R v Pearson, 2022 ABKB 655

Court of King’s Bench of Alberta Citation: R v Pearson, 2022 ABKB 655 Date: 20221003 Docket: 201097185Q1 Registry: Calgary Between: His Majesty the King Crown - and - Pearson, Jessey James and Denovan, Jayme Scott Accused Reasons for Judgment of the Honourable Justice J.T. Eamon

Restriction on Publication Trial information in absence of jury – Criminal Code s 648(1) and s 551.3, and inherent jurisdiction Pursuant to s 648(1) of the Criminal Code and Court Order made April 25, 2022, no information regarding any portion of the trial at which the jury is not present, including any voir dire proceeding, shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.

These reasons for judgment are trial information in the absence of the jury subject to this ban and shall not be published, broadcast or transmitted prior to the jury’s retirement to consider its verdict. Editorial Notice: The restriction on publication ended on October 27, 2022.

Identification ban – Criminal Code , s 486.5 and inherent jurisdiction Pursuant to s 486.5 of the Criminal Code and Court Order made April 29, 2022, publication, broadcast, transmission or dissemination of the real names, covert identities, false names, pseudonyms and any and all identifying information of all undercover police officers involved in the investigation described in these Reasons, is prohibited for a period of 15 years from April 29, 2022.

These reasons are intended to comply with the identification ban restrictions so that they may be published following the expiry of the ban on publishing trial information in the absence of the jury. Corrected judgment: A corrigendum was issued on October 28, 2022 reflecting corrections provided to the parties in the course of delivering an oral

summary of this decision in Court on October 3, 2022; the corrections have been made to the text and the corrigendum is appended to this judgment.

Table of Contents Introduction . 4 Legal principles . 5 Background evidence . 9 The genesis of the Mr Big operation . 12 Operation Hood . 13 The “stim” . 18 Denovan’s October 21, 2020 statements . 19 The October 23, 2020 statements of Denovan and Pearson . 21 Whether Denovan’s October 21, 2020 statements are admissible . 21 Reliability of the statements . 22 Length of the operation and number of interactions . 22 Nature of relationship between accused and undercover officers . 23 Nature and extent of inducements offered . 23 Presence of threats . 25 Conduct of interrogation . 27 Personality traits of accused . 27 Whether and to what extent the reliability of the confession is called into doubt 28 Markers of reliability . 29

Prejudice . 34 Abuse of process – Denovan’s statements of October 21, 2020 . 41 Coercion . 41 The search of the garage . 43 The traffic stop . 46 Operating the Mr Big scheme during the pandemic . 49 The foot surgery . 52 Overall assessment 54 Whether Pearson’s October 23, 2020 statement is admissible . 55 Background evidence . 55 Application of Hart analysis . 55 Reliability . 55 Prejudicial effect 57 Whether Denovan’s October 23, 2020 statement is admissible . 57 Abuse of process – October 23, 2020 statements . 58 The wiretaps . 59 Introduction [ 1 ] The accused Pearson and Denovan are charged with murder of Ronnie Olara Obina on or about 3 November 2017. [ 2 ] The police targeted Denovan in an undercover operation (Operation Hood) commonly known as a Mr Big operation which started February 5, 2020.

The police brought Pearson into Operation Hood on October 21, 2020. The operation ended on October 23, 2020 with the arrest of both accused [ 3 ] In the course of the operation, both accused made statements to undercover operators admitting their involvement in Obina’s murder. [ 4 ] Statements obtained through a Mr Big operation are presumptively inadmissible in the accused’s trial unless the Crown can establish, on a balance of probabilities, that the probative value of each confession outweighs its prejudicial effect ( R v Hart , 2014 SCC 52 ).

The Crown applied for a determination that the statements are admissible. [ 5 ] The accused Denovan applied for: (

a) A declaration that the cumulative conduct of the police in Operation Hood amounted to an abuse of process (a

section 7 Charter violation) and an order excluding his statements to undercover police in this matter. (

b) A declaration that the police breached his

section 8 Charter right to be free from unreasonable search and seizure when they initiated the operation and searched his garage without a warrant or a waiver of his rights. (

c) A declaration that the police breached his

section 9 Charter right to be free from arbitrary detention and his s 10(

a) Charter right to be informed promptly of the reason for his detention, when uniformed police officers conducted a ruse traffic stop on a vehicle in which Denovan was a passenger. (

d) An order excluding the evidence obtained in the operation under section 24(2) of the Charter due to a contextual and causal connection with the search of Denovan’s garage. [ 6 ] The accused Pearson generally adopted Denovan’s application, and specifically sought: (

a) A declaration that the cumulative conduct of the undercover operators in Operation Hood amounted to an abuse of process and an order excluding Pearson’s statements to the undercover officers. [ 7 ] The accused bear the onus on their applications. [ 8 ] The three applications were heard together, prior to the commencement of the evidence before the jury scheduled to start

October 4, 2022. [ 9 ] I pronounced my decision on the applications in open Court on August 18, 2020. I orally provided my reasons for my decision on the

section 8 Charter breach to enable Denovan an opportunity as soon as possible to provide further submissions with respect to section 24(2) of the Charter . I stated reasons for decision would follow on the remainder of the issues, as they were too lengthy to be provided orally in the time allotted and required further editing before release in writing. [ 10 ] These Reasons for Judgment are my reasons for the decisions I pronounced on August 18, 2020, together with a written record of my oral reasons on the

section 8 Charter breach I delivered August 18, 2020. Legal principles [ 11 ] The leading case dealing with the admissibility of statements obtained through a Mr Big operation is Hart . [ 12 ] In Hart , the Supreme Court of Canada generally described the structure of a Mr Big operation as follows: [57] The technique tends to follow a similar script in each case. Undercover officers conduct surveillance on a suspect in order to gather information about his or her habits and circumstances. Next, they approach the suspect and attempt to cultivate a relationship.

The suspect and the undercover officers socialize and begin to work together, and the suspect is introduced to the idea that the officers work for a criminal organization that is run by their boss — “Mr. Big”. The suspect works for the criminal organization and is assigned simple and apparently illegal tasks — serving as a lookout, delivering packages, or counting large sums of money are common examples. As occurred in this case, this stage of the operation can last for several months. See T. E. Moore, P. Copeland and R. A.

Schuller, “ Deceit, Betrayal and the Search for Truth: Legal and Psychological Perspectives on the ‘Mr. Big’ Strategy ” (2009), 55 Crim. L.Q. 348, at pp. 351-52; K. T. Keenan and J. Brockman, Mr. Big: Exposing Undercover Investigations in Canada (2010), at p. 19. [58] As the operation wears on, the suspect is offered increasing responsibility and financial rewards. By flying the suspect across the country, putting him up in hotels, and taking him to expensive restaurants, undercover officers show the suspect that working with the group provides a life of luxury and close friendships.

All the while, the suspect is constantly reminded that his or her ultimate acceptance into the group depends on Mr. Big’s approval (see Keenan and Brockman, at p. 20). [59] Throughout the operation, the suspect is also told that the organization demands honesty, trust and loyalty from its members. An aura of violence is cultivated to reinforce these values. Officers teach the suspect that those who betray the trust of the organization are met with violence.

They do this by telling the suspect that the organization kills “rats”, or by exposing him to simulated acts of violence perpetrated by members of the organization against other undercover officers as punishment for imagined betrayals (see, e.g., Moore, Copeland and Schuller, at pp. 356-57). R. v. Hathway , 2007 SKQB 48 , 292 Sask. R. 7, provides a stark example. In that case, undercover officers simulated an assault on a woman who had crossed the criminal organization. During the beating, officers threatened to kill the woman, her husband, and her infant child.

The accused watched as undercover officers threw the bloodied woman into the trunk of a car. [60] Once the stage is set, the operation culminates in a meeting, akin to a job interview, between the suspect and Mr. Big. Invariably during these meetings, Mr. Big expresses concern about the suspect’s criminal past and the particular crime under investigation by the police. As the meeting unfolds, it becomes clear that confessing to the crime provides a ticket into the criminal organization and safety from the police. Suspects may be told that Mr.

