R v Kurucz, 2023 ABKB 353

Court of King’s Bench of Alberta Citation: R v Kurucz, 2023 ABKB 353 Date: 20230616 Docket: 191191436Q1 Registry: Calgary Between: His Majesty the King Crown - and - Anthony Karl Kurucz Accused _______________________________________________________ Reasons for Decision on Voir Dire of the Honourable Justice G.H. Poelman _______________________________________________________ Table of Contents I. Introduction . 4

II. Brief Overview of Facts . 5 III.

Summary of Evidence . 6 A. Introduction . 6 B. Agreed Statement of Facts . 6 C. Crown Witnesses . 6 1. First Responders ( Voir Dire 1) 6 2. Attending Hospital Physicians (General Trial Evidence) 7 3. Sgt. Dallas Grimm ( Voir Dire 2) : Calgary Traffic Stop . 8 4. Cst. J ( Voir Dire 2): Cell Plant 9 5. Det. S ( Voir Dire 3) : Mr. Big Operation . 10 6. Cst. D ( Voir Dire 3) : Mr. Big Operation . 14 7. Cst. W ( Voir Dire 3) : Mr. Big Operation . 20 8. Cst. M ( Voir Dire 3) : Mr. Big Operation . 22 9. Sgt. D ( Voir Dire 3) : Mr. Big Operation . 27 10. Brylee Cyluck (General Trial Evidence): Jayden’s Mother 33 11. Dr.

Bernard Bannach (General Trial Evidence): Forensic Pathologist 36 12. Dr. Atilano Lacson (General Trial Evidence): Neuropathologist 37 13. Dr. Jennifer D’Mello ( Voir Dire 4) : Pediatric Emergency Physician . 38 D. Defence Witness . 41 1. Dr. Perry Sirota ( Voir Dire 3) : Clinical Psychologist 41 IV. Dr. D’Mello’s Qualifications . 45 V. Charter Application: Detention and Right to Be Informed of Reasons . 46 A. Principles of Law .. 46 1. Detention . 46 2. Right to Be Informed of Reasons . 48 B. Findings . 48 1. Calgary Traffic Stop . 48 2. Regina Traffic Stop . 50 VI. Charter Application: Search or Seizure . 51 A.

General Principles . 51 B. CFS Information . 51 1. Description . 51 2. Findings . 51 C. Cellphone . 53 1. Description . 53 2. Findings . 53 VII. Admissibility of Confession . 54 A. Principles of Law .. 54

1. The Mr. Big Technique . 54 2. New Rule of Evidence . 55 B. Circumstances Surrounding the Confession . 56 1. Introduction . 56 2. Length of Operation . 56 3. Number of Interactions Between Police and Suspect 57 4. Nature of Relationship Between Undercover Officers and Suspect 57 5. Nature and Extent of Inducements Offered . 58 6. Presence of Any Threats . 59 7. Conduct of the Interrogation . 60 8. Personality of Target, Including Age, Sophistication and Mental Health . 61 9. Conclusion . 65 C. Markers of Reliability in the Confession . 65 D. Probative Value Versus Prejudicial Effect 66 B. Abuse of Process . 66 VIII.

Summary of Findings . 67 I. Introduction [ 1 ] Mr. Kurucz is being tried on a charge of second degree murder of his three-month old son, Jayden. The first part of the trial mainly has comprised a lengthy series of blended voir dires , some governed by the common law of evidence and others governed by the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 . It also included some evidence on the Crown’s case in general. [ 2 ] This decision contains my review of the evidence and findings on the voir dires . Those voir dires are as follows:

a) Statements made by Mr. Kurucz to Calgary Fire Department (“CFD”), Emergency Medical Services (“EMS”) and Calgary Police Service (“CPS”) personnel on April 25, 2018 ( Voir Dire 1) : Initially, the defence disputed the voluntariness of these statements. During argument, the defence indicated that it does not take the position that voluntariness of the statements is at issue. Rather, it argued that the statements must be considered as after-the-fact conduct evidence and dealt with at conclusion of the trial. Having considered the submissions of the Crown on voluntariness and the evidence, I rule that the Crown has proved voluntariness of the statements.

b) Admissibility of Crown medical expert evidence ( Voir Dire 4) : Dr. Jennifer D’Mello was qualified, without objection, to give her opinion on the cause of Jayden’s injuries. The defence argued that she was not qualified to give an opinion on when those injuries occurred in relation to when he exhibited symptoms. By agreement, Dr. D’Mello’s evidence was heard in full, with the decision on the extent of her qualifications, and thus admissibility of some of her evidence, reserved.

c) Charter applications on detention and the right to be informed promptly of the reasons therefor ( Voir Dire 2) : The defence argued that there were breaches of Mr. Kurucz’s Charter

section 7 ,

section 9 , and sections 10(

a) and (

b) in connection with traffic stops in Calgary and Regina, both of which involved Mr. Kurucz as a passenger. While the defence application and written argument casts the net widely, principally the issues narrowed to whether Mr. Kurucz was arbitrarily detained and whether he should have been informed that these traffic stops were in relation to the homicide investigation.

d) Charter applications for breaches of

section 8 Charter right to be secure against unreasonable search or seizure ( Voir Dire 2) : The defence argues that CPS breached Mr. Kurucz’s Charter rights by obtaining information about him from Child and Family Services (“CFS”); and by seizing his cellphone in the last scenario of the Mr. Big operation.

e) Admissibility of Mr. Kurucz’s confession ( Voir Dire 3) : At the end of the Mr. Big operation, Mr. Kurucz gave a detailed statement about how Jayden’s death occurred. The Crown bears the onus of proving that statements made during a Mr. Big operation are admissible. [ 3 ] Thus, there remain four sets of voir dires for this decision to address: Dr. D’Mello’s qualifications; the alleged breach of Mr. Kurucz’s right not to be arbitrarily detained and to be informed promptly of the reasons for his detention; allegations of unreasonable search or seizure; and the admissibility of confessions made during the Mr. Big operation.

[ 4 ] I begin with my

summary of the trial evidence. It includes evidence beyond that strictly necessary on the voir dire issues, to provide necessary context. I then deal with the voir dire issues in the order listed above. [ 5 ] CPS officers involved in the undercover operation are referred to by their rank and last initial, to protect their identities. II. Brief Overview of Facts [ 6 ] Mr. Kurucz is charged with second degree murder in the death of three-month-old Jayden, a child of Mr. Kurucz’s relationship with Brylee Cyluck. Jayden and Ms. Cyluck resided in a basement suite on Atlanta Crescent SE, Calgary; Mr.

Kurucz lived elsewhere, although still visited both of them from time to time. [ 7 ] On the afternoon of April 23, 2018, Mr. Kurucz took Jayden for a routine checkup at his doctor. The attending doctor found him to be a normal, healthy child, albeit with acid reflux and a hernia (neither of which were of concern). [ 8 ] On the morning of April 24, 2018, Mr. Kurucz came to the Atlanta Crescent residence to look after Jayden while Ms. Cyluck took her dog to a veterinarian. When she left, Jayden was sleeping in his crib. [ 9 ] Ms. Cyluck left Atlanta Crescent in a cab at 11:44 a.m. While she was absent, she and Mr.

Kurucz exchanged text messages in which Mr. Kurucz reported concerns about Jayden “freaking.” At 12:17 p.m., Mr. Kurucz called 911 reporting that Jayden had gone limp and was bleeding out of his nose. [ 10 ] CFD and EMS personnel arrived. The first CPS officers arrived at 12:31 p.m. [ 11 ] Jayden was transported to Rockyview General Hospital (“RGH”) where it was determined that he had suffered serious head trauma. After initial management, he was transferred to Alberta Children’s Hospital (“ACH”). On April 27, 2018, Ms.

Cyluck was advised that no medical treatment could restore Jayden so she allowed him to be taken off life support. He passed away shortly thereafter. [ 12 ] Operation Honest was an undercover police operation designed and carried out by CPS’s Priority Crimes Unit (“PCU”). It comprised 61 scenarios beginning with a cell plant on April 18 and April19, 2019, followed by the fictional organization scenarios from June 5, 2019 to September 19, 2019 (the day after the confession). Thus, apart from the cell plant, the operation took approximately 3.5 months.

The fictional organization in which the undercover officers operated was more horizontal than the hierarchical structures typical in these operations, because it was expected this would be more appealing to Mr. Kurucz. The business was portrayed as hot-shotting of construction supplies throughout Alberta, operating out of a garage in Calgary; selling explosives in Regina; and illegal activities involving illegal imports from the United States. [ 13 ] In the last scenario, Mr. Kurucz explained in detail his involvement in the death of Jayden. He was arrested shortly thereafter. III.

