R v Ledesma, 2014 ABQB 788

Court of Queen’s Bench of Alberta Citation: R v Ledesma, 2014 ABQB 788 Date: 20141223 Docket: 120236229Q1 Registry: Calgary Between: Her Majesty the Queen Applicant - and - Kyle Victor Ledesma Respondent Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.5. By Court Order, information that may identify the witnesses, G, M and MO may not be published, broadcast, or transmitted in any manner. There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application. NOTE: This judgment is intended to comply with the restriction so that it may be published. Trial information in Absence of Jury – See the Criminal Code , section 648(1).

Permission having been given to the jurors to separate, information concerning this portion of the trial must not be published, broadcast, or transmitted in any manner. NOTE: This decision is available from the court file, and it may be published after the jury retires to consider its verdict. Corrected judgment: A corrigendum was issued on February 13, 2015; the corrections have been made to the text and the corrigendum is appended to this judgment.

Editorial Notice: The restriction pursuant to the Criminal Code, section 648(1) expired on March 18, 2015. _______________________________________________________ Memorandum of Decision on a Voir Dire of the

Honourable Mr. Justice S.J. LoVecchio _______________________________________________________ Introduction [ 1 ] The Supreme Court of Canada in its recent decision in R v Hart [1] took an in-depth look at the police technique known as a Mr. Big operation. As Justice Moldaver says at paras 4-5, “the Mr. Big technique has proven to be an effective investigative tool. It has produced confessions and secured convictions in hundreds of cases that would otherwise have likely gone unsolved. The confessions elicited are often detailed and confirmed by other evidence.

Manifestly, the technique has proved indispensable in the search for the truth. But the technique comes with a price. Suspects confess to Mr. Big during pointed interrogations in the face of powerful inducements and sometimes veiled threats – and this raises the spectre of unreliable confessions.” Unreliable confessions raise the spectre of wrongful convictions and this is a result we cannot ignore. [2] [ 2 ] The Supreme Court also expressed concern that the manner in which these operations are conducted may be abusive. If so, it matters not how reliable the confession may be.

Quite simply, the Courts cannot condone state misconduct. So where has Hart left the trial courts when the Crown seeks to introduce a confession obtained through a Mr. Big operation? [ 3 ] The Court will enter into a voir dire to determine the admissibility of the confession obtained during the course of a Mr. Big operation.

This voir dire will encompass two distinct inquiries: (1) a reliability inquiry, and (2) a review of the actions taken by the police in the operation in order to determine whether or not such actions should be construed as an abuse of process. [ 4 ] In the reliability inquiry, the Crown starts from the position that the confession obtained is presumptively inadmissible. The Crown may overcome this presumption by establishing on a balance of probabilities that the probative value of the confession outweighs its prejudicial effect. Its 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. [3] [ 5 ] The Defence will bear the burden of proof on a similar basis in the abuse of process inquiry. [4] [ 6 ] As a procedural matter, a finding that an abuse of process has occurred will make a reliability inquiry unnecessary. [5] Before embarking on my abuse of process inquiry, some background context is required.

Background [ 7 ] Kyle Victor Ledesma stands charged with second degree murder under an Indictment dated January 31, 2013 in relation to the death of Dexter Bain on February 27, 2010. [ 8 ] His Trial began before me on May 12, 2013 and was set to be with a Judge and Jury. As the Crown indicated a confession obtained in a Mr. Big operation would be tendered, the Trial began with a voir dire . As the voir dire was to be lengthy, it was agreed jury selection should only take place once the voir dire had taken place. [ 9 ] At the commencement of the Trial, two orders were sought by the Crown.

The first order was sought under

Section 648 (in conjunction with

Section 645) of the Criminal Code which in essence precludes the reporting of things done in the absence of the jury. Ms. Juzwiak advised the Court that she understood that neither the Defence nor the media was opposed. Accordingly, the order was granted. [ 10 ] Second, the Crown sought an order under

Section 486.5 of the Criminal Code which would restrict the media from publishing information that would tend to identify the undercover operators. After a little back and forth about a few of the words, a consent order was signed. [ 11 ] The voir dire then commenced with an elephant in the room.

While oral argument in Hart had been heard by the Supreme Court of Canada several months before this Trial began, a decision of the Supreme Court had not been released. [ 12 ] After hearing a few days of voir dire evidence initially on the Charter Applications referred to below and then on some of the modalities of the Mr. Big operation, it became very clear that we were operating in a vacuum. The Crown, the Defence and the Court were very much aware that the decision in Hart might have a profound impact on the law in this area and in particular what the Court should consider in its admissibility assessment.

Why? [ 13 ] Quite simply, the Courts had not developed a consistent and coherent approach to dealing with this question. [6] I encouraged Counsel for the Crown and for the Defence to adjourn the Trial to the fall as the release of a decision of the Supreme Court either before or just after a conclusion of its then term was anticipated. They agreed and the Trial and by implication continuation of the voir dire and more specifically the hearing of evidence on the Mr. Big operation was adjourned to September 22, 2014.

Events unfolded as anticipated and the decision in Hart was released on July 31, 2014. [ 14 ] The voir dire recommenced as planned in September and as hoped, Hart provided guidance to the Crown, the Defence and the Court as to how this issue should now be addressed. But there is more to how we got to where we are. [ 15 ] Prior to the commencement of the Trial in May, the Defence had given a Charter Notice (under Sections 7, 8 and 24(2) of the Charter) seeking exclusion of the evidence obtained under two Search Warrants and two Wiretap Authorizations and, as part of the

challenges by the Defence, the Defence initially sought leave to cross-examine three Affiants. This was subsequently varied by Mr. Milczarek at the commencement of the hearing on May 12, 2014 to two Affiants. [ 16 ] So, while most of this decision will relate to the hearing continuance, some of it will deal with the Charter challenges to the two Search Warrants and the two Wiretap Authorizations, and the Applications for leave to cross-examine. The Charter Challenges Application to Cross-Examine Constable Wayne Penninga [ 17 ] The first Application sought leave to cross-examine Constable Wayne Penninga. Mr.

Penninga was the Affiant in ITO #2011- 5920. The submissions of Mr. Milczarek and Ms. Juzwiak on the Application appear in pages 5-52 of the transcript for May 12, 2014 AM. In essence, Mr. Milczarek says Mr. Penninga breached his duty of candour and full disclosure in the ex parte Application. He also suggests there may not have been reasonable and probable grounds to find the items to which the ITO was directed. [ 18 ] Cutting through to the core of his submissions on lack of candour, Mr. Milczarek suggests the following should have been disclosed: a statement made by Ms.

