R v KF, 2023 ABCJ 279

In the Alberta Court of Justice Citation: R v KF, 2023 ABCJ 279 Date: 20231218 Docket: 230073801Y1 Registry: Edmonton Between: His Majesty the King Crown - and - KF Young Person Restriction on Publication Identification Ban – See the Youth Criminal Justice Act , section 110(1). No person shall publish the name of a young person or any other information that may identify a young person as having been dealt with under the Youth Criminal Justice Act . NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Decision of the Honourable Justice D.G.

Hancock on Voir Dire relating to the admissibility of a witness statement for the truth of its contents [ 1 ] This ruling arises from the application of the Crown to have a prior statement made by a witness entered into evidence in the trial and accepted for the truth of its contents. [ 2 ] KF is charged that on or about January 22 and 23, 2022, he committed Manslaughter in respect of TR; committed kidnapping with a weapon; committed arson; and committed an indignity to a body. [ 3 ] It is the position of the Crown that individuals involved with the Red Alert gang were in a residence at 11833 – 79 street in Edmonton, AB.

TR was lured to the house, possibly because he had “ratted out” a higher up in the Red Alert and was going around saying he was the President of the Red Alert. TR was taken to the basement of the house, shot in both legs and left to die. The shooters returned to the house the next day and discovered whoever had been designated to “clean up” had not done so and that TR was dead in the basement where he had been shot. They proceeded to a nearby gas station, bought gas and poured it on the body and throughout the house and then lit it resulting in an explosion and fire.

The body was discovered when fire investigators using a backhoe removed debris, including the body, from the basement. [ 4 ] KS was recorded in a discussion with an undercover police operation targeting him for the unlawful death of TR, and arson

in connection with the house at 11833-79 Street, Edmonton, where TR’s body was found. [ 5 ] KS implicated the defendant, KF as one of the shooters in TR’s death and one of the people who assisted in the arson to cover up the killing. [ 6 ] KS, at trial, was a reluctant witness, indicated he had no desire to testify, had nothing to say, that drugs and alcohol, as well as being incarcerated and kept in a cell 23 hours a day had altered his mind.

He has suffered from a real or imagined memory loss and will not testify to the matters he disclosed in the recorded discussion. [ 7 ] At trial KS was the subject of an application under s.9(2) of the Canada Evidence Act to allow the Crown the ability to cross-examine their own witness as adverse on inconsistencies between his trial testimony and the earlier recorded statement. The Crown later applied for broader cross-examination on the basis that KS was a “hostile” witness. Both applications were granted. Defence conducted cross-examination.

Both the examination by the Crown and the cross-examination by Defence were somewhat hampered by KS’ non-participation. [ 8 ] The Crown has applied for the admission of the video and transcript as a statement made by KS for the proof of its contents. Evidence Agreed Statement of Facts [ 9 ] An Agreed Statement of Facts was entered as Exhibit #1. Kody Shortneck – KS [ 10 ] KS, the Crown’s first witness, was also charged in the incident. He is currently incarcerated.

When presented, KS refused to be sworn or affirmed indicating he had nothing to say, he couldn’t remember anything, he had used drugs and alcohol excessively and had no memory. The court admonished him that he was there as a witness and that he could answer the questions put to him but first it was required to confirm either by oath or affirmation that he would be telling the truth. He was then affirmed. [ 11 ] Once on the stand, KS continued to assert that he couldn’t remember anything because of drugs and alcohol, however, he did provide some answers when questioned.

The Crown attempted to have him confirm information which he had provided in an earlier statement, however, then applied under section 9(2) of the Canada Evidence Act to be allowed to cross-examine KS on inconsistencies. They later applied to have KS declared a “hostile” witness due to his demeanor, unwillingness to answer, and in essence recanting his earlier information.

Both applications were granted by the Court based on the obvious presentation of KS, appearing to constantly assert his lack of memory of any events due to drugs and alcohol, but on occasion being able to answer; his contradictions in evidence from his previous statements; his refusal to refresh his memory from a transcript provided; and his general demeanor. The Crown then completed their examination and cross-examination and defence proceeded to cross-examine, with no better result. Cyrus Gladue – CG (Little G) [ 12 ] Witness #2 was CG.

CG was also in custody and was also charged with related offences although the court was not advised specifically in that regard. Both KS and CG had counsel who represented to the courts their position regarding their client’s testimony, in relation to protections under the Canada Evidence Act and the Charter of Rights . [ 13 ] CG also expressed reluctance to be sworn or affirmed, indicating he had nothing to say. After the courts admonition he chose to affirm with the eagle feather, which was provided. [ 14 ] CG was questioned about his knowledge of the house that had exploded and gave prevaricating answers.

He was then referred to a transcript of an interview January 29, 2022. His common response was that he had made it all up, didn’t remember, or was high. The Crown applied under section 9(2) to be able to cross-examine their witness and the application was granted with respect to the references in the statement which were the subject of their application. It was again apparent that the witness was not cooperative, was not responsive and was contradicting earlier statements. He was cross-examined by Defence and again was not particularly responsive, although did respond to general questions regarding drug use.

Voir Dire [ 15 ] After the first two witnesses, the Crown applied to have the KS statement entered as evidence for the truth of its content. A voir dire proceeded. [ 16 ] I have outlined below in some detail the evidence of each witness. While this might be seen as unnecessary, I felt it important as the evidence is all called to provide corroboration of the KS statement. [ 17 ] The statement was a video and transcript of KS arriving at the “shop”, being introduced to “the boss”, “OG” (UC Devon) who might be able to fix things for him.

KS and OG proceeded into OG’s office where KS was encouraged to tell OG the whole story. KS was reminded that his story had to be complete, and that it had to be the truth, or OG would not help him. There is no suggestion of

“inducements”. KS had been given small jobs in earlier scenarios for which he was paid a small amount. It was made clear to him that he was not going to be a member of the organization – “you just don’t walk in here”. The only benefit he was going to get was to get the police off his back, getting his problem fixed. It was made clear that there would be a fee. UC Devon [ 18 ] UC Devon was called as the first witness in the Voir Dire . A Criminal Code s.486.1 application was made to have him give evidence under his undercover name and number, UC Devon #8698.

He is an under-cover Edmonton Police Service Officer. [ 19 ] UC Devon described an undercover operation titled Project Hover, in which the target was KS. He described the project as a technique used to gather information about a party, “a target”, about a crime. This was described as a short project. They are usually a lot longer. It involved a number of “scenarios” designed to build trust and to ensure that the “target” doesn’t have diminished capacity, has a “sound operating mind”, doesn’t have vulnerabilities.

It is set up “like a play”, they “craft a scenario”, “make the target believe in an objective”, “in this case, that we could fix his problem.” The project was set up to have another UC officer befriend KS, get him to talk about the crime being investigated, and then introduce him to UC Devon as a “fixer”. UC Devon was portrayed as a member of a non- violent criminal organization primarily interested in stealing cars, but that he had contacts and resources such that if KS told him everything – he might be able to clear it up.

As an example, if KS could get the gun he used, they had a “melter” large enough to get rid of it. [ 20 ] UC Devon testified that in his opinion KS was sober. At the beginning of his “interview” he poured KS a glass or a glass and a half of “Hennessey”. Later he indicated KS had a beer over lunch. His evidence was that he believed KS was not on drugs, and that he “constantly assessed for diminished capacity”. Under cross-examination he indicated he had training in psychological and physiological observation for drugs and alcohol.

He observed that drugs affect the central nervous system, and the effect can be observed in the pupils of the eyes. He was confident that KS was not under the influence and, in response to a question from Defence counsel about accelerated speech, did not agree that KS’ speech, as observed in the video, was affected. [ 21 ] In the course of discussion with KS, UC Devon had him to draw pictures of the house layout where the crime took place, as well as a dumpster location where KS indicated he had disposed of what I understood to be a shotgun shell.

