COURT FILE NO.: CR-19-45

DATE: 20220722

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MICHAEL WENTWORTH (MICHAEL VERNEY)

Respondent

Fraser Kelly and Holly Chiavetti, for the Crown

John Kaldas and Raymond Wong, for the Respondent

HEARD: February 14 and 22-25, 2022

Restriction on publication: A publication ban has been imposed under subsections 486.31(1) and 486.5(1) of the Criminal Code, R.S.C. 1985, c. C-46 restricting the publication, broadcasting or transmission in any way of evidence that could identify any undercover police officers or the police agent witness.

This publication ban applies indefinitely unless otherwise ordered.

LACELLE j.

Introduction

[1] The accused Michael Wentworth (a.k.a Michael Verney) is alleged to have committed a number of offences between the years 1995 and 2001. The offences include three homicides, a bank robbery, and a car bombing. All but the car bombing are alleged to have occurred in the area of Kingston, Ontario, where the accused was living.

[2] Police suspected the accused’s involvement in two of the alleged offences – an alleged homicide involving an associate of Mr. Wentworth’s named Richard Kimball, as well as the robbery of a TD bank in Kingston. A friend of the accused known as “Barney” told the police in 1996 that the accused had told him he had killed Mr. Kimball. Barney also implicated the accused in the TD bank robbery. While police investigated at the time, nothing came of the investigation.

[3] Years later, in 2018, the police approached Barney and secured his cooperation as a police agent (the “PA”) in their renewed investigation relating to Mr. Kimball and the TD bank robbery. In the course of that investigation, an undercover officer also became involved (the “UC”) and befriended the accused. The accused had interactions with the police agent and undercover officer over a period of approximately nine months, until his arrest in February of 2019.

[4] During the course of the investigation, the accused made statements about his involvement in the killing of Richard Kimball and the TD bank robbery. He also made utterances that implicated him in other criminal offences, including two additional homicides and a car bombing in Toronto. He now stands trial on all these alleged offences.

[5] In this pre-trial application, the Crown seeks a ruling that certain of the accused’s statements made during the undercover investigation are admissible in its case in chief. While the Crown says this undercover operation was not a “Mr. Big” operation and the rule in R. v. Hart, 2014 SCC 52, [2014] S.C.R. 544, does not apply, it further submits that the evidence is admissible regardless of how the admissibility analysis is structured. The defence says this case did involve a Mr. Big operation, the rule in Hart does apply, and, applying that legal framework, this presumptively inadmissible evidence should be excluded.

[6] I have concluded that the statements identified by the Crown may be admitted at trial. These are my reasons for that decision.

[7] In brief, I have concluded as follows:

1. The Hart analysis applies;

2. The Crown has proved the threshold reliability of the statements. The circumstances in which the statements were made do not raise reliability concerns. In any event, the evidence would be admissible having regard to the details given in the statements and the confirmatory evidence that is available to the Crown.

3. The probative value of the statements outweighs the prejudicial effect of adducing the evidence in this judge alone trial.

4. The statements were not secured through any abuse of process (considered in accordance with the reinvigorated standard mandated in Hart, at para. 114). The statements were not coerced. Admitting the statements would neither damage the integrity of the administration of justice nor compromise Mr. Wentworth’s fair trial rights.

[8] Because this case involves five different offences, many utterances by the accused over a period of many months, and some issues of law about which the parties disagree, these reasons are lengthy. Accordingly, the reader may be assisted by the following outline of the components of my reasons:

PART 1 – Overview of the evidence …page 3

PART 2 – Does the Hart rule apply? …page 14

PART 3 – The First Prong of the Hart analysis - Probative Value and Prejudicial Effect …page 20

I. The probative value of the evidence …page 20

1. The circumstances under which the statements were made …page 20

2. The markers of reliability – detail and confirmatory evidence …page 38

i. Henrietta Knight …page 44

ii. The robbery of the TD bank …page 50

iii. Richard Kimball …page 53

iv. The Toronto vehicle bombing …page 58

v. Stephen St. Denis …page 61

3. Probative value vs. prejudicial effect …page 64

PART 4 – The Second Prong of the Hart analysis - Abuse of Process …page 65

PART 5 – Conclusion …page 70

PART 1 - Overview of the evidence

The alleged offences

[9] To begin, it is helpful to have an overview of the alleged offences and some information about the Crown’s evidence and theories in relation to each offence. The alleged offences are described below in their chronological order.

Manslaughter – victim: Henrietta Knight [count 1]

[10] Henrietta Knight was a 92-year-old woman who lived alone in a small house in Kingston. On June 2, 1995, the accused is alleged to have entered her home to rob her. The Crown alleges the accused entered the home with the intention of committing a robbery, bound Ms. Knight to a chair and beat her about the head. She survived the attack and managed to make her way to a neighbour’s house.

[11] Three days after the home invasion, and after her initial release from hospital, Ms. Knight provided police with a sworn video statement.

[12] On July 11, 1995, Ms. Knight returned to hospital and a CT scan was done, which showed bleeding on her brain. Ms. Knight remained in hospital and subsequently developed other medical complications. She died on November 4, 1995. The post-mortem report indicates that the cause of death was “complications of subdural hemorrhage from Blunt Force Injuries to the head”.

[13] The evidence in relation to this allegation includes photographs of Ms. Knight’s person and home following the home invasion. The photographs of Ms. Knight show extensive bruising to her face and neck, a bruise on her left shoulder, and bruising to her arms and hands. Some of her skin had been torn off her arms where she had been taped up. The photographs of Ms. Knight’s home show that it was ransacked (for instance, drawers were pulled out and overturned). They show a chair with tape attached. Tape from the chair was analyzed and revealed to have samples of DNA consistent with Ms. Knight’s.

[14] Thereafter the case remained unsolved. Police issued various media releases over the years with a general appeal to the public for information.

Robbery of a TD Bank [count 2]

[15] On July 4, 1995, a TD bank branch located on Days Road in Kingston was robbed by two men brandishing guns. The accused is alleged to have been one of them. The Crown’s position is that Pat Maddigan was the other.

[16] The robbery took place at 7:55 a.m. on a Monday following the Canada Day long weekend. The men who performed the robbery were masked. They gained entry to the bank by backing a cube van into a window of the bank with such force that it smashed the window and surrounding wall. Employees within the bank were processing the night deposit bags deposited by businesses over the long weekend. One employee tried to wheel the bags to the vault in an effort to protect them but was interrupted by the masked men. The perpetrators held staff at gunpoint with sawed-off shotguns and made off with the robbery proceeds within minutes.

[17] Investigation of this matter revealed that the cube van used to smash through the bank window and wall was abandoned behind a commercial mall a short distance away.

[18] This offence attracted media attention locally. It remained unsolved.

First degree murder: Victim – Richard Kimball [count 3]

[19] The accused is alleged to have committed the first degree murder of Richard Kimball between November 1 and November 30, 1995.

[20] At the time of the alleged murder, Mr. Kimball and the accused were long-time associates. They had served jail time together. In 1988, they escaped from the Hamilton Wentworth Detention Centre together after the accused’s brother Daryl threw a rope over the wall surrounding the jail.

[21] In the intervening years, the accused is alleged to have come to the conclusion that Mr. Kimball could become a “rat” when under pressure.

[22] Seven years after the jail escape, Mr. Kimball and the accused were both living in Kingston. They are alleged to have talked about planning a “big score”. The Crown alleges that the accused ultimately went ahead with the “big score” with Pat Maddigan instead. This was the TD bank robbery described above (count 2). At the time of the robbery, Mr. Kimball was back in jail.

[23] The Crown alleges that Mr. Kimball saw media reports about the bank robbery and wrote to the accused from jail about it. Mr. Kimball reportedly said he knew that the accused was responsible for the bank robbery.

[24] On July 26, 1995, three weeks after the bank robbery, Mr. Kimball was released from jail. He continued to associate with the accused. Mr. Kimball would follow the accused around, so much so that the accused’s wife referred to Mr. Kimball as “Shadow”.

[25] The Crown alleges that the accused was concerned about the need to keep Mr. Kimball quiet about the accused’s involvement in the TD bank robbery which, in addition to other circumstances, gave rise to the accused’s conclusion that Kimball posed a risk to him. The Crown alleges the accused determined that Mr. Kimball had to be silenced, and that he silenced Mr. Kimball by killing him.

[26] During the undercover investigation, the accused said, amongst other things, that he shot Mr. Kimball in the head with a shotgun and that he asked Pat Maddigan to assist with disposing of the body. The accused said they chopped up the body with a skill saw and dumped it in a rural area somewhere in Quebec.

[27] Health and other records for Kimball show no activity after 1996. No body or other remains have been located in connection with this alleged offence.

The Toronto car bombing [count 4]

[28] The accused is alleged to have set a pipe bomb under a vehicle linked to a man named David Allan on July 19, 2000.

[29] By 2000, the accused is alleged to have become involved with a man named Sean Westwood. Mr. Westwood ran a large marijuana grow operation in Kingston with three sites. The accused said during the undercover investigation that Westwood needed “protection” as a result, and he began his association with Mr. Westwood by performing that function. The accused said he obtained the warehouse he lived in as a result of his involvement with Westwood’s operation.

[30] A man named Stephen St. Denis, who the accused is also alleged to have murdered (count 5), was also involved in the operation and tended crops.

[31] Mr. Westwood had some kind of conflict with Mr. Allan, who lived in Toronto, and reportedly hated him. Mr. Westwood is alleged to have paid the accused to abduct and/or kill Mr. Allan.

[32] Mr. Allan lived in a residential area north of Danforth Avenue with his wife and two children. He also owned a cottage property near Kingston. The Crown will lead evidence that Mr. Allan was involved in various criminal enterprises involving drugs and prostitution.

[33] The accused talked about his efforts to deal with Mr. Allan during the investigation. He described renting a van and staking out Mr. Allan’s neighbourhood, as well as surveilling Mr. Allan. He described placing a pipe bomb under his vehicle. In an attempt to lure Mr. Allan to the vehicle before the bomb went off, the accused said he called Mr. Allan’s business, said he was a neighbour, and that someone was interfering with Mr. Allan’s vehicle. Then, just after midnight, he detonated the bomb with a remote trigger.

[34] The explosion destroyed the vehicle. It damaged neighbouring homes and vehicles. No one was injured. Evidence found at the scene and submitted to the Center of Forensic Sciences found pipe bomb fragments and remnants of pyrodex, a commercially available explosive black powder used for making ammunition, including shotgun shells.

[35] Mr. Allan did not know the accused. No evidence obtained during the Toronto police investigation linked the accused to the bombing. The crime remained unsolved. It received significant media attention.

First degree murder: Victim Stephen St. Denis [count 5]

[36] As indicated above, the Crown alleges that Stephen St. Denis was involved in the grow-op run by Sean Westwood in which the accused was also a partner.

[37] The accused is alleged to have murdered Mr. St. Denis on October 21, 2001. He is alleged to have done so with the assistance of Pat Maddigan, with whom he is alleged to have robbed the TD bank and disposed of Mr. Kimball’s body.

[38] The Crown alleges that the accused and Maddigan took Mr. St. Denis to a bar and doctored his drinks with drugs. After returning Mr. St. Denis to his home, the accused is alleged to have started a grease fire in the kitchen and to have left an incapacitated Mr. St. Denis to die.

[39] The Crown will lead evidence that there was a fire on Joyceville Road near Kingston in which Mr. St. Denis died. The property was a marijuana grow op. While his four dogs survived the fire, Mr. St. Denis’ body was found laying on his back on a sofa in the living room adjacent to the kitchen. Subsequent toxicology analysis showed he had potentially fatal levels of opioids and some alcohol in his system. The post-mortem examination concluded that he died of asphyxia secondary to smoke inhalation. Elevated blood morphine and ethanol levels were said to be a contributing factor.

[40] The Fire Marshall concluded that the initial source of the fire was in the kitchen. An electric frying pan was located on a wooden table in the kitchen.

[41] The accused is alleged to have discussed his involvement in this offence and the reasons he committed it with both the UC and the PA. While he never referred to Mr. St. Denis by name, he said the man involved oversaw growing and that he had dogs that were rescued from the fire. He also brought the PA to the location on Joyceville Road where the fire occurred.

[42] In the main, the Crown alleges that the accused determined that he had to kill St. Denis because St. Denis had decided to move back to Toronto and to resume work with David Allan, his previous boss and the target of the bombing alleged in count 4. Mr. St. Denis told the accused he could not withstand torture. Consequently, the accused could not trust Mr. St. Denis not to tell Mr. Allan that the accused was responsible for the bombing of Allan’s vehicle outside his home. So, even though he liked Mr. St. Denis, the accused determined that he had to eliminate the risk to himself and his family should Mr. Allan retaliate. Consequently, he killed Mr. St. Denis.

[43] At the time of Mr. St. Denis’ death, it was determined to be accidental. Investigators did not suspect any involvement by the accused.

The evidence on the voir dire for this application

[44] This application involves a significant volume of evidence but has proceeded in a very efficient manner.

[45] With respect to the Crown’s evidence, an overview of the investigation and allegations has been provided in an affidavit by one of the lead investigators for this case, Det. M. Mezzatesta. Her affidavit includes several exhibits. The exhibits include summaries of the surveillance evidence, transcripts of the cross-examinations of each of the PA and UC, the criminal record of Mr. Wentworth, cell phone records, and media articles relating to certain offences. The evidence filed also includes a hard drive containing all recordings of the interactions between the accused and the PA and UC. The court has also been provided with a USB key containing the specific excerpts of utterances the Crown seeks to have admitted at trial, as well as transcripts of those excerpts. The evidentiary material has been well organized and clearly identified which has been of invaluable assistance in navigating the very significant evidentiary record for this application.

[46] For its part, the defence has filed affidavits focused on discreet issues from a real estate agent (Randy Beck) who assisted the accused with the sale of his property, as well as from the accused’s daughter (Michelle Wentworth). While the defence has cross-examined the PA and the UC, it opted not to cross-examine Det. Mezzatesta. Mr. Wentworth did not testify on the voir dire.

[47] Because the cross-examinations of the UC and PA were done well in advance of the hearing of the application, and transcripts of that evidence were available to be filed as part of the written record, only very brief viva voce evidence, pertaining to the cross-examination of Mr. Beck, was called during the voir dire.

[48] The result is that a significant portion of the evidence was available to me well in advance of the hearing and the entirety of the recorded interactions between the accused and the PA and UC have been available to me for review in considering the issues argued by the parties. I have been further directed by each of the parties to excerpts of significance to each of their positions. This manner of proceeding has allowed for a focused and careful review of the evidence.

[49] Where I refer to details relating to the investigation or additional evidence available to the Crown throughout these reasons, that information is derived form the affidavit of Det. Mezzatesta.

The investigation

[50] The undercover investigation lasted just over nine months. It began on May 8, 2018, at which point, only the PA was involved. The UC became meaningfully involved just over four months later on September 12, 2018. The investigation ended with the accused’s arrest on February 14, 2019.

The accused and his circumstances at the time of the investigation

[51] At the time of the investigation, the accused was 65 years old. He had a criminal record that spanned 47 years (1971-2018). It included convictions for 38 offences on 20 different dates. Four of the accused’s sentences were in the penitentiary range, while two were upper reformatory.

[52] In 2018/2019, the accused owned a warehouse (which the Crown says he acquired as a result of his work in a marijuana grow operation). He also had a trade – he had operated a business as a plumber in the past. During the investigation, the accused spoke of having done other types of work as well, involving roofing, carpentry and electrical work. However, for much of the undercover operation, the accused spoke about his lack of money. In particular, he spoke about debts relating to the property taxes for the warehouse.

[53] The accused lived in his warehouse, which was located in a relatively rural setting northeast of Kingston. It was not designed to be a residence. It had plumbing, but no hydro and no heat. The accused had built a residence/apartment of sorts on part of the main floor of the warehouse. Residents of the warehouse (the accused lived there with others) sometimes used a generator for electricity, and sometimes used portable propane heaters for heat.

[54] The accused had been married to a woman named Sandra Carr. He was the father of three children. He was particularly close to his daughter Michelle who lived nearby with her husband. Michelle had regular contact with the accused over the course of the investigation. During the winter months, the accused sometimes slept at Michelle’s home. He also used her vehicle often. The accused also had contact with his ex-wife, Ms. Carr, sometimes in person, but more often by phone. For instance, phone records show 89 phone calls between them in January 2019. His phone contact with Michelle was described by Det. Mezzatesta as “constant”.

[55] During the investigation, the accused spoke frequently about his need for money. He was planning to sell his warehouse and use the proceeds to pay his debts. In both July and September, the accused said he needed $100,000 or he would lose the warehouse. By October 1, 2018, he was expecting to receive his old age pension, an amount he expected to cover his mortgage payments. He often referred to “land” or property taxes he had to pay.

[56] By January 11, 2019, according to the accused’s utterances, he was drawing his old age pension of $1,700 and was expecting an additional $10,000 in “backpay” from it. He was making plans to sell the warehouse. By January 29, he said he had $3,500 in the bank and said he was drawing ODSP.

[57] The accused ultimately did sell his warehouse. He accepted a conditional offer made on January 16, 2019. The sale was completed after his arrest. The property sold for $225,000, from which $25,000 was deducted because the property had not been fully cleaned out upon sale. There is no evidence about how much the accused netted from the sale. He told the PA at one point that he expected to net between $50,000 and $80,000.

[58] The accused was a drug user. The extent of his drug use is a factual issue in dispute in this application. More will be said about this issue later.

The PA

[59] The PA was a long-time associate and friend of the accused. As I have said, the accused called the PA “Barney”. They met in the 1990s while serving sentences in the penitentiary. Both in and out of custody, they had been involved in various offences together involving drugs, property and witness intimidation.

[60] In April 1996, the PA gave police a sworn video statement in which he implicated the accused in the robbery of the TD bank and the murder of Richard Kimball. He told police that the week prior to his statement, he and the accused had spoken while they were drinking and apparently intoxicated (they were also doing cocaine). He told police that the accused had said he robbed a Kingston TD bank and killed Richard Kimball. According to Det. Mezzatesta, some details about what occurred were unclear. At the time of this statement, police did not know the identity of the bank robbers, and Kimball’s whereabouts were unknown.

[61] The subsequent investigation was short-lived and terminated within months. Eventually, the accused received notice that he had been the subject of a wiretap authorization. No charges were laid and the offences remained unsolved. Mr. Kimball was never found and the murder investigation became a cold case.

[62] Because cold cases are revisited from time to time, police approached the PA in 2015 while he was serving a sentence. The PA agreed to assist police in the future. In 2017, when the PA was released, an assessment was done with a view to him acting as a police agent. The PA signed an agreement to act as a police agent on May 7, 2018. He would be paid to assist in the investigation (the defence says payment has exceeded $100,000 to date). The undercover operation started the next day on May 8, 2018. Recordings of their interactions began later, after judicial authorization to take this step was given on June 20, 2018.

[63] For all but three days of the undercover operation, the PA was on parole (the accused was aware of this) and was living at a half-way house. He was being treated for cancer. He had a long criminal record rife with property and driving offences. According to police, the PA was never a wealthy or powerful man, and had never been the “boss” of anyone. The PA never suggested to the accused that he was or ever had been part of any criminal organization.

[64] Over the course of the investigation, the accused and the PA had regular contact. Generally speaking, their contact was very friendly in tone. They spent time together, as friends do, in various locations. They talked freely with one another. Both men were talkative. The PA frequently attended at the accused’s warehouse (travelling by bike or by taxi) and spent time with the accused there. They would sometimes go out to eat. Sometimes the accused would drop by the recycling depot where the PA worked part-time. During these occasions the accused was given things for his warehouse, such as propane canisters. Sometimes, after the UC became involved, they participated in simulated criminal activity together, or looked for locations for a future grow op. On the whole, their contact during the investigation was relaxed and unforced, as might be expected between long-time friends.