Leader at 10:50 AM on March 12, 2011 at the residence for which the Search Warrant was issued who said she was in the residence at the time and that she did not hear any shots or see any blood in the residence; a statement made by Jackie McDowell at 10:30 AM on March 12, 2011 at the residence for which the Search Warrant was issued who said that she did not see any blood on the victim (noting here that she gave conflicting statements on whether or not she heard any shots); the fact that a silver handgun had been found at 6:00 PM on March 12, 2011 in the backyard of a residence close to the 7-Eleven where the victim was picked up by EMS personnel at 5:49 AM on March 12, 2011; and finally the statement of the victim given at 1:50 PM on March 12, 2011 that he was shot by an unknown person near the 7-Eleven where he was picked up by EMS personnel. [ 19 ] Mr.

Penninga began working on the ITO early in the morning on March 12, 2011 and worked on it throughout the day. He was not the primary investigator – that was Detective Christa Rivard and she is the individual who had spoken with the two women. Ms. Rivard is listed as one of the sources Mr. Penninga spoke to for the purpose of preparing the ITO. Mr. Penninga was at the Courthouse to present the ITO at 18:45 PM, which was only 45 minutes after the discovery of the gun. The Warrant was obtained at 7:03 PM.

So what else do we have? [ 20 ] From the Crown’s perspective and referring to the ITO: one Torrin Potter had said the shooting took place in the residence; that the gun being shot was a silver handgun he believed to be a semi-automatic; that the magazine was between 7 and 8 inches in length and black in colour and held more than 10 rounds. Mr. Potter also indicated that multiple rounds were fired within the residence; that the shooting occurred in the living room; that he had used a white facecloth to clean up the blood; and that he then put the facecloth back in the bathroom beside the toilet.

I appreciate that the submissions of Mr. Milczarek raise a credibility issue in relation to the assertion of Mr. Potter as to where the shooting took place and it is likely not the purview of Mr. Penninga to weigh Mr. Potter’s version of events against the statements of the two women and the statement of Jermaine Therrien that he was shot near the 7-Eleven. However, there is more to substantiate Mr. Potter’s view of the situation. What about the discovery of the gun? [ 21 ] The gun was discovered at 6:00 PM.

We must not forget this was an ongoing investigation with many officers involved and while we have made enormous strides in communication and word processing, by necessity, he had to finalize his version at some point prior to his 6:45 PM appearance at the Courthouse. [ 22 ] The granting or refusal of leave engages primarily two decisions of the Supreme Court of Canada. They are R v Garofoli [7] and R v Lising [8] .

What emerges from these two cases is the following directive to trial judges: The Garofoli leave requirement is simply a means of weeding out unnecessary proceedings on the basis that they are unlikely to assist in the determination of the relevant issues. The reason that the test will generally leave just a narrow window for cross-examination is not because the test is onerous – it is because there is just a narrow basis upon which an authorization can be set aside.

Hence, in determining whether cross-examination should be permitted, counsel and the reviewing judge must remain strictly focussed on the question to be determined on a Garofoli review – whether there is a basis upon which the authorizing judge could grant the order. If the proposed cross-examination is not likely to assist in the determination of this question, it should not be permitted. [9] [ 23 ] In my view, none of the issues raised by Mr. Milczarek even had they been disclosed would have changed the result and I have heard nothing that would suggest that Mr. Penninga deliberately withheld this information.

The best that could be said for the position of the Defence is that Mr. Penninga might have made a few more inquiries in order to ascertain whether or not there was additional information discovered during that day that he might have found necessary to disclose. I have great difficulty concluding any of the above would rise to a lack of candour when that information is measured against what does appear in the ITO. [ 24 ] More particularly, there is the statement of Jasmail Sani. Mr. Sani is a taxi driver. At 5:49 AM he had picked up a male who had already been shot before entering the cab.

Where did he make the pick-up? At 115 Erin Road SE. He drove the victim and two others (one male and one female) to a nearby 7-Eleven where he called 911. If that were not enough, Mr. Ledesma himself has indicated that the shooting occurred at 115 Erin Road SE. Furthermore the police observed that there was a bullet hole in a bay window and based on how the shards appeared, it was likely the shot had been fired from within the residence and Mr. Potter had said many shots had been fired. The ITO addressed a gun, ammunition and a cloth. [ 25 ] In the result, leave to cross-examine Mr. Penninga was denied.

Application to Cross-Examine Constable Scott Guterson

[ 26 ] Mr. Milczarek then moved on and sought leave to cross-examine Constable Scott Guterson. [10] Mr. Guterson was the Affiant in respect of two Wiretap Authorizations PA #1638 and PA #1645. Leave was sought to cross-examine in respect of the second of these Wiretap Authorizations. After some discussion between Counsel and the Court, it became clear no ruling would be necessary. Mr. Milczarek with the consent of the Crown was allowed to cross-examine Mr.

Guterson in a few areas. [11] Validity of the Wiretap Authorizations and Search Warrants [ 27 ] I must now move on to the Charter challenges to Search Warrant #2011-6937 (Detective Tom Barrow being the Affiant) and Search Warrant #2011-5920 (Constable Wayne Penninga being the Affiant) and the Wiretap Authorizations just mentioned. [ 28 ] Mr. Milczarek and Ms. Juzwiak filed extensive briefs outlining their positions on the Charter challenges and their briefs are part of the record. The issues to be decided are in the same breath simple and complex.

While that may sound like a contradiction in terms, it is not. [ 29 ] That brings us back to the Garofoli . While Garofoli concerned wiretaps, the principles apply equally to search warrants. [ 30 ] In a Garofoli analysis, the issue at the reviewing hearing is whether or not the issuing judge or justice, who read the materials submitted, could have concluded that the statutory preconditions for that type of warrant or authorization were satisfied. Where an accused person submits that the wiretap or search infringed his or her s. 8 right, the Court must ask whether or not the interception or search was reasonable.

To so determine, the Court must find they were properly authorized, which takes us back to the notion of satisfaction of the statutory preconditions. [ 31 ] In doing that analysis, the following must be kept in mind: the Accused bears the burden of establishing that the ITO is insufficient [12] ; the Court reviewing the authorization starts from the presumption that it was validly obtained; the burden of establishing the contrary is on the Accused; the standard is a balance of probabilities; and this is not a hearing de novo and I do not substitute my view for that of the issuing judge or justice. [ 32 ] Needless to say, there may be circumstances where the record may be amplified in the review hearing.