Photos of those drawings were entered as Exhibit V-1 in the Voir Dire . The purpose of the photos was to show that KS knew where the body was located in the house. While KS described getting rid of the shell in the dumpster, there is no evidence of the shell being found. [ 22 ] After the meeting, UC Devon and UC Phil drove KS to Maskwacis. During the drive, KS searched Facebook for pictures. Exhibit V-2 was entered showing four photos, three of which were photos taken of pictures on a cell phone.

UC Devon identified them as being photos KS had provided of Facebook searches “K Glizzie” and “J.D.”. “He identified the person on the left as K Glizzie.” UC Devon indicated that KS never showed him a photo of K Glizzie without a mask. The shotguns were identified by UC Devon as having been described as the ones used in the killing of TR. Constable Briegel – KF Arrest [ 23 ] Cst. Briegel of the Edmonton Police Service was called next.

He had been on patrol near the Colliseum Transit Centre on February 16, 2022 when he observed a male and female in the transit centre while not wearing masks, in contravention of the C ovid health protocols in place at the time. He conducted a stop and identified the male as KF. He located a loaded sawed-off shotgun in KF’s backpack, as well as a pair of brass knuckles on his person and arrested him. The shotgun was a Remington 870 12 gauge, loaded with 4 rounds in the chamber. He recorded the serial number of the shotgun as RS76403B. Two other members came to assist and transferred KF to the holding cells.

A Detainee Property Report was prepared identifying what KF had on his person when detained. Referring to his DPR, it was identified a cell phone, 3 lighters, 2 Bluetooth speakers, decorative eyeglasses nonprescription, bus pass, another lighter, shoulder bag, watch, vanilla bank card, phone charger, flashlight, laces. Cst Briegel had a phone call with Detective Scott, who advised he would be coming to seize some of the items, including the cell phone and that an ident services member would be seizing the shotgun and some other personal property.

Clifford Hudson- Yellow Cab [ 24 ] Clifford Hudson was called to provide taxi information which the police had requested. He was employed by Yellow Cab, owned by Greater Edmonton Taxi Service. His position is “driver relations”. He investigates complaints. As such he has access to records, can look back at fares history for two years. Records are digital.

Dispatch records show when a call comes in, when it is dispatched, when the driver accepted it, when he arrived, when he turned on the meter, when he finished the fare, a GPS tracking of the fare, showing which driver, what car number, the phone number of the customer, and, depending how the trip was requested, it may also have the name of the passenger. [ 25 ] Mr. Hudson was requested by police to look into cab # 313. He researched the trip to make sure it matched search criteria, and secured camera footage from the cab.

He identified several pages (marked as Exhibit V-3) including a photo captured from the cab’s camera, a screenshot of the data record of the trip showing Cab 313 was called for a trip from 11849-79 Street and turned his meter on at: 00:40:24 on January 23, 2022. The call had come from telephone number 780-203-5865. Three pages showed maps created from the GPS data showing the trip. There were three additional photographs of the passenger. [ 26 ] He was also requested to provide data re Cab #303 and identified pages 2-8 (marked as Exhibit # V-4) as showing two partial data sheets.

The requested pickup was at 10414 -77 Avenue. It was called on January 23 at 3:10:09 but not engaged. Called again at 3:19:11 and again no passenger. The fare was picked up at 03:25:42 and dropped off at 03:39:32 at “[GPS Approx] 11849 – 79 Street, NW”. The document also contained maps showing route, but did not have pictures of the fare as they did not download the camera on

time. [ 27 ] A video was played showing the inside of a cab. Mr. Hudson identified it as the video footage he retrieved from the taxi (Cab #313). The video was entered as Exhibit V-5. The first clip was the rear facing camera. It showed the passenger in the cab throughout the duration of the trip. A second clip played a shorter video of the end of the trip from the front facing camera. WW [ 28 ] The Crown then called WW. He was also in custody, but apparently not on related matters. He also indicated that he wasn’t saying anything, didn’t want to be in court.

The Court admonished him as well that he could determine how he wished to answer questions, however, he needed to be truthful and that an oath or affirmation was required. He was then affirmed. [ 29 ] WW confirmed he had a partner, BJ. He would not confirm the address of the house they lived in, nor did he recall what happened to the house. He confirmed he was a member of the gang, Red Alert. In January of 2022 he “took a beat”, “something was said, my name got brought up”. After that, he was no longer in the gang. He got a “minute”. He was beaten up by gang members which was a way of putting him out of the gang.

He “didn’t remember” where it happened, or who administered it to him, or whether he was injured. He changed residences right after. [ 30 ] When confronted with a statement he allegedly made on September 22, 2022 to refresh his memory. “I don’t recall the statement, I wouldn’t recall”.

When asked whether he knew K Glizzie, he said no, and when asked if he would refresh his memory from a statement he declined, indicating he had no memory of making a statement. “I never discussed anything like that and never made a statement like that”. [ 31 ] Crown made a section 9(2) application to cross-examine his witness as adverse with respect to certain contradictions to the September 22 statement. Defense acknowledged the statement without having to call Detective Scott.

Three specific portions of the statement were acknowledged by defence at page 6 (doesn’t know what became of the house), page 9 (JD was his higher up) and page 26 (didn’t know K Glizzy). The Crown had others, but agreed to proceed on those. The Court agreed that the application would be granted with respect to those three items. [ 32 ] After some cross-examination based on the ruling, WW agreed that the house exploded, wasn’t aware of address, and was aware later that a body was recovered. He stated that he did not know there was a body.

When asked if one of the people living there with him was JD, he indicated he did not recall making the statement, he did not want to review the statement, did not remember too much of what happened around that time. He acknowledged that he had been in Red Alert before he was “jumped out” but did not agree that JD was his higher up – he had lots of higher ups. When asked about K Glizzy, he indicated he did not know K Glizzy, knew a lot of K’s but not that name.

He did indicate that there were a number of people at the house, but “did not remember” who was involved in his “minute”. [ 33 ] The Crown then applied to have the witness declared hostile to allow for broader cross-examination. The basis was primarily based on his demeanor, his blanket “lack of memory” of the statement given to Detective Scott, and a refusal to review the statement to refresh his memory. Defense opposed the application. The witness is not charged in the same matter and not adverse in interest and is indifferent (my word) rather than hostile.

The Court allowed the application. [ 34 ] On additional cross-examination, WW acknowledged he was living in the house with his partner. He did not agree that JD was his higher up in Red Alert, he had many higher ups. In response to all other questions, he responded “I don’t remember”. He did acknowledge that after his beating he and his partner left the house. He was texted about clean-up at the house, but as he was no longer in Red Alert, did not comply.

Evidence did not disclose who requested the “clean-up”. [ 35 ] On cross-examination by Defence counsel, WW indicated that he got into the gang in the same way he got out, a beating. He also agreed that if you want to get in you have to show that you put the gang before yourself. He remembered living in the house on 79 th Street, but indicated no personal knowledge of the fire, explosion, or body at the house. Detective Scott – Chief Investigator [ 36 ] Crown then called Detective (currently Acting Staff Sargeant) Scott of the EPS. He indicated he requested the taxi records referred to earlier.

The identity of the cabs had come from video they recovered and from cabs called by a certain phone number. [ 37 ] After the body was discovered and cause of death at autopsy was determined to be gunshot wounds, the matter was turned over to the homicide division and Det Scott became involved. He indicated he interviewed a Corrigal (witness to be called later), WW, BJ, CW, (house on the corner of 119 th Avenue and 79 th Street) and a number of other neighbours.

Security footage was obtained across the street and facing towards 11845 – 79 th Street. [ 38 ] He indicated that the phone number 780-203-5865 was familiar. It was used to order a cab to pick up a person identified as KF in the evidence described above. He did not indicate how he connected the number to KF. He had searched for KF on the police database, became aware he was in custody, and learned about the shotgun that had been seized. He indicated he was interested in the gun as “it had been determined to be the shotgun that caused one of the gunshot wounds” to TR’s leg.

