get stopped by the police … So I was walking down with a girl you know, that I just met on the building. But the police stopped us too you know. Talked to us and wrote our description down … I’m around the scene but I wasn’t there. You know what I’m saying? So they know that I was around the scene … Probably not right there. But I was probably down the block”.

[141] Steph again offered to help stating, “it doesn’t matter that there are two other people involved … we could still find somebody … if someone takes the hit for something and claims … we have the entire story”. She reiterated that if she was “to find somebody … I have to know the story”. In order to “prep the person” she would have to be “very clear on what happened”. Brown replied that he would have to contact “these two guys and let them know”. At this point in the conversation, Brown again implicated himself stating that his cousin was less of a concern because “he wasn’t in no car with us … He came by himself … Went in the bar by himself. Took a taxi by himself”. As for his friend (referred to as “the other guy”), Brown stated that, “I can get in contact with him”. Brown then said, “If someone was talking, we would be all in jail right now”. Steph again stressed her need to get the name of the detective because there are “so many things that we can do”. She told Brown, “you kinda need to lay low … until we sort out proper everything … I’m gonna start making some calls … we can find a replacement … in Haiti people are dying for us to come there … because we take care of their family”. Brown seemed to be impressed, saying “wow”. Steph repeated, “be up front with me and I’ll take care of you”. Brown concluded this part of the conversation by stating that the reason “why I letting you know” was because he did not want “whatever is in my life to affect you. Like you are doing amazing things, you have big things going … I ain’t trying to have my little dumb shit … whatever happen in my past, to affect nothing that you have going on. So I have to let you know … it’s only my problem because I care about you”. Steph reassured Brown that “whatever is happen in your past … it becomes my problem … because I care about you”.

[142] At this point, Brown left Steph’s hotel room in order to go to the bathroom. Delroy returned to the room with the two guns in a bag. There was no discussion about the homicides in Delroy’s presence. Steph left to go to the bathroom and upon her return, the three of them examined the two handguns. Brown handled one of them and he seemed comfortable. Steph testified that Brown was not taken aback by the guns. There was a lot of laughter and joking amongst the three of them during this excerpt. Steph called Amy and said they needed to agree on “a few ground rules about … those toys”. They agreed to meet for dinner. Both of the guns were large and impressive. They were not handled in a threatening manner. After they had examined the guns, Delroy put them away, left the room, and returned the guns to the handlers. It was now 6:15 p.m.

[143] The lead handler in charge of the undercover operation, P.W., testified that the reason for introducing firearms (both on this occasion and on the prior occasion with Doug on September 13, 2017) was to communicate to Brown that Steph and her associates were comfortable with firearms, that Brown could hand over a firearm, and that they could get rid of a firearm. In this regard, the police were alive to the fact that the gun used in the Brampton homicide had never been recovered. In addition, the further purpose in introducing the guns was to help build trust in relation to any confession involving use of a firearm. P.W. testified that he regarded the guns as a visual “stimulation technique”, to get Brown comfortable with talking to them about any use of a firearm.

[144] Once Delroy had left, Steph and Brown were alone again in the hotel room for the next 50 minutes, between 6:15 p.m. and 7:05 p.m. It was Brown who returned to the topic of his difficulties with the police stating, “Just when I … Just when you think you’re in the light, when you think who you are”. Steph reassured him, stating “I see this shit all the time”. Brown stated, “I probably take things a little bit too calm than I should … I feel like that’s the best way to deal with the situation. Like, if it’s gonna come, it’s gonna come … I’m not ignoring”. Steph agreed that the problem should not be ignored, stating “the fact that that’s happened, it’s something we need to address”. Brown agreed, stating “yeah for sure … most definitely”. Steph again made an explicit offer to help, stating “I need the name of the detective and I’ll remove you from that … all you have to do is be up front with me”. Brown replied, “I’m used to like, real keeping quiet, I don’t even tell my Mom … after some shit happens … So that’s how I move … I realize well, obviously being around you, I’m not used to this … Not used to how people are supposed to operate. So I’m used to when you tell people something they freak out … start talking on phone … So I’m just … I just keep it quiet … you seen me”. Steph stated that, “I knew something was up … You look like you went into a fucking dark hole”. Brown said, “I have to focus now … I gotta remember certain things … So I know how to deal with it … As much as you wanna … keep it on the distance … now it’s popping back up. So it’s something that I have to … deal with”.

[145] At this point in the conversation, Steph stated “we’re gonna deal with it … I’m not gonna ask you to tell me anything you don’t wanna tell me … But like also know … what I need to know in order to do the things I need to do”. Brown replied, “That’s why I’m on my Moorish thing now. … In order for life to get to the next level, I probably have to deal with certain stuff. I have to address it … Just how you were saying, things could be rearranged and switched up to however it has to be. But, I just wanna get to the next point in my life where I’m done with all this shit … when my back is against the wall, that’s when I perform. … And that’s why I’m so serious … And if I wanna reach that next level, then I gotta go through what I gotta go through. And I never give up on myself … I always forgive myself … you gotta be able to forgive yourself for anything that you do, no matter what. Even if it’s wrong or right … Ask God for forgiveness as a life and forgive myself … when you see me in deep thought … is not because I’m stressed out. That’s one thing I’m not … I don’t panic. I don’t fear … I know how to handle pressure … But … if I have to go through certain things because of my past, then I have to go through them. In order for me to get those stuff out the way. But if things could be smooth and done in certain way, then why not right?” Brown laughed and Steph said, “it’s going to be done … we’re gonna smooth this out”.

[146] Steph asked a question at this point, stating “I got questions man … Where’s the gun?” Brown replied, “That’s gone. I don’t even know where it is … like the last person that had it, they said they lost it and it’s gone … I never seen it ever since. It’s gone”. After this one question, apparently related to the Brampton homicide, Brown began to volunteer information connecting the two separate incidents and for the first time he began to refer explicitly to the Toronto homicide. He stated that, “what really fuck shit up, is one of two things that they found was in the incident and the same car is around that incident. It’s involved in something else. But the car is involved in the next thing. And the thing that they found in the house is involved with the next thing with that car. … two different things that got connected with eachother because that thing that they found in the house … that thing that they found in there is connected to something else with the same car”. Steph asked whether it was his Mom’s car and he replied, “Yeah bro”. She asked, “Where’s that gun” and he replied, “the police have that … they found it”. She asked, “where did this other thing happen” and he replied, “It was in Scarborough”. Brown said that the police do not know “who’s in the car”, how many “people in the car”, “why this happen … there’s no motive”, and “who is driving this car”. Steph pleaded with Brown to “be upfront with me man”. He replied, “I don’t know nothing”.

[147] Brown continued to talk about the state of the known evidence and not about any involvement of himself, stating “you been using this car to go to work. Like I was working … But anybody could be driving that car … No prints, none of my prints on nothing. No physical evidence of me on any of these things”. He then stated that it was “two different things”, involving two separate guns, one of the guns is “gone”, and the other gun was seized. Brown explained how the police found the one gun: “basically, my cousin give my friend a bag. And then my friend went to the house, gave it … to the guy who lives in the house and that guy must have put it away … and then the police must have seen this on camera. And then … raided the house and found it”. Brown agreed that his cousin had “that bag with the two pieces”, gave it to “my friend”, and “my friend got charged with two of them, probably because he was in the house”. Brown had spoken to this friend “last week”, after the friend went to court, and the case was said to be “kinda weak”. His cousin was also arrested in relation to “two straps” and “now they want to question me”. Brown said his “friend” was “only in that one, that Brampton one” and was not involved in “the other thing”.

