COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kelly, 2017 ONCA 621

DATE: 20170726

DOCKET: C55622

Feldman, Gillese and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Earl Kelly

Appellant

John Kaldas, for the appellant

Joan Barrett, for the respondent

Heard: November 4, 2016

On appeal from the conviction entered on January 27, 2012
    by Justice John DeP. Wright of the Superior Court of Justice, sitting with a
    jury.

Feldman J.A.:

[1]

On
November 21, 2000, the appellants common law spouse
    was reported missing. Her body was found on August 26, 2004. In 2009, the
    appellant was charged with her murder. Following a 15 day trial, the jury
    convicted the appellant of first degree murder. The trial judge sentenced him
    to life imprisonment.

[2]

The appellant appeals his conviction. He argues that
    his confession was the product of a Mr. Big police operation and does not meet
    the
R. v. Hart
, 2014 SCC 52, [2014] 2 S.C.R.
    544

criteria for admissibility. He says the confession should never have
    been admitted but if it was properly admitted, the trial judges charge to the
    jury was insufficient to meet the requirements in
R. v. Mack
, 2014 SCC 58, [2014] 3 S.C.R. 3

and had other deficiencies that
    entitle him to a new trial.

[3]

For the reasons that follow, I would dismiss the
    appeal.

FACTS

[4]

The appellant reported his common law spouse, Judith
    Thibault, missing on November 21, 2000.

In
August 2004, land surveyors found the victims body in a remote
    wooded area in the District of Thunder Bay, nearby the Hamlet of Dorion. The
    surveyors found the victims body about ten feet from Wolf Lake Road. An
    autopsy revealed that she had been killed by a single bullet to the back of the
    head from a .22 caliber firearm.

[5]

Although no direct forensic evidence linked the
    appellant to the murder, the police considered him the primary suspect.

[6]

There were inconsistencies in the police testimony as to exactly what
    information about the murder was held back from the public. However, all
    officers agreed the following was held back: (i) the victim was shot once in
    the back of the head, at the base of the skull; (ii) the materials used to wrap
    the carpet, i.e. white coaxial cable and yellow polypropylene rope; (iii) the
    precise location the body was found, i.e. about ten feet from and on the east
    side of Wolf Lake Road.

[7]

After the discovery of the body, the police interviewed the appellant a
    number of times. One interview with Officer Graham in March 2006 was heated.
    Officer Graham admitted he was purposely aggressive in his tone with the
    appellant. Much of this tense interaction occurred as Officer Graham pursued
    the appellant to his vehicle after the conclusion of the formal interview.

[8]

Over the course of this heated exchange, Officer Graham disclosed to the
    appellant: (i) the caliber of gun used to kill the victim; (ii) that the
    victims body was found wrapped in a carpet from one of her tenants
    apartments; and (iii) where the victims body was found. Officer Graham also
    showed the appellant an autopsy photo depicting the front of the victims skull
    and the carpet in which her body was wrapped.

[9]

In March 2009, the police decided to launch an undercover operation entitled
    Project Wolf with the goal of eliciting a confession from the appellant. On
    March 25, 2009, the undercover investigation commenced when the main undercover
    officer, Sergeant Debellefeuille, contacted the appellant, who was then
    remarried and living in Alberta. Sergeant Debellefeuille played the role of
    Bob, a private investigator retained by an insurance company to locate the
    appellant as he was the beneficiary of a policy of insurance on the victims
    life in the amount of $3000.

[10]

On
    May 6, 2009, Bob and the appellant met for the first time. Bob paid the
    appellant the $3000 in insurance proceeds. He explained to the appellant that
    he had been given a release form to have the appellant sign, but that the
    release was unusual in that it purported to acknowledge not only receipt of the
    $3000, but also his release of any claims on any other policies of insurance.
    Bob explained that he would make further inquiries to ensure all was in order.

[11]

In
    two subsequent meetings on June 24, 2009 and July 28, 2009, Bob told the
    appellant that he had confirmed the existence of two further life insurance
    policies, totaling $571,000, in which the appellant was the named beneficiary.
    Bob showed the appellant a fictitious document revealing that the policies had
    been flagged for nonpayment because the appellant was suspected of murdering
    the insured. Bob told the appellant that he could not receive the insurance
    payments until he was cleared of suspicion.

[12]

On
    August 22, 2009, at their fourth meeting, Bob proposed the insurance scam
    that ultimately led to the appellants confession. Bob said he had a terminally
    ill friend, Donnie who did not have long to live. The scheme involved the
    appellant providing Donnie with details of the murder so that Donnie could
    go to the police in the guise of a dying man seeking to clear his conscience
    and confess to the murder. Bob told the appellant that this would then clear
    the way for payment of the policy proceeds. In return for their assistance, the
    appellant would pay Bob and Donnie roughly $150,000 of the insurance
    proceeds. Donnies motivation was said to be his desire to have money to give
    to his niece, who had cared for him during his illness, so that she could
    attend university.

[13]

The
    appellant agreed to the scheme. A meeting with Donnie was arranged. On
    September 25, 2009, the appellant was flown from Edmonton to Toronto for the
    meeting, which was scheduled for the next day. Bob covered his flight costs.

