HIS MAJESTY THE KING - v. -, 2023 SKKB 200

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 200 Date: 2023 09 22 Docket: CRM-SA-00035-2020 Judicial Centre: Saskatoon ___________________________________________________________________________ BETWEEN: HIS MAJESTY THE KING - and - GREGORY MITCHELL FERTUCK Restriction on Publication: By court order made under subsection 486.5(2) of the Criminal Code , the identity of the undercover police officers referred to in this judgment or any information that could disclose their identity shall not be published, broadcast, or transmitted in any manner. This judgment complies with the order. Counsel: Cory M.

Bliss and Carla J. Dewar for the Crown Morris P. Bodnar, K.C.* and Michael D. Nolin* for the accused *Withdrew during the voir dire , after which the accused was self-represented Brent D. Little as amicus curiae ___________________________________________________________________________ DECISION ON VOIR DIRE DANYLIUK J. September 22, 2023 ___________________________________________________________________________ INDEX ITEM PARAGRAPHS I.

FACTS ............................................................................................................................. 1 - Introduction .............................................................................................................. 1 - Background ............................................................................................................ 12 - Sheree Fertuck Goes Missing ................................................................................ 35 - The Missing Person Investigation .......................................................................... 41 - The Murder Investigation ...................................................................................... 51 - Overview of Statements Made to Police ................................................................ 75 - The Mr.

Big Operation ........................................................................................... 85 -.. Background to the Investigation ................................................................ 90 -.. The “Bump” ............................................................................................. 121 -.. The Scenarios ........................................................................................... 125

-.. The Admissions ........................................................................................ 277 -.. Putative Confirmatory Evidence ............................................................. 286 -.. Amicus Appointment and the Re-Openings of Voir Dire Evidence .................... 303 II. ISSUES ........................................................................................................................ 335 - What is the general law applicable regarding the admissibility of these statements? - Should the statements be admitted into evidence? III.

ANALYSIS ................................................................................................................. 336 - What is the general law applicable regarding the admissibility of these statements? ........................................................................ 336 -.. Statements to Police Officers in Authority .............................................. 337 -.. The Mr.

Big Utterances ............................................................................ 345 - Should the statements to police in authority be admitted into evidence? ........... 362 - Should the statements to undercover officers be admitted into evidence? ......... 381 The First Segment of the Hart Test .............................................................. 386 - Review of Surrounding Circumstances ................................................. 387 - Review of the Confession ...................................................................... 459 - Review of the Prejudicial Effect ........................................................... 492 - Balancing Probative Value versus Prejudicial Effect .......................... 495 The Second Segment of the Hart Test .......................................................... 503 - Review for Abuse of Process ................................................................ 503 IV.

CONCLUSION ........................................................................................................... 512 I. FACTS Introduction [ 1 ] On December 7, 2015 Sheree Fertuck disappeared from this world. She was gone without a trace. Family, friends and police searched for her, to no avail. That day she had driven to a local gravel pit where she worked. Her semi unit, keys, cell phone and jacket were all found on site along with other equipment, but Sheree Fertuck was not. She was never seen again. [ 2 ] What happened to Sheree Fertuck? [ 3 ] The police say they know.

The police say Sheree Fertuck’s husband, the accused in this matter, murdered her and disposed of her body. [ 4 ] This is a first-degree murder trial. Trials are, at their core, searches for truth. Here, we are looking for the truth as to what happened to Sheree Fertuck. [ 5 ] In this trial the Crown puts forth the allegation that Sheree Fertuck was murdered by her husband. The police investigation into her disappearance had gone cold. As a result, police employed a major crimes undercover investigative technique sometimes called a “Mr.

Big” operation, although generally the police do not care for that term. [ 6 ] That undercover operation resulted in statements being made by the accused, statements which the Crown says amount to a confession, statements which are central to the Crown’s case against him. Within this trial a voir dire was held to determine the admissibility of those statements. Mr.

Fertuck had also made other statements to police when he was aware of with whom he spoke, and in this decision I must also deal with whether those statements are admissible into evidence in the trial. [ 7 ] It is very important to note at the outset that all I am dealing with in this decision is whether these statements (or any of them) may be admitted in Mr. Fertuck’s trial. This decision does not deal with whether Mr. Fertuck has been proven guilty. That is for another day, another decision. A trial such as this is a marathon, not a sprint.

Patience is a cardinal virtue in a trial such as this. [ 8 ] The indictment against Mr. Fertuck is dated February 12, 2020 and sets out the following charges: On or about the 7th day of December, A.D. 2015, at or near the District of Kenaston, in the Province of Saskatchewan, [the accused] did:

1) Commit first degree murder on Sheree Fertuck, contrary to section 235(1) of the Criminal Code [RSC 1985, c C-46 ]. 2) Offer an indignity to the human remains of Sheree Fertuck, contrary to

section 182 (

b) of the Criminal Code . [ 9 ] Ms. Fertuck went missing December 7, 2015. Her body has never been found. A police investigation ensued. Mr. Fertuck was questioned by the police on numerous occasions. He consistently stated his lawyer, Morris Bodnar, had told him not to talk to the police. He also consistently denied any involvement in Ms. Fertuck’s death or even being near the gravel pit where she disappeared. After the Mr. Big portion of the investigation concluded, the current charges were laid. [ 10 ] The Crown contends that in the course of the Mr. Big operation Mr.

Fertuck made statements in which he unequivocally admitted his responsibility for causing Ms. Fertuck’s death. The Crown takes the position that Mr. Fertuck’s statements satisfy the legal requirements for admission into evidence in this trial, as determined by R v Hart , 2014 SCC 52 , [2014] 2 SCR 544 [ Hart ] , and R v Mack , 2014 SCC 58 , [2014] 3 SCR 3 [ Mack ] . [ 11 ] For the reasons set out below, I find that some of the statements to police when the accused was questioned and all of the statements of the accused made during the undercover operation should be admitted as part of the evidence in this trial.

Background [ 12 ] This matter has a long and arguably tortured history. It has taken a long time to get to this point. There are numerous reasons for this, explained below. I will say I was, and am, mindful of the Supreme Court’s admonitions and guidance in R v Jordan, 2016 SCC 27 , [2016] 1 SCR 631 . There have been many causes of the delays in this trial, from the global pandemic, to applications to reopen the voir dire made by both Crown and accused, to the withdrawal of defence counsel in the midst of these proceedings. [ 13 ] This voir dire was originally scheduled to commence in March 2021.

It was adjourned until September 2021 due to lingering health and public safety concerns flowing from the COVID-19 pandemic. This matter proceeded in September and October 2021 but then was adjourned and reopened a number of times. This took us until the end of June 2023, when the evidence phase of the voir dires finally concluded. I reserved my decision on all matters until September 22, 2023.

A defence application to re-open the voir dire was heard and dismissed on August 30, 2023. [ 14 ] In reviewing the facts within this matter, it must be remembered that this is only a hearing to determine the admissibility of a group of statements made by Mr. Fertuck. I am not determining whether the Crown has proved its case, whether Mr. Fertuck is guilty. As a result I will not deal with every witness, every exhibit and every bit of testimony received during this voir dire . That will be for the final trial verdict.

I am only including matters that are relevant to my present decisions. [ 15 ] By way of general background, the evidence as a whole established that Gregory and Sheree Fertuck had been married for a long time. They had three children, now all adults. All three of the children testified on this voir dire . It is fair to say that family life in the Fertuck household was marred by discord. The couple separated and Mr. Fertuck moved out of the family home. [ 16 ] Mr. Fertuck had worked for Canadian National Railway for over 30 years, then retired. Ms. Fertuck did a variety of things including trucking.

Most recently she was hauling gravel pursuant to a contract she had landed. She was not known to have any physical or mental health problems. Addictions were not an issue. Her finances were stable and the current gravel contract she held was lucrative, though not as lucrative as some thought. She was variously described as a strong woman, a devoted parent, a very hard worker who spent long hours on the job, and entirely dependable. [ 17 ] While the family lived in Saskatoon there were strong ties to Sheree’s family’s farm near Kenaston, Saskatchewan.