Summary of Evidence A. Introduction [ 14 ] The following summarizes the general trial evidence and the evidence given during the voir dires . In some instances, issues on a voir dire may involve evidence from other voir dires as well. Counsel were free to refer to any evidence that seemed relevant to a voir dire , and I take the same approach. [ 15 ] The

summary is presented without comment or findings on disputed issues, aside from brief assessments at the end of the summaries for most witnesses. Findings on disputed facts are addressed later in these reasons. B. Agreed Statement of Facts [ 16 ] The agreed statement of facts covered the following matters:

a) Jayden’s date of birth, parentage, medical check-up on April 23, 2018, attendance at RGH and ACH, and admissibility of all his medical records;

b) Timing of Ms. Cyluck’s departure from Atlanta Crescent on the morning of April 25, 2018, timing of various stages of the trip, her departure from the vet clinic and communications between Ms. Cyluck and Mr. Kurucz while she was absent from Atlanta Crescent;

c) Admissibility of photographs from Atlanta Crescent and the autopsy;

d) Mr. Kurucz’s outstanding warrants as of April 25, 2018 and their resolution; and

e) Expert qualifications of Dr. Bernard Bannach and Dr. Atilano Lacson. C. Crown Witnesses 1. First Responders ( Voir Dire 1 )

[ 17 ] A number of first responders testified in voir dire 1, which no longer is an issue. Their testimony is still relevant for context. [ 18 ] Mr. Kurucz made a call to the 911 emergency line which was received at about 12:16 on April 25, 2018, and that call was played in court. Throughout the call, Mr. Kurucz sounded very excited, panicky, with heavy breathing. [ 19 ] Some excerpts from transcript of call (ex. 2): I’m just using a neighbour’s phone . . . . . .

My baby was freaking out, and I was trying to feed him – I was trying to calm him down, like, you know, rock him, that kind of stuff, and next thing you know, he’s got blood coming out of his nose, and he – he’s really limp. . . . [In response to a question,] “his eyes are open. . . . It doesn’t look like [he’s looking around].” . . . ‘Cause I’m freaking out ‘cause my wife just went to take our dog to the vet. . . . [In response inquiry about breathing,] his heart’s still going. . . . He’s very floppy, though. . . . I can’t tell [if he is breathing]. I know his heart is still mov’ – beating, though. . . .

Are his eyes still open? But they’re like, uhm, back of his . . . head. . . . [After assurances that he will be kept on the line until emergency help arrives, states] “Like I didn’t do anything wrong to him.

I was just trying to calm him down and rock him.” . . . [After being advised the fire department is on the way,] “are Police coming too? [Is told no, and then asks again “or just fire department and ambulance” and gets answer “fire department and ambulance.”] . . . “Like my wife said, ‘try rocking him’ and then, you know, walk around the house, and that’s what I was doing, and then all of a sudden, he went limp and then starting . . . bleeding out of his nose, and I don’t understand why.” [ 20 ] Members of CFD were first to arrive at Atlanta Crescent. They found Mr.

Kurucz on the sidewalk, holding Jayden who had blood in the mouth and nose area. They transferred care to EMS members when they arrived. [ 21 ] EMS members found Jayden to be a blue and lifeless baby whose heart was not beating but had an electrical impulse. Clinically, he was diagnosed as being in cardiac arrest. They were able to end the cardiac arrest and get a heartbeat back en route to the hospital. [ 22 ] CPS officers who attended had dealings with Mr. Kurucz and, ultimately after some resistance on his part, gave him a ride to RGH, where Jayden had been taken by ambulance. Mr.

Kurucz made some statements to the officers about what had happened before arrival of the first responders. 2. Attending Hospital Physicians (General Trial Evidence) [ 23 ] Jayden was taken by ambulance to RGH where he came under the care of Dr. Stuart Turner and his team at 12:52. He was not moving, had no reflexes, no eye movement, was non-verbal and unable to breath spontaneously. Fresh blood appeared at both nostrils. [ 24 ] Jayden was unable to breathe on his own and that status did not change while he was in Dr. Turner’s care. In Dr.

Turner’s opinion, the lack of spontaneous respiration led to the cardiac arrest. [ 25 ] Dr. Turner focused on helping Jayden survive, if possible, and limiting long-term effects. His working diagnosis was a traumatic, acute brain injury. When asked whether it might have occurred in the previous hour or perhaps longer, such as two hours, he quickly indicated it would be within an hour. This conclusion was based on the fact that, when Jayden was given cardiovascular treatment, his colour came back quickly to normal, pinkish skin colour, rather than blue or gray (the colour when he was first seen).

The combination of factors, such as blood at the nostrils, blood in the throat as reported by the paramedics, complete lack of neurological

activity, and recent history indicated a quite acute brain injury. [ 26 ] Jayden was transferred to ACH, where he came under the primary care of Dr. Jonathan Gamble. At ACH, Jayden could breathe only with assistance and did not respond to painful stimulus or light. CT scans showed there had been insufficient oxygen delivery for a significant time. There was blood inside the skull on both sides, indicating that bleeding was recent. Blood was also seen deeper in the brain.

There were no skull fractures. [ 27 ] Ophthalmologist investigations showed bleeding throughout the retina at points “too numerous to count.” This also supported a finding of recent head trauma. [ 28 ] Dr.

Gamble’s view was that brain trauma probably caused Jayden to stop breathing, which deprived his body of oxygen, including his heart; the heart rate dropped to where there was no pulse, which in turn affected all organs, including the brain. [ 29 ] On April 25, the prognosis was very grim given the history of an out-of-hospital cardiac arrest with an unknown but lengthy period of resuscitation, very low brain activity, results of the CT scan, and lack of findings to support any other diagnosis. Jayden died at 16:54 by progressing to brain death.

Since his brain was not giving the necessary directions to his lungs to move air in and out, Jayden’s heart stopped after the removal of breathing assistance. 3. Sgt. Dallas Grimm ( Voir Dire 2) : Calgary Traffic Stop [ 30 ] Sgt. Grimm was a senior patrol constable. He was on duty, with a partner, in a marked vehicle and uniformed on April 18, 2019. [ 31 ] He was contacted by a member of the CPS Strike Force Unit (SFU) and requested to make a traffic stop. He was given particulars of the target vehicle and told the person of interest was in the back seat. They gave him Mr.

Kurucz’s name, date of birth and said Mr. Kurucz had outstanding warrants on which he should be arrested. To make the traffic stop, Sgt. Grimm would need to identify a traffic infraction. [ 32 ] Initially, Sgt. Grimm said he was not told anything about Mr. Kurucz being of interest in a homicide investigation; when his notes were put to him, he acknowledged that SFU had advised him that Mr. Kurucz was of interest in a homicide investigation. Sgt. Grimm resisted the suggestion that SFU’s involvement indicated a serious crime investigation.

He said their involvement occurs on a broad range of crimes, including automobile theft. [ 33 ] Sgt. Grimm positioned his vehicle at an intersection where he would see the target vehicle passing. When that occurred, he observed that the person sitting in the rear passenger-side seat appeared not to be wearing a seatbelt. He therefore pulled the vehicle over for a traffic stop. He initially spoke to the driver and advised him of the reason for the stop, adding that the driver had failed to signal for a lane change. [ 34 ] Sgt. Grimm then spoke to the rear seat passenger, Mr. Kurucz.

He instructed him that because of the seatbelt offence, he had to produce identification. Mr. Kurucz had none with him, but gave his name and date of birth. Sgt. Grimm took that information back to his patrol car and, on conducting a search, obtained information on the outstanding warrants. In the meantime, another police vehicle had pulled up to ask if they needed assistance. Officers from that vehicle watched the driver’s side of the stopped vehicle, while Sgt. Grimm asked Mr. Kurucz to step out and advised him that he would be placed under arrest. [ 35 ] Mr. Kurucz was taken back to the patrol car where Sgt.

Grimm chartered and cautioned him, reading from a card. He was advised that he was under arrest for outstanding warrants, one of which concerned a break and enter. Some warrants were form 7, unendorsed warrants (which require the accused to go before a justice of the peace before released); others were form 21, which allow release if the fines are paid, but the unendorsed warrants governed. Thus, Sgt. Grimm had no authority to release Mr. Kurucz. [ 36 ] Mr. Kurucz responded by saying he understood his rights and wished to speak to a lawyer. He was cooperative in his arrest. Sgt.

Grimm never advised him that he was under investigation for or a person of interest in a homicide. [ 37 ] The ride to the Arrest Processing Unit (“APU”) took approximately twenty minutes. En route, Mr. Kurucz said he did not understand why there was an outstanding warrant for his break and enter, as he had already been let out of jail on that charge. He volunteered that he was under investigation for his son’s death. Sgt. Grimm said he did not want to hear anything about that, reminding him that he was arrested on the warrants. [ 38 ] Mr. Kurucz did not say he was a suspect in his son’s death.