[14]

On
    September 26, 2009, the critical meeting occurred. Bob picked the appellant
    up from his hotel and took him to another hotel to meet with Donnie.

[15]

The
    hotel room where the appellant met with Donnie was, unbeknownst to the
    appellant, wired for both sound and video. Over the course of the day, the
    undercover officers expressed frustration over the appellant not providing the
    details needed to make the confession sufficiently convincing. Bob reminded
    the appellant that if the plan went through he would be sitting on easy street
    for the rest of [his] fucking life.

[16]

Although he initially denied involvement seven or eight times,
    the appellant provided Donnie with details of the crime he said he had
    gleaned from news reports, discussions with police and talking with others.
    These details included that the victim was shot in the back of the head with a
    .22 caliber rifle and that her body was wrapped in blue carpet and dumped about
    50 feet from Wolf River Road. The appellant also gave Donnie one of the
    victims rings, explaining that while the police believed the victim was
    wearing it when she disappeared, it in fact had been
hidden in their home and later found by the
    appellant. The appellant described the ring as the clincher to Donnies
    confession. To provide a motive, the appellant told Donnie to say that the
    murder occurred after Donnie robbed the victim in the parking lot where her
    car was found.

[17]

Donnie insisted that he needed more details.
    He said the plan would not work if the appellant did not in fact kill the
    victim, as the real culprit may be found. At the same time, he told the
    appellant he did not want him to lie.

[18]

Finally, in the afternoon, the appellant
    confessed. He admitted that the night before he reported the victim missing he
    shot her with a single bullet in the back of the head with a .22 caliber rifle
    in the garage behind the house; he wrapped her body in a piece of blue carpet
    about eight feet by ten feet in size; dumped her body on the north side of Wolf
    River Road about 50 feet from the road and then threw the gun in the river. He
    said he killed the victim because their relationship had been going downhill
    and he wanted out. He also did not want the victim to learn that he had been
    taking cash advances on her credit card.

[19]

Donnie asked the appellant about his earlier
    denials. The appellant explained that he had been telling the same lie for
    eight and a half years or so and that its hard to break yourself of a bad
    habit. When asked whether he was now telling the truth, the appellant said he
    was.

[20]

The next day, September 27, 2009, the appellant
    returned home.

[21]

Before his arrest, the undercover officers spoke
    with the appellant 14 more times over the telephone. During these recorded
    calls, the appellant provided more details of the crime. He explained in detail
    where he had dumped the victims body. He explained that he had shot the victim
    just the once at the base of the skull and that he had wrapped her body in
    carpet that was tied three times with yellow nylon polyethylene rope. He said
    he had had the victim turn around before shooting her right in the back of
    the head square on.

[22]

On October 24, 2009, the police arrested the
    appellant. On arrest, the appellant stated its finally over. When introduced
    to the undercover officers at the station he said I thought I smelled a rat a
    long time ago but I let my greed get the best of me.

TRIAL JUDGES RULING

[23]

At trial, the appellant applied to have his
    confession excluded on the basis that the police tactic that induced the
    appellant to confess was a form of Mr. Big operation that would shock the
    conscience of the community. The trial judge dismissed the application, rejecting
    the assertion that the circumstances surrounding the confession, in particular
    the half million dollar prize, constituted a dirty trick that would shock
    the conscience of the community: he noted that the police conduct involved no violence
    or threats of violence and found there was a minimum of deceit. Ultimately, he
    held that [w]hether the size of the prize was sufficient to corrupt an
    innocent person [was] an issue for the jury.

ISSUES

[24]

This
    trial took place before the Supreme Court of Canadas decisions in
Hart
and
Mack
created a new approach to confessions obtained by the police using
    the Mr. Big undercover technique. The appellant says that, although this
    undercover sting operation did not involve the usual violence that
    characterizes Mr. Big operations, it had sufficient deceit, coercion and
    inducement to qualify as a Mr. Big and to be treated the same way by the court.
    The appellant submits that using the new framework, the confession should not
    have been admitted and that if it was not an error to admit it, the charge to
    the jury did not provide the required safeguards set out by the court in
Mack
.
    The appellant also submits that the trial judge erred in his instruction on the
    planning and deliberation component of first degree murder and misstated the
    evidence on this issue.

ANALYSIS

(1)

Were there elements of the police scheme that require the court to apply
    the
Hart

test for admissibility?

[25]

In
Hart
, the Supreme Court was dealing with a classic Mr. Big operation:
    undercover officers befriend the suspect as members of a criminal organization
    run by their boss, Mr. Big. The suspect is recruited to work for the
    organization, carrying out simple, apparently illegal tasks. He is included in
    the lavish lifestyle and camaraderie of the group, but is told that his
    ultimate acceptance depends on Mr. Big, and that honesty, trust and loyalty are
    required. The organization operates within an aura of violence, perpetrated
    against any member who betrays the trust. The suspect is exposed to simulated
    acts of violence against rats. The operation culminates with the job
    interview with Mr. Big where Mr. Big demands a confession to a crime he has
    learned the individual is suspected of: the confession will be proof of the
    suspects trustworthiness. During the interview, denials are dismissed as lies.