While working Sheree would often stay at her mother’s. [ 18 ] The contract Sheree Fertuck was working under was a good one. Blair’s Fertilizer, an agricultural company, was constructing a facility near Hanley. Martin Koyle was the Project Manager for Tex Canada Logistics. He testified about the contract. Initially there were only rough estimates of the amount of gravel needed for this project. Mr. Koyle indicated Sheree Fertuck was a bidder and that she persistently pursued winning the contract. Her main competition was another local person, Jeff Sagen.

Initially his price was better so he got the contract but a dispute arose as to the amount of gravel he had actually delivered. The company felt he had delivered less gravel than the amount he had charged for so the contract was switched over to Sheree Fertuck. Jeff Sagen was upset about this. [ 19 ] Sheree Fertuck commenced operations under the contract in July or August 2015. She was able to consistently supply good quality gravel from the pit and she was also able to keep up with the project’s demands, hiring more trucks and drivers when required. She personally delivered four to six loads each day. Mr.

Koyle’s last dealings with Sheree were on December 3, 2015 and nothing seemed amiss. She was always all business and did not discuss her personal life with him. [ 20 ] After Sheree went missing the project had enough gravel on hand but eventually (early spring 2016) more was needed so a different hauling firm was retained. [ 21 ] It was noted that Sheree Fertuck was a good operator and was aggressive in business. Mr. Koyle said she “delivered what she promised”. He had heard rumours of her dispute with Jeff Sagen but did not personally witness same.

Sheree (Sorotski Holdings) derived a benefit of about $200,000 from the contract. While the defence repeatedly attempted to establish the contract was worth more like $2 million to Sheree, this was never established. [ 22 ] The Crown also called Gary Decker, a member of the Clear Spring Hutterite Colony which is located about eight miles southwest of Kenaston. He had known who Sheree Fertuck was all his life but got to know her better in 2012 when they were both hauling gravel out of Jeff Sagen’s pit, which was located about three miles north of the pit in question in this case. He and Sheree were friends.

He described Sheree as friendly and bright with a good sense of humour. He observed her work ethic to be excellent and

said she was diligent. [ 23 ] Mr. Decker also knew Jeff Sagen and described him as “a very good friend of mine”. Mr. Decker observed no animosity between Mr. Sagen and Ms. Fertuck. He noted that both worked simultaneously for the same rural municipality. Mr. Decker recalled an occasion where Jeff told Sheree about a job she could get hauling gravel. Sheree never expressed fear of Jeff. She never disparaged Jeff, nor did he badmouth her. [ 24 ] Mr. Decker did mechanical work for Sheree and on December 5, 2015 parts were purchased to repair her semi. He recalled that on December 7 around 5:00 p.m.

Sheree’s mother phoned him to see if Sheree was there because she had not come home. Mr. Decker took

part in the subsequent search for her. [ 25 ] Court also heard from John McJannet Jr. His father, John Sr., owned the gravel pit out of which Sheree had worked. He confirmed that there was a business relationship between Sheree Fertuck and the McJannets, insofar as she purchased gravel from them. He also indicated that he had gone to the pit after a phone call from Sheree’s mother. He was unsure of the date but spoke of snow on the ground and the RCMP first becoming involved.

He indicated he had gone there with his wife in his truck; his son came on an ATV; and his uncle Robert McJannet, his aunt June and his sister came in Robert’s black truck. [ 26 ] The evidence concerning Sheree Fertuck’s work ethic and the contractual arrangements was consistent. [ 27 ] Another topic of background evidence was the dispute between Mr. and Ms. Fertuck over the division of their family property. Sheree’s lawyer, Tammi Hackl, testified. She had represented Sheree Fertuck in her family law litigation with Gregory Fertuck.

After Sheree disappeared a court application was brought and her son Lucas was appointed litigation and property guardian for his mother. Lucas authorized Ms. Hackl to testify. [ 28 ] Ms. Hackl noted that unlike many family law clients Ms. Fertuck was down-to-earth, practical, and steady. She was not emotional. She had commenced the court action against Mr. Fertuck. Ms. Hackl had no concerns about mental illness or addictions or other stability factors regarding Sheree Fertuck. [ 29 ] Sheree’s instructions were to let her “try to work things out” directly with Gregory.

She did not want to spend a lot of money on legal bills. While a petition was issued it was not served for a period of time. Ms. Hackl understood that Sheree wanted to work out matters of child support and property division, not to reconcile with Gregory. Her petition included a divorce claim but she never claimed spousal support. It was noted that back in December 2010 Mr. Fertuck had borrowed $50,000 and signed an interspousal contract with Ms. Fertuck that he would be 100% responsible for that loan. One of Sheree’s concerns was that Mr.

Fertuck retire that debt and that it not clog the equity of redemption on the family home, which she wished to retain for the children. [ 30 ] In May 2012 Sheree told Ms. Hackl she and Gregory had reached a deal on child support and she would receive money from his tax refund, but he subsequently reneged and refused to pay. A child support order for $871 per month for three children was obtained from this Court in June 2012 and on Sheree’s instruction Mr. Fertuck had to be garnished as he was not paying.

By 2013 he was not paying anything voluntarily so the issue was referred to the Maintenance Enforcement Office. It is also noteworthy that Sheree’s family property division claim was for an unequal division given the agreement regarding the $50,000 loan and some exemption claims of Sheree’s for pre-existing property upon marriage. [ 31 ] Ms. Hackl noted that Sheree Fertuck did not always follow her advice. At one point Gregory’s lawyer asked for $15,000 to be disbursed to him out of his LIRA retirement account as Sheree’s permission was required. Ms.

Hackl thought this a reasonable request and advised Sheree to agree to it but she refused, even though the LIRA’s value was about $427,000 and there was plenty of equity to cover the effects of the $15,000 disbursal. Sheree was described as “inflexible” and she said she would not agree to Gregory seeing one cent until the overall property matter was resolved. This family law litigation was not settled until September 2018 at a pre-trial conference in this Court, years after Sheree had disappeared. The Minutes of Settlement are in evidence as Exhibit P-43. [ 32 ] Some other information came from Ms. Hackl.

Her last meeting with Ms. Fertuck was in October 2015. Ms. Hackl felt the file was going nowhere and the matter should be set down for a judicial pre-trial conference. Ms. Fertuck demurred, saying she was still trying to work things out with Mr. Fertuck as she was concerned about legal fees. In the course of the proceedings Gregory admitted that he and Sheree had separated on October 23, 2011. Sheree never mentioned the gravel contract or that it was worth $2 million to her (I am satisfied it was not). Ms.

Hackl was unaware that in November 2015 Sheree had employed Gregory to drive a gravel truck for her. [ 33 ] Todd Degelman also testified on a number of topics including matters involving family property. He was the accused’s investment advisor at the National Bank in 2015. He had held a professional relationship with both Gregory and Sheree Fertuck. Mr. Degelman had learned of Sheree’s disappearance in late 2015. He spoke of a telephone call he received from Mr. Fertuck in January 2016. Mr. Fertuck said he had a Workers’ Compensation issue and that he needed $7,000.

His pension had been rolled into a LIRA account worth about $400,000. He required spousal consent to get this money and could not obtain it. Mr. Degelman described Mr. Fertuck as “quite frustrated” on the phone and spoke in a rough and vulgar fashion about “my money”. Mr. Degelman told Mr. Fertuck they could not release funds to him without spousal consent. He said it was an unpleasant call with Mr. Fertuck. Subsequently the entire LIRA account was to be transferred to the Royal Bank but before that could be done the RCMP froze the transfer. Mr. Degelman said Mr.

Fertuck would not have been able to access these funds at that time even if they had been at the Royal Bank. The funds were transferred to RBC in March 2016. [ 34 ] The totality of the evidence satisfies me that as of December 2015 the ongoing family law dispute was still going and had heated up over Ms. Fertuck’s refusal to allow Mr. Fertuck to withdraw $15,000 from his LIRA. Sheree Fertuck Goes Missing [ 35 ] December 7, 2015 started out as a normal day. Sheree Fertuck woke up, got ready, and went to work. Her family last spoke with her around lunch time.