Big has conclusive evidence of their guilt and that denying the offence will be seen as proof of a lack of trustworthiness. In another variation, suspects are told that Mr. Big has learned from contacts within the police that a prosecution for the offence is imminent based on new evidence. The organization offers to protect the target through a variety of means — by offering to eliminate a witness or by having someone else confess to the crime — if the suspect confesses to Mr. Big. Throughout the interrogation, any denials of guilt are dismissed as lies, and Mr.

Big presses for a confession (see, e.g., C.L.A. factum, at paras. 7-8; Keenan and Brockman, at pp. 19-21). [ 13 ] The Court in Hart formulated principled rules of evidence to address the admissibility of confessions obtained through such schemes.

The technique has proved indispensable in the search for the truth ( Hart at para 4 ) but the Court must guard against the risk of unreliable confessions, the risk of moral and reasoning prejudice in the trier of fact, other risks to a fair trial, and the risk of police misconduct ( ibid at paras 5 - 9, 68, 74 - 75, 78, 81). [ 14 ] The test the Crown must meet, established in Hart , is as follows: [10] .... [W]here the state recruits an accused into a fictitious criminal organization of its own making and seeks to elicit a confession from him, any confession made by the accused to the state during the operation should be treated as presumptively inadmissible.

This presumption of inadmissibility will be overcome where the Crown can establish, on balance, that the probative value of the confession outweighs its prejudicial effect. In this context, the confession’s probative value is a function of its reliability. Its prejudicial effect stems from the harmful character evidence that necessarily accompanies its admission. If the Crown is unable to demonstrate that the accused’s confession is admissible, the rest of the evidence surrounding the Mr. Big operation becomes irrelevant. [ 15 ] Probative value is evaluated as a function of the reliability of the statement.

In assessing the reliability of the confession, courts must look at the circumstances in which the statement was made. Factors to consider include but are not limited to: the length of the operation; the number of interactions between the police and the accused; the nature of the relationship between the undercover officers and the accused; the nature and extent of inducements offered; the presence of any threats; the conduct of the interrogation itself; and the personality of the accused, including their age, sophistication, and mental health ( Hart at para 102 ) .

The question at this stage is whether and to what extent the reliability of the confession has been called into doubt by the circumstances in which it was made ( Hart at para 104 ). [ 16 ] After considering the circumstances surrounding the confession, courts must look at the confession itself for any markers of

reliability. Hart outlined some of these markers: the level of detail; whether the statement leads to the discovery of additional evidence;whether the confession identifies any elements of the crime that would not be known to the public; or, whether the statement accuratelydescribes mundane details of the crime the accused would likely not know had they not committed it (Hart at para 105). Confirmatoryevidence is not necessary, but where it exists, it can be a powerful guarantee of reliability.

The greater the concern raised by thecircumstances in which the confession was made, the more important it will be to find markers of reliability in the confession itself or thesurrounding evidence (ibid at para 105). Whether evidence can be confirmatory is a common sense analysis of whether the evidence canprovide comfort to the trier of fact that the witness is telling the truth (R v Ledesma, 2021 ABCA 143 at para 66, app’n for leave dism,). [17] The second element of the test is the prejudicial effect that the statements create – moral prejudice or reasoning prejudice.

TheCourt in Hart described these prejudices as follows: [74] Bad character evidence causes two kinds of prejudice. It causes “moral prejudice” by marring the character of theaccused in the eyes of the jury, thereby creating a risk that the jury will reason from the accused’s general disposition to the conclusionthat he is guilty of the crime charged, or that he is deserving of punishment in any event (Handy [2002 SCC 56], at para. 31). And itcauses “reasoning prejudice” by distracting the jury’s focus away from the offence charged, toward the accused’s extraneous acts ofmisconduct (ibid.).

As this Court held in Handy, the “poisonous potential” of bad character evidence cannot be doubted (para. 138). ... [106] ... Admitting these confessions raises the spectre of moral and reasoning prejudice. Commencing with moralprejudice, the jury learns that the accused wanted to join a criminal organization and committed a host of “simulated crimes” that hebelieved were real. In the end, the accused is forced to argue to the jury that he lied to Mr. Big when he boasted about committing a veryserious crime because his desire to join the gang was so strong.

Moral prejudice may increase with operations that involve the accused insimulated crimes of violence, or that demonstrate the accused has a past history of violence.

As for reasoning prejudice — defined as therisk that the jury’s focus will be distracted away from the charges before the court — it too can pose a problem depending on the lengthof the operation, the amount of time that must be spent detailing it, and any controversy as to whether a particular event or conversationoccurred. (footnote deleted). [18] As the Alberta Court of Appeal summarized in Ledesma at para 53: [53] Prejudicial effect is concerned with trial fairness. The trial judge must assess the moral and reasoning prejudice theseconfessions raise.

Moral prejudice involves the jury’s temptation to use bad character evidence for prohibited propensity reasoning,including the involvement in simulated crimes of violence or a demonstrated past history of violence.

Reasoning prejudice may arisefrom the length of the Mr Big operation, the amount of time that must be spent detailing the operation, and controversy over whether anevent happened or a conversation occurred, all of which may distract the jury from the charges: Hart, para 106. [19] The risk of prejudice can be mitigated by excluding certain pieces of particularly prejudicial evidence that are unessential tothe narrative or by providing limiting instructions to the jury that are be capable of attenuating the prejudicial effect of this evidence(Hart at para 107). [20] A judge must weigh the probative value and the prejudicial effect of the statements at issue and decide whether the Crown hasmet its burden.

In this regard: [51] In assessing probative value versus prejudicial effect, the trial judge does not decide whether the confession is true; rather,this process involves limited weighing of the evidence for the purpose of deciding “whether the evidence is worthy of being heard by thejury”: Hart, paras 95, 98, 145-149. The trial judge only decides threshold reliability: Hart, paras 98, 100. (Ledesma at para 51) [21] Even if the Crown has met its burden, trial judges are tasked with carefully scrutinizing the conduct of the police to determineif an abuse of process has occurred (Hart at para 11).

The onus is on the accused to establish abuse of process (Hart at para 113). Themere presence of inducements is not problematic, but the line is crossed when police conduct approximates coercion. The police cannotbe permitted to overcome the will of the accused and coerce a confession, whether through physical violence or threats of violenceagainst an accused, or operations that prey on an accused’s vulnerabilities such as mental health problems, substance abuse issues oryouthfulness (Hart at paras 115 117).

Inducements that were “overwhelming” could suffice (R v Mack, 2014 SCC 58 at para 36). [22] While coercion is an important factor to consider, Mr Big operations can become abusive in other ways (Hart at para 118).Misconduct that offends the community’s sense of fair play and decency or is harmful to the integrity of the justice system will amountto an abuse of process and warrant the exclusion of the statement (Hart at paras 117 - 118). [23] Ledesma succinctly summarized the abuse of process doctrine: [54] With respect to abuse of process, the trial judge looks for coercion of a confession; police violence, or threats of violence;taking advantage of an accused’s vulnerabilities; placing the accused’s or the public’s safety at risk; or other factors which offend thecommunity’s sense of fair play and decency: Hart, para 115-118, 148-149. [24] If the accused can establish on the balance of probabilities that an abuse of process has occurred, the court can fashion anappropriate remedy including the exclusion of the confession or a stay of proceedings. [25] The trial judge retains a residual discretion to exclude evidence that compromises trial fairness, even when the evidence hasnot been screened out by the two-pronged approach (Hart at para 88).

Background evidence [ 26 ] The Crown alleges that Obina was murdered in the early morning hours of November 3, 2017, shortly before 4 am. [ 27 ] Obina’s body was discovered on the afternoon of November 4, 2017, next to his silver Dodge Charger vehicle on a parking pad which was located behind Obina’s residence. His residence was in the Ranchlands district of NW Calgary. I refer to the address of this residence as #7 Rise. The driver’s door of the Charger was open. Obina’s body was lying next to the open door.

A red, spent shotgun shell was lying in the snow, between his body and the left rear wheel of the Charger. The Charger and Obina’s body were lightly covered in snow. There was blood on the inside and outside of the open driver’s door. [ 28 ] An autopsy indicated the cause of Obina’s death was a shotgun wound of the head (left eye/left face lateral to the eye). The single shotgun blast initially impacted Obina’s left shoulder/clothing before striking his face.