[26]

These
    confessions are admissible without the protection of the
Charter
that
    applies where the suspect is detained or the voluntariness rule that applies
    where the suspect confesses to a person in authority:
R. v. McIntyre
,
    [1994] 2 S.C.R. 480;
R. v. Hebert
, [1990] 2 S.C.R. 151;
R. v.
    Grandinetti
, 2005 SCC 5, [2005] 1 S.C.R. 27;
R. v. Hodgson
,
    [1998] 2 S.C.R. 449. Before
Hart
, the only protection available was
    the discretion of the trial judge to exclude the confession if the police
    tactics would shock the conscience of the community, or if the probative value
    of the confession was outweighed by the prejudice caused to the accused: see
Hart
,
    at para. 65.

[27]

In
Hart
, Moldaver J., writing for the majority, identified three concerns
    with Mr. Big confessions, which required the court to develop a framework for
    their admission in order to protect accused persons: 1) unreliable confessions
    obtained by threats and inducements; 2) the prejudicial effect of a Mr. Big
    confession because the context shows the suspect as an unsavoury character who
    wants to participate in a criminal organization, leading to the potential for
    moral and reasoning prejudice on the part of the jury; 3) the risk of police
    misconduct in their pursuit of a confession.

[28]

In
    response to these concerns, Moldaver J. created a new, two-pronged framework
    within which to assess the admissibility of Mr. Big confessions.  First, where
    the state recruits an accused into a fictitious criminal organization of its
    own making and seeks to elicit a confession from him, as a common law
    evidentiary rule, the confession is presumptively inadmissible unless the Crown
    establishes, on a balance of probabilities, that its probative value outweighs
    its prejudicial effect (para. 85). Second, the accused may show that the
    confession was obtained by police conduct that amounted to an abuse of process
    (para. 86). Going forward, such confessions would be tested on a
voir dire
,
    where the abuse of process issue could be addressed first, in order to possibly
    avoid dealing with the probative versus prejudicial analysis (para. 89).

[29]

To
    prove the probative value of a Mr. Big confession, the Crown must show it is
    trustworthy by examining a) the circumstances in which the confession was
    elicited for indications of reliability, and b) the confession itself for
    markers of reliability.

[30]

The
    circumstances to be examined will include: the length of the operation, the
    number of interactions between the police and the accused, the nature of the
    relationship between the undercover officers and the accused, the nature and
    extent of the inducements offered, the presence of any threats, the conduct of
    the interrogation itself, and the personality of the accused, including his or
    her age, sophistication and mental health (para. 102). The markers of
    reliability of the confession itself will be the level of detail, including
    publicly undisclosed details that only the perpetrator would know, and whether
    the confession leads to the discovery of additional evidence (para. 105). These
    would tend to confirm the reliability of the confession.

[31]

In
    discussing the role of the doctrine of abuse of process, Moldaver J. stated
    that the mere presence of inducements is not problematic, citing
Oickle,
at para. 57, but where inducements and/or threats approximate coercion so
    that the will of the accused is overcome resulting in a coerced confession,
    that will be an abuse of process:
Hart
, at para. 115. Physical
    violence or threats of violence are tactics that will not be tolerated.
    Operations that prey on an accuseds vulnerabilities, such as youth, addiction
    or mental health problems, will threaten trial fairness and the integrity of
    the justice system (paras. 116-117).

[32]

As
    in this case, the trial judge in
Hart
did not have the benefit of the
    Supreme Courts new approach to Mr. Big confessions. Nevertheless, the Supreme
    Court in
Hart
was able to apply the new test using the trial record.

[33]

In
    his discussion of the new common law rule of presumptive inadmissibility of Mr.
    Big confessions, Moldaver J. noted, at footnote 5, that the new common law rule
    targets Mr. Big operations in their present form, and that a change in police
    methods could escape the scope of this rule. However, he went on to say: [t]ime
    will tell whether, in a future case, the principles that underlie this rule
    warrant extending its application to another context.

[34]

As
    it turns out, the police had already developed at least one variation of the
    Mr. Big operation to suit the nature of the case and used it on the appellant.
    The Crown submits that this operation differed in legally significant ways from
    the classic Mr. Big and that the concerns of abuse of process by police - prejudice
    and an unreliable confession - do not arise or are considerably diminished. The
    appellants position is that the case was determined to be a Mr. Big operation at
    trial, and that the significant financial inducement as well as the fraud make
    it a variant of Mr. Big that effectively raises all the same concerns that
    Moldaver J. identified in
Hart
.

[35]

Clearly
    the police sting scheme that was used on the appellant is missing the most
    offensive tactics of the traditional Mr. Big operation: no criminal
    organization, no Mr. Big, no violent culture, no friendship and camaraderie.
    What this scheme used was the inducement of a large financial payout based on a
    fraud on an insurance company. For me, the relevant question is: is there in
    this police sting scheme sufficient potential for the three dangers: unreliable
    confessions, prejudicial effect of the evidence of the appellants
    participation in the scheme, and potential for police misconduct, to warrant
    the application of the new approach from
Hart
?