She did not show up for some evening appointments and did not drop off her final loads of gravel

for the day. Family members tried to phone her but she did not answer. She did not come back to her mother’s farm when expected. Her family became concerned. [ 36 ] Sheree’s family members went to the gravel pit the next morning. Her semi unit was sitting there with the lights on and the keys in the ignition. Her jacket and cellular phone were in the cab. It is of note there is no cellular service inside the gravel pit. Other equipment was in place. Everything looked normal. There were no signs of any struggle or accident.

Still, Sheree was simply … gone. [ 37 ] This was entirely uncharacteristic of Sheree Fertuck. She was a highly responsible and industrious person. She didn’t take off. She didn’t disappear. Her family’s worries increased. Her family decided to call the police because they perceived that Sheree had gone missing. [ 38 ] As I have already noted, the evidence revealed that Sheree Fertuck was a hard-working individual, a shrewd manager, and something of a tough customer.

By the last comment I mean there was evidence that she stood behind her word, expected others to do the same, and did not put up with very much nonsense from other people. [ 39 ] Sheree Fertuck ran her trucking business very well. She was properly servicing the gravel supply contract to supply gravel for the large construction project near Hanley. Her source of supply of gravel was the pit. The “pit”, as witnesses referred to it, was located near Kenaston which is convenient to Hanley. She had some loading equipment at the pit.

From time to time she hired her brother Darren Sorotski to assist her and despite their separation she even hired Mr. Fertuck on occasion. [ 40 ] The evidence before me from numerous witnesses, including the three children, was consistent. Sheree Fertuck was a devoted mother and daughter. She was protective of her children and adored her grandchild. She was making future plans around her family and her work. She had never before left the districts of Kenaston or Saskatoon without letting people know where she was going. All witnesses agreed this disappearance was entirely uncharacteristic for Sheree Fertuck.

The Missing Person Investigation [ 41 ] This aspect of the investigation was intense but of short duration. It was quickly converted into a homicide investigation. [ 42 ] Cst. Elizabeth Cook of the RCMP was the first point of contact with Sheree Fertuck’s family. At the time she was stationed in Saskatoon. On December 8, 2015 Cst. Cook was contacted by Sheree’s mother, Julianne Sorotski, and went to see her at her farm. Ms. Sorotski presented as a worried parent so Cst. Cook took an audio statement from her. She then obtained directions to the pit and drove there. [ 43 ] When entering the pit Cst.

Cook saw a truck leaving. She recalled it had about six people in it. She spoke with a man named “Robert” but could not recall much about that conversation; she asked him to leave the area and he did. [ 44 ] At the pit she observed the items previously described, and looked at the things in Sheree’s semi. In particular she looked at Sheree’s cell phone (which was still on) and determined that the last call on that phone occurred at 12:08 p.m. on December 7, 2015. She took a number of photographs of the scene where Sheree’s semi was located. [ 45 ] Cst. Cook called for other RCMP assistance.

A canine unit and a traffic officer equipped with a drone attended. As well, Colleen Lyons (now retired) was called in. She was an RCMP Corporal in December 2015 and was called as part of the missing person investigation. She did not attend at the scene but coordinated the initial response to the call as she was the Watch Supervisor. On December 8, 2015 the RCMP drone and airplane were engaged, as was a canine officer and the search and rescue team. [ 46 ] That evening she sent an RCMP member to Sheree’s house in Saskatoon where one of the daughters was interviewed.

As a result of information supplied by that daughter Cpl. Lyons indicated this is when Mr. Fertuck became a person of interest in the investigation. Cpl. Lyons involved the Major Crimes Unit out of Regina on December 9, 2015 and it took over the investigation at that time. Sgt. Tiffany Climenhaga was the lead investigator. Cpl. Lyons remained involved but not as the coordinator; rather, she was tasked with doing particular things for the investigation. She never met Mr.

Fertuck although she was aware he still occasionally worked for Sheree Fertuck. [ 47 ] Another veteran RCMP officer whose involvement began with the missing person investigation was Sgt. Ryan Clunie. At the relevant time he was with the Forensic Identification Unit based out of Saskatoon. He was on duty on December 8, 2015 and was contacted in the evening regarding Sheree Fertuck. He attended a briefing the next morning then in the afternoon attended at the pit with Cpl. Leroux, also with the Unit.

He had been advised that a number of searchers had already been at the pit (RCMP, the canine unit, the local fire department, civilians). He and Cpl. Leroux took a large number of photographs as well as tire and footwear impressions. The semi and trailer were still there, as well as a Case front-end loader. The semi was seized and taken to a compound later that day. [ 48 ] He returned to the pit on December 10 to take aerial photographs with a remote-controlled drone. Sgt. Clunie noted it had snowed the previous night (at least ten cm) which complicated matters.

He reviewed all the photographs in detail during his testimony. He said they searched for viable fingerprints but because the equipment was dirty they found none. On December 12 a presumptive test on the bucket of the loader returned positive for blood. On December 13 Julianne Sorotski consented to a full search of her farm. Sheree Fertuck was not located. On December 21 Mr. Fertuck’s truck was searched and presumptively tested for blood. A small number of positive results were obtained. Subsequent laboratory testing confirmed it was Sheree Fertuck’s blood. [ 49 ] In cross-examination Sgt.

Clunie acknowledged that by the time he arrived at the pit the scene had been “extremely contaminated” by prior searches. Even the loader had been used to move gravel around in the search for Sheree Fertuck. Much of what Sgt. Clunie said was later confirmed by Cpl. Terry Leroux, another forensic identification officer.

[ 50 ] By the time some of this searching was conducted the RCMP had recategorized this investigation as a homicide rather than a missing person investigation. The Murder Investigation [ 51 ] The investigation proceeded as a murder investigation. Mr. Fertuck became a person of interest, then a suspect, for the police. He was brought in and interviewed by the RCMP on a number of occasions. [ 52 ] RCMP Sgt. Tiffany Climenhaga testified. She was the initial primary or lead investigator. Her evidence provided a detailed overview of the murder investigation. She worked out of the Major Crimes Unit in Regina.

She became involved in this matter in the early morning of December 9, 2015. She was a constable at the time. The primary investigator takes in information, assigns tasks, and makes decisions as to the course of the investigation. Sgt. Climenhaga remained the lead until 2020. [ 53 ] At first Sgt. Climenhaga received scant details about the case. Sheree Fertuck had been reported as a missing person. Initial searches had been conducted but had turned up nothing. Given the totality of the circumstances it was determined Major Crimes should get involved.

One of her first steps was to secure the scene at the gravel pit, although many people had already been in and out given the searches that had been done. [ 54 ] Her first steps were the usual ones employed in this type of investigation. She “cast a wide net” as she put it. The Forensic Identification team was called out and attended at the pit and at other scenes. Officers were sent to search for and collect any video surveillance that might prove relevant. People close with the Fertucks were interviewed. Sgt. Climenhaga said that as a result of police interviews (notably those with the children) Mr.

Fertuck became a person of interest. [ 55 ] Sgt. Climenhaga’s initial interviews revealed a discordant note that she found significant. Numerous witnesses spoke of the family law dispute between Mr. and Ms. Fertuck. The interviews with the Fertuck children revealed a dysfunctional and strained relationship, domestic violence, and a dispute over financial issues. The children said there was no hope of reconciliation. There was little contact between the children and their father. [ 56 ] However, when Mr. Fertuck provided a statement to police on December 9, 2015 Sgt.

Climenhaga said she “felt she was in the Twilight Zone” because Mr. Fertuck’s comments were at the very opposite end of the spectrum. He said he still loved Sheree, that they were reconciling, that his current status with Doris Larocque was she was simply his landlord, and that he had a good relationship with his children. He said he had no financial difficulties and there was no financial dispute between he and Sheree, which the police already knew was not so. [ 57 ] Mr. Fertuck’s initial statement was contradicted by witnesses other than his children.

One of Sheree’s sisters spoke with the police about the financial fight between the spouses, including the specific issue of Sheree’s refusal to allow Gregory to access some funds from his pension LIRA. When Doris Larocque was interviewed she cast her relationship with the accused as an intimate domestic relationship that had been going on for quite a while. She said Mr. Fertuck did have financial issues because he sometimes had trouble paying his rent to her. [ 58 ] Mr. Fertuck became a person of interest, then quickly progressed to a suspect, in this murder investigation. [ 59 ] Sgt.