The direction of the wound was front to back, left to right. [ 29 ] The parking pad for #7 Rise is adjacent to the east side of an alley that runs north/south behind #7 Rise. Slightly south of #7 Rise, this alley intersects an alley that runs east/west. There was a security camera mounted on the rear of a house (that I refer to as 11** Blvd) that was located on the south side of this intersection. The camera view was roughly north across this intersection and up the alley toward the parking pad of #7 Rise.

The relative positions of #7 Rise, 11** Blvd, and the intersecting alley ways are depicted on Exhibit VD-2, p 3; Detective Guterson testified to the camera direction. [ 30 ] The security camera had a view of the alley behind #7 Rise and some of the scene where Obina’s body was discovered. Camera footage obtained by the police shows a small dark SUV with silver spoked wheels travelling eastbound on the alley behind 11** Blvd at 2:20 am on November 3, 2017, turning left up the north/south alley (in the direction toward #7 Rise), and continuing past the rear of #7 Rise.

Shortly past #7 Rise, the vehicle slows and pulls over to its left (west side of the alley). Almost out of camera view, it appears to stop and its lights go out. It is snowing moderately. You can see fresh snow accumulating on the ground. [ 31 ] The camera footage from 11** Blvd next shows Obina’s silver Charger arriving and pulling into the parking pad of #7 Rise at 3:57 am on November 3, 2017. Within seconds, a person walks diagonally across the alley, from the west side near the location where the small dark SUV appeared to have stopped a little over 1 ½ hours earlier.

The person stops on the east side of the alley at a point slightly north of the parking pad. At this point, there is a fence and garage facing the alley, and the Charger is around the corner of the fence. The person waits about 30 seconds, while the brake lights and then the tail lights of the Charger go out. The person then runs around the corner of the fence and toward the front driver’s side of the Charger. There appears to be a brief interaction with another person on the driver’s side of the Charger.

The person then runs away from the Charger, across to the west side of the alley toward the location where the small dark SUV appeared to have stopped earlier. Almost immediately, vehicle tail lights illuminate at that location and a vehicle starts travelling north as the lights pull out of camera view. It is not clear from the grainy video whether the vehicle pulling away was or was not the small dark SUV. [ 32 ] Police interviewed a resident (“LV”) of 11** Blvd on the evening of November 4, 2017.

LV stated that on November 3, 2017 between 3 am and 5 am (or, later, she agreed between 3 am and 4 am), she was woken up by a male voice calling loudly “fuck” immediately followed by a gunshot. It was quiet after the shot; she didn’t hear vehicles. In the morning she spoke to her room mates, who said they didn’t hear anything. She therefore thought she had had a dream. Later in the day she saw the police in the back alley and in speaking with them, she found out there was “more to it”.

Police interviewed her later that day. [ 33 ] She stated her room is on the main floor and faces the alley, and she sleeps with her window open. She said she rarely goes in the back alley and had not been in the back alley since the incident. [ 34 ] On the morning of November 3, 2017, Calgary Fire Department received reports of a vehicle fire near 12 Mile Coulee Road, NW, Calgary. A witness (“JW”) woke up around 4:15 am when his house shook. He looked out his window and saw a vehicle on fire and called 911.

A witness (“GW”) reported she woke up to a loud boom that shook her house around 4:30 am, and immediately got up and saw a pickup truck accelerate north on 12 Mile Coulee Road. She thought it would have been under 10 seconds from hearing the sound. She saw a vehicle (that she thought was a mini van) entirely engulfed in flame. The fire entirely dwindled down to nothing and once the fire department arrived, it was entirely out. [ 35 ] The fire event chronology maintained by Calgary Fire Department showed the first 911 call was received at 4:27 am. The first fire department unit arrived on scene at 4:39 am.

The captain on the engine stated that they arrived to find a black Jeep Compass parked in a utility corridor on the east side of 12 Mile Coulee Road. There was a small flame beside the Jeep. He saw two sets of tire tracks at the scene, one set leading to the Jeep and one set coming into the area and turning away and leaving. Later, he noticed a strong odour of fuel on the driver’s side of the vehicle. Another witness on the fire engine observed a small fire beside the vehicle on arrival.

He observed a gasoline can on the driver’s seat, the vehicle’s doors closed, the driver’s window down about 1”, and burn marks inside the vehicle. [ 36 ] Police arrived at the vehicle fire location shortly before 5 am. Constable Bell observed a red gasoline can on the driver’s seat of the vehicle and a strong odour of gasoline from the vehicle; burn marks in the vehicle; no apparent damage to the body, door locks or windows; and no evidence of tampering with the ignition of the vehicle. [ 37 ] Constable Bell telephoned the registered owner of the Jeep (“EC”).

She stated the vehicle was parked in front of her residence to the best of her knowledge as of 5 pm on November 2, 2017. She claimed to have both sets of keys and no one had permission to drive her vehicle. [ 38 ] The vehicle was taken to a fire station, where it was examined by police on November 7, 2017. Constable Cull seized a gasoline can from the driver’s foot well of the Jeep. The Jeep was found to have liquid gasoline in a cupholder in the rear passenger area that was located directly behind the centre console.

[ 39 ] Photographs of the burned vehicle show it to be a black Jeep Compass with silver spoked wheels. [ 40 ] EC, the owner of this Jeep, resided at an apartment style building, the address of which I will refer to as “611”. This address is in the Renfrew area of NE Calgary. There was fenced in parking at the back of the building, where EC usually parked her Jeep. [ 41 ] The parking area at 611 was under video surveillance.

Camera footage seized by police depicted: an individual coming down off the rear fence of the parking lot and walking to the driver’s door of a black Jeep with silver spoked wheels at 139 am on November 3, 2017. The individual gets into the vehicle, backs it out of its parking space, and drives out of the camera view.

On pausing the video, I was able to discern a clear image of the driver’s face. [ 42 ] The black Jeep that departed the parking lot at 611 on November 3, 2017 at 140 am and the black Jeep registered to EC and recovered at the fire scene on November 3, 2017 at 430 am, appear identical, except Detective Guterson noted a small red object hanging from the rear view mirror of the Jeep departing 611, and this object was not found in the burned Jeep.

The images of the vehicle from the camera at 11** Blvd near the murder scene at 220 am on November 3, 2017 are grainy, but at one point the vehicle pulls up and stops in front of the camera providing a clear view of the right side of the vehicle. It is dark coloured.

It is the same shape as the black Jeep depicted in the images and videos at the 611 and 12 Mile Coulee Road locations and it has the same style silver wheels as depicted at the other locations. [ 43 ] There is not any evidence to suggest the distances are such that the same Jeep could not have been driven from 611 to the alley behind #7 Rise and later to 12 Mile Coulee Road within the time frames identified in the preceding several paragraphs.

A jury using common and notorious knowledge of the roads connecting the Renfrew, Ranchlands and Bearspaw areas of Calgary and referring to the maps in the voir dire evidence, could reasonably conclude that a vehicle could travel these distances in the times indicated, even in inclement winter weather. [ 44 ] Constable Cull seized the gasoline can from the black Jeep at the fire scene and took it to a lab for examination. He swabbed the underside of the handle and the thumb latch on the base of the spout for DNA.

He testified he could not recall how he handled the gasoline can, but in his ordinary practice would avoid touching the handle and spout because he was intending to sample those parts of the can. He swabbed other parts of the vehicle and dusted various parts for finger prints. He did not change his gloves between swabs. [ 45 ] Ms Reader was qualified as a forensic biologist to give evidence respecting; (

a) The

interpretation of examination results of exhibits for the presence of human biological materials. (

b) The

interpretation and comparison of forensic DNA typing profiles. (

c) The application of statistical significance to any matches or inclusions found. [ 46 ] Ms Reader testified that the swab from the gasoline can was mixed origin consistent with having originated from two individuals. The profile of the major contributor was designated “male 2”. The profile of the trace contributor contained limited information and no meaningful comparison could be made to any samples. The profile of male 2 matched the known sample designated “JP”. The JP sample originated from the accused Pearson.