This is such a case as the record will be supplemented by the cross-examination permitted by consent. It may emerge that there were some misleading assertions, some inaccuracies in the information and some non-disclosure. Such occurrences are not a precondition to review but rather their impact is assessed in the following context: does there continue to be any basis for the decision of the authorizing judge? [ 33 ] The three preconditions for a search are found in Sections 487(1) (

a) and 487(1)(

b) of the Criminal Code . Under those Sections, there must be reasonable and probable grounds for believing that: (1) there is a building, receptacle or place (in this case 115 Erin Road SE) where; (2) there is something (in this case ammunition, a weapon and a cloth); which (3) will afford evidence with respect to the commission of an offence (which for the 5920 Warrant was the shooting of Jermaine Therrien and for the 6937 Warrant was the weapons-related offences and the shooting of Dexter Bain). [ 34 ]

Section 186 of the Criminal Code lists the two preconditions for wiretap authorizations. The issuing judge must be satisfied: (1) that it would be in the best interests of the administration of justice to do so; and (2) in essence, there was investigative necessity. Is there merit to the position of the Defence that the issue of the Search Warrants and the authorization of the Wiretaps was inappropriate? Search Warrant ITO #2011-5920 [ 35 ] Let me begin with ITO #2011-5920, being a Search Warrant for a dwelling house issued March 12, 2011. As already noted, the ITO was signed by Mr.

Penninga and I denied leave to cross-examine him. Mr. Milczarek suggests that the ITO should not stand for a number of reasons. He says that the evidence at the time only rises to the level of suspicion, not reasonable and probable grounds; that there was a failure to comply with the standard of full and frank disclosure; and finally that the process of the Application was so subversive as to essentially amount to an abuse of process. The only one of these submissions which is not subsumed within the leave to cross-examine Application (which was denied) is the final one.

With respect, not a shred of evidence was submitted which could lead one to conclude the Mr. Penninga acted in an abusive or arbitrary manner. [ 36 ] Justice of the Peace S.J. Taylor endorsed the ITO. Under the appropriate standard of review, I do not substitute my view for hers; rather, I must conclude that based on the record, which was not amplified, the authorizing judge could have granted the Authorization. Nothing I have read or heard would lead me to conclude otherwise. Wiretap Authorization PA #1638 [ 37 ] I must now move on to PA #1638 dated September 28, 2011, being a Wiretap Authorization.

As already noted, an agreement was reached between the Crown and the Defence on some limited cross-examination of the Affiant Mr. Guterson, so the ITO is supplemented by the cross-examination of Mr. Guterson. The cross-examination focussed on two areas - a Crime Stoppers tip (para 57 of the ITO) and the availability of other investigative techniques (para 115 of the ITO). [ 38 ] The cross-examination did elicit that the ITO contained an error.

At the end of paragraph 83 of the ITO under Investigator’s comment, the following appears: “as detailed in Paragraph 74, a member of a gang called ‘BMY’ is responsible for the murdering of Dexter Bain.” In fact, paragraph 74 references the shooting at 115 Erin Road SE. The victim was not Dexter Bain but rather Jermaine Therrien. Mr. Guterson acknowledged this inaccuracy and indicated to the Court that he had not corrected the error as he was not aware of it until well after the ITO had been presented. It should be noted that this error also appears in ITO #1645.

[ 39 ] The cross-examination then switched to the necessity part of the argument. Mr. Milczarek went through a very thorough review with Mr. Guterson of what the police knew, when they knew it, who the suspects were (and remember there were two separate shooting investigations underway namely Therrien and Bain) and the Mr. Big operation which was in its early stage. The purpose of his cross-examination was to demonstrate as best he could that there were in fact other investigative techniques available. [ 40 ] When it was Ms.

Juzwiak’s turn, she was equally effective. [ 41 ] When the investigation is viewed in its entirety what becomes obvious is the simple fact that this investigation, like others, is not an exact science. Decisions are made by the police in a fluid situation. [ 42 ] For example, Mr. Guterson was asked about questioning someone who he knew was nearby just before an event occurred but was also a suspect in the shooting. Mr. Obey fit that description as he was seen in the Macs video and the police believed he might have been involved.

They did not, however, have much to substantiate that belief except the fact he was seen in the video which might link him to the Bain shooting, along with the fact that he was present at the Therrien shooting. [ 43 ] Mr. Guterson said that by interviewing such a person, the police would be tipping their hand that he was a suspect. The suspect would know he was under a microscope and thus to do so would be a poor investigative strategy. [ 44 ] As noted above, Mr. Ledesma was the subject matter of a Mr. Big operation.

At the time the ITO was sworn, undercover officers had successfully established a relationship with Mr. Ledesma, he had participated in some undercover scenarios, and he had still expressed some concern that the principal operative working the operation was a police officer. Due to the inherent time limitations of such undercover operations, the officers were concerned that Mr. Ledesma may not make the necessary inculpatory statements prior to the termination of the operation. (See para 115 of the ITO) [ 45 ] Which brings me back to the words of Section 186(1)(b).

It authorizes a judge to grant a wiretap application where: “other investigative techniques have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.” [ 46 ] The ITO runs to some 71 pages and includes an overview of the state of the investigation, sources of information, investigative details, details of the undercover operation and much more.

In particular, paragraph 122 of the ITO outlines other strategies the police intended to employ along with the intercept authorization, if it was granted. [ 47 ] Mr. Milczarek also suggested that the evidence available only rose to the level of suspicion and not reasonable grounds. Ms. Juzwiak in her brief reviewed the state of the investigation in very specific terms, drawing from what was disclosed in the ITO and suggesting the contrary conclusion. [ 48 ] Justice Nation granted the Authorization.

Under the appropriate standard of review, I do not substitute my view for hers; rather, I must conclude that based on the record as amplified by the cross (which acknowledges an error in the ITO) the authorizing justice could have granted the Authorization. Nothing I have read or heard would lead me to conclude otherwise. Wiretap Authorization PA #1645 [ 49 ] That brings me to PA #1645. This ITO is in large part a carbon copy of PA #1638 with some additional information. As noted, PA #1638 is dated September 27, the same day it was authorized by Justice Nation.

That Authorization by its terms was to expire on November 26, 2011. PA #1645 is dated November 23, 2011. The reasons for a new Application and why it would assist in the investigation were set forth in paragraphs 26 to 28 of the ITO. Mr. Guterson was again the Affiant in the ITO. [ 50 ] Mr. Milczarek submitted that this Authorization should be set aside for essentially the same reasons as PA #1638 with a few small additions. There is a touch of irony in his submissions. On the one hand he says the police did not have enough evidence that an offence had been committed by Mr.

