R v Klaus, 2017 ABQB 721

Court of Queen’s Bench of Alberta Citation: R v Klaus, 2017 ABQB 721 Date: 20171127 Docket: 141048777Q1 Registry: Red Deer Between: Her Majesty the Queen Crown - and - Jason Gordon Klaus and Joshua Gregory Frank Accused _______________________________________________________ Reasons for Judgment Regarding Admissibility of Mr. Big Evidence of the Honourable Mr. Justice Eric F. Macklin _______________________________________________________ I Introduction [ 1 ] Jason Klaus and Joshua Frank are charged with the murder of Jason Klaus’ parents and sister. [ 2 ] The RCMP believed that Mr.

Klaus was involved in, or had knowledge of, the circumstances surrounding the deaths and they sought to determine his involvement. They conducted an undercover operation, commonly known as a “Mr. Big” operation, targeting Mr. Klaus (Project Kontingent). [ 3 ] The Crown sought to adduce evidence provided in the course of Project Kontingent by both Mr. Klaus and his co-accused, Joshua Frank. I ruled the evidence was admissible. These are the reasons.

II Project Kontingent [ 4 ] The architect of Project Kontingent was Cpl. A. He was the cover person and the liaison between the RCMP investigators and the undercover operators. His role included the crafting of scenarios and providing the undercover operators with directions on how to achieve the objectives of the operation. According to Cpl. A, he expressly told the operators that at no time were they to threaten the target, in this case Mr. Klaus, nor to use any violence against him. [ 5 ] Cpl. A selected two primary operators who would have the most personal contact with Mr. Klaus. They were Cst. B and Cst.

C. [ 6 ] The two primary operators, together with others who performed various different roles depending upon the scenario, were all presented to Mr. Klaus as being involved with a criminal organization. The fictional head of the criminal organization, Mr. Big, was generally not involved in most of the scenarios, though it was represented to Mr. Klaus that he was always directing the actions of the organization's members. [ 7 ] Project Kontingent involved 26 separate scenarios starting on April 1, 2014 and lasting over a total time period of about three and one half months. Cpl.

A testified that this was the shortest operation he had ever been involved in because of how quickly Mr. Klaus progressed to the point where he first confessed to his role in the deaths of the victims in Scenario 14 on June 2, 2014. [ 8 ] Mr. Klaus was involved in each of the 26 scenarios. His total contact with operators lasted around 150 hours. [ 9 ] Mr. Frank was involved only in Scenario 24 on July 19, 2014, aside from speaking with one of the operators over the telephone in Scenario 26. His total contact with the operators lasted less than 6 hours. [ 10 ] The relationship between Mr.

Klaus and members of the organization began with Scenario 1 on April 1, 2014, when Mr. Big and Cst. B went to the Klaus farm to store a vehicle. In exchange for allowing them to store vehicles and other property on the farm, Mr. Klaus was to be paid $2,500 per month. On the first occasion, he was paid $800 and on the second occasion, April 3, 2014, he was paid a further $1,200. There was some confusion about the monthly rental cost and, ultimately, he was paid a further $500. He was also paid an additional $2,500 for the second month. [ 11 ] Mr.

Klaus developed significant trust in, and a strong affinity toward, Cst. B who told him of skeletons in his own closet, including a false story that he had killed his fiancé a few years earlier. Cst. B encouraged a feeling of respect and friendship by often speaking of his own respect and affection for Mr. Klaus. Cst. B emphasized that Mr. Klaus had his full support in a bid to become a full- time member of the organization. Mr. Klaus was repeatedly told that the organization demanded honesty and loyalty. At one point, Mr.

Klaus made the comment that he loved and respected the organization and had never had friends like them whom he could trust. [ 12 ] Mr. Klaus was allowed to participate in staged scenarios which appeared to involve illegal activities. These included debt collection, falsifying pin pads for credit cards, blackmail of a border guard, obstruction of justice by setting up a false alibi and various other activities. When offered an opportunity to avoid participating in any scenario, not only did Mr. Klaus not decline but he actively participated.

On each occasion in which he participated, he was paid at the end of the scenario. He was paid a total of $12,340 over the course of the operation, which included $5,000 for the storage of equipment on his property. Therefore, he received about $7,340 in payment for his involvement in the apparently criminal activities of the organization. [ 13 ] Mr. Klaus participated in a couple of scenarios in which a member of the organization was apparently dishonest. He was present when the dishonest member was fired, and his phone and keys to his condominium and vehicle taken away.

The member was left to walk to a nearby gas station. [ 14 ] Mr. Klaus was also involved in two scenarios where he and Cst. B in the first case and Cst. C in the second case were attempting to enforce debt payment by someone who owed money to the organization. On the second occasion, Cst C. conducted a pat- down search of the individual and took his wallet. He also removed the fellow's sunglasses and Mr. Klaus took his watch. [ 15 ] Mr. Klaus also witnessed Cst. B apparently lose his temper at an individual, who was not a member of the organization, for parking too close to his vehicle. Mr. Klaus observed Cst.

B use very inappropriate racial slurs towards that individual and break the window in that person's vehicle with a tire iron. [ 16 ] Mr. Klaus was involved in one scenario where another member of the organization had supposedly violently assaulted a prostitute, and brought her in the trunk of his car to meet Cst. B and Cst. C and Mr. Klaus. The operator portraying the prostitute was made up to appear as though she had been violently assaulted and Cst. C took her away in his car while Cst. B and Mr. Klaus went to the hotel room where the assault allegedly occurred to clean it up. Cst.

C let the supposed prostitute go free. [ 17 ] In Scenario 14 on June 2, 2014, Mr. Klaus confessed his involvement in the murders to Cst. B. This scenario played out as part of, and immediately following, the incident involving the supposed prostitute. Cst. B and Mr. Klaus were preparing to travel with the operator who committed the assault on the prostitute to Regina to set up a phony alibi. On the way, they were going to spend a night in Medicine Hat. While there, Cst. B visited Mr. Klaus in his hotel room and Mr.