[36]

In
    my view, the answer is yes. I say this for two reasons. The first is that the
    scheme is clearly a variation of a Mr. Big, with the same police intent to
    induce a stranger into dishonest conduct by holding out a potentially powerful
    inducement to confess, whether truthfully or untruthfully. Therefore
    reliability is engaged, as is prejudice. Second, in my view, it serves little
    purpose to conduct an analytical exercise of differentiating and distinguishing
    variations of police schemes, when the same concerns are raised, even though those
    concerns may be attenuated.

(2)

Does the appellants confession meet the
Hart
test for admissibility?

[37]

The
    first inquiry is to assess the threshold reliability of the confession by
    examining the circumstances of the operation as well as the confession itself.
    Applying the factors identified by Moldaver J. when examining the circumstances:
    the operation was seven months long; there were approximately 26 phone calls (on
    and before the critical September 26 meeting), most under three minutes long;
    and there were four in-person meetings before the critical meeting with
    Donnie, the person who was going to use the details provided by the appellant
    to confess to the murder so that the appellant could collect the insurance
    money. The undercover officers did not propose any ongoing friendship. The
    scheme was a business scheme only. There were no threats or intimidation used.
    The interrogation itself was a relatively calm affair. The trial judge found
    there was a minimum of deceit.

[38]

There
    was no suggestion of personal vulnerability on the part of the appellant. He
    was remarried and working as a bush worker in Alberta when he was approached by
    the officers. He mentioned showing the insurance policy to his lawyer.

[39]

On
    appeal, the appellant argues that because the
Hart
decision came after
    his trial, he did not have the opportunity to raise or address vulnerabilities.
    I would reject this submission. Any such vulnerabilities could have been raised
    in cross-examination of the officers as part of the position that the appellant
    was preyed upon to induce his confession. In any event, the evidence of the
    appellants situation and interaction with police both right after the murder
    and during the sting was of a confident and capable person.

[40]

The
    one factor that could have caused an untrue and therefore unreliable confession
    was the large financial inducement of the insurance proceeds of $571,000 (minus
    the roughly $150,000 that was to be paid to the undercover officers). Although
    the presence of inducements alone has been held not to amount to an abuse of
    process, a significant inducement to lie may clearly affect the analysis of
    threshold reliability.

[41]

Turning
    to the confession itself, the appellant points to the dispute or lack of
    clarity in the evidence regarding which facts about the murder were not
    disclosed to the public and therefore could be confirmatory of his unique
    knowledge of details of the murder. He refers to some discrepancies among the
    officers regarding which details of the murder were disclosed to the public, as
    well as the possibility that the surveyor who found the body could have
    disclosed the story to others, and to his encounter with Inspector Graham who
    had confronted the appellant with some details of the grisliness of the murder,
    but then did not make a record of what details he disclosed.

[42]

However,
    the appellants confession was detailed and almost completely accurate: he said
    he shot the victim once in the back of the head right above the neck, he used a
    long bullet in a .22 caliber rifle that he disposed of in the river. He said he
    wrapped the body in an 8 by 10 piece of blue carpet that he found in the
    garage, that he tied the carpet with yellow nylon polyethylene rope that was
    wrapped three times in the middle, then dumped the body 40 to 50 from the
    road on the north side.

[43]

The
    appellant was accurate about the precise location of the bullet wound, the
    number of times the victim was shot and the yellow rope, none of which had been
    revealed to the public. Although he slightly misdescribed the carpet that the
    body was wrapped in  the actual carpet was grey with blue or black spots and
    4.5 x 7  it had been dark when he grabbed the carpet and the description was
    very close. He also left out the details of a white cable and a plastic bag
    over the victims head. These discrepancies could be weighed by the jury in
    their assessment of the reliability of the confession but, in my view, they do
    not detract from the significant level of detail that indicates threshold
    reliability: see, for example,
R. v. Johnston
, 2016 BCCA 3, 26 C.R. (7th)
    147, at para. 68.

[44]

Similarly,
    the fact that the appellant could have learned or guessed some details from,
    for example, his encounter when he was being investigated by Inspector Graham
    in 2006 and shown an autopsy photo, was also a matter to be weighed by the jury
    in its decision as to the ultimate reliability of the confession: see
Johnston
,
    at para. 70 and
R. v. Osmar
, 2007 ONCA 50, 84 O.R. (3d) 321, at paras.
    15 and 77.

[45]

The
    potential prejudice, as in most Mr. Big cases, arises because the appellant
    disclosed some bad character traits from the vulgar language used with the
    undercover officers, particularly at the September 26, 2009 meeting, as well as
    from his willingness to participate in a fraudulent scheme. However, this
    prejudice is quite mild compared to the bad character that suspects
    traditionally show when they agree to participate in criminal activity in order
    to impress a Mr. Big.

[46]

The
    appellant argues that his character was improperly emphasized by Crown counsel
    in his closing to the jury, when he referred to the appellant as manipulative,
    materialistic and with the means to commit the crime. He also raises in this
    context the fact that in their testimony, the undercover officers apologized to
    the jury for their language and demeanor in the course of the sting. While
    these issues could be relevant to the jurys consideration, they would not
    affect the probative versus prejudicial analysis made by the trial judge at the
    admissibility stage.