Ledesma to rise above suspicion to reasonable and probable grounds, yet at the same time impugns “investigative necessity” for the Wiretap Authorization, suggesting that in the absence of witnesses who could identify the shooter, the police were nonetheless in a position to determine that identity without the assistance of the wiretap. That sounds like a “heads I win tails you lose” proposition. [ 51 ] I cannot really add to what has already been said. Again, Justice Nation granted the Authorization.

As stated, under the appropriate standard of review, I do not substitute my view for hers; rather, I must conclude that based on the record as amplified by the cross-examination, as references were made to both (which acknowledged an error in this ITO as well), the authorizing justice could have granted the Authorization. Nothing I have read or heard would lead me to conclude otherwise. Search Warrant ITO #2011-6937 [ 52 ] Finally, that brings me to ITO #2011-6937, which is a search warrant for a dwelling. Mr. Milczarek initially brought an Application to cross-examine the Affiant Detective Thomas Barrow.

This Application was abandoned. The Affidavit is dated December 30, 2011 and it is the fourth request for assistance in the evolving investigation which then included several scenarios of the Mr. Big operation. Mr. Milczarek suggested in his brief a number of reasons why the required standard was not met and Ms. Juzwiak in her materials went through the ITO and highlighted why the ITO did meet the standard. Judge P.J. Mason of the Provincial Court endorsed the ITO.

Under the appropriate standard of review, I do not substitute my view for his; rather, I must conclude that based on the record which was not amplified the authorizing judge could have granted the Authorization. Nothing I have read or heard would lead me to conclude otherwise.

Application to Recognize Timothy Moore PhD as an Expert and then to hear Dr. Moore as a Witness [ 53 ] Before addressing the two Hart inquiries another issue must be addressed. As part of the voir dire , Ms. Snukal sought recognition of Timothy Moore PhD Cognitive Psychology as an expert and further sought admission of his written report, as supplemented by his oral testimony, as evidence for the purposes of the voir dire and then ultimately for Trial. Ms. Snukal sought recognition of his expertise in the area of police undercover investigations and the reliability of Mr.

Big confessions from a psychological perspective. [ 54 ] At the outset, I expressed some concern about the specificity in the area of expertise to which Ms. Snukal wished to have Dr. Moore recognized. It seemed to me something more general with a recognition of his special interest in this area. Ms. Juzwiak did not consent to even a more generic recognition even for the purposes of the voir dire . [ 55 ] At the qualification stage, a few facts emerged. Dr. Moore has been qualified to give expert evidence as a psychologist over 40 times.

He had been qualified three times to give evidence in the area of false confessions in relation to Mr. Big operations in a voir dire but had never given evidence at a trial as his evidence was deemed not necessary in each case. [ 56 ] When the CV of Dr. Moore is reviewed and his evidence at the qualification stage is considered, there is very little doubt this is an area in which he has a very strong academic interest. For the purposes of the voir dire , I have little difficulty in recognizing Dr.

Moore as an expert in the field of psychology and I would go further and acknowledge that, as a psychologist, he has a special interest in the area of the reliability of confessions obtained in Mr. Big operations. [ 57 ] I decline to extend this special interest solely to false confessions. I do so because Dr. Moore acknowledged that the same influential persuasion strategies and the counterfeit nature of the entire Mr. Big procedure might lay the groundwork for both a confession that is authentic and one that is false. [13] Obviously, it depends on the circumstances and that is precisely why we are where we are.

Which leads me to the real issue surrounding Dr. Moore: should he be allowed to give evidence at Trial? [ 58 ] The answer is no he should not. Ms. Snukal is to be admired for her candour. As noted, in seeking to qualify Dr. Moore she did not try to hide the fact that Dr. Moore has never been permitted to give evidence at a trial and she recognized the reason – necessity. Necessity was discussed by Justice Sopinka in the case of R v Mohan . [14] Justice Sopinka speaking for the Supreme Court described necessity as being more than whether the evidence would be helpful to the trier of fact.

He said the word “helpful” sets too low a standard. He continued and I paraphrase – what is required is that the opinion be necessary in the sense that it provides information which is outside the experience and knowledge of the judge or jury. [ 59 ] While Ms. Snukal did the examination of Dr. Moore, Mr. Milczarek also made submissions on why he should be allowed to testify at Trial. Mr. Milczarek submits that the information which must be brought to the attention of the jury by Dr.

Moore is the fact that people tend to explain an individual’s behaviour by making attributions about personality or character while overlooking situational explanations. [ 60 ] As I understand this submission in the context of this case, it comes down to this – there is inherent in our psyche a predisposition to the belief that a person would not admit to killing someone if they did not. Because of that bias, the bad character evidence which comes in as part of the narrative of the Mr. Big operation will likely lead the jury to overlook the situational explanations as to why a person might be telling an untruth.

Those situational explanations in this case are the vulnerabilities of Mr. Ledesma and the inducements arising out of the Mr. Big operation. [15] [ 61 ] As stated by the Crown in its submissions, the Supreme Court in Hart , referenced an

article Dr. Moore co-authored entitled “Deceit, Betrayal and the Search for Truth: Legal and Psychological Perspectives on the ‘Mr. Big’ Strategy.” [16] The Supreme Court also referenced other articles. The Supreme then set out a legal framework, dictating that the primary focus for the trier of fact should be on markers of reliability. The Court then identified those markers. What is interesting to note is the fact those markers are in a large measure similar to those Dr. Moore refers to in his report. The trial judge in addressing the jury must make sure those circumstances are properly noted.

That alone should dispense with the necessity for Dr. Moore to give evidence. But there is more. [ 62 ] In R v DD [17] , the majority decision emphasizes the danger that opinion evidence of an expert might usurp the job of the trier of fact. In this case, jury members when faced with Dr. Moore’s impressive credentials might be more likely to abdicate their role as fact finders. [ 63 ] In addition, Mr. Ledesma gave evidence at the voir dire . In his evidence, he denied being responsible for the death of Dexter Bain. I do not know whether or not he will give evidence at Trial.

That is a decision he and his counsel will make at the appropriate time. Whether he does or not is partially beside the point. What is not is the reliability of his evidence should he choose to testify measured against the apparent admission of guilt obtained in the Mr. Big operation.

That will be a credibility determination. [ 64 ] In Marquard [18] , the Supreme Court stated at para 49: “It is a fundamental axiom of our trial process that the ultimate conclusion as to the credibility or truthfulness of a particular witness is for the trier of fact, and is not the proper subject of expert opinion.” In fairness, the Defence has not suggested that Dr. Moore should be allowed to give an opinion on whether or not he believes the admission of guilt given by Mr. Ledesma in the Mr. Big operation is reliable.

