COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Powell,
    2021 ONCA 271

DATE: 20210429

DOCKET: C66406 &
    C66665

Tulloch,
    Paciocco and Harvison Young JJ.A.

DOCKET:
C66406

BETWEEN

Her Majesty the Queen

Respondent

and

Joshua
    Powell

Appellant

DOCKET:
C66665

AND BETWEEN

Her
    Majesty the Queen

Respondent

and

Jordan
    Powell

Appellant

Jon Doody, for the appellant Joshua Powell

Fady Mansour and Vanessa Garcia, for the appellant
    Jordan Powell

Tanya M. Kranjc, for the respondent

Heard: in writing

On appeal from the conviction entered on April 19, 2018
    and the sentence imposed on December 20, 2018 by Justice Richard T. Knott of
    the Ontario Court of Justice (C66406).

On appeal from the conviction entered on April 19, 2018
    and the sentence imposed on February 20, 2019 by Justice Richard T. Knott of
    the Ontario Court of Justice (C66665).

Tulloch J.A.:

A.

INTRODUCTION

[1]

The appellants are brothers. On August 12, 2016, they attended a
    gathering at a friends house in North Grenville, Ontario. At some point during
    the night, someone knocked over a beer bottle, causing a fight to break out. In
    the physical altercation that followed, the Crown alleged that four individuals
     Jordan and Joshua Powell (the two appellants), as well as Bradley Fumerton,
    and Quincy OShea  collectively assaulted Quinn Millson. Quinn suffered
    serious bodily harm as a result, including a skull fracture. The Crown also
    alleged that Jordan and Quincy damaged Quinns vehicle after the altercation.

[2]

There was no dispute that Quinn sustained severe bodily injuries from
    the assault and that his vehicle was subsequently damaged. Rather, the only
    issue at trial was who caused the injuries and the damage to Quinns car.

[3]

The trial judge convicted Joshua, Jordan, Bradley and Quincy of assault
    causing bodily harm, contrary to s. 267(b) of the
Criminal Code
,
    R.S.C., 1985 c. C-46. He also found Jordan and Quincy guilty of mischief for
    damaging Quinns car, contrary to s. 430(4) of the
Criminal Code
.
    Lastly, he convicted Joshua of failure to comply with his probation order,
    contrary to s. 733.1(1) of the
Criminal Code
.

[4]

Both appellants were sentenced separately. Jordan was sentenced on
    February 20, 2019 to 60 days intermittent custody followed by 3 years
    probation. Joshua was sentenced on December 20, 2018 to seven months custody,
    followed by three years probation. Both Jordan and Joshua initially filed
    notices of appeal for both conviction and sentence. Joshua has since abandoned
    his sentence appeal. Jordan, however, has not.

[5]

Joshua and Jordan appeal their convictions on five grounds. They argue:

1.

the trial judge entered unreasonable verdicts because the evidence
    tendered at trial was unable to support their convictions;

2.

the trial judge misunderstood the
mens rea
for assault causing
    bodily harm;

3.

the trial judge provided insufficient reasons for the assault
    convictions;

4.

the trial judge erred in relying on his disbelief in the appellants
    exculpatory statements to ground a finding of guilt; and

5.

the trial judge erred in rejecting the testimony of Zachary Powell (the
    appellants cousin) on the basis of bias when this was not raised by either
    party.

[6]

For the following reasons, I would dismiss both conviction appeals.

B.

OVERVIEW OF THE FACTS

[7]

As noted above, the events took place at a small house party in rural
    Ontario, on August 12, 2016. Five people who attended the party testified at
    trial: Quinn (the victim), Kayla Boisvert, Ben Huton, Zachary Powell, and
    Lindsay Fumerton. Each gave their own account of how the altercation arose and
    who was involved. Accordingly, the following sections summarize the narrative
    of each witness with respect to the events that unfolded.