Climenhaga detailed the physical investigation at the pit. She said the scene was jeopardized by the number of people in it when the matter was treated as a missing person investigation, and also by the snow that fell very early on. She directed that flyers asking people to come forward with any information be distributed in the area. A medial news release was also done. She noted the police rely heavily on the media in a missing person case. This was especially so here, as Sheree was not a street person or involved in a high-risk lifestyle. She was 56, a devoted single mother of three children.

She was strong-willed, a hard worker, interested in business. She was not dating and was not interested in another relationship. She did not use social media. She had no financial or addictions issues. Her medical information did not indicate any physical or mental health issues. As early as December 10, 2015 Sgt. Climenhaga viewed Sheree’s disappearance as suspicious rather than the usual missing person case. [ 60 ] The police quickly instituted monitoring of Sheree’s bank accounts and cellular phone. Hospitals were checked for “Jane Doe” patients. More interviews were conducted and research done.

Attempts were made to reconstruct Sheree’s last day when she was seen. [ 61 ] Sgt. Climenhaga testified that she did not develop what is called “tunnel vision” about Mr. Fertuck. The RCMP considered other potential actors in Sheree’s disappearance. [ 62 ] She noted that while Sheree’s brother Darren Sorotski had initially acted somewhat oddly when questioned, this could have been due to alcohol consumption. He was investigated and an alibi for him was established. He was cooperative with police efforts and there was no indication he was lying. [ 63 ] The same was true of Julianne Sorotski, Sheree’s mother.

She readily supplied information and consented to a search of the entire farm. Forensic Identification officers, searchers, and even cadaver dogs were employed in the search. She also provided samples of items for DNA analysis purposes and gave her phone records. Sgt. Climenhaga said neither Darren Sorotski nor Julianne Sorotski was ever a viable suspect. [ 64 ] Witnesses mentioned Jeff Sagen and how he had lost the gravel contract to Sheree. The RCMP checked him out. He was cooperative. He voluntarily provided a statement, consent to DNA analysis, fingerprints, and phone records.

He clarified that the contract in question was not a $2 million contract and provided accurate details about losing it to Sheree. Police investigated Sagen’s business and determined he had more work than he could handle; the loss of this contract was not fatal or even significantly damaging to his business. He had a sizeable operation with a lot of land and equipment, and owned his own gravel pit. It was determined he had referred work to Sheree. He had no criminal history and no incidents involving violence or threats in his past.

His phone records provided his whereabouts at the relevant time, and that alibi was confirmed by another witness. He had volunteered as part of the early

searches for Ms. Fertuck. Sgt. Climenhaga indicated Jeff Sagen was not a suspect but she did not neglect him, and pursued available avenues of investigation. [ 65 ] By December 10, 2015 Gregory Fertuck was a firm suspect in this investigation. Sgt. Climenhaga had noted issues with his initial statement so she wanted a second statement from him, taken under a police caution. She wanted to let him know he was a suspect and have him discuss the inconsistencies between what he had said in his first statement and other information the RCMP now held.

She wanted to inform him he was in jeopardy so any information he provided could be used against him. She dispatched officers to get another statement from Mr. Fertuck that day. [ 66 ] By December 14, 2015 Sgt. Climenhaga had informed the family of Sheree Fertuck the police felt this was a homicide and it was unlikely she was still alive. The family was not advised that Gregory Fertuck was a suspect.

However, the entire family – her mother, her children, her sisters – all pushed the police to look at Gregory as a suspect without any prompting by the authorities. [ 67 ] For the purposes of this voir dire decision I will only summarize much of this extensive investigation. The police scoured areas the accused had travelled on the day in question, obtaining videos from places such as his healthcare providers and a car wash near his home. They did cross-references with the cell phones of family members. They used the police plane to try to spot evidence.

Banking and financial records were obtained, and it was noted Sheree Fertuck used none of her cards after December 7, 2015. The police even looked through the garbage at Mr. Fertuck’s residence. What police did determine was that Mr. Fertuck had not been forthright with them during his first interview, in terms of his financial situation and the status of his relationship with Sheree Fertuck and their children. [ 68 ] Search warrants were obtained to search Mr. Fertuck’s home and vehicle. In the home there were firearms and ammunition, including .22 calibre ammunition but no matching firearm for it.

Police questioned why the gun was missing, and wondered where it was. Once cell phone information was obtained and it was determined that on the day Sheree Fertuck went missing the accused’s cell phone was in the area of the pit, that information was not released and was deemed holdback evidence. During interviews with Mr. Fertuck he consistently denied being present at the pit that day, and the police felt the cell phone tower information contradicted him in this regard. [ 69 ] By this early stage of the investigation Sgt. Climenhaga also began to think about what else could be holdback evidence.

With no body, there was no way to know how Sheree Fertuck had been killed. Therefore all information about the firearms and the shells found on scene became holdback evidence. [ 70 ] In April 2016 the snow had melted so police conducted a tactical search of the gravel pit, looking for evidence. At that time two .22 calibre shell casings were found about ten to twenty feet from where the semi and loader had been parked. There were also two zip ties found nearby. The shell casings were true holdback evidence, and even Mr.

Fertuck was not confronted about them during interviews. [ 71 ] Police continued to try to build a case. On October 25, 2017 Mr. Fertuck was arrested. Sgt. Climenhaga described what she termed “extensive reasonable grounds” for the arrest, including: - Sheree Fertuck’s disappearance was seen as a homicide. - She had no mental or physical health issues or financial issues. - The searches of the pit and Mr. Fertuck’s home and vehicle had yielded information. - No funds were accessed by Sheree Fertuck after December 7, 2015 and her bills fell into default. - Suicide was deemed unlikely.

Sheree Fertuck was stable, predictable and dependable. She was close with her family and was a devoted mother. Nothing pointed to suicide. - The nature of the crime scene at this pit was a factor. The semi had been left with the keys in it and the lights on. Her phone and jacket were inside.

The loader was there. - Greg Fertuck had financial issues and a financial motivation to do harm to Sheree Fertuck. - The separation proceedings were not amicable. - The accused’s account, indicating that he was to have done more work for Sheree, conflicted with the interview of Dylan Desrosiers, another casual trucking employee, who said he would not be required due to weather. - Forensic evidence showed Sheree Fertuck’s blood was in Greg Fertuck’s truck. The cell phone research showed the accused’s cell phone was in that area despite his denial that he was out there that day. - Mr.

Fertuck gave the police conflicting statements. Further, his statements conflicted with other evidence obtained by police. - There was a prior history of domestic violence. [ 72 ] Based on these grounds the RCMP arrested Mr. Fertuck on October 25, 2017 and he was interviewed that day. Doris Larocque was not arrested or placed in a cell but she was taken to the detachment for an interview and was cautioned that she could be an accessory after the fact. Later, Sgt. Climenhaga felt the statements of Gregory Fertuck conflicted with those of Doris Larocque. [ 73 ] At the end of these events Sgt.

Climenhaga contacted the Crown prosecutor liaison, seeking charge approval. It

was not granted. It was at and after that point that a “Mr. Big” operation was seriously considered. On June 28, 2018 she received the approval from Ottawa for that operation. She acted as the “rider” or main investigatory liaison with the Mr. Big cover officer, Kurt. [ 74 ] Sgt. Climenhaga noted the undercover interview with the crime boss occurred on June 21, 2019. She was still acting as the rider, and she watched and listened to that interview. She felt a confession had been made.

She testified that as she was watching the big boss interview she was thinking of evidence on the police file and comparing this to what Mr. Fertuck was saying. Overview of Statements Made to Police [ 75 ] During the course of the investigation, the RCMP deemed Mr. Fertuck a person of interest and then a suspect. These suspicions grew over time. As a result Mr. Fertuck was dealt with on numerous occasions by numerous officers. Some of these transactions occurred rather informally, yet were audio recorded.

He was also brought in for questioning in a more formal sense, with statements being taken while in police custody. [ 76 ] Mr. Fertuck made the following statements to police which are in issue in this voir dire : - December 9, 2015; - December 10, 2015; - October 25, 2017; and - June 25, 2019. [ 77 ] Part of the voir dire in this matter was held to determine the admissibility of these “non-Mr. Big” or “classic” police statements. This ruling includes my decision on the admissibility of Mr. Fertuck’s statements to persons in authority (police) when he knew he was talking with the police.