Klaus ultimately confessed to his involvement in the murders of his parents and sister. [ 18 ] The discussion was not in the nature of an interrogation, although Cst. B did encourage full disclosure. Mr. Klaus confessed to having planned the murders but said that he did not actually commit them. Rather, he said he had paid Josh Frank to do so. At the time, Cst. B knew that Mr. Frank had passed a polygraph so he believed that Mr. Klaus was lying and attempting to minimize his involvement in the murders. He tried to flesh out what he believed to be the truth but Mr.

Klaus adamantly maintained the story as he told it. He did so again the following day when asked by Cst. B. [ 19 ] A few days later, on June 11, 2014, Mr. Klaus sent Cst. B text messages recanting his confession of June 2, 2014. In text

messages back to him, Cst. B blamed it on one of Mr. Klaus's girlfriends, Wendy, who Mr. Klaus said had been telling him not to trust these new "friends" of his as they could be police officers. As a result of the exchange of these text messages, Cst. B decided to pull back from his involvement and have Cst. C become more involved. [ 20 ] In Scenario 17 on June 12, 2014, Cst. C went to the Klaus farm and saw that they were getting ready for a sale of the farm. He tried to smooth out the relationship and spoke of a trip to Vancouver that they were taking the following day. Mr.

Klaus was excited about going to Vancouver and he also apologized for the text messages sent to Cst. B. Mr. Klaus was unable to go to Vancouver, however, as he sustained a broken ankle that day. [ 21 ] The operators, and Mr. Big himself, advised Mr. Klaus that Mr. Big’s dying uncle was in the hospital. Mr. Klaus was told that he was such a valued member of the organization that Mr. Big would arrange for his uncle to confess to the murders before he died as a "dying declaration".

In order to do so, and to convince the police of the authenticity of the confession, all intricate details of the murder had to be known. This would allow the uncle to convince the police that he must have been responsible as no one else would have known the details provided by him. Once the dying uncle made his declaration and it was accepted by the police, Mr. Klaus would be in the clear. [ 22 ] While it is unclear precisely what Mr. Klaus may have said to Mr. Frank, it appears clear that he was told that someone would be looking after their problem and this was the reason for Mr.

Frank to confess his involvement in the murders to Mr. Big. It appears, however, he was unaware that it was through a supposed “dying declaration” by Mr. Big’s uncle. [ 23 ] Scenario 24 on July 19, 2014 was designed to have Mr. Klaus speak to Mr. Big. Cst. C and Mr. Klaus drove from Lethbridge to a condominium in Calgary to meet other members of the organization as well as Mr. Big. The purpose of the meeting was for Mr. Big to advise everyone that he had decided to make someone a full-time member. Mr. Klaus expected it would be him. [ 24 ] When they arrived, Mr.

Big advised that another person was being made a full-time member. Immediately following, Mr. Big spoke with the new member and, seemingly jealous, Mr. Klaus asked to speak to Mr. Big as well. [ 25 ] Mr. Klaus then confessed to Mr. Big his involvement in the murders of his family members by Mr. Frank. He confirmed that Mr. Frank would corroborate the story and he called Mr. Frank and arranged for a meeting. The meeting took place at the CrossIron Mills mall parking lot near Airdrie, Alberta. [ 26 ] Mr. Frank and Mr. Big met alone in Mr. Big's truck. The meeting was audio and video recorded. Mr.

Frank was expressly told by Mr. Big that he would receive nothing from the organization for speaking with him and that he was free to leave at any time. He was told that if he did so, he would not have to worry about ever seeing them again. Mr. Frank told Mr. Big that he chose to speak freely to him because he knew that if Mr. Big helped Mr. Klaus, it would also help Mr. Frank. Mr. Frank then admitted that he and Mr. Klaus had planned the killings and that he was the one who actually shot and killed all three victims and then set the house on fire.

He drew diagrams of the Klaus family farm and indicated the location of the dead dog and the jerry can. He was casual in his description of what had happened and chuckled or laughed on at least a couple of occasions. [ 27 ] After Mr. Frank finished speaking with Mr. Big, the two of them together with Cst. B, Cst. C and Mr. Big all got into one vehicle. Mr. Frank directed them to the location where he had thrown the firearm. He described where he had thrown the keys to the vehicle though he did not go with them to locate the keys.

He also advised that he still had the lighter that was used to start the fire and a bullet. III Parties’ Positions Crown [ 28 ] The Crown seeks to adduce at trial certain statements made by Mr. Klaus to operators during Scenarios 14, 24 and 25 and statements and actions of Mr. Frank during Scenario 24. [ 29 ] The Crown argues that the evidence establishes that Mr. Klaus actively and willingly participated in the 26 scenarios making up Project Kontingent. Mr. Klaus was not dependent on the operators for social or financial support, nor was he subjected to any threats.

He provided detailed evidence of the crime. [ 30 ] The Crown submits that it has established on a balance of probabilities that the probative value of Mr. Klaus’ statements outweigh any prejudicial effect, and that Mr. Klaus cannot establish that there has been an abuse of process. The Crown seeks admission of the evidence relating solely to commission of the offences charged, and not evidence of other criminal conduct. The Crown submits that this eliminates any potential prejudice to Mr. Klaus, particularly in a judge alone trial. [ 31 ] The Crown also seeks to introduce statements and actions made by Mr.

Frank during Scenario 24, the only scenario in which he participated. [ 32 ] The Crown submits that the circumstances in which Mr. Frank participated do not fall within the definition of a Mr. Big operation and therefore his statement and acts are admissible as a statement against interest. Mr. Frank had limited exposure to Mr. Big, was offered nothing, was told he could leave at any time, and was merely there because of Mr. Klaus. He was not exposed to any violence or threats. There was no potential to cultivate coercion. [ 33 ] The Crown submits that if the circumstances applicable to Mr.

Frank are analogous to a Mr. Big operation, then the relevant factors militate in favour of admission and the highly probative value outweighs any prejudicial effect. No background information

about Mr. Frank was revealed through the Mr. Big operation. Like Mr. Klaus, Mr. Frank cannot establish an abuse of process. Mr. Klaus [ 34 ] Counsel for Mr. Klaus submits that the evidence in question is not admissible as the statements made by Mr. Klaus are simply not reliable and, therefore, their probative value is outweighed by the prejudicial effect. [ 35 ] Counsel notes that a number of the scenarios were several days in duration, involving long periods of time where Mr. Klaus was in close proximity with the undercover officers.