On further questioning it was clarified that the identification of the gun was primarily due to the use of birdshot that can only be shot from a shotgun. He identified a picture of the shotgun (Exhibit V-6) and requested Cst. Pyka to seize the shotgun. No evidence was led to show it had been determined to be the shotgun that caused one of the gunshot wounds. Other items seized form KF that were of interest included rounds of birdshot ammunition, and a cell phone. He just received a copy of the cab photo from another officer when he was with the constable who arrested KF. Cst. Briegel identified KF from the photo.

The JBL speakers and a black Champion satchel seized from KF also compared

to what was with KF in the cab photo and with what was seized from KF on his arrest. Pictures were entered as Exhibit V-7 and V-8). [ 39 ] The investigative team made a decision to engage KS in an undercover operation. The decision was made on March 3 rd when Scott had an initial meeting with UC operators. KS was arrested March 3 rd unexpectedly on another matter. Detective Grewal was consulted and the decision was made to proceed. UC Phil was “arrested” and placed in the cell with KS. [ 40 ] Det.

Scott indicated that holdback evidence included the nature of the gunshot wounds and the fact that there was a second gunshot wound to TR’s other leg. However, during testimony it became clear that initially the autopsy only identified one gunshot made with birdshot. Scott indicated that he received information from KS that there was a second shot and he followed up with the Medical Examiner on March 3 rd as a result of a disclosure made by KS to undercover officers. The Medical Examiner then confirmed two gunshot wounds, one from birdshot, the second being a “pass through wound”. [ 41 ] Det.

Scott also testified to participating in “Scenario 7” of the undercover operation. In Scenario 7, KS was released from remand and picked up by UC Phil, the undercover officer who had befriended him. After they left the remand, Det. Scott stopped them and indicated to KS that he was coming after him with respect to the murder of Chooch, TR’s street name. [ 42 ] On cross-examination, he was asked about the shotgun seized from KF on February 16 th . It was confirmed that Det.

Scott knew on that date that a shotgun with birdshot had been used in the crime, but did not know if it was the gun seized from KF. [ 43 ] On March 3 rd there was no recording or transcript of the information provided by KS to an UC officer placed in his cell, as there was no warrant authorizing recording at that time. The purpose was stated to be to make an introduction, not to extract a confession. The UC officer would be released just before KS was to be released, giving him the opportunity meet and to create a connection outside the cells. [ 44 ] With respect to the gunshot wound(s), Det.

Scott indicated that he called the Medical Examiner who had performed the autopsy. He disclosed the information learned from KS and asked about a possible second gunshot wound. The Medical Examiner called back later that day confirming the second shot and that the death was characterized as a homicide. [ 45 ] Regarding the UC operation, Det. Scott advised that he had requested a budget of $1,000.00 for the operation, but was uncomfortable with answering questions as to how the money was used as he was not one of the UC operators. CW - 11849 – 79 th Street [ 46 ] CW attended.

She advised she lived at 11849-79 th Street in Edmonton. Her house was on the corner of 79 th Street and 119 th Avenue. The house that exploded was a few houses south. She knew TR, also known as Choo Choo, for 6 or 7 years. (Probably on the day in question although she prevaricated about whether she had last seen him two days prior to the explosion or whether it was the same day), she asked him to leave her house because he was being annoying ( i.e. saying he had a radio up his butt). Her description of his behaviour suggested that he had mental health issues.

He said he was a part of the Reds but she didn’t believe him. He said he was the leader. She didn’t believe it and asked him to stop saying that so he didn’t get into trouble. He had been there for hours (4). At other times, her evidence was that she last saw him two days prior to the explosion. She referred to the house that blew up as Tikka’s house. [ 47 ] She indicated that after TR left her house she saw him meet someone on the corner. She indicated she had only met the other person once, only seen him twice, couldn’t identify him. (Video time stamps identified this as the day of the murder.

She later identified him as “the younger one” possibly connecting that description to KF. She indicated she did not know KF, but had met him a couple of times and seen him a few more times. [ 48 ] She recalled providing a statement to the police.

She did not want to review the transcript – she lost her mother, her husband had been in hospital, she is homeless, been through a lot of things. “I don’t know anything to say, I know I kicked him out of my house, I know he was a friend of mine, I know this Banks person made a statement about me.” [ 49 ] She then had an outburst, “Do you care what is going to happen to me when I leave? No you don’t. As long as you win!” When asked, “What is going to happen to you?” – “Nothing!” “Has anyone threatened you?” – “No!” [ 50 ] CW returned and again took the stand.

At this stage it seems from her evidence that she had last seen TR a few hours, a couple of hours before the explosion. “Wheels” lived next door. She was asked to view video clips from the CCTV security camera across the street, and identify anyone she saw. She saw a person walking from right to left she identified as herself (8:17). At 8:18 a person left her house, turned right and stood at the corner. She did not recognize the person. Someone walking right to left appears to be wearing a red backpack. At 8:20, two men on the corner proceeded east on 119 th Avenue.

CW had not identified a “red backpack” or the gender of the people. (8:24:37), somebody emerges from CW’s house. She indicated it was her going to the store. At 8:29 am, a person is seen walking right to left northbound on 79 th Street. CW identified it as her coming back from store. Crown then directed CW’s attention to a corner of the screen on the extreme right hand side (the area which would have been right next door to the subject property.) She indicated that she did not see anything, she saw something moving. She did not see two persons, the crown asked her about seeing two persons but she did not agree.

Defence objected at that point to Crown leading the witness. [ 51 ] Crown applied to be able to cross-examine their witness due to inconsistencies between her evidence in court and what she had stated when interviewed July 21, 2022 (for which there was a transcript) and August 3 (for which there was a video but no transcript). Crown identified a number of alleged inconsistencies between CW’s testimony and what she said in the July interview, regarding knowing K Glizzy, meeting Banks, who Choo Choo met on the street. [ 52 ] Video 11:38 – (recording time stamp on recording of August 3 video).

Times that Detective Campeau calls out are the times

on the CCTV being viewed (6:17:13 – actually 8:17:13) the Crown’s allegation was that CW – seen walking right to left and entering her house, then a person leaves – she identifies that person as Choo Choo. On the witness stand she had not been able to identify the people.

Crown was allowed a limited cross-examination, although the Court was concerned that there were not inconsistencies so much as new evidence based on the viewing of the video in court versus what she may have seen when she viewed the video with the Detective. [ 53 ] CW complained that she had had a difficult year, been beat up, been in hospital, lost her house, her mother died – her memory was not good. Observing her testimony she was clearly confused. She spoke of TR after the fire when asked about prior to the fire. He left my house – the next time I saw him was in the bucket.

Crown emphasized her evidence in her statement was that she had last seen TR two days earlier. Then asked about seeing TR on the street, on the corner. Then that she had seen him on the street. She insisted that she had seen TR with someone on the corner. That it may have been K Glizzy. When referred to portions of the video transcript she could not or would not respond. She then said she did not see TR at Tikka’s house, or on the sidewalk outside Tikka’s house but on the corner.

She was also confused in the transcript as to whether it was Banks or K Glizzy that she saw with TR. [ 54 ] Detective Campeau went through a number of clips from surveillance video from across the street. Crown played an interview with Det. Campeau (11:43:32) for 4- 5 minutes. Detective Campeau says that’s at 6:24, the one where they are walking. CW identifies herself, Detective says that’s you walking toward Tikka’s, at 6:28 we see two people in front of Tikka’s House (Court’s note: Tikka’s House is not in the video, just out to the right), then there is a person that passes them (that’s me). Focus on those two.

Just talking right by Tikka’s house, there’s a vacant lot. Now you’ve passed them for one minute, they are still there talking (I don’t know how you see them). I wouldn’t have even noticed there was people there. There is going to be something very distinctive... do you see the red backpack? (she says red backpack at about the same time). Crown asked if she agreed she told Detective Campeau it was TR and K Glizzy.