Some of these were very short; some took hours long. [ 78 ] By definition, formal police interviews of suspects involve questioning (often aggressive questioning), pressure and sometimes even a degree of psychological manipulation. Police want the truth. They may see the interviewee as the guilty party so they seek the statement so that the suspect will either fully confess or at least make some admissions against interest. The interview room itself is generally not built for comfort. The police may use emotions to push the suspect into talking. This may take many forms. They may wish to “buddy up” to a suspect.

They may wish to make him or her feel guilty. Very often they provide to a suspect disclosure of pieces of evidence derived from the investigation, slowly dealing out the individual bits of evidence as if in a game of cards. They may implore a suspect to just disclose his or her side of the story, to let the interviewer understand how the crime could have happened. [ 79 ] There is nothing inherently wrong with any of this, provided it is balanced and does not overwhelm the suspect’s free will.

The state’s interest in investigating crimes and bringing wrongdoers to justice is obvious, but the countervailing right of individuals to maintain silence, access counsel and remain free from improper investigative tactics is just as important, if not just as obvious. As a result, police interrogations are limited by a combination of the Canadian Charter of Rights and Freedoms and the common-law confessions rule.

As with most cases involving a contested statement to police, this matter involved an assessment of the applicable law and a balancing of these competing societal interests. [ 80 ] I now turn to the police statements themselves. I will review the circumstances of each, then later in this ruling assess those circumstances against the criteria pertaining to voluntariness. [ 81 ] December 9, 2015. This was a brief audiotaped statement Mr. Fertuck gave to the missing person investigators. He told them a number of things that were untrue.

This raised their suspicions and prompted further investigation of him. [ 82 ] December 10, 2015. This was also a brief audiotaped statement. It has been shown that at the time it was taken Mr. Fertuck was intoxicated, which is highly problematic for the Crown. [ 83 ] October 25, 2017. This was a longer statement done at the RCMP detachment after Mr. Fertuck had been arrested. His daughter Lanna was brought into the questioning and took

part in same. Problems arose at that point. [ 84 ] June 25, 2019. This was also a longer statement. Mr. Fertuck had been arrested the previous day at the conclusion of the undercover operation. He was held almost 24 hours before this statement began. It was a vigorous questioning. The Mr. Big Operation [ 85 ] In 2018 the decision was made to conduct a major investigative operation. For convenience I refer to the major undercover investigation as the “Mr. Big” operation. This is a common term, used frequently by the media.

I have noted that members of police services generally do not like to use that term, but it is the term commonly used and it is used herein for convenience. Again, the details of that portion of the investigation are set out below. Law enforcement authorities determined at the conclusion of the Mr. Big operation that there was enough evidence to proceed with a murder charge against Mr. Fertuck. He was arrested on June 24, 2019. He has remained in custody on remand since. He applied to this Court for interim release but abandoned his application before it was completed. [ 86 ] I turn to the Mr.

Big operation and the required voir dire , which began in September 2021 and through a series of odd events (detailed below) continued to the end of June 2023 with witness testimony. This was a complex hearing. A large amount of evidence was called. [ 87 ] I commence with a reminder. At the outset of this matter an order was made that no information be published that would identify or tend to identify the undercover officers involved in this matter. That order remains in place. All of those officers

are referred to herein by pseudonyms. [ 88 ] The Crown evidence tendered at the voir dire tends to fall within one of three broad categories: - evidence of the murder investigation prior to the commencement of the undercover operation, including statements to persons in authority; - evidence pertaining to the obtaining of the statements from Mr. Fertuck in the course of the Mr. Big operation; and - evidence which putatively is confirmatory of what he said within those statements. [ 89 ] Ms.

Fertuck’s status progressed from being an involved person in a missing person matter to being a suspect in a murder investigation. Even though it ultimately “went cold” the murder investigation produced some evidence, before the Mr. Big operation commenced. Some particulars of that investigation are germane to the present task. In this ruling I am not going to set out every scrap of evidence put before me regarding the investigation. I am simply going to highlight some matters that have a bearing on the decision I must make in this Mr. Big voir dire .

Background to the Investigation [ 90 ] The police officers who testified and who were involved in the Mr. Big operation all testified under pseudonyms. Generally in Saskatchewan peace officers involved in such undercover work adopt pseudonyms. By consent, only the fictitious names were used here. There is a publication ban in place regarding these officers’ true identities. [ 91 ] The officers primarily involved in the investigation of Mr. Fertuck were part of an RCMP undercover operation group. These are highly specialized units. There are only a few such units in Canada.

They primarily deal with “cold case” homicides, although other significant unsolved crimes can be the subject of these investigations. [ 92 ] In these Mr. Big investigations officers fulfill different roles. Some work undercover. Some, however, work in a support capacity. One such role is that of the “cover” officer, and that role is crucial. [ 93 ] The cover officer is one of the few participants in a Mr. Big operation that has the overall view and knowledge of what is going on; that is, where the investigation has been and where it is going.

The cover officers are concerned about maintaining officer and public safety. They design the various “scenarios”, or components of Mr. Big operations. They also liaise with the more traditional investigative team. This is a huge commitment of time and resources for these cover officers. It is a position of significant responsibility. [ 94 ] Cover officers generally are in close physical proximity to the locations where scenarios are taking place. They maintain contact with the undercover officers through listening devices and through phone and text communication.

The liaison with investigative officers from RCMP Major Crimes units is important because those officers have the most knowledge and the best grasp of the investigation itself. Generally an officer from Major Crimes accompanies the cover officer on scenarios and they meet behind the scenes. This officer, called the “rider”, is often the lead investigator. Sgt. Climenhaga was the rider in this case. [ 95 ] Further, cover officers are experienced peace officers who have served in undercover roles and have hands-on experience with the Mr. Big technique.

The first time an officer acts as the cover, there is a more experienced cover officer involved to provide guidance and oversight. [ 96 ] The cover officer in this investigation provided testimony to the Court, including an overview of these investigations generally and particulars of this investigation. This officer, known only as “Kurt”, had over 20 years of RCMP experience as of the date of trial. He worked as an undercover operative including in Mr. Big investigations, then cross-trained as a cover officer in 2010. This involves classroom training and field exercises.

Kurt sometimes is an undercover officer, sometimes a supervisor, and sometimes the cover officer. Prior to the investigation involving Mr. Fertuck, Kurt had been the cover officer on two other Mr. Big investigations. [ 97 ] Kurt explained that from the police perspective, the purpose of the major crime technique is to find the truth about the target’s involvement (if any) in the alleged crime under investigation. Most often, the crime is a homicide. He was emphatic that the goal is not to obtain a confession, but to find the truth.

Kurt is aware of and has been involved with such investigations where the target was actually cleared of any wrongdoing. He noted that while these investigations are long and expensive, it is not considered a failure if a target is cleared. It is always open to investigate someone else. [ 98 ] Kurt provided a full overview of this Mr. Big operation, which was code-named “Operation Fisten”, which actively ran from approximately June 2018 to June 24, 2019 (the date of Mr. Fertuck’s arrest). Prior to this time preparation work was done. RCMP officers had referred Ms.

Fertuck’s unsolved case to RCMP management, which in turn approved the matter to be forwarded to this undercover unit. [ 99 ] Initially (June 2018) the undercover unit conducted what is termed “lifestyle surveillance” on Mr. Fertuck. The objective is to learn the habits, activities and associates of the target. There is no “master plan” for the undercover investigation, from beginning to end. Rather, it evolves in a fluid manner. Overall, the process is subject to change. The scenarios may be tailored to the specific crime being investigated.

This may influence which undercover officer is used as the primary contact. Themes, and how they are delivered, are influenced by this initial gathering of intelligence. As well the personality of the “target” (person under investigation) can affect how scenarios evolve and who is selected to be undercover operatives. [ 100 ] In this case the primary contact selected was “Adam”. Often the primary contact is of a similar age to the target but here Adam was significantly younger. A major objective in selection of personnel is to make the target feel comfortable enough to tell the truth.