[148] At this point in the conversation, Steph asked “Who was driving that car?” There was a long silence (on the wiretap). Steph testified that Brown gestured with his thumb towards himself and quietly mouthed the words, “it was me”. Steph appeared to confirm this admission on the wiretap, stating “You were, okay”. She then asked, “And who was driving the car, the next?” There was a similar reply and she again appeared to confrim Brown’s admission, stating “You were, okay”. Brown continued, “But that can’t get, and that’s the major thing like, I can’t be placed for none of these ones. If I get place for one, then that’s … domino effect for that one … a potential double [homicide] … If even I get, they even place me in the scene for one, this other one is coming … End of discussion if I’m placed in any scene, any where in any two of these. Both of them are coming … that’s happening, simple”. Steph intervened at this point to say that she could “set you up” to make it “appear that you’re somewhere else”, giving him an alibi. Brown replied, “when I call my cousin, like, ten minutes after that happen and … where he called from was like about a hundred steps away from the whole thing … I just called him, make sure they’re good … my friend told me that they have the call from when I called my cousin … Like ten minutes right after the whole thing happened … My cousin was in the bar at that time … this happen outside the bar. And they were inside the bar … like real close but … he’s not specifically there when that whole thing happen … on camera it shows that they weren’t there … I call him like ten minutes later … the phone wires were like right around there right … obviously they have … it is what it is … They don’t even see me on the camera … from the phones. That’s the only way. That’s the only reason why is through the phone … for a fact, [they] don’t know that I was there for any of them. For a fact, they don’t know. They just assume. And assumptions cannot play in court … They questioned everybody else except me. The only person they never came to is me”.

[149] Steph said that she would make some phone calls and get a room for Brown so he could stay at the hotel that night in Kingston. She said that they had a lot of work to do “to make this go away”. Brown said that his girlfriend “already relayed the message to me” from the police, after the police met with her. Brown asked if there was “a way that I can get some marijuana down here … I need some weed to smoke … I hope I can get some here today”, and he laughed. Steph said, “I can guarantee you that this will be fixed by tonight … just give me one night man … I’ll get you a room … You need to chill”.

[150] Steph asked some further questions and Brown began to expressly implicate himself in the Toronto homicide. She inquired, “when did the other thing happen?” Brown replied, “like three months back from eachother … same year. Everything is same year”. She asked, “And you were in Scarborough, where?” He replied, “I don’t even know exactly where … think Danforth area or some shit”. She asked, “whether the driver came out of the car and he replied, “Nobody came out the car for that first one … The second one, they seen somebody come out the driver side and they seen my friend come out the passenger side. He [my friend] said that he was driving at first … But then they see someone coming out the driver side”. Brown repeated, in relation to the Toronto homicide (“the first one”), that “Nobody came out [of the car]… just driving … just this car with the fucking license plate … Is not like I just went there with my license, no, I had shit covering it up but it still seen somewhere … But there’s like no motives … And that car, that car is my Mom’s side car … This car anybody uses, everybody uses … that’s the neighbourhood car”.

[151] Towards the end of the above conversation, Amy called Steph and they made arrangements for dinner. Brown also used his phone to try to find a source for marijuana in Kingston. He said it helps him to “meditate … relax and calm down … I need my weed”. Steph briefly left the room, ostensibly to make some calls and to get a room for Brown. When she returned, Brown found Detective Dunkley’s name by doing a search on his cell phone.

[152] Steph asked further questions about the Brampton homicide at this point and Brown again implicated himself. She began by asking about Brown’s “friend” and whether he was “involved with both” [homicides]. Brown replied that his friend was not really involved, stating “he was in the bar at the same time that happened … he walked in with my cousin but he never walked in together”. Brown went on to explain why the police in Brampton were “looking at three people”, because “they feel like they have a motive. That’s why when I say three people, they feel like they have a motive why we came there. They think that my cousin got into an incident with one of the guys in the area and the bar. So they thinking that we came back … my cousin he calls me and tells me, he didn’t tell me what was going on. He called us to come for something else you know. So when we’re going there now, then he’s freaking out”. Brown explained that his cousin had been in the bar “the day before … all that stuff happen. And then he came back again … But I never walked in with them. I didn’t go in the bar with them … They just step in the bar. Everything happen outside the bar”. Steph asked whether Brown’s cousin had “a problem with that guy” [the deceased]. Brown replied, “I don’t know if it was that guy specifically. But he had a problem with that group … and then he called me and lied to me. He told me something else. So we came there for something else and then when we came there, this is what he coming up with. So he tricked us into that … Because he know that I would defend him. Because I’m his family … So he use me, he trick me and got me to do something for him … it wasn’t even supposed to go down like that. It was nothing, that wasn’t supposed to happen … that got me there. And then switch up the whole story, freaking out”. Brown felt that his cousin would not talk to the police “because if he does, he’s going down the drain too”. Brown reiterated that his friend and “my cousin were in the bar” and they were not “at the scene”. However, “the only thing is just they seen the camera, saw me coming out the driver side. So that’s what’s kinda fucking everything up”. Brown explained that his friend “said he drove … but because they [the police] seen the camera, or someone coming out the driver side, and they’re like, okay, no it’s not you [the friend]”.

[153] At this point in the conversation, Steph stated that “it’s totally fixable” and that she could get someone “to come forward … to take the hit … and that’s why I needed all the details”. She asked Brown for his height, weight, and age and he said 5’11”, 160 pounds, and 24 years old. Once again, Brown gave Detective Dunkley’s name to Steph and stated, “This is not for Brampton … this for the Toronto one … for the first one”. Steph left the room to make some calls. She asked Brown if he wanted to be left alone or if he wanted her to call Delroy, “to chill with him for a little while”. Brown said that he wanted some “weed”. Steph called Delroy and he came back to the room as she was leaving.

[154] Steph was not out of the room for long. Delroy went to sleep in the room. Steph returned and she walked down to the hotel restaurant with Brown to have dinner with Amy. It was now 8:24 p.m. As they walked, Steph expressed her “respect” for Brown and reiterated, “you’re family, like blood”. She said, “I’ve made the right contacts and I can guarantee you right now that by the end of this week, someone’s gonna be walking into that fucking station claiming that they fucking did everything … I got that for you. That is going to happen … you’re sticking with me …. I need you fucking with me through this entire lifetime. We have lots of good things going on man. We got fucking things to like look forward to right … So it’s gonna be taken care of. There’s just a couple of things man that are fucking a bit unclear with me that I need to talk to you about”. Brown appeared to agree to Steph’s plan stating, “All right … Okay … No problem”. Steph stated, “I got someone coming tonight man. I got someone coming from Haiti. Like it’s fucking done”. Brown said, “Wow … Okay”. Steph said, “we’re gonna continue our lives just like we are now, like none of this shit fucking happened”. Steph repeated that, “I just need a couple clarification on something that I’m confused about … but we’ll talk about that after. We’ll just try to have a nice dinner”.

[155] They had dinner with Amy. There was no discussion about the two homicides. They talked about Amy’s commitment to make an investment in the gym and about the state of the project, based on their meeting with the real estate agent. They laughed a lot. Brown engaged in the discussion to some extent and ate dinner. Amy and Steph did most of the talking.

[156] After dinner, Steph and Brown agreed with Amy that they would meet up later and go out together. Steph and Brown then returned to Steph’s hotel room. It was now 9:27 p.m. This time it was Steph who re-introduced the subject of the two homicides by stating: “we only have one chance of … making this disappear … I’m not trying to pry … but I’m missing information … I’m not clear on it. I’m getting mixed up between two things. This guy from Haiti, he’s coming down, he’s gonna fucking take the hit for you … But in order for someone to come and take the hit for you …”. At this point Brown interrupted her and said, “You gotta know what’s going on”. Steph said that she would have to “train” the guy from Haiti about the matter but, at present, “I’m not clear on shit at all”. She explained that “earlier I listened to you, I didn’t pry … but now, now I’m gonna step in … need to know fucking details … I’m helping you”. Brown said, “Yeah, yeah … I’m not used to this obviously because I never been in this situation … it’s something that I have to trust you with and I’m not gonna say that I feel comfortable, because I don’t feel comfortable … I’m letting you know that right now … but I’m gonna trust you”.