The UC

[65] At the outset of the investigation, there was no plan to also involve an undercover officer. This changed when police determined that the accused might be more willing to discuss his past crimes if it appeared that the PA was still engaging in ongoing criminality. The UC was brought in to support that purpose. Det. Mezzatesta states that the UC’s role in the investigation ultimately became more involved than was initially expected.

[66] The undercover officer pretended to be a long-time friend of the PA. He and the PA claimed to have met because the PA had met the UC’s brother while in a penitentiary. The PA told the accused that he had a long history with the UC and that he helped the UC on an ad hoc basis. The PA told the accused that the UC was into a bit of everything, “like us”. At one point in the investigation (September 28), the UC told the accused that he had connections to bikers and the Irish mob in Montreal.

[67] According to the undercover narrative, the UC lived in Quebec in an old farmhouse near Mirabel. The accused came to refer to him as “Frenchie” or “Denis”. The UC portrayed himself as a criminal with a background in trucking. He also portrayed himself as knowing other criminals, for whom he did some jobs. He referred to these people as his customers rather than his bosses and told the accused he was not a member of any organization. He told the accused that his job was to make “special deliveries”.

[68] The initial contact between the accused and the UC was on June 29, 2018. It lasted four minutes. The UC was introduced to the accused by the PA. This was at the accused’s warehouse. Nothing but small talk ensued.

[69] The second meeting between the accused and the UC was sometime later on September 12, 2018. The events of that day surprised investigators. As reported by Det. Mezzatesta, “The staged plan was for the UC to ask if the accused and the PA would act as lookouts as the UC apparently retrieved some guns from a storage unit. That pick up went smoothly, which we expected. What was not foreseen, however, was that the accused would not stop talking when nobody was pressing him for any details about anything”. During their interaction that day, the accused told the UC the following:

a. He once robbed an unnamed bank of its night deposits;

b. That he did this by making a “ram” on his bumper and that he “went right through the window”;

c. That he had a singular partner during this offence;

d. That he got $140,000 and his partner’s share was $80,000;

e. That he escaped from Hamilton Wentworth Detention Center by going over the wall;

f. That he had been involved in a significant grow operation that suffered a $1,000,000 loss as a result of a robbery;

g. How to make bombs, about which he said: “I’ve done a good one. . . it works good, I mean I’m serious it lifted his vehicle up”.

[70] According to Det. Mezzatesta, the accused’s apparent willingness to divulge his involvement in very serious crimes to the UC “changed things”. Police determined that the UC was trusted by the accused and that removing him from the case was not wise. They expected that the accused would continue to speak about crime to the UC.

[71] The UC’s contact with the accused was based on their common interest in criminal activity which offered a financial benefit. The UC would tell the accused about “jobs” he might assist with. There was a reciprocal expectation that the accused would also make the UC aware of any “jobs” the accused might become involved with.

[72] In the end, over the course of the 283-day investigation, the accused and the UC saw each other on 19 days. All of their contact is recorded by audio, and generally by video. The recordings show that the men had an easy rapport. The tone of their interactions was consistently friendly. The accused was very talkative. He discussed his past repeatedly and usually without prompting. As I will describe further below, the accused appeared to view the UC as a student of crime. The accused often offered the UC advice on how certain offences might be committed. The UC, for his part, gave every indication he was happy to receive the advice. His tone towards the accused was respectful of the accused’s past life and experience.

The simulated crimes and other activities which resulted in money being given to the accused

[73] The undercover investigation included simulated criminal offences which had been planned by the investigative team. The accused received $9,640 as a result of his participation in these simulated criminal offences or other involvement with the PA or UC. The activities were as follows:

a. Selling car parts to an undercover police officer (July 20, 2018) - $2000. While this was not payment for helping simulated crime (the accused sold car parts to an undercover officer reportedly acting for the UC), so as far as the accused knew, the money he received for this activity was indirectly from the UC;

b. Acting as a lookout for a transport trailer theft (August 1, 2018) - $300;

c. Acting as a lookout for a gun pickup (September 12, 2018) - $300;

d. Receiving money for a new phone from the UC who wanted to be sure he could reach the accused in the event an opportunity to commit crime arose (October 5, 2018) - $100;

e. Theft of drugs and cash from a vehicle (November 24, 2018) - $4940; and

f. Acting as ride-along/lookout for transport trailer theft (November 30, 2018) - $2000.

[74] The accused also participated in other simulated unlawful activity for which he was not paid, such as storing and moving boxes of cigarettes, retrieving a locked toolbox from a storage unit for the UC (while the box was never opened, the accused and PA said it felt like it contained a gun), and searching for “stash houses” or properties to start a marijuana grow op.

The promise of funds from future crime – the murder for hire and the meeting with “Rocky”

[75] The prospect that the accused might be paid to commit a murder came up at several points in the investigation. During the course of the theft of drugs and cash from a car on November 24, 2018, the accused suggested they could kill the theft victim. The UC then raised the issue again on November 30. The UC suggested he might have a job involving the commission of a murder. He said he was waiting for a call about it. He asked the accused about what he should charge. No price was provided to the accused or agreed upon.

[76] On January 18, 2019, the UC told the accused that his “buddy” who was commissioning the murder thought that a drugging/burning (like the alleged St. Denis murder) would be a good way to do it. The accused suggested they could get $25,000 for this.

[77] On January 19, the UC discussed the proposed trip to Montreal with the accused, who was asked if he wanted to come. The accused agreed to go. The accused confirmed with the UC that the guy in Montreal (later identified as “Rocky”) was the same guy he had met earlier (they had given a bag to him in another simulated crime). The UC told the accused he thought Rocky wanted to see the accused. The UC suggested they could discuss the price for their services under the murder contract. The accused clarified whether the objective was to make it look like an accident. He told the UC “it does get more involved when you wanna make it look like something else you know that”.

[78] On January 31, the UC and the accused travelled to Montreal to meet “Rocky”.

The meeting with “Rocky”

[79] The day of the meeting, the UC picked the accused up at his daughter’s residence at 10:12 a.m. They drove together towards Montreal and engaged in conversation during the trip. The Crown is seeking to tender about 90 minutes of their conversations from this day. Of note is that the accused discussed the offence involving Henrietta Knight for the first time on the trip home from Montreal.

[80] Upon arrival in the Montreal area, the UC and the accused parked in a parking lot of a commercial strip mall. At 2:56 p.m., the second UC, “Rocky”, pulled up beside them in a Mercedes SUV. The men then got out of the vehicles and spoke.

[81] The accused was ultimately in the company of Rocky and the UC for 16 minutes. First, they spoke together for 12 minutes outside their vehicles. This conversation is audio recorded, but not video recorded. The accused left at one point for seven minutes so the UC and Rocky could talk. During this time, the accused went to a Tim Horton’s alone. The accused had contact with Rocky for a further four minutes while he and the UC were back in the UC’s vehicle.

[82] During the 12 minutes outside the vehicle, the UC and Rocky spoke about getting some equipment for a grow operation. The fact that the accused had prior experience with a “grow” was discussed. They discussed the skills the accused had and how he might be of assistance in a grow operation.

[83] Rocky then told the accused, “No offence against you but I don’t fuckin like too much meeting new people”. The accused said he didn’t blame him and it made him nervous too. When Rocky said he kept his circle pretty tight, the accused said he didn’t hang around “with nobody either I’m a loner pretty well”. He told Rocky to “stick with a pro”.

[84] The UC told Rocky that the accused was the guy he was telling him about “for the other big job”. At this point, Rocky seemed to get upset with the UC and asked him what he was doing. Rocky told the UC not to talk about this in front of the accused. The accused offered to take a walk so the UC and Rocky could talk. Rocky then started talking about how nothing was matching what the UC had told him and that he had “huge” trust issues about the accused. The accused told Rocky he didn’t blame him. He offered to give him his transcripts and the articles he had about his offences which he kept in his warehouse. The accused also told Rocky he had “made court precedent … Verney vs. Regina”. The accused said he had never had to prove himself “so it’s kinda weird but uh so I don’t blame you”. Rocky said: “Well if you wanna work for me … you gotta fuckin prove yourself that’s guaranteed”.

[85] Rocky told the accused that the UC would need to have details about the accused’s crimes. He said: “So what he needs right now is details like he … needs all the details like … just as long as my people can match it to something”. The accused said that was fine and that when the UC came back to the warehouse he would give the articles to him. Rocky told the accused: “Oh you better talk to him cuz that’s your only way in … Then I trust”. The UC tried to reassure Rocky that he trusted the accused. The accused again offered his articles as evidence of his prior offences, and Rocky told him “the skills you got I’m interested in … the plumbing the fucking electricity the fucking green thumb I love all ah that”. The accused told Rocky he was versatile and agreed that Rocky shouldn’t take risks to make money.

[86] A little later, Rocky told the accused “I need my people just to be able to verify”. He suggested he would then have as much trust in the accused as he had in the UC. Rocky said (about the UC) “right now he’s vouching for you but his ass is in the sling”. Rocky said the reason they were there was because “I deal only with solid guys” like the UC. The accused said he didn’t blame him. He again referred to the articles and transcripts he would provide. Rocky said “as long as your story jives”, and the accused replied: “It will I’m not worried”. He said he’d only screwed up once, that he didn’t drink or carry on and that he was a professional. At about this point, the accused left Rocky and the UC to talk and went to Tim Horton’s.

[87] When he next spoke with Rocky, the accused was seated in the UC’s truck with the UC. The accused is video recorded for this part of their interaction.

[88] Rocky told the accused that the UC trusted him and this was “already a good start with me”. He said: “As long as you check out then we can move on to the uh next uh phase right you know what I mean … so that’s all you know hey you know what like it’s already a head start for you that [the UC] likes you … cuz I trust his judge judgment”. The accused replied: “Well he made me nervous because uh you know about the questions he was asking I don’t need to discuss but uh and that as far as that goes the only person who would know that is [who] did it so that makes me nervous (laughs)”. Rocky said he understood but to think about all that the accused had on the UC. He said: “the only way that we can trust each is that if everybody’s clean and everybody’s got (unintelligible) an open book for one another right and then this is a tight group”. The accused responded: “What I like is there’s no ties between any of us and I won’t say nothing from my end so if they get me I – I’m used to shutting my mouth”. Shortly afterwards, with some repetition from Rocky about the need for details that would “match” the offences described, the accused’s repetition that he would provide transcripts, and the UC’s assertion that they were not a “crew”, the conversation ended. The accused said: “All right take care buddy”. Rocky replied “Be good man”.

[89] On the trip home from the meeting with Rocky, the accused raised for the first time his involvement in the case of Henrietta Knight. He would talk about it again, as described further below, a few weeks later, in the days leading up to his arrest.

[90] On February 13, 2019, the day before his arrest, the accused received word that the contract for the murder had been approved. No other steps were taken in furtherance of that simulated crime. The accused was arrested the next day.

PART 2 - Does Hart apply?

The rule in Hart

[91] Canadian courts have long held that police dealing with “sophisticated criminals, must sometimes of necessity resort to tricks or other forms of deceit”: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at para. 66, citing Rothman v. The Queen, 1981 23 (SCC), [1981] 1 S.C.R. 640, at p. 697.

[92] In Canada, police have developed what has come to be known as the “Mr. Big” technique. The technique employs the use of various ruses and deceptions by police. While the technique has been recognized as “valuable” and has led to convictions in many cases, confessions obtained by the use of this technique have raised various concerns: see Hart, at paras. 4-7, 61.

[93] In R. v. Hart, the Supreme Court of Canada considered the admissibility of an accused’s confession following a “Mr. Big” operation and established a new common law rule of evidence governing the admissibility inquiry. This new rule is intended to guard against the potential dangers of a confession obtained as a result of a Mr. Big operation. The risks arise from the potential for unreliable confessions and the prejudice arising from bad character evidence produced in the course of the investigation. A further risk is that Mr. Big operations may involve police misconduct and run the risk of becoming abusive. The first two risks contribute to wrongful convictions. The third requires consideration of “the kinds of police tactics we, as a society, are prepared to condone in the pursuit of truth”: see Hart, at paras. 5-9, 68-80.

[94] Writing for the majority in Hart, Moldaver J. set out the new common law rule of evidence, and the circumstances in which it will apply. He described the first prong of the analysis as follows at para. 85:

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.

[95] To address the risk that police might go too far and resort to tactics which may amount to an abuse of process, a second prong to the analysis was added. It directs reliance on the doctrine of abuse of process. While the Crown bears the onus under the first prong of the analysis, the defence bears the onus under the second.

[96] Finally, Moldaver J. did not foreclose the possibility that in “an exceptional case”, trial fairness might also require the exclusion of a Mr. Big confession even where the specific rules he has proposed would see the confession admitted: see Hart, at para. 88. At the same time, the court continued to recognize that it remained in the public interest that police have the tools they need to investigate serious crime, including the use of the Mr. Big technique. As Moldaver J. wrote at para. 83:

In searching for a response to the concerns these operations raise, we must proceed cautiously. To be sure, Mr. Big operations can become abusive, and they can produce confessions that are unreliable and prejudicial. We must seek a legal framework that protects accused persons, and the justice system as a whole, against these dangers. On the other hand, Mr. Big operations are not necessarily abusive, and are capable of producing valuable evidence, the admission of which furthers the interests of justice. We ought not to forget that the Mr. Big technique is almost always used in cold cases involving the most serious crimes. Put simply, in responding to the dangers posed by Mr. Big confessions, we should be wary about allowing serious crimes to go unpunished.

What is a Mr. Big operation?

[97] Since a central issue in this litigation relates to whether what occurred in this case was or was not a Mr. Big operation governed by the evidentiary rule set out in Hart, it is of some importance to understand what a Mr. Big operation is. It was described in Hart, at paras. 57-60, as follows:

The technique tends to follow a similar script in each case. Undercover officers conduct surveillance on a suspect in order to gather information about his or her habits and circumstances. Next, they approach the suspect and attempt to cultivate a relationship. The suspect and the undercover officers socialize and begin to work together, and the suspect is introduced to the idea that the officers work for a criminal organization that is run by their boss – “Mr. Big”. The suspect works for the criminal organization and is assigned simple and apparently illegal tasks – serving as a lookout, delivering packages, or counting large sums of money are common examples. …this stage of the operation can last for several months.

As the operation wears on, the suspect is offered increasing responsibility and financial rewards. By flying the suspect across the country, putting him up in hotels, and taking him to expensive restaurants, undercover officers show the suspect that working with the group provides a life of luxury and close friendships. All the while, the suspect is constantly reminded that his or her ultimate acceptance into the group depends on Mr. Big’s approval.

Throughout the operation, the suspect is told that the organization demands honesty, trust and loyalty from its members. An aura of violence is cultivated to reinforce these values. Officers teach the suspect that those who betray the trust of the organization are met with violence. They do this by telling the suspect that the organization kills “rats”, or by exposing him to simulated acts of violence perpetrated by members of the organization against other undercover officers as punishment for imagined betrayals…

Once the stage is set, the operation culminates in a meeting, akin to a job interview, between the suspect and Mr. Big. Invariably during these meetings, Mr. Big expresses concern about the suspect’s criminal past and the particular crime under investigation by the police. As the meeting unfolds, it becomes clear that confessing to the crime provides a ticket into the criminal organization and safety from the police. Suspects may be told that Mr. Big has conclusive evidence of their guilt and that denying the offence will be seen as proof of a lack of trustworthiness. In another variation, suspects are told that Mr. Big has learned from contacts within the police that a prosecution for the offence is imminent based on new evidence. The organization offers to protect the target through a variety of means – by offering to eliminate a witness or by having someone else confess to the crime – if the suspect confesses to Mr. Big. Throughout the interrogation, any denials of guilt are dismissed as lies, and Mr. Big presses for a confession. [Citations omitted.]

[98] The scope of the application of the Hart rule has been the subject of some debate as the case law has developed. In a footnote in Hart with significant implications – “footnote 5” at paragraph 85 of the decision – Moldaver J. offered the following guidance:

This rule targets Mr. Big operations in their present form. A change in the way the police use undercover operations to elicit confessions may escape the scope of this rule. However, it is not for this Court to anticipate potential developments in policing. To do so would be speculative. Time will tell whether, in a future case, the principles that underlie this rule warrant extending its application to another context.

Post-Hart jurisprudence and the scope of the rule in Hart

[99] In an early post-Hart case, R. v. Tang, 2015 BCSC 1643, the court held that Hart was never intended to apply “to undercover operations generally”. In coming to this conclusion, the court noted that Hart was not entirely clear about the scope of its new evidentiary rule. The court held that even though the case involved undercover officers who posed as criminal gang members who befriended the accused, and despite the fact they used language like “big brother” in dealing with the accused, the undercover operation did not involve the Mr. Big technique. Accordingly, the Crown was not required to rebut the presumption of inadmissibility set out in Hart: see Tang, at paras. 41-44.

[100] More recently, in Ontario, the Court of Appeal has decided cases with some bearing on the issue.

[101] The Crown argues that in R. v. Zvolensky, 2017 ONCA 273, 135 O.R. (3d) 401, the court suggested that trial judges should analyze, differentiate and distinguish different police techniques. In that case, the court held that there was “no criminal organization”, “no confession extracted by threats” or inducements, no coercion, and no interrogation – there was no Mr. Big: at para. 83. The Crown says that the court held that in these circumstances, the Hart rule did not apply. The court then engaged in a weighing of the probative value of the evidence against its prejudice, using the factors identified in Hart as relevant to the assessment of the reliability of the confession.

[102] R. v. Kelly, 2017 ONCA 621, 387 C.R.R. (2d) 93, is another case where, on the facts, there was “no criminal organization, no Mr. Big, violent culture, no friendship and camaraderie”: at para. 35. Although Zvolensky was decided three months before, it is not referenced in Kelly. The Crown suggests the court in Kelly saw little purpose in differentiating police schemes and opted to apply the Hart analysis. The Crown argues that it is unclear from the decision in Kelly whether the court intended that the rule in Hart should be applied where the three risks identified in Hart arise in a case (e.g. unreliable confessions, prejudice, and potential for police misconduct), or, whether the Hart analysis just did not impact the result in the case.

[103] Regarding what the Crown sees as different approaches in Zvolensky and Kelly, the defence argues that a careful reading of Kelly indicates the court held that the Hart rule should apply where the same concerns are present about admitting the accused’s statements following an undercover police investigation. The defence points to the subsequent case of R. v. Quinton, 2021 ONCA 44, 70 C.R. (7th) 149, in further support of that view.

Analysis

[104] Writing for the court in Zvolensky, Pardu J.A. summarized the new rule set out in Hart. She then noted, at para. 77, that by virtue of footnote 5 of Hart, Modaver J. had not excluded “the operation of the rule to analogous circumstances”. She wrote at paras. 83-85:

[83] I agree with the Crown that the present case does not fit within the archetypal Mr. Big scenario described in Hart. There was no criminal organization. There was no "Mr. Big". There was no confession extracted by threats or inducements.… There was no coercion. There was no interrogation.

[84] The present case does involve the risk of moral and reasoning prejudice associated with the evidence of the appellants' extrinsic criminality. However, unlike the typical Mr. Big scenario, the precise reason why the appellants gave incriminatory statements about their participation in Gehl's murder was not their ambition to participate in a criminal organization.…

[85] That said, given the potential prejudice associated with exposing a jury to the appellants' apparent willingness to murder the UCO's ex-wife and attempts to purchase firearms, as part of the context of the appellant's statements to the UCO, in my view the factors listed by Moldaver J. in Hart provide a useful framework for determining whether that prejudice is overcome by the statements' reliability.

[105] After then applying the analytical lens of the Hart factors for assessing reliability (it was common ground that abuse of process was not an issue in Zvolensky), Pardu J.A. found that the probative value of the evidence outweighed the potential prejudice. She said nothing in her reasons about the presumption of inadmissibility set out in Hart, or its direction as to when the Crown or the defence bore the onus of proof in circumstances where the police investigation did not “fit within the archetypal Mr. Big scenario described in Hart”. I am not persuaded that the court held that the Hart rule did not apply. Certainly, this finding was not stated explicitly. Nor, in my view, is it necessarily implicit in the manner the court analyzed the issues.