She said she had only seen him on two occasions “if I said six I was wrong”. “Not the way it happened I’d only seen him”. “You were shown a portion of the surveillance video you identified that one of them was wearing a red backpack”. “You crossed your arms, leaned in and said K Glizzy and Choo Choo”. “I was agreeing with him, I wanted out of there, I was in pain, I ended up in hospital after that”. “After nine hours of watching videos.” “I said it because he said it!” “I know it was Choo Choo, but K Glizzy he was the one that said that name”. [ 55 ] On cross-examination by Defence, “ I was doing drugs on that day.

Since then I have stopped.” “On the day of the interview in August what was your ability to be truthful and accurate?” “I was a drug addict doing drugs the night before, never slept”. “K Glizzy, met him twice... heard his name multiple times... never introduced... I believe they introduced him with his real name... I can’t remember his real name... Meth use had lots to do with why I was out and about at all hours,... was assisting Tikka moving.

CW then said she recognized herself from the blonde hair, “that’s how I knew it was me, the blonde hair”. [ 56 ] Were the portions of the video where you were not present, were you, with the police officer, trying to piece together what you thought might be in the video? “They were trying to charge me with assisted murder.” The murder of TR. “Before you commenced that interview you were afraid that you were being wrongly accused of being an accessory to the murder of TR?” “Yes.” In the July interview she indicates that TR was talking with either Banks or K Glizzy, but confirmed to counsel that she was guessing.

She mentioned a number of times that she was answering what she thought they wanted to hear because she wanted to get out of there. At other times she said she was trying her best to tell the truth. [ 57 ] She confirmed that she has known TR for a long time. She has done drugs for a long time. She acknowledged to buy and use drugs she had to be around people who do illegal activity. She acknowledged becoming concerned with what TR was saying in January of 2022. If you say something, whether true or not, it can put – your safety would be put in jeopardy. Worried that TR’s safety was in jeopardy.

No matter how much you tell him not to say it, he would do it more. [ 58 ] CW, on prompting from defence counsel, acknowledged she had difficulty remembering the events of January, 2022, and was trying to piece things together. Even in July, 2022, she was having to fill in some parts. [ 59 ] On redirect, CW confirmed she could tell the difference between young and old. K Glizzy was younger. “It was younger with TR”.

With respect to the contrast between her evidence that she was doing her best to try to tell the truth with her statement, but also her evidence that she was giving answers to try and get out of there. She really did not clear it up but digressed to say she had been drinking. Crown also directed CW’s attention to who used the name K Glizzy first, and went to the transcript to direct her attention to a portion where the detective showed her a picture and identified it as KF, where she identified it as K Glizzy. [ 60 ] CW’s evidence was taken in segmented portion.

She did not show up initially, then arrived hours later, did not return as required, then again showed up later. Detective Grewal [ 61 ] Detective (now Staff Sargeant) Grewal was called. He described himself as one of the task investigators. He conducted an interview with KS on March 3, 2022. That was the first interview. He described KS as indicating he was not feeling well, coming down with something. KS was checked out by paramedics prior to the interview.

He ascertained that KS was able to proceed with the interview based on what the paramedics told him: “sober enough to understand what was being discussed” from general conversation, both to determine his ability to engage and to build rapport. It was not a planned interview. The arrest of KS had been unexpected. It was a 5.5- hour interview. [ 62 ] Prior to speaking with KS, Det. Grewal had interviewed KF and CG. He was made aware by CG that KF was also known as K Glizzie. He had been provided with photographs by police analysts.

He identified that the photographs (Exhibit V-9) depicted KS, CG, Shukedowski (sp?) (JD) and KF at the bottom. [ 63 ] In evidence Grewal asserted that at no time over the course of the March 3 rd interview did he advise KS of the cause of death of TR. He could not recall whether he disclosed the alleged involvement of KF, but indicated he would definitely have brought up names given to him by CG. He confirmed that he interviewed CG on January 29, 2022. CG was distraught that he had been arrested, crying

throughout the interview, denied being involved and that he had been made to do a few of the things that he did. Grewal’s opinion was that he came across as sober, as ascertained from his experience with people under the influence and the questions and responses, answering all the questions, understanding why he was there. [ 64 ] Grewal was tasked with reviewing CCTV footage taken from neighbourhood residences. In particular, video footage was captured from the house across the street from the house that was burned (but capturing footage of the street north of the actual house involved, not the house itself).

Exhibit V-10 was introduced as a document prepared by Grewal, depicting a red box showing an approximation of the video range of the CCTV. The bottom image showed a picture of what would be seen from the camera with 11845 outlined in red. Grewal indicated that another person would be tasked with the actual retrieval of the data from the camera. Peter Ng provided the data to him for his review.

He identified the USB on which the data (videos) were provided. [ 65 ] Videos from the CCTV were played and Grewal identified the time as 12:38 not 2:38, as he had been informed by the IT personnel that the time on the camera was 2 hours fast. He identified a Yellow Cab on the street at 12:40 am. He identified that a person exited the cab and went into the rear of 11845 – 79 th Street. After further video viewing Grewal was directed to the house and confirmed a light was on at the side of the house.

Grewal had made a note of particular moments of interest in the videos, which in his view depicted a male coming from 11833 going to back of house, shopping cart with propane tanks and stuff, going through alley to 11833. At one point a flash of red was seen on the edge of the video which was indicated as the explosion at 11833. [ 66 ] Screenshots were taken from the video. Three pictures – screenshots, were identified showing an individual leaving cab 303, trying to capture the cab number and face of the individual. They were entered as V-11, V-12 and V-13. Det.

Grewal confirmed that all the clips played – 9 in total – were what he had viewed from the CCTV video obtained. The USB was marked for identification and later entered as Exhibit V-14, after identification by the IT analyst Peter Ng. [ 67 ] On cross-examination, he acknowledged that he received the video on January 27 th . The task of reviewing was assigned to him January 28 th . The review took probably 2-3 days. It was an urgent task, so would have been done on a timely basis. His interview with CG was on January 29 th . When the video was seized he was aware of the explosion and that a body had been found.

Interviewing CG, he advised that he had been involved with a couple of individuals obtaining gasoline and possibly propane tanks. He knew they were going to set the house on fire and that he would receive some Meth for his assistance. He described jerrycan and videos and indicated it was himself and two other individuals who were participants. Det. Grewal had that information before he concluded the review of the videos. At the time of the interview CG had been advised he was detained for arson and murder. [ 68 ] Det. Grewal also acknowledged doing two interviews with KS.

At the time of the first interview he acknowledged the information he had prior to the interview and that the names KF and K Glizzy would have come up. [ 69 ] Det. Grewal acknowledged also doing an interview with KS on July 8 th . He had been arrested the day prior, but at the time of his arrest was so intoxicated that he might not be in a fit state to understand his rights. Other (EPS) members went over his rights, etc. the following day and after that Det. Grewal did the interview. The interview was done at the Detainee Management Unit and Det. Grewal was identified as a police officer. KS denied knowing TR.

He requested drugs and alcohol a number of times in the interview. He said that he told OG (identified by Det. Grewal as one of the UC Officers) lies. KS confirmed his membership in Red Alert as a “Sticker”, one step below a “full patch member”. He identified “quite a number of people” who he said were in the house at the time. [ 70 ] The name K Glizzy came up in March and again in the July interview. Det. Grewal was cross-examined about statements made by KS that when he first met K Glizzy, K Glizzy had tried to shoot and stab him. Further questioning Det.

Grewal indicated that KS was saying that he was being blamed because he was the “young one”, presumably the most recent member. Det. Grewal confirmed that it was KS who first raised the name K Glizzy – after he had been provided with the pictures (V-9). Peter Ng [ 71 ] The Crown then called Peter Ng, a civilian employee with EPS, as a video field technician for forensic video analysis detail, in the forensic sciences branch. His main job is to extract video from crime scenes. He confirmed that he extracted the video from 11848 - 79 th Street. He started by checking the live time stamp, which was two hours fast.

He provided the USB containing the extracted video to Det. Grewal. The USB was then marked as Exhibit V-14. UC Phil [ 72 ] UC Phil was then called. UC Phil also testified under a s.486.1 application to protect his identity as an undercover officer. He confirmed that he was involved in an undercover operation aimed at KS to get information about the crime. His role was to become KS’s friend. He was involved in 7 of the 8 scenarios and had the most contact with KS. He confirmed that the “Major Case Technique” was used, but that it was a shorter version.