[47]

I
    conclude based on the accurate details in the appellants confession, a number
    of which the officers agreed were not disclosed to the public, as well as the
    relatively benign circumstances of the encounters with the undercover officers,
    that the probative value of the confession was sufficiently high to be
    admissible based on its threshold reliability. As the trial judge stated in his
    ruling, the effect of the significant inducement on the ultimate reliability of
    the confession was an issue for the jury. I also conclude that the potential
    prejudice was relatively low, and that the probative value of the admissions
    outweighed the potential prejudicial effect of admitting into evidence the
    circumstances that led to them.

[48]

The
    third prong of the
Hart
test is whether the scheme amounts to an abuse
    of process. The main concern identified by Moldaver J. was whether the police
    tactic had become abusive. Examples he gave included physical violence or the
    threat of violence, because a confession obtained by violence, no matter how
    reliable, will not be tolerated by the community (para. 116). He also referred
    to preying on specific vulnerabilities of the target including mental health or
    addiction issues, or youthfulness, because that conduct offends the communitys
    sense of fair play and decency (para. 117). But he emphasized that these were
    just examples of abusive police tactics, and that trial judges are best suited
    to identify an abuse and accord the appropriate remedy including exclusion of
    the evidence or a stay of proceedings (paras. 113 and 118).

[49]

In
    this case, the trial judge focused in his ruling on whether the police conduct
    in this sting operation would shock the conscience of the community, which was
    how the test was previously articulated: see, for example,
R. v. Osmar
,
    2007 ONCA 50, 84 O.R. (3d) 321;
R. v. McIntyre
, [1994] 2 S.C.R. 480;
R.
    v. Rothman
, [1981] 1 S.C.R. 640. He concluded that it would not. Applying
    the factors articulated by Moldaver J. in
Hart
for assessing whether a
    Mr. Big operation amounts to an abuse of process yields the same result. There
    was no violence or threat of violence in this case, nor did the officers prey
    on any vulnerabilities of the appellant. I add that they also did not use
    friendship and acceptance as a tactic. As was recognized by counsel and the
    trial judge, the tactic used was financial inducement. There was no abuse of
    process here.

(3)

Did the trial judge err by failing to instruct the jury in accordance
    with the Supreme Courts directions in
Mack
?

[50]

The
    Supreme Court heard the arguments in
Hart
and
Mack
on the
    same day and released the decision in
Mack
within two months of its
    decision in
Hart
. Unlike in
Hart
,
where the court
    found that the Crown could not meet its onus to show threshold reliability, i.e.
    that the probative value of the Mr. Big confession outweighed its prejudicial
    effect, in
Mack
, the court found that the Crown had met its onus, and
    turned to address the adequacy of the charge to the jury in the context of a
    Mr. Big confession.

[51]

In
    his response to the submission made in
Mack
that in a Mr. Big
    confession case the jury must be given strong and strict instructions regarding
    the dangers of the method and its effect on reliability and prejudice concerns,
    Moldaver J. emphasized three principles: 1) the principle from
R. v.
    Jacquard
, [1997] 1 S.C.R. 314 that a jury must be properly instructed but
    that does not mean that an accused is entitled to a perfect instruction; 2)
    while there is no magical incantation the trial judge is required to give the
    jury the tools to be able to address the reliability and prejudice concerns
    associated with a Mr. Big confession; 3) while the nature and extent of the
    instructions will vary from case to case, the court provided some guidelines
    for what should be included in the instruction at paras. 52-55.

[52]

The
    jury should be told that the reliability of the confession is for them to
    decide. The trial judge should then give them the
Hart
factors for
    considering the circumstances in which the confession was made, i.e., the Mr.
    Big sting operation, as well as the confession itself. To assess the circumstances,
    the jury should co
nsider:

the length of the operation, the number
    of interactions between the police and the accused, the nature of the
    relationship between the undercover officers and the accused, the nature and
    extent of the inducements offered, the presence of any threats, the conduct of
    the interrogation itself, and the personality of the accused
:
Mack
, at para. 52, citing
Hart
, at para. 102.

[53]

To
    assess the markers of reliability or unreliability of the confession itself, the
    jury should be told to consider the level of detail in the confession, whether
    additional evidence was discovered as a result, whether it contained elements
    of the crime that the police had not made public, or whether it included
    mundane details that only the perpetrator was likely to know:
Mack
, at
    para. 53, citing
Hart
, at para. 105.

[54]

Moldaver
    J. again repeated, at para. 54, that a trial judge is not required to catalogue
    for the jury every piece of evidence that could be relevant to the reliability
    assessment  rather the task is simply to alert the jury to the concern about
    the reliability of the confession, and to highlight the factors relevant to
    assessing it.

[55]

The
    trial judge must also instruct the jury that the bad character evidence was
    admitted only to set the context of the confession and cannot be used to
    determine guilt. The trial judge should also remind the jury that the simulated
    criminal activity in which the accused participated, was fabricated and
    encouraged by agents of the state:
Mack
, at para. 55.