[106] In Kelly, the court identified the first issue to be decided as whether there were “elements of the police scheme that require the court to apply the Hart test for admissibility”: at para. 25. Writing for the court, Feldman J.A. also referred to footnote 5 and the uncertainty in the law on this point. She held, at paras. 35-36:

[35] Clearly the police sting scheme that was used on the appellant is missing the most offensive tactics of the traditional Mr. Big operation: no criminal organization, no Mr. Big, no violent culture, no friendship and camaraderie. What this scheme used was the inducement of a large financial payout based on a fraud on an insurance company. For me, the relevant question is: is there in this police sting scheme sufficient potential for the three dangers: unreliable confessions, prejudicial effect of the evidence of the appellant’s participation in the scheme, and potential for police misconduct, to warrant the application of the new approach from Hart?

[36] In my view, the answer is yes. I say this for two reasons. The first is that the scheme is clearly a variation of a Mr. Big, with the same police intent to induce a stranger into dishonest conduct by holding out a potentially powerful inducement to confess, whether truthfully or untruthfully. Therefore reliability is engaged, as is prejudice. Second, in my view, it serves little purpose to conduct an analytical exercise of differentiating and distinguishing variations of police schemes, when the same concerns are raised, even though those concerns may be attenuated.

[107] In Quinton, the court held that “[t]he relevant question to determine whether Hart applies to an operation is whether the operation poses the potential for the three dangers identified in Hart: ‘unreliable confessions, the prejudicial effect of the evidence of the appellant’s participation in the scheme, and the potential for police misconduct’”: see Quinton, at para. 41, citing Kelly, at para. 35.

[108] I am not persuaded that there is a significant difference in the approaches taken by the court in each of Zvolensky and Kelly. In both cases, the court engaged in the Hart analysis because circumstances in each case gave rise to concerns about the reliability of the confession and police conduct, even if there was no “typical” Mr. Big scenario and the Hart concerns were arguably attenuated. This approach was also taken in Quinton. As I read the cases, there is consistency in the approach at the appellate level.

[109] This is not to say that the Crown’s position is without merit, however. The finding in Tang that Hart was never intended to apply “to undercover operations generally” seems sound, particularly given the Hart court’s detailed description of the typical Mr. Big scenario and the clear inference from “footnote 5” that the new rule would not apply to all undercover operations. Further, I agree with the Crown that this case is not a “typical” Mr. Big case and falls somewhere in the undefined world of undercover investigations referenced in “footnote 5”.

[110] On the other hand, the functional approach outlined by Feldman J.A. in Kelly has much to commend it, including its directness and simplicity. A great deal of the focus of the submissions on this application was about whether this case was sufficiently like a traditional “Mr. Big” scenario to attract the application of the presumption of inadmissibility. To the extent that this results in a focus on the circumstances in which the statements were made, this is useful. But requiring a preliminary determination as to how close an investigation is to a typical Mr. Big scenario in order to determine the subsequent structure of the analysis is less so. Focussing on the extent to which the dangers identified in Hart are present in a case is more responsive to ensuring the accused receives a fair trial.

[111] Regardless of the policy merits of either approach, I apply the law as it stands in this province. My understanding of the law in this province is that where the circumstances of a case raise the same concerns as identified in Hart (e.g. regarding the reliability of the confession, the potential for prejudice, and the potential for police misconduct), then the Hart rule will apply.

[112] Applying that direction from our Court of Appeal, I find that the circumstances of this case require the application of the Hart rule.

[113] This is because the facts of this case raise the potential dangers of unreliable statements/confessions, the prejudicial effect of the accused’s participation in discussing and simulating crimes (including a contract killing) during the course of the operation, and the potential for police misconduct. While I have not accepted the defence position on the ultimate ruling to be made in this case, the issues it has raised were arguable, relevant and important considerations which engage the Hart analysis in aide of ensuring the accused receives a fair trial. Little is gained from further identifying how the investigation in this case is or is not similar to a Mr. Big scenario. Given the comments in Kelly, I will not engage further in that analytical exercise in determining whether the Hart rule applies.

PART 3 – The first prong of the Hart analysis – Probative value and prejudicial effect

I. The probative value of the evidence

1. The circumstances under which the statements were made

The legal principles

[114] Hart directs that the first step in assessing the reliability of a Mr. Big confession is to examine the circumstances in which the confession was elicited. A number of factors assist in that regard, including 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: see Hart, at para. 102.

[115] Further, special note should be taken of the mental health and age of the accused – a confession from a young person or person suffering from a mental illness or disability will raise greater reliability concerns: see Hart, at para. 103.

[116] The court in Hart also directed that a trial judge should not just consider these factors mechanically. Rather, “[T]rial judges must examine all the circumstances leading to and surrounding the making of the confession – with these factors in mind – and assess whether and to what extent the reliability of the confession is called into doubt”: Hart, at para. 104.

The positions of the parties

The Crown’s position

[117] The Crown argues that there is nothing alarming about the length of this undercover operation or the number of interactions with the accused. Regardless of the number of contacts between the accused and the PA and UC, the Crown says that what matters more is that police “did not engrain themselves in his life to the same extent as occurred in Hart” and other cases, such as Quinton.

[118] As far as the relationships with the PA and UC are concerned, the Crown submits that the accused was never in their thrall such that he could not consider his own best interests. There are also some features of these relationships which support statement reliability. For instance, there is evidence the accused had a great deal of trust in the PA, whom he said he trusted with his life. This level of trust suggests that what the accused said to the PA is reliable enough to meet the standard of threshold reliability. Further, the fact that the accused repeatedly discussed other criminality with both the PA and UC shows he spoke to them unreservedly without fear they would contact police. This suggests that what he said about his involvement in the crimes charged is reliable enough to meet threshold reliability.

[119] With respect to inducements, the Crown acknowledges the accused received some money in the course of the operation. It says that the $9640 he received over this months-long investigation is not excessive and certainly not in the realm of an inducement that would bar admissibility of his utterances.

[120] To the extent that any threats were uttered in the course of the investigation, the Crown says this was done by the accused. While at some point in their interactions with the accused the PA and the UC each said they had killed a man, these disclosures came only after the accused had already spoken of his own involvement in various homicides. It was the UC who held the accused back when he raised the prospect of killing an individual during the course of a simulated robbery from a vehicle. Moreover, there was no other violence, simulated or otherwise, witnessed by the accused in the course of the investigation.

[121] The Crown argues that one of the Hart factors, the conduct of the interrogation, is unhelpful since there was no interrogation in this case (this is one of the reasons for which the Crown says Hart should not apply).

[122] The assessment of the personality of the accused must consider that he was far from youthful. He was a 65-year-old man who had a criminal record spanning 47 years. He had served four penitentiary sentences. The accused also regularly discussed his criminal past and future, and in so doing, showed his generally accurate knowledge of a number of court processes and police techniques. He explained how to commit a number of offences. He bragged about being a leader amongst criminals and spoke about how much he loved doing crime. The Crown says this is not all puffery. Among other things, the Crown suggests that (1) people “who love crime” and “who have ambitions of doing more crime” are unlikely to need coercion to participate in mock crime, (2) people who are proud of their past are more likely to discuss it than people who are ashamed of it, and (3) the fact that the accused has extensive experience with police and law enforcement (and claims he never talks even if tortured) makes it less likely he was ever fearful or intimated.

[123] As for his mental health, the Crown says that at most, the accused is a person who exhibited occasional moodiness: see e.g., R. v. Moir, 2020 BCCA 116, at para. 53.

The position of the defence

[124] The defence argues that the accused’s statements are not reliable and that several circumstances in which the statements were made are concerning.

[125] The defence emphasizes that this was a long operation with 78 scenarios that were often lengthy. Insofar as the nature of the relationships between the accused and the PA and UC are concerned, the defence says the state exploited the close friendship between the PA and the accused and that this is a unique feature of this case with implications for future police investigations.

[126] It also says that the accused was “shamed” by the PA, and points to interactions where the PA told the accused he was not like the “old Mike”. This had the effect of encouraging the accused to make false utterances to the PA in order “to continue to project the image of power and criminal ability he once had in the eyes of the PA”. It also had the effect of pushing the accused back into a life of crime. The defence says that these concerns are also relevant to questions of prejudice and abuse of process. Further, the defence submits that statements made to friends and family are not “inherently reliable”. It also says the failure to record all interactions between the PA and the accused undermine reliability.

[127] With respect to the relationship with the UC, the defence says that it is important that the UC presented himself as being connected to a larger criminal network. The PA had pushed the accused to work with him by suggesting the UC could solve all his financial problems as long as the accused could gain his trust. The defence says it is reasonable to conclude that the accused felt he had to appear to be as intimidating, dangerous and capable as the UC believed him to be. Falling short of that would put his ability to join the UC’s criminal network at stake and could also put the safety of the accused and his family at risk. The UC’s frequent inquiries about whether the accused would bring work to him also put pressure on the accused and put him at risk since bringing work to their relationship was important to build trust. The accused also became indebted to the UC and complained to the PA he was relying on the UC too much. In this context, the accused’s economic needs presented a strong inducement to lie.

[128] In particular, the defence argues that the accused’s continued association with the PA and the UC provided a solution to his problems with housing and access to a regular supply of drugs to feed his addiction, and also addressed his immediate needs for money, food and companionship. It says that these were “significant inducements that would motivate [the accused] to do anything to maintain his new relationships”, and that the police leveraged these vulnerabilities to earn the accused’s trust and ensure his continued participation in the undercover operation. Other financial inducements were offered to the accused, including providing him with cellphones, helping pay his fines and reinstate his licence, and providing him with food, including meals out. The PA was also a means for the accused to obtain propane to heat his warehouse.

[129] The evidence that is relevant to this argument includes the affidavit of the accused’s daughter Michelle. She states that her father justified his relationship with the UC because he believed the UC was going to solve all his money problems. She says the accused frequently told her about the money he received from the undercover officer and how he was promised more money for the robbery he had apparently committed with the UC. She says her father told her that he thought all his problems were going to be solved and that he would be able to keep his building and pay his bills.

[130] The defence argues that the accused’s utterances are also unreliable because the accused was subjected to implied threats. From the outset, the accused was told the UC had connections to the Irish mob in Quebec. The accused was meant to infer that the UC had the means to respond with violence. The PA also made frequent references to violence he had committed and said he had killed in the past. The UC also made the accused aware of the fact that he had a violent history, including having killed a man who he said was involved with his ex-girlfriend, and impliedly discussed the potential murder of his ex-girlfriend. The UC suggested that violence was the best way to “protect” oneself if someone else had dirt on you. Further, it would have been clear to the accused that the UC had access to firearms. The defence points to various interactions between the accused and the UC as demonstrating implied threats to the accused and his daughter. The defence says it is reasonable to infer that the accused would be afraid the PA and UC might kill again and that he and his family would be at risk of lethal violence.

[131] With respect to the personality of the accused, the defence says that the accused made it clear to the UC that he was willing to lie when he had an incentive to do so, and also that he lied to the UC when it suited him (e.g. by telling him he could understand French). Another example of his willingness to lie occurred when the accused also suggested to the PA that he participate with him in deceiving the UC and “Rocky” about the site of the St. Denis fire. The defence says that the Crown’s argument that the accused was a sophisticated criminal who was unafraid of either the PA or UC conflates a lack of apparent fear as a hallmark of reliability. The absence of fear does not mean that the confession is reliable or true. The defence says that “considering the Respondent’s boastful nature as well as his readiness to lie, a lack of fear could also mean a lack of fear of lying to the UC or PA in order to ‘puff’ himself up in front of the UC”.

[132] The defence argues the accused also “frequently exaggerated his criminal ability”, and that he “was persistently proven to be prone to hyperbole and fanciful thinking, mostly as a matter of pride, and arguably, his drug use”. While he wanted others to believe he was a hardened and professional criminal, the accused lacked the resources and will to follow through with the many offences and schemes he described. This point is illustrated by the fact that during the course of the investigation, while the accused boasted about doing “professional crime”, the most serious crime he was engaged in “was shoplifting from the corner store and getting into non-consequential tiffs with the meth addicts living on his property”.

[133] The defence argues that the accused was socially isolated. He had strained relationships with his family members, among them his ex-wife and his children. While he had regular contact with his daughter Michelle, this relationship was also problematic. During the course of the investigation, the accused described how Michelle had let him down and did not really help him when he needed her. There was also tension in the relationship (for instance about the accused’s use of Michelle’s vehicle) and the accused had the impression her husband did not like having him around their house. Prior to the investigation and being given a cell phone by the PA, he had been without a phone to contact her.

[134] The defence also submits that the accused was isolated by his living circumstances. He lived “nominally alone” in his warehouse. While others stayed there intermittently, the defence says the accused did not trust these individuals or consider them his friends. He sometimes referred to them as cockroaches that he could not get rid of. In contrast, the PA and UC offered the accused much more meaningful and lucrative relationships. The accused was eager to maintain these relationships by giving the PA and UC what he thought they wanted from him.

[135] Insofar as his mental health was concerned, the defence argues the evidence shows the accused had been suffering from depression and felt lonely. Physically, the accused was a “phantom of his former self”. The defence argues that the breakdown of his marriage, the loss of his business, his desperate financial situation, his drug use over the years and his bad physical health all had a profound effect. The accused spoke about his declining health during the course of the investigation. For instance, he spoke about how meth use had caused him to lose his teeth (which also made him mumble and hard to hear), and the weight loss that came as a result. He had had pneumonia the year before as a result of not having hydro and nearly died.

[136] The defence argues that the evidence shows that the accused continued to be a drug user. Because the PA told him that drug use would be a problem if he wanted to work with the UC, the defence says that when the UC was present, the accused “made an effort not to let his drug use show”. The accused also said he was not a drug user or junkie. The defence says this is another example of a lie told to gain the UC’s trust so he could access his criminal connections.

[137] The defence relies on the affidavit of the accused’s daughter in this proceeding to support its position that the accused had a meth addiction which was ongoing throughout the investigation. In that affidavit, Michelle states that her father needed meth to function. She also states that her father was “never honest” about his meth use and either denied or minimized it. The defence says the tenor of her evidence is also supported by the evidence of the PA who believed the accused was actively using crystal meth. The PA observed the accused using meth on one occasion on May 29, 2018, and meth being accessible (but not used by the accused) on another. There were also a couple of days when the PA was “out and about” with the accused when he thought the accused was high.

[138] The accused’s own utterances during the investigation also support the finding he had a drug addiction. He made comments about others stealing crystal meth from him. The defence says that in trying to downplay his use, he said he only used “$100 a month” on one occasion, while also saying he used $60 to $100 per week on another. He complained about others treating him like a “meth head”. In the context of all this evidence, the defence says that any self-denied use by the accused during the investigation “is worthless”.

[139] Finally, the defence points to times when the interaction between the PA and the accused was not recorded and says this failure to ensure a recording was made should cause the court to have doubts about the reliability of the accused’s utterances.

Analysis

[140] While I have given careful consideration to the circumstances emphasized by the defence in assessing the utterances of the accused, the circumstances leading up to and surrounding the making of the utterances do not leave me with concern about the reliability of the accused’s utterances.

[141] I take a different view of the strength of the evidence in support of the conclusions sought by defence on various issues.

Length of the operation and number of interactions with the accused

[142] The length of the operation is significant. But some qualitative perspective on the contact that occurred within that time frame is required. Some contact occurred between the accused and either the PA or the UC on three of every ten days. In other words, for 70 percent of that time frame, there was no face-to-face contact between the accused and either the UC or the PA.

[143] Further, the nature of the interactions between the PA, UC and accused is also relevant. They were not of a nature or quality to take over the accused’s life as has been the case in other investigations described in the jurisprudence. There were no overnight trips. While some scenarios were lengthy (spanning up to ten hours), others were relatively brief. While the accused had regular contact with the PA from May 2018 onward, his regular contact with the UC commenced only in September. Throughout the time of his contact with each, the accused continued to carry on his own activities and his own life.

The nature of the relationship between the undercover officer/police agent and accused

[144] With respect to this factor, I see nothing that undermines the reliability of the utterances.

[145] The accused and the PA had a long history. The accused said he trusted the PA with his life. He described the PA as like a brother. He also said he used to “take care of him” and “look after him”. Their dealings were consistently friendly. There is no reason on this record for me to believe that the accused was being untruthful when he spoke with his long-time friend about his past criminal offences.

[146] Insofar as the suggestion is made that the PA shamed the accused by telling him he was not like the “old Mike”, I am not persuaded that this had the effect of encouraging the accused to make false utterances to the PA so the accused could continue to project a certain image. There is no evidence on the voir dire from the accused to support this assertion, nor is it an inference that I draw from the evidence. Nor am I persuaded that these comments pushed the accused back to a life of crime – the accused’s interest in committing various crimes was repeatedly expressed long before this interaction occurred with the PA.

[147] The relationship between the UC and the accused was new, but it too was consistently friendly in its tone. There was no boss/servant relationship. While the idea was that the accused and the UC were associates, the accused’s utterances during the investigation indicate he viewed himself as the UC’s “professor”, while he described the UC as a “bumboy”. In many of their interactions the accused instructs the UC on how to commit crimes. There is never any fear expressed by the accused, or, as I will expand on later, any cause for fear based on their interactions. While the accused may have expressed some feeling that he was relying on the UC too much, I am not persuaded that there was a relationship of dependency here, or that this amounted to an inducement to lie to the UC. I take from this comment that the accused would have preferred to be self-reliant and nothing more.

[148] As for the suggestion by the defence that statements made to friends and family are not “inherently reliable”, it misses the mark in this analysis. The question is whether the nature of the relationship between the accused and a particular individual (in this instance the PA) makes it more likely that he was telling him the truth when he made the utterances the Crown seeks to admit in evidence at trial. I find that it does. While human experience tells us that people can lie to and mislead their friends and family, and the issue of ultimate reliability is yet to be decided on a full record at trial, as a matter of threshold reliability, I find the nature of the relationship between the PA and the accused enhances the reliability of the utterances the accused made in conversation with the PA.

The nature and extent of the inducements offered

[149] The accused was a person of modest means and he was experiencing financial difficulties over the course of the investigation. On September 26, 2018, he told the UC he was worried about losing his warehouse if he didn’t come up with some cash soon. The defence emphasizes these and other circumstances in its argument that the accused was induced to make false utterances in order to further his ties with the PA and the UC so that he might benefit economically. It says the accused’s economic need represents a strong inducement to lie. The defence put it this way: “Continuing to associate with the UC and the PA not only provided a solution to his problems with housing and access to a regular supply of drugs to feed his addiction, but also addressed his immediate needs for money, food and companionship. There were significant inducements that would motivate him to do anything to maintain his new relationships. The police were well aware of the Respondent’s vulnerabilities and leveraged them in order to earn his trust and ensure his continued participation in the undercover operation”.

[150] The evidence is that the accused received $9640 over a number of months. I agree with the Crown that this is not such a generous sum that it amounts to an inducement to make false utterances, even given the accused’s financial difficulties.

[151] This is also not a case where the accused was provided with lavish meals or trips or gifts. The meals shared between the PA and the UC with the accused were generally in the nature of fast food. There were no promises of wealth for the accused in the future or any reason for the accused to believe that his association with the PA and UC would enrich him significantly.

[152] This is not to say there were no financial benefits to the accused as a result of his involvement with the PA and UC. For instance, the payment he discussed for the commission of offences (the most lucrative of which was $25,000 to perform a contract killing) was no doubt something that would be of financial benefit to the accused. I also accept that the accused continued his association with the UC because he hoped to get money by committing crimes with him. However, I find that the financial benefits of associating with the PA and the UC do not rise to the level of an inducement that undermines the reliability of the accused’s utterances when speaking with them. Having regard to all the circumstances, I am not persuaded the hope of obtaining money from future crimes, or any other benefits he received as a result of his association with the PA and UC, induced the accused to make false utterances about his past criminal history.