[ 101 ] Another factor is the personality of the target. Often the nature of the fictitious crime gang and its members mirrors the offence under investigation and the attributes of the target. For example in an alleged spousal murder, the concept that misogyny and/or violence toward women is acceptable is imparted. As well, care is taken so that a target is not overwhelmed by the primary officer. For example a meek and mild target is generally not paired with a brash, flamboyant undercover officer.

Instead of overwhelming a target the objective is to build rapport with him. [ 102 ] Kurt also testified that in his role as cover officer he has been trained in and has a general understanding of the applicable case law, including the Supreme Court’s requirements in Hart . Specifically, he was aware of Mr. Fertuck’s apparent issues with alcohol consumption and took this into account in designing scenarios and managing the conduct of the undercover officers. Alcohol was a concern for Kurt because he felt Mr. Fertuck could be dependent on it, and he did not want Mr.

Fertuck to see the officers who were the fake gang members as people with whom he could drink. As well, this undercover operation was designed to be relatively violence-free because Kurt did not want Mr. Fertuck to perceive any threats to his safety within the fictitious crime organization. As a result matters were arranged to show Mr. Fertuck that it was open to him to leave the organization without any violence, penalty or other issue.

Kurt noted that throughout this investigation Hart was considered and in “higher action scenarios” approval was sought from supervising officers. [ 103 ] Kurt understood that since Hart holdback and confirmatory evidence were required, or at least were powerful indicators of truthfulness of a target’s Mr. Big statements. There was evidence from the scene of Sheree Fertuck’s disappearance at the gravel pit that was considered holdback evidence.

The undercover officers were not made aware of the suspected manner of death of Sheree Fertuck nor of the type of weapon it was believed had been used to kill her. [ 104 ] In developing the initial contact scenarios and all further scenarios to come, Kurt had access to the police investigation file as well as a personality assessment of Mr. Fertuck created by another officer (Exhibit D-3). Kurt said he reviewed that assessment but did not use it to create scenarios. Kurt also had access to Mr. Fertuck’s warned interviews with police, and noted Mr. Fertuck was “very cagy” with investigators. Kurt noted Sgt.

Lerat was a seasoned interrogator but Mr. Fertuck held his ground during that interview process. [ 105 ] Prior to engaging in the scenarios, Mr. Fertuck was assessed as holding a good level of intelligence. He was surveilled to determine his lifestyle. It was noted he drove a pickup truck, lived with a woman named Doris and their dog Copper in a house on Avenue O South in Saskatoon, and went to the liquor store on a daily basis. He clearly had money as he drove his truck and purchased substantial amounts of liquor. Mr.

Fertuck had retired after a long railroad career and did not hold a steady job when the operation began. He did not maintain a set schedule. He was about 65 when the operation commenced. He told officers he received an employment pension plus about $1,500 monthly from Canada Pension and Old Age Security. Later, he indicated he had an interest in a family property division with Sheree Fertuck but all funds had been frozen. [ 106 ] The house Mr. Fertuck and Doris lived in was decent and was well maintained, and Mr. Fertuck was observed going places with Doris. Mr.

Fertuck was involved with another woman named Donna in the late fall of 2018. It was determined that Mr. Fertuck would visit his mother and that he had a brother and a nephew. Apart from the concern about his liquor consumption no physical or mental disabilities were noted during the lifestyle surveillance phase. Mr. Fertuck was functional, in terms of possessing an operator’s license, being able to drive himself around town and elsewhere, having what appeared to be an ongoing relationship with Doris, and dressing and grooming himself satisfactorily.

Kurt indicated these observations were assessed in light of the Hart criteria and ultimately it was Mr. Fertuck’s liquor consumption that remained a concern. [ 107 ] In this regard, the consumption of alcohol was discouraged. The undercover officers generally drank nothing or little and discouraged Mr. Fertuck from drinking during scenarios. Kurt was prepared to deal with this issue in other ways but noted the undercover officers had done a good job in controlling it, and he did not have to intervene. [ 108 ] Kurt noted that very little actual information was given to undercover operatives.

He provided them with a short “preamble”, which described how Sheree Fertuck had gone missing and that the “bump” had occurred with Mr. Fertuck. [ 109 ] Kurt gave an overview of the undercover operation. There were 136 separate scenarios in Operation Fisten, and Mr. Fertuck was involved in 130 of them. For about 20 of them, Mr. Fertuck was ill and in hospital. Scenario #1 was August 6, 2018. Scenario #136 occurred on June 24, 2019. An index of the scenarios was created (Exhibit P-77) and Kurt confirmed the index was accurate. As well as the direct scenarios, officers frequently texted or telephoned Mr.

Fertuck. [ 110 ] Kurt described how the investigation into Ms. Fertuck’s homicide first came to his unit, as the principal investigators had run out of leads and the case was “cold”. Those investigators provided an overview of the investigation and a proposed plan. Management and the undercover unit approval was required. Mr. Fertuck was identified by the investigative team as the primary target of Operation Fisten.

There was an undercover investigative checklist (including a budget) prepared and approved, with final approval coming directly from Ottawa given the significant costs and resources which go into such an undercover investigation. [ 111 ] Meetings were held before and after each scenario. Officers were briefed as to what would occur before each scenario, then a debriefing session was held after. Kurt was told what happened in each scenario. Sometimes Kurt would listen in directly. In his testimony Kurt said that when he listened in, it was often hard to hear what was being said. I agree.

It was my observation that the quality of the sound during much of this undercover operation was quite poor, certainly much worse than in the other Mr. Big trials I have conducted. This made the assessment of the evidence in this voir dire more difficult than usual. [ 112 ] Kurt also noted that the undercover officers kept track of what occurred through their notes. They were able to make notes in different circumstances. With mobile phones it can look like someone is texting when in fact that officer is making notes.

Alternatively notes were written during breaks in scenarios or immediately after a scenario. [ 113 ] While circumstances vary in this type of investigation, in general there are three primary types of operatives: - The primary undercover operative, who meets and deals directly with the target on a fictitious basis, and who forms the trust

relationship with the target. - A second undercover operative, who is the “crime boss” or “Mr. Big”, has the ultimate meeting with the target to secure a fully-detailed confession in which the target reveals all his knowledge of the subject crime to the police. - A third officer who is the cover person (Kurt, in this case). He or she has no direct dealings with the target, but is the architect or director of the operation and sets out components thereof, referred to as “scenarios”.

As well, the cover officer monitors the direct undercover dealings and usually stays in close proximity for officer safety reasons. [ 114 ] This technique has often been implemented by peace officers portraying themselves as members (and sometimes associates, rivals and even victims) of a fictitious criminal organization. While the “gang” or “organization” is itself a fundamentally dishonest fiction, the values of truth and honesty within the organization are reinforced, with the intention that the target will feel comfortable in imparting information about an unsolved crime to high-ranking organization members.

As well, since Hart it is demonstrated that there are consequence-free ways to leave the gang. Violence is downplayed and is not used within the gang itself. The target’s perception that the “gang” is real becomes his reality. [ 115 ] Kurt also spoke to the money paid and the incentives. He said there was a gap between the pay for legitimate work and the pay for criminal work. He did not see that gap as being huge. For example, for similar work the legitimate pay would be $80 versus $200 for criminal work. The differentiation between rates of pay was maintained. Mr.

Fertuck occasionally did work on both sides, and when Adam paid him the payments were kept separate and it was explained which amount corresponded with which work. Through the entire operation Mr. Fertuck never seemed short of money, never complained about it, and never commented on any delays in payment. Once or twice Mr. Fertuck did complain about how much he had been paid for the job he did, but the organization did not increase the rate of pay and those were isolated incidents. [ 116 ] Another feature of this organization was the ability to withdraw or retire.

Twice Kurt staged retirement parties or celebrations for gang members who had decided to retire. One was in Edmonton and was held for a member who was retiring to Mexico. The second was in 2019 for a member who wanted out of the criminal realm and desired to go legit. [ 117 ] Linked to this ability to withdraw was the idea of consequences. The consequences of making a mistake were not dire as long as the employee was honest. As described below there was a scenario where an undercover operator named “Jeff” made a big mistake by relapsing and drinking on the job. He was offered treatment or another job.