[56]

The
    appellant submits that the trial judges instruction in this case was
    inadequate to alert the jury to the issues identified in
Mack
.
    Certainly, had the trial judge had the benefit of the Supreme Courts decision
    in
Mack
, he likely would have structured his charge more in accordance
    with the outline from
Mack
. However, while the charge was not perfect,
    in my view, it adequately alerted the jury to the issue they had to decide:
    whether they could rely on the confession as true. It also alerted them to the
    concerns about the confession and its circumstances, and not to decide based on
    bad character evidence.

[57]

Although
    the case was tried before the decisions in
Hart
and
Mack
, all
    of the concerns about the confession and how it was elicited formed the basis
    for the presentation of the entire case. Both Crown and defence were alert to
    these issues, which were raised in cross-examination and in the addresses, as
    was the trial judge. In his ruling that the confession was admissible in
    evidence, he stated, referring to the inducement: [w]hether the size of the prize
    was sufficient to corrupt an innocent person is an issue for the jury.

[58]

The
    structure of the jury charge put much of the critical evidence and issues in
    the context of the positions of the Crown and of the defence, rather than as
    part of the neutral instructions given by the trial judge. I agree with the
    appellant that the better approach is for a trial judge to give the legal
    concerns and approaches together with the evidentiary examples as part of the
    instruction that comes from the judge him or herself.

[59]

However,
    in this case, the trial judge used the positions of both sides to fairly
    outline and emphasize the reliability issue, while putting the admonition
    against the use of bad character evidence in the earlier part of the charge.
    Looking at the charge as a whole, the structure did not derogate from its
    effectiveness.

[60]

I
    also note that this charge was vetted by the trial judge word by word with
    counsel and changes were made as requested. Also, the judge recharged the jury
    to accommodate the concerns of counsel that still arose.

[61]

In
    his review of the Crowns position, the trial judge said it was the Crowns
    position that the jury should find the confession was true because of the details
    that the Crown claimed could only be known by the perpetrator such as the one
    shot to the back of the head, the body wrapped in a carpet and tied with a
    yellow rope.

[62]

On
    the critical issue of the large financial inducement, under the heading facts
    in the jury charge, the trial judge told the jury that the appellant maintained
    that his admissions were given not because they were true but because he
    wanted to convince Donnie that it was true because that was the only way they
    would go ahead with the scheme.

[63]

The
    trial judge also referred to the financial inducement in his overview of the
    defence position. He explained to the jury that people do admit to crimes they
    have not committed and that there are many reasons why they do. He then told
    them: In this case the defence submits that the motivation was money. Defence
    counsel asked the judge to clarify in a recharge that it was not the defence
    but the judge who was telling them that people do confess to crimes they did
    not commit.

[64]

In
    his recharge on this issue the trial judge told the jury:

In the course of dealing with the case for the defence, when I
    was talking about the issue, did the accused shoot Judy Thibault, I told you
    that the defence submits that the accused consistently denied any involvement
    with the death of Judy Thibault until he was finally seduced or pressured into
    making incriminating statements by the thought of losing support of his
    co-conspirators in getting the insurance money to which he felt he was legally
    entitled. I then went on to say this is something you will obviously have to
    look at closely. As strange as it may appear, people have admitted to crimes
    they did not commit. There are many reasons for this. In this case, the defence
    submits that the motivation was money.

Now, just to clarify it, it is not the defences submission
    that people have admitted to crimes that they did not commit. That was my
    editorial comment. That was a statement of fact that I have given you. There
    was just some suggestion that because I was dealing with the case for the
    defence at the time I told you this, you might get the impression that this was
    simply the position the defence was taking. They do, they adopt it, they agree.
    But I am the one thats telling you that thats a fact of life. We found that
    out, unfortunately, in the last few years with innocent people being convicted.

[65]

In
    the charge, the trial judge set out the defence position that the details the
    appellant recounted were public information, and by what means the appellant
    was aware of each one. He also pointed out the two details that the appellant
    did not mention in his admission even though he was being pressured by Donnie
    to give as many unique details as he could: that a unique coaxial cable had
    been used to tie the carpet, and that the plastic bag and plastic runner were
    part of the package. The trial judge also pointed to details in the appellants
    admission that were wrong, including saying three times that the body was left
    50 feet from the road when it was actually found only ten feet from the road.

[66]

The
    trial judge mentioned that the appellant said in his admission that the carpet
    was blue, while the trial judges recollection was that it was not blue. And
    the size of the carpet was smaller than the appellant had said it was and its
    origin was different. The trial judge also listed a number of other aspects of
    the appellants confession that the defence argued made it unbelievable.
    Although the trial judge did not say specifically that the jury should consider
    all of these in the context of assessing the reliability of the appellants
    admission, it would have been perfectly clear to the jury that that was the
    purpose for considering all of the factors that the trial judge listed for
    them.

[67]

He
    also referred to the fact that the appellant denied any involvement in the
    death numerous times before admitting his involvement. The trial judge also
    gave an
R. v. W.(D.)
, [1991] 1 S.C.R. 742

instruction although
    the appellant did not testify. The appellant submitted that that instruction
    was insufficient in a Mr. Big context. However, the
W.(D.)

instruction
    is just one part of the jury charge, which must be considered as a whole.