Scenarios 6, 11, 13, 14, 15, 22 and 23 involved lengthy car trips, intensifying the psychological grip of the operators over Mr. Klaus. [ 36 ] Counsel argues that there were significant inducements offered which created an intense desire on the part of Mr. Klaus to become a member of the organization. He received in excess of $12,000 cash over the course of the operation. He stayed for free in numerous hotel rooms, received many free meals in restaurants, and enjoyed numerous trips to bars and strip club, all compliments of the criminal organization. Mr. Klaus’ lifestyle changed significantly for the better.

It was clear that there was very real potential for an even more extravagant lifestyle if he performed to the expectations of Mr. Big. During Scenario 22, he was led to believe that he might be given control of the organization’s Southern operation in Lethbridge. In Scenario 24, another operator was presented as the person taking over the Northern operation, and at that time received keys to a home, keys to a vehicle, and $50,000 in cash.

Further, belonging to the organization apparently filled a void in his social life. [ 37 ] Counsel concedes that there was no actual violence committed against, and no threats directed to, Mr. Klaus. However, he argues that a number of the scenarios, particularly Scenarios 6, 8 and 13 suggested that members of the organization were capable of a high degree of violence, sometimes over trivial matters. The organization ostensibly had power and influence sufficient to ensure that criminal behavior would not be discovered and would go unpunished. [ 38 ] Counsel submits that Mr.

Klaus is not a sophisticated individual. He had not been exposed to the types of experiences that were presented during his involvement in the scenarios. He experienced episodes of bizarre behavior, for example in Scenario 13. He appeared on several occasions to abuse alcohol, and admitted to using cocaine. [ 39 ] Counsel submits that Mr. Klaus was clearly untruthful at times with members of the organization, including Mr. Big, for example in relation to the existence of the deer head. Counsel concedes that Mr.

Klaus ultimately admitted his dishonesty, but submits that this demonstrates that he was prepared to lie to enhance his status with the organization. He gave two different versions of his involvement in the deaths - one inculpatory and one exculpatory. No evidence was discovered directly as a result of his statements. Rather, Mr. Frank provided the information that led to the recovery of the truck keys and the 9 mm pistol. Counsel argues that it is clear that Mr. Klaus obtained this information through Mr. Frank. The information Mr.

Klaus provided had been made available to him during his numerous interviews with investigating officers. Mr. Klaus desperately wanted to belong to the organization, and he was prepared to be untruthful to achieve that end. Mr. Frank [ 40 ] Counsel for Mr. Frank submits that the type of interaction in which Mr. Frank was involved should be subjected to an analysis under the law on Mr. Big operations. [ 41 ] Counsel submits that there was no emphasis in Mr. Frank’s interactions with the operators regarding the importance of honesty and loyalty. Mr. Frank commented that Mr.

Big did not look like he was very friendly, which indicates that he found him to be intimidating. Mr. Frank would have been aware that this was a dangerous criminal organization. Mr. Klaus told Mr. Frank: “These are the guys I was telling you about”. However, it is not clear what information had been relayed to Mr. Frank. [ 42 ] Mr. Klaus told Mr. Frank that he could hire Mr. Frank if Mr. Klaus became a member of the organization. However, Mr. Frank did not have the assurance given to Mr. Klaus that no danger would come to him if he did not confess. He was told that if Mr. Big helped Mr. Klaus, based on what Mr.

Klaus had told him, it would help Mr. Frank. Counsel suggests that Mr. Klaus may have subjected Mr. Frank to threats. [ 43 ] Counsel points to evidence suggesting that Mr. Frank’s statement is unreliable. Mr. Frank described the gun as being unloaded. However, the gun taken from the river was loaded. Mr. Frank also described it as having the serial numbers “wiped off”, however the gun found had serial numbers. Mr. Frank claimed ammunition was thrown into the river, but none was found. Mr. Frank claimed the fire was started with a lighter but Mr. Klaus claimed Mr. Frank advised him it was started with a cigarette.

Mr. Frank and Mr. Klaus disagreed on where the dog was located, Mr. Klaus correcting Mr. Frank on this point. There was no attempt to verify where Mr. Frank had burned his clothes as he alleged. [ 44 ] Counsel notes that there was no holdback evidence used in this case to confirm that the suspect was being truthful. The details provided by Mr. Frank cannot be confirmed, and those that could be (the gun and the dog) are inconsistent with his statement. [ 45 ] Counsel for Mr. Frank also submits that the organization threatened to kill Mr. Frank in Scenario 14 at pages 18, 27 and 30.

There is no evidence that the operators attempted to ascertain whether any of that conversation was relayed by Mr. Klaus to Mr. Frank. During Scenario 24, Mr. Frank made a comment about being threatened by Mr. Klaus to commit the offence, but the operators made no attempt to confirm that Mr. Frank was not making the statement because he was threatened by Mr. Klaus. [ 46 ] Counsel for Mr. Frank argued that he was not subjected to further scenarios to ascertain the reliability or truthfulness of his statements and actions.

IV Law [ 47 ] A Mr. Big operation is designed to target an individual or individuals who are believed to have been involved in a major crime. The goal of the operation is to obtain the truth about the target’s knowledge of, and participation in, the crime being investigated. [ 48 ] In R v Hart , 2014 SCC 52 , [2014] 2 SCR 544, the Supreme Court created a new framework governing how courts must determine the admissibility of a confession obtained in the course of a Mr. Big operation. The framework is intended to address three major concerns associated with Mr.

Big operations: (1) unreliable confessions, (2) the introduction of bad character evidence, and (3) the risk of abusive investigations. The framework in Hart can be applied to circumstances which are analogous to Mr. Big operations where similar moral and reasoning prejudice concerns arise: R v Zvolensky , 2017 ONCA 273 , appl’n for leave filed [2017] SCCA No 403. [ 49 ] Under the Hart framework, any confession police obtain from the accused is presumptively inadmissible. To rebut this presumption, Crown must establish that: 1) the probative value of the evidence outweighs its prejudicial effect, and 2) the Mr.