The estimated probability of selecting an unrelated individual at random from the Canadian Caucasian population with the same profile is 1 in 4.6 quintillion. [ 47 ] Ms Reader was cross-examined about the possibility of transfer of Pearson’s DNA to the gasoline can. There was evidence that Pearson had driven the vehicle as recently as the morning of November 2, 2017, and that Constable Cull was leaning into the vehicle to dust it for finger prints and take DNA samples from other locations in the vehicle.

Ms Reader generally thought the probability of transfer was low and observed there is no way to ascertain when the DNA was deposited on the gas can or how it got there. [ 48 ] In other words, there is a strong prospect of a finding by the trier of fact at a trial from the DNA evidence that Pearson had handled the gasoline can, but the DNA evidence does not indicate when or under what circumstances.

The genesis of the Mr Big operation [ 49 ] The primary investigator, Detective Guterson, became involved in the investigation of the death of Obina in the late afternoon of November 4, 2017. [ 50 ] Much of Detective Guterson’s evidence was so-called narrative evidence directed at explaining the evolution of the investigation to a decision to employ the Mr Big technique.

In describing this evidence, I am mindful of the limitations on narrative evidence, that the evidence is not admissible to prove the truth of the allegations and that beliefs or opinions of Detective Guterson merely assist in contextualizing or understanding the considerations of police in deciding to engage the technique ( R v Stauth , 2021 ABCA 88 at paras 35 – 36 per Veldhuis JA; R v Borel 2021 ONCA 16 at para 48 ). [ 51 ] Detective Guterson followed two lines of inquiry based on his preliminary investigations. [ 52 ] The first line of inquiry was the Jeep found near 12 Mile Coulee Road.

Detective Guterson formed the belief it was likely the Jeep was the same vehicle used in Obina’s murder, considering the location of the Jeep; its similarity with the vehicle seen in the CCTV from 11** Blvd; and the attempt to burn the Jeep. [ 53 ] As mentioned, police ascertained the name and address of the Jeep’s owner (EC) and her knowledge of where the vehicle was. They arranged for EC to be interviewed. Among other things, EC advised police that one of her key fobs was missing and that the gasoline (or “jerry”) can in the Jeep was not hers.

She told police that the only people with access to the Jeep were herself and her current boyfriend, whom I will refer to as “J”. J lived across the street from EC. Later, police learned from EC that J hung around with the accused Pearson, who in turn had recently assisted EC in moving apartments in the building. Pearson was later identified as the operator

of the Jeep on the morning of November 2, 2017. Further, police obtained, through surveillance, cast off DNA from Pearson that matched the DNA found on the gasoline can. [ 54 ] Thus, Pearson became a suspect in the theft of the Jeep shortly before the murder and the arson of the Jeep shortly after the murder. [ 55 ] The second line of inquiry arose from a Blackberry cel phone recovered from Obina’s clothing. Police obtained production orders to access information about the contacts the phone had made before Obina’s death.

Police found that two numbers were frequently in contact with Obina’s phone until the night he died. The contact information for these numbers that was entered in Obina’s phone used nicknames or some sort of slang which did not identify the actual names of the contacts. Further production orders on these numbers revealed they were frequently in contact with a number ending in 2224 during the evening hours leading up to the murder. A production order on 2224 identified the account owner as the accused Denovan.

The last communication by the 2224 account was a text to one of these numbers number about 4:30 am on November 3, 2017. All three numbers stopped being used at or around 4:30 am. [ 56 ] Further investigation of Facebook revealed that Denovan and Pearson were friends. [ 57 ] Thus, the two lines of inquiry became united. Guterson suspected both accused in Obina’s murder. [ 58 ] Guterson identified 8 potential targets for a Mr Big operation, including both accused. He concluded Denovan should be the primary target.

He appeared to Guterson to be stable; of normal cognitive ability; and had a criminal history involving firearms which indicated he was probably comfortable with firearms. Guterson believed Denovan was likely the shooter and Pearson likely the driver. Guterson believed Denovan may have been involved in organizing the murder. Guterson concluded Denovan was the better target and recommended accordingly to the personnel within Calgary Police Service holding approving authority to implement a Mr Big operation.

A file manager for the operation was appointed within Calgary Police Service in late November or early December 2019.

Operation Hood [ 59 ] The file manager of the operation was responsible to design scenarios staged by undercover operators and involving the target, with the objective of bringing the target into a fictitious criminal organization and creating an environment where the target was comfortable talking about the offence under investigation. [ 60 ] To do so, the file manager initially designed scenarios to put undercover operators in contact with the target and encourage the target to become involved in the organization. [ 61 ] By December 19, 2019, the police knew, from publicly available social media, that Denovan’s hobbies and interests included quadding, motorcycle riding, smoking [bbq], dogs, and gym fitness.

A police record noted he was seen at a strip club. Police had no information about his employment, substance history or mental health history. Police did not have access to his health care records. [ 62 ] Police learned from publicly available information (a Facebook Marketplace listing) that Denovan was offering a snowmobile for sale. The file manager decided to attempt initiating contact with Denovan by having police pose as possible buyers. Police initiated contact on February 5, 2020 and arranged with Denovan to see the machine.

An undercover officer came to Denovan’s home later that day posing as an interested buyer. [ 63 ] The primary goal of this first scenario was to meet with Denovan at a location chosen by Denovan and gauge his interest to take the snowmobile on a test drive. The secondary goal was to obtain lifestyle information. The information could be used to develop a hook scenario to introduce Denovan to the organization.

The police already had lifestyle information on Denovan from surveillance and investigation and intended to develop more if available. [ 64 ] Among other things, police ascertained through the first scenario that Denovan was willing to allow test rides of the snowmobile. Consequently, police planned to arrange for an undercover operator to pose as a buyer and take the snowmobile for a test with Denovan. This purported buyer would be the primary undercover operator (UC1), who had been pre-selected before scenario 1 occurred. UC1 first met Denovan on February 7, 2020 posing as an interested buyer.

Together, they trailered the snowmobile to a rural location for a test drive. Over the course of that day, they spent a significant amount of time together. They bonded quickly and Denovan disclosed a significant amount of personal information about himself, including employment, skills, interests, hobbies, current relationship status, and financial information. UC1 told Denovan his purported employment and said he needed an assistant that evening and offered Denovan the job.

Denovan accepted and during the job, disclosed more information including his past criminal activities. [ 65 ] This initial contact led to part time work for Denovan with the organization. This organization was portrayed to Denovan to include a legitimate business and later, an illegal business. By the term “legitimate”, I mean that if the business were real, it would not be unlawful to carry on the business. I am not suggesting it was actually an operating business. It was part of the false illusion created by police to obtain evidence.

I have limited my description of this business in these Reasons to best implement the identification ban outlined at page 1. [ 66 ] In the interactions, UC1 frequently brought up his violent past and Denovan reciprocated. UC1 formed the impression Denovan was knowledgeable of the street drug trade and of the sex trade; was easy to work and communicate with; and offered and accepted suggestions. Within a few days of meeting UC1, Denovan had UC1 over to his home for breakfast.

UC1 learned additional information about Denovan’s quality of life, relationships and interests. [ 67 ] Denovan continued to frequently work for the organization, and frequently socialized with members of the organization, including at strip clubs and a Calgary covert location that purported to be the organization’s business premises. [ 68 ] As Denovan became involved with the operation, the file manager added a variety of objectives to the various scenarios.

Those included: build trust or rapport by the target with organization members; show the target he had a future in the organization; show that the organization valued loyalty and honesty; show that the organization tolerated illegality and a person’s past errors and criminal conduct if the target was honest with the organization about it; and, show the organization could fix problems an organization member had with the legal system or police by various unlawful means, and was willing to consider helping criminal associates of an organization member who was involved in such problems. [ 69 ] UC1 soon introduced Denovan to other members of the organization.

At a dinner on February 19, 2021, UC1 introduced Denovan to UC2. This undercover operator was portrayed as UC1’s superior. Denovan was immediately respectful to UC2 and was very comfortable discussing his personal life and interests with the group. Eventually Denovan came to understand that UC2 was the second in command of the organization. The organization introduced Denovan to UC3, who was working at the Calgary covert location. He shared common interests with Denovan. In late March 2020, the organization introduced Denovan to UC4, portrayed as the boss (or Mr Big) of the organization.