[153] Finally, it is worth noting that the accused had a trade – he was a plumber and had at one point run a plumbing business. While he could have continued doing so, and police reasoned that he could have used some of the funds received during the investigation to further his ability to make a living as a plumber, the accused said (on November 9) that he preferred to do crime rather than plumbing because it paid better. This goes against the idea that the accused was compelled by police to participate in the criminal activity they suggested during the undercover investigation, or that he was vulnerable to investigative tactics by reason of his financial difficulties.

The presence of any threats

[154] The defence emphasizes the information provided to the accused which suggested the UC and PA were capable of extreme violence and were dangerous.

[155] For instance, the defence says the PA made frequent references to violence when talking with the accused about his past. The PA offered to break the legs of an individual (Dave Smith) with whom the accused had a conflict. And the PA told the accused he had killed someone by shooting them.

[156] The accused was told the UC was a “serious” man who had connections to the Irish mob in Quebec. The UC made it clear he had ready access to firearms (one of the simulated crimes also involved the transportation of a bag of guns from a storage unit). The UC spoke about the need to use violence to deal with rats and said that violence was the best way to protect oneself if someone had “dirt” on you. The defence argues that these comments by the UC were meant to ensure that the accused understood that any failure on his part to satisfy the UC could and would be met with violent means. So, it is argued, if the accused backed out of anything suggested by the UC, he and his daughter might become problems and the target of violence by the UC or his connections.

The evidence

[157] The context for the conversations where violence was referenced by the PA and the UC needs to be fully considered in assessing the merits of the defence position. When the PA told the accused he had killed someone (something the PA said sometime after the accused had already told the PA about killing Richard Kimball), the PA talked about how horrible it was and how the crime haunted him still. When the PA offered to break Dave Smith’s legs, this was after the accused had talked about how dangerous he (the accused) was. In response to the comments from the PA that he would break Dave Smith’s legs, the accused said “I’ll do more than that”.

[158] The conversation with the UC where the UC said he had killed someone occurred on November 30, which was well into the investigation and after the accused had already made various disclosures about his own violent history. In particular, this discussion came after a number of meetings where the accused had told the UC he was willing to kill someone (e.g. on September 12 and November 24) and that he had killed before.

[159] For instance, on November 22, the accused and the UC were discussing the fact that killing bothered the PA. The accused said: “He talked to me and I said if it bothers you I’m like it don’t bother me I – I’ll go eat supper… So I could chop somebody up and then go eat supper it don’t bother me it’s not me”. The accused and the UC agreed that you couldn’t trust someone “if [killing] bothers you”. He told the UC: “I’ve had to get rid of people that bothered them… Honest I had to get rid of them get rid of them gone.” The accused continued: “Just just close your mind off if you can’t close your mind off then you’re… in the wrong business”.

[160] At this point the UC asked how the accused did it, whether he was more into “blowing people up” or shooting. The UC said “always for me its always shoot right”. The defence position is that this was a threat or implied threat. The accused’s immediate response to this was: “Yeah well what’s good about blowing up is uh cuz you don’t have to be right there”. The UC responded that he was scared about playing with explosives and said he was asking the accused about that because he didn’t know anything about it.

[161] On November 24, during the robbery of the vehicle for drugs and money, unprompted, the accused raised the possibility of killing the theft victim. He said: “If they want worse done to him I don’t give a fuck… if your buddy decides he wants the worst done, it don’t bother me”. He added: “I’m not crazy but I’ll take care of what needs to be done”. Later that night, he told the UC he had killed “ten probably at least”.

[162] The UC’s disclosure he killed someone came six days later on November 30. It arose as the UC and the accused were talking about using guns. The UC told the accused about an incident he said had occurred twenty years ago.

[163] Essentially, the narrative was that the UC had caught his girlfriend being unfaithful with a friend of his. He told the accused: “He I sent him like I’ll use your line he I sent him on a fucking vacation”. The accused said “yeah” and laughed. A moment later, the accused told the UC: “you get what you ask for sometimes doing that shit”. The accused was sympathetic as the UC talked about his feelings about doing this “when the guy is a good guy”. He said, “Oh like even that one guy I was tellin you the story about he was going to go with his partner back to his old partner I really liked that guy… the one guy that said he couldn’t be tortured he would tell him everything… what could I do I like you and everything but I’m not going to let you back to Toronto hang out with the guy who’d love to know who I was and you can’t take torture you have to tell him everything you know well sorry ya know”. Then he told the UC: “Well first of all you should never tell me something like that but I’m glad you did” and he laughed. After that, the accused continued to talk about his own history.

[164] The defence also points to another series of utterances as threatening to the accused. On November 9, the accused and the UC were again involved in a long conversation that touched on their experiences in criminal offending. At one point the accused told the UC that his weak point was his family. He said, “[I]f I was up to no good I uh uh it’d be deadly trying to find me… catch me uh but when you got family that’s your weak point I know that and uh but the thing is uh if uh you fuck with my family I won’t even hesitate for a second I mean I won’t be stupid… I know that’s one thing I don’t have any fucking patience for people fucking with my family at all man like it doesn’t happen”. The UC agreed as the accused said this and then said, “And depends when I say family sometimes that’s not necessarily means family”. The accused agreed. The UC continued, “Sometimes that’s friends too right”. The accused replied, “Right I know right…”. Then the UC said he could let his brother “sink no problem I wouldn’t say a word”, and the accused said, “Yeah (unintelligible) I got three family members that I would trade (unintelligible) to get my sister back”. The UC and the accused then went on to discuss their brothers, with the accused referring to his brother Darryl as an “asshole”.

[165] The defence says that when the UC later told the accused “you don’t fuck with family unless it’s bad” that in context, this was a threat. Since the UC knew the accused’s family was his weakness, this was a deliberate choice of words intended to convey to the accused that if the UC was displeased with the accused (e.g. if the accused did not bring work to the UC or if he backed out of any criminal scheme proposed by the UC) his family would be at risk.

[166] The voir dire record also contains an affidavit from the accused’s daughter Michelle. She states that she met the UC and her initial impression was that he was dangerous. She says her father told her the UC had “gangster vibes” and thought that he was involved with Montreal and did “bad things”. She says that during the investigation, the UC had pulled into her driveway and she was worried he was going to do something to her. She did not like the fact that her father was associating with him. She said she was worried that every time the accused left with the undercover officer that he would not come back alive.

Analysis and findings

[167] I do not believe that any violence referred to by the PA or UC or any comments they made to the accused amounted to a threat, either express of implied. Nor do I find the totality of the circumstances was threatening to the accused or his family, or that he was ever afraid of either the PA or the UC.

[168] I arrive at this conclusion in part because of the personality of the accused (discussed elsewhere) and based on the context for the utterances the defence says communicated how violent and dangerous the PA and UC were. As is clear from the overview of some of the evidence given above, the accused spoke repeatedly and at length throughout the investigation about his own violence and his attitudes towards the use of violence. What the accused described of his own violence before and after he was told by the PA and the UC that they had killed someone dwarfs any violence reportedly committed by either the PA or UC. I do not believe that the accused was at any time intimidated by or fearful of either the UC or the PA.

[169] Regarding the PA, the accused’s comments during the investigation show that far from being intimidated or fearful of the PA’s claimed murderous tendencies, he thought the PA was not cut out for this kind of “work”. In contrast, the accused repeatedly talked about how it did not bother him. The PA’s suggestion he would break Dave Smith’s legs didn’t intimidate the accused either – the accused replied he’d do “more than that”.

[170] Insofar as the UC is concerned, as I have said, their conversations were always friendly in tone. Their conversations demonstrate both in tone and content that the accused viewed himself as the teacher and the UC, impliedly, as his student. When the UC talks about his violence and his fictional murder of his friend, the accused sympathizes about killing someone you like but reinforces that sometimes it needs to be done. The accused suggests the UC’s (fictional) victim brought on his own demise. There is nothing in that exchange or anything that occurs between the men afterwards that suggests the accused is at all intimidated by or fearful of the UC.

[171] The suggestion that certain comments by the UC, for instance about “not fucking with family”, amount to an implied threat to harm the accused or his family is speculative. The comments are consistent with the accused’s own expressed views. Moreover, the accused had made his own threatening comments about what would happen if someone “fucked with” his family, saying he “wouldn’t hesitate for a second” and that this was something he did not have any “patience” for. He said, “it doesn’t happen”.

[172] I find that the UC did not make comments to the accused in this instance, or at any other time, that amounted to either an implicit or explicit threat to the accused or his family.

The conduct of the interrogation itself

[173] There was no interrogation in this case. The utterances the Crown seeks to admit occurred in the course of conversations between the accused and the PA or UC. While each of the PA and UC sometimes introduced a topic or asked follow-up questions, the tone of the interactions was conversational. The accused was never grilled or peppered with pointed questions. He was not challenged. There was no confrontation with a “Mr. Big” type character that included an interrogation.

[174] While the meeting with the UC and Rocky has some similarities to a traditional Mr. Big scenario, it did not include an interrogation. One element of the meeting with Rocky that is similar to Mr. Big scenarios was the suggestion that Rocky needed details of the offences the accused committed so the accused could “prove himself” and gain Rocky’s trust and work for him. There is no doubt that this was intended to encourage the accused to provide further information to the UC. For reasons I will expand upon later, I do not view that tactic as abusive or, in this context, as having undermined the reliability of the subsequent statements of the accused, most notably his first comments about his involvement with Henrietta Knight. The tactic did not elicit any immediate response from the accused, who said in response that he “didn’t blame” Rocky for his position. Given the accused’s sophistication in matters of criminal offending, I find that the use of this tactic during the interaction with Rocky did not render their conversation an “interrogation”. Nor did it place such pressure upon the accused that his will was overborne and he was functionally compelled to provide details of an offence to escape an interrogation.

The personality of the accused (including his age, sophistication and mental health)

[175] I find that the accused is a savvy and street-smart man. He has lived through a great deal in his 65 years, including four penitentiary sentences, and has functioned in a criminal subculture for a lot of his adult life. He was successful within that subculture, as is evident from his ability to traffic drugs while serving his prison sentences.

[176] As the accused made clear during the course of his conversations with the PA and the UC, over the course of his life, he had also learned a great deal about police tactics and investigative techniques. He was aware that police used police agents. He was aware he could be the subject of a wiretap investigation and said he “got wiretapped about six times and they never went against me”. He said “I consider that every phone’s tapped” and “I’m not ever gonna say anything out loud that I wouldn’t want repeated in court” (September 26; he also made a similar utterance on November 24). He was aware of the Mr. Big technique and had watched a documentary about it on the TV show W5. He and the UC talked about how each worried the other was recording him.

[177] The accused also discussed techniques to avoid detection of criminal offences or to frustrate their investigation. He said he always “mixed stuff up”, so that if people tried to rat on him, their statements would be useless. He told the UC (on November 24) “I’m not giving you exact details but enough to let you know I know what I’m doing”.

[178] He also talked, on November 24, about how it was worth it to him to travel in service of his offending because “now we’ve got a different province investigating right I mean different cops … well every time they wanna come and talk to you they gotta come to Ontario”. He said, “that’s how I do the shit in my own backyard but I try to lead em in another direction”. On the same day, he also told the UC it was good to get the woman you were with “involved too” because then “they’re part of it… even if you’re a little part of it you don’t wanna go to jail either… so it’s a good way to keep somebody’s mouth shut… but if they don’t do nothing wrong and you do everything wrong but they know everything that’s very very dangerous hey”.

[179] The record supports the conclusion that the accused was far from being naïve or easily impressed. Nor was he an easy pawn for manipulation by police or others. He regularly discussed his savvy and independence in committing crimes and getting away with them. He said he preferred to work alone and had no intention of joining any kind of an organization (e.g. on January 25, the accused said to the PA, “I don’t want nothing to do with somebody’s trying to run things, you know what I mean? I can run my own crew”). He discussed his power in various contexts. For instance, he repeatedly referred to a time when he threatened his ex-wife at gun point in the presence of their daughter. He discussed how he interfered with witnesses at one of his trials and his subsequent acquittal. He discussed his history of violence and his willingness to use violence to protect himself and his family. And he talked about his ongoing interest in committing crimes. There is no reason on the record before me to think that all of this was “puffery”. That the accused may properly be characterized as boastful in many of his interactions with the PA and UC does not mean there was nothing truthful about what he was saying.

[180] For instance, without any prompting, and early in his first substantive meeting with the UC on September 12, the accused told the UC “I’m still good for a couple more big ones [crimes]”. When asked to act as a lookout on a simulated theft from a storage unit, and without having been asked to do anything in the future, the accused volunteered “I do everything. I don’t stick to one thing. Whatever you want”. He then went on to discuss things he has done and could do again and provided details about what the Crown says are the Allan bombing and TD robbery.

[181] Another significant example of his ongoing interest in committing crimes expressed without any manipulation from the PA or UC came during the simulated theft from a car in Vankleek Hill. After breaking into a car and stealing a large quantity of drugs and cash, the accused said “That’s what I live for. I love crime. I love crime. I love crime. And I love it …”. The accused also raised, unprompted, the prospect of killing the theft-victim that night.

[182] Later in the investigation, on January 31, when discussing the contract killing to be performed for Rocky, unprompted, the accused said he would be willing to kill the target and anyone else who might be a witness. Finally, on February 13, the day before his arrest, he was recorded saying “I’ll always be a crook” and “there is nothing I like better than crime”.

[183] This evidence cannot be reconciled with the defence submission that the accused was emotionally manipulated and “shamed” back into a life of crime because the government co-opted his trusted friend who repeatedly urged him to talk about crime. I reject that argument.

Mental and physical health

[184] The evidence before me is that the accused did not have a history of being treated for mental illness. There is evidence in the record that shows he complained about feeling depressed or lonely on a few occasions (based on comments he made on May 23 and October 15) and that he had a substance abuse issue, which I will discuss further below. The very limited evidence that the accused sometimes felt depressed or lonely falls far short of supporting a finding that the accused was vulnerable to police tactics because of a mental illness, or that the utterances themselves are unreliable because when they were made the accused lacked an operating mind.

[185] The accused’s physical health was no doubt not what it had been when he was a younger man. He spoke about having been unwell and that his health was declining. He cited a number of issues he had experienced, including weight loss, pneumonia, and suffering the effects of cold weather while living without heat in his warehouse. I have no doubt that the accused’s living circumstances were not conducive to good health, nor that he had had to deal with various issues over the years. However, as with the evidence about his mental health, there is no evidence he was actively suffering from any illness at the time of the investigation. This is not a factor that made him vulnerable to police tactics during the investigation.

Substance abuse

[186] It is clear that the accused had a history of substance abuse. He had lost his teeth as a result of his crystal meth use. The extent of his alcohol and drug use during the course of this investigation is clearly important to consider in assessing the reliability of his utterances.

[187] There is evidence the accused used substances a few times during his dealings with the UC and PA. In particular, the evidence shows that in the PA’s presence (a) the accused drank a beer (the accused also reported having a beer at his daughter’s wedding), (b) he possessed marijuana on one occasion, (c) he snorted what the PA believed was crystal meth once, and (d) the PA saw a “meth pipe” on a seat in the accused’s vehicle. The PA also observed the accused decline meth twice when it was offered. The PA testified that he thought the accused was high twice (October 1 and December 10).

[188] Insofar as the UC is concerned, he and the accused never consumed any drugs together. The UC never saw the accused in possession of drugs. The UC never provided any drugs to the accused or vice versa. With respect to alcohol, the UC and the accused had approximately two sips of whiskey together (October 1). The UC left two cans of beer for the accused on his doorstep when the accused was not home (November 14), but he does not know if the accused consumed them. The most significant consumption that occurred when the UC and the accused were together was on November 24, after the simulated robbery of the car in Vankleek Hill. That night, in a hotel room, the accused and the UC consumed beers over 90 minutes. The video recording shows the accused had five bottles of beer in that time frame. He then got a ride home from his daughter.

[189] The accused’s own utterances about his alcohol and drug use are also important. Early in the investigation, he told the PA he sometimes did “a little hit” of meth in the morning or after dinner to wake himself, but not daily, and that he did not do it to get stoned like addicts do (July 30). Later he told the PA he was not taking drugs every day (October 22). Later still the accused told the PA that he was not taking it daily and only spent about $100 a week on drugs, unlike addicts, who he viewed as “losers” (January 7).

[190] The accused told the UC that he had given up drinking years ago (January 18) and that he was not into drugs (January 31). He expressed disdain for “meth heads” (September 12).

[191] Then there are the utterances of Michelle. On November 23, 2018, she told the PA that she did not think the accused was taking drugs while he was living with her (he was living with her at the time).

[192] In contrast to this, Michelle has provided an affidavit for this proceeding in which she states that:

a. Throughout the duration of the investigation, she believes her father was regularly high on crystal meth and she personally witnessed him use it “on numerous occasions”;

b. The first time she formed the opinion her father’s drug use was out of control was just before and during her wedding in July 2018;

c. She confronted her father several times about his drug use but he was never honest with her about it;

d. On one occasion, she witnessed her father frantically trying to source crystal meth so that he would be able to stay awake to commit what she believed was a robbery with the UC. She saw him use it that day. She also saw him use it on another occasion prior to meeting with the UC;

e. She occasionally saw crystal meth in the house when her father visited her. It made him upset that she would flush it down the toilet. She says he told her he needed crystal meth to function;

f. She observed “dime bags” of crystal meth in his warehouse;

g. She believed his drug use impeded the mental clarity he needed to do plumbing work;

h. She believes his drug use prevented him from being able to focus on all that needed to be done to sell his warehouse.

[193] For reasons I will expand on later, I place little weight on the evidence of Ms. Wentworth. Still, the evidence supports the conclusion that the accused was likely using drugs with some regularity during the timeframe of the investigation. He may well have been minimizing his consumption when he discussed it with the UC. It may be that the accused was minimizing this issue when speaking with the PA as well. However, the focus of my analysis is the reliability of his utterances to the PA and the UC. It is his condition at the time of those utterances that is of central concern, although the question of whether the accused was more vulnerable to having his will overborne because he needed to fund an expensive drug habit is also a consideration.

[194] With respect to the accused’s condition at the time of his utterances, the Crown does not seek to admit any utterances from the two dates when the PA believed the accused was high. The PA and UC otherwise believe the accused to have been sober when he was speaking with them. I am assisted by the recordings (many with accompanying video) to further assess the extent to which the record supports a finding that the utterances were made while the accused was impaired. Considering all of the evidence, I find there is no evidence that at the time of any of the utterances the Crown seeks to admit the accused was impaired by drugs or alcohol. I do not have concerns about the reliability of the accused’s utterances because of substance use.

[195] Insofar as an addiction to drugs otherwise affects the analysis, given the record before me, the accused’s own comments provide the greatest insight into the extent of his drug use. I am mindful his comments, particularly to the UC, may not be completely reliable. All the same, the evidentiary record does not support the conclusion that the accused’s addiction continued to express itself to the extent it had in his past. Whatever the accused’s ongoing involvement with drug use, I am satisfied that it did not rise to the level of making him vulnerable to police tactics because he needed to fund an addiction.

Isolation

[196] The accused lived in a warehouse with other individuals. His circumstances were clearly unconventional and difficult in many respects. Notwithstanding his unusual living arrangements, the accused did have a life that included meaningful relationships with others.

[197] The record is abundantly clear that the accused’s daughter Michelle was an extremely important person in his life. She was a regular presence in the accused’s life over the course of the investigation and appears to have been close to him over the course of his life. She and the accused clearly loved one another. During the investigation, they spent a lot of time together, in person, and over the phone, speaking almost daily. The accused said that Michelle had lied in court for him before and suggested he could use her as an alibi. He also said she sometimes fed him information about opportunities for crimes. On the accused’s account, he was close enough to his daughter that she not only knew about his criminal activity – she played a role in facilitating it.