Big operation, as conducted, did not constitute an abuse of process. [ 50 ] Even if a court finds that the confession could be admissible, a court retains the residual discretion to still bar the confession from being entered as evidence if it would compromise trial fairness: Hart at para 88 . [ 51 ] The Crown bears the onus of establishing on a balance of probabilities that the probative value of the evidence outweighs its prejudicial effect. The probative value of the evidence is directly related to its reliability. A number of factors should be taken into consideration: Hart at paras 102, 105 .

These different factors are not to be addressed mechanically, but instead are to be used as part of an investigation into the context in which the accused confessed: Hart at para 104 . [ 52 ] A confession obtained in a Mr. Big operation may also be excluded based on abuse of process. The accused bears the onus of showing that the Mr. Big operation constituted an abuse of process: Hart at para 113 .

If the accused can show this, the confession is inadmissible, regardless of its reliability. [ 53 ] Generally, a court’s consideration of abuse of process focuses on two things: 1) the use of violence and 2) the target’s vulnerability, though other things could lead to a finding of abuse of process: Yakimchuk at para 87. [ 54 ] In either case, a court will consider if police engaged in behavior that society would find unacceptable, or if police somehow overcame the will of the accused and coerced a confession: Hart at paras 113, 115 . The usual trappings of a Mr.

Big operation (simulated violence, inducements, friendship) will not cause a court to find an abuse of process. Something more is required, such as where the police take advantage of an accused’s young age, mental health or addictions issues in securing a confession: Yakimchuk at para 91. If an accused felt legitimately threatened by undercover officers during the course of a Mr. Big operation, this may constitute an abuse of process: R v Derbyshire , 2016 NSCA 67 , 340 CCC (3d) 1. V Analysis [ 55 ] Mr.

Klaus was the target of Project Kontingent and the admissibility of his statements must be analyzed according to the guidelines set out in Hart . Mr. Frank was not a target. He was drawn into one scenario at the behest of Mr. Klaus. There was no opportunity for the operators to “groom” him through inducements or threats. Based on the evidence, any pressure to participate would have come from Mr. Klaus. Therefore, Mr. Frank’s statement and acts do not fall within the type of interaction with undercover police officers contemplated in Hart .

Nevertheless, in case I am wrong in reaching this conclusion, I will consider the application of the factors set out in Hart in relation to Mr. Frank. A The length of operation and number of interactions [ 56 ] In Hart at paras 12, 133 , the majority described the four month Mr. Big operation as “lengthy”. However, other Mr.

Big operations producing admissible evidence have lasted significantly longer: R v Johnston , 2016 BCCA 3 , 333 CCC (3d) 555 (5½ months), R v Yakimchuk , 2017 ABCA 101 , 48 Alta LR (6th) 207 (6 months), R v MM , 2015 ABQB 692 , 2015 CarswellAlta 2177 (8 months), R v Magoon , 2015 ABQB 351, 2015 ABQB 351, rev’d 2016 ABCA 412 , 2016 CarswellAlta 2435, appl’n for leave filed [2017] SCCA No 48 (8 months). [ 57 ] Mr. Big decisions reflect a wide range in the numbers of “scenarios” in which the police had the target participate.

While a number of operations range between approximately 40 to 70 scenarios ( Hart , Johnston , MM , Yakimchuk, R v Allgood , 2015 SKCA 88 , 465 Sask R 120, leave denied [2015] SCCA No 423, R v West , 2015 BCCA 379 , 376 BCAC 301), Magoon had 106 scenarios. [ 58 ] Cpl. A testified that this was the shortest operation he had ever been involved in. [ 59 ] Based on the case law and evidence before the Court, it appears that the length of Project Kontingent was shorter than most “Mr. Big” operations, and the number of scenarios, at 26, was lower than in many other cases.

B The nature of the relationship [ 60 ] Courts recognize that at least some closeness between undercover operators and the target is acceptable and expected, as the target’s trust in, and affinity for, the operators is a necessary component of Mr. Big operations.

However, as the relationship moves from a business relationship or friendship towards a “best friend” or family like relationship, there is an increased risk of unreliable confessions due to the level of dependence: Yakimchuk at para 54 . [ 61 ] Courts will consider the relationship between the operators and the target and the general tenor of their interactions. Specific markers of closeness that courts have highlighted include the language the target uses to address undercover officers, such as “brother,” or “cuz,”, and whom the target calls when first arrested. [ 62 ] In Hart , the relationship was too close.

There, the target saw the undercover officers as family, and was even prepared to leave his wife and move away from Newfoundland to work for the organization full-time. However, courts in other cases have found that close relationships did not make the confessions unreliable: Magoon , Allgood . Whether or not the target was otherwise socially isolated is a factor in determining whether the target became dependent on the relationship. [ 63 ] In this case, Mr. Klaus was quick to participate in conversations with the operators. He was a very social, mature adult.

He was in contact with extended family including his aunt and girlfriends in different places, and he had community support. [ 64 ] The operators consistently reiterated to Mr. Klaus throughout Project Kontingent that he did not have to participate in any of the organization’s work. He was told that there were different types of jobs in the organization involving minimal criminality. [ 65 ] Mr. Klaus gave input and instructions to operators during scenarios. He involved himself in collections and volunteered to assist in tasks. He repeatedly expressed his comfort with the organization. Mr.

Klaus was not shy in challenging both main operators about being police officers. He advised others about his involvement in the organization and they expressed their doubts about his new friends. He discussed these things despite being encouraged not to do so by the operators. [ 66 ] In Scenario 23(b), the day before his statements and re-enactments to Mr. Big in Scenario 24, Mr. Klaus confronted the perceived enforcer in the organization who is 6’4’’and 240 pounds and suggested to him without anyone else present that he was a police officer. [ 67 ] Cst. B did emphasize to Mr.