[68]

In
    summary, this case involved a police sting scenario that was a very modified
    version of a Mr. Big, without any violent criminal activity or gang aspect to
    it. Nor did the undercover officers befriend the appellant to make him
    vulnerable to pressure as a friend. It was an insurance fraud scheme. In my
    view, the charge sufficiently covered the
Hart
factors that the jury
    had to consider, both for the two prongs of the reliability analysis, the Mr.
    Big context and the confession itself, as well as the admonition regarding the
    character evidence. I agree that the trial judge could have better emphasized
    the fact that the monetary inducement was indeed a large one. However, that
    fact was obvious to the jury and one that everyone would understand.

(4)

Did the trial judge err in his instruction on the elements of planning
    and deliberation?

[69]

The
    appellant objects that the trial judge did not adequately charge the jury on
    the meaning of the two required constituents of the charge of first degree
    murder, that the murder must have been both planned and deliberate. He further
    objects to two evidentiary references. The first was that the Crown relied on
    the fact that the appellant deliberately loaded the gun, then shot it. The
    appellant submits that loading the gun deliberately is not an example of the
    type of deliberate conduct required for first-degree murder. It is merely an
    example of intentional conduct. He also objects to the trial judges repetition
    of the Crowns position that the appellant deliberately took the victim to a
    garage, and that because their home had no garage it must have been another
    garage. The appellant submits there was no evidence that their home had no
    garage.

[70]

In
    his general instructions on first degree murder, the trial judges instruction
    on the meaning of planned and deliberate was a proper instruction modelled on
Watts
    Manual of Criminal Jury Instructions
. It included the following on the
    meaning of deliberate:

As far as the word deliberate is concerned, it means
    considered, not impulsive, it means slow in deciding, it means cautious,
    implying that the accused must take time to weigh the advantages and
    disadvantages of his intended action.

[71]

The
    trial judge then reviewed the decision tree with the jury, including a step by
    step approach to each aspect of first degree murder with planning and
    deliberation at the end. They were specifically told that if they were
    satisfied that the appellant had intentionally caused the victims death but
    not that the act was planned and deliberate, their verdict would be second
    degree murder. The jury was told that they had to be satisfied beyond a
    reasonable doubt that the shooting of the victim was both, and the trial judge
    told them to underline both, planned and deliberate.

[72]

It
    was in the outline of the Crowns position that the trial judge used the word
    deliberately in the context of telling them that the Crown was asking them to
    accept the appellants admission to Donnie about how he shot the victim. He
    told the jury: The Crown submits that you should accept his evidence that he
    deliberately loaded his rifle and shot her in the back of the head. The
    Crowns position was that part of the evidence of deliberation was the
    execution style of the killing. In the context of the charge as a whole the
    jury would not have understood that deliberately loading the gun, taken by
    itself, constituted the deliberation required for first degree murder.

[73]

In
    addition, the trial judge also focused on the element of planned and deliberate
    in his review of the position of the defence, which was that in the confession,
    the appellant said he did not prepare or think about it for long, but simply
    grabbed the gun and ammunition and whacked her, and that he lost it because
    of the stress he was under:

The defence denies that even if he did shoot Judith Thibault,
    that it was planned and deliberate. This is a very serious issue. I want you to
    consider very seriously. It is the difference between first-degree and
    second-degree murder.

In the hotel room, Donnie asked the accused about the carpet,
    and whether he had prepared for the killing. He replied that he had not
    prepared. He simply grabbed his gun and ammunition and whacked her. He said
    that he was under so much stress he just lost it. When asked whether he had
    thought about it long, he said, no, I just got an idea to go ahead and did it.

[74]

The
    appellant also objects to what he says was a misstatement by the judge of the
    evidence regarding whether the victims home had a garage. The Crowns position
    was that the fact that the appellant took the victim to another garage to kill
    her showed planning and deliberation. The appellant submits that there was no
    evidence that the home they lived in had no garage.

[75]

The
    trial judge delivered his jury charge both orally and in writing. The written
    version included the following instruction regarding the Crowns submission:

The Crown submits that this was obviously planned. He said he
    shot her in their garage after he had told her to turn around. Now since there
    was no garage at Gore Street where the couple lived it must have been Brown Street.
    The Crown submits that it would take planning to get Judy to the Brown Street
    garage, together with a .22 firearm and ammunition.

[76]

The
    issue of the evidentiary basis for this position was canvassed by counsel in
    the pre-charge discussion with the trial judge. The trial judge referred to
    aerial photographs, which defence counsel submitted were unclear. Crown counsel
    then suggested that the trial judge make it clear to the jury that it was the
    Crowns position that there was no garage at Gore Street. That was what he did.

[77]

From
    a review of the submissions of counsel following the oral delivery of the
    charge to the jury, Crown counsel told the trial judge that he had not read out
    that entire paragraph. Defence counsel submitted that the judge either had to
    excise the whole paragraph from the written charge or read the entire paragraph
    in the recharge. He chose the latter route.