His evidence would be confined to the impact of the situational explanations. [ 65 ] Finally, in the Written Submissions of the Crown, Ms. Juzwiak refers to a number of cases where the Court has held specifically that the evidence of Dr. Moore was found to be unnecessary. It is not necessary for me to list them as there are no contrary rulings.

[ 66 ] For all of the above reasons, Dr. Moore may not be called as a witness at this Trial. I do note, however, that this is an area where an instruction to the jury may be necessary and R v Mack , [19] which deals with jury instructions in a Mr. Big context, addresses this very point. [ 67 ] That brings me to a discussion of the two Hart inquiries – the reliability inquiry and the abuse of process inquiry. I intend to deal with the second first as a finding that this Mr. Big operation was an abuse of process would make the other inquiry unnecessary.

The Hart Inquiries The Abuse of Process Inquiry [ 68 ] At the outset, Justice Moldaver suggests in Hart that the abuse of process doctrine has thus far proved to be less than effective as a means of dealing with police misconduct. He suggests that this may be due in part to the Supreme Court’s decision in R v Fliss [20] . In that case, Justice Binnie describes the Mr.

Big operation as “skillful police work.” [21] Justice Moldaver then suggests and I paraphrase - the solution to the problem is to reinvigorate the doctrine and the first step towards restoring the doctrine as an effective guard against police misconduct in this context is to remind trial judges that these operations can become abusive, and accordingly that they must carefully scrutinize how the police conduct them. [22] [ 69 ] Justice Moldaver notes that it is impossible to set out a precise formula for determining when a Mr.

Big operation will become abusive, however as a guide he noted that misconduct that offends the community’s sense of fair play and decency will amount to an abuse of process and warrant the exclusion of the statement. [23] He does, however, give some guidance. [ 70 ] He notes that the mere presence of inducements in not problematic but police conduct, including inducements and threats, becomes problematic when it approximates coercion, particularly violence and threats of violence against the accused. [24] He also suggests that operations may become abusive in other ways.

Operations that prey on an accused vulnerabilities – like mental health problems, substance addictions or youthfulness are also problematic. [25] [ 71 ] The issue for Justice Moldaver reduces in some ways to the fact that there must be “inherent limits on the power of the state to manipulate people and events for the purposes of … obtaining convictions.” [26] This is a reference by Justice Moldaver to one of the dictums of the case of R v Mack [27] . Mr. Milzcarek in his brief picks up on this point. In Mack , the issue was entrapment and he submits that Mr.

Big operations have a kindred spirit to entrapment in the sense that the police are manufacturing the existence of a criminal organization and pretending to commit numerous crimes or in fact encouraging the commission of a crime. Mr. Milzcarek raised two other points. The first, he takes from Hart . [ 72 ] In Hart , Justice Moldaver is concerned about one aspect of the conduct of the police. As part of the operation in Hart , the police became aware that Mr. Hart was prone to seizures. Justice Moldaver comments that allowing Mr.

Hart to continue to drive knowing about his seizures might have amounted to an abuse of process because it placed him and the public at risk. [28] In this case, Mr. Ledesma brought a gun to his meeting with the undercover officers as part of scenario 37 on January 7, 2012. Mr. Milczarek suggested this is much further up the safety of the public track than driving a car with a risk of seizure. [ 73 ] At first blush, leaving Mr. Ledesma with a gun would seem to be problematic. However, the devil may be in the details. Ms. Juzwiak called Mr. Barrow as a witness in the voir dire . Mr.

Barrow is currently assigned to the Homicide Unit, the Major Crimes

Section of the Calgary Police Force and was the primary investigator of the murder of Dexter Bain. [ 74 ] Mr. Barrow was examined extensively about this situation in the afternoon session of October 23, 2014. The story goes as follows as to what decisions the police made in respect of violence suppression in this case: Mr. Barrow was not surprised to learn that Mr. Ledesma brought a gun to scenario 37 as early in October he became aware that Mr. Ledesma was attempting to acquire a firearm (this knowledge arose from discussions between G and Mr. Ledesma in the Mr.

Big operation). [ 75 ] The prospect of him obtaining a gun set in motion a number of contingency plans including the police seeking legal advice from the Crown Prosecutor’s Office as to how they might deal with the situation. Mr. Barrow then described some of the action he took. [ 76 ] Mr. Barrow attended at the Calgary Courts Centre to obtain a search warrant. A search warrant was obtained on December 30, 2011. It was ITO #2011-6937, discussed above. Obtaining the Search Warrant was part of a more extensive plan to ensure the safety of the public including surveillance of Mr.

Ledesma, the involvement of a tactical support unit, the gang suppression team and other investigators who could respond to incidents of which they became aware arising from the wiretaps. [ 77 ] When G found out about the gun on January 7, 2012, he reported this fact to undercover officer MO (his identity being the subject matter of a publication ban). While G was not aware of the contingency plans, MO was and he made the tactical decision to let the scenario play out. [ 78 ] They realized that involved returning the gun to Mr. Ledesma later that night.

It appears MO was comfortable with that decision for a number of reasons. First, G was to be with Mr. Ledesma for the balance of the evening. Second, there were other officers involved in surveillance that evening. Third, the plan was to fly Mr. Ledesma to Vancouver in the next few days and he would have to pass through airport security. (As noted below, scenario 44 took place on January 16, 2016). Fourth, uniformed officers were making curfew checks at the residence of Harlan Obey at 115 Erin Road SE (which was also where Mr. Ledesma resided). And, finally, the surveillance referred to by Mr.

Barrow was in place. [ 79 ] Ms. Snukal in her cross suggested to Mr. Barrow that there were other creative solutions that they might have employed that night such as staging a break and enter of the car. That is perhaps true but in the end the position of the police is quite simple. They were aware of a potentially dangerous situation and they made a balanced decision. There is a logic to that balanced decision and there were

protections for the public that were part of that decision. In the result, I do not find that this decision constitutes an abuse of process. [ 80 ] The second submission by Mr. Milczarek relates to the relationship between Mr. Ledesma and his counsel. [ 81 ] Scenario 44 on January 16, 2012 was the most critical scenario in the operation. It took place in an undisclosed location in Vancouver BC and was video recorded under the authority of PA #1645. A transcript of the communication is Tab 28 of Exhibit 2.

There were three individuals present: undercover officer G, undercover officer M (his identity being the subject matter of a publication ban) and Mr. Ledesma. It is in this scenario that Mr. Ledesma seemed to again acknowledge that he was responsible for the death of Dexter Bain. [ 82 ] Mr. Milczarek submitted that in scenario 44, G and M undermined the relationship between Mr. Ledesma and his counsel in the sense that they encouraged him to ignore the advice he had received. He submitted that this should in the context of a Mr. Big operation be seen as an abuse of process.