Klaus that he could always count on him, as part of a brotherhood, and could always pick up the phone and call him if he ever had any problems. Notwithstanding Mr. Klaus' seeming acceptance of friendship with Cst. B and Cst. C, in particular, that level of friendship never rose to a level of dependence. [ 68 ] In short, the relationship with members of the organization never overwhelmed the ability of Mr. Klaus to think and act on his own free will. [ 69 ] No relationship of any kind developed or existed between anyone involved with the organization and Mr. Frank. It was Mr. Klaus who contacted Mr.

Frank and told him that Mr. Big wanted to see him. When Mr. Klaus originally mentioned Mr. Frank to the operator in Scenario 14, the operator did not even know of Mr. Frank’s existence. The police conveyed information that Mr. Frank was not a suspect as he had passed the polygraph. It was not until Scenario 24 that Mr. Frank was introduced to the operators through Mr. Klaus because Mr. Big wanted to know if Mr. Klaus was telling the truth. C The nature and extent of inducements [ 70 ] Incentives, financial or otherwise, are a typical aspect of Mr. Big operations.

A confession will not necessarily be unreliable solely by virtue of the fact that the organization paid the target to participate in specific simulated illegal activities, or even paid him a regular wage.

Similarly, operations will often involve taking the target on out-of-province trips for tasks, staying at nice hotels, and giving him access to other events: MM at para 90 . [ 71 ] A court must consider the target’s personal circumstances and determine whether any inducements reached a level where they became coercive: R v Ledesma , 2014 ABQB 788 at para 123 , 604 AR 68, rev’d on other grounds 2017 ABCA 131 , 348 CCC (3d) 216, Yakimchuk at paras 57-58 . [ 72 ] Mr. Klaus was provided the opportunity in all but one scenario to decline to participate, but displayed an eagerness to do so. Mr.

Klaus was repeatedly discouraged from fighting, even by the operator who played the “muscle” in the organization. [ 73 ] Mr. Klaus was provided an inducement to confess his involvement in the murders in the form of advice received from the operators, and Mr. Big himself, that a dying uncle of Mr. Big who was in the hospital was prepared to confess to the murders himself as a "dying declaration" to remove any suspicion from Mr. Klaus. [ 74 ] During Scenario 24, Mr. Klaus conveyed an interest in speaking with Mr. Big despite knowing that he would not become a full-time member that day. His mood was described by Mr.

Big as generally comfortable and outgoing during the statements. He was joking around and acting casually during the videotaped statements in the vehicle obtained later that same day. [ 75 ] Indeed, the same general incentive of having the “problem” taken care of was apparently relayed to Mr. Frank by Mr. Klaus as a reason for Mr. Frank to confess his role in the murders to Mr. Big. Mr. Klaus’ counsel argued that portraying himself as a murderer would allow him to rise in the criminal organization. The evidence suggested that the criminal organization might take steps to take the heat off of Mr.

Klaus, but not that being a violent criminal would be an asset, or result in advancement, in that organization. Rather, it was simply made evident that it would not hinder advancement. Further, if Mr. Klaus had wanted to come across as a tough person capable of murder, one would think he would have said that he was the one who committed the crime, rather than Mr. Frank. He did not take the opportunity to embellish his own dangerousness.

[ 76 ] In my view, this offer to make a confessed problem go away, in the absence of some encouragement to appear capable of violence, is not the kind of inducement which raises concerns under the Hart analysis. The promise that Mr. Big would clear their names would only be an incentive if Mr. Klaus and Mr. Frank had been encouraged to prove their capacity for violence and therefore had incentive to embellish their reputations for being dangerous individuals.

If they had nothing to do with the deaths, such a promise would provide little incentive. [ 77 ] The prospect of financial remuneration had a greater risk of providing incentive in this case. The organization paid Mr. Klaus fees for the storage of vehicles and equipment on the Klaus farm. There was nothing that appeared inappropriate or illegal about this part of the relationship, though it did increase Mr. Klaus' financial reliance on the organization. [ 78 ] Mr. Klaus was also allowed to participate in activities which did appear, at least to him, as illegal.

They were all staged scenarios in which no illegal activities were actually performed. In each case, Mr. Klaus was a willing participant. When offered an opportunity to avoid participating in any scenario, he not only declined but actively participated. On each occasion in which he participated, he was paid at the end of the scenario. The total amount he was paid over the course of time he was involved in the organization was $12,340, including $5,000 for the storage of equipment.

Therefore, he only received about $7,340 as compensation for his involvement in the organization, some of which covered food and hotel rooms. [ 79 ] While I am satisfied that Mr. Klaus would have appreciated the extra income, I am not satisfied that it provided sufficient inducement for him to embellish or lie about his involvement in the murders. On at least a couple of occasions, he indicated that he would be leaving the organization.

In the meantime, his neighbour paid him about $35,000 for the rental of land, and family and friends had provided tens of thousands of dollars just a few months prior to the operation. He was offered some employment by others in the community. Mr. Klaus confirmed in Scenario 13 that though he would likely receive millions from his family’s estate, he intended to continue working for the organization. [ 80 ] Further, Mr. Klaus had two residences available to him: his own trailer and that of his deceased sister. He had access to his mother’s van.

He drove his sister’s truck before it was repossessed, having purchased new rims and tires for it before the repossession. He requested an advance on the rental payments from his neighbor Les Holloway, alleging he needed it to make payments on his deceased sister’s truck. Mr. Holloway told the court that Mr. Klaus immediately purchased a GMC HMMWV/Humvee light military motor vehicle with the money instead. [ 81 ] Given Mr. Klaus’ personal circumstances, the payments to him by the organization were not strong inducements.

Neither the financial rewards reaped from the organization, nor the prospect of more financial rewards, created any pressure on Mr. Klaus, or provided any motive, to confess his involvement in the murders, nor did they serve as "golden handcuffs" keeping him from leaving the organization. [ 82 ] Regarding Mr. Frank, no inducements whatsoever were provided to him that could be seen to encourage him to provide a false confession to his involvement in the subject murders. In Scenario 24, before he spoke with Mr. Big, Mr. Frank was expressly told that he would receive nothing from the organization for speaking to Mr.