SFU never advised Sgt. Grimm that he was a suspect, only a person of interest. As part of his experience, Sgt. Grimm knew that a patrol constable should not get involved in another investigation. As well, he said the fact that Mr. Kurucz was a person of interest did not mean he was under investigation as a suspect – he could be of interest for other things, such as a being a witness. [ 39 ] Sgt. Grimm brought Mr. Kurucz to the APU at 8:25 p.m., and transferred custody to APU staff at 8:28 p.m. Because the phone rooms were in use, Mr. Kurucz was put in a secure waiting area until a phone was available. [ 40 ] Sgt.

Grimm was a forthright, apparently disinterested witness throughout. The only area where he became defensive and argumentative was in responding to suggestions that because the SFU was involved, he must have known Mr. Kurucz was a suspect in a serious crime. 4. Cst. J ( Voir Dire 2): Cell Plant [ 41 ] Cst. J was with CPS for about thirteen years and, as of the date of his testimony, worked with the Royal Canadian Mounted Police based in Kelowna, B.C.

[ 42 ] At and before his time at CPS, he had extensive experience as an undercover officer and was a member of the drug undercover street team for six years. As a member of that team, he also assisted in undercover operations on an as needed basis for the PCU. [ 43 ] On April 18, 2019, he was asked to perform an undercover role as a cellmate (something he had done many times before) after Mr. Kurucz’s arrest earlier that day. [ 44 ] On arriving at the APU, he was briefed by Cst. S about his cover story (arrested at a nightclub for possession of illegal substances). He was told that Mr.

Kurucz was being investigated in relation to the death of his child. His assigned role was to be a “listening post”: obtain information such as likes, dislikes, where Mr. Kurucz would hang out, and his relationships – so the PCU could plan how best to “get a hook into him.” Cst. S was not to investigate or obtain information about the alleged offence, only information to help the PCU plan their operation. [ 45 ] He went into a cell occupied by Mr. Kurucz alone at about 10:34 p.m. and remained with him constantly until about 1:10 a.m. Mr. Kurucz was laying down on a bench; Cst.

J walked in, used the toilet and flushed it and – before he was able to wash his hands – Mr. Kurucz wanted to shake hands and introduced himself as “Anthony.” [ 46 ] It struck Cst. J as strange how quickly Mr. Kurucz approached him and that he wanted to shake his hand before it had been washed. [ 47 ] Within the first minute or two, Mr. Kurucz was already telling him about the death of his child. Cst. J did his best to detour the subject – which arose more than once – because obtaining information on this was not part of his task. [ 48 ] Mr. Kurucz drove the conversation.

He talked at length and in detail about his interests, primarily video gaming, Pokémon, vehicles such as fast cars and diesel trucks, and watching illegal street racing. Some of Mr. Kurucz’s interests seemed somewhat childish. However, he was very articulate and intelligent around subjects in which he was interested. He struck Cst. J as very naïve. Mr. Kurucz indicated that he had disabilities, mentioning ADHD, depression, anger, short-term memory loss and anxiety, and that he was on AISH. [ 49 ] Mr. Kurucz became very friendly with Cst.

J, at one stage saying that he and his roommate were his only friends. [ 50 ] Mr. Kurucz asked Cst. J some questions about himself. He told Mr. Kurucz that he was from Australia, and said things that he thought went with Mr. Kurucz’s interests such as how he hunted and built vehicles. [ 51 ] Cst. J was a concise, straightforward witness with good credibility and reliability. 5. Det. S ( Voir Dire 3) : Mr. Big Operation i. Witness Background [ 52 ] Det. S has been with CPS for eighteen years, the last seven with the PCU. He has had a number of roles there, with extensive experience in undercover operations.

In “major crime technique” (or “Mr. Big”) operations he has played the roles of file manager, cellmate, principal operator, and various supporting operator roles. ii. Overview of Operation Honest [ 53 ] The operation targeting Mr. Kurucz was named “Operation Honest.” Det. S was appointed file manager on April 16, 2019. As file manager, he did not act undercover but received information, devised the scenarios, and made decisions on objectives and directions for the operation as it progressed. His responsibilities included looking for Mr.

Kurucz’s vulnerabilities and designing an operation specifically tailored for him. [ 54 ] Unlike many undercover operations, Operation Honest was designed with a flatter hierarchy, considered more suitable for Mr. Kurucz. The main players were the following:

a) The officer playing the person in charge of the organization was Sgt. D; he presented as someone who is relatively soft and understanding in demeanour, and contributed as a worker in the organization;

b) Cst. D played someone who reported to Sgt. D for the Calgary operation and portrayed someone who would be likeable and could develop a friendship with Mr. Kurucz.

c) Cst. M was brought on as “a new guy who didn’t get it” and thus would help them assess Mr. Kurucz’s mental abilities in instructing and playing foreman to Cst. M.

d) Cst. W played a role similar to Cst. D, although he spent less time with Mr. Kurucz. He would give directions if Cst. D was not around and was more comfortable with criminal activities. He portrayed someone who was a non-drinker because of previous alcohol problems. This was designed to show Mr. Kurucz that someone could be a non-drinker and still fit into the social aspect of the organization.

e) There were other cameo operators who played small roles throughout the operations. [ 55 ] The undercover officers were chosen for their experience and personalities, including their ability to appeal to Mr. Kurucz. Cst. D was one of CPS’s most experienced undercover officers and someone that could relate to Mr. Kurucz; Cst. M was a newer member of PCU but had spent significant time on the street. Both had extensive experience with people having mental health issues. [ 56 ] The fictional organization was portrayed as being involved in hot shotting construction supplies throughout Alberta, a

legitimate business. It operated out of a garage, where items were taken in and transported to other locations for sale at a profit. Another legitimate aspect of the fictional business was selling explosives in Regina. The geographical scope primarily involved Calgary, but also Regina and centres throughout southern Alberta. These further enabled the portrayal of legitimate operations and gave the undercover operators more time to spend with Mr. Kurucz. [ 57 ] On each day team members would interact with the targets, there would be a briefing with Det. S before and a debriefing after. Det.

S made decisions, consulting with the undercover operators, based on these reports. Each scenario had particular objectives. It was a fluid operation. [ 58 ] On a typical day, Mr. Kurucz would show up at the garage and perform a variety of construction jobs, moves and deliveries in and out of town, completing renovations, and building items. iii. Information About Targets [ 59 ] The targets were identified by Sgt. Stuart Cole as Mr. Kurucz and Ms. Cyluck. Another undercover operator, Cst. V, was assigned to befriend Ms. Cyluck but she was eventually dropped as a target because the timelines coming out of Mr.

Kurucz’s numerous references to the death of Jayden did not show that she had the required opportunity. [ 60 ] The information about Mr. Kurucz was provided to Det. S by Sgt. Cole. The materials shown to the undercover team included photographs and information about lifestyle and background. In addition, Det. S had information obtained from the cellmate operation. The information enabled the team, particularly Det. S, to design a scenario that would be effective with Mr. Kurucz. [ 61 ] Part of the information indicated that Mr. Kurucz collected AISH payments and was believed to have ADHD.

In the subject profile, it was reported that “multiple files indicate learning disabilities, anger management issues and development delays,” most coming from Mr. Kurucz’s father. It was reported that at one time his father said that Mr. Kurucz was functioning at the level of a twelve-year-old when he was nineteen, but no neutral parties had provided the same information. [ 62 ] Det. S began the operation thinking that intellectual disability might be an issue. Therefore, the plan required testing to determine whether that was a vulnerability. Det.

S said he had dealt with many people with mental health issues and impaired intelligence. On previous cases, he personally consulted with Dr. Patrick Bailey, a psychologist; on this case, Dr. Bailey was consulted by another officer. Dr. Bailey suggested a set of tests for problem solving and memory to ensure that this potential vulnerability was addressed. [ 63 ] Some of the information Det. S received had to do with Mr. Kurucz’s interests, such as gaming and Pokémon. He did not agree that these were childish interests, as he knows many adults with similar interests. iv.

Themes of the Scenarios [ 64 ] As the operation was planned and proceeded, a number of themes were developed by Det. S and his team. These involved honesty, criminality, being “fired” from the organization, retiring from the organization, the criminal scope of the organization, and dealing with “non-braggable” offences. [ 65 ] There was a concern Mr. Kurucz was exaggerating or being untruthful in the early stages of the operation. Examples include stating that he had been a professional bull-rider and had to quit because of twenty-five concussions, and that he was a Red Seal chef. Thus, Det.

S designed scenarios in which Mr. Kurucz would be confronted with dishonesty being unacceptable in the organization. He was called out for his exaggerations. Det. S denied that exaggerations continued to be problematic through the later stages of the operation. [ 66 ] The scenarios were also designed to test Mr. Kurucz’s comfort with criminal activity. Mr. Kurucz showed a willingness to participate and help with any activities related to criminality. [ 67 ] Cst. N, an undercover officer, was briefly introduced to show that someone who was dishonest could be fired from the organization.