(i)

Quinn Millsons Evidence

[8]

The incident started as a friendly debate with Samuel Huton over a beer
    bottle that had been knocked over. Quinn was thinking about leaving the party
    when this debate arose. Samuel and Quinn were still going back and forth when
    Quinn approached his girlfriend, Kayla. She was standing with Vicky Holland-Dube,
    Joshuas girlfriend. Vicky told him to stop yelling and calm down. Quinn tried
    to reassure her that he was not fighting with Samuel  they were having a
    friendly discussion. Vicky stepped towards Quinn and told him to get out of her
    face.

[9]

Bradley and Jordan stepped forward and joined the conversation, in
    support of Vicky. As Quinn stepped back to leave the garage, Joshua blocked his
    exit. Joshua grabbed Quinns shirt and demanded that he apologize to Vicky
    otherwise he would suffer some sort of repercussion. Bradley stepped forward
    and grabbed Quinns shirt as well. Quinn tried to de-escalate the situation
    when Joshua punched him in the face. A second punch by Bradley soon followed.
    Quinn turned around and covered his face. He was hit in the back of the head
    and then pulled to the ground. Bradley and Joshua went down to the ground with
    him.

[10]

Quinn
    saw Jordan and Quincy come towards him and join in with the other two. By that
    point, Quinn described the altercation as a melee of getting punched and kicked
    and stomped on. When Quinn looked up, he saw the four of them  Joshua,
    Jordan, Bradley, and Quincy  towering over him. Eventually, he managed to make
    his way to his car. He went inside the vehicle and waited for his girlfriend so
    that he could leave the party. As he waited, he saw Jordan and Quincy banging
    on the hood of his car.

(ii)

Kaylas Boisverts Evidence

[11]

Kayla,
    Quinns girlfriend, spoke to police following the incident and provided a
    videotaped statement on August 21, 2016. She also testified at trial. Kayla saw
    Bradley punch Quinn. She identified Jordan, Joshua, and Quincy as being on top
    of Quinn, kicking and punching him. She attempted to pull the men off Quinn but
    was thrown to the floor. She was eventually picked up from behind and pulled
    outside the garage. Upset by what she witnessed, she went into the house and
    vomited. She heard that Quinn was leaving, so she went looking for his car. She
    then saw Jordan and Quincy banging on the hood of Quinns car. Quinn was
    sitting inside the car, waiting for her. He had a bloodied face.

(iii)

Ben Hutons Evidence

[12]

Ben
    testified that he and his brother, Samuel, got into a discussion with Quinn
    regarding a broken beer bottle. Quinn was standing closest to the broken
    bottle, and Ben and Samuel told him to clean it up. Quinn expressed a desire to
    leave. He went over to where Kayla and Vicky were standing. Ben then saw Joshua
    engage with Quinn. When Quinn refused to apologize to Vicky, Joshua pushed
    Quinn. He then saw Joshua swing at Quinn; he was uncertain whether he actually
    made contact. He also thought he saw Bradley and Jordan push and swing at Quinn
    a couple of times. Quinn was suddenly on the ground, and there was just, kind
    of, a melee of people everywhere.

(iv)

Zachary Powells Evidence

[13]

Zachary,
    the appellants cousin, testified that he went outside after the fight had
    started. He saw Quincy on top of Quinn and believed there were others on top of
    him. He did not see Jordan nor Joshua in the pile of people. The fight was
    broken up, and he saw Quinn leave to his car. He began to follow Quinn, but
    Jordan intercepted him and led him inside. He observed Jordan searching for
    ice; his hand was slightly swollen.

(v)

Lindsay Fumertons Evidence

[14]

Lindsay,
    Bradleys sister, testified that she heard an argument involving Bradley,
    Joshua and Quinn. She later saw six or seven people in a circle, including:
    Bradley, Joshua, Quinn, and possibly Jordan and Quincy. She could not say what
    the people were doing. She followed Kayla inside when Kayla indicated that she
    felt sick. She observed Jordan icing his hand.