Further, when a gang employee named Chad had to be fired there was follow-up to ensure he was doing all right; Mr. Fertuck was told Chad had landed a job in the oil industry thus was still working and was economically unharmed. All of this was done to show there could be an exit from the gang without penalty, whether the exit was voluntary or involuntary. [ 118 ] In terms of the Hart criteria it is noteworthy that the operation emphasized to Mr. Fertuck that there was no internal violence. Gang problems were solved in other ways. This was to tell Mr.

Fertuck there was no overarching threat of violence if someone made a misstep. Even with outsiders, violence was not emphasized during this undercover operation. When a debt was being collected and the debtor came up short the gang took his vehicle as collateral rather than assaulting him. When he came up with the money the next day his car was returned. [ 119 ] Similarly, scenarios were designed so that while Mr. Fertuck believed himself to be a part of a large, influential, intelligently-run criminal organization, he did not commit any actual crimes while involved in the “criminal” side of things.

It was the scenarios themselves that illustrated or suggested criminality. Some involved loansharking; others the moving of unspecified contraband, with border guards that were “on the take” being introduced. Drugs were never involved. All of this was designed to give Mr. Fertuck the perception that real crimes were occurring. [ 120 ] It is useful to consider Kurt’s overview. I am not setting out every shred of evidence on every single scenario. Rather, this overview has a focus on the most salient aspects of the undercover investigation.

Further key parts of this undercover investigation will be expanded upon later in this judgment. The “Bump” [ 121 ] Significant planning goes into how to make the initial contact with the target. It is not a direct approach. This first contact with Mr. Fertuck needed to be enough to interest the target in further contact with the operatives involved, but not so intense as to “spook” him or raise suspicions. This initial contact, sometimes called “the bump” by police, was contained in Scenarios #1 through #7 in this case. Scenario #1 was August 6, 2018.

The final scenario (#136) was June 24, 2019. [ 122 ] Because the lifestyle surveillance had revealed Mr. Fertuck was almost a daily shopper for liquor, Kurt created a false marketing survey with prizes. For a number of days in July 2018 two female operatives were placed in an off-sale liquor outlet frequented by Mr. Fertuck. They were conducting fictitious marketing research about people’s drinking habits. There was also a draw box. If a customer took their survey they could enter their name in the contest.

There were three prizes: a trip to Cancun, Mexico; a trip to the Banff/Canmore area; and a concert to occur in Calgary or Edmonton. This marketing survey/contest was conducted during Scenarios #4 to #7. [ 123 ] Mr. Fertuck attended at this liquor outlet and took the survey. His entry was checked and it was confirmed that he had entered his proper information. Of course, the police ensured that Mr. Fertuck “won” the contest and that it was second prize, a trip to the Banff/Canmore area. A live draw was conducted at the Mano’s liquor outlet in Saskatoon on August 23, 2018. [ 124 ] Undercover officers went to Mr.

Fertuck’s home during Scenario #6, telling him and Doris that they had won the Alberta trip. Kurt listened to this interaction live as it was happening, and he concluded there was significant comfort in this success. Both Mr. Fertuck and Ms. Larocque were happy and excited. The “prize” was a trip for two, as the preliminary research had convinced Kurt that Mr. Fertuck would welcome the opportunity to bring Doris along on this trip.

The Scenarios [ 125 ] I have already noted that Scenarios #1 to #7 were the bump, or hook, to draw Mr. Fertuck into the orbit of the fake gang. In Scenario #8 the direct involvement began. On September 13, 2018 undercover operative “Lorna” picked up Mr. Fertuck and Ms. Larocque in a cab, transported them to the airport, and flew them to Calgary. There they met “Morgan and Michelle”, police officers who ostensibly were other contest winners from Winnipeg. From Calgary the party drove to Canmore and went to a restaurant. Along the way they picked up “CP” and “DJ”.

CP was a person who would be introduced as a person who worked for the fake criminal organization. DJ was his daughter. CP is a person with a very happy nature, garrulous, a bit heavyset, with a long “wizard” beard. He portrayed himself as a happy-go-lucky individual. On this trip all expenses were picked up by the fictitious marketing organization. [ 126 ] It was on September 13, 2018 that the recordings of the investigation began.

Most of the interactive scenarios were recorded after Scenario #8 but some were not, especially where there was a high risk of detection such as in an airport with the attendant security. Recording is done for a number of purposes including to ensure accuracy of the conversations with the target. The meeting with CP would be the first interaction Mr. Fertuck had with someone from the organization. Michelle and Lorna, the purported marketers, had no further engagement with the undercover operation after Scenario #8. [ 127 ] Kurt noted that in the early part of this trip Mr.

Fertuck appeared unwell, being tired with almost flu-like symptoms. He was not drinking during this period and Kurt wondered if Mr. Fertuck was suffering from alcohol withdrawal. Lorna was instructed to offer to take Mr. Fertuck and Ms. Larocque home by air at no cost with an opportunity to come back for this trip another time, so there was no lost opportunity to claim the “prize”. Mr. Fertuck declined that offer. [ 128 ] On day two of the trip Mr. Fertuck was still unwell earlier in the day and he declined to go on the planned fishing trip. Later, CP saw Mr.

Fertuck in the hot tub and the latter felt better around dinnertime that day. He slowly improved over the course of the second day. [ 129 ] As well as getting Mr. Fertuck involved in the undercover investigation, the purpose of his winning the contest was to introduce Mr. Fertuck to CP. This event planted the seed that CP was really busy with work. He received work calls which Mr. Fertuck overheard. This was to show that the “gang” was busy and show that CP was gainfully employed by the gang. [ 130 ] Kurt had instructed the undercover officers to keep control on the consumption of alcohol.

Officers were not to order pitchers of beer or bottles of wine. Only individual drinks would be allowed. No rounds of shots were permitted. It was left to Mr. Fertuck as to an individual choice to drink, without pressure from any police operatives. Indeed, during a stop at a liquor store only the police went in; Mr. Fertuck did not. Kurt noted that under Hart it was important that Mr. Fertuck exercise his own free will regarding the consumption of alcohol. Kurt noted that having scenarios with absolutely no liquor was not an option, as the undercover agents needed to establish credibility.

However, steps were taken to mitigate the amount of alcohol consumed. For example, two undercover police officers were introduced as members of the organization who were dry and sober members, to show this was socially acceptable. There were, in addition, some events with no alcohol. [ 131 ] The fact that Mr. Fertuck was unwell during the first two days of the trip prevented a large amount of interaction with undercover officers during that time. Initially Mr. Fertuck was reserved. This soon changed. He began to drink and became quite vulgar. It was noted that Mr.

Fertuck dressed in a certain “style”, in black western wear with a cowboy hat. He often referred to himself as “the dark cowboy”. This was different than the manner in which the operatives dressed. They were very casual in jeans, work boots, T-shirts and hoodies. Mr. Fertuck’s style of dress did not change throughout the operation, irrespective of what the operatives wore. [ 132 ] The “organization” was initially explained to Mr. Fertuck as being large. It had expanded throughout western Canada. It had two sides, being a legitimate side and a criminal side. The criminal side made more money.

The legitimate side existed to explain the criminal side. Throughout the operation it was emphasized that people could remain involved entirely with the legitimate side and not be involved in any criminality. That choice was always left open to Mr. Fertuck. [ 133 ] The legitimate side of the business was the transportation, acquisition, repair and sale of vehicles. There was nothing of an outright criminal nature in this. This was chosen to be the legitimate aspect of the undercover operation given the accused’s history of working at CN Rail.

He had experience with this kind of work and, for example, knew how to properly strap a vehicle down to a flat deck. [ 134 ] As the contest trip wound down, a discussion was prompted where Mr. Fertuck and Ms. Larocque would get together later to attend a concert with CP, DJ and Adam. Mr. Fertuck and Ms. Larocque had gotten along very well with CP and DJ. DJ was striking up a nice friendship with Doris. Adam was said to be DJ’s boyfriend. CP said he lived in Calgary but DJ attended university in Saskatoon, giving CP plenty of reason to be in that city.