However, it was also intended to show that the worst consequence for dishonesty would be being fired and perhaps being made fun of behind one’s back. [ 68 ] Another undercover officer illustrated that while the money paid by the organization was not large, if someone worked steadily and was prudent, they could leave the organization voluntarily and retire with the money they earned. [ 69 ] The scenarios also developed a theme that the organization had an extensive criminal scope such that they could operate outside of the law and fix legal problems.

Some scenarios showed that illegal imports could be brought from the United States relying on connections within Transport Canada and the ability to procure false identification. [ 70 ] A scenario involving the construction of an alibi was used to demonstrate the criminal reach of the organization as well as emphasizing themes such as the importance of honesty and acceptance of non-braggable offences. Cst. M came to Mr. Kurucz to report an assault on a female after a personally embarrassing sexual incident. It involved Cst.

M smashing the woman’s head into the dash of his truck, damaging the dash and leaving blood. There was an apparent witness to the event (played by an undercover officer). [ 71 ] Mr. Kurucz was part of solving Cst. M’s problems. They met with Sgt. D who made it clear that Cst. M would have to give every minute detail of the event if he was to be assisted. Mr. Kurucz assisted in buying off the third-party witness.

An officer playing the role of a corrupt medical examiner was brought in to help construct a scenario in which an alternative accident, which required additional damage to the truck, could explain the damage and presence of blood. Mr. Kurucz participated in damaging and cleaning up blood from the vehicle.

[ 72 ] It was known that people generally do not talk about offences against small children. Through a number of scenarios (including the one involving Cst. M), it was made clear to Mr. Kurucz that he could be frank about unenviable events and be helped through them by the group. [ 73 ] The scenarios involved some episodes of perceived violence to establish Mr. Kurucz’s comfort with criminality. One of these involved Cst. M’s assault of a female. Another involved a staged confrontation outside the Cowboy’s tent at the Calgary Stampede. [ 74 ] The scenarios were also designed to support Mr.

Kurucz in his relationships and social circle. He demonstrated that he had a large social circle and could quickly replace friends and girlfriends (such as when his relationship with Ms. Cyluck ended after the birth of their child, who was apprehended by Child and Family Services). [ 75 ] Throughout the various scenarios, Det. S and his team monitored the degree to which Mr. Kurucz had cognitive challenges. He was tested by tasks such as building a bench using complicated instructions; being able to memorize and use codes to unlock storage facilities; directing Cst.

M over at least eight days when they worked together; suggesting improvements to means of strapping vehicles on trailers; and successfully dealing with a staged transaction in which he was given the wrong amount of cash by a purchaser in Lethbridge was able to determine the shortage, and successfully complete the transaction. In Det. S’s opinion, Mr. Kurucz passed all the cognitive tests with flying colours. Generally, he showed he could make his own decisions and carry out all tasks. v. Financial Considerations [ 76 ] In keeping with Mr.

Kurucz’s previous income-earning ability, which included monthly AISH benefits, cash payments for a variety of renovation and small construction jobs, “dumpster diving” behind big box stores and selling items on Kijiji, he was paid an amount not greatly exceeding minimum wage – nearly $20 per hour. Over the length of the operation – June 5 to September 19, 2019 – he was paid a total of $4,700 cash as wages for about 237 hours of work. In addition, he received the benefit of paid meals at low end or fast-food restaurants and modest hotel rooms when traveling for work.

This was an increase in his previous income, Det. S indicated, but mainly because it was more consistent. [ 77 ] The financial aspect of the operation was planned to ensure that the funding did not cause a change to Mr. Kurucz’s lifestyle. Det. S denied the suggestion that the operation presented a significant increase in income and change in lifestyle for Mr. Kurucz, even though he benefited financially over the period. In Det. S’s view, Mr. Kurucz’s main financial challenge was frivolous, imprudent spending. vi. Final Stages [ 78 ] Sgt. Cole gave holdback information to Det.

S, primarily concerning details from medical reports about how Jayden was thought to have died. This information was not shared with the undercover operators with the exception of Sgt. D, who received it shortly before the final scenario in which he took Mr. Kurucz’s “confession.” It was put to Det. S that there were indications throughout of Mr. Kurucz becoming aware of some allegedly held back information, such as “shaken baby syndrome” which might have come from Ms. Cyluck. [ 79 ] The second last scenario was a “stim” meant to bring the alleged offence to the forefront of discussions.

It was a traffic stop in Regina during which Cst. D and Mr. Kurucz were allowed to “overhear” a statement over an officer’s radio that “Anthony Kurucz comes back as a pointer person with Calgary Police Service, arrestable for homicide.” Cst. D’s instructions were to take the lead of Mr. Kurucz following this disclosure. With Mr. Kurucz’s prompting, they fled from the police and returned to Calgary. [ 80 ] Mr. Kurucz was given the opportunity to speak with Sgt. D to see if he could do anything to assist, which led to the final scenario. Sgt. D’s instructions were to approach his meeting with Mr.

Kurucz in a friendly, laidback manner rather than conduct an interrogation. The tone would be of him looking to help Mr. Kurucz fix his problems. By this time, Det. S said, all the themes were in place: the importance of honesty, the need to disclose every detail (even of an “unbraggable” incident), and the ability of the criminal reach of the organization to solve problems (shown, for example, by the scenario in which a corrupt medical examiner had been employed). vii. Assessment [ 81 ] Det. S was a confident, straightforward, and well-informed witness.

There is no reason to doubt his overall credibility and reliability. However, he showed a notable reluctance to simply answer questions on cross-examination; even on very basic points, he was prone to give lengthy explanations tending more to advocacy than factual answers. 6. Cst. D ( Voir Dire 3) : Mr. Big Operation i. Witness Background [ 82 ] Cst. D has been with CPS for twenty years and, before that, was a military police officer for three and a half years.

He has been with the PCU for nearly six years; before that, he had a broad range of policing experience, including extensive surveillance operations. [ 83 ] In operations involving the major crimes technique, he has played all of the roles over the years, from minor roles, to filing manager, primary operator, and cellmate. ii. Set Up of Operation

[ 84 ] He was assigned his role as the primary operator on May 1, 2019, by Det. S. The only information he was given was at a file introduction meeting, where he was given a PowerPoint presentation, a vetted operations plan, and a target sheet. Among other things, he was told that Mr. Kurucz possibly had ADHD. No one said that Mr. Kurucz possibly had cognitive difficulties. [ 85 ] He was told of the date of Jayden’s death and that Mr. Kurucz and Ms. Cyluck were suspects. iii. Cst. D’s Role [ 86 ] Cst. D’s role as the primary operator was to build rapport with Mr.

Kurucz, make him think they were like-minded, and create an atmosphere where Mr. Kurucz would feel comfortable talking about his involvement, if any, in the offence. He described his role as “neutral,” namely, that he was not making determinations or assessments on likely guilt or innocence. He was following the direction and pace given by the file manager. [ 87 ] His assigned persona (under the name “Jay”) was mainly to be involved in the legitimate aspects of the business. That meant looking after providing construction services and performing hot-shotting services.

He was to present as a blue collar, hardworking person just getting by. iv. Mr. Kurucz’s Hobbies, Interests and Finances [ 88 ] Very early in the operation Cst. D learned from Mr. Kurucz about his sources of income. These were $1,685 per month in AISH disability payments; dumpster diving (going out nearly every night with Ms. Cyluck and Colby (Mr.

Kurucz’s friend and sub- tenant) behind big box stores to retrieve discarded products which could be resold on Kijiji); various cash jobs; and various jobs he performed regularly for a woman who owned rental properties. (The dumpster diving ended after his breakup with Ms. Cyluck.) He had managed his rental arrangement such that of the $1,350 per month he owed, he recovered all but $250 from subtenants. [ 89 ] Nevertheless, Cst. D said Mr. Kurucz was not good with money.

He went through his income quickly, spending more than he received; the purchases were mainly frivolous, much as various subscription-based services, electronic products, gaming devices and gifts. [ 90 ] The operation and Cst. D’s approach were to present a very basic type of business and a lifestyle not significantly different from that Mr. Kurucz already enjoyed. The amount paid to him was designed not to change his lifestyle. Thus, his occasional request for advances and raises were usually denied. [ 91 ] Mr.

Kurucz had great interest in vehicles (which included attending street racing as an observer), video gaming, and music. He was very knowledgeable on the subjects of his interest. v. Overview and Progress of Operation [ 92 ] Cst. D’s first met Mr. Kurucz in a Tim Horton’s lineup (scenario 3, June 6). He characterized Mr. Kurucz as very friendly and social. In their first few minutes, he learned much about Mr. Kurucz: he was going to have a child in six weeks, he was looking for cash work so as not to affect his AISH benefits, and he had quit drinking because he almost lost a relationship over it. Cst.