(vi)

The Appellants Police Statements

[15]

The
    Crown also admitted the police interviews of Jordan and Joshua. In his
    statement, Jordan claimed that he was not involved in the altercation. His only
    role was to pull Vicky out of the commotion. He did admit that he threw one
    punch after he saw someone hit his cousin, Zachary. He said he missed and hit a
    van, hurting his hand. He denied damaging Quinns car.

[16]

In
    his statement, Joshua admitted that he got in a verbal disagreement with Quinn
    after he witnessed Quinn acting aggressively towards his girlfriend, Vicky. He
    said that Quinn pushed him and when Bradley got involved, he was pushed back.
    He stated that he stood and watched as the fight unfolded. He pulled people off
    Quinn and told him to leave.

(vii)

Defence Evidence

[17]

None
    of the accused testified at trial and the defence called no evidence.

C.

DECISION BELOW

[18]

The
    trial judge concluded that this could not be a consensual fight, given the
    extent of the injuries. He further noted that there was no evidence of
    self-defence or defence of person or property, as all the accused denied
    involvement in the altercation. The trial judge convicted the appellants without
    evidence that they had directly caused Quinns injuries. He convicted them
    based on their participation in a group assault in which Quinn suffered bodily
    harm. He cited
R. v. Wood
, [1989] 51 C.C.C. (3d) 201, at p. 220, (Ont.
    C.A.), for the following proposition:

Where evidence of concerted action in the commission of the
    offence exists, as in the present case, then it is open to a jury to convict
    all of the accused either as principals, under s. 229(a), or as aiders or
    abettors, pursuant to s. 21 of the Code, even though the extent of the
    individual participation in the violence is unclear.

Accordingly, the trial judge observed that [i]f a
    person participated in the melee, I will find them guilty of assault causing
    bodily harm.

[19]

With
    respect to the witnesses testimony, the trial judge stated that Quinns
    evidence in chief was straightforward and clear. Quinn identified all the
    co-accused as participating in the attack. However, after a withering
    cross-examination", Quinns testimony was less clear. The trial judge made
    the following observation: Were [Quinn] the only witness in this matter, I am
    not certain I could find a conviction on his evidence alone, due to his unreliability.
    He was credible, but parts of his evidence was unreliable.

[20]

The
    trial judge noted that Kayla was not a witness to the entire altercation, as
    she left the area to vomit. However, he found her credible and reliable.
    Kaylas testimony confirmed that all the accused were involved in the
    altercation. He accepted her evidence that Bradley punched Quinn and that there
    was a pile of people on Quinn, including Joshua, Jordan, Quincy, and Bradley.
    He also accepted her evidence that it was Jordan and Quincy who were damaging
    Quinns vehicle.

[21]

The
    trial judge also appeared to accept the evidence of Ben and Lindsay. Ben
    confirmed that Joshua, Jordan, and Bradley were involved in a violent
    altercation. Lindsay saw Bradley, Joshua, Jordan, Quincy and Quinn in a circle
    around the time of the altercation.

[22]

The
    trial judge rejected the evidence of Zachary because he did not view him as an
    independent witness. As noted above, Zachary is the appellants cousin. He is
    also friends with the other accused. He had testified that he did not see his
    cousins participate in the fight.

[23]

The
    trial judge rejected the exculpatory statements that Jordan and Joshua made to
    police.

[24]

With
    respect to Joshua Powells statement, the trial judge noted that his denial of
    any involvement was inconsistent with the other witnesses evidence. Joshuas
    evidence provided significant detail about the argument leading up to the
    altercation, yet it provided no details about the fight that supposedly
    occurred right in front of him. While recognizing that an accused has the
    absolute right to remain silent, the trial judge observed that if you choose
    to make a statement to police, then you must try to be accurate and tell the
    truth to the best of your ability. He noted that [Joshuas] denial of any
    involvement in the altercation is rejected and does not raise a reasonable
    doubt in my mind. The trial judge concluded that Joshua was involved in the
    melee as one of the principal actors.