At the outset, this involves three determinations – what did G and M know about this advice, when did they acquire it and what did they do with it. [ 83 ] Several passages from the scenario are relevant and I intend for ease of reference to refer to the transcript. However, to put them in context some background is necessary. This scenario was to be the finale of a carefully orchestrated operation. First, Mr. Ledesma was to be out of town.

Second, while he was out of town, the police were to go to his residence and perhaps the residence of his parents, both of whom were in Calgary looking for him and to inform them that Mr. Ledesma was to be charged with murder. Third, Harlan Obey of Macs video fame was to be brought in for questioning about the murder. Fourth, wiretaps were to be put in place. The purpose of the first three elements was to stimulate conversation that might be inculpatory and the fourth element was to have any such statements recorded. [ 84 ] At the beginning of the scenario, M was alone in the undisclosed location. G and Mr.

Ledesma arrived, pleasantries were exchanged and the boys grabbed themselves a beer. In continuing with my description of what transpired for ease of reference, I will sometimes quote and sometimes paraphrase. [ 85 ] G then said: “K’s has some demons come up.” [29] G added: “I was thinking that … just hooking him up with some new ID’s.” [30] M then said: “Well I mean, I’m not gonna go out on a limb here and make promises if, if I don’t know what I’m getting myself into, right.” [31] Mr.

Ledesma then told M and G that he had spoken with his buddy and that his house was raided, the cops were looking for him, that they wanted to charge him with murder and that he had also spoken with his father who confirmed what his buddy had told him. [ 86 ] M then asked Mr. Ledesma: what do you think they have on you? Mr. Ledesma told them that they had the gun, that it was a 22 but he doubted they could trace it, that he was pretty sure his prints were not on it and that he was pretty sure he wiped it.

He also informed them that he had to go and see an investigator two weeks ago as they wanted to talk to him and that they wanted his DNA. Mr. Ledesma indicated he told the investigators to go *uck themselves. M then said it ain’t cheap to get papers but if that was what it takes to help him we can go down that road. M suggested he still needed a little better picture of what happened. [ 87 ] Mr. Ledesma then provided a few more details about what happened which will be more germane to the reliability analysis than this analysis.

Now, as mentioned, the police had picked up his buddy and it was in this context that the first discussion of advice from a lawyer arises. [ 88 ] M asked: is your boy solid and Mr. Ledesma responded “Yeah, he’s not, He’s not gonna bitch out.” [32] M then suggested in a pinch sometimes you know what happens. Mr. Ledesma then continued that he put his buddy onto his lawyer and “She told him keep your mouth shut and don’t say nothin’ to nobody. Ya, but, she’s tellin’ me basically like yes, like she’s like don’t stay runnin’, she’s like yeah, turn yourself in.” [33] [ 89 ] The first complaint of Mr.

Milczarek emerges from a statement of M which follows closely after. M said: “they can talk to you as much as they wants but I know through shit that I’ve seen. That ain’t good, that door closes, man.” [34] Mr. Milzcarek said this should be seen as discouraging his client from turning himself in which in essence is both suggesting he ignore his lawyer’s advice and also indirectly undermining that advice. [ 90 ] The exchange among M, G and Mr.

Ledesma continued and clearly a number of options for his course of action were discussed, including getting him a cover story and staying put, putting him on a plane and putting him on a bus. What would ultimately be done was not resolved. What did transpire was more discussion about what occurred that fateful night which again is more logically part of the reliability inquiry. [ 91 ] The discussion returned to what might happen in an interrogation and Mr.

Ledesma interjected: “Alright, you know I’ll go call my lawyer she’s ready for it.” [35] This seemed to be a rather ambiguous utterance as he did not leave to call but rather unprompted continued to discuss what he believed the police had and did not have. He then made another utterance about his lawyer: “I’m gonna listen to my lawyer? I’m gonna, I’m gonna turn myself in but I honestly don’t know, man.” [36] [ 92 ] The discussion then returned to his options and M said they can help and Mr. Ledesma speculated that he didn’t think he could take a plane back as they would arrest him at the airport.

He also acknowledged that he appreciated that they offered to help him. The discussion went on about what transpired. [ 93 ] The next reference to his lawyer was a gratuitous comment by Mr. Ledesma that his lawyer told him that his buddy was not charged with the murder but rather with breaches of his release conditions − obviously a ruse to get him in for interrogation. The discussion then returned to more details about what transpired and what the police did or did not know. [ 94 ] Mr.

Ledesma at one point expressed concern that this could bring heat on you guys (a reference to the operation) and that was unfortunate as they had been good to him. There was then another reference to his lawyer when he said he was going to have to turn himself in but that his lawyer said she would come with him.

[ 95 ] Again, M suggested if necessary they could get him some papers and maybe get him some work in Vancouver or maybe Toronto. That being said, M made it clear to Mr. Ledesma that they could get him back to town if he wanted it, maybe not on a plane but rather on a bus but it could be made to happen. Again, the discussion returned to what transpired. [ 96 ] Finally, a course of action is discussed: G would take Mr. Ledesma out for some food and they would cool it for the evening. As for tomorrow, M asked Mr. Ledesma what he wanted to do and specifically asked him if he wanted to head back. Mr.

Ledesma said he did as “I just gotta face the music.” [37] M then said: “we can throw you on a bus … if we fly you back, we can do that too. But you’re going back on your own.” [38] [ 97 ] With respect for Mr. Milczarek’s submission, when the entire context of scenario 44 is examined, I am unable to conclude that the relationship between Mr. Ledesma and his counsel was undermined. Quite to the contrary. I would conclude this was some rather clever police work. While M and G clearly suggested that they could help him out, there was never any doubt that the course of action to be followed was Mr.

Ledesma’s choice; it is clear that he chose to go back and they indicated they would help to make that happen. I do not find that feeding him and putting him up for the night, given the circumstances, should be seen as interfering with that choice. [ 98 ] While Justice Moldaver makes clear that inducements and taking advantage of the vulnerabilities of an accused could be part of an abuse of process inquiry, they are also relevant in the reliability inquiry. Mr. Milczarek was alive to this possibility. I intend to address them as part of the reliability inquiry.

The Reliability Inquiry [ 99 ] Each of the Crown and the Defence submitted written briefs which were supplemented by their oral submissions on the reliability inquiry. They are part of the record. In addition, Mr. Ledesma gave evidence during the voir dire . In that evidence, he said that what he told G in scenario 29 and M and G in scenario 44 was his counter story. That is to say he was simply trying to impress them and that it was a lie. He asserted during the voir dire that he was not responsible for the death of Dexter Bain.