[198] Michelle provided resources to the accused: a place to stay (including during cold weather), meals while he stayed with her, and the occasional use of her car. The accused said he was welcome at her home anytime and had dinner for him anytime he wanted to go out there. Long term, Michelle wanted to build a place on her property for the accused to live in. For his part, the accused contemplated that he might live in her basement apartment in the future.

[199] Michelle was involved in the accused’s life to the point that she knew his friends and associates. She knew the PA, and even collaborated with him on a letter to be given to his parole supervisor suggesting (falsely) that the PA was employed at the warehouse. She also met the UC. She dropped her father off to meet the UC to engage in simulated crimes and picked the accused up after the night he and the UC shared some beers at a hotel after the simulated robbery in Vankleek Hill.

[200] The accused also maintained what appears to have been a cordial relationship with his ex-wife, who also lived in the area. Sometimes they had contact in person (she was observed coming to the warehouse), but more often it was by phone. They were on good enough terms that she helped the accused make a fine payment. She also helped him clean up the warehouse so it could be sold. In turn, the accused said he installed a sump-pump for her at her residence. In the month he sold the warehouse, phone records show that there were 89 calls between them.

[201] The individuals who lived in the warehouse with the accused, while not close to him perhaps, were at least sometimes on friendly terms with him. He spoke of one of these individuals (Emily Renaud) with some affection, saying he liked her and treated her like a buddy. He said she was good to talk to. Michael Tobin was another resident of the warehouse. The accused told the UC that Tobin was a “good guy”. He and the PA went to visit Tobin at Tobin’s parents’ home, where the accused ended up giving Tobin some money which seems to have been a Christmas gift. The accused went out for dinner with Tobin at least once during the investigation (January 17). While there was also conflict between the accused and the people who lived with him at the warehouse, and the accused sometimes spoke about them negatively (he thought they were stealing crystal meth from him and that Emily had stolen his phone), these individuals did provide the accused with regular social contact, if not social support.

[202] Phone records also show that the accused had telephone contact with many other individuals over the course of the investigation. His “dear friend” Trevor was also an occasional contact during the investigation. He had help in cleaning up his warehouse not only from his ex-wife, his daughter, and her husband, but also from his “friend” Tyler. Over the course of the investigation, he also had contact with extended family (at his daughter’s wedding), his son Derrick (who lived in Hamilton and visited his warehouse), and friends “Dave” and “Jon”.

[203] There were times when the accused expressed loneliness. He spoke of not having friends. But he also said a number of things that suggested he was content with his circumstances. He said he did not want to be in a romantic relationship. He didn’t want the headaches that came with friends. He talked about not wanting visitors because he doesn’t like people. He said he “didn’t need anybody” other than himself and was “a bit of a loner” by choice and that being a loner was less trouble in the end.

[204] All in all, I would not characterize the accused as socially isolated. Regardless, I do not believe that the accused’s living circumstances or lack of social supports left him vulnerable to police tactics to get him to talk about his knowledge about certain criminal offences.

Failure to record certain interactions between the accused and the PA

[205] The defence argues that the failure to record certain interactions between the accused and the PA is a factor that is relevant to the assessment of reliability as well as to its argument that there was an abuse of process in this investigation.

[206] The record is clear that there were interactions between the PA and the accused that were not recorded, or not fully recorded. At the beginning of the investigation, their interactions went unrecorded because judicial authorization to do so had not yet been granted. After that authorization was in place, the interactions between the two were unrecorded any time the accused went to see the PA at the recycling depot where the PA worked, even though the defence says it should have been clear to investigators that this was something that would occur with some regularity. The Crown also concedes (via a letter to the court dated March 23, 2022, reviewed on consent of defence following the completion of submissions) that on two occasions (September 21 and October 15) the recording device was not with the PA for about 55 minutes and 4 minutes, respectively. It maintains, however, that there is no evidence that anything abusive or inappropriate occurred at any time when the PA and the accused had unrecorded contact.

[207] I begin by noting that the Crown does not seek to introduce into evidence any utterances by the accused that were not recorded. I also agree that there is no evidence that anything abusive or inappropriate occurred during the times when no recording device was present. No reference to these occasions appears to be made at other times. As I have said, the relationship between the two men was friendly and not abusive at any other time that was recorded. The PA has been cross-examined and no evidence to this effect was given by him. The accused has opted not to provide evidence on this application. While in theory a gap in recording gives rise to the opportunity for abusive conduct which would not be captured, to find that this occurred on this record would be speculative.

[208] To the extent that this feature of the investigation gives rise to abuse of process concerns, I will address those later in my reasons.

Conclusion on Hart factors

[209] I have considered the defence submissions about the accused’s capacity for deception and the extent to which this may explain either his utterances or his lack of expressed fear of the PA or UC. I do not reject the notion that the accused might lie when he had an incentive to do so. The defence characterizes the accused as having a “boastful nature”. The record supports that view. I have considered this aspect of the accused’s personality in my assessment of the probative value of the evidence for the purposes of determining the threshold reliability of his utterances.

[210] My conclusion also considers the evidence of Michelle Wentworth and Randy Beck as it relates to the various factors discussed above.

[211] I agree with the Crown that the evidence of Michelle Wentworth suffers from various frailties which undermine the credibility of the evidence given by her. Given the totality of the record, including what is captured during the undercover investigation, the issue of bias is a real one. The accused’s comments about Michelle suggest that she has facilitated his criminal activity or assisted him in covering it up, including by lying in court for him. I can see no reason on this record why the accused would falsely implicate his daughter in this type of conduct. There is also evidence that during the investigation, she was willing to author a bogus employment letter for the PA so that his parole conditions might be relaxed. The Crown’s additional submissions on why Michelle Wentworth’s evidence is unhelpful also have merit, particularly regarding the different accounts given by the accused and Michelle on certain things (e.g. the extent and impact of his drug use). Given these issues and the significant reasons to be concerned about Ms. Wentworth’s credibility, I give her evidence little weight.

[212] The evidence of Randy Beck does not alter my assessment of the issues. Certainly, there is no issue of bias with this witness. However, the force of his comments in his affidavit were diminished by cross-examination. Ultimately, Mr. Beck agreed he was not saying that the accused was high or intoxicated during any of his three meetings with him. As for his impression that the accused was “very sick”, he qualified his evidence. He said he thought the accused might be ill, not “very” ill. He said this was an assumption based on what he saw in the warehouse and the fact that the accused was physically slight. He agreed he did not see clear signs of physical distress and the accused’s presentation was not severe enough for him to have made comments about his physical health, or for him to ask about it. Mr. Beck said that his prime concern was that his client had a building full of debris which would be difficult to clean out. His secondary concern involved his assumption that conditions were so unhealthy that the accused was ill and unable to make agreements. However, as they went through the sale process, Mr. Beck said he was confident the accused understood the transaction, even if he was less confident, he could vacate the building in time to close the sale.

[213] The circumstances in which the accused’s utterances were made will no doubt be an issue that is revisited at trial and an important component of the analysis of the ultimate reliability of the evidence in the context of the trial record. All that is required at this stage is that the statements be sufficiently reliable to warrant admission at trial.

[214] On the first prong of the Hart test, I find no basis to conclude that the reliability of the utterances is undermined by any of the circumstances in which they were made such that their admission depends on the strength of the evidence having regard to the second prong of the analysis. The accused was speaking with a trusted friend (the PA) and a new associate whom he appeared to trust, and with whom he spoke freely and openly about very sensitive subjects. The accused’s comments to the UC about his prior offending were generally volunteered and not the product of any questions from the UC. These circumstances enhance the reliability of the statements.

[215] As for the Hart factors that have been raised as concerns, as I have said, I find that the accused was a street-smart individual who was not vulnerable to being easily manipulated or led along. While he did have financial issues, I find he was not dependent on his association with the PA and UC for his income and support. Very little in his life seems to have changed as a result of anything that happened in the investigation.

[216] Further, over the course of the investigation, the accused came to have the secure (if modest) income of a monthly pension, and the knowledge that he would have some funds available to him from the sale of his warehouse. He always had the support of his daughter who provided him with meals and a place to stay. Even still, and after negotiating the sale of his warehouse, he was prepared to engage in discussions about a contract killing. Whatever his motivations for doing that, which presumably included a financial component, in the face of the resources he was about to obtain from the sale of his warehouse, it is hard to see how his financial circumstances could be so manipulated as to coerce his participation in such a scheme or to compel him to make false utterances to convince others he was up to this contract. Nor do I find that his financial circumstances were so dire prior to the sale of the warehouse that there was a real risk he made up the history he disclosed for the financial benefit of continued association with the PA and UC.

[217] The evidence also does not support the view that the accused was so emotionally bonded to the PA and UC that he said false things to impress them and further his association with them. There was no lavish lifestyle as a result of his association with them. While the accused was friendly with both the PA and the UC, there was no element of “belonging” to their group that made him vulnerable. The accused’s statements lead to the conclusion that he viewed the UC as a student who might learn from him. While it is an easy conclusion that his tone was often boastful during their interactions, and that he was likely trying to impress the UC, this does not mean he was making things up. Having regard to the record on the voir dire, it seems more likely that he was generally speaking truthfully rather than engaging in wholesale fabrications about his criminal past.

[218] In any event, to the extent that any of the factors examined above could be said to raise any concerns about the reliability of the accused’s utterances, the markers of reliability evident in the second prong of the Hart analysis demonstrate the threshold reliability of the evidence. I turn to the second prong of the Hart analysis now.

2. The markers of reliability – detail and confirmatory evidence

[219] Hart directs that 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, or whether it accurately describes mundane details of the crime the accused would not likely have known had he not committed it.

[220] Hart also confirms that confirmatory evidence is not a hard and fast requirement. Courts in subsequent cases have held that “if the confession is sufficiently detailed, its ‘content and context’ may ‘speak to reliability even where there is no independently objective confirmatory evidence.’”: see e.g., R. v. Moir, 2016 BCSC 1720, at para. 31, aff’d 2020 BCCA 116, citing R. v. Randle 2016 BCCA 125.[^1] In Moir, the trial judge’s reliance on the detail and sequence of events, the internal and external consistencies in the confession, the accused’s demeanour, the accused’s use of hand gestures to describe certain aspects of the killing, and his selective disclosure as enhancing the reliability of the confession was upheld on appeal: see Moir, at paras. 105-113. The British Columbia Court of Appeal was careful to note that while “repetition does not, and should not be seen to, enhance the value or truth of testimony”, the trial judge “was entitled to consider the internal consistency of the Mr. Big confession as suggesting ‘reliable recitation from memory’ as opposed to a made up story”: see Moir, at paras. 111-112, citing R. v. Ellard, 2009 SCC 27, 67 C.R. (6th) 78, at para. 31.

[221] While confirmatory evidence is not a pre-requisite to a finding of threshold reliability, 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: see Hart, at para. 105.

The approach to confirmatory evidence in this context – does Bradshaw apply?

[222] The parties take different positions on what law applies to the consideration of what constitutes “confirmatory evidence”.

[223] The defence says that the reasons in Hart relied upon the law regarding the assessment of threshold reliability of hearsay statements and that the approach taken to the assessment of corroborating evidence in R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, necessarily applies. The Crown says that the standard for assessing what may be corroborative is not so stringent. It says the court should follow the cases that have used the approach taken in Vetrovec v. The Queen, 1982 20 (SCC), [1982] 1 S.C.R. 811: see e.g., R. v. Ledesma, 2021 ABCA 143, 403 C.C.C. (3d) 268, at para. 66.

[224] The defence position is grounded in this passage in Hart at para. 100-101:

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. Under the principled approach to hearsay, hearsay becomes admissible where it is both necessary and reliable. Reliability can generally be established in one of two ways: by showing that the statement is trustworthy, or by establishing that its reliability can be sufficiently tested at trial… The latter route to reliability is often met through an opportunity to cross-examine the hearsay declarant, but this has no application to the present context because the accused is not a compellable witness.

However, 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). [Emphasis added.]

[225] I am not persuaded that the approach to confirmatory evidence taken in Bradshaw for the assessment of the threshold reliability of hearsay applies in this circumstance. As a preliminary matter, it is worth noting that Bradshaw and its new test for the assessment of confirmatory evidence came after Hart was decided. While the reasons in Hart, including the passage above relied upon by the defence, were authored by Moldaver J., his strong dissent in Bradshaw suggests this is not an approach he would endorse.

[226] That is not the end of the matter, however. There are principled reasons for finding that the approach taken in Bradshaw to the assessment of confirmatory evidence does not apply in this circumstance where the reliability concern relates to statements made by the accused person and not someone else.

[227] For instance, in R. v. Baranec, 2020 BCCA 156, 387 C.C.C. (3d) 5092, the Court of Appeal for British Columbia rejected a similar argument by the defence. It did not accept that Bradshaw had modified the admissibility inquiry set out in Hart. In doing so, it relied on its decision in Moir.

[228] In Moir, the court elaborated on the relationship between Bradshaw and Hart. Because this important issue has not received similar attention in Ontario, and the reasoning by Newbury J.A. in Moir is so complete and persuasive, despite their length, I include the entirety of her comments below:

[94] … Setting aside for the moment the issue of corroborative evidence, I view the legal regimes established by Hart and Bradshaw as different and distinct. Looking at the matter first on a common sense level, it seems to me highly unlikely that, having made a major substantive change in 2014 in the common law of evidence as it applies to Mr. Big operations, the Supreme Court would not have acknowledged in Bradshaw that it was again changing or ‘recasting’ the prescribed analysis — if that had been intended. No mention was made in Bradshaw of the factors unique to Mr. Big statements — the accused’s right to silence, his or her personality and vulnerability, the material inducements, the references to violence, etc. [Emphasis in original.]

[95] More important, the ratio of Bradshaw does not extend to the Mr. Big context. As already noted, the statement sought to be adduced in Bradshaw was not an inculpatory statement or ‘confession’ made by the accused Bradshaw (who of course had the right to remain silent at trial) to undercover police; it was an exculpatory statement made by a witness who had already been convicted and who refused to testify at Mr. Bradshaw’s trial. Notably, the majority stated in Bradshaw at para. 82 that the accused’s own statements were “of course” admissible as admissions against Mr. Bradshaw, “quite independently of whether Thielen’s reenactment video is admitted.” This remark strongly suggests that the majority did not intend to modify, much less replace, the approach outlined in Hart to Mr. Big statements.

[96] As we have seen, Hart created a very specific “solution” to a very specific problem — how to “[guard] against the dangers posed by Mr. Big operations, while ensuring the police have the tools they need to investigate serious crime.” (At para. 84.) Prior to Hart, (voluntary) confessions made to an undercover police officer were admissible under the well-established exception to the hearsay rule for ‘admissions against interest’ or ‘party admissions’, even though the accused believed when making the statement that it was in his or her interest to admit the crime. This exception had a different rationale than other exceptions to the hearsay rule: as noted by Sopinka J. in R. v. Evans 1993 86 (SCC), [1993] 3 S.C.R. 653:

The rationale for admitting admissions has a different basis than other exceptions to the hearsay rule. Indeed, it is open to dispute whether the evidence is hearsay at all. The practical effect of this doctrinal distinction is that in lieu of seeking independent circumstantial guarantees of trustworthiness, it is sufficient that the evidence is tendered against a party. Its admissibility rests on the theory of the adversary system that what a party has previously stated can be admitted against the party in whose mouth it does not lie to complain of the unreliability of his or her own statements. As stated by Morgan, “[a] party can hardly object that he had no opportunity to cross-examine himself...”. [At 664.]

(See also R. v. Terrico 2005 BCCA 361 at paras. 48–50 and R. v. Bonisteel 2008 BCCA 344 at paras. 81–3.)

[97] We have seen that because of the particular policy concerns expressed by the majority in Hart, the Court reversed the common law exception to reflect the fact that Mr. Big confessions “undermine” the usual assumption that people do not confess to crimes they did not commit. The Court made such confessions presumptively inadmissible, such that the Crown was required to establish on a balance of probabilities that the probative value of a Mr. Big confession outweighs its prejudicial effect. This weighing, the majority said, will “never be an exact science”, but trial judges routinely weigh the probative value and prejudicial effect of evidence.

[98] Moldaver J. acknowledged in Hart that a “parallel perhaps can be drawn” between this process and the assessment of “threshold reliability” that occurs under the principled approach to hearsay statements; but he also pointed out the difference between the two situations. (At para. 100.) In the Mr. Big context, there is no opportunity to cross-examine the hearsay declarant, since the accused is not a compellable witness. Bradshaw, on the other hand, was concerned with the “exceptional” cases in which none of the recognized exceptions applies. This may occur in a wide variety of fact situations.

[99] In Mr. Big cases, of course, there will always — or almost always — be the possibility that the accused was not truthful in his statement to the Boss. Here, counsel for Mr. Moir contend that he knew of the holdback evidence because he was at the scene to help ‘carry and bury’ the deceased after his father had killed her. This type of argument can arise whenever an accomplice or helper was involved. In other cases, the defence might argue, or the judge might speculate (and evidently is expected to speculate), that it is possible another person, perhaps the ‘real’ killer, told the accused how the crime was committed. (See Johnson, supra.) Alternatives like this could seldom be ‘ruled out’ to the degree of certainty Bradshaw requires. Thus if the law required that as a condition to admissibility, corroborative evidence (including holdback evidence) must exclude all other plausible explanations for the statement than that it was truthful, such evidence could rarely if ever be admitted. In my opinion, this result would upset the balance that was carefully struck by the majority in Hart between the Crown and the accused in Mr. Big cases. (It will be recalled that at para. 82, the majority in Hart rejected the notion of treating Mr. Big confessions on the same basis as hearsay statements under the principled exception.)

[100] Interestingly, Moldaver J. dissented in Bradshaw. He expressed the view that the majority had departed from the “functional approach” to the principled exception and replaced it with a “restrictive test that unnecessarily complicates the analysis and discards crucial information for evaluating threshold reliability.” The new approach, he said, created a “threshold test within a threshold test” and conflated threshold and ultimate reliability. In his words:

… The trial judge does not need to be satisfied that the hearsay statement is true for it to meet the threshold reliability requirement under any of the three ways set out above. As with the common law tests for Mr. Big statements and expert evidence, the reliability of a hearsay statement need not be established to a point of certainty before it can be admitted: R. v. Hart, 2014 SCC 52 … R. v. Abbey, 2009 ONCA 624 … at para. 89. Otherwise, the trier of fact’s role of determining the ultimate reliability of a hearsay statement will have been usurped. [At para. 113; emphasis added.]

[101] I end this too-long discussion by concluding that the Court in Bradshaw did not intend to change or supersede the “approach” established by the majority in Hart for the assessment of confessions made to a Mr. Big. It follows that the trial judge did not apply the “wrong test” in assessing probative value versus prejudicial effect in accordance with Hart. Contrary to what Mr. Moir asserts at para. 71 of his factum, the reliability assessment of a Mr. Big confession under the Hart framework is not “the same as” the assessment of the threshold reliability — procedural or substantive — of a hearsay statement under the principled exception. Many of the factors used to demonstrate the trustworthiness of a hearsay statement are “apposite”, but the particular dangers sought to be guarded against, the right of the accused in Mr. Big cases to remain silent, the legal terminology used in assessing reliability, and the structure of the prescribed analyses make the two approaches, in my respectful view, clearly different.

[229] I agree with the Moir court’s reasoning and conclusion. I decline to incorporate the Bradshaw approach into the assessment of confirmatory evidence in this context.

[230] Instead, I rely on the general principles that have developed relating to what makes evidence “confirmatory”. In the context of another Mr. Big application, the court in Ledesma took this approach:

[66] Whether evidence can be confirmatory is a common sense analysis of whether the evidence can provide comfort to the trier of fact that the witness is telling the truth: R. v. Klaus, 2019 ABCA 483, para 10, citing R. v. Khela, 2009 SCC 4, para 39, [2009] 1 SCR 104. Confirmatory evidence need not directly implicate the accused or confirm the Crown witness’s evidence in every respect, but should “be capable of restoring the trier’s faith in the relevant aspects of the witness’s account.