This part of the legend illustrates the efforts made to augment the storyline and bolster credibility, as DJ wore a U of S hoodie and would be picked up or dropped off on campus during the operation. As well, a covert Calgary location was established as the workplace of the organization to lend more credibility through a backstory. [ 135 ] In other operations all this would assist in prompting the target to ask for work with the organization. It was hoped Mr. Fertuck would do so of his own volition. He did. [ 136 ] At first there were no obvious criminal conversations but during the contest trip Mr.

Fertuck was very interested in CP’s work. At dinner on the second night of the contest trip Mr. Fertuck expressed significant interest in CP’s work, then by Scenario #12 in Saskatoon he asked to work for CP. It did not take long for Mr. Fertuck to be attracted to working for the organization. [ 137 ] As Mr. Fertuck moved toward active work with the fake gang, Kurt had concerns with Mr. Fertuck’s age and drinking. While the drinking was not an issue in the early stages, the decision was made not to let Mr. Fertuck drive at all. Nor would he be allowed to do any heavy labour or lifting. About the heaviest work Mr.

Fertuck did was to take loading ramps off the flat deck, which is not very strenuous. The concern about drinking became more acute as the operation went on as Kurt noted Mr. Fertuck drank quite a bit, to the point where he would be a safety concern for the public if he drove on a roadway. The undercover agents got to know Mr. Fertuck well and they could tell if he had been drinking.

[ 138 ] During these initial stages of the undercover operation the undercover officers took steps to determine Doris Larocque’s status with Mr. Fertuck, and the extent of her involvement with his lifestyle. They reported that Mr. Fertuck and Ms. Larocque lived together as a couple. There was fairly regular contact with Doris throughout the scenarios. Doris was also considered a potential target given her relationship with Mr. Fertuck. Kurt was aware that shortly after Mr. Fertuck’s release from custody in 2017 he and Doris had a conversation in a remote area, which was seen as odd. Further, later on when Mr.

Fertuck was in the hospital he told Adam that his son blamed him for shooting someone and Doris hushed him. As DJ had hit it off with Doris they formed a friendly relationship, going out to eat and spending time together. [ 139 ] On September 20, 2018 in Scenario #12 a group including the accused attended at the Shark Club. Kurt noted that given Mr. Fertuck’s background and the concerns about his alcohol consumption, high-end places would be avoided. Kurt selected almost all the venues and they were more “blue collar” in nature, such as Denny’s, Perkins, buffet places.

About the highest end place used was The Keg. These other restaurants did not push liquor and Mr. Fertuck’s level of consumption was not as large a concern there. As well, given his background, it was felt Mr. Fertuck would not be overwhelmed by attending at such places. It was on Scenario #12 that Mr. Fertuck asked for work. He asked CP and gave CP a gift of a beaver pelt. [ 140 ] At first Mr. Fertuck was only given legitimate work to do, mainly transporting vehicles. He was to be paid $20/hour. So, for example, transporting a vehicle to North Battleford and returning to Saskatoon would pay Mr. Fertuck $80.

Eventually the criminal side of the organization would be involved and the pay was higher, averaging at $200 per task. This embraced the “more risk more reward” philosophy and was designed to bolster the organization’s credibility. Mr. Fertuck was told the existence of the legitimate side explained the presence of the money derived from the criminal side of the operation. [ 141 ] As well, the amounts paid to Mr. Fertuck were carefully designed to be an incentive but not overwhelmingly so. The police were well aware that Mr. Fertuck had made more money at CN. Over the term of this investigation Mr.

Fertuck was paid between $15,000 and $16,000 in total, plus road expenses, which Kurt saw as an “expected” sum but not overwhelming in scope. [ 142 ] Mr. Fertuck’s initial connection was to CP. Throughout the operation CP was in both Saskatchewan and Alberta quite a bit. The storyline of the operation was that CP set up Adam (his “daughter’s” boyfriend) with increasing responsibility in Saskatchewan, creating a greater bond between Mr. Fertuck and Adam. CP reported to “John”, an undercover operative who ostensibly ran the operation in Alberta. The hierarchy of the organization was revealed to Mr.

Fertuck over time: Christian – the crime boss, the head of the entire organization. Steph – the underboss. John – ran Alberta. CP – one level lower than John but with significant seniority. Adam, others – workers, essentially. Mike – introduced later, he had similar duties but special skills. [ 143 ] CP was almost a secondary operative but had a significant role in the investigation. He was in about 68 of 136 scenarios. He was brought in at key moments, such as when the criminal side of the organization was revealed to Mr. Fertuck. [ 144 ] Scenario #13 on September 21, 2018 was important as it introduced Mr.

Fertuck to Adam, who would be the primary contact with Mr. Fertuck. CP and Mr. Fertuck transported a vehicle together that day. They went to North Battleford and stopped for breakfast, where they would meet Adam. Mr. Fertuck did not want to go in and ultimately refused, staying in the truck. As a result CP adapted the plan and got food to go, taking it and Adam with him to the truck to meet Mr. Fertuck. Among other things, this scenario illustrated the ability and need of operatives to improvise. According to Kurt it also illustrated Mr. Fertuck’s independence.

Most people would have gone into the restaurant as it was the socially acceptable thing to do. Mr. Fertuck was steadfast in his refusal and would not go, making and sticking to his own choice. [ 145 ] Scenario #14 occurred October 3, 2018. The accused worked with Adam who picked up Mr. Fertuck that day. Mr. Fertuck voluntarily gave Adam an account of something he said had happened. He said he’d had an encounter with a prostitute. She tried to rob him. He referred to her as a “white squaw”. He said that he resisted the robbery and assaulted the prostitute.

He claimed he had broken her arm, stomped her head into gravel. Adam noted Mr. Fertuck had a scrape on his face. When Kurt obtained this information his first concern was for the injured person. He contacted the Saskatoon Police Service to see if any incident report had been filed but there was no record of same. Despite the nature of the undercover operation the RCMP could not turn a blind eye to an alleged serious crime, and there was a duty to investigate. [ 146 ] The undercover unit’s view was that while there was no formal record of such an event it could have happened.

It was taken as an opportunity to instruct Mr. Fertuck on the nature of the gang’s operations. There was a reference to a member named “Gary” who was not supposed to have anyone in his room but the police came knocking. The overall message to Mr. Fertuck was such activity was not worth it if it comes back on the gang. This was also taken as an opportunity to introduce the theme of telling the truth being a good thing. Mr. Fertuck asked questions about the “Gary” incident. [ 147 ] It was at this point that Kurt began thinking about a scenario with an overnight trip, with work to be done further afield.

The purpose was to show Mr. Fertuck the organization’s expanse, the bigger picture. Thus in Scenario #17 there was a drive to Regina and the character of Dave was introduced. The purpose of Dave was to deal with the issue of alcohol. [ 148 ] In Scenario #17 Mr. Fertuck and Adam drove to the gang’s warehouse. In the fridge were alcoholic and soft drinks. The accused was free to choose. However it was made clear that drinking and working did not mix within this organization. After their work was done Adam and Mr. Fertuck were free to have a beer. Other members who were still working were not. Kurt noted that

during most scenarios Mr. Fertuck’s alcohol consumption was moderate. He would generally have two or three drinks in a one- to two-hour period. [ 149 ] “Dave”, although older, was a newer member of the organization. This was scripted to show Mr. Fertuck that notwithstanding his age there was a place for him in the organization. At the warehouse he was given a hoodie with the company logo on it and was welcomed into the organization. That day Mr. Fertuck was paired with Cory, a younger employee. It would be demonstrated that Mr.

Fertuck’s experience would be a benefit to the legitimate side of the organization’s activities. These early scenarios were often designed to establish both the credibility and the ethos of the gang. [ 150 ] It was noted during this scenario that Mr. Fertuck appeared to be getting more comfortable within the organization. He was more talkative. His crude sexual comments were increasing in frequency and were increasingly vulgar and lurid. To make him feel at ease the undercover operatives went along with these comments and even mirrored them.

Kurt noted that just because undercover operators said such things during the Mr. Big scenarios did not mean that this was the way they really felt. They were, after all, playing a role. But they were pleased that Mr. Fertuck was opening up. As the scenarios progressed, the gan

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