[157] At this point, Steph asked Brown about the Toronto homicide (which they were referring to as “Scarborough” at this stage). Steph asked an open-ended question, “so what happened there?” Brown replied, “So basically … got a drop on some people … opposition. I don’t like talking about it … I speak in codes and I don’t say things right out … We went over there. Scoped the place out like three times. People in my ear saying, ‘Yo, is that the guy, is that the guy … do what we gotta do’ … there’s a video camera …. they [the police] have the camera”. Steph asked what he meant by “scoped the place” and Brown replied, “in the camera, it shows the car driving … going back again, and then you see the car going back again … three times … that’s when everything happened … So first … second … third … and as we’re leaving … That’s when we go … the window down, things started going off”. Steph interjected saying, “Talk to me man … you gotta tell me”. Brown continued, “there was two people basically going at it”. Steph asked, “who were those two people”? Brown replied, “the other person like, I can’t, you know … I can only speak for me … I’m in the driver, I’m doing my business”. Steph asked, “where’s that gun … the one you shot?”. Brown replied, “That’s the one that they found … I gave that to somebody else and they had it for like two, three months. They wiped that down, everything is clean”. Steph asked, “what was the reason for that?” Brown replied, “there’s a motive behind it but … it wasn’t the right person … we got a drop on some people but when we went there, people are telling me that ‘these are the people’, but then when everything happened … totally opposite … innocent person … So I don’t talk about it, I just let it be. You gotta learn how to forgive yourself … So what I do now is I use this person to make me a better person … that’s what I’m working on myself and become a Moorish … That person is gonna be honoured because I’m gonna save souls. I’m gonna make sure that that person didn’t just die in vain … intentions were not to get that guy who’s obviously innocent … innocent bystander, he was at the wrong place at the wrong time”.

[158] Steph proceeded to seek more details. She asked if there was “only one other person in the car” and Brown replied, “There was two other people in the car” but “the car has tinted windows” and “so whoever’s in that car, no one knows”. Steph then asked, “now you said there was two people shooting at the same time” and Brown replied, “Yeah, so if I’m on … the driver and then … and the passenger”. Steph asked about the location, stating “that was Danforth you said … what was the place called?” Brown replied, “Something ‘Cloud’ … I don’t know but it’s a daycare now … changed to a daycare … people got killed in that same place before”. Steph asked about the “guy that you were initially trying to get” and Brown replied, “It wasn’t … a particular, it was like a whole group … they were throwing like some little party”.

[159] Brown appeared to be somewhat ashamed as a result of telling Steph about the Toronto shooting. He stated, “it’s a fucked up mind state … because that’s not how I am. I don’t want you to think that this is how I operate”. He went on to explain the state of mind he was in at the time, coming out of jail and taking an apprenticeship with the union, and then “ended up putting myself in these positions” that led to the shooting. He said that a close friend of his had died in a shooting with the police, that he was also unhappy at his union job, and that “church wasn’t helping me”. He said, “this is not how I normally am … this is out of the character … I just started this shit because of my friend dying … I just lost it”. Steph expressed sympathy and understanding for Brown’s situation at that time.

[160] Steph asked whether “the guy in the passenger seat … is he going to be a problem?” Brown replied, “No. Those guys, listen … the only way that they could be involved is through me. And I’m super, like they don’t even got to worry about that”. Steph asked Brown to clarify whether “both you guys are shooting”, whether they were both shooting “at the same time”, and whether the passenger “is … going [shooting] through you?” Brown replied, “Could be two guys with two, one guy with two guns … the camera doesn’t see none of that … I wasn’t really out the window … that’s why it’s so hard for him because there’s no fingers out the window, there’s no hands, there’s no nothing. It’s just a car comes, they see sparks from the driver’s side, and then they see the car just drive off … we left”. Steph testified that as Brown was giving the above explanation, he leaned back in his chair in the hotel room and raised his right hand to his upper chest and collar bone area, pointing towards his left shoulder area, with his index finger and middle finger extended and his thumb pointing up. He then made a gesture, as if pulling the trigger of a gun twice. She made a note and a drawing of this hand gesture in her notes, when she later left the hotel room to talk to her handlers. Her note stated, “making gun gesture at the window while pushed back in his seat”. Steph pressed Brown to identify the passenger but he repeatedly refused, stating “he’s safe, he’s super-duper safe”.

[161] Brown went on to add further details, stating that “there was like the license plate blockers that I had” on the car. He also stated that at the time of the shooting “I stopped … I never really drove, like I stopped, like you stop”. Brown repeated that this process of telling Steph about the shooting “is all new to me so … I’m just trusting … I’m letting you know, I’m putting it all on the line right now … so whatever happens”. Steph reassured him, “I want to take care of you and I’m going to do that … by end of this week if someone is going to come in and turn themselves in, they are going to do that … and you’re going to fucking walk away”.

[162] Steph continued to ask for more details. She used an open-ended question, asking “what was it like outside that night”? This question, and some follow-up questions, elicited a lengthy detailed response about the Toronto homicide. Brown replied, “It was a party so like a lot of people were outside … their whole clique was outside, just standing out there”. Brown went on to explain that “once we realized who it was” that had been shot and killed, he became “kind of angry” with the “fucking retard bro … that made me stop … that’s why I don’t chill with young people … they do dumb shit, and then they’re telling you, ‘yeah, there’s the guy, there’s the guy’, I was like ‘no’ … why do you think that we drove by three different times … Because I’m telling these guys ‘no’. Because I’m not these guys … I’m like, ‘no, these are not these guys’, like ‘what are you guys talking about. I don’t see none of these guys’ … So me driving, I go back three times because I’m not doing nothing if it’s not”. Steph asked, “why that bar?” Brown replied, “It’s because … that’s where we thought, or they thought those guys were gonna go perform”. Steph asked, “were they like a gang you were after?” Brown replied, “They’re basically a known gang, a known gang in Toronto … Some Regent Park niggers. … my last case was some Regent Park guy, you know, they try to rob me and I have to defend myself … that was from … my second degree and attempted murder charge that I got. That was for that Regent Park guy … Two thousand twelve, I done my little time … my people like even other than this, other than me and them, they still have problems with my other people. They trying to go, like shoot my cousins and shit so … that’s where I was … put in a position where … my friend died, I’m starting to chill around the block … But it was just these guys you know … I shouldn’t even been out there on that hit … you don’t even know who you’re targeting … it’s just stupidness you know. The only reason why I was even put in these positions is because I was just not in the right mind state”. Steph asked a follow-up question, “so there’s a whole Regent Park thing and now someone call you to tell you ‘okay, these guys are here’”? Brown replied, “Yeah, someone said that … So basically the drop that we got from them … told us that ‘yo, these guys are gonna be there’ … those guys are gonna be there but those guys weren’t there … And these guys are saying, ‘yeah, these are them’ … Two idiots in my ear … And me knowing that I know how these idiots are, I’m saying, ‘nah, let’s make sure’. That’s why it [the car] keeps going back and forth like that”. Steph asked “how many times” was the gun fired and “how many [bullets] were loaded?” Brown replied, “Fuck, I don’t even know … in the heat of the moment you don’t know, you just go, you’re just doing your thing … I don’t know that [how many bullets were loaded]. That year was hectic, like there was a lot of different straps coming in”.

[163] Steph ended the discussion about the Toronto homicide at this point, stating “that’s an easy fix” and “let’s talk about the second one”. Brown explained that the “two idiots” he was with in the second case in Brampton were different from the “two idiots” he was with in the first case in Toronto (“I roll with idiots for some reason”). He gave the location of the second case, stating “It was in Brampton … Like around Queen and Dixie”. Steph began by asking another open-ended question, “take me through that night, that day, or whatever it was … From the beginning”. Brown replied, “we get a call [from his cousin] … he tells us to meet him at a house … we get to a house, we see him … he’s arguing and shit. Then he calls a taxi … gets into the taxi and we follow him, behind the taxi … the police went to the taxi obviously and the taxi man told them there was a car following us, with two guys”. Steph asked, “that was the one you were driving?” Brown replied, “Yeah, that was the car. So now we pull in, we pull into the place, to the bar … my cousin he comes into the bar. We go park up somewhere, he [my cousin] walks into the bar … and, basically, me and my friend come out … my cousin looks at one of the guys, says you know, ‘this is the guy’, whatever you know, like and without words, so as soon as that guy’s coming out, I just walked over to him … I have my little spliff so I was gonna light up my spliff … so my cousin and my friend walk in the bar … they didn’t even look back to see what I was doing, they just walked in … my cousin was like, ‘yeah, yeah … this is one of the guys’ … So I said ‘okay’. So that’s when I walked outside to go … you know, talk to him … To go talk to the guy who my cousin said ‘dah, dah, dah, dah, dah’ … said ‘that’s the guy’, so you know I’m talking to him and he’s giving me attitude … I’m like ‘yo, could I borrow a light’ … And then he’s on the phone like, ‘yo, I’m on the phone, I’m talking’ … And I’m like, ‘yo brother, like why you getting so hyped … like relax’. So then now, when they see my cousin and my friend go inside the bar, no like when my cousin and my friend were inside the bar, that guy I was talking to outside, his whole crew was in the building and in the bar. So they walk outside now … The whole crew of his friends, the guy who I’m talking to … whole crew walks outside now because they seen my cousin and my boy, my friend and I … So they know, kind of the tension … So … I’m talking to this guy and … he’s getting hyped … I said, ‘yo, relax’, he looks at one of his friends that just come outside and he goes like this, just looks at him like this … and as he’s coming out … my hand just like this in my pocket … boom, gave him one and then timing, but it jammed right, so he takes the one in the chest and he’s still coming out … So as I see him coming out … I couldn’t take out my shell because he’s started …”. Steph asked, “Wow, so right through your shirt?” Brown replied, “Yeah, exactly, out with his shit before I could even, so I was like boom, and I’m trying to … like boom and it’s jammed … But I hit him in the chest and then he’s still coming back for it, so when I see he’s come … when I see him like … boom, boom, boom, boom, boom and I’m running … like he took it [one in the chest], still trying to give it to me though … like he was determined to kill me”.