He had some training and studied the R v Hart case, and was made aware of the pitfalls and dangers of a Mr. Big operation. He identified the concerns as entrapment, ensuring the contact was not under the influence of drugs and alcohol, was not vulnerable, and there was not excessive use of force. Throughout each scenario UC Phil indicated he was aware of the pitfalls and the need to ensure capacity was there. Inducements are not tolerated or allowed. “Cannot be done and we don’t do”. Target payment usually related to a job, never for information.

He also indicated that most of the time they don’t show violence, they portray an organization that has criminality but is not violent. [ 73 ] UC Phil described creating an atmosphere of friendship, building trust. At some point he disclosed that he was part of an organization. It was never held out to KS that he could join the organization or be a trainee. [ 74 ] Scenario 1 started March 1. It was his first interaction. He was in the same cell and started conversation. Waited for him after

he was released and when KS was released he met him and they went for something to eat. UC Phil indicated that KS started immediately to tell him about why he was in custody. In relation to fire where dead body was found, him and his friends brought a dry snitch to the house, he was shot in left leg, birdshot and slug were used, asked someone to clean up but learned later the fellow they shot was dead, they went back to the house and burned it. UC Phil testified he had not offered anything other than a ride and some food, just asked him a normal question.

UC Phil had not disclosed any violence that he had done, nor did UC Nick who was with them. He did not ask anything to “prove himself”, he just asked what he had done and KS told him. UC Phil testified that KS was definitely sober. They got some food, gave him a job – to receive a call for him, got a phone, drove him to 95 th Street and 115 th Avenue and dropped him off. He was to answer any calls and let UC Phil know. [ 75 ] Scenario 2 was on March 7 th . He called and asked KS to hold the phone a little longer and that he would be paid. He met another UC with a friend.

Phil contacted and told him not to show up with any friends. Phil was advised by “Sheri” that KS was in remand after an arrest for a stabbing incident. [ 76 ] Scenario 3 was on March 29 th and involved again befriending. He provided $20 for the canteen. KS identified his “boy” who was identified as Soosay Bull (not otherwise mentioned). [ 77 ] Scenario 4 was May 19 th . A letter was sent to ERC for KS, to keep the conversation going, send him another job. Made to look like a letter from lawyer but including a message for him to call.

The rationale was to get the letter past the guards in ERC, would not be opened or checked. “We asked him to look for a friend” (made up). KS reported back that he did not find the friend. That was just to build trust to see if he would carry out a task. [ 78 ] Scenario 5 was on June 10 th . UC Phil scheduled a visitation with KS at ERC. These were video visits, approximately 35 minutes. Spoke with him about what he was doing. He mentioned release on June 15 th .

UC Phil offered to pick him up if he needed a ride. [ 79 ] Scenario 6 – June 22 nd , he explained he was being released because there was no complainant in his stabbing incident. UC Phil asked that KS vouch for him to UC Phil’s boss. They had arranged for KS to see cash being confiscated from UC Phil when he was arrested. He wanted a report that he had not stolen the money, that it had been confiscated. He responded when asked that there was no discussion of consequences, it was just about reputation. KS was offered $600 to vouch for UC Phil.

Under $150 was given to KS through the canteen system and for holding the phone. UC Phil emphasized that in the “family” there were no lies, “trust is one of the most important things”. [ 80 ] Scenario 7 was on June 23 rd . Received a call from KS indicating he was to be released. UC Phil went to ERC to wait for him and pick him up when he came out. There was a camera in the car. [ 81 ] Video from the car was played (June 23 starting at approx. 15:34). [ 82 ] After viewing the video UC Phil was questioned. He described KS as sober and happy to be out. They were stopped shortly after leaving by Detective Scott.

As Scott testified, he addressed KS and said he was “coming for him”, presumably creating an atmosphere where KS would be put on edge and be more amenable to receiving help. UC Phil then proceeded to take KS for a drive and they chatted. During that time KS disclosed information about the events at the house. Some of the information provided contradicted information KS provided later (who shot the birdshot/who shot the slug) some contradicted other evidence (CW brought TR to the house; K Glizzy met TR on the corner and brought him back to the house). Constable David Choi [ 83 ] Cst.

David Choi was called and confirmed that he had made a stop with the taxi behind the residence at 11849 – 79 th Street on the night before the fire. He confirmed that the two people in the cab were KS and CG. He also confirmed that there was a jerrycan of gas, possibly grey and blue. He only observed the jerrycan and not any propane tanks or motor oil. He had no contact with KF. He did not recall seeing the two later, but when directed to his report he indicated he had seen the same two individuals later in the same alley near 11833 – 79 th Street between 2:00 and 2:15 am on January 23, 2022.

Constable Campeau [ 84 ] Cst. Campeau testified with respect to the download from a phone seized from KF on the arrest February 16. The phone number was 780-203-5865, the same number used to call the cabs mentioned earlier. While it was in the possession of KF, records downloaded (Exhibit #16) indicate several users other than the accounts of K Lizzy and K Lizzy Cortes. Pictures, the same as the Facebook screenshots identified earlier, were located (Exhibit #17) as were a number of text messages (Exhibit #18), all of which indicate that KF was a user of the cellphone.

Allan Sirack [ 85 ] Allan Sirack, an employee of Telus, was called in relation to records under a production order for telephone number 780-203- 5865. The phone records (Exhibit V-20) indicate that the cell was in the vicinity of the house at 11833 – 79 th Street at the relevant times. This is ascertained from the location of cell towers used, etc. The phone does not have a registered owner. Telus data shows it to be a phone used by a Telus employee.

Law and Analysis [86] As noted above, the Crown has applied for the admission of the video (the “statement”) created during the undercoveroperation Hover created when UC Devon met with KS on June 23, 2022, for the proof of its contents.

The statement involved adiscussion between KS and UC Devon in “Devon’s office” at the warehouse where UC Phil had taken KS to meet his boss “OG” whocould fix things for KS. [87] The statement is, by definition, hearsay and inadmissible, unless it falls within an exemption from the hearsay rule. [88] The Supreme Court of Canada has developed a principled approach to hearsay allowing exceptions in situations where theevidence is necessary and reliable.

The issue of the proper use of undercover “sting” operations has also been the subject of SCC review.The question of admissibility of the Statement is to be determined in a voir dire. [89] A number of relevant cases were cited which outline the establishment of a principled exception and its application. [90] In R v Khan (SCC), [1990] 2 SCR 531 at p. 546, McLachlan, J, writing for the court: “The first question should be whether reception of the hearsay statement is necessary. Necessity for these purposes must be interpreted as“reasonably necessary”. ...

The next question should be whether the evidence is reliable. Many considerations such as timing, demeanor, the personality of thechild, the intelligence and understanding of the child, and the absence of any reason to expect fabrication in the statement may berelevant on the issue of reliability. ... The matters relevant to reliability will vary with the circumstances, and are best left to the trialjudge. In determining the admissibility of the evidence, the judge must have regard to the need to safeguard the interests of the accused.

In mostcases, a right of cross-examination such as that referred to in Ares v Venner, would not be available. ... I add that I do not understand Ares v Venner to hold that the hearsay evidence there at issue was inadmissible where necessity andreliability are established only where cross-examination is available. ...

In R v Smith (SCC), [1992] 2 SCR 915 per Lamer, CJ at page 932: What is important, in my view, is the departure signalled by Khan from a view of hearsay characterized by a general prohibition on thereception of such evidence, subject to a limited number of defined categorical exceptions, and a movement towards an approachgoverned by principles which underly the rule and its exceptions alike.

The movement towards a flexible approach was motivated by therealization that, as a general rule, reliable evidence ought not to be excluded simply because it cannot be tested by cross-examination.The preliminary determination of reliability is to be made exclusively by the trial judge before the evidence is admitted. This court’s decision in Khan therefore, signifies an end to the old categorical approach to the admission of hearsay evidence. Hearsayevidence is now admitted on a principled basis, the governing principles being the reliability of the evidence, and its necessity. ...