Mr Big introduced himself by asking “who the fuck is this?” while indicating Denovan. Denovan told UC1 that UC4 had the presence of a boss and looked very intimidating. UC1 observed that Denovan was very respectful around UC4. [ 70 ] The operators continued to build relationships with Denovan, learn about him, and introduce him to their purported organization, its activities and its values. Eventually, in mid-August 2020 the organization broached the matter of its illegal business with Denovan and he willingly began to participate in that as well. [ 71 ] The police designed and staged violent scenarios.

The file manager wanted Denovan to see the organization was capable of committing violence to help insulate a crew member from legal problems arising from criminal activity that came to the attention of law enforcement authorities. The operation also used violence to create like-mindedness with the target and a bond with the primary operator (UC1).

These were designed on the basis that police were investigating a violent homicide and had learned of Denovan’s propensity to tell the operators stories of his violent past. [ 72 ] Undercover operators showed Denovan the organization was willing to help members with legal problems arising from their past activities if the member disclosed the problem. One of the members (UC5) purportedly had such a problem arising from his having committed a serious crime.

The operators falsely told Denovan that the organization arranged for UC5 to go into hiding while it dealt with his legal problem. [ 73 ] In one scenario, the organization purported to intimidate a witness (actually an undercover operator) to UC5’s supposed crime. Shortly before the planned invasion, UC1 and Denovan were tasked to locate the supposed witness. Denovan provided ideas of how to locate and follow this witness. After following the witness, UC 1 outlined to Denovan the next step, either to kill the witness or intimidate him.

The undercover operators together with Denovan, later purportedly forced their way into a home while the undercover operators were purportedly armed with guns. UC1 assaulted the target, and threatened the target if he cooperated with police they would kill him and handed him money for his silence. [ 74 ] Undercover operators told Denovan they had access to various corrupt contacts in the private and public sectors who could obtain or manipulate information for the organization.

These could be used in purportedly fixing an organization member’s legal problems, such as locating potential witnesses or altering records to help distance the member from the purported crime. They told Denovan they used such information to help fix UC5’s problem. [ 75 ] In a later scenario with Denovan, UC5 returned to the organization in a dramatic way and to the excitement of the organization members present. UC5 apologized for lying about his past and said that because he was upfront with UC2, he was able to get the help he needed.

At a social event the following day to celebrate UC5’s return, hosted by Mr Big (UC4), Denovan remarked to the second in command (UC2) that sometimes “knowing less is more”.

UC2 reacted angrily, telling Denovan that if UC5 had not told him about the crime, he could not have helped him. [ 76 ] In another scenario showing the organization’s willingness to use violence, UC1 purported to arm himself before a meeting with a third party (actually an undercover operator), loading a purported firearm (actually inert) with ammunition in Denovan’s presence. [ 77 ] The organization’s capacity for violence was also underscored by its unlawful business as introduced to Denovan which included various dealings with firearms, silencers and bullet-proof vests. [ 78 ] In the scenarios, the undercover operators were careful to ensure that they did not leave the impression that organization members would be subjected to violence.

Shortly after his display of anger toward Denovan for suggesting “less is more”, UC2 hugged Denovan and told him all was fine. The undercover operators also demonstrated tolerance for mistakes if the member was honest about them. UC5 came clean with his past and the organization went to great lengths to fix his problem. Similarly, UC1 recounted to Denovan how he had over-reacted with a third party in a dealing on behalf of the organization. He told Denovan that when he disclosed his error to UC2, UC2 was angry.

However, it was apparent there were no other consequences and the evidence indicates no issues between UC1 and UC2. [ 79 ] UC1 and Denovan became close. On occasion, each acknowledged they were therapists for each other or that they were big brother (UC1) and little brother (Denovan). Denovan frequently hugged UC1, as well as UC3, called them bro, and said he loved them. Denovan appeared quite happy to see UC5’s return to the organization.

Denovan respected UC2 and UC4, also expressing some limited familiarity with them on occasion. [ 80 ] As the matter progressed into September 2021, the operation presented Denovan the possible opportunity to take over UC3’s role in the organization. Denovan was very interested in this role. He wanted steady work, and the role reflected his interests. He told UC3 he would do anything for him, and “just say jump and I’ll say how high”. On another occasion, UC3 told Denovan he thought he would be a good fit for his job. [ 81 ] Denovan enjoyed working for the organization.

Examples include an occasion where Denovan told an undercover operator that this job is the best thing that happened to him, he can’t screw it up. On September 10, 2020 he expressed his commitment to work for the organization, saying to an undercover operator, he would help if you need anyone to “cut hands off or dig a hole”.

[ 82 ] On October 19, 2020, UC1 and Denovan departed for a 3-4 day trip. They travelled together by vehicle to various points in southern Saskatchewan, and into Manitoba during the trip. Their activities were based out of Regina, where the organization had another covert location. [ 83 ] On the evening of October 20, 2020 the organization had a social to celebrate some developments and successes in their business. [ 84 ] During the celebration, Mr Big (UC4) took UC1 and Denovan aside. Mr Big told Denovan if he wanted more work there was potentially more work and presented him a key to the Calgary covert location.

He told Denovan, you only ever get one key but it comes with responsibility, trust and respect. Denovan was very excited and thankful. He hugged Mr Big, thanked UC1 for the opportunity, and told UC1 he loved him. They returned to the larger group at the dinner table, where Denovan gave a short toast to the crew for the opportunity to earn their trust. UC1 announced the good news that Denovan received a key, and the group cheered. The party continued into the night at a local pub arriving back at a hotel just after midnight. [ 85 ] Through these interactions, Denovan’s words and actions indicated to police: (

a) he had a comfortable lifestyle, in a clean, comfortable and well furnished home which he rented with a roommate and his girlfriend. (

b) he was fully engaged in hobbies that he enjoyed. (

c) he had a personal and apparently satisfying relationship with his girlfriend. (

d) he had a relationship with his three siblings, including a brother whom he pointed out to UC1. (

e) he was rebuilding his relationship with his father. (

f) he had friends, including the accused Pearson and an individual whom he described as his “side piece”. (

g) he attended social activities such as a wedding. [ 86 ] Denovan and his girlfriend broke off their relationship in August 2020 but were back together in the fall 2020 before the events of October 19 and following. [ 87 ] Denovan periodically expressed financial pressures. He suffered employment disruptions during the pandemic and said money was tight. Denovan wanted stability. He was worried about bills.

He told undercover operators that he could not collect the CERB benefit offered by the government of Canada during the early stages of the Covid-19 pandemic to eligible employees, due to child support arrears and consequent maintenance enforcement actions. He told undercover operators that he supplemented his income by repairing and selling vehicles. [ 88 ] Denovan disclosed to undercover operators that he had a medical issue with his foot. Denovan had a tumour on one of his feet. He told the organization about the tumour on several occasions.

He said his foot bothered him, or he was waiting to hear from a doctor. The organization understood from these discussions that the problem required surgery and during this surgery, there would also be a biopsy to ascertain if the tumour was cancerous. The organization responded that Denovan could take the time he needed, they would accommodate his surgery. Eventually he informed the undercover operators that the surgery was scheduled for October 30, 2020 and expressed excitement to finally get it booked. He had waited a long time for his surgery.

Denovan told the operators that his bills wouldn’t allow him to take much time off for recovery. [ 89 ] The evidence, as discussed later, does not indicate that this tumour was substantially interfering with Denovan’s activities of daily life, though it may have had an impact on some types of jobs (construction jobs requiring work boots) that could have been available to him. The “stim” [ 90 ] As the file progressed, the file manager began to prepare a plan for a “stim”.

A “stim” is a faked scenario designed to prompt the target to give details of the offence under investigation to an undercover operator, if the target knows anything. [ 91 ] One of the scenarios was designed to surreptitiously obtain a photograph of Denovan with UC1, for use in the stim. The scenario had uniformed CPS officers pull over a vehicle that was operated by UC1 and in which Denovan was a passenger.