[164] Brown clarified that “this [the Brampton homicide] happened after the first thing” [the Toronto homicide]. He also clarified the immediate circumstances surrounding the Brampton shooting, without further questioning from Steph. He stated, “the man just looking at me like this, and this guy just went, as he went like this, all I could do is … and then I’m trying to give it to him but you know, I’m trying to click but the jam of the first one …”. Steph asked, “the second one jammed”? Brown replied, “Yeah, the first one went off and then it jammed and then I see him still trying to … I see him go like this … I’m seeing him still pull out, I’m like, ‘okay I got to turn and run now, run’, so I’m running, boom, boom …” Brown repeated the word “boom” eight times. Steph asked, “how many do you think he … shot off at you” and Brown replied, “there were six … I can’t believe I never got hit”.

[165] Brown proceeded to describe the events immediately after the shooting, again without any further questioning by Steph. He stated, “there’s like a convenience store … You can get through the building this way … As I’m running over here, you know, I put my shit down, I put it right up side, like right by a tree, like I had to … get it off me … so I just have to run, put this down and took off my sweater, took off my shirt, took off certain shit, threw it in the garbage and then I just walked outside … I seen people running … I was there on the scene … outside with people, I’m like, ‘what happened’ … outside talking with people, acting like you know, ‘what the fuck happened’, and then the whole place got blocked off … I just had to walk out the place … I went to Alberta. Like right after that happened, I went to Edmonton”.

[166] Brown volunteered that he made one mistake (“Me, like a fucking idiot, me like a retard”). The mistake was that, “now my car is at the place”. He explained that “I parked in like the parking lot … outside the bar … I didn’t go back in the car … I never go back in the car … I left, ran, put the piece down by a tree”. Steph asked what happened to it and Brown replied, “I came back for that shit late in the night … police were out there … I said ‘nah, I have to go get my shit’, and I have to get this because my fingerprints … I went back late in the night, sneaked in while police are still doing their shit … someone tried to get it for me but they didn’t know where it was, so I had to go there myself, go get it, go get back my sweater and shirt and shit … I threw it in the garbage but I went back and got that back … I got everything back”. Steph asked, “where’s that piece now?” Brown replied, “I made one of my people, them hold it down, and then they said they brought it to their cousin’s house and then lost it … like it’s not around me”.

[167] Brown further described the circumstances surrounding the Brampton shooting, including his own state of mind. He stated that his own gun “was already … had it in my hand”, before the deceased drew his gun, but that “I would have been smoked … I would have got laid, I would have got filled up … The man took one [gunshot] and still giving it. That’s how … determined he was … I would have got killed … obviously I know the Most High forgives me”.

[168] Steph stated that the Brampton homicide is “super clear to me” but that “I’m a little unclear” about the Toronto homicide. She returned to the question of the Toronto accomplice’s identity, stating “you’re trying to protect” him. Brown insisted, “I can’t speak on nobody”. Steph also asked Brown repeatedly about whether it was the accomplice’s bullet or Brown’s bullet that killed the deceased. This led into a speculative discussion about the ballistics evidence and the fact that “they recovered the weapon that was involved in this”, as Brown put it. Brown repeatedly said he was “not sure” whether a bullet fired from his own gun or from the other gun was the immediate cause of death. He stated, “everything happened so fast, so I didn’t really see like, someone get hit … it was like bam, buh, buh, buh, bam, out of there … like there’s a bunch of cars … It was like a downtown type of area. Like imagine small street downtown, bunch of cars … I didn’t really know for sure, okay was it me, I didn’t know for sure it was him … I just know that it was one of us”. Brown expressed some skepticism about Steph’s plan to bring in a man from Haiti to confess to these homicides, asking “why would he come forward and even say he did this?” Steph reassured him, “you don’t have to worry about that … there’s tons and tons of reasons”. She then returned to the issue of the accomplice’s identity and said, “I need to know who the second person is”. Brown repeated, “I can’t bring his name, I can’t … I will put myself in this and take … whatever has to come to me because I’m a boss like that”. He stated that the other person was “someone dear to me”.

[169] Towards the end of this lengthy conversation, Brown clarified a number of details about the Toronto homicide. Steph asked whether the shots fired from the car came “from two different places” and Brown replied, “it’s only coming from one window”. When she asked, “only coming from the driver window” he replied, “Yeah”. She asked “what kind of gun … that you had” and he replied, “I think it was, like a Ruger or something, some shit”. Steph persisted in her questioning as to whose gun fired the fatal shot and Brown continued to state, “I don’t really know. Everything happened so quick. We just let shots off”.

[170] Brown’s demeanour throughout this lengthy conversation about the two homicides, to the extent that his demeanour can be inferred from the wiretap record, was animated. His tone of voice and manner of speaking fluctuated appropriately and appeared to be genuine. At times he was excited and speaking quickly and at other times he would drop his voice, almost to a whisper, when sharing a particularly confidential or sensitive part of the account. In short, he did not sound like a person who was hesitantly or insincerely or evasively making up a story.

[171] The discussion about the two homicides ended with Steph reassuring Brown that “this is going nowhere”. Brown reflected at some length on the changes in his life and on his relationship with Steph, stating: “I want to be in control of my life. I love life, I love my family. I want to learn more about my nationality … actually start becoming a real human being, instead of being this person who I was programmed to be … like I grew up around guns and … strippers … I’m like this is the first time I’m seeing this type of thing … I don’t want to have you [Steph] involved in this because I care about you, see if I didn’t care about you … I would shut the fuck up and play my part. But because, honestly, I really have love for you that I really had to say you know what”. He explained that he could have walked away from Steph, ignored her calls, and “slowly just die away but I don’t want to do that”. He repeated, “I would have slowly just took myself away but I have to show you more respect than that and I do want to communicate with you and in order for me to communicate with you, I have to let you know what’s going on”.

[172] The conversation ended when Brown’s girlfriend called once again. Brown stayed in the hotel room this time and spoke to her at some length, reassuring her that “everything’s blessed, everything is cool … it’s not that serious … we gotta talk in person … you’re going to see me tomorrow”. After this phone call ended, Steph left the room, stating that she had to “make a couple calls”. In fact, she went to meet with her handlers. It was 10:35 p.m.

[173] Delroy returned to the room and spent some time alone with Brown. The television in the hotel room had a connection to the internet and Brown played two YouTube videos about Moorish culture. The format in both videos was a screen shot of one man giving a lecture or talk about Moorish history and about living in America as a Moorish person. The two videos lasted about 20 minutes and 45 minutes. Brown was excited to show the videos to Delroy. Eventually Steph returned to the room and Delroy left. It was 11:21 p.m.

[174] Steph then had one final conversation with Brown about the two homicides. She began by telling Brown that there was a “change of plans” because Amy was “gonna go out with our girl”. In addition, she said that the man from Haiti was “already on a plane here” and so she wanted Brown to stay at “a hotel closer to home” for the next week, where his girlfriend could visit and “you can get your stuff”. She said that Delroy would “drive you back”, that she had “made some of the important calls”, and that “all of the right people are already working at it”. Brown replied, “I’m not used to this, so this is like crazy to even hear this, like I’m just like wow”.