Big, that he was free to leave and that he would never have to worry about seeing them again. Despite this, Mr. Frank openly stated his involvement in the shooting of Gordon, Sandra and Monica Klaus and the execution of the pre-determined plan he made with Mr. Klaus. Mr.

Frank casually stated his involvement in the deaths, drew diagrams of the Klaus family home showing where the jerry can and the dog were left, as well as where he placed accelerant, and later completed re-enactments, including leading the operators to, and identifying, the exact location where he discarded the handgun after the shootings and what he did at the farm property. [ 83 ] Mr. Frank indicated that he did not know about Mr. Big’s dying uncle, suggesting there were no discussions between Mr. Frank and Mr. Klaus about this particular plan before Mr. Frank met with Mr. Big. He also confirmed to Mr.

Big that no promises had been made to him for speaking and he just wanted to speak freely because he understood if he talked, it would help Mr. Klaus, which in turn would help him. D The presence of any threats [ 84 ] Threats and simulated violence are common features of Mr. Big operations. They are used to give the impression that the fictitious criminal organization tolerates and is prepared to use violence and to create an atmosphere in which the person under investigation will not be reluctant to discuss his or her past involvement in similar violent acts: Johnston at para 51 .

In previous cases, staged violence in the form of simulated beatings, kidnappings and murder has not undermined admissibility: Yakimchuk , Allgood , R v Randall , 2016 BCCA 125 , 384 BCAC 243. [ 85 ] However, threats directed at either the target or members of the organization may create a risk that the target will believe he cannot “walk away” from the organization and instead, must comply with any demands of the organization. This increases the risk that the target will feel compelled to confess, honestly or not, to any crimes Mr.

Big suggests the target has committed and consequently may undermine admissibility: R v Laflamme , 2015 QCCA 1517 , 23 CR (7th) 137. [ 86 ] Non-violent threats, such as that a failure to tell Mr. Big the truth will result in a loss of the target’s new employment, may be acceptable: Magoon (QB) at para 73. [ 87 ] Mr. Klaus was told that no violence would come to members who were removed from the organization for dishonesty. Mr. Big’s invitation to Mr. Klaus during Scenario 24 to have a talk was not a precondition to becoming a full-time member and was passively offered as an opportunity for dialogue.

The discussion was focussed on truth verification, as opposed to an invitation to provide exaggerated boasting about criminality. [ 88 ] According to Cpl. A, the operators are expressly told by him that at no time are they to threaten the target, in this case Mr. Klaus, nor to use any violence against him. Mr. Klaus participated in a couple of scenarios where a member of the organization was

apparently dishonest. He was present when the dishonest member was fired, and his phone and keys to his condominium and vehicletaken away. The member was left to walk to a nearby gas station. The implied threat was, therefore, not one of violence but rather one oflosing his employment and being stripped of access to the organization’s assets. [89] Mr. Klaus was also involved in two scenarios where he and Cst. B in the first case and Cst. C in the second case wereattempting to enforce debt payment by someone who owed money to the organization. On the second occasion, Cst.

C conducted a pat-down search of the individual and took his wallet. He also removed the fellow's sunglasses and Mr. Klaus took his watch. [90] Mr. Klaus was involved in the scenario where another member of the organization supposedly violently assaulted a prostituteand brought her in the trunk of his car to meet Cst. B, Cst. C and Mr. Klaus. While this was an apparent act of violence, it is important tonote that it was not directed at any member of the organization. Rather, it was a "rogue" act by a member towards a non-member and Cst.B used the scenario to show Mr.

Klaus how the organization would help its members and employees and come to their aid. It was madeclear to Mr. Klaus that the operator’s apparent actions in that scenario were beyond the purview of the acceptable actions of theorganization. [91] Mr. Klaus also witnessed Cst. B apparently lose his temper at an individual for parking too close to his vehicle. Again, thatperson was not a member of the organization. [92] The only other seemingly violent act involving a member of the organization was the self-disclosure made by Cst. B aboutkilling his fiancé a number of years earlier. Again, this was

an act of violence against a non-member of the organization and it was usedto illustrate how Mr. Big could make problems "go away". It was not used, nor do I believe it would have reasonably been interpreted, asan indication that the organization would use violence against its own members. [93] I am satisfied that Cst. B and others made it apparent to Mr. Klaus that no violence would be visited upon members of theorganization in any circumstances. The violence he witnessed was against non-members of the organization and they could notreasonably have been interpreted by Mr.

Klaus to illustrate what the organization might do to him. [94] Counsel suggested that the operators should have inquired into any possible threats received by Mr. Frank. There is noevidence that any threat, or any act that could be interpreted as a threat, was ever visited upon Mr. Frank. Counsel suggested that Mr.Klaus may have threatened Mr. Frank. Unless any threat made by Mr. Klaus was conveyed to Mr. Frank at the behest of the operators, itis not relevant to the Hart analysis which focuses on the actions of the police in obtaining incriminating evidence. Counsel argued thatthere was a threat made when Cst.

B asked Mr. Klaus if they should “take care” of Mr. Frank, by which he was implicitly askingwhether they should kill him. Again, there is no evidence that such a threat was ever made by anyone in the organization, nor relayed byMr. Klaus, to Mr. Frank. [95] Evidence of any such threat by Mr. Klaus against Mr. Frank would be relevant in considering the weight to be attributed toMr. Frank’s statement against interest.

A statement against interest obtained as a result of violence or threats of violence may not be themanifestation of the exercise of a free will to confess, and may therefore be either unreliable or untrue: R v Hodgson, (SCC), [1998] 2 SCR 449, [1998] SCJ No 66 at para 30, R v Rojas, 2008 SCC 56, [2008] 3 SCR 111. E The conduct of the interrogation [96] A court must also consider whether Mr. Big’s discussion with the target incorporated elements of coerciveness. There isusually a significant power imbalance between the parties as Mr.

Big controls the ability of the target to continue with the organization. [97] Interrogations sometimes take the form of a “truth verification strategy” whereby Mr. Big elicits information about the crimein order to ostensibly help the target tie up any loose ends and ensure nothing is traceable to the target.