The uniformed officers were advised by their supervisor that the vehicle would make a turn without signalling and they were instructed to pull it over, pretend to issue a ticket, and obtain a photo of the two individuals together. Denovan was not wearing a seatbelt. The

uniformed officers informed Denovan that they had also pulled the vehicle over because they saw he was not wearing a seatbelt. They asked him to identify himself. Denovan falsely gave them his brother’s name. The officers wrote the ticket and handed it to him. Neither the traffic ticket or the seatbelt ticket were submitted for processing – they were fakes. [ 92 ] Police deployed the “stim” on October 21, 2020.

By this point, police knew the scheduled date for Denovan’s foot surgery (October 30, 2020). [ 93 ] On that morning, UC1 and Denovan had been travelling by vehicle from Regina to a location to pick up items and take them to a buyer for a transaction. They then were to return to Regina. [ 94 ] During their return trip, the operation had homicide detectives came to Denovan’s home, looking for Denovan and UC1. They spoke to Denovan’s girlfriend, showed her a picture of UC1 with Denovan, and asked if she knew where Denovan was, if she could identify the other man in the picture, and if they were hanging out together.

They showed her a picture of a black man (as noted, Obina was a black male). They left uniformed police in a marked police cruiser stationed outside the residence. [ 95 ] Denovan’s girlfriend telephoned Denovan and informed him of this development. Denovan and UC1 discussed why the police were looking for UC1 and Denovan. Denovan accessed a residence camera using his mobile phone and saw the police cruiser outside his home. [ 96 ] UC1 pretended to be stressed and asked why were the police looking for him.

He was not laying blame or pointing at Denovan as someone who had brought police attention or “heat” upon him. Denovan was also stressed and said he did not know what was going on. [ 97 ] Denovan asked UC1 if he thought UC2 would be able to get information of “why, what the fuck’s going on”. UC1 responded, he did not know and he would call him. [ 98 ] UC1 contacted UC2. UC2 said he didn’t know, just come to the shop. He stated there was not much he can do “until I know what the fuck they are talking about” He told them to head to the shop “right now” but “don’t fucking speed”.

Both UC1 and Denovan agreed, we need to get to the shop, take a breather, figure it out there. [ 99 ] UC1’s phone then rang. The caller identified himself as a Calgary Police Service homicide detective. He said he was trying to locate Denovan and just trying to see if UC1 knew where he was; it was very important they talk to him because Denovan was arrestable for a homicide that took place on November 3, 2017 on an individual named Ronnie Obina, in Ranchlands; they need to find him and speak to him. UC1 denied knowing Denovan’s whereabouts.

The detective stated this wasn’t going away, police needed to find him, and “we don’t want to be arresting you to find him”. Denovan could hear this call, on speaker phone. [ 100 ] Denovan’s demeanour changed markedly. He appeared nervous, sometimes breathing hard. He repeatedly said he was freaking out or was stressed. He expressed concern that his social media or mobile device could be used to locate him in the Regina area. He said his Tinder (a publicly accessible dating app) profile location was set to Regina and he wanted to change it.

However, he had already shut his mobile phone off (ie, no longer generating a signal that could locate the phone). At one point, Denovan wondered out loud, why is this coming up now? [ 101 ] UC1 called UC2 in Denovan’s presence and relayed the additional information including the police want to arrest Denovan for homicide and want to arrest UC1 too. UC2 told them to go to the Regina covert location. [ 102 ] Upon arrival at the covert location, Denovan went to the bathroom and appeared to be bent over the toilet.

When he came out, UC1 hugged him. [ 103 ] UC3 observed that when Denovan arrived at the Regina covert location he seemed out of character. Denovan’s October 21, 2020 statements [ 104 ] The Crown seeks to admit into evidence before the jury, two statements from Denovan. First, the Crown contends that Denovan’s reactions and demeanour upon the delivery of the stim in the presence of UC1 including his utterance asking why this was coming up now, are evidence of guilt.

Second, the Crown seeks to admit a recorded confession made in the presence of UC2 shortly after arriving at the Regina covert location. [ 105 ] UC2 met with Denovan shortly after Denovan and UC1 arrived at the Regina covert location. The meeting was audio and video recorded. [ 106 ] UC2 emphasized to Denovan at the outset the importance of telling the truth and asked for his word and promise that he would not lie to, or “bullshit” UC2. Denovan promised and gave his word he would not do so.

Well into the interview, Denovan reiterated he was not going to lie about anything. [ 107 ] UC2 explained this is not the first time that problems had come up. He told Denovan the organization can be here for him. He did not care what Denovan did in the past. He cared about how they were going to move forward, but the only way to get through it was for Denovan to own everything, the good and the bad. He would not judge Denovan for mistakes.

He had love for Denovan, he was here for Denovan, and told Denovan to pay that back by telling the complete story truthfully. [ 108 ] He confirmed that Denovan wanted help with his problem. He purported that he and UC4 could use their resources to help Denovan but they needed honest and complete disclosure of what Denovan knew about it in order to understand what they were dealing with.

[ 109 ] During this meeting, Denovan confessed [1] to Obina’s murder. [ 110 ] Denovan provided information about the incident, including: (

a) He was hired by two men murder a guy named Olara; (

b) He did it [the job] in the early winter of 2017 before Christmas, at roughly 3:30 to 4:00 am in the Ranchlands area; (

c) He stole a black Jeep using keys provided by Pearson, who knew the Jeep’s owner (a woman who was dating one of their friends); (

d) He and Pearson took the Jeep from “the chick’s place, parking spot” and “I wanna say in the Renfrew area, like 4 th street” and “off Edmonton Trail and 4 th Street”. Denovan jumped the fence into this parking lot, got into the Jeep and drove away; (

e) The residence from where they took the Jeep was an apartment style building, with an open parking lot that was covered on one end; (

f) They dropped Pearson’s truck at a location he variously described as “out of town a little” and “right kinda’ by Cochrane” or “out by the Tuscany area”, then travelled in the Jeep to an alley behind the victim’s house and parked close to the parking pad; (

g) Denovan’s contractors provided Denovan a description and picture of Obina, told him that Obina drove a Charger motor vehicle, and that Obina would arrive home around “3-ish” in the morning. Denovan and Pearson waited in the Jeep for a couple hours until the victim arrived in his Charger; (

h) Denovan ran up, creeped behind the fence, and as soon as he heard the victim’s car door open, he went around the corner and pointed the gun; (

i) The victim shouted or screamed “what the fuck” or “oh fuck” or “fuck” and Denovan shot him with a single shotgun blast to his chest area; (

j) The shotgun was a 12 gauge and had red cartridges which he believed to be loaded with slugs; (

k) The victim was carrying “one of those big fuckin’ Gucci bag things”; (

l) He and Pearson left in the black Jeep and returned to the location of Pearson’s truck; (

m) Pearson doused the Jeep in gas which they had brought with them in a jerry can, Pearson lit it and the Jeep burned. (

n) Denovan recounted leaving the fire scene in Pearson’s truck, dumping the shotgun in a dumpster, and contacting (by text messaging) his contractor using a burner phone to report “fucking game over, or whatever, or something” or “touchdown”. (

o) It was snowing, they didn’t leave anything behind, and the snow covered his footprints in the alley. (

p) After leaving the fire scene, they were driving Pearson’s truck along 16 th Avenue [north] near the Bowness area. The gas gauge was not working correctly, and the truck ran out of gas. They got fuel and got going again. (

q) Denovan disposed of the SIM card in his burner phone right after the job. He had been using the phone to communicate with his two contractors the day of the murder, and they also “killed their lines too right after”; (

r) Denovan and Pearson hid out at a friend’s house, watching for a news report on the killing. After a day there was still no report so they attempted to return to the murder scene, however they were unable to access it because it was blocked off by police. [ 111 ] Periodically during the interview, UC2 showed Denovan photographs and a CrimeStoppers posting of October 21, 2020. Denovan identified the deceased Obina as the victim, the black Jeep Compass belonging to EC as the vehicle they had used, and the gasoline container found in the front seat of the Jeep at the fire scene.

He confirmed that the fire scene location was on 12 Mile Coulee Road. He acknowledged he may have left a spent shotgun cartridge behind at the murder scene or may have pumped the shotgun and expelled the spent cartridge at the scene after shooting Obina. The October 23, 2020 statements of Denovan and Pearson [ 112 ] During the October 21 meeting between UC2 and Denovan, UC2 questioned whether Pearson might also need help with this problem. As described later, Denovan convinced Pearson to come to Regina to deal with the problem. The organization transported Pearson to Regina by vehicle on October 22, 2020.