[175] Steph then returned to the subject of the homicides. She stated, once again, that “the Brampton thing … it’s clear” but that “the drive by [the Toronto homicide] … it’s not a hundred percent”. She stressed that “for someone to come in for two fucking murders … it’s gotta be fucking clear”. She expressed sympathy for Brown’s difficulty in talking about the killing of an “innocent man”. She stated, “I’m doing this because I love you” but “I need to know … was there a second shooter?” Brown replied, “There was … there was … there’s more mine going on than anybody … it was both … it was probably me”. This answer did not satisfy Steph and she pressed Brown for a further admission, using a very leading question. She stated, “I’m getting someone to come and fucking take that hit for you. To say that, I don’t want it to be ‘it was probably me’, ‘it may have been me’, you know like it’s gotta be ‘it was me’”. She added, “I love you man” as a further inducement. Steph’s phone rang at this point (ostensibly a call from Amy). Brown began to express concerns about “hackers” and eavesdropping. He said, “I just don’t trust … I don’t trust phones … I don’t trust fucking nothing that has to do with electronics”. Brown then said, “You know if once real quiet like, it was me”. He said this in a whisper and gestured with his thumb up. Steph replied, “That’s all I wanted to hear”. However, Brown then continued, “it was me, it was me, but at the same time I don’t know if it could have been him too, because we’re going at it … it’s most likely me … it was mostly me”.

[176] A lengthy discussion ensued about facing reality, about forgiveness, and about Brown never doing anything like this again (“never again … none of that shit again”). Steph then suggested that Brown’s account of two gunmen firing out of the driver’s side window “didn’t make sense” because the second gunman in the passenger seat would be in such close proximity to the driver. Brown disagreed with her, stating “most definitely not, no, it easily could be done like that … I go off bam, he then did a one-two … wasn’t like he come up behind … but definitely it was two people”. Once again, Steph did not seem to be satisfied with this answer. She asked, “You think that that’s enough to have someone come forward and take the hit for you?” Brown replied, “that’s really what it was though, really … I would not lie about that after I told you”. Steph concluded the discussion about the Toronto homicide with another leading question, “so you believe it was you, that’s all I needed to know?” Brown replied, “Mm hmm”.

[177] Steph then turned to the Brampton homicide. She asked about the events that preceded the shooting, stating “your cousin calls you and says to you like, we gotta go do a robbery. Is that what happened?” Brown replied, “Yeah, that’s how, that’s how I even went down there to do anything and then he switched up on us … You think I would drive, you think I would go, to go do something with the same car that was in this, with the same fucking firearm? Never ever put myself in that position like that. I would never do that”. Steph asked a follow-up question, clarifying Brown’s apparent reference to having “the same firearm you’re saying as the Toronto?” Brown replied, “my brethren had the one from Toronto. He was holding that down”. Steph asked, “which gun is that?” Brown replied, “That’s the one for the Toronto one, that he was holding … The one that they found … At the house … It was a Ruger”. Steph then asked about the kind of gun used in the Brampton homicide. Brown replied, “that one’s gone … it’s a deuce deuce, that’s all I know. I know the calibre … I wonder if it’s a Smith and Wesson, I don’t know … I just know it’s a, it holds twenty-two calibre”.

[178] Steph returned to the events that led up to the Brampton homicide and asked whether Brown’s cousin “tricks you” by saying “it’s a robbery”. Brown agreed stating, “Yeah, calls me, says ‘yow I got an eat that we can do’ … you don’t have to do anything … something simple. When I go into the house his gun’s out, hyping up, gun in his hand, going around, different people”. Brown further explained that his cousin was at the house of a friend, after the phone call when Brown came over and met up with his cousin: “I walk in the place, he’s hype … there’s a white guy there … and one of his friends. And he’s hyping up … We went to that house for one second and we came out … I didn’t really hear what he’s saying but he’s hyping up and he’s talking about whatever happened at the bar. And then now, when we come in there … then he wants to, ‘let’s go and dah-dah-dah-dah, let’s go right now’, and he’s talking all this in front of people”. Brown tried to discourage Steph from giving this part of his account to the man coming from Haiti because “that makes it look bad … then they would have a motive … Which is, my cousin got into an argument with somebody. He calls some people to come over and deal with the situation … It’s like yow, the reason why you’re even there in the first place is because they’re coming to go do something. So that’s the motive … that whole motive … can’t even be there”. Steph appeared to understand Brown’s point as she said, “I’ll come up with something, that can’t come out because that’s basically linking your cousin”. Brown replied, “Yeah, linking all of them to why they even went there in the first place”.

[179] Brown continued his account of the chain of events leading up to the Brampton homicide, stating “so he’s at the house, we went to the house … to go see him there, and then from the house we went to go to the bar”. Steph asked whether Brown actually thought “it was going to be a robbery”. Brown replied, “Yeah, I thought we were just gonna go in there fucking … easy shit … And get the fuck out. I didn’t know now we have to go to bar and fucking all this issue. I thought it was one guy. We go over there, scare him, get his shit and have money in our pocket and we go about our business”. Brown again described the circumstances surrounding the shooting, including his own state of mind, stating “That guy was moving hype … they think they run that bar … Very aggressive. The guy didn’t even say, ‘yo pull it out’, he just looked at him … the guy just looked at him and that guy was going to kill me … The guy that I was talking to looked at that guy that had the thing … he didn’t even have to say, ‘yow this guy has a problem with me’ … One look”. Brown repeated his account of the events immediately preceding the shooting, when he was outside the bar. He stated, “after like a minute of me talking to this guy, I seen the whole crew come outside … I’m already dealing with this guy … The guy kind of seen that me and him were arguing so he just looked at him … If it wasn’t for me having this [gun], me being prepared already”. This ended the further discussion about the Brampton homicide.

[180] At the end of this final discussion about the Brampton homicide, Steph returned to her efforts to identify the second gunman in the Toronto homicide, expressing concern to Brown that this person could talk and undermine their plan. Brown assured her, “I vouch it, they ain’t speaking on this … It is someone, it is people super closer to me”. Steph continued to press Brown on this issue, stating “it’s one … thing that you’re keeping from me and I’m having a hard time with it because I’m feeling like it might be a threat to me”. She asked whether the second gunman was Brown’s uncle. Brown replied, “No, no, no … He’s a drug dealer, he sells crack … definitely not him … but it’s people on that level … that are close to me on that level … the only way that these people can get involved in it, if I bring them up in this. It’s that simple”. Steph continued to plead with Brown, at some length, to tell her the identity of his accomplice. She promised that “this is staying between you and me”. Brown resisted all of these efforts, even though he appeared to appreciate that the plan to have the man from Haiti “take the hit” for him might be contingent on Brown providing the accomplice’s name. He stated, “there’s two people that was in the car doing that … There was two people but no one knows about these two people being in that car … obviously the person who sent that location, they probably know who was in that car … that kid, the third guy, can’t even be brought up … there’s three people including me, third guy can’t even be brought up. The second guy can’t even be brought up either”. Steph was not happy with Brown’s insistence that the two accomplices should be kept out of the account to be given to the man from Haiti. She stated, “You’re killing me man”. Brown would not change his position, stating that “they’re solid” and that he would not identify them: “I don’t wanna say name, I don’t even wanna bring up nothing that has to identify them or anything … that shouldn’t make you feel insecure if you’re gonna do what you’re gonna do, because they’re solid … Therefore they stay out of that … if you’re gonna go do something right now, they ain’t gonna know”. I have underlined these phrases, beginning with “if”, because they appear to indicate Brown’s view that the plan to have the man from Haiti “take the hit” might be conditional or somewhat uncertain.

[181] Steph concluded by confirming Brown’s account that there were two shooters in the front seat, leaving aside any third person in the back seat. She asked, “Both shooting, right? … I wanna make sure, like it’s different if someone’s silent in the back … one two like you said”. Brown replied, “Me go and then he does his thing, I do my thing and he does his thing. We drive off”. Steph said, “I’m gonna have to work with what you’re giving me”.