Statements resulting from thistype of discussion are generally more reliable than interrogations that require a target to prove how tough he is, as it is in the target’s bestinterest to not exaggerate and to be fully transparent: Yakimchuk at para 63. [98] Courts will also consider the demeanor of the target during the course of the interrogation: Yakimchuk at para 63-67. Wherethe target appears comfortable and calm, it is less likely that a court will find that an interrogation was coercive. [99] It was during Scenario 14 on June 2, 2014 that Mr. Klaus confessed his involvement in the murders to Cst. B.

In Scenario 14,Cst B. was attempting to show Mr. Klaus that when someone in the organization erred, there would be no judgment of that person butrather the organization would help him out. This scenario played out as part of, and immediately following, the incident involving thesupposed prostitute. [100] As part of the scenario, Cst. B and Mr. Klaus were preparing to travel with the operator who committed the assault on theprostitute to Regina to set up a phony alibi. On the way, they were going to spend a night in Medicine Hat. While there, Cst. B visitedMr. Klaus in his hotel room and Mr.

Klaus ultimately confessed to his involvement in the murders of his parents and sister. [101] The discussion took the form of a conversation rather than an interrogation. Cst. B did encourage full disclosure. Mr. Klausconfessed to having planned the murders but said that he did not actually commit them; he paid Josh Frank to do so. [102] A few days later, on June 11, 2014, Mr. Klaus sent Cst. B text messages recanting his confession of June 2, 2014. As a result ofthe exchange of text messages, Cst. B decided to pull back from his involvement and have Cst. C become more involved. Mr. Klaus laterapologized to Cst.

C for the text messages sent to Cst. B. [103] In Scenario 24 on July 19, 2014, Cst. C and Mr. Klaus drove from Lethbridge to a condominium in Calgary to meet otheroperators as well as Mr. Big. When it became apparent that another person was being made a full-time member, Mr. Klaus asked tospeak to Mr. Big. He again confessed to Mr. Big that he had organized the murders of his family by Mr. Frank who was the one who hestated had actually committed the murders. When asked, Mr. Klaus confirmed that Mr. Frank would corroborate the story and he called

Mr. Frank and arranged for a meeting. [ 104 ] There was no coercive behavior by any of the operators when discussing Mr. Klaus' involvement in the murders, nor did they employ any intimidation or threats. The confessions seemed to occur in the context of rather calm discussions and a willingness by Mr. Klaus to impart the information. While he was encouraged to tell the truth, he was not pressured or forced to do so in any way, or to say anything.

It seems that he was motivated by his possible advancement to a full-time position in the organization together with an opportunity to have his "problem" resolved by having someone else confess to the crimes. The strategy employed was one of truth verification. [ 105 ] Mr. Frank and Mr. Big met alone in Mr. Big's truck. The meeting was audio and video recorded. Mr. Frank was expressly told by Mr. Big that he would receive nothing from the organization for speaking with them and that he was free to leave at any time. He was told that if he did so, he would not have to worry about ever seeing them again. Mr.

Frank admitted that he and Mr. Klaus had planned the killings and that he was the one who actually shot and killed all three victims and then set the house on fire. He was casual in his description of what happened and on at least a couple of occasions, chuckled or laughed. [ 106 ] Again, a truth verification strategy was employed. There is nothing about the circumstances, tenor or content of the discussion between Mr. Frank and Mr. Big which would give rise to any of the concerns addressed in Hart .

F The personality of the target [ 107 ] Relevant factors in this regard include the age of the target, his level of sophistication, and whether he has any mental health or addiction issues. Any factor that makes it more likely that a target was vulnerable and was thus potentially coerced into confessing weighs in favor of excluding the confession. These factors must be considered in the context of the particular target. [ 108 ] Mr. Klaus was around 38 years old at the time and appeared to be very social. While he did appear to be emotional at various times, he never appeared to be meek or timid.

Sometimes he acted in an aggressive manner or, at the very least, in a manner indicative of one enjoying his new role. There is no suggestion that Mr. Klaus suffered from any mental health or addiction issues although he did on occasion appear to abuse alcohol and admitted to using cocaine. While he did not appear to have a large circle of friends, he had at least two or three girlfriends, remained reasonably close with his aunt and had community support. [ 109 ] There were times throughout Project Kontingent when it was clear that an apparent illegal act was to be conducted. Mr.

Klaus was always given the option of not participating in illegal acts. On one occasion, when he told Cst. A that one of his girlfriends thought he may be a police officer, Cst. A pulled the vehicle over and advised Mr. Klaus that if he had any concerns in that respect, he was free to leave. Mr. Klaus did not do so. [ 110 ] Mr. Klaus always came across as smart and analytical. There is no evidence to suggest that Mr. Klaus was particularly vulnerable to the actions of the operators in bringing him into the fold. He openly expressed suspicions that they might be police officers. [ 111 ] Mr.

Frank was in his late 20s. He spoke to Mr. Big at the request of Mr. Klaus. Mr. Frank had no contact with any of the operators prior to his discussion with Mr. Big. He was told he would receive nothing from the organization for speaking with Mr. Big and that he was free to leave at any time. He was told that if he did so, he would not have to worry about ever seeing them again. There is evidence that Mr. Frank consumed alcohol, marijuana and cocaine. However, there is nothing to suggest that this fact, or any facet of the personality of Mr.

Frank made him more susceptible to offer a confession in the circumstances. G The reliability of the confession [ 112 ] Courts must consider factors affecting the reliability of the confession, including: • the level of detail provided, • whether it led to the discovery of additional evidence, • whether it revealed elements of the crime not made public, and • whether it included “mundane details” that only the guilty party would be likely to know: Hart at para 105 . [ 113 ] Confirmatory evidence is an excellent marker of reliability, but it is not required for admissibility.