[78]

In
    my view, this issue was raised and addressed at trial. I see no basis to
    interfere. In summary on the issue of the adequacy of the charge on the planned
    and deliberate requirement for first degree murder, I would not give effect to
    this ground of appeal.

CONCLUSION

[79]

I
    conclude that although this was not a classic Mr. Big police scheme, the
    concerns identified in
Hart
still arise, and should be addressed by
    applying the new two-pronged analysis for the admissibility of the appellants
    confession. Having done that, I find no error by the trial judge in admitting
    the confession. Its probative value outweighed any prejudicial effect, and the
    nature of the police operation did not amount to an abuse of process.
    Furthermore, the charge to the jury was sufficient to address the criteria
    identified in
Mack
. Finally, I find no error in the trial judges
    charge on the meaning of planned and deliberate as a requisite component of
    first degree murder.

[80]

I would dismiss the appeal.

Released: K.F. July 26,
    2017

K.
    Feldman J.A.

I
    agree. E. E. Gillese J.A.

I
    agree. M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Malcolm, 2017 ONCA 577

DATE: 20170705

DOCKET: C58476

Weiler, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kalvin Malcolm

Appellant

Gary Grill and Elizabeth Bingham, for the appellant

Jeremy Streeter, for the respondent

Heard: July 4, 2017

On appeal from the conviction entered on April 9, 2013,
    and from the sentence imposed on July 9, 2013, by Justice Myrna L. Lack of the Superior
    Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

Kalvin
Malcom appeals from convictions for
    various drug offences  possession for the purpose of trafficking in crystal
    methamphetamine and cocaine, possession of marihuana, and possession of
    proceeds of crime. The drugs and $17,270 in cash were found pursuant to a
    search warrant in an apartment of which he was the sole resident. The warrant
    was obtained by the police in relation to alleged criminal activity on the part
    of the appellants roommate. The appellant testified that he did not know the
    drugs were in his apartment and that the cash was derived from legitimate
    sources.

[2]

He submits that the trial judge erred in three
    respects:

1.

She erred in finding that there was a sufficient basis in the
    Information to Obtain to support a reasonable belief that a search of the
    apartment would afford evidence of a robbery and drug dealing by the
    appellants former roommate.

2.

She erred in her assessment of the appellants credibility.

3.

Her reasons for conviction were insufficient.

[3]

We would reject each of these grounds of
    appeal.

[4]

The target of the search was Mr. Rainford, who
    had lived with the appellant in the apartment. They had been friends since
    childhood. During the time Mr. Rainford lived with the appellant, there was a
    home invasion robbery. Both Mr. Rainford and his girlfriend were connected to
    both the robbery and the apartment searched. A black Acura, like the vehicle
    used by the appellant, was also connected to the robbery. Although Mr. Rainford
    moved out some time before May 11, 2011, he continued to visit the property.

[5]

The trial judge did not err in concluding that
    there was a basis upon which the issuing justice could have granted the search
    warrant.

[6]

There is nothing in the record justifying a
    departure from the deference owed to a trial judges assessment of credibility.
    Aspects of the appellants evidence were far-fetched and demonstrably false.
    The trial judges reasons provide an ample basis for appellate review.

[7]

The appellant was the sole occupier of the
    apartment. The only substantial issue at trial was whether he knew the drugs
    were in the apartment. The trial judge rejected his evidence that he did not
    know the drugs were there and inferred that he knew of the drugs in his kitchen
    cupboards. This was a conclusion reasonably open to her on the evidence.

[8]

The appellant testified that part of the $17,270
    was composed of proceeds from the sale of his car and a down payment he had
    received of $8500.00 for the sale. The appellant testified that he showed the
    car to the prospective purchasers and printed a receipt for the purchaser
    before the purchaser saw the vehicle, or they negotiated terms, even though he
    did not possess a printer. The trial judge concluded that this was an obvious
    concoction.

[9]

The appellant also appeals from sentence. He
    submits that the trial judge erred by failing to grant him a conditional
    sentence. The trial judge rejected a conditional sentence largely because of
    the appellants two previous, albeit dated convictions (three years before the
    events leading to conviction) for breach of recognizance. She was not persuaded
    that he would abide by the terms of a conditional sentence. The appellant also
    had prior convictions for possession of a controlled substance for the purpose
    of trafficking and possession of property obtained by crime for which he had
    been sentenced to the equivalent of a year in jail. We see no basis for
    appellate intervention.

[10]

The Crown concedes that the trial judge did not
    have jurisdiction to hear Count 3 on the indictment, the possession of
    marihuana charge, as the amount in issue was less than 30 grams. Under s. 4(5)
    of the
Controlled Drugs and Substances Act
, S.C. 1996, c. 19, this is a
    summary conviction offence: see
R. v. Allen
, [2000] O.J. No. 4150
    (S.C.). The appeal is allowed to the extent of vacating the conviction on Count
    3 of the indictment for possession of marihuana, but the appeal from conviction
    is otherwise dismissed. Leave to appeal sentence is granted but the appeal is dismissed.

K.M.
    Weiler J.A.

C.W.
    Hourigan J.A.

G.
    Pardu J.A.