D offered him work, and it began later that day, at an agreed hourly rate of $20. [ 93 ] Cst. D was involved in 50 of the 61 scenarios, in an operation that lasted three and a half months. Usually, he saw Mr. Kurucz three to four times a week, on average about four hours per day. Their relationship turned from work-based into friendship such that they confided, laughed, and joked with each other. Mr. Kurucz quickly became comfortable in making fun of Cst. D. Cst.

D did not order him around; they worked together more as friends, starting very early in their relationship. [ 94 ] The “hook” starting the contact was Cst. D driving a quad a number of times past Mr. Kurucz’s residence, where Mr. Kurucz was sitting out front. Cst. D made it appear that the quad was running rough, and he was attempting to work out the problems. The meeting at Tim Horton’s occurred the next day; Cst. D knew Mr. Kurucz was in a line up in the restaurant, and when he entered Mr. Kurucz immediately recognized and approached him. [ 95 ] During the operation, Cst. D learned that Mr.

Kurucz was in a common-law relationship and had a friend who lived at the same residence. He had a good social circle, involving Ms. Cyluck, tenants, and other relatives. Later, when the breakup with Ms. Cyluck occurred, he very quickly entered a new common-law relationship with a former girlfriend. Cst. D encouraged Mr. Kurucz to maintain his relationships and social activities and appointments, and said he could take time off work whenever necessary. Cst. D was completely supportive of Mr. Kurucz in his relationships, whatever his decisions were. [ 96 ] Over the course of the operation, Cst. D learned from Mr.

Kurucz that he had a very rough upbringing, which included being molested at a young age by a step-father, harshly treated by his birth father, and living homeless for two to three years. [ 97 ] Around July 11, Mr. Kurucz’s and Ms. Cyluck’s child was born and apprehended by CFS. That led to a downward spiral of their relationship, as it became clear that because of CFS’s suspicions, Ms. Cyluck would not have custody of the child unless Mr. Kurucz was out of the picture. Around the end of July, he was single for about a week, after which he got back together and moved in with a former girlfriend. [ 98 ] When Mr.

Kurucz was having meals on the road with other members of the organization, it was usually fast food. Mr. Kurucz was quite independent in what he ordered, usually getting different food from what others ordered. [ 99 ] Members of the organization got together for social events as well, particularly quadding (scenario 28 on July 25 and scenario 47 on August 28). On the initial occasion, Mr. Kurucz rolled one of the quads said to be owned by Sgt. D. He was concerned, but Cst. D emphasized the need to be honest so Mr. Kurucz explained to Sgt. D what had happened.

[ 100 ] Cst. D has some experience in quadding and testified that Mr. Kurucz’s abilities were comparable with his. Mr. Kurucz was comfortable but cautious on the first outing; on the second outing, his confidence was much higher and he was showing more skill and daring. vi. Honesty Theme [ 101 ] Cst. D emphasized throughout his testimony that many scenarios were designed to bring home the importance of honesty to the organization. Mistakes and poor conduct would be understood and not result in dismissal, as long as Mr. Kurucz was honest and forthright. One of the reasons this message was important, Cst.

D testified, was that during the early stages of the operation Mr. Kurucz seemed to lie or greatly exaggerate a number of things with respect to his past. [ 102 ] Thus, Sgt. D had a conversation with Mr. Kurucz about the seriousness of lying. Mr. Kurucz came to Cst. D after that and apologized for some of his falsehoods, such as claiming to be a professional bull rider and fabricating the reason he had no driver’s licence. [ 103 ] During scenario 27 (July 24), a staged chance meeting occurred with a former employee of the group, Jessie. Mr.

Kurucz was advised that he had been fired for not being reliable and telling false stories. Mr. Kurucz was offended by Jessie’s character and a frequent comment in later stages of the operation was that someone should “not be a Jessie.” vii. Illicit Activities [ 104 ] Mr. Kurucz was introduced to criminal activity on a number of occasions throughout the operation. He was told that some activities of the organization involved illegally importing fraudulent credit devices, cigarettes by the Estevan border, and trafficking in stolen motor vehicles.

He demonstrated willingness and interest in participating, even though he was told he was free to say “no” to that part of the organization’s work. [ 105 ] His most extensive involvement in illicit activities was in a fake incident starting in scenario 47 (August 28). After quadding, Mr. Kurucz, Cst. D, and Cst. M had dinner at a pub. Cst. M was permitted by Cst. D to borrow the company truck to see a woman supposedly he had met recently. [ 106 ] Early the next morning (about 1 a.m.), Cst. M called Mr. Kurucz to explain that he was in trouble.

His vehicle was rammed up against a tree in a parking lot and, according to Mr. Kurucz, he appeared to be severely intoxicated. There was also blood on the dash. Cst. M apparently had reacted angrily to a sexual insult and smashed the woman’s head against the dash, causing her injury. [ 107 ] Mr. Kurucz was involved and took significant initiative in helping work through the problem. Steps taken involved having Cst. M honestly disclose all details, including embarrassing ones, to Sgt.

D and the rest of the team as this was the only way he could be helped; locating and paying off someone who had apparently seen Cst. M pick up the woman; meeting with an apparently corrupt medical examiner, who said if he had exact details of what had happened, including measurements from the vehicle, he could probably set it up as an accident; and staging the accident with the vehicle impacting a tree, causing a windshield fracture. [ 108 ] In addition, when a change in Mr.

Kurucz’s living arrangements led to his AISH benefits being cut back, the organization arranged AISH documentation so that he could recover his lost benefits – something for which Mr. Kurucz was very grateful and impressed. i. Requests for Organization’s Help [ 109 ] On a number of occasions, Mr. Kurucz said he wanted the organization’s assistance in dealing with his legal concerns. Most persistently, following the Cst. M incident, he asked if Jayden’s autopsy report could be obtained. (A recording and transcript of relevant parts of this exchange were introduced into evidence.) [ 110 ] Mr.

Kurucz was asking whether the corrupt medical examiner could be used to obtain the autopsy report; he was worried about Jayden’s death being pinned on him and he wanted to give the report to his lawyer. Cst. D repeatedly told him Mr. Kurucz’s situation was different from Cst. M’s. Cst. M had committed a crime which, if the organization did not fix, would result in him in going to jail; Mr. Kurucz had apparently done nothing wrong and there was nothing to fix. Cst. D continually resisted Mr. Kurucz’s entreaties to address his worries that he was facing a serious criminal charge. [ 111 ] It was put to Cst.

D that he was effectively telling Mr. Kurucz that unless he confessed to the offence of murdering Jayden, there was nothing the organization would do for him. He offered, as an explanation, that in his twenty-three years of policing, innocent people go to the police and only those who have committed a crime would look for help elsewhere. ii. Statements About Jayden’s Death [ 112 ] On numerous occasions Mr. Kurucz told Cst. D his version of how Jayden died. It was always the same, the essential elements being: • Ms. Cyluck was away from home, having taken their dog to a vet. • Jayden woke up screaming. Mr.

Kurucz picked Jayden up, tried to calm him by pacing back and forth, but was unsuccessful in getting him to take his soother or drink from his bottle. • Mr. Kurucz put Jayden down on the couch to change his diaper. He gave him the correct amount of Tylenol and Ovol.

• Mr. Kurucz picked Jayden back up and shortly after he went limp. Jayden started bleeding from his nose. Then Mr. Kurucz went outside to call 911 at a neighbour’s house (his phone was pawned). • Mr. Kurucz never hit Jayden’s head on anything. [ 113 ] Cst. D confirmed that in all these statements, Mr. Kurucz maintained his innocence despite the fact that he was under investigation. He maintained his innocence after all the scenarios emphasizing the theme of honesty. [ 114 ] Cst. D had no reason not to believe Mr.

Kurucz, but said what effect his protesting of innocence had on the investigation was for the file manager to determine. iii. Cognitive Abilities and Personality [ 115 ] Cst. D was given no information that Mr. Kurucz had cognitive disabilities to which he should be alert. All he knew was that he might have ADHD. Nothing over the whole course of the operation that made him think Mr. Kurucz had any cognitive impairment. [ 116 ] Cst. D was instructed to administer two tests for cognitive abilities. One was asking Mr.

Kurucz to find ten hardware washers of a particular type at Home Depot; the other was having him pick up a generator from a customer in Lethbridge who gave him $800, instead of the required $1000, testing whether Mr. Kurucz would notice the discrepancy and successfully navigate a resolution and recovery of the balance owing. He was successful in both tests. [ 117 ] Cst. D emphasized that in addition, he made numerous observations throughout the operation that confirmed his opinion that Mr. Kurucz had no cognitive difficulties.