[231] I see no reason to depart from that approach here. I also rely on the following settled principles from the Vetrovec line of authority as confirmed in R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, and subsequent cases. Given the concern in the Vetrovec context about the reliability of the evidence, and the danger of wrongful convictions arising from unreliable (and incredible) witnesses and evidence (see for instance Khela at paras. 2-3), these principles seem well-suited to the analysis in this context. These principles include the following:

a. Confirmatory evidence is to come from a source independent of the declarant that is capable of enhancing trustworthiness: see Khela, at para. 39.

b. Confirmatory evidence may include evidence that is “not strong”: R. v. Dhillon (2002), 2002 41540 (ON CA), 161 O.A.C. 231 (C.A.), at paras. 25-26; see also R. v. Ponce, 2012 MBCA 87, at para. 71.

c. It must touch on a relevant or material aspect of the account, but the confirmatory evidence need not, itself, be incriminatory in nature: see R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328, at paras. 14-15; Khela, at paras. 40-43; R. v. McFarlane, 2012 ONCA 355, at paras. 11-12; and R. v. Tse, 2013 BCCA 121, at paras. 117-118, aff’d 2012 SCC 16, [2012] 1 S.C.R. 531.

d. Whether or not the potentially confirmatory evidence is consistent with guilt or innocence is not the question – rather, the question is whether the evidence confirms or supports relevant parts of what the declarant said: see McFarlane, at para. 12 per Doherty J.A.; Khela, at para. 43.

e. One witness’s evidence, and even that of an unsavoury witness, can confirm the evidence of another witness: see R. v. Magno, 2015 ONCA 111, 321 C.C.C. (3d) 554, at para. 30; Tse, at paras. 107-111.

f. Individual items of confirmatory evidence need not implicate the accused. However, when looked at in the context of the case as a whole, the items of confirmatory evidence should give comfort to the trier of fact that the declarant’s assertions are trustworthy: see Khela, at paras. 41-42.

Analysis

[232] Any markers of reliability found in the details of the statements themselves or any relevant confirmatory evidence will necessarily be different for each of the offences alleged. Accordingly, I agree with the defence that at this stage of the Hart analysis, an individual inquiry should be conducted in relation to the utterances pertaining to each offence charged. I turn to that now.

[233] As Hart makes plain, the details provided by the accused about the alleged offence are important to the assessment of their reliability. At the risk of being overly complete, given the importance of the detail provided in the statements to the analysis, it is useful to set out precisely what the accused said about the various alleged offences as well as the particulars of the arguments made by the Crown and defence about what evidence confirms or undermines the accounts given.

(i) Henrietta Knight (June 2, 1995)

[234] Unlike the utterances relating to the remaining offences charged, the utterances relating to the home invasion and death of Henrietta Knight are made for the first time late in the investigation on January 31, February 13 and February 14, 2019. However, the accused had made other utterances that provided relevant contextual information before then.

[235] The first disclosure that the accused was involved in an offence relating to Henrietta Knight was on January 31 and was made to the UC as they were returning to Kingston after the meeting with “Rocky”. The exchange is captured on video. Since it is made in the immediate aftermath of the meeting with Rocky, which the defence alleges was abusive, the details of what happened during the conversation are of some importance.

[236] The accused and the UC were talking about what types of cases involving a person’s death or disappearance attract police attention. The accused told the UC “uh if you wanna commit a murder go to Kingston they got the lowest solve rate solving murders [in Ontario]”. The accused said that in most big cities, “they get to the bottom of it when something happens… they usually find out”. He went on to talk about some of the “hardcore” people who ended up landing in Kingston and “then something might happen and then you don’t know who did it”. He went on:

Michael Wentworth: Well cuz it comes up uh the one I can’t talk to the one the one I was worried about cuz she had these

UC #196: Huh

Michael Wentworth: She had these it was a she (motioning the shape of breasts at his chest)

UC #196: Oh it was a she

Michael Wentworth: And that it was very ugly and I don’t wanna talk about that one but it comes up all the time

UC #196: Oh really

Michael Wentworth: Yeah but I have no con-connection to it but I

UC #196: You have not what

Michael Wentworth: There’s no way to connect me to it so

UC #196: Oh okay

Michael Wentworth: Cuz I don’t know the person

UC #196: Oh

Michael Wentworth: So but unfortunately it went bad

UC #196: It was a contract

Michael Wentworth: No it just went bad supposed to have a lotta money in the house ya know and that was all bullshit

UC #196: Aww fuck

Michael Wentworth: And uh I guess I didn’t notice I was as rough as I was I didn’t know and uh later on that was it say a couple of weeks (laughs) so I don’t wanna talk about it but uh it was nothing to brag about it but that’s a tip for you eh a tip

UC #196: Didn’t get a nickel or a dime

UC #196: Somebody was telling you they had a lot there

Michael Wentworth: Yeah yeah

UC #196: And they didn’t have

Michael Wentworth: Yeah she was a hoarder and she’s you know don’t believe in bank and blah blah blah blah blah and the person that give me the tip she’s dead now not because of me…

Michael Wentworth: Later on she had medical complications due to what happened

UC #196: Oh kay kay kay

Michael Wentworth: Yeah and uh its nothing to be proud of I mean it’s I’m disgusted by it but uh uh uh

[237] Almost two weeks after this exchange, the accused again discussed this offence with the UC. This time, the UC asked him if he remembered the cold case he had mentioned and told the accused he had looked it up. He showed him an article on his phone and told the accused to scroll down because there were pictures. The UC directed the accused to the one he thought the accused was talking about and asked, “does that make sense?” The accused replied, “oh yeah, that’s it”. He said “that was a nothing that was not meant to be”. Thereafter, the accused provided further details, though he spoke in a lower tone of voice and made various gestures. He referred to the victim as a male. The UC assured him that he had “swiped” the vehicle and not to worry.

[238] In that exchange, while pointing to the media article on the UC’s phone, the accused started winking and put his finger to his mouth as if to indicate he was reluctant to talk about it. That exchange included the following:

a. While pointing at the article about Mrs. Knight, the accused said the victim was a “young guy”;

b. He said “he wouldn’t open the safe” and said the victim was stubborn;

c. He motioned hitting the head area;

d. He said “I want the stamp collection whatever” and winked;

e. He knocked to gain entry to the victim’s house;

f. He showed by motion how the victim was bound around the arms;

g. He made a gesture suggesting he had worn a face mask after being asked if anyone would have seen him;

h. The person who gave him the tip was dead. He had loved her and would have “hooked up with her in a heartbeat” when his wife left. The person died of a brain aneurism.

[239] At another point in the investigation, the accused had also referred to Lori and his relationship with her. He had said that Lori Parker’s husband is Rob Parker and that Lori died of a brain aneurism. Accordingly, the UC referred to Lori as the person who gave him the tip during their next conversation about this offence the next day, which the accused did not correct.

[240] On that occasion, the accused told the UC:

a. Lori was his wife’s best friend. The accused had had a sexual relationship with her;

b. Lori lived “in a pretty good area” and was “really straight”. When asked by the UC how she knew about Ms. Knight’s address, he said Lori had heard rumours and that there were rumours around when people are hoarders; and

c. Lori could keep a secret – “I mean she knew about (unintelligible) not details but she knew you know what I mean… It’s hard not to know because when something big goes down…”.

The confirmatory evidence relied upon by the Crown

[241] The Crown argues there is significant confirmatory evidence. This includes evidence that:

a. There was tape on a chair in the victim’s house following the home invasion;

b. There were bruises on the victim’s hands and arms and DNA was found on the tape on the chair that was consistent with the victim’s DNA profile;

c. The photos of the house suggest it was ransacked;

d. There were no signs of forced entry to the house;

e. Photos of the victim taken on the day of the home invasion (as well as medical investigation) confirm she suffered severe bruising to her face and neck. The Crown says this shows that someone was “rough with her”;

f. The victim did die months later as a result of medical complications;

g. At the time of the home invasion, Lori Parker and her husband lived on the same street as the victim;

h. At the time of this investigation, Lori Parker had died of an aneurism; and

i. Under oath, during a videotaped interview on February 16, 2019 (two days after the accused’s arrest) Robert Parker told police that:

i. Lori Parker told him she gave the accused the tip about Henrietta Knight;

ii. The accused confessed his involvement in this offence to him (though the Crown says in less detail and the details of what the accused said are not part of the record for the voir dire); and

iii. The accused said the victim “was probably the toughest person he had to go up against”.

[242] The defence argues various circumstances tell against the reliability of the utterances, including:

a. The accused identified Ms. Knight from a cell phone article only after the UC showed it to him – the accused could have picked any one of the crimes mentioned in the article he was shown. He might also have heard about the offence in the media and taken credit for it to boost his criminal credibility;

b. The timing of the disclosure is extremely suspect since it was raised only after Rocky asked for proof of the accused’s criminality. During this exchange with the UC, the accused also misled the UC about the supposed location where he had dumped Mr. Kimball’s body;

c. Ms. Knight’s police statement did not suggest the accused was the perpetrator. Further, she gave a description of the perpetrator’s face, while the accused’s account was that he had a mask on – a major inconsistency; and

d. Overall, the accused’s statements regarding this allegation contain very little detail and no aspects of those details are ones only the offender would know.

Media attention

[243] The synopsis of the alleged offences, which forms part of the evidentiary record, indicates that over the years, police and the media rebroadcast this unsolved “cold case” with a general appeal to the public to provide information if anyone knew anything that could assist. The record before me is not clear as to what information about the offence was in the public domain. Clearly, at least one article remained online about this offence, since it was shown to the accused by the UC.

Analysis

[244] I find there is a compelling amount of detail in the accused’s utterances about this offence that enhances the reliability of his narrative. His description of how the home invasion was an offence that “went bad”, and his feelings about it (e.g. he didn’t want to talk about it and it was nothing to be proud of) arguably suggest that this was a lived experience, and not a made up tale. That he expressed regret about this event also goes against the idea that he was boasting and making things up to impress the UC.

[245] With respect to arguments made by the defence, I note that the accused divulged involvement in this offence almost two weeks prior to the officer showing him the article in the media. The details he provided on January 31 are compelling on their own and were in no way the product of suggestion by the UC or the media article. Further, many of these details were repeated in the subsequent exchanges, including that he intended to rob the victim, that the killing of the victim was not intended, and that he targeted the victim’s home because he had received a tip that the victim was a hoarder. His account is fundamentally consistent in these respects.

[246] Plainly, there are inconsistencies in the utterances made on January 31 and February 13. The victim is first described as having breasts and being a woman, while later the accused refers to the victim as a “young guy”, who “wouldn’t open the safe” so the accused could get his “stamp collection”. On this point, it is relevant that the accused had at other times during the investigation made clear that he was suspicious about being recorded, including by someone undercover. He had said he would intentionally alter facts to throw off investigators. In this context, and given his clear concern (particularly obvious when watching the video) that he is being recorded during the second conversation, the significance of these discrepancies lose their full force. The accused’s use of gestures which cannot be recorded by audio devices is notable and enhances the reliability of his account.

[247] I do not find the timing of the accused’s first disclosure undermines its reliability. While it did follow upon the meeting with Rocky, it is raised by the accused quite naturally in his discussion with the UC. There is no suggestion the accused is telling the UC about this event so that the UC can find confirmation in the media about it because he has succumbed to pressure from Rocky. While the UC does return to the accused with a media article about it, this was not at the urging of the accused in a bid to satisfy Rocky’s concerns about him. While this issue also relates to the first prong of the Hart analysis, given the defence arguments on the issue at this stage, I amplify my findings finding here.

[248] As for the suggestion that the accused may have heard about the offence in the media and taken credit for it, this is speculative on this record. Again, it seems strange that if the accused were boasting to falsely take credit for this offence that his comments about it would involve expressions of regret about how it “went bad” and how he was “disgusted” by it and not proud of it.

[249] On the other hand, there is significant evidence that is confirmatory of the accused’s account. The independent evidence cited by the Crown is extensive. The strength of that evidence as confirmatory evidence will ultimately be determined on the trial record. In respect of all the allegations, the defence is quite right to point out that the accused’s knowledge about certain details may not have much force given other ways he could have acquired that knowledge. However, at this stage, I find the evidence cited is cumulatively capable of buttressing my faith in the relevant aspects of the accused’s account.

[250] Among the stronger pieces of confirmatory evidence are the fact that Lori Parker and her husband lived on the same street as Ms. Knight, Ms. Parker died of an aneurism (strengthening the suggestion she is the “Lori” who gave the accused the tip), and Robert Parker has given a statement saying that the accused told him he was involved in this offence and that Lori had told him she gave the accused the tip about Ms. Knight. This information was provided to police after the accused’s utterances and arrest. On the record before me, it seems this is evidence that was obtained as a result of the accused’s utterances. In other words, the accused’s utterances led police to additional evidence implicating him in this offence, a marker of reliability identified in Hart.

[251] While I am alive to the issues raised by defence, which may be revisited when the issue of ultimate reliability is argued (including the fact that Ms. Knight’s account and the accused’s differ on the issue of whether the perpetrator was masked), I find the detail in the utterances, and the available confirmatory evidence, sufficiently compelling to demonstrate on a balance of probabilities the threshold reliability of the accused’s account of this offence.

(ii) The robbery of the TD bank (July 4, 1995)

[252] The utterances that are relevant to this offence are made over the course of the investigation, including on August 1, August 20, August 24, September 12, October 5, November 16, November 24, January 13, and January 31.

[253] Over the course of those dates, the accused said (and sometimes repeated) that:

a. Pat Maddigan was his partner for this offence;

b. Pat Maddigan’s wife is Debbie;

c. He built the ram on the stolen van used to back into the bank. The ram was made with 4 x 4s. He said: “the ram you make the ram the same size as the windows you take the whole fuckin thing out… but I miscalculated took out part of the wall too ya… well just didn’t hit it perfect but I knew no matter what is going through… and my getaway car was from here to Tim Horton’s so it didn’t matter what we did to the van cuz if we had to we could have run over to it”. He said he drove through the window “before they even opened”;

d. He paid a woman named Bonnie to signal him when to go – once she gave the signal he backed the truck into the bank;

e. Bonnie was a friend of his and his wife’s. She did not like going out of her house. She had a son who is now an adult;

f. He got $250,000 from the robbery. The newspaper only reported that a “substantial amount” of money had been robbed;

g. He got $140,000 of the proceeds and his partner got $80,000. He gave $10,000 to the woman who signalled him to go;

h. His partner bought a purple Harley Davidson with his funds;

i. The accused had a shotgun during the robbery;

j. In the course of the robbery, he interrupted a lady who was running for the vault. The woman was pushing a cart with the night deposits towards the safe. The accused said he got the night deposit bags, which were “zipper bags”;

k. There was a getaway car around the corner;

l. The bank was not the original target and the accused had been watching a beer store; and

m. Richard Kimball was in custody at the time of the bank robbery and wrote to the accused when he read about it in the newspaper.

[254] The accused also went with the PA to the spot where the bank branch used to be. He identified where the night deposit box had been and where he had parked. He also showed the PA the location of the window that was smashed and the getaway route. He explained that he went to a second awaiting vehicle.

[255] At least twice, the accused discussed the benefits of robbing a bank after a long weekend because the bank would have received the maximum number of night deposits. He also said it was best to rob a bank first thing in the morning and provided a rationale for that too.

The confirmatory evidence

[256] The Crown notes that the location pointed out by the accused to the PA, while no longer a bank, was the location of the bank that was robbed. It says there is other confirmatory evidence, including the following:

a. Entry to the bank was gained by driving a truck through a window. The location of the window was as described by the accused to the PA when at the scene years later;

b. Photos from the investigation confirm 4x4s on the back of the truck/van used to back into the window;

c. The owner of the van confirmed it had been stolen and altered;

d. The bank was robbed before the bank opened the morning of the first day following the Canada Day long weekend;

e. Bank employees confirm night deposit bags were stolen. One employee confirmed that the bags had been loaded onto a cart and she was trying to push it toward the vault but was interrupted by a masked robber ordering her to get down;

f. Employees confirm the robbers had shotguns;

g. Police did not know there was a signal person involved and no media article from the time revealed this. Several witnesses describe a woman on foot near the bank at the time of the robbery. She refused to provide her name to others who asked for it as 911 was being called and she left before police arrived;

h. Police obtained a photo from Pat Maddigan’s wife (Deb Rawlins) of herself and her husband, the accused and his ex-wife, and another couple: Bob Kotar and Bonnie Nicholl. During the investigation, the accused described Bob Kotar as a close friend of his. Bonnie Nicholl’s son was interviewed and confirmed his mother had agoraphobia and would rarely leave the house. He said that he and his mother had lived with the accused and his ex-wife when they first moved to Kingston;

i. Maddigan’s wife has provided photographs confirming the friendship between the accused and Maddigan. She also confirms Maddigan purchased a purple Harley Davidson motorcycle;

j. The plaza where the bank was located had a beer store;

k. The PA gave police an interview in 1996 where he said the accused confessed to him that he had robbed the bank and killed Richard Kimball. The PA said this confession occurred while they were drinking. The accused provided confirmation that a conversation of this kind did occur with the PA in the past. During the undercover operation, the accused told the UC that he “said some shit to Barney cuz I got carried away cuz I drank too much”. He also told the UC that he once told the PA about killing Kimball when he was very drunk;

l. The accused told the PA that police came to speak to him and his ex-wife about the bank robbery and they both gave a false alibi. Police have confirmed that the accused and his wife did both give statements to police and that they provided the same alibi. The accused’s ex-wife has now pleaded guilty to obstructing justice for giving a statement/alibi knowing it was false for the purpose of diverting suspicion from the accused; and

m. Richard Kimball was in custody at the time of the bank robbery.

Media attention

[257] The robbery received media attention when it was committed in 1995. When the PA tried to find information about it online in January 2019, he found nothing. The accused had no newspaper articles about this offence in his warehouse. He said he had seen one “tiny little article” about it on one day. During the investigation, he repeatedly recounted that the newspaper had only reported that a “substantial” or “considerable” amount was stolen. Police have confirmed from local newspaper articles from 1995 that the amount stolen was not given but described only as a “substantial amount”.

Features of the evidence undermining its reliability

[258] The defence says that a number of circumstances undermine the reliability of the accused’s utterances, including:

a. The lack of clarity around what robbery is being referred to – the accused was tried and acquitted of other offences, and the PA testified in cross-examination that he had been in error in his notes when he said the accused told him he had committed the robbery with two men, including Richard Kimball;

b. The accused would often get crucial facts about this robbery mixed up;

c. Little of what the Crown claims is proof he committed the TD robbery can be substantiated. For instance, there is no independent confirmation that there was even a lookout person involved in the robbery. The accused may also have mixed up what event Ms. Nichols agreed to assist in given his “frequent confusion of different robberies that he or his associates over the years may have been involved in”.

Analysis

[259] I find the accused’s statements about this offence contain compelling and impressive detail. The detail includes how the offence was committed; the name of the person with whom he committed it and an account of what his co-perpetrator did with the proceeds of his funds; the detail that he was assisted by a signal person, who she was, and what she was paid; the identification of another original target; and information about how a stolen van was modified to facilitate this novel way of robbing a bank. Many of the details were repeated by the accused on different dates of the investigation and thus demonstrate consistency in his account. While the accused did speak about his involvement in other robberies, his account of this offence is sufficiently clear to be coherent.

[260] Again here, there is an extensive list of potentially confirmatory evidence whose ultimate strength will be determined after trial. For the purposes of the admissibility analysis, I would place particular weight on the evidence that the accused took the PA to the location of the bank (which is no longer there) and showed him where the night deposit box had been as well as the window that was smashed. In addition, it is significant that the PA told the police the accused had confessed this robbery to him in 1996 and that the accused made utterances which confirm he had such a conversation with the PA. This is significant confirmatory evidence.