The criterion of “reliability” – or in Wigmore’s terminology, the circumstantial guarantee of trustworthiness – is a function of thecircumstances under which the statement in question was made. If a statement sought to be adduced by way of hearsay evidence is madeunder circumstances which substantially negate the possibility that the declarant was untruthful or mistaken, the hearsay evidence maybe said to be “reliable”, i.e. a circumstantial guarantee of trustworthiness is established. ...

The companion criterion of “necessity” refers to the necessity of the hearsay evidence to prove a fact in issue. .... ... the criterion of necessity must be given a flexible definition, capable of encompassing diverse situations. What these situations willhave in common is that the relevant evidence is not, for a variety of reasons, available. Necessity of this nature may arise in a variety ofsituations.

Wigmore, while not attempting an exhaustive enumeration suggested at para 1421 the following categories: The person whose assertion is offered may now be dead, or out of jurisdiction, or insane, or otherwise unavailable for the purpose oftesting [by cross-examination]. This is the commoner and more palpable reason ... The assertion may be such that we cannot expect, again or at this time, to get evidence of the same value from the same or other sources... The necessity is not so great; perhaps hardly a necessity, only an expediency or convenience, can be predicated. But the principle isthe same.

Clearly the categories of necessity are not closed. .... Whether a necessity of this kind arises, however, is a question of law fordetermination by the trial judge. Taking the development of the principled exception further, in R v B (K.G.) (SCC), [1993] 1 SCR 740 at p. 741, theSupreme Court, per Lamer C.J. (as summarized in the

preamble) said: The time has come for the rule limiting the use of prior inconsistent statements to impeaching the credibility of the (the “orthodox rule”)to be replaced by a new rule recognizing the changed means and methods of proof in modern society. ... a reformed rule would not violate the charter, the existing rule has been attenuated by developments in the law of hearsay and issomewhat, if not overly, technical, and reforming the rule would not directly expand the scope of criminal liability.

… A reformed rule must carefully balance the accused’s interests in a criminal trial with the interest of society in seeing justice done. Since the orthodox rule is an incarnation of the hearsay rule, a reformed rule must also deal with the “hearsay dangers” of admitting prior inconsistent statements for the truth of their content – namely, the absence of an oath or solemn affirmation when the statement was made, the inability of the trier of fact to assess the demeanour, and therefore the credibility, of the declarant when the statement was made, and the lack of contemporaneous cross-examination by the opponent.

At p. 784, Estey specifies: prior inconsistent statements will only be admissible if they would have been admissible as the witness's sole testimony. That is, if the witness could not have made the statement at trial during his or her examination-in-chief or cross-examination, for whatever reason, it cannot be made admissible through the back door, And at p. 791: the best indicium of reliability on the principled approach of Smith in the case of prior inconsistent statements is that the statement, to be substantively admissible, has been made (

i) under oath, solemn affirmation, or solemn declaration, and (ii) following the administration of an explicit warning to the witness of his or her amenability to prosecution if it is discovered that he or she has lied. This indicium satisfies the first hearsay danger entirely: in no case will the trier of fact be asked to accept unsworn testimony over sworn testimony, verdicts will not be based on unsworn testimony, and the circumstances which promote truthful trial testimony will have been recreated as fully as is possible.

At p. 792, he adds: It follows from Smith that there may be situations in which the trial judge concludes that an appropriate substitute for the oath is established and that notwithstanding the absence of an oath the statement is reliable. Other circumstances may serve to impress upon the witness the importance of telling the truth, and in so doing provide a high degree of reliability to the statement. While these occasions may not be frequent, I do not foreclose the possibility that they might arise under the principled approach to hearsay evidence.

And at p. 793: In addition to an oath or solemn affirmation and warning, then, a complete videotape record of the type described above, or one which duplicates the experience of observing a witness in the courtroom to the same extent, is another important indicium of reliability which will satisfy the principled basis for the admission of hearsay evidence.

At page 795 he addresses the “most important of hearsay dangers: Again, we must remember that the question is not whether it would have been preferable to have had the benefit of contemporaneous cross-examination, but whether the absence of such cross-examination is a sufficient reason to keep the statement from the jury as substantive evidence. Given the other guarantees of trustworthiness, I do not think that it should be allowed to be a barrier to substantive admissibility.

Of course, it will be an important consideration for the trier of fact in deciding what weight to attach to the prior inconsistent statement, and it is likely that opposing counsel will stress the absence of such cross-examination to the trier of fact. He sums up the reliability criteria at pp. 795 and 796 with: Therefore, the requirement of reliability will be satisfied when the circumstances in which the prior statement was made provide sufficient guarantees of its trustworthiness with respect to the two hearsay dangers a reformed rule can realistically address: if (

i) the statement is made under oath or solemn affirmation following a warning as to the existence of sanctions and the significance of the oath or affirmation, (ii) the statement is videotaped in its entirety, and (iii) the opposing party, whether the Crown or the defence, has a full opportunity to cross-examine the witness respecting the statement, there will be sufficient circumstantial guarantees of reliability to allow the jury to make substantive use of the statement.

Alternatively, other circumstantial guarantees of reliability may suffice to render such statements substantively admissible, provided that the judge is satisfied that the circumstances provide adequate assurances of reliability in place of those which the hearsay rule traditionally requires. The SCC, per Estey goes on to discuss the necessity requirement at p. 796: However, it is important to remember that the necessity criterion "must be given a flexible definition, capable of encompassing diverse situations" ( Smith , at pp. 933-34).

Wigmore, vol. 5 (Chadbourn rev. 1974), § 1421, at p. 253, referred to two classes of necessity:

(1) The person whose assertion is offered may now be dead , or out of the jurisdiction, or insane, or otherwise unavailable for the purpose of testing. This is the commoner and more palpable reason....

(2) The assertion may be such that we cannot expect, again, or at this time, to get evidence of the same value from the same or other sources.... The necessity is not so great; perhaps hardly a necessity, only an expediency or convenience, can be predicated. But the principle is the same. [Emphasis in original.] The precise limits of the necessity criterion remain to be established in the context of specific cases. It may be that in some circumstances, the availability of the witness will mean that hearsay evidence of that witness's prior consistent (the kind of statement at issue in Khan ) statements will not be admissible. However, I am not prepared, at this point, to adhere to a strict

interpretation that makes unavailability an indispensable condition of necessity. And he further emphasizes at page 799:

In the case of prior inconsistent statements, it is patent that we cannot expect to get evidence of the same value from the recantingwitness or other sources: as counsel for the appellant claimed, the recanting witness holds the prior statement, and thus the relevantevidence, "hostage." The different "value" of the evidence is found in the fact that something has radically changed between the timewhen the statement was made and the trial and, assuming that there is a sufficient degree of reliability established under the firstcriterion, the trier of fact should be allowed to weigh both statements in light of the witness's explanation of the change.

And at page 803: Thus, to summarize the discussion of the voir dire: in the part of the voir dire addressing the new rule, the trial judge must first satisfyhim or herself that the indicia of reliability necessary to admit hearsay evidence of prior statements -- a warning, oath, solemnaffirmation, or solemn declaration, and videotape record, or sufficient substitutes -- are present and genuine.

If they are, he or she mustthen examine the circumstances under which the statement was obtained, to satisfy him or herself that the statement supported by theindicia of reliability was made voluntarily if to a person in authority, and that there are no other factors which would tend to bring theadministration of justice into disrepute if the statement was admitted as substantive evidence. In most cases, as in this case, the partyseeking to admit the prior inconsistent statements as substantive evidence will have to establish that these requirements have beensatisfied on the balance of probabilities.