When questioned about the various details concerning how the murder took place, he answered that they were all readily available from the public disclosure. [ 100 ] That he gave evidence raises an interesting question which was not raised by counsel in the voir dire but is nonetheless part of our law. [ 101 ] In R v. W.(D.) [39] , the Supreme Court sets out a three step test for credibility assessments where an accused has given evidence. The Supreme Court said (at para 11): “First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.” [ 102 ] Prior to Hart , authority is split on whether the W.(D.) test applies at the voir dire stage. [ 103 ] In R v Creig [40] , this Court rejected the application of R v. W.(D.) at the admissibility stage of the trial.

Justice Clark reasoned (at para 15): “The Accused on a Charter application carries both an evidentiary and a legal or persuasive burden of proof on the balance of probabilities. Guilt or innocence is not in issue at this stage of the proceedings, and the reasonable doubt principle has no application.” [41] [ 104 ] By contrast, other courts have found the W.(D.) analysis to be applicable at this stage. [42] [ 105 ] As the issue was not directly addressed in Hart , it is perhaps unclear whether the Supreme Court intends trial courts to apply the W.(D.) analysis to the reliability inquiry.

I say perhaps because Justice Moldaver does say (at para 98) that at the inquiry stage the Court is “only deciding the threshold question of whether the evidence is worthy of being heard by the jury and not the ultimate question of whether the evidence should be accepted and acted upon.” That sounds an awful lot like the conclusion of Justice Clark in Creig . [ 106 ] The Supreme Court then sets forth some factors to consider in the reliability inquiry, including circumstances in which the confession was made and any confirmatory evidence that is available. [ 107 ] As the new test articulated by the Supreme Court in Hart concerns the admissibility of a confession rather than the ultimate determination of the accused’s guilt, I intend to follow this Court’s decision in Creig . [ 108 ] That takes me back to the reliability inquiry as mandated in Hart . [ 109 ] Justice Moldaver outlines the various features which are often present in Mr.

Big operations. He notes six. They are: (1) undercover police officers lure a suspect into a fictitious criminal organization; (2) in the course of the operation they befriend the suspect and show him that the organization offers financial rewards for membership; (3) the crime boss i.e., Mr. Big must approve the suspect’s membership in the organization;

(4) Mr. Big conducts an interview with the suspect where he brings up the crime the police are investigating;

(5) Mr. Big dismisses any denials of guilt and presses the suspect for a confession; and (6) the questioning makes it clear that the suspect will get to join the organization if he confesses. [43] [ 110 ] While the Crown suggests only (1) and (2) are present in this case, the Crown nonetheless accepts that a Hart reliability inquiry is appropriate. Nonetheless, I do not agree with the Crown that only (1) and (2) are present. As noted, other police action was carried out in connection with scenario 44 which was designed to prompt discussion about the murder. This is part of (4).

Regardless, Hart requires a reliability inquiry in order to determine whether or not the confession will be admissible. [ 111 ] As noted, to do this the Crown must show on a balance of probabilities that the confession’s probative value exceeds it prejudicial effect. Its probative value flows from its reliability and its prejudicial effect flows from the bad character evidence that must

be admitted in order to put the operation and the confession in context. [44] [ 112 ] In Hart , the confession was found to be inadmissible. It was internally inconsistent, uncorroborated and the product of powerful inducements and coercion in the context of Mr. Hart’s emotional and financial dependency on the officers. The Crown said this case is the antithesis of Hart and the Defence said it is not. Let me begin with the position of the Crown as the Crown has the burden of proof. [ 113 ] Ms. Juzwiak said there were no threats or inducements of the type present in Hart nor should Mr.

Ledesma be seen as the socially isolated individual Mr. Hart was found to be. Quite to the contrary, she submitted the conversation in scenario 29 between G and Mr. Ledesma arose quite naturally while they were dining at a restaurant in the West Edmonton Mall in response to a recent news report about the Dexter Bain killing.

I agree. [ 114 ] She also submitted that as regards to scenario 44, the most that can be said for inducements was that the organization professed that it could help to try and fix the problem but that M wanted to understand what the problem was before he committed the organization to provide that help. I agree that is not the same as making a confession a precondition of joining the organization. [ 115 ] Ms. Juzwiak then went on to discuss internal consistency and corroborating evidence. I do not intend to review all of this submission for two reasons.

First, it is very clearly set forth in paragraphs 24 to 38 of her Written Submission (which are part of the record) and second, the issues raised by Mr. Milczarek, while thorough, they did not put much of a dint in the Crown’s position. In essence, the Defence approaches reliability from the threats, inducements and vulnerability perspective. In addition, Mr. Milczarek revisits police conduct as part of the reliability analysis. I will come back to those submissions below as I should mention two of the points she made just to give a flavour of what was before the Court. [ 116 ] First, Mr.

Ledesma’s comment to Charice Campbell, a friend of Mr. Ledesma who was not part of the Mr. Big operation: “if they get our DNA me and H are going down for murder.” [ 117 ] Second, in the DNA context, an exchange between Mr. Ledesma and Mr. Barrow: Mr. Barrow indicates to Mr. Ledesma that they want a sample of his DNA. He does not say why. But Mr. Ledesma starts to panic. Why? Because he believes they are trying to make a connection between the gun used in the Dexter Bain murder and the gun used in the shooting of Jermaine Therrien. Remember, Mr.

Ledesma has acknowledged to G that he shot Jermaine Therrien (albeit accidentally), that he had ditched that gun in a field by the 7- Eleven (it was a 22), and that a 22 was used in the Bain shooting some time earlier. The police were not able to match the 22 in evidence to the bullets found imbedded in Dexter Bain. However, it is the consistency in the story which is of some value. I appreciate one must be cautious in elevating what is an inference or likelihood to an established fact.

That being said we cannot forget that at this stage we are at the gatekeeper stage not the Trial where proof beyond a reasonable doubt is required. I will now return to inducements, threats and social isolation. [ 118 ] Essentially, the Defence submits this case is Hart revisited with only the names changed. [ 119 ] Let me first address inducements. It is the position of the Defence that Mr. Ledesma was financially vulnerable. [ 120 ] The Crown called Sergeant Stuart Cole as a witness. He is part of the Priority Crimes Investigation Team. This team is an undercover unit within the Calgary Police Service. Mr.

Cole was in charge of Operation Marauder which was the code name for the Mr. Big operation directed at Mr. Ledesma. He indicated that as part of the preliminary work they sometimes did a social lifestyle profile of the intended target. They did not do one in this case but he did have as part of his notes a few documents which might lead one to conclude Mr. Ledesma had a criminal background. [ 121 ] These documents were the subject of cross-examination by Ms. Snukal and it became clear that some loose language may have been included in the document the impact of which would paint Mr.