He was able to calculate in his head his expected income from various shifts; he received cash payments at the end of each week, and counted them; he was able to perform tasks on his own, such as covering over a window in the garage and (with Cst. M, under his direction) building a workbench in the garage; he successfully used ratchet straps to secure vehicles to trailers; and he recommended that Cst. D rent a trailer rather than make repeated trips to a landfill when disposing of debris, because his online research indicated it would be less expensive. [ 118 ] Cst. D said that Mr.

Kurucz was able to work independently and direct Cst. M on his tasks. He made a number of recommendations on how to improve aspects of the organization’s business. [ 119 ] He summarized the basis for his observations by saying that cognitive ability was demonstrated by Mr. Kurucz being able to distinguish right from wrong, follow a task through to completion, employ common sense, and have good memory recall. He had particularly good street smarts, an example of which was finding a way to have most of his rent paid by subtenants. [ 120 ] Mr.

Kurucz’s statements about his condition were to the effect that he would appear or pretend to be “retarded” because of his AISH benefits and a perceived memory loss. He was grateful to his father for the one good thing he did for him, namely getting him on AISH benefits. Mr. Kurucz was able, he said, to manipulate the system, including doctors, psychologists, and courts, into thinking he was mentally impaired, and this worked to his advantage. His AISH benefits initially came, he said, from a physical injury. [ 121 ] Cst. D said that he did not see Mr.

Kurucz’s apparent “oversharing” of personal information as indicating disability. While it might be odd, he said it came initially from his attempt to ingratiate himself with Cst. D in order to obtain employment and keep it, and also because he was outgoing and wanted to be the centre of attention. [ 122 ] Mr. Kurucz suffered from anxiety, according to what he told Cst. D. Throughout the operation, at times he became very anxious and stressed: examples being when he was dealing with accusations on the internet by Ms.

Cyluck and her friends that he was a baby killer, and during the stim scenario which was in fact designed, according to Cst. D, to put him under stress to stimulate a conversation about the offence. iv. Stim [ 123 ] On September 18, 2019, a traffic stop by Regina Police Service was staged. Two officers approached the vehicle Cst. D was driving, one each on the driver’s passenger’s sides. The officers indicated that Cst. D had been seen using his cellphone while driving. [ 124 ] Identification was requested of both occupants. They were told to sit tight while the officers went back to their cruiser.

When the officers returned to the vehicle, a staged call from a perceived dispatcher was heard by Cst. D and Mr. Kurucz; it said “Anthony Kurucz comes back as a pointer person with Calgary Police Service, arrestable for homicide.” (“Pointer person” means someone flagged in the police database, requiring that an officer be contacted.) Cst. D was instructed to put his hands on the steering wheel but instead drove forward; after the vehicle had started to go, Mr. Kurucz told him to “go.” [ 125 ] A few moments after their get-away had begun, Mr.

Kurucz pulled his phone out of his pocket and said “I need to call my lawyer.” Cst. D responded by saying “fuck, buddy.” I infer it to be an expression of alarm at suddenly thinking of something, because it is immediately followed by Mr. Kurucz putting his phone away. Mr. Kurucz then said “fucking phones,” immediately pulled his phone out again and shut it off. Cst. D then put something down on the console (which he testified was his phone) and said “this fucking thing off.” [ 126 ] Cst. D denied the suggestion that he told Mr. Kurucz not to call his lawyer and reached for Mr. Kurucz’s phone.

Rather, he testified, he did what his fictional persona would have done, namely shut off his phone in recognition that they could be tracked if they were left on. [ 127 ] Later in the trip back to the Regina covert location, Mr. Kurucz volunteered that “I’m not calling my fuckin’ lawyer. Fuck that.” Cst. D responded with “Fuckin’ things are off.” Answered by Mr. Kurucz saying “Fuck, my phone’s off.” Then Cst. D said “Yeah, mine is” and Mr. Kurucz added “I’m not calling my lawyer.”

[ 128 ] When they returned to the Regina covert location, Mr. Kurucz said “. . . I don’t think I can use that phone. There’s no fucking way . . . . I can’t talk to anybody right now. Like I said, I got to . . . be in a hiding and I have to stay off social media and everything.” Later, Cst. D asked Mr. Kurucz if he wanted to place his phone in a faraday bag which would prevent tracking. Mr. Kurucz got his phone, put it in the bag and Cst. D then put it in a drawer in an office adjacent to the seating area. [ 129 ] It was put to Cst. D that he was attempting to prevent Mr.

Kurucz from calling his lawyer by these maneuvers. He denied doing so, insisting that he was simply playing the part of “what a bad person might do.” v. Credibility and Reliability [ 130 ] Cst. D was a confident, voluble witness. His recollection seemed strong so that notes were required only to refresh his memory on details. There are some reasons, however, why I must treat parts of this evidence with caution. [ 131 ] Throughout cross-examination, he often disclaimed knowledge or understanding of the purpose of various scenarios.

He was merely playing the role assigned to him in each of the scenarios by the file manager, according to his testimony. In my view, that is unlikely. While the file manager had a distinct role, Cst. D was a very experienced undercover officer and his regular consultations with Det. S, I infer, gave him a much better overall picture of the operation than he pretended. [ 132 ] In being questioned about scenario 51 (September 4), he attempted to explain much of the conversation about denying Mr. Kurucz access to the organization’s help by saying that it only involved the CFS investigation.

The entire context of the discussions refute that suggestion. Clearly Mr. Kurucz was concerned about the homicide investigation and the possibility that he would serve a lengthy imprisonment sentence as a result. Cst. D, in my view, was trying too hard to give a particular explanation about why he was refusing the organization’s help to Mr. Kurucz. [ 133 ] Similarly, his protestation that it was reasonable for his character to refuse assistance because Mr. Kurucz said he was innocent is not credible. Many scenarios had been conducted which emphasized the theme of honesty. Cst. D believed that Mr.

Kurucz had got that message. His suggestion that only people who have committed criminal acts would be seeking help to cover them up hardly merits response. As Mr. Kurucz was telling him, he had already been interviewed by the police at two hospitals and he was still under investigation. 7. Cst. W ( Voir Dire 3) : Mr. Big Operation [ 134 ] Cst. W has been with CPS for fifteen years. From 2013to 2017 he worked with the drug undercover street team. In June 2019, he joined the PCU and almost immediately became part of Operation Honest. [ 135 ] He played the role of a secondary operator.

Before beginning the operation, he attended a briefing meeting where he reviewed a PowerPoint presentation, target sheet, and vetted operation plan. [ 136 ] He played the role of a recovering alcoholic who had been sober for some months. This demonstrated that a member of the organization would not be judged for abstaining from alcoholic drinking. It also conveyed the importance of honesty, because Cst. W had disclosed his problems to Sgt. D who helped him get sober. [ 137 ] Cst.

W’s main role in the organization was to receive stolen vehicles and prepare them for sale, which would involve transporting them on trailers. In that role, he worked for himself and Cst. D. On the legitimate side of the business, he was an equivalent to Cst. D and would supervise Mr. Kurucz if Cst. D was away. [ 138 ] He was first introduced to Mr. Kurucz during scenario 27 (July 24), where members of the group were socializing at a pub. Mr. Kurucz was very social, engaging, and pleasant. He was also respectful of Cst. W being sober. Cst. W observed Mr.

Kurucz drinking alcohol from time to time over the operation. He only drank beer, and always refused hard alcohol. He was never seen drunk. [ 139 ] Mr. Kurucz’s main interests were video games and country music, and he was quite knowledgeable about both. When they traveled together, he would choose the songs on his phone and sing along. He knew all the lyrics. [ 140 ] The day after their first meeting, a number of the group, including Mr. Kurucz and Cst. W, went quadding at McLean Creek. Cst. W had some experience quadding, and observed Mr. Kurucz as having about the same skill level.

He showed an opportunist streak by asking Cst. W if he wanted to move into his basement suite, as Mr. Kurucz knew that Cst. W was looking for a place to stay. [ 141 ] While Cst. D was supposedly on vacation, Mr. Kurucz reported to Cst. W for about two weeks. Cst. W would designate the tasks for each day, for which Mr. Kurucz would be responsible. In completing the tasks, Mr. Kurucz would oversee Cst. M who was perceived to be a new member of the group. [ 142 ] One of the jobs was building a workbench (scenario 29, July 26). The product was waiting for them at the garage, still in its box. Mr.

Kurucz texted the progress of the project to Cst. W during the course of the day. The bench was successfully built in one day. [ 143 ] On one occasion, Cst. W directed Mr. Kurucz (with Cst.

M) to deliver materials to Medicine Hat (scenario 33, August 1). Ultimately, the destination was changed to Brooks. Mr. Kurucz directed Cst. M to take a route that, for whatever reason, did not seem efficient to Cst. W. As a result, Mr. Kurucz was docked 30 minutes pay because of the importance of taking stolen property in the most direct route to its destination. [ 144 ] Another incident involved assisting the organization by finding a tracking device that Cst. W had unwisely thrown from a stolen vehicle. A group went out to a field, where after a grid search, Mr.