[261] In these circumstances, notwithstanding the issues flagged by the defence, threshold reliability is made out on a balance of probabilities.

(iii) Richard Kimball (between November 1 and November 30, 1995)

[262] During the course of the investigation, the accused referred to Richard Kimball in a number of ways. Sometimes he was referred to as “Shadow”, sometimes as Rick, and sometimes as “the guy that escaped with me”.

[263] Police believe Kimball robbed a jewelry store in Kingston on November 6, 1995.

[264] The accused made utterances relevant to the alleged murder of Richard Kimball on August 1, November 24, January 11, January 19 and January 31. They include the following (with some details repeated over these dates):

a. Regarding his co-accused in the prison escape, the accused said “he’s not around anymore”, and “he took off on vacation”;

b. Kimball came around to see the accused a number of years after the prison escape;

c. Kimball could always find him somehow, his ex-wife used to call him Shadow. She didn’t like Kimball;

d. The accused was giving Kimball $200 to $300 a day “just to shut him up”. The accused said he was giving Kimball money “to keep him out of trouble cuz I was going to take him on one more”. They were going to do “a big one”. He ended up doing it with somebody else;

e. Police wanted Kimball for a jewelry store heist. The same day he did the heist, Kimball came right over to see the accused – “who’s gonna believe I didn’t have anything to do with that heist I mean don’t come to me”;

f. Kimball got re-arrested “for some Mickey Mouse shit” and had written to him from jail saying “I know what you did”. Kimball had seen in the newspaper “something go down in Kingston” and had “put two and two together”. The accused said, “So I had to piece him off, piece him off to keep his mouth shut”. On another occasion he said, “It had to be done I mean when someone’s telling me they’re gonna fucking not go back to jail”;

g. Kimball had been sleeping with his “buddy’s old lady”. His buddy was a straight guy called Bob Parker. The accused told Kimball not to do that (“that’s my best friend”) and told him “don’t piss me off”. The accused really liked Bob Parker’s old lady; after Bob and she broke up the accused’s ex-wife left him, he “went with her immediately”. He really liked her. She was “solid too she’d keep her mouth shut”. He told Kimball “quit fucking her immediately”. Then he passed by a motel and he sees Kimball’s truck and Lori’s van “he’s in there fucking her… and he just gimme his word of honour”;

h. Everyone knew they were great friends and that the accused was always giving Kimball money. When police talked to him about Kimball he told them “enough of this he was my best friend” and walked out of the interrogation room. There was no warrant for his arrest and no charges. They had nothing on him;

i. He used his shotgun and shot Kimball in the back of the head. Kimball was planning on leaving the province the next morning and taking off because he couldn’t do time. He had a big bag of gold from the jewelry heist he had done a couple of days before. The accused got to keep the gold (he found where Kimball was hiding it). He did not still have it. He said cops had stolen three ounces of it when they raided him for illegal hydro;

j. Kimball was a big guy, six foot six and two hundred and sixty pounds;

k. He didn’t even phone up his buddy Pat Maddigan, (“Pat from London”, whose nicknames were “Gananoque” and “Ratigan”) – “he just stopped over at my house and I said hey Pat how’s it going hey come here I wanna show you something hey what do you think of this piece of shit”. Maddigan said “holy fuck… you’re fucking nuts”, to which the accused replied “yeah but I don’t worry about that piece of shit anymore”. When asked by the UC, he declined to say where this occurred, but did say it was not at his warehouse because he didn’t have it then;

l. His buddy, “the one that’s not around no more”, went “what do you wanna do” and he said “well let’s get rid of the piece of shit”. He said that sawzalls don’t work, and that they used a skill saw, like the “circular one”. He got rid of the saw after by throwing it “in the river”;

m. He agreed with the UC there was no way he could have disposed of the body on his own and said “it’s not too bad with two guys”, they had one on each end. With two “it was still bad”. It’s not like in the movies, you can’t just put him in the trunk;

n. He said: “I kept this part then the other part I kept it in the cab and first river I seen slipped it over the side oh got rid of that”;

o. They drove him out to Montreal. He took care of it himself in the outskirts: “nothing special but it would have took em to spring”. He didn’t bury but “covered up”. When the UC suggested “you almost have to burn it” he said “you couldn’t like January February it was bitter bitter cold”;

p. He and his buddy stopped for food on the way to Quebec. They bought some take out finger food. He’d been dumping him (Mr. Kimball’s body parts) in the river then he stopped to get something to eat. He said: “It didn’t bother me you know and then for a joke I said oh do you want some and I go that’s right you can’t eat finger food right now (laughs) and my buddy just laughed his balls off cuz uh he was like you’re a sick prick”;

q. The whole point of getting to Quebec was “to lead a false trail”. The route they took to get to Quebec went from the 401 up to Ottawa. They crossed the border in Ottawa into Gatineau: “I know we crossed the bridge… I know that cuz uh that’s where they went this part… that’s where these went (motioning to his hand)… yeah separate”;

r. When asked if anyone found “it” yet, he said they found the body, but police never told him that. He said they told everybody else who knew him. They told the people close to him (later identified as Lori and “that real estate agent”) details “like you wouldn’t believe”. He wouldn’t talk about it because if he repeated it they could prove he said that, “they’ll say how how would you ah known that”;

s. He said the head and the hands were missing, they found the body;

t. The Ontario cops talked to him. He said “they told me nobody deserved to end up like that and I said it’s a matter of opinion isn’t it”.

Media attention

[265] While the jail break involving the accused and Kimball received media attention (the accused kept press clippings about this in his warehouse), the police are not aware of any media coverage regarding the murder allegation. There was nothing online in 2018 or 2019.

The confirmatory evidence relied upon by the Crown

[266] The Crown argues that the evidence that is confirmatory of the accused’s utterances includes the following (some of which is also relevant to the bank robbery):

a. Records confirm Kimball and the accused did escape from the Hamilton Wentworth Detention Centre together in January of 1988, that they used a rope to do so, and that they were assisted by the accused’s brother Darryl Verney;

b. Prison records indicate Kimball was 6 feet 4 inches tall and weighed 251 pounds;

c. The accused and Pat Maddigan were friends. He said he did the bank job with “Pat from Gananoque”. Maddigan’s wife has provided photographs confirming their friendship. The accused was the godfather to Maddigan’s son (as the accused had said to the PA);

d. Maddigan died in London that summer on July 25, 2018;

e. Records confirm that Kimball was out of custody at the time of the jewelry store robbery on November 6, 1995. While Kimball was wanted for that robbery, he was never arrested;

f. Records support the conclusion that Kimball died in the time frame of the jewelry store robbery. For instance:

i. Kimball’s criminal record shows his regular police contact abruptly ended in 1995. Arrest warrants have been on file for him since November 1, 1995 (for obstruct justice) and August 1996 (for the jewelry store robbery). There is no indication of any police contact with him of any sort since the jewelry store robbery;

ii. Kimball’s medical history stops – his last OHIP claim was May 11, 1995;

iii. Kimball’s financial history stops – there are no bank accounts in his name between 1995 and 2018; Revenue Canada has no activity from Kimball or any employer reporting having paid him between 1994 and 2019;

iv. There are no records of documented travel into Canada between 1995 and 2018 and US authorities confirm they have no record of any border crossings, nor other evidence of travel in the United States.

g. The PA gave police an interview in 1996 where he said the accused confessed to him that he had robbed the bank and killed Richard Kimball. The PA said this conversation occurred while they were drinking. The accused provided confirmation that a conversation of this kind did occur with the PA in the past. During the undercover operation, the accused told the UC that he “said some shit to Barney cuz I got carried away cuz I drank too much”. He also told the UC that he once told the PA about killing Kimball when he was very drunk;

h. Rob Parker was interviewed under oath and on video on February 16, 2019. Parker said the accused said he shot Rick because he was becoming a sore between him and Sandra (the accused’s ex-wife) because the accused was always with Rick;

i. The accused’s brother was interviewed on video (but not under oath) on March 11, 2019. He said that the accused told him that he blew Kimball’s head off with a shotgun and cut off Kimball’s head and hands after that. Police acknowledge the statement given by Darryl is “somewhat” inconsistent, that Darryl has a 41-year-long criminal record, and that he continued drinking beer when he spoke with police on video. He reportedly did not seem impaired.

Features of the evidence undermining its reliability

[267] The defence argues that there are a number of difficulties with the evidence relating to this offence, including:

a. There are a number of material inconsistencies in the statements made by the accused about this alleged offence. The defence emphasizes that there are discrepancies between (a) what the PA told police the accused said in 1996 and during a statement in February of 2018 before the undercover operation started, and (b) what the accused said during the investigation. The defence emphasizes the following inconsistencies:

i. the accused’s claim that police had found Kimball’s body when they had not;

ii. the accused’s claim that when police found the body, they approached the accused to see whether he knew anything and that he spoke to police about this;

iii. the accused was inconsistent about the manner in which he allegedly killed Richard Kimball (for instance, how many times he shot him and whether Kimball was sleeping at the time) and where and why he killed him; and

iv. the accused was inconsistent about the location where he allegedly disposed of Kimball’s body, how he did so, and impliedly, whether he had done so alone.

b. Police have never been able to confirm that Kimball has died. At least one person (a woman who had dated Kimball) has suggested she saw him alive and well but police did not follow up on this.

c. The accused’s misinformation about this alleged offence (e.g. his claim that police found the body) “demonstrates his lack of familiarity with it, suggesting he could not have been the perpetrator.

Analysis

[268] A great deal of detail is provided by the accused about this alleged offence. The narrative is very specific and involves the ancillary narrative of a jewelry store heist by Kimball, the proceeds of which the accused said he found. Some of that, he says, was stolen by police during a search for illegal hydro. This is an unusual amount of detail about the circumstances at the time of the alleged offence and the nuances of his account are suggestive of reliability. The accused’s account of disposing of Kimball’s body and the difficulties involved in doing is also compelling in its detail. His recitation to the UC of the joke he told Maddigan (and Maddigan’s reaction) about offering Kimball finger food after the accused had gestured that Kimball’s hands were cut off is a highly specific detail that seems unlikely to be the product of a fictional account.

[269] While there are important inconsistencies in the accused’s account, and his account does not match the independent evidence in every respect (most notably the fact that police did not find a body or remains), there are some fundamental consistencies in his account to various people, including that he shot Kimball and then dismembered Kimball’s body to dispose of it.

[270] In addition to the evidence that the PA told police in 1996 that the accused had told him he had killed Kimball, there is independent evidence from two other people (Bob Parker and the accused’s brother) that the accused told them he killed Kimball by shooting him. The accused allegedly told his brother he also cut off Kimball’s head and hands. This is consistent with the narrative given to the UC.

[271] To the extent that information about Kimball’s whereabouts at the relevant times is available, it appears there is evidence that supports the conclusion that Kimball was out of custody in the time frame of the alleged murder. Further, the evidence is that he was in custody at the time of the TD bank robbery and so could have written to the accused from jail to tell him he knew what the accused had done.

[272] Notwithstanding the features of the evidence that undermine the reliability of the utterances, on a balance of probabilities, considering the totality of the reliability markers and the whole of the available evidence, there is sufficient evidence to make out threshold reliability and support the admission of the accused’s utterances into evidence at trial.

(iv) The Toronto vehicle bombing (July 19, 2000)

[273] The accused made utterances that are relevant to the Toronto vehicle bombing on September 12, October 17, November 16, November 24 and January 20. He said the following (some things repeatedly):

a. He’d only done one “with the powder” and it was quite devastating. He was about a block away and it blew his hair back (earlier he had talked about making bombs with shotgun shells by emptying the shell and getting the powder and the pellets);

b. The target (who he later identified by name as David Allan) worked in prostitution involving underage girls and spent “ten grand” on advertising monthly;

c. Referring to the person “that wanted it done”, the accused said the guy “just wanted to do a bunch of shit” to Allan;

d. He had others working with him and they were planning to abduct Allan. He rented a van and they watched and waited for him for three or four days;

e. He had been told that Allan was “a fat guy” but he didn’t know that he was a “three-hundred-and-fifty-four-pound monster”;

f. Attempts by the accused and his associate to abduct Allan when he was walking down the street failed. Allan “was running with [his] fucking young guy” after their attempt failed. In response the accused struck Allan hard on the head with a gun to drop him down. He split Allan’s forehead open;

g. He had tinted the windows of the van but he hadn’t covered the plates because he wasn’t expecting this;

h. He put the bomb under Allan’s car once, but Mr. Allan came out with a kid about five months old so the accused had to run out and take it away. The bomb was in a duffle bag. It was scary because the safety was off. The only reason he did “in some ways is because uh people that knew that I was going to do it would turn on me maybe if that happened you what I mean … with a kid so”;

i. He went to the zoo while following Allan afterwards. Allan had a kid in his baby buggy the whole time. The accused paid $23 dollars to get on a trolley ride with them because “I can’t lose the goof right”;

j. He described the bomb as a pipe bomb and gave details about building one. He told the UC he’d show him how and do it with him. He said “now its so much easier because the remotes are so much better” (he had described using a fishing line to detonate the bomb under the target’s vehicle). He said he buys remotes all the time when he doesn’t need them. He explained he was especially interested “where it’s better range a longer distance” and said “you don’t want a real common one like a garage door opener”;

k. Allan wasn’t inside the vehicle at the time the bomb went off. The accused had called his escort agency and, claiming to be a neighbour, said that someone was fooling around with Allan’s truck. Allan came outside with his wife and kids “then for some reason he just sensed something he’s going get in the house”. The accused could hear him from half a block away;

l. The accused was hoping Allan would be close enough but it did a lot of damage around the neighbourhood. It lifted the vehicle off the ground and left a crater in the concrete;

m. This occurred in Toronto, off of Dundas Street;

n. The investigators were there for four or five days afterwards – he couldn’t believe it. It was “on the big news” and they thought it was a bike gang moving in on Allan because he was running an escort business. He said “it was biker MO’d who use that kind of stuff”;

o. He was disappointed and came back with his “head hanging”… “like I felt I didn’t do what I was supposed to do”. The guy he did it for said he didn’t care because Allan “got the message”. He got paid some of it in advance – “like twenty grand” – which he used to buy some high-tech cameras.

Media attention

[274] There was media attention to the bombing at the time it occurred in 2000. Nothing was discovered in the public domain in 2018-2019. The accused said he did not have articles from this one, though he said he saw media coverage about it at the time.

The confirmatory evidence relied upon by the Crown

[275] The Crown says the following evidence is confirmatory:

a. Court transcripts and media articles confirm that a man named David Allan was convicted of significant prostitution-related offences;

b. David Allan had a connection to Kingston. The accused told the UC that David Allan had a property near Kingston just off Jones Falls Road. David Allan did own a property in the Kingston area on Ritz Road, which is off Jones Falls Road;

c. An explosion did occur in Toronto. The vehicle’s license plate was recovered. Ownership of the vehicle has ben confirmed with MTO records and court transcripts. It belonged to David Allan’s spouse, Rachel Hilling, who lived with him at the time;

d. The neighbourhood where the explosion occurred was just off Danforth;

e. The blast damaged neighbouring homes;

f. David Allan indicated in a signed notebook statement to police given the day of the bombing that he went to the zoo with his children (Allan is refusing to be interviewed at this time);

g. CFS confirmed a pipe bomb was used and that it was made with Pyrodex, a black-coloured powder;

h. A bag was recovered at the scene by investigators and appears related to the bomb – CFS confirms it contained evidence of residue from Pyrodex;

i. At least one media clipping from the time (located by police, and not a clipping kept by the accused) reported the suspicion that the bombing might have been the work of bikers.

Features of the evidence undermining its reliability

[276] The defence emphasizes the following circumstances that is says undermine the reliability of the accused’s statements:

a. There is no physical evidence linking the accused to this offence;

b. The accused at one point said he made the bomb using shotgun shell or powder, but expert analysis concluded it was made with Pyrodex, which would not be used as a propellent for shotgun shells;

c. The accused said the bombing was a neighbourhood of Dundas while the actual bombing address was a neighbourhood off Danforth;

d. There is a lack of corroborating third party evidence with regard to all elements of the offence; and

e. The bombing was widely publicized in the media and there were several sources available to the accused from which to gather information about this incident. Since Pat Maddigan was also involved with Sean Westwood and his illegal business, he may have also shared with the accused stories of what he (Maddigan) had done for Westwood.

Analysis

[277] I find the information provided by the accused about his involvement in this offence is very detailed. The narrative offered by the accused is far from a basic account. For instance, the detail offered around how the accused targeted Allan, including surveilling him at the zoo and going on rides so as not to lose track of him, is very specific.

[278] While the strength of the confirmatory evidence will be tested at trial, there is evidence on the voir dire that is capable of supporting my faith in the accused’s account, including the information available about Allan, his ties to Kingston, and the fact that there clearly was a car bombing outside his residence which damaged his wife’s vehicle. The accused’s information about David Allan is confirmed in independent evidence, for instance that Allan did own a property off Jones Falls Road, which seems unlikely to have been included in any media accounts.

[279] I have considered the defence arguments but would not hold that the evidence is so undermined by other features of the evidence as to preclude a finding of threshold reliability. The arguments about what the accused might have learned from media coverage of this event, or from Pat Maddigan, is speculative. The description of the neighbourhood as “off Dundas” when the bombing was off Danforth does not seriously undermine the account. That there is a discrepancy in the substance used to make the pipe bomb in the accused’s account and the conclusion of the expert assessment is noted, but so is the fundamental consistency that the mechanism used to detonate the vehicle was a pipe bomb, as stated by the accused. The accused’s utterances are sufficiently reliable to be admitted into evidence.

(v) Stephen St. Denis (October 21, 2001)

[280] The evidence of Det. Mezzatesta indicates that Mr. St. Denis’ body was found in the debris of a house fire at 1538 Joyceville Road on October 21, 2001. The fire department responded at 4:17 a.m. after a call from a citizen who had driven by and seen the flames. Investigation of the scene revealed a frying pan in the kitchen. The post-mortem exam indicated that St. Denis was impaired by drugs and alcohol at the time he died. The Fire Marshall concluded that there had been a grease fire in the kitchen area. In consultation with the local Coroner, the fire was considered “Accidental”. It appeared to investigators that Stephen St. Denis “while impaired by drugs and alcohol, fell asleep on the sofa bed and left an electric frying pan unattended on the kitchen table” while it was on – “it overheated and was the source of the ignition”. At the time this investigation started police did not suspect otherwise.