Ledesma in a more negative way than may have been the reality. There were references to aggravated assault when in fact there may not have been a conviction, only a charge laid and later stayed. What is not in doubt is the simple fact that Mr. Ledesma has a record and some of it is associated with violence. [ 122 ] There does not appear to have been any independent attempt by the police to verify the very consistent assertions by Mr. Ledesma that he was broke. For the purpose of this voir dire , I accept the following as inducements: the money paid to Mr.

Ledesma for some of the work he did for the organization, the meals, the booze, the hotels, the strip clubs, the shooting range and the few trips out of town, which included Mr. Ledesma’s first time flying. The question then becomes: was it an inducement in the sense accepted by the Court in Hart . [ 123 ] I disagree that these are inducements within the meaning of Hart . What is missing? They have not become coercive. As noted earlier, Mr. Ledesma gave evidence. He was born July 26, 1986. He demonstrated cognitive awareness during the operations and he was very responsive to questions in his testimony.

He is an amateur musician and along with his buddies has made a rap video which he would like to have sold commercially. When his actions and his words are put in context in the various scenarios, he does not come across as vulnerable such that their impact would not be seen as coercive. While he said he needed cash, he comes across as quite content and in some ways quite enthusiastic about his future in the organization and the financial rewards that it could have brought him. He has engaged in various types of employment but on any test he would not be seen as headed for a senior position in the oil patch.

He acknowledged the use of drugs and alcohol but nothing I heard would lead me to conclude he was an addict but rather it was a lifestyle choice. What about threats? [ 124 ] In Mr. Big operations, violence is often a major part of the plot. Operation Marauder is no exception. At no time did the police threaten Mr. Ledesma personally; the threats of violence were more subtle. The police injected violence as part of the scenarios as it was their experience that violence sometimes leads to a discussion about violence. In this case, that proved to be an accurate supposition. The problem is that Mr.

Ledesma says some of his discussions about violence were just part of his comeback story. [ 125 ] Mr. Ledesma says after G talked about violence and after Mr. Ledesma observed the violence by the organization directed at some of its members for their disloyalty to the organization he was just playing along telling them what he thought they wanted to hear. Context is important. Mr. Ledesma may have been playing along and telling a lie or he may not have been playing along but rather

telling the truth about what he had done. The dilemma is of course the inherent tension between bad character inferences creeping into whether or not certain other statements are true. This becomes particularly true when the witness asks the Court to believe a statement when it is exculpatory but disbelieve it when it is inculpatory. That is why Justice Moldaver says we must look to other circumstances. It is not only easy but also improper to conclude that Mr. Ledesma was not intimidated by all the violence he witnessed because he was a bad person. [ 126 ] I must now address another aspect of Mr.

Ledesma’s profile: the social connection he developed with the organization and in particular G. There is little doubt that Mr. Ledesma developed a close relationship with G and the organization. He spent many hours with G, G paid all the bills, G told him he was a great guy, and they hugged each other quite frequently. Mr. Milczarek suggests that, even though Mr. Ledesma had other friends, G became the most important person in his life and because of that he would tell G whatever G wanted to hear. [ 127 ] Clearly, that was a concern in Hart .

It could equally become a concern in this case unless there were other markers which would alleviate that concern. That brings me full circle to the submissions of the Crown noted above concerning others markers of reliability. As noted, there are many. I must now address prejudicial effect. [ 128 ] Mr. Miczarek quite correctly notes that prejudice in a Mr. Big context involves both moral and reasoning prejudice. The moral stems from the bad character evidence which inevitably becomes part of the narrative.

The reasoning prejudice emerges from the acceptance of violence which the criminal organization displays as part of its stock and trade. Mr. Ledesma’s acceptance of and to some extent his participation in these violent acts which the organization carried out can lead to faulty associative reasoning. [ 129 ] Justice Moldaver notes in Hart that in the final analysis all “Mr. Big operations are cut from the same cloth, and the concerns about prejudice are likely to be similar from case to case.

As a result, trial judges will expend much of their analytical energy assessing the reliability of the confessions these operations generate.” [45] Needless to say, this puts an onus on me when instructing the jury to make sure they are alive to the concerns of the Court about the faulty use of bad character evidence. [ 130 ] In this case for the corroborative reasons detailed in the Crown’s brief, substantially all of which I accept, the confessions are reliable and as such their probative value is high.

Conclusion [ 131 ] Accordingly, I am satisfied that on a balance of probabilities the probative value of the confessions exceeds their prejudicial effect and they are admissible for the triers of fact to consider in the Trial. Where do we go from here? Additional Action by Crown and Defence [ 132 ] I heard several weeks of evidence on the voir dire . At the conclusion of the voir dire , the Trial was adjourned to February 17, 2015 with jury selection set for February 11, 2015. The Crown and the Defence are in agreement that not all of the evidence I heard should go the jury.

This means some decisions are necessary on exactly what will be put to the jury. [ 133 ] We have over a month before the Trial is to begin. I would suggest that the Crown and the Defence provide me with the following by the end of January 2015: (1) a list of what they both agree should be heard; (2) a list of what the Crown believes should be heard but the Defence says should not; and (3) a list of what the Defence believes should be heard but the Crown says should not.

Perhaps we could then meet in the week before the Trial commences to sort out the areas of difference. [ 134 ] In preparing these lists, I would encourage the Crown and the Defence to focus on substance and to remember that while detail is often necessary, in the end less is often more. [ 135 ] Finally, I wish to acknowledge the quality of the materials provided to me by Counsel and the professional manner in which they conducted the voir dire .

Heard on the 12, 13, 14, 15 th days of May, 2014, the 22, 23, 24, 25, 26 th days of September, 2014, the 6, 7, 8, 9, 10, 17, 20, 21, 22, 23, 24, 27, 28, 29, 30 th days of October, 2014. Dated at the City of Calgary, Alberta this 13 th day of February, 2014.

S.J. LoVecchio J.C.Q.B.A. Appearances: Grant Schorn & Marta Juzwiak Alberta Justice for the Applicant Rebecca B. Snukal Fay Snukal & Associates for the Respondent And Pawel J. Milczarek Sitar & Milczarek for the Respondent _______________________________________________________ Corrigendum of the Memorandum of Decision on a Voir Dire of The Honourable Mr. Justice S.J. LoVecchio _______________________________________________________ Corrigendum to insert Criminal Code s 648 publication ban on this decision.