The trial judge is not to decide whether the prior inconsistent statement is true, or more reliablethan the present testimony, as that is a matter for the trier of fact. Once this process is complete, and all of its constituent elementssatisfied, the trial judge need not issue the standard limiting instruction to the jury, but may instead tell the jury that they may take thestatement as substantive evidence of its contents, or, if he or she is sitting alone, make substantive use of the statement, giving theevidence the appropriate weight after taking into account all of the circumstances.

In either case, the judge must direct the trier of fact toconsider carefully these circumstances in assessing the credibility of the prior inconsistent statement relative to the witness's testimony attrial.

For example, where appropriate the trial judge might make specific reference to the significance of the demeanour of the witness atall relevant times (which could include when making the statement, when recanting at trial, and/or when presenting conflicting testimonyat trial), the reasons offered by the witness for his or her recantation, any motivation and/or opportunity the witness had to fabricate hisor her evidence when making the previous statement or when testifying at trial, the events leading up to the making of the first statementand the nature of the interview at which the statement was made (including the use of leading questions, and the existence of pre-statement interviews or coaching), corroboration of the facts in the statement by other evidence, and the extent to which the nature of thewitness's recantation limits the effectiveness of cross-examination on the previous statement.

There may be other factors the trier of factshould consider, and the trial judge should impress upon the trier of fact the importance of carefully assessing all such matters indetermining the weight to be afforded prior inconsistent statements as substantive evidence. Justice Cory, in separate reasons but concurring, noted at p. 827: Upon the voir dire the trial judge must be satisfied beyond a reasonable doubt that the conditions for admitting the prior inconsistentstatement have been fulfilled. I would suggest that the conditions are these:

(1) That the evidence contained in the prior statement is such that it would be admissible if given in court.

(2) That the statement has been made voluntarily by the witness and is not the result of any undue pressure, threats or inducements.

(3) That the statement was made in circumstances, which viewed objectively would bring home to the witness the importance of tellingthe truth.

(4) That the statement is reliable in that it has been fully and accurately transcribed or recorded.

(5) That the statement was made in circumstances that the witness would be liable to criminal prosecution for giving a deliberately falsestatement If those conditions are met then the prior inconsistent statement should be admitted for all purposes. He adds two important observations: At page 830: I should touch upon the second facet of the Chief Justice's reasons which deals with statements where one, several, or all of the threeinitial preconditions (oath, warning and videotape) are missing.

For the Chief Justice when such a situation arises, "alternatively" in"exceptional circumstances" the principles enunciated in Smith and Khan should apply. That is to say the judge, on the voir dire, is tosearch for substitute indicia of reliability. And, at page 830 as well: The judge conducting the voir dire should not weigh the credibility of the statement any more than would a judge conducting a voir direconcerning a confession determine it was truthful. The voir dire simply ensures that the circumstances surrounding the making of thestatement are such that it should be admitted.

It is for the jury to determine whether the prior statement should be accepted as true. While KGB seems to be the defining case with respect to principled exceptions, newer cases are worth noting. In R. v U (FJ) (SCC), [1995] 3 SCR 764, a particular passage by Lamer, J provides a useful review starting at p. 793, para 46: 46 I set out the proper procedure for the voir dire in my reasons in B. (K.G.), at pp. 799-804.

After the calling party invokes s. 9 ofthe Canada Evidence Act, and fulfils its requirements in the voir dire held under that section, the party must then state its objectives intendering the statement. If the statement will only be used to impeach the witness, the inquiry ends at this point. If, however, the callingparty wishes to make substantive use of the statement, the voir dire must continue so that the trial judge can assess whether a thresholdof reliability has been met. The necessity criterion need not be assessed as it is met whenever a witness recants.

The first factorcontributing to reliability is the cross-examination of the witness. If the witness provides an explanation for changing his or her story, the

trier of fact will be able to assess both versions of the story, as well as the explanation. However, where a witness does not recall makingan earlier statement, or refuses to answer questions, the trial judge should take into account that this may impede the jury's ability toassess the ultimate reliability of the statement. 47 If the additional indicia of reliability I specified in B. (K.G.) are present, an oath or affirmation following a warning of penalconsequences for lying, and a videotape of the statement, the reliability assessment can be relatively easily made.

If the reliabilitycriterion is to be met, in rare cases, by the striking similarity between the statement being assessed and another statement which isalready clearly substantively admissible, the trial judge must be satisfied on a balance of probabilities that there are striking similaritiesbetween the two statements, and that there was neither reason nor opportunity for the declarants to collude and no improper influence byinterrogators or other third parties. 48 At this stage, the trial judge need only be convinced on a balance of probabilities that the statement is likely to be reliable, asthis is the normal burden of proof resting upon a party seeking to admit evidence.

The trial judge must also ascertain at this stage that theprior statement relates evidence which would be admissible as the witness's sole testimony. 49 I would also highlight here the proviso I specified in B. (K.G.) that the trial judge must be satisfied on the balance ofprobabilities that the statement was not the product of coercion of any form, whether involving threats, promises, excessively leadingquestions by the investigator or other person in a position of authority, or other forms of investigatory misconduct. 50 The trial judge at this stage is not making a final determination about the ultimate reliability and credibility of the statement.The trial judge need not be satisfied that the prior statement is true and should be believed in preference to the witness's currenttestimony.

R v Khelawon 2006 SCC 57 , [2006] 2 SCR 787 makes an important comment expanding on Cory, J’s discussion of the roles ofthe voir dire judge and the trier of fact. 3 The distinction between threshold and ultimate reliability reflects the important difference between admission andreliance. Admissibility is determined by the trial judge based on the governing rules of evidence. Whether the evidence is relied upon todecide the issues in the case is a matter reserved for the ultimate trier of fact to decide in the context of the entirety of the evidence.

Thefailure to respect this distinction would not only result in the undue prolongation of admissibility hearings, it would distort the fact-finding process. In determining the question of threshold reliability, the trial judge must be mindful that hearsay evidence ispresumptively inadmissible. The trial judge’s function is to guard against the admission of hearsay evidence which is unnecessary in thecontext of the issue to be decided, or the reliability of which is neither readily apparent from the trustworthiness of its contents, norcapable of being meaningfully tested by the ultimate trier of fact.

In the context of a criminal case, the accused’s inability to test theevidence may impact on the fairness of the trial, thereby giving the rule a constitutional dimension. Concerns over trial fairness not onlypermeate the decision on admissibility, but also inform the residual discretion of the trial judge to exclude the evidence even if necessityand reliability can be shown. As in all cases, the trial judge has the discretion to exclude admissible evidence where its prejudicial effectis out of proportion to its probative value.

R v Bradshaw [2017] SCC 865 provides an important perspective per Karakatsanis, at p. 57: In sum, to determine whether corroborative evidence is of assistance in the substantive reliability inquiry, a trial judge should:(1) identify the material aspects of the hearsay statement that are tendered for their truth; (2) identify the specific hearsay dangers raisedby those aspects of the statement in the particular circumstances of the case; (3) based on the circumstances and these dangers, consideralternative, even speculative, explanations for the statement; and (4) determine whether, given the circumstances of the case, thecorroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for thestatement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement.

Defence counsel drew the courts attention to another aspect to be considered – the impact of the statement being made pursuant to a “Mr.Big” undercover operation. In R v Hart 2014 SCC 52, Moldaver, J writes: 10] Against that background, I am of the view that a principled rule of evidence is required to assess the admissibility ofMr. Big confessions.

For reasons that follow, I would propose that where the state recruits an accused into a fictitious criminalorganization of its own making and seeks to elicit a confession from him, any confession made by the accused to the state during theoperation should be treated as presumptively inadmissible. This presumption of inadmissibility will be overcome where the Crown canestablish, on balance, that the probative value of the confession outweighs its prejudicial effect. In this context, the confession’sprobative value is a function of its reliability.

Its prejudicial effect stems from the harmful character evidence that necessarilyaccompanies its admission. If the Crown is unable to demonstrate that the accused’s confession is admissible, the rest of the evidencesurrounding the Mr. Big operation becomes irrelevant. [11] Trial judges must also carefully scrutinize the conduct of the police to determine if an abuse of process has occurred.No matter how reliable the confession, the courts cannot condone state conduct — such as physical violence — that coerces the target ofa Mr. Big operation into confessing.