[182] Steph’s meeting with Brown ended when Delroy returned to the hotel room. It was 12:05 a.m. on October 25, 2017. A few minutes later, Delroy and Brown got in the car and drove back towards Toronto, ostensibly to take Brown to a hotel closer to his home. They did not discuss the homicides during this drive. At around 2:00 a.m., they pulled off the 401 highway at Markham, ostensibly to stop for food. At this point Brown was arrested.

(vii) The defence evidence of Craig Zeeh

[183] The defence filed a waiver of solicitor and client privilege in relation to Brown’s four sets of charges that were outstanding at the time of the police undercover operation (Exhibit 42). His lawyer in relation to those matters, Craig Zeeh, then testified on the Motion. The four sets of charges are summarized above at paras. 37 and 64.

[184] Mr. Zeeh is a young lawyer, called to the bar in 2016. Brown called him about his outstanding matters in March 2017 and Mr. Zeeh agreed to act after their first meeting in April 2017. At this point, Brown had two outstanding sets of charges. The police undercover operation was already underway, although Brown had only begun to meet with Steph in April 2017. Mr. Zeeh’s impression of Brown at this stage was that he was bright, articulate, and strong-willed. Mr. Zeeh had no concerns about his client’s mental health. He testified that, in his view, Brown was a “very bright young man”.

[185] On June 14, 2017, Brown was arrested on two further sets of outstanding charges. Mr. Zeeh conducted the bail hearing on June 15, 2017 and Brown was released on “house arrest”, with his girlfriend and her mother as sureties.

[186] One of Brown’s outstanding charges (a January 13, 2017 Information alleging possession of crack cocaine for the purpose of trafficking) involved appearances in Midland. All of the other charges were in Barrie. On August 2, 2017, Mr. Zeeh appeared on the Midland charge for a judicial pre-trial (J.P.T.). Brown attended court with his girlfriend and child. He was dressed entirely in white. He informed Mr. Zeeh about his recent interest in Moorish American history and culture. He had previously dressed in black and had not mentioned this Moorish interest. He also advised Mr. Zeeh of his name change. He told Mr. Zeeh that he wanted to address the Court about his name change and the new name (Ahab Abdul Rafay Bey) was then noted on the Information. Mr. Zeeh agreed that it took some courage for Brown to address the Court in this manner. Mr. Zeeh did not want his client to raise the name change in court but Brown insisted. He was becoming increasingly strong-willed, over-riding counsel’s objections on this occasion.

[187] At some point after this August 2, 2017 court appearance in Midland, Mr. Zeeh felt that his relationship with his client began to deteriorate. It became harder to reach Brown on the telephone and when they did speak to eachother it was much more difficult to discuss the real issues in Brown’s cases and to get instructions. Brown was very focused on his interest in Moorish American issues and he wanted to raise these issues, as matters going to the court’s jurisdiction in relation to the criminal charges. Mr. Zeeh was unwilling to take this approach to the defence strategy. Mr. Zeeh also took the view that Brown had “no defence” to the more recent charges of failing to appear and possession of cocaine for the purpose of trafficking, laid in Barrie in June 2017. He told Brown that he had “no chance” at trial on these charges. He was trying to get instructions from Brown to allow counsel to negotiate a guilty plea and a lesser jail sentence. Brown would not give Mr. Zeeh these instructions. The crack cocaine charge in Midland was a different matter. There was a viable Charter issue in that case, Mr. Zeeh set it down for trial, and he eventually succeeded in getting the charge dismissed.

[188] The difficulties between Mr. Zeeh and his client came to a head on October 23, 2017 (the day before Brown’s trip to Kingston). They had a 9 minute telephone conversation in which Brown advised that he was going to represent himself at trial. Nevertheless, he wanted Mr. Zeeh to keep working on his files. Mr. Zeeh told Brown that he would not continue to act in these circumstances and would be getting off the record. Brown stated that his reasons for wanting to represent himself were two-fold: he wanted to raise the jurisdictional issue that counsel would not raise, based on his Moorish American beliefs; and he said that “if he was going down, he would do it on his own” (in reference to Mr. Zeeh’s advice that there was “no defence” on the recent June 2017 charges in Barrie).

[189] Mr. Zeeh testified that, in his view, Brown was “losing touch with reality”. He had previously acted for clients where he had concerns about their mental status from the beginning. In Brown’s case there were no such concerns in the beginning. Rather it was Brown’s “marked change in attitude”, once he became focused on his Moorish American beliefs, that caused Mr. Zeeh to become concerned. He felt that Brown became more angry and aggressive and much more strong-willed, in rejecting his lawyer’s advice. Mr. Zeeh felt that Brown’s behaviour and mental status had changed.

[190] Mr. Zeeh agreed, in cross-examination, that he and his office continued to act for Brown throughout the above period, between the August 2, 2017 court appearance in Midland and the October 23, 2017 phone call. There were five separate court appearances during this period, including setting dates for trial, conducting J.P.T.s, and conducting a sentencing hearing on the weapons charge. Mr. Zeeh took instructions from Brown on these matters, never raised any mental health or fitness issues, never sought a psychiatric assessment, and never got off the record.

[191] Two days after the October 23, 2017 phone call, when Mr. Zeeh advised Brown that he would no longer act, the two murder charges now before the Court were laid. Mr. Zeeh attended at Brown’s first appearances in Toronto (on October 25, 2017) and in Brampton (on October 26, 2017). He and his client had a lengthy phone call and a good meeting in the cells and resolved their differences. Mr. Zeeh agreed to act for Brown on the murder charges and he proceeded to conduct both preliminary inquiries. He also continued to act on the Barrie and Midland charges. As noted above, the Midland crack cocaine charge was dismissed after a successful Charter Motion. Brown eventually pleaded guilty to the Barrie cocaine charge. Once again, there were no difficulties in taking instructions from Brown in relation to these matters, from October 25, 2017 up until the present. Brown listened to advice and was articulate in giving instructions. No mental health issues or concerns were raised and there were no psychiatric assessments. Brown did not raise the Moorish American issue again and Mr. Zeeh never looked into it. Mr. Zeeh agreed, in cross-examination, that ideologies and beliefs, especially religious beliefs, do not always accord with scientific or historical fact and that these kinds of disagreements do not equate with mental illness.

C. ANALYSIS

(i) Introduction

[192] The basic framework for analysing the admissibility of a confession, obtained after a “Mr. Big operation”, has already been set out above at para. 4. It involves balancing the probative value of the confession against its prejudicial effect, as explained in the leading case of R. v. Hart, supra.

[193] In addition to the guidance provided by the Hart case, there are now a considerable number of post-Hart cases, including a number of appellate authorities. The great majority of these cases have resulted in decisions admitting the confessions into evidence, whereas in the Hart case itself the confession was excluded.

[194] The leading post-Hart decision from the Ontario Court of Appeal, R. v. Kelly, 2017 ONCA 621 at para. 25, described the “classic” features of a “Mr. Big Operation” that led to the exclusion of the confession in Hart:

In Hart, the Supreme Court was dealing with a classic Mr. Big operation: undercover officers befriend the suspect as members of a criminal organization run by their boss, Mr. Big. The suspect is recruited to work for the organization, carrying out simple, apparently illegal tasks. He is included in the lavish lifestyle and camaraderie of the group, but is told that his ultimate acceptance depends on Mr. Big, and that honesty, trust and loyalty are required. The organization operates within an aura of violence, perpetrated against any member who betrays the trust. The suspect is exposed to simulated acts of violence against “rats”. The operation culminates with the job interview with Mr. Big where Mr. Big demands a confession to a crime he has learned the individual is suspected of: the confession will be proof of the suspect’s trustworthiness. During the interview, denials are dismissed as lies. [Emphasis added]