[281] The accused made utterances relevant to this event on July 22, November 9, November 24, November 30, January 31 and February 1. He said the following:

a. He was involved in a big grow operation with Sean and Kraut and another guy. The accused acted as the protection for the operation;

b. He received the warehouse as payment for his involvement;

c. He and the unnamed partner were buddies – “everybody knew we loved each other”;

d. The unnamed partner was treated badly by Sean, who was “brutally mean” to him. The unnamed partner was so poor he fed his dogs potatoes;

e. The unnamed partner wanted part of the accused’s warehouse because he had been a partner long enough. He wanted a quarter of it, but the warehouse was supposed to be all the accused’s “cuz that’s the deal… it’s mine and there’s no argument about it cuz remember why you hired me”;

f. The unnamed partner figured he wasn’t getting anywhere after a few years with Sean. He was going to go back to Toronto and the “fat man” as a partner. The unnamed partner said he could not take torture and would need to tell the fat man who the accused was. The accused told him not to worry about it - “I know it’s all right it happens I understand”. This was about a year or two after what he had done to the “fat man”;

g. The fat man was loaded and spent hundreds of thousands of dollars every year just on advertising in the Yellow Pages – “what’s another fifty grand to get somebody to come and take care of you”;

h. The accused said he “had no choice” because he had to protect himself. He said “he was a good guy but if you want to go back to your old crew and that you’re gonna tell on me… sorry good guys end up last”. He said “he did love me with all his heart but he’d fucking sink me… but you know I felt bad but you know I’m not going to jail for you”;

i. The accused and his partner took the guy to a bar, a strip joint out of town, where they gave him drugs supplied by his partner (“the guy from London”) who knew all about that because he’s a drug addict. The accused wanted to give the man more but his partner said it was enough “he should have went down like an elephant”, but the guy had a drug tolerance. They used pills (at one point described as the date rape drug and another point as four or five OxyContins) and kept putting them in his drink every time he went to the bathroom;

j. He “took him home and then put him to bed and put some uh french fries on the frying pan and (unintelligible) grease”;

k. When they were in the house the guy wouldn’t go down. The accused wanted to give him one more and his “buddy said no that’s enough for an elephant”;

l. The accused got a little impatient because “it didn’t go up fast as I’d like” – oil was overflowing on the counter, on the floor, “it gets onto the flame of the burner”, which was electric and not gas. The accused said he “could see it smouldering you could see it smoking but I wanted to get the fuck out of there … so like bomp you know uh I lit the stuff and (unintelligible)”. When asked by the UC, “did it light”, the accused said: “yeah like nothing cooking oil that’s one of the most common things drunks do”;

m. The oil bubbled over the top, hit the burner and was coming down the stove. By now it’s a flame – “it looks like lit the gas on fire… And then it come up and the then it hit the curtains the window behind the stove… it hit the curtains and then it’s going … Like roaring… and then get the fuck outta there and uh good luck goodbye cheerio God bless…”;

n. The space was open concept and the guy’s bed was “right next to it”;

o. When the flames were going the guy was still sleeping. When the UC suggested he would want to set the guy on fire to make sure he burned, the accused said: “No no he gonna if not the uh smoke inhalation is gonna do it”.

p. He was concerned about the proximity of the fire department to the house. He discussed this with the PA when visiting the property to take a photo. He said: “I remember I can I can remember as plain as day I mean I was concerned about the whole situation...”;

q. A new home had been rebuilt on the site.

Media attention

[282] The evidence of Det. Mezzatesta is that in 2018 and 2019, practically speaking, no information was in the public domain about this event. She was unsure if it had ever garnered any media attention in 2001 when it occurred. The accused told the UC that he did not have any articles relating to this fire and none were found in his warehouse. He said it had been ruled accidental, and that he had learned this because his daughter had a friend who was the local Fire Chief’s daughter.

The confirmatory evidence relied upon by the Crown

[283] The Crown says the confirmatory evidence includes the following:

a. Evidence confirms the accused was involved in a grow operation, including his own utterances. The accused’s brother-in-law (Mike Tecchie) has confirmed that he tended a grow-op at the accused’s request. Tecchie provided this information subsequent to a raid at a grow-op in Sharbot Lake and Napanee which resulted in a criminal conviction for Mr. Tecchie. A search of the accused’s residence confirmed that as he had said during the investigation, he had a box of old-style ballasts. He also had shades for grow-op lights;

b. Evidence obtained at the scene of the fire indicates marijuana was being grown at the residence;

c. The accused attended at the address of the fire with the PA where he took a photo and said this is where his old partner had died in a fire. A new house had been rebuilt on the site. A volunteer fire fighter’s station was down the road;

d. CFS toxicology confirmed from bodily fluids obtained at autopsy that there was a very high amount of alcohol and morphine in St. Denis’ system;

e. The accused said that the fire occurred about “a year or two later” after the car bombing. They were, in fact, about 15 months apart (July 19, 2000 and October 21, 2001);

f. Autopsy confirmed that St. Denis had soot in his airways and that he was alive and breathing at the time of the fire;

g. Four dogs were rescued from the fire. St. Denis’ brother told police that St. Denis had been so impoverished he was feeding his dogs potatoes;

h. CFS chemistry found no accelerants and the Fire Marshall investigation concluded the origin of the fire was in the kitchen and it was related to an oily substance in the vicinity of an electric frying pan.

Features of the evidence undermining the reliability of the utterances

[284] The defence emphasizes the following circumstances which it says undermine the threshold reliability of the accused’s utterances:

a. The way the accused referred to the arson: initially in the undercover operation, he referred to the fire that killed St. Denis as an “accidental fire”. Only much later, and only with the UC, does he stop saying it is accidental;

b. There was no physical or other evidence linking the accused to the fire;

c. The accused never identifies St. Denis by name (he refers to him as his “buddy”) and only alludes to “who he allegedly was by his position in the grow operation”;

d. There were multiple sources from which the accused could have received information about the arson, including publicly available sources, and through his daughter who was the best friend of the fire chief’s daughter;

e. The accused was not able to specify what drug was used in drugging St. Denis;

f. St. Denis’ drug use was well-known and it was just as likely that he did indeed die due to a combination of overdosing and smoke inhalation as a result of an accident;

g. The accused cited different and conflicting motivations for supposedly committing the arson;

h. Someone else in the grow-operation might have been motivated to kill St. Denis, including Pat Maddigan;

i. Many aspects of the evidence the Crown cites as confirmatory would have been known to the accused simply due to their association in the grow operation and are not confirmatory of his involvement in the alleged offence.

Analysis

[285] Again, in this account, I find the accused has provided a lot of detail. There is also independent evidence that confirms material details of the accused’s account, including that the source of the fire that killed Mr. St. Denis was a frying pan, and that Mr. St. Denis was alive but incapacitated by drugs and alcohol when the fire started.

[286] The reliability of the evidence is also enhanced by the fact that the accused took the PA to the site where the fire had occurred, which was down the road from a volunteer fire station.

[287] While the record may be different at trial, on this record, the suggestion that the accused learned these details from media reports from his daughter or some other connection to the Fire Marshall’s office is speculative.

[288] While I have considered the issues highlighted by defence in my assessment, including what information was available to the accused simply on the basis of his association with St. Denis, on a balance of probabilities, I find the evidence demonstrates threshold reliability and may be admitted at trial.

3. Probative value vs. prejudicial effect

[289] The defence argues that over the lengthy undercover investigation, the accused had many conversations that were unrelated to the offences and which would cause prejudice in the trier of fact’s assessment of the evidence. The defence emphasizes that the PA and UC encouraged the accused to talk at length about his previous criminal exploits such as dealing drugs in prison, assaulting others, committing dangerous robberies, and so on. They also discussed committing crimes in the future and the accused offered to help the UC commit murders or dispose of bodies for him. All of this is bad character evidence which “will attract a great deal of prejudice” if admitted into evidence. As I understand the defence position, the concern relates primarily to the moral prejudice created by the evidence.

[290] The Crown emphasizes that it will not be advancing the argument that the accused “does lots of crime so he did the crimes on the indictment”. Given that this is a judge alone trial, there is no meaningful risk of reasoning or moral prejudice by the trier of fact, particularly where the trier-of-fact self-cautions. The Crown says the jurisprudence amply supports this conclusion.

[291] I am persuaded that the probative value of the evidence outweighs its potential prejudicial effect if admitted at trial.

[292] In arriving at this conclusion, I confirm I am aware of the risks that the evidence poses. At the conclusion of the trial, I will apply the direction from Mack, at paras. 52-55 (regarding the ultimate reliability of the utterances and the bad character evidence adduced). The moral and reasoning prejudice that arises from the evidence and the risks such evidence presents in ensuring the accused receives a fair trial is not an academic consideration. In this instance, the risk of moral prejudice is the more significant of the two. Regardless, I will remain vigilant in guarding against the risks presented by both types of prejudice. I am satisfied that I can conduct this trial without improperly using any bad character evidence that has been adduced. As noted in R. v. Wruck, 2016 ABQB 370, at para. 26, “in these circumstances, the prejudicial effect of the statements is ameliorated by my understanding of the prohibition against engaging in prejudicial reasoning”.

PART 4 – The second prong of the Hart analysis – Abuse of process

[293] Hart held that trial judges must carefully scrutinize the conduct of the police to determine if an abuse of process has occurred. It reinforced that courts cannot condone state conduct that coerces a target of a Mr. Big operation into confessing, such as the use of physical violence. In such circumstances, regardless of the reliability of a confession, the confession will not be admissible.

[294] The onus for establishing that an abuse of process has occurred lies with the accused. Where the accused establishes that an abuse of process has occurred, the trial judge may determine the appropriate remedy. The remedy may include the exclusion of the confession or a stay of proceedings: see Hart, at paras. 11, 111-118.

[295] Significantly, Moldaver J. called for a reinvigoration of the doctrine of abuse of process in this context. He reminded judges that Mr. Big operations can become abusive, and judges must carefully scrutinize how police conduct them: see Hart, at para. 115.

[296] While no “bright-line rule” may be fashioned in this context, one guideline was suggested in Hart, at para. 115:

Mr. Big operations are designed to induce confessions. The mere presence of inducements is not problematic (Oickle, at para. 57). But police conduct, including inducements and threats, becomes problematic in this context when it approximates coercion. In conducting these operations, the police cannot be permitted to overcome the will of the accused and coerce a confession. This would almost certainly amount to an abuse of process.

[297] Apart from violence and threats of violence, Mr. Big Operations may become coercive in other ways. While the court identified some of these other ways (for instance an operation that preys on the accused’s vulnerabilities such as mental health problems, substance addictions or youthfulness), judges should be alive to the fact that operations may also become abusive in ways other than this that do not involve coercion: see Hart, at para. 118.

The positions of the parties

[298] The defence argues that all the utterances of the accused should be excluded from evidence because the whole of the investigation was an abuse of process. Its argument rests on the following thematic pillars:

a. The entire operation was abusive. This is because the state exploited the accused’s vulnerabilities by creating a scheme in which the accused was compelled by his financial realities to participate in the scheme to the point he became entangled in it and was unable to escape. The defence effectively says this is abusive because the accused had no choice when the state approached him with their scheme since his alternatives were starvation and homelessness. The court should not be distracted by the Respondent’s self-presentation, and conflate his projection of sophistication, independence and toughness as evidence that he did not actually have vulnerabilities that were actively exploited by the police;

b. The operation was abusive because the state recruited a close friend of the accused who he loved as a brother to act against him. The exploitation of this type of intimate relationship is unacceptable and shocking to the community;

c. The operation was abusive because it drove the accused to boast about his criminal past and his past exploits, whether real or not, even where these had nothing to do with the crimes being investigated. The evidence generated by the state is prejudicial bad character evidence which the Crown now relies on to show the accused’s “street savviness” and this is not fair;

d. The ultimate payoff, the murder-for-hire scheme, is extremely prejudicial and was created for the purpose of encouraging forbidden propensity reasoning: since the Respondent is willing to kill for money, he must have killed before, therefore he must have committed the Knight, Kimball and St. Denis homicides;

e. The presumption was that this case would be a jury trial: the choices made in the investigation before this became a judge alone trial are concerning and relevant to whether the investigation was an abuse of process. It is important to this argument to appreciate that the accused cannot unilaterally choose a judge alone trial and thereby reduce the prejudice of an investigation. The fact that this is a judge alone trial also does not render prejudice a non-issue. Regardless, police had a duty to structure the investigation to minimize prejudice, not maximize it, since the presumption is that any trial to follow will be a jury trial. The choices made by the investigators here warrant scrutiny;

f. The police scheme (which required the building of trust by encouraging the accused to plan future crimes and bring the UC “jobs”) led the police to be concerned that the accused might commit and plan crimes during the investigation. They were sufficiently fearful that he might do so that they undertook 24-hour surveillance around his home. The defence says police had encouraged the accused to commit and plan crimes under intense inducements. If the police’s stated fear is to be believed, it would shock the community to hear that the police intentionally made the creation of a public safety risk a component of their investigative strategy, especially when there seemed to be no investigative purpose for encouraging the defendant to plan and commit crimes.

g. The integrity of the investigation was compromised because the PA had the ability to incapacitate the recording device. Further, no effort was made by police to ensure that all the interaction between the PA and the accused was recorded. In particular, police should have taken steps to ensure that when the accused visited the PA at the recycling depot where the PA worked, there was a means to record their interaction. Given that the PA had gone “off script” when he told the accused he had committed a murder (it was not part of the investigative plan that the PA should do so), the PA could have said other things that were “off-script” when not recorded. The failure of police to ensure the interactions were always recorded is a basis to find an abuse of process occurred in this investigation.

[299] In contrast, the Crown argues that there was no abuse of process. It says that: 1) nothing police did comes close to coercion; 2) police behaviour did not offend the community’s sense of fair play; 3) the admission of the evidence would not result in an unfair trial; 4) the admission of the evidence would not threaten the integrity of the administration of justice; 5) the evidence establishes that the accused’s will was not overborne by police conduct.

Analysis

[300] I am not persuaded that any circumstances emphasized by the defence, either alone or in combination, make out an abuse of process by police in this matter. Nothing that occurred in this investigation approximates coercion, offends society’s sense of fair play and decency or threatens the integrity of the justice system or the fairness of the trial. The defence has not met its onus on this prong of the Hart test.

[301] I arrive at this conclusion given the following findings.

[302] The police conduct in this case did not result in the accused being coerced into any kind of conduct. The accused’s will was not overborne by anything done by the police. The suggestion that the accused was facing homelessness and starvation overstates the accused’s difficulties during the course of the investigation. For the reasons I have already given, I find that nothing the police did or said, and nothing done by the police agent, rose to the level of an inducement that coerced his utterances.

[303] As for the suggestion that involving the police agent in this investigation would shock the conscience of the community because of his close relationship to the accused, no authority for this proposition was advanced by the defence. I do not believe the conscience of the community would be shocked by this tactic. As is argued by the Crown, it is the law in this country that spouses may be compelled to testify against one another in certain circumstances. The recruitment of an old friend as a police agent seems well within the bounds of permissible police tactics.

[304] On this point, the context for how the PA came to be enlisted by police is also important. The PA had given a statement to police in 1996 where he disclosed the accused’s conversation with him about killing Kimball and robbing the TD bank. There is nothing on this record that suggests this statement was involuntary or somehow coerced by the police – it appears that the accused’s close friend decided, on his own, to share what the accused said about his involvement in these crimes with police. It would hardly be shocking to the community that police followed up on this investigative lead years later by asking the PA to participate in their investigation.

[305] With respect to the argument that the whole investigation was structured around a murder-for-hire scheme that deliberately and unnecessarily prejudiced the accused, even assuming the investigation may be properly characterized that way, I find no abuse of process occurred.

[306] Case law holds many examples of similarly prejudicial scenarios in other investigations. No court has said that this amounts to an abuse of process. In Ontario, the Court of Appeal did not take umbrage at a similar strategy being used in Zvolensky, a case which did proceed with a jury. I see no reason to arrive at a different conclusion in this case, particularly where any prejudice caused is ameliorated by the fact that this is a judge alone trial. However, the decision came to be made that this trial would be heard by a judge alone, the issue is whether the accused may have a fair trial before me.

[307] As far as the idea that police have a duty to minimize prejudice is concerned, Hart and the subsequent case law make clear that police need to be mindful in conducting these investigations of the risks they pose. Det. Mezzatesta was not challenged on her assertion in her affidavit that the investigative team in this case were aware of Hart throughout the investigation and that they attempted to live up to the letter and spirit of that decision. Nothing in the evidence on the voir dire, including the cross-examination of the UC, leaves me with concerns that the police did not understand their duties in this investigation or that they recklessly or deliberately ignored them.

[308] This includes the fact that police did not take steps to ensure that the PA was in a position to record all his interactions with the accused, particularly after it became clear that the accused was regularly visiting the PA at his workplace. I have also considered that there is evidence that the PA was able to remove the device resulting in some known interactions with the accused which were not recorded. In considering whether this amounts to an abuse of process, I consider that there is no evidence that anything that occurred during the unrecorded portions of the accused’s interactions with the PA are of any significance. This is unlike the situation in Hart, where one of the chief utterances the Crown sought to admit was not recorded and the accused denied making the utterance: see para. 147.

[309] Here, the defence argument rests on the fact that it was possible for something to have occurred between the accused and the PA that would be significant, not on any suggestion that anything did happen. While it may be that in another case, a similar lapse in recording could become very significant, I am not persuaded that the failure to ensure that every interaction between the accused and the PA was recorded amounts to an abuse of process.

[310] Again here, case law is instructive. For obvious reasons, it is in the interests of investigators in undercover operations to ensure that interactions with the accused are recorded. The court in Hart emphasized the importance of recording interactions with the accused when it determined that the Crown would bear the onus of proof on the first prong of the new rule. Moldaver J. wrote at para. 93:

The onus has the added benefit of encouraging the creation of a more thorough record of the operation. At present, many of the key interactions between the undercover officers and the accused are unrecorded. This is problematic. Where it is logistically feasible and would not jeopardize the operation itself or the safety of the undercover officers, the police would do well to record their conversations with the accused. With the onus of demonstrating reliability placed on the Crown, gaps in the record may undermine the case for admissibility, which will encourage better record keeping.

[311] As is clear from this passage from Hart, it is not the law that all interactions must be recorded as a pre-condition to admissibility of a confession: see e.g., R. v. Keene, 2020 ONCA 635, 394 C.C.C. (3d) 160 at para. 21; R. v. Potter, 2019 NLSC 8, at para. 24; R. v. Handlen, 2018 BCSC 1330, at para. 116; R. v. Wruck, 2016 ABQB 370, at para. 23; R. v. R.K., 2016 BCSC 552, at paras. 280, 283; and R. v. West, 2015 BCCA 379, 329 C.C.C. (3d) 97, at para. 12. No other case has found an abuse of process in circumstances where some of the interactions went unrecorded. While this does not foreclose such a finding in the future, nothing in the evidence before me supports the finding that the lapses in recording that occurred with the PA constitute an abuse of process.

[312] It is also important that no one suggests that anything of significance occurred during these interactions. As I have said, the Crown does not seek to admit anything that was said by the accused during these occasions. The defence submits only that something of consequence could have occurred. There is no evidence, including in the cross-examination of the PA, that anything of consequence did occur. On this record, the unrecorded interactions are not “key interactions” between the accused and the PA (which is the language used in Hart, at para. 93, in describing the circumstances in which the concerns about recording are heightened), and there is no evidence that anything that occurred during those interactions had an impact on subsequent events or conversations. In these circumstances, notwithstanding that I have no evidence about the nature of the recording device used and why it may or may not have been feasible logistically to ensure that the PA could not disable it, or why it could not be used when he was at the recycling depot, I decline to find that the failure to record every interaction between the accused and the PA results in an abuse of process.

[313] Finally, I am not persuaded that the police created such a risk of criminal activity on the part of the accused that this amounted to a public safety risk, or that the tactics of police during the investigation would shock the community. The crimes suggested and actually carried out were simulated. No one was at risk as a result. To the extent that the accused may have acted on his own and created a public safety risk, the evidence is that the police were alive to that possibility and took steps to protect the public in conducting 24-hour surveillance of the accused’s residence. Ultimately, no criminal activity occurred or came close to occurring. No member of the public was jeopardized by this tactic. I am not satisfied that anything the police did compromised public safety or would shock the conscience of the community.

PART 5 - Conclusion

[314] Following the Hart analysis, and for these reasons, I conclude that the Crown has met its onus in demonstrating, on a balance of probabilities, that the probative value of the accused’s statements outweighs any prejudice associated with their admission at trial. There was no abuse of process in obtaining the statements. This is not an exceptional case that requires exclusion of the utterances despite admissibility under the Hart analysis (see Hart at para. 88). Consequently, the utterances identified by the Crown are admissible at trial.

Lacelle J.

Released: July 22, 2022

COURT FILE NO.: CR-19-45

DATE: 20220722

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

MICHAEL WENTWORTH (AKA MICHAEL VERNEY)

REASONS for decision

LACELLE J.

Released: July 22, 2022

[^1]: All subsequent references to “Moir” are to R. v. Moir, 2020 BCCA 116 (BC C.A.).