Where an accused establishes that an abuse of process has occurred, the court can fashion anappropriate remedy, including the exclusion of the confession or a stay of proceedings. And then further provides a clear pathway to consider whether an undercover operation has met all necessary requirements of fairnessand ethical operation. He states: 84] In this section, I propose a solution that, in my view, strikes the best balance between guarding against the dangersposed by Mr. Big operations, while ensuring the police have the tools they need to investigate serious crime.

This solution involves atwo-pronged approach that (1) recognizes a new common law rule of evidence, and (2) relies on a more robust conception of the doctrineof abuse of process to deal with the problem of police misconduct. [85] The first prong recognizes a new common law rule of evidence for assessing the admissibility of these confessions.

The rule operates as follows: Where the state recruits an accused into a fictitious criminal organization of its own making and seeks toelicit a confession from him, any confession made by the accused to the state during the operation should be treated as presumptivelyinadmissible. This presumption of inadmissibility is overcome where the Crown can establish, on a balance of probabilities, that theprobative value of the confession outweighs its prejudicial effect. In this context, the confession’s probative value turns on an assessmentof its reliability.

Its prejudicial effect flows from the bad character evidence that must be admitted in order to put the operation and theconfession in context. If the Crown is unable to demonstrate that the accused’s confession is admissible, the rest of the evidencesurrounding the Mr. Big operation becomes irrelevant and thus inadmissible.

This rule, like the confessions rule in the case ofconventional police interrogations, operates as a specific qualification to the party admissions exception to the hearsay rule.[5] [86] As regard the second prong, I would rely on the doctrine of abuse of process to deal with the problem of policemisconduct. I recognize that the doctrine has thus far proved less than effective in this context. While the problem is not an easy one, Ipropose to provide some guidance on how to determine if a Mr.

Big operation crosses the line from skillful police work to an abuse ofprocess. [87] The purposes of this two-pronged approach are to protect an accused’s right to a fair trial under the Charter, and topreserve the integrity of the justice system. Those are the ends that must ultimately be achieved.

This approach strives to reach them byensuring that only those confessions that are more probative than prejudicial, and which do not result from abuse, are admitted intoevidence. [88] However, it must be remembered that trial judges always retain a discretion to exclude evidence where its admissionwould compromise trial fairness (see R. v. Harrer, (SCC), [1995] 3 S.C.R. 562). This is because “the general principlethat an accused is entitled to a fair trial cannot be entirely reduced to specific rules” (ibid., at para. 23). It is impossible to predict everyfactual scenario that could present itself.

As such, I do not foreclose the possibility that, in an exceptional case, trial fairness may requirethat a Mr. Big confession be excluded even where the specific rules I have proposed would see the confession admitted. [99] Returning to Mr. Big confessions, their probative value derives from their reliability. A confession providespowerful evidence of guilt, but only if it is true. A confession of questionable reliability carries less probative force, and in decidingwhether the probative value of a Mr.

Big confession outweighs the prejudicial effect of the character evidence that accompanies it, trialjudges must examine its reliability. [100] What factors are relevant in assessing the reliability of a Mr. Big confession? A parallel can perhaps be drawnbetween the assessment of “threshold reliability” that occurs under the principled approach to hearsay. Under the principled approach,hearsay becomes admissible where it is both necessary and reliable.

Reliability can generally be established in one of two ways: byshowing that the statement is trustworthy, or by establishing that its reliability can be sufficiently tested at trial (R. v. Khelawon, 2006SCC 57, [2006] 2 S.C.R. 787, at paras. 61-63). The latter route to reliability is often met through an opportunity to cross-examine thehearsay declarant, but this has no application in the present context because the accused is not a compellable witness. [101] However, the factors used to demonstrate the trustworthiness of a hearsay statement are apposite.

In assessing thetrustworthiness of a hearsay statement, courts look to the circumstances in which the statement was made, and whether there is anyconfirmatory evidence (Khelawon, at paras. 62 and 100). [102] Confessions derive their persuasive force from the fact that they are against the accused’s self-interest. People do notnormally confess to crimes they have not committed (Hodgson, at para. 60). But the circumstances in which Mr. Big confessions areelicited can undermine that supposition. Thus, the first step in assessing the reliability of a Mr.

Big confession is to examine thosecircumstances and assess the extent to which they call into question the reliability of the confession.

These circumstances include — butare not strictly limited to — the length of the operation, the number of interactions between the police and the accused, the nature of therelationship between the undercover officers and the accused, the nature and extent of the inducements offered, the presence of anythreats, the conduct of the interrogation itself, and the personality of the accused, including his or her age, sophistication, and mentalhealth. [103] Special note should be taken of the mental health and age of the accused.

In the United States, where empirical dataon false confessions is more plentiful, researchers have found that those with mental illnesses or disabilities, and youth, present a muchgreater risk of falsely confessing (Garrett, at p. 1064).[7] A confession arising from a Mr. Big operation that comes from a young personor someone suffering from a mental illness or disability will raise greater reliability concerns.

Defence also appropriately raised concerns about accepting the evidence of a “Vetrovec” witness, which also is a consideration at hand.In R v Khela 2009 SCC 4 , 2009 SCC4, per Fish, J: [3] It is therefore of the utmost importance, in a trial by judge and jury, for the jury to understand when and why it is unsafe tofind an accused guilty on the unsupported evidence of witnesses who are “unsavoury”, “untrustworthy”, “unreliable”, or “tainted”. Forpresent purposes, I use these terms interchangeably.

And I mean to include all witnesses who, because of their amoral character, criminallifestyle, past dishonesty or interest in the outcome of the trial, cannot be trusted to tell the truth — even when they have expresslyundertaken by oath or affirmation to do so. [11] The central purpose of a Vetrovec warning is to alert the jury to the danger of relying on the unsupported evidence ofunsavoury witnesses and to explain the reasons for special scrutiny of their testimony.

In appropriate cases, the trial judge should alsodraw the attention of the jurors to evidence capable of confirming or supporting the material parts of the otherwise untrustworthyevidence. And: [35] Speaking for himself [in R v Brooks, 2000 SCC 11] and Justices Iacobucci and Arbour, Major J. also cited with approval (atpara. 79) this passage from a commentary by Marc Rosenberg (now Rosenberg J.A.) on Vetrovec and its progeny:

The judge should first in an objective way determine whether there is a reason to suspect the credibility of the witness according to thetraditional means by which such determinations are made. This would include a review of the evidence to determine whether there arefactors which have properly led the courts to be wary of accepting a witness’s evidence.

Factors might include involvement in criminalactivities, a motive to lie by reason of connection to the crime or to the authorities, unexplained delay in coming forward with the story,providing different accounts on other occasions, lies told under oath, and similar considerations. It is not then whether the trial judgepersonally finds the witness trustworthy but whether there are factors which experience teaches that the witness’s story be approachedwith caution. Second, the trial judge must assess the importance of the witness to the Crown’s case.

If the witness plays a relativelyminor role in the proof of guilt it is probably unnecessary to burden the jury with a special caution and then review the confirmatoryevidence. However, the more important the witness the greater the duty on the judge to give the caution. At some point, as where thewitness plays a central role in the proof of guilt, the warning is mandatory.

This, in my view, flows from the duty imposed on the trialjudge in criminal cases to review the evidence and relate the evidence to the issues. (“Developments in the Law of Evidence: The 1992-93 Term — Applying the Rules” (1994), 5 S.C.L.R. (2d) 421, at p. 463) [91] The court considered as well additional cases provided by counsel. Each of these cases provided fact situations which neededto be considered: R v Larue 2018 YKCA 9 R v Ryall 2018 ABPC 14 R v Hoffman 2019 ONSC 3435 R v Okemow 2019 MBCA 37 R v Lawrence 2020 ABCA 268 R v Lawrence 2020 ABQB 144 R v Nepoose 2020 ABQB 438 R v Admasu 2021 ABQ

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