Further, inaccuracies in a confession are not necessarily determinative of admissibility: Johnston at para 68, Allgood at para 64. [ 114 ] The police in this case were investigating very serious suspected crimes. The statements and re-enactments were all recorded, alleviating any concerns about accuracy of the evidence. [ 115 ] The presence of confirmatory evidence is particularly important in considering the reliability of Mr. Klaus’ confession. Mr. Klaus provided detailed information. He outlined certain facts to Cst. B and Mr. Big which were ultimately confirmed. Mr. Klaus' statement about Mr.

Frank’s involvement was confirmed by Mr. Frank. That is, Mr. Frank's statements supported the confession given by Mr. Klaus and particularly, his version of events. The Court is not called upon at this stage to determine whether any aspect of the evidence given by each is admissible against the other. However, the forensic evidence which was found as a result of both Mr. Klaus’ and Mr. Frank’s statements and acts, as described below, confirms their statements and renders them highly probative for the purposes of the Hart analysis. [ 116 ] Importantly, the operators ensured that Mr. Klaus and Mr.

Frank were never alone together at any time after Mr. Frank’s arrival and prior to his meeting with Mr. Big. His reaction to Mr. Big’s advice about his dying uncle suggests a lack of detailed communication between Mr. Klaus and Mr. Frank prior to the meeting.

[ 117 ] Mr. Frank directed the operators to the location of the gun and the keys to the truck, which coincided with details of Mr. Klaus’ confession. In Scenario 25, the day following Scenario 24, Mr. Klaus took the operators close to the exact location where Mr. Frank had allegedly thrown the GMC key when he left the truck on the side of the highway and departed back to Castor with Mr. Klaus following the killing of the Klaus family. Mr.

Klaus directed the operators close to the exact location in knee-high grass in the ditch adjacent to where the GMC truck had been left on the side of a rural highway several months after the events. The key was in fact recovered and the evidence of Cst. Swanson was that it unlocked and started the engine of the GMC truck that was taken from the farm after the crimes were committed. [ 118 ] Mr. Klaus described, in detail, the outline of the plan, when it was made and why he made it. He described the make and model of the gun and the use of his "AV" gas.

While some of the facts could have been known by anyone as part of the information available to the public or, in the case of Mr. Klaus, as a result of information provided to him by the RCMP, details such as the make, model and location of the gun and keys to the truck could only have been known by someone who was somehow involved in the crime. The description he provided in Scenario 14 is consistent with the version of events described in Scenarios 24 and 25. His confession satisfies the necessary threshold test of reliability.

Ultimate reliability can only be determined after consideration of all the evidence adduced at trial. [ 119 ] The same analysis holds true for Mr. Frank. He communicated the details surrounding the making of the plan and the reasons for it. He described how the murders took place and his information led to the location of real evidence including the 9mm Ruger handgun and the keys to the white GMC truck. Finally, Mr. Frank produced the torch light that he said was used to start the fire, and a 9mm bullet, both of which he still had in his possession and handed over to Mr. Big.

His confession also satisfies the necessary threshold test of reliability. H Prejudicial effect and balancing [ 120 ] There is no doubt that the confessions by Mr. Klaus and Mr. Frank have probative value for the reasons set out above. They are acknowledgements of their participation in the planning and execution of three killings. [ 121 ] All confessions are prejudicial to their makers to the extent that they support a finding of guilt. The type of prejudice to be weighed against the probative value relates to reasoning and the fairness of the trial. Evidence from a Mr.

Big operation has the potential to lead to both moral and reasoning prejudice: Hart at para 106 . These concerns are less compelling in a judge alone trial. [ 122 ] In Project Kontingent, the participation by Mr. Klaus in apparently illegal activities is quite nominal. The nature of Mr. Klaus’ participation in the activities in the context of Project Kontingent is not supportive of his involvement in the murders to which he confessed. The Court would have no difficulty in properly addressing the evidence.

The probative value of the confessions is significantly greater than the low moral prejudice that might relate to his peripheral involvement in apparently illegal activities. [ 123 ] Mr. Frank’s exposure to Project Kontingent was brief and was essentially confined to his inculpatory statements relating to his and Mr. Klaus’ involvement in the deaths. He spoke to Mr. Big at the request of Mr. Klaus. There is little danger of reasoning prejudice arising from the context in which the statements were made. I Abuse of Process [ 124 ] A Mr.

Big operation is not in and of itself an abuse of process: Yakimchuk at para 87 . A consideration of whether a particular operation has been an abuse of process generally focuses on two factors: the use of violence and the vulnerability of the target. [ 125 ] In my view there was no simulated violence towards Mr. Klaus or any member of the organization that could, in any way, suggest to Mr. Klaus that he was at risk of personal harm. He did witness members who were supposedly less than honest being terminated from the organization and their perks taken away.

There was no violence, or threat of violence, used against them. Further, when Mr. Klaus did witness violence against people outside of the organization, he appeared neither shocked nor intimidated. Indeed, he assisted in the cleaning up after one of them and questioned why “loose ends” would be left when the “victim” was simply released. [ 126 ] The approach taken by the operators was to encourage truthfulness, provide only moderate incentives, and minimize any perceived threat. [ 127 ] Mr. Klaus was 38 years old during the operation with no evident or acknowledged mental health or addictions issues.

He was smart, well-spoken and seemed very capable of assessing and analyzing each situation in which he found himself. There is nothing to suggest that he was vulnerable. [ 128 ] Similarly, there is nothing to suggest that Mr. Frank had a particularly vulnerable personality. Further, there is no evidence that could suggest that Project Kontingent as it targeted Mr. Klaus and involved Mr. Frank in one scenario could be seen to be an abuse of process towards Mr. Frank in any way. [ 129 ] There was no abuse of process in this case.

VI Conclusion [ 130 ] Having considered all of the relevant factors, I find that the statements made by Mr. Klaus to operators during Scenarios 14, 24 and 25, and statements and actions of Mr. Frank during Scenario 24 are admissible at trial.

Heard the 14 th to the 16 th days of November, 2017. Dated at the City of Red Deer, Alberta this 27 th day of November, 2017. Eric F. Macklin J.C.Q.B.A. Appearances: D. Taylor D. Sopko A. MacDonald for the Crown A. Fay for Jason Klaus T. Roulston A. Urquhart for Joshua Frank