The organization roomed Pearson and Denovan together the night of October 22, 2020 in a Regina hotel. [ 113 ] UC2 came to the hotel room and joined both accused on the morning of October 23, 2020, bringing breakfast and purporting to discuss Obina’s murder so that the organization could help them with the problem. [ 114 ] During the discussions, Denovan and Pearson recounted the events of Obina’s murder. Denovan again confessed to planning Obina’s murder and shooting Obina.

Pearson confessed that he participated by providing the keys for the black Jeep; driving his truck to and leaving it at the 12 Mile Coulee Road location; driving the black Jeep from the 12 Mile Coulee Road location to the location of the murder and waiting there with Denovan until Obina arrived; returning with Denovan in the Jeep to 12 Mile Coulee Road after the murder; and, dousing the interior of the Jeep with gasoline and lighting it on fire. They both left the scene in Pearson’s truck. Pearson

described how the truck ran out of gas along 16 th Avenue North, while approaching the Bowness district and that Denovan telephoned for a taxi. [ 115 ] Police arrested both accused for the murder of Obina later on October 23, 2020. Whether Denovan’s October 21, 2020 statements are admissible [ 116 ] The Crown seeks to admit during the jury trial, the video and audio of the last leg of the vehicle trip by UC1 and Denovan during which the stim was delivered, and the subsequent interview by UC2 of Denovan at the Regina covert location. The Crown submits both are evidence of the crime.

The former contains demeanour evidence and Denovan asks why this is coming up now. The latter, as mentioned earlier, describes the genesis and execution of the plan to murder Obina. [ 117 ] The first step in the Hart assessment is the reliability of the statement. Hart at para 102 states: [102] Confessions derive their persuasive force from the fact that they are against the accused’s self-interest. People do not normally confess to crimes they have not committed ( Hodgson , at para. 60). But the circumstances in which Mr. Big confessions are elicited can undermine that supposition.

Thus, the first step in assessing the reliability of a Mr. Big confession is to examine those circumstances and assess the extent to which they call into question the reliability of the confession.

These circumstances include — but are not strictly limited to — the length of the operation, the number of interactions between the police and the accused, the nature of the relationship between the undercover officers and the accused, the nature and extent of the inducements offered, the presence of any threats, the conduct of the interrogation itself, and the personality of the accused, including his or her age, sophistication, and mental health.

Reliability of the statements Length of the operation and number of interactions [ 118 ] The operation spanned from February 5, 2020 through October 23, 2020, a period of about 8 ½ months. There were 57 scenarios, but some involved more than one part. The scenario on October 21 involved a vehicle trip with UC1, then a return to a covert location and a meeting with UC2. Denovan was provided a hotel room in Regina and contacted Pearson that evening.

The scenario on October 22 consisted of several parts (UC2 met with Denovan in a hotel room; UC2 later phoned Denovan and had a text conversation with Denovan; later, UC2 met Pearson and brought him to Denovan’s room). The total of discrete scenarios was about 62. [ 119 ] The operation physically paused March 24, 2020 [2] . Police decided that the pause was necessary given the recent onset of the covid-19 pandemic. They concocted a story that the incident involving UC5 had compromised the Calgary covert location and it had to shut down. They cleared out the computers and guns.

UC1 paid Denovan severance pay. [ 120 ] Through the March 2020 pause to mid-August, 2020 UC1 remained in very frequent contact with Denovan by text. I infer Denovan hoped that his activities and opportunities with the organization would resume at some future time. I do not exclude this time from the assessment. [ 121 ] The physical operation resumed August 15, 2020 with UC1 discussing with Denovan whether he wanted to do illegal work for the organization.

Denovan wished to do so, and activities proceeded accordingly. [ 122 ] The operation involved frequent vehicle travel outside Calgary to locations in southern Alberta, Saskatchewan and Manitoba. It utilized several vehicles; there were social events and work activities in restaurants; social events in strip clubs; and two covert locations where social and work activities occurred – one in Calgary and one in Regina. [ 123 ] Many of the scenarios were lengthy. For example, Denovan’s birthday celebration in September 2020 spanned several hours including the quadding activity and dinner afterward.

Many of the vehicle trips by UC1 and Denovan were lengthy. During jobs when supposed legitimate customers were not present the parties could freely communicate.

In addition to the birthday scenario, scenarios 2 (snowmobile test drive and evening employment), 55 (October 21 vehicle trip and subsequent interview) and 56 (October 22 hiding out in a Regina hotel room and periodic communications with Pearson and UC2) spanned most of the days. [ 124 ] From Denovan’s perspective, the murder allegations arose the late morning of October 21 and he remained with organization members believing the police were looking to arrest him and the organization was working to help with his problem, through his arrest mid-day October 23, 2020.

This duration was about two full days. [ 125 ] The operation was lengthy and intensive. The number of interactions and duration was at the high end of the range described in case law. Nature of relationship between accused and undercover officers [ 126 ] Denovan bonded with the lower level undercover operators (UC 1, UC3). There were frequent expressions of appreciation or familiarity in words and by hugs. [ 127 ] Denovan bonded quickly with UC1, they called each other “bro” and beyond that, Denovan said UC1 was the big brother he always wanted and UC1 acknowledged Denovan as his little brother.

UC1 told Denovan he vouched for him to the organization. Denovan believed he was able to succeed in the organization because of UC1’s trust and support. They discussed their pasts; current problems; and referred to each other as their therapist.

[ 128 ] UC3 befriended Denovan. They shared similar interests. UC3 expressed confidence in Denovan and dangled before Denovan the prospect that he would be a good fit for UC3’s job upon UC3’s retirement. Denovan trusted UC3. [ 129 ] Denovan was glad to see UC5 return to the organization and expressed loyalty to him. [ 130 ] Denovan understood the hierarchy of criminal organizations. He showed instant respect for the lieutenant (UC2) and the boss (or Mr Big) (UC4).

He came to believe in their purported powerful connections, to appreciate their purported confidence in him, and to trust them to help him during his time of need. [ 131 ] Denovan enjoyed all their company and attention and enjoyed working with or for them in legal and illegal activities and socializing with them. Nature and extent of inducements offered [ 132 ] Denovan lived in a well furnished and clean home, with his girlfriend. A roommate lived in the basement. They shared the rent.

UC1 observed Denovan had an older model vehicle appearing to be in good working condition, that he drove (albeit while his license was suspended). [ 133 ] Denovan’s girlfriend was employed but lost her job shortly after the onset of the covid-19 pandemic in March 2020. She became re-employed in the late summer or early fall 2020. Denovan maintained a relationship with her and described her as his “wife”, except for a breakup that appears to have occurred in September 2020. By the time Denovan went to Regina in October 2020 they appear to have been reunited.

She was living in the same home as Denovan on the day of the stim (October 21, 2020) and telephoned Denovan to tell him about the police at their home. [ 134 ] Denovan was working in construction type jobs. He told the undercover operators that money was tight and showed keen interest in getting employment with the organization and not having to worry about bills. He once told undercover operators that there was no food in the fridge during the pandemic shutdown. However, he continued to live in the same home throughout.

As is apparent from the evidence, he had a working mobile phone, decent clothing, and was observed driving an older model vehicle that appeared to be in working order. [ 135 ] He was periodically employed, including on a paving crew during the organization’s purported shutdown. He told undercover operators he made some money buying, fixing up and selling vehicles. [ 136 ] In mid-August 2020 he told UC3 he could no longer do paving because of the tumour on his foot that interfered with his work boots.

Other evidence indicates that Denovan was able to work with the organization without apparent hindrance from the tumour on his foot, including installing flooring, installing a vehicle lift, repairing various vehicles, and building a hidden compartment in a vehicle. He also told undercover operators that he had moved furniture for his father. UC3 worked with him on another occasion moving some furniture at Denovan’s home. UC3 observed him working at the Calgary covert location and moving furniture and testified that the tumour did not appear to affect his work.