Kurucz located it by a tree in a Tim Horton’s cup. It was then taken to a parking lot at Chinook Centre Mall, where Mr. Kurucz destroyed it with his boot heel.

[ 145 ] Mr. Kurucz was very comfortable operating in the criminal side of the organization. He told Cst. W that Sgt. D had given him the option of whether to participate in criminal activities; Mr. Kurucz said he wanted to help the crew. [ 146 ] On a couple of scenarios, Mr. Kurucz was able to demonstrate to Cst. W his knowledge and ability to safely and securely strap vehicles onto a trailer being pulled by a truck; and to operate the hydraulic mechanism to lower the rear of the trailer. All of these things he could do without being directed by Cst. W. [ 147 ] Cst. W was able to assess Mr.

Kurucz’s cognitive level, by relying on his fifteen year experience as a police officer and forty- five years of life experience. In every major crimes technique investigation, Cst. W follows the guidelines of Hart which involve assessing cognitive abilities. [ 148 ] Mr. Kurucz relied on his AISH classification and his supposed status of being “retarded” as an excuse to act in various ways and to manipulate, with his lawyer’s assistance, the court system. However, Mr. Kurucz made it clear that he did not consider himself impaired and Cst. W said he observed no signs of cognitive shortcomings. He characterized Mr.

Kurucz as being a blue-collar worker who was good with his hands and able to find solutions for whatever challenges he was facing. [ 149 ] Mr. Kurucz’s personality traits included being manipulative and opportunistic. In addition, he sometimes had anxiety; this flared up when they were cleaning out the vehicle supposedly involved in Cst. M’s assault on a woman. Mr. Kurucz was paranoid because of all of the police officers he had seen around his place the evening before. [ 150 ] Cst. W agreed that Mr. Kurucz, especially at the beginning of the operation, was looking for approval from Cst.

W and other members of the organization. Mr. Kurucz was pleased with his role in a number of the scenarios and repeatedly told stories about them. [ 151 ] Sometimes Mr. Kurucz talked about the death of Jayden and being investigated for it. He always said that he did not do it. [ 152 ] Cst. W had a minor role in the final scenario, when Mr. Kurucz came back to a covert location in Regina after he and Cst. D had fled the traffic stop. Cst. W was instructed to seize Mr. Kurucz’s cellphone (which he found in a bag on a coffee table in the common area), and gave Mr. Kurucz a replacement phone. He told Mr.

Kurucz that Sgt. D’s number was on it if he wished to call him. [ 153 ] Cst. W was a very straightforward, confident, and fair witness. He gave simple answers without argumentation, both in direct and cross-examination. 8. Cst. M ( Voir Dire 3) : Mr. Big Operation i. Cst. M’s Background [ 154 ] Cst. M once worked in concrete finishing, general renovations, roofing, and other trade-based work. Later he was part of a security team at Southern Alberta Forensic Psychiatric Centre. He has been with CPS for about eleven years, the last few in the PCU. ii. Knowledge About Mr. Kurucz [ 155 ] Before the operation, Cst.

M’s only knowledge about Mr. Kurucz came from the file introduction at which a PowerPoint, pictures, and target sheets were shown. He was informed that Mr. Kurucz was on AISH benefits and was believed to have been diagnosed with ADHD at one point. He understood AISH to be a government assistance program in which benefits were paid to recipients incapable of earning their living. iii. Cst. M’s Role and Overview [ 156 ] Cst.

M’s persona was that of someone who did not have much money or a place of his own to stay (sleeping on a friend’s couch), no vehicle to drive, and was motivated to work hard to get his life back on track. He was generally in a good mood, but would allude to underlying anger issues from when he was a child. [ 157 ] In 2019, he was thirty-three years old, about three years different from Mr. Kurucz. He dressed similarly to Mr. Kurucz, wearing clothes of a typical blue-collar labourer. [ 158 ] His fictional role was to take direction from Cst. D, but mainly and more directly from Mr. Kurucz. Mr.

Kurucz would receive instructions for the day’s job and in turn relay jobs within that assignment to Cst. M. Usually, Cst. M helped lift heavy objects and acted as the driver, because Mr. Kurucz did not have a licence. [ 159 ] Cst. M’s interaction with Mr. Kurucz took place over eighty-five days. In person, they interacted during twenty-six days, and outside of those days, often communicated by phone calls and texts. There were about 134 hours of interaction. Usually, it was just the two of them or traveling together. They shared many meals together and attended some social events together. iv. Mr.

Kurucz’s Circumstances [ 160 ] Cst. M described Mr. Kurucz as usually being quite light-hearted, often bringing comedy to any situation, and liking to sing during time in the vehicle. He tended to share personal information more than normal and exaggerated his stories, although more at the beginning and less as the operation progressed. [ 161 ] Sometimes Mr. Kurucz showed anxiety. He also tended to be manipulative and an opportunist. [ 162 ] Mr. Kurucz frequently shared how much he got paid. He took pride in paying his bills; on occasion, he would sort out how

much each of his creditors was owed, how he would allocate his payments and how much he would have left over. [ 163 ] During the operation, Mr. Kurucz was given charge of cash that he and Cst. M would require for the day. It was usually in the range of $100 to $200, according to the job. It was used for expenses mainly comprising meals and fuel. There was $20 allocated to split per meal. Mr. Kurucz would keep all receipts to show Cst. D what the money had been spent on. [ 164 ] The only time they drank together would be at the end of the day of work, when they might each have a beer or two.

During some days, they would meet with others over dinner and consume alcohol as well. Cst. M’s saw no alcohol problems with Mr. Kurucz; he was able to control his consumption. [ 165 ] Mr. Kurucz was quite social. He was good friends with Colby and in a relationship with Ms. Cyluck when Cst. M first met him. When Mr. Kurucz later needed a new place to live, he was easily able to contact various people to assist him. [ 166 ] There were no concerns about Mr. Kurucz’s work. He was very strong, with no apparent physical difficulties. He stayed on track and listened to instructions with no problems.

He was not prone to losing things and had no trouble organizing each day and finishing the assigned tasks. [ 167 ] Mr. Kurucz could recall details when he wanted. At times, he would say he had memory recall issues. However, Cst. M did not notice that. [ 168 ] As a boss, Mr. Kurucz was sometimes a mentor and would give life advice. At other times, he would become verbally or even physically abusive – such as kicking Cst. M to move him along more quickly. [ 169 ] He could complete any task and account for money. He took pride in his work, and would send pictures of the products being completed or delivered to Cst.

D. [ 170 ] Cognitively, Mr. Kurucz was able to think things through in more ways than one. There were many examples, according to Cst. M, where this became apparent during the scenarios. v. Evidence From Selected Scenarios [ 171 ] Both in direct and cross-examination, Cst. M was asked about aspects of various scenarios, largely based on references in his notes. The main parts of that evidence is summarized below.

a) Scenario 11 (June 25): This was the first meeting between Cst. M and Mr. Kurucz. Sgt. D brought Cst. M to the covert garage, where Mr. Kurucz and Cst. D were putting up drywall. Cst. M indicated that he had no experience with drywall; thus, instead of allowing Cst. M to work separately, Mr. Kurucz had him assist as they went along. Mr. Kurucz was competent in doing the work and using all of the tools, and took great care in his work.

He shared many personal details at this first meeting: saying he had grown up in Houston, Texas; was a professional bull rider; and had been a foreman for the construction company Ellis Don. He also disclosed that the police was investigating him for his child’s death but that he was innocent. Cst. M agreed that this was a lot of personal information to share on a first meeting.

b) Scenario 13 (June 27): Mr. Kurucz and Cst. M travelled to Lethbridge to pick up a generator and receive payment from a client who had used it. The scenario was designed to gauge how Mr. Kurucz would handle a client who had not left the generator and payment in a storage locker, as required. When Mr. Kurucz found that the storage locker was empty, he called Cst. D who instructed him to collect the generator and the money from the client. Mr. Kurucz told Cst. M that he had a double-black belt and had done two years of boxing. Cst. M believed it was an overreaction. Ultimately, when meeting with the client, Mr.

Kurucz detected that the payment offered was short and was able to recover the correct amount. He had calmed down and later expressed pride to Cst. M about his new way of approaching things. During the trip to Lethbridge, Mr. Kurucz expressed concern about what Sgt. D would think if he knew about Jayden’s death and Mr. Kurucz being investigated for homicide. He felt there would be trouble if he crossed Sgt. D. He also said he felt that he was doing really well, despite his disability. Mr. Kurucz carefully monitored how Cst. M was driving, and told him not to speed and not to use his phone while driving.

c) Scenario 20 (July 12): A number of members of the group, including Mr. Kurucz, went to the Calgary Stampede. The main event was a concert at the Cowboys tent. Undercover officers started making fun of Mr. Kurucz; Cst. M shouted back at them and, when they did not leave, took off his shirt and made as though there would be a physical confrontation. It was broken up by police officers. Acting as a hothead was partly designed to support the credibility of Cst. M’s actions later, when he apparently assaulted a woman in his truck. Mr.