[195] The post-Hart cases, where confessions have been admitted, have tended to move away from the “classic” features that are emphasized above, namely: use of violence against troublesome members of the organization; a “job interview” with a Mr. Big figure; accusatory demands for a confession that assume the target’s guilt; and dismissal of any denials as lies. None of these features were present in the case before me on this Motion. In addition, many of the post-Hart cases where confessions have been admitted have tended to include the following features that enhance reliability and that were not present in Hart: “street smart” targets who are not isolated and vulnerable and who are already actively involved in a criminal lifestyle; the use of “stimulation techniques”, leading the target to believe that he may be arrested and leading him to actively and voluntarily confide in and seek assistance from the organization; insistence on the truth, without presuming guilt, rather than insistence on a confession; and detailed, consistent, and corroborated confessions, rather than inconsistent, ambiguous, and unsupported confessions. All of these features that tend to enhance reliability were present in the case before me on this Motion. See: R. v. Mack (2014), 2014 SCC 58, 315 C.C.C. (3d) 315 (S.C.C.); R. v. Kelly, supra; R. v. Lee, 2018 ONSC 308; R. v. MacDonald, 2018 ONSC 1846; R. v. Omar, 2016 ONSC 4065; R. v. Campeau (2015), 2015 ABCA 210, 325 C.C.C. (3d) 141 (Alta. C.A.); R. v. Ledesma (2017), 2017 ABCA 131, 348 C.C.C. (3d) 216 (Alta. C.A.); R. v. Yakimchuk (2017), 2017 ABCA 101, 352 C.C.C. (3d) 434 (Alta. C.A.); R. v. Johnston (2016), 2016 BCCA 3, 26 C.R. (7th) 147 (B.C.C.A.); R. v. West (2015), 2015 BCCA 379, 329 C.C.C. (3d) 97 (B.C.C.A.); R. v. M.M., 2015 ABQB 692.

[196] I will analyse the particular features of the undercover operation in the present case under the two broad Hart criteria, namely, probative value and prejudicial effect.

(ii) The probative value of Brown’s confessions

[197] In R. v. Hart, supra at paras. 94-105, the Court set out the proper approach to analysing the probative value of a “Mr. Big” confession”:

Undoubtedly, weighing evidence in this way thrusts trial judges into a domain that is typically reserved for the jury. The jury, as the trier of fact, is ultimately responsible for weighing evidence and drawing conclusions from it. The overlap of roles cannot be avoided, but this is not problematic as long as the respective functions of the trial judge, as gatekeepers, and the jury, as finder of fact, are fundamentally respected. In conducting this weighing exercise, the trial judge is only deciding the threshold question of “whether the evidence is worthy of being heard by the jury” and not “the ultimate question of whether the evidence should be accepted and acted upon” (Abbey, at para. 89; see also Paciocco and Stuesser, at p. 38).

Returning to Mr. Big confessions, their probative value derives from their reliability. A confession provides powerful evidence of guilt, but only if it is true. A confession of questionable reliability carries less probative force, and in deciding whether the probative value of a Mr. Big confession outweighs the prejudicial effect of the character evidence that accompanies it, trial judges must examine its reliability.

What factors are relevant in assessing the reliability of a Mr. Big confession? A parallel can perhaps be drawn between the assessment of “threshold reliability” that occurs under the principled approach to hearsay …

… the factors used to demonstrate the trustworthiness of a hearsay statement are apposite. In assessing the trustworthiness of a hearsay statement, courts look to the circumstances in which the statement was made, and whether there is any confirmatory evidence (Khelawon, at paras. 62 and 100).

Confessions derive their persuasive force from the fact that they are against the accused’s self-interest. People do not normally confess to crimes they have not committed (Hodgson, at para. 60). But the circumstances in which Mr. Big confessions are elicited can undermine that supposition. Thus, the first step in assessing the reliability of a Mr. Big confession is to examine those circumstances and assess the extent to which they call into question the reliability of the confession. 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.

Special note should be taken of the mental health and age of the accused. In the United States, where empirical data on false confessions is more plentiful, researchers have found that those with mental illnesses or disabilities, and youth, present a much greater risk for falsely confessing (Garrett, at p. 1064). A confession arising from a Mr. Big operation that comes from a young person or someone suffering from a mental illness or disability will raise greater reliability concerns.

In listing these factors, I do not mean to suggest that trial judges are to consider them mechanically and check a box when they apply. That is not the purpose of the exercise. Instead, trial judges must examine all the circumstances leading to and surrounding the making of the confessions – with these factors in mind – and assess whether and to what extent the reliability of the confession is called into doubt.

After considering the circumstances in which the confession was made, the court should look to the confession itself for markers of reliability. Trial judges should consider the level of detail contained in the confession, whether it leads to the discovery of additional evidence, whether it identifies any elements of the crime that had not been made public (e.g., the murder weapon), or whether it accurately describes mundane details of the crime the accused would not likely have known had he not committed it (e.g., the presence or absence of particular objects at the crime scene). Confirmatory evidence is not a hard and fast requirement, but where it exists, it can provide a powerful guarantee of reliability. The greater the concerns raised by the circumstances in which the confession was made, the more important it will be to find markers of reliability in the confession itself or the surrounding evidence.

[198] Applying the above methodology to the present case, the following nine factors should be noted concerning the circumstances in which the confessions were made:

• First, Brown was 24 years old and he was not vulnerable or isolated in any sense. He was intelligent, confident, and determined. He was close to his family and to a small number of friends, he was interested in studying and learning, he was capable of self-analysis and reflection, he was motivated to improve himself, and he had a certain energy and love for life. There was no suggestion of some kind of weak dependency on Steph. Indeed, the impression that emerges from the wiretaps is that he was an independent young adult with a number of interests in his life. Brown’s self-assured and self-reliant personality was apparent, immediately prior to the confession, as summarized at para. 145 above (“I don’t panic, I don’t fear … I know how to handle pressure”);
• Second, Brown was not enticed into a criminal lifestyle that was new or intimidating to him. He was already a relatively sophisticated criminal with experience and success in both prostitution and cocaine trafficking. As Ms. Craig fairly conceded in argument, Brown was very “street smart”. The “high end” level of Steph’s business operation was new to Brown but he appeared to be comfortable in his role in this organization. He repeatedly expressed confidence in his abilities, he readily took on the tasks that were assigned to him, and he enthusiastically and independently offered his advice and input (as set out in many of the wiretapped conversations summarized above);
• Third, his interest in Moorish American beliefs and culture is not indicative of a mental health problem. The inference that emerges from the record before me is that his particular interpretation of Moorish history was part of a genuinely held set of beliefs that is shared and disseminated, both on the internet and through a “temple” that Brown was attending. It was inter-twined with certain apparently Muslim religious beliefs and practices that Brown had adopted. It was also inter-twined with Brown’s need to find a defence to the new criminal charges laid in Barrie in June 2017 and his strong desire to avoid a jail sentence. Mr. Zeeh’s assessment, that his client changed dramatically and was “losing touch with reality”, was not persuasive. It is belied by the wiretap evidence which shows no such thing, by the assessment of all the police officers who inter-acted with Brown, and by Mr. Zeeh’s own conduct of Brown’s various cases. Mr. Zeeh acted for Brown throughout, that is, before, during, and after the period when Brown was allegedly “losing touch with reality”. Mr. Zeeh took instructions from his client during this entire period without ever raising any mental health concerns or ever seeking a psychiatric assessment;
• Fourth, the undercover operation was lengthy, extending for about eight and a half months from February to October 2017. However, it was interrupted by a significant development in June 2017, when Brown was arrested on new charges in Barrie and was placed on a “house arrest” bail Order. In addition, Brown was preoccupied with a sentencing hearing set for August 28, 2018 and he was relieved of this concern only once he actually received a non-custodial sentence. These developments undoubtedly restricted and delayed the undercover officers’ ability to establish a working relationship with Brown and to then develop the degree of trust that could lead to a confession. The police eventually had to resort to s. 25.1 of the Criminal Code, in order to get Brown away from his “house arrest” residence and get him working actively for Steph’s organization;
• Fifth, the number of actual meetings between Brown and the undercover officers (leaving aside phone contact) during the above eight and a half month period was 27. During the first four meetings in February 2017, the police successfully made contact with Brown through Robbie’s purchase of Brown’s car. However, they appeared to lose Brown’s interest during the next six week period. They made contact again in April 2017, by seeking to purchase cocaine from Brown. This led to nine meetings with Steph, between April and June 2017, in which she and Brown established a strong rapport based on their mutual interests in vegan diet, health and exercise, and prostitution. This rapport-building stage of the operation was interrupted by Brown’s arrest and his scheduled sentencing hearing, as explained above. There were 14 further meetings with the undercover officers between June and October 2017, including eight meetings with Steph. What is noteworthy about the number of meetings between Brown and the undercover officers, during the eight and a half month period of the operation, is that they never came to dominate his life. He was often busy and unavailable, either with his drug trafficking business or with his obligations to family, friends, and associates or because he was constrained and preoccupied by his outstanding criminal charges. In addition, Steph was often unavailable because of her ostensible travels. In other words, the undercover operation never overwhelmed or took over Brown’s life;
• Sixth, the relationship between Brown and the undercover officers was never characterized by threats or violence. On the contrary, Brown and Steph developed a strong rapport because they both agreed on and stressed the importance of love, respect, trust, and family. At a late stage in the relationship, after the important October 17, 2017 meeting at Hockley Valley Resort, Brown emphasized these qualities as summarized above at para. 110 (“No pressure and she still loves you … not used to this type of love”). There were a number of references during Brown’s meetings with Steph to incidents of violence or threatened violence involving members of Steph’s organization (for example, the threat to one of the Russian “girls” who got pregnant, the “roughing up” of the boyfriend of another one of the “girls”, the threat made to Sarah in a car in Brown’s presence, Delroy’s “problem” involving an apparent homicide when a client had robbed and beaten one of the “girls”). However, these were all verbal accounts of incidents that never occurred in Brown’s presence, with the one exception of the threat to Sarah (which was never carried out). More importantly, none of the violence or threatened violence was ever directed at Brown himself. There was not even a hint that he could be the target of violence from the organization. Furthermore, after Brown heard the account about “roughing up” the boyfriend, Robbie was brought back into the next meeting to make it clear to Brown that the organization did not condone this kind of violence;
• Seventh, the financial benefits given to Brown were modest. He received $1,350 in cash payments for the various tasks he carried out for the organization, as well as two gifts (running shoes that cost $288 and two jumpers for his daughter’s birthday that cost $57). In addition, he was paid $400 for his car and $400 for two small cocaine sales. Finally, he had ten meals with the undercover officers which they paid for. However, I agree with Ms. Craig that the main financial and psychological inducements offered to Brown were not any payments that he actually received, which were modest compared to his own independent income and savings from his drug trafficking business. The real inducement was being given a position in a “high end” business organization with the anticipation of unspecified future remuneration. That position held out the prospect of a new and better career for Brown, within a loving and supportive organization, far away from the troubled and dangerous background in which he had grown up. It is the effect of this kind of inducement, in the context of all the other circumstances, that must be assessed when determining the reliability of the confession;
• Eighth, the “stimulation technique” that led to the confession was two-fold: first, leading Brown to believe that he was about to be questioned by the police because he was a suspect in the two homicides; and second, leading Brown to believe that Steph’s organization could help him escape any charges relating to these homicides by bringing in a man from Haiti “to take the hit”. Steph repeatedly made it clear to Brown that she needed him to tell the truth, including providing her with all the details about the two homicides, so that she could successfully “prep” and “train” the man from Haiti who was going “to take the hit”. Brown undoubtedly understood this simple and practical rationale for telling Steph the truth. The success of this plan to obstruct justice depended on Brown providing a credible and reliable account of the two homicides. Steph also made it clear to Brown that if he was not involved in the homicides, “That’s a whole other story”;
• Ninth, Steph’s conduct during the questioning that elicited the confessions was exemplary for the most part. Indeed, it was Brown himself and not Steph who initially raised the subject of the homicides. He then went on to volunteer or initiate discussion about a significant amount of the incriminating information, with little further questioning or prompting from Steph. When she did ask questions, they were mostly open-ended non-leading questions, or they were questions that sought to follow up or clarify one of Brown’s own statements. The only exception to this pattern of appropriate questioning was in the final conversation that began at 11:21 p.m. on October 24, 2017, summarized above at paras. 175-7 and 181-2. At this late stage, Steph began to ask very leading questions. She went on to indicate that she did not accept one important part of Brown’s account and to assert that he was withholding essential information. The implication of this entire line of questioning was that Steph wanted an admission from Brown that he was the sole gunman in the Toronto homicide, or that it was his shots alone that caused death and not any shots fired by the second gunman. She also insisted that he identify the second gunman, if there was a second gunman. Much of this questioning was improper and it was unnecessary. However, what is significant is that Brown stood up to Steph and resisted her attempts to coerce a different or better account out of him. He continued, in substance, to give the same consistent account that he had previously provided, namely: that there were definitely two gunmen firing out of the same driver’s side window; that he could not say for sure which gunman fired the bullet that directly caused death, although Brown admitted that he was the more active of the two gunmen; and that he adamantly refused to identify the second gunman or the other young accomplice who was in the back seat. Brown took this strong-willed and independent position in spite of knowing that Steph wanted more from him and in spite of the risk that she might not carry through with the plan to get the man from Haiti to “take the hit”.

[199] In my view, the above nine circumstances strongly infer that the confessions were reliable. The main area of concern revolves around the fact that Brown was given an attractive position in Steph’s “high end” organization; the issue is whether his undoubted desire to maintain this new career path was likely to induce a false confession to the two homicides. In this regard, it should be noted that Brown’s position or positions in Steph’s organization had already been given to him and he had already been promoted (at the May 26, June 6, and October 17, 2017 meetings). There was no suggestion that Brown had to confess in order to keep this new position or positions in the organization. What induced the confession was Brown’s potential criminal jeopardy, and the prospect of escaping from that jeopardy, which was an understandable concern for Brown given the not insignificant body of circumstantial evidence connecting him to the two homicides. In order to successfully achieve this goal, Brown understood the importance of telling the truth. Most importantly, it is clear that Brown’s will was never overborne by Steph. He was an intelligent, confident, and strong-willed individual who had stood up to his own lawyer and who then stood up to Steph at the very end of the undercover operation when she pressed him to change or add to an important part of his account. Had he changed his account at this late stage, under pressure from Steph, I would have had concerns about his reliability. In conclusion at this stage of the Hart probative value analysis, I am satisfied that the circumstances surrounding the making of the confessions support their reliability. See: R. v. Hart, supra at para. 115; R. v. Oickle (2000), 2000 SCC 38, 147 C.C.C. (3d) 321 at para. 57 (S.C.C.); R. v. Yakimchuk, supra at paras. 63 and 67-9.

[200] The second part of the Hart probative value analysis, set out above, focuses on the confession itself. In this regard, the following six factors should be noted:

• First, the confessions are extremely detailed. Brown went on at length describing the background motivating events, the immediate surrounding circumstances, his own state of mind, various conversations at the time of the offences, their specific locations, the guns that were used, and the subsequent or “after the fact” events in relation to both homicides. In other words, he provided lengthy and thorough narratives about both homicides, aside from a few minor details that he understandably could not recall;
• Second, Brown provided new information that was previously unknown to the police, in particular, the motives and background events leading up to both homicides, the number of persons and number of gunmen in the car during the Toronto homicide, the fact that he fired his gun once from somewhere underneath his clothing and it then jammed during the Brampton homicide, and the fact that he hid this gun and certain clothing after the Brampton homicide and later retrieved these items and disposed of them. This new information helped to explain some of the known facts about the two homicides, for example, why the car apparently passed the target location on the Danforth four times, why there were missing shell casings in the Danforth shooting, why no shell casing was found from the gun used in the Brampton homicide, why that gun was only fired once in the face of multiple gunshots from the deceased, and why that gun was never found;
• Third, the fact that the confessions were all tape recorded allows the trier of fact to listen to and assess Brown’s tone of voice and manner of speaking. For the reasons set out above at para. 171, this factor tends to support the reliability of the confessions;
• Fourth, the confessions are internally consistent. Steph returned to the two homicides on a number of separate occasions and Brown’s various accounts remained substantially consistent, including at the very end when Steph pressed him to change or make additions to one important part of his account and he resisted;
• Fifth, Brown’s account of the Toronto homicide was highly incriminating, essentially admitting that it was a planned and premeditated attack on a group of individuals that resulted in the death of an entirely innocent person who was simply “at the wrong place at the wrong time”. On the other hand, Brown’s account of the Brampton homicide was substantially exculpatory. He admitted that his cousin had a grievance with a particular man who he directed Brown to approach outside the bar. Brown spoke to this man