He went quadding on his birthday celebration (September 2020) with some of the undercover operators. There is no evidence that the tumour hindered these activities. Denovan told an undercover operator that after moving furniture for his father, he went to the emergency ward for his foot. There is no evidence of the outcome of that visit. [ 137 ] Denovan described various relationships, friendships, and social activities to UC1.

He told UC1 he went trailer camping at some point during the operation’s pause (spring to summer 2020) and sent him a picture about it. [ 138 ] The evidence is consistent that Denovan demonstrated a hard work ethic, willingness to learn, and respect to co-workers and superiors. He was well groomed, reliable, and not apparently impacted by any substance abuse. He was not socially isolated. The evidence indicates he was resourceful and industrious in looking for ways to make money.

He was a survivor. [ 139 ] Denovan was employable but his employment record was unstable during the early phase of the pandemic and he probably had difficulty finding work as many hourly workers did during the initial conditions of the pandemic. He was not eligible for CERB payments because of his child support arrears. Notwithstanding these concerns, he was unemployed by the organization for almost 5 months during the organization’s physical pause, yet was surviving, still living in the same house, and apparently pursuing his activities repairing and selling vehicles and still had his dog.

He was living with his girlfriend throughout most of the operation, including the end of the operation. He told the operators that his girlfriend was employed, that she lost her job early in the pandemic, and that she had got another job in August 2020. UC1 was introduced to Denovan’s roommate and told the roommate shared the rent. [ 140 ] Overall, the evidence indicates that he was not in a realistic danger of becoming impoverished or homeless if he lost his job with the organization and had to look for other sources of income.

The tumour on his foot might have reduced the type of jobs he could obtain, yet he was able to work for the organization without apparent hindrance and he remained employable for a variety of jobs. [ 141 ] Denovan received $10,995 in pay during the approximate 17 weeks that he had part time or regular work with the organization. This would be a relatively significant amount given his circumstances. He benefitted from the payments being in cash given his claims of maintenance enforcement issues.

He received benefits of hotel stays when working out of town; meals; drinks; and birthday gift of going quadding, some alcohol and lap dances. Calgary Police Service paid about $5400 for these goods and services. Late in the operation, the organization agreed to lend him $2000 to help him clear his fines and regain his license to drive. The evidence does not indicate that the loan was ever advanced. [ 142 ] Mr Big presented Denovan a key to the Calgary covert location in a small ceremony on October 20, 2020. This represented acceptance by the boss and he was told there would be more work.

All the attendees cheered Denovan for this accomplishment. Unlike some other cases, Denovan was not promised any specific amount of future work or financial payment. It would have been apparent to Denovan that the organization could also have stability issues because it was forced to shut down on March 24, 2020 for almost 5 full months because UC5’s legal problem had compromised the Calgary covert location.

[143] The stim delivered October 21, 2020 presented a significant threat to Denovan’s liberty. This gave rise to another inducement:the possible solution to his legal problem of being arrested for murder. This legal problem did not impact Denovan alone. The policeincluded a threat to UC1’s liberty in the stim. Denovan probably felt responsible for bringing heat upon his mentor and perceived bigbrother and in turn, upon the organization. [144] Denovan understood that the organization had the means to resolve his problems. He had seen the organization solve UC5’sproblems.

Shortly after learning the police were looking to arrest him for murder, Denovan asked UC1 if UC2 could assist. [145] Shortly after arriving at the Regina covert location on October 21, 2020, UC2 met Denovan and indicated willingness to help.As UC2 had told Denovan before, the organization would help its family. Denovan had been presented his key. He was family now. Theprospect of the organization deploying its purportedly corrupt and violent resources to eliminate Denovan’s problem was a powerfulinducement to disclosing whatever he knew about Obina’s murder.

Presence of threats [146] The threats facing Denovan were the threat to his liberty from the suggestion he was arrestable for murder, and the relatedprospect of losing his relationship and employment with the organization. [147] Were there threats of physical harm or physical reprisal?

Denovan’s counsel submits there are two: first, the implied threat ofthis violent, gun toting criminal organization coming after him for bringing heat upon them; second, the threat that the individuals whohired Denovan to murder Obina would come after him. [148] The organization portrayed itself as tolerating violence, using violence, and assisting members who committed violent crime inthe past.

Denovan was led to believe that the organization tolerated UC5’s past criminal act and remedied his legal problem even thoughUC5’s incident had brought police attention on the organization causing it to temporarily discontinue operations at the Calgary covertlocation in March 2020 for almost 5 months.

Denovan believed UC5’s problem was similar to his own; he had theorized that UC5committed a homicide and when he told some of the undercover officers of that conclusion, no one said he was wrong. [149] An important limit on the violence was that the organization did not direct or threaten violence at its members or suggest that itwould do so. The Court may consider this fact (R v Yakimchuk, 2017 ABCA 101 at para 60). [150] Organization members could be terminated for dishonesty or other cause, but not necessarily so.

The police purported toDenovan that UC5 initially was not forthright to the organization about his incident that led to his legal issues. But he came clean withthe organization, and the organization then went to great lengths to fix his problem by hiding him; creating a false alibi for him; andeventually, bringing him back to the organization in a dramatic way and celebrating his return. Even in these cases, violence was notdirected at the errant member.

Instead, Denovan was told, the organization helps its family. [151] I find that the organization did not lead organization members to fear they were at risk of physical reprisal by the organizationfor their past conduct or mistakes in failing to tell the organization of such circumstances or bringing heat upon the organization.

To thecontrary, the evidence shows the organization helped its family and at worst, a member could be removed from the organization formisconduct or unsuitability. [152] Denovan’s counsel submitted Denovan would have feared for his safety when the murder allegations came to light because theindividuals who contracted Denovan to kill Obina would now come after Denovan. [153] Counsel draws upon the common law duty of police to protect life, including the life of an accused or suspect (eg, R v Godoy, (SCC)); a duty in some circumstances to warn potential victims of dangers (eg, Schacht v R, (ON CA);Doe v Toronto (Metropolitan) Commissioners of Police, (ON SC); aff’d (ON SC) (Div Ct); leaveref’d (ON CA)); and the rationale underlying police informer privilege (eg, R v Leipert, (SCC); R vBasi, 2009 SCC 52 at para 36; R v Barros, 2011 SCC 51 at para 42). [154] Counsel submits that in a Mr Big operation, if police know that disclosing the identity of a murder suspect could make them atarget for violent retribution, obligations arise to protect the accused and their family and friends where they publicly disclose thisinformation; and to stage safety precautions for the target to prevent coercion. [155] Counsel submits that the CrimeStoppers cold case internet posting on October 21, 2020, that was part of the stim and disclosedto Denovan during his interview with UC2 the same day, would have coerced Denovan into confessing to UC2. [156] The posting was to the following effect: On November 3rd, 2017 victim Ron Obina was killed near his home in Ranchlands.

Investigators now believe that the offendersresponsible for the murder were also involved in a vehicle arson of a black Jeep Compass. The fire occurred on November 4th, 2017 atapproximately 4:30 AM in the area of 12 Mile Coulee Road. Two men are believed to be involved in the arson.

Police are seeking anyinformation the public may have about the vehicle arson and the two men involved. [157] If Denovan had been concerned about the contractors or their gang affiliations, he likely would have raised his concerns withUC2, because he believed the organization had powerful means to do the necessary to protect its family. [158] To the contrary, Denovan spoke freely with UC2 and without hesitation about his knowledge of the contractors and their gangaffiliations but did not indicate by words or demeanour that he was fearful of them or had been contacted by them over the three yearssince the murder, even though he believed they were still active in Calgary. [159] Publishing the request for tips on a cold case did not materially change Denovan’s existing exposure to possible retribution.

TheCrimeStoppers publication did not disclose Denovan’s identity or suggest that anyone was cooperating with or talking to police.

[ 160 ] It is unreasonable to infer that Denovan would have been coerced by knowledge that police asked the public for tips in solving a cold case. Nor would the duty of protection proposed by his counsel rise upon publication of such a general request. [ 161 ] I refuse to find on this evidentiary record that the prospect of retaliation by his contractors was a matter of concern to Denovan. Conduct of interrogation [ 162 ] I described the discussions at the outset of the interview earlier (paras 106 - 108 above). UC2 met with Denovan to discuss fixing the problem and told him that before he or Mr Big (UC4) could de

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