Kurucz appeared uncomfortable with the physical confrontation, looking nervous and concerned for Cst. M’s wellbeing. To some degree, Mr. Kurucz demonstrated a tendency to overshare personal information with strangers that night, both outside the Cowboys tent and outside another venue at the Stampede.

d) Scenario 23 (July 16): Mr. Kurucz told Cst. M that he would be getting his kid back, as he had a bunch of lawyers on the case. The issue of Jayden’s death came up and Mr. Kurucz said he had not done anything wrong. He told Cst. D and Sgt. D he appreciated what they had done for him and he would do anything for them.

e) Scenario 24 (July 17): Mr. Kurucz and Cst. M were assigned to participate in picking up fraudulent credit card machines and illegally imported cigarettes by the US border. Their role was to act as construction workers, closing off a gravel road. Mr. Kurucz was nervous about this plan.

They had been instructed that their cellphones would have to be shut off as they approached the area, to prevent tracking. When they got close, Mr. Kurucz told Cst. M that it was time to turn off their phones. As they were driving back, Mr. Kurucz called Ms. Cyluck and relayed some details about the job they had done. Following the call, Cst. M asked whether that was a good idea; and told Mr. Kurucz that he should check with Cst. D about whether it was permissible. At a restaurant that evening, with a number of the organization members, Mr. Kurucz told Cst. M that he had talked to Cst.

D about sharing information with Ms. Cyluck and everything was okay. It was later portrayed that Cst. M had talked to Cst. D, who denied the conversation; and it escalated to Sgt. D, who confronted Mr. Kurucz with having been untruthful. That led to a meeting in Mr. Kurucz’s hotel room where Sgt. D repeatedly emphasized that messing up was acceptable, but he required honesty and it was the little details that mattered.

f) Scenario 25 (July 18): Mr. Kurucz talked about having a pre-nuptial agreement with Ms. Cyluck; on a couple of occasions, he said he had one but also said Ms. Cyluck wasn’t aware of it. That seemed odd to Cst. M.

g) Scenario 27 (July 24): Members of the organization were at a Mr. Sub restaurant for lunch; Cst. N (known in the operation as “Jessie”) happened to come in and joined the group. He had been let go because he was untruthful and told tall tales. Mr. Kurucz quickly took a dislike to him and observed it was obvious he was being untruthful.

h) Scenario 28 (July 25): On a quadding outing, Cst. M (who had experience) could see that Mr. Kurucz was very proficient and was pushing the limits of what was safe at times.

i) Scenario 29 (July 26): Mr. Kurucz and Cst. M assembled a workbench, with Mr. Kurucz reading the instructions and directing how the project would be handled. It was a complex assembly, much more difficult than Ikea furniture with which Cst. M had some experience. Mr. Kurucz was able to direct the successful completion of the build.

j) Scenario 32 (July 31): Mr. Kurucz had been called by Sgt. D, who instructed him and Cst. M to meet him at a particular location. Mr. Kurucz was worried about what the meeting was about; on the way, when he thought they were in trouble, and that he might be fired, he told Cst. M “if I don’t get out of here, I love you.” Sgt. D assigned them a task to locate a tracking device that Cst. W had improperly disposed of; Mr. Kurucz found it and was later tasked with destroying it. He received cigarettes for helping the crew. Earlier in the day, Mr.

Kurucz talked about a child custody hearing and then described that on the day Jayden died, only Mr. Kurucz was with him and CPS were trying to say it was homicide.

k) Scenario 34 (August 6): Mr. Kurucz was in the process of ending his relationship with Ms. Cyluck; he was excited to be leaving the relationship and wanted to show her that he did not need her. He began seeking connections through an online site and when that relationship ended, began to date a previous girlfriend. He told Cst. M that he failed his driver’s learner’s test.

l) Scenario 40 (August 14): Mr. Kurucz stated that Ms. Cyluck told him her lawyer thought the case sounded like “shaken baby syndrome” but Mr. Kurucz said he would never do anything like that.

m) Scenarios 47-54 (August 28-September 7): A number of organization members were at a pub. At one point, Mr. Kurucz said he could get away with anything (including touching a waitress) because of his AISH status. Cst. M was given permission by Cst. D, although Mr. Kurucz disagreed, to take the work truck to pick up a woman. Early the next morning, Mr. Kurucz received a telephone call from Cst. M, giving vague information about the trouble he had gotten himself into: being drunk and hitting a woman, then asking Mr. Kurucz for assistance. Later in the scenario, they met with Sgt.

D who emphasized that to help, he would need all details of the incident where Cst. M had assaulted a woman in his vehicle. These included details that were personally embarrassing to Cst. M. Mr. Kurucz was very involved throughout the episode: quizzing Cst. M for information, consoling him en route to a covert location and to a hotel; joining a meeting with a fake medical examiner; and staging an accident that could be used if necessary to give Cst. M an alibi. Throughout, it was emphasized by Sgt. D and the medical examiner that the most minute details would be required for the organization to help Cst.

M with his problems. Mr. Kurucz was panicky at times (such as when he first encountered Cst. M at the fictional accident scene) but seemed eager to be involved. During these scenarios, he advised Cst. M that he had been able to move in full-time with his new girlfriend. He also mentioned, when they drove by Wood’s Home (a residential facility for children with mental challenges), that he had lived there once but did not like it because of being locked up.

n) Scenario 59 (September 17): A large group had dinner at the Keg restaurant in Regina, where they were celebrating the organization having obtained a large contract which would mean more money for everyone. By this time, Cst. M had been resettled in Regina (part of Sgt. D’s plan to keep him safe from criminal charges). Mr. Kurucz could see that he was doing well and the assistance he had received had worked. Mr. Kurucz said that the relationship with his new girlfriend was not going well, and he would probably move out. He had already spent about $3,000 on her, and she would not have sex with him. vi.

Assessment [ 172 ] Cst. M. was a natural, fair, and forthcoming witness, in both direct and cross-examinations.

9. Sgt. D ( Voir Dire 3) : Mr. Big Operation i. Role in Operation Honest [ 173 ] Sgt. D is a tall, large, bearded man. He testified that he looks about the same now as during Operation Honest, except that then he was about 60 pounds lighter with a longer beard. [ 174 ] He has been with CPS since 2009 and began working with PCU as an undercover officer in 2016. Prior to becoming a police officer, he worked in construction. [ 175 ] His role in Operation Honest, where he also used the name “Paul,” was to be leader of the fictitious group. His persona, as directed by Det. S, was to be a non-traditional leader.

Thus, he wore casual work clothes, drove work vehicles, had a 2015 Silverado 1500 truck as his personal vehicle, and contributed to some of the work being done by the group. [ 176 ] Mr. Kurucz reminded him of many others he had worked with in his construction career. Mr. Kurucz was eager to work. Over the course of the operation, they found many things in common: both were interested in such things as hunting and trucks. They were about the same age (Sgt. D being 35 years at the time), enjoyed the same music, and had similar hobbies.

Thus, it was easy to develop a relationship. [ 177 ] Prior to the operation, Sgt. D’s information about Mr. Kurucz was limited to the briefing he had from Det. S as shown in the PowerPoint and target sheet. ii. Description of Scenarios [ 178 ] Sgt. D was involved in 19 scenarios with Mr. Kurucz; in most of them, their interaction was less than one hour. The main parts of his evidence on these scenarios is summarized in the following:

a) Scenario 9 (June 18): Sgt. D met Mr. Kurucz when came to the covert garage which was being renovated. Mr. Kurucz introduced himself as “Jay’s new guy.” Sgt. D told him that one of his men had retired, and that was why they were looking for a new person like Mr. Kurucz.

b) Scenario 11 (June 25): Sgt. D introduced Cst. M as a new worker. Mr. Kurucz seemed to enjoy the opportunity to oversee and comment on someone under his direction. During this scenario, Mr. Kurucz talked about being on the professional bull riding circuit, something with which Sgt. D was familiar through a friend. He called Mr. Kurucz out on his exaggerations; Mr. Kurucz admitted that he was not a professional bull rider, although he had ridden. In future scenarios, the theme often came up between them that there was a difference being a bull rider and having ridden a bull.

c) Scenario 13 (June 27): Sgt. D confronted Mr. Kurucz about lies he had told, such as being a professional bull rider. Mr. Kurucz said he had a bad habit of lying and

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