[25]

The
    trial judge also rejected the evidence of Jordan. Similar to his brother,
    Jordan made a statement but provided no details as to what went on in the
    fight. The trial judge rejected Jordans excuse for needing ice for his hand
    after the fight. As noted above, Jordan had admitted that he took a swing but
    missed and hit a van. However, the trial judge noted that no one saw him punch
    a van. Rather, witnesses saw him involved in the fight and then attacking
    Quinns car.

[26]

The
    evidence against Quincy and Bradley was also clear. They had participated in
    the altercation.

[27]

With
    respect to the car, Quinn and Kaylas evidence was clear that Quincy and Jordan
    were the ones who intentionally damaged it.

[28]

As
    noted above, all four co-accused  Joshua, Jordan, Bradley and Quincy  were
    convicted of assault causing bodily harm. Joshua was also convicted of a breach
    of probation as a result of his assault conviction. Jordan and Quincy were
    convicted of mischief.

D.

ISSUES ON APPEAL

[29]

The
    appellants challenge their convictions on five grounds:

1.

the verdict was
    unreasonable as there was insufficient evidence to ground convictions on the
    assault count;

2.

the trial judge misunderstood the
mens rea
for assault causing
    bodily harm;

3.

the trial judges reasons were deficient;

4.

the trial judge erred by grounding a finding of guilt in his disbelief
    of the appellants exculpatory statements to the police; and

5.

the trial judge erred by rejecting Zachary Powells evidence on the
    basis of bias when the Crown did not impeach his credibility, contrary to the
    rule in
Browne v. Dunn
, (1893), 6 R. 87 (H.L.) (Eng.).

E.

ANALYSIS

(i)

The Verdict Was Reasonable

[30]

For
    an appellate court to conclude that a verdict is unreasonable, it must either:

1.

determine that
    the verdict is one that a properly instructed jury or judge could not
    reasonably have rendered; or

2.

determine that
    the trial judge drew an inference or made a finding of fact essential to the
    verdict that (a) is plainly contradicted by the evidence relied on by the
    trial judge in support of that inference or finding; or (b) is shown to be
    incompatible with evidence that has not otherwise been contradicted or rejected
    by the trial judge:
R. v. Villaroman,
2016 SCC 33, [2016] 1 S.C.R.
    1000, at para. 55;
R. v. R.P.,
2012 SCC 22, [2012] 1 S.C.R.
    746, at para. 9.

[31]

This
    standard requires an appellate court to re-examine, and to some extent,
    re-weigh evidence and consider the effect of that evidence:
Villaroman,
at
    para. 55;
R. v. W.(R.),
[1992] 2 S.C.R. 122, at p. 131;
R. v.
    Yebes,
[1987] 2 S.C.R. 168, at p. 186. Where the verdict is not
    unreasonable, an appellate court will not interfere with a trial judges
    factual findings unless the trial judge has committed a palpable and overriding
    error in making those findings:
R. v. Clark,
2005 SCC 2, [2005] 1
    S.C.R. 6, at para. 9.

[32]

Each
    of the appellants argue that the verdicts finding them guilty of assault causing
    bodily harm were unreasonable. Both appellants submit that the evidence relied
    upon by the trial judge could do no more than place them in the pile of people.
    More was needed to ground findings of guilt on the assault counts.

[33]

For
    his part, Jordan submits that no witnesses said that he punched or kicked
    Quinn. Rather, according to Jordan, the evidence only placed him at the scene
    of the altercation. He argues that, absent a finding of fact about the role he
    played in the assault, the verdict was unreasonable.

[34]

Joshua
    argues that there was insufficient evidence to support a finding that he
    assaulted Quinn. Although Quinn testified that Joshua punched him, the trial
    judge made the following observation qualifying the extent to which he could
    rely upon Quinns evidence:

Were [Quinn] the only witness in this matter, I am not certain
    I could found a conviction on his evidence alone, due to his unreliability. He
    was credible, but parts of his evidence was unreliable.

[35]

Joshua
    also submits that the evidence of Ben, Kayla, and Lindsay do not support the
    trial judges findings. In particular, while Ben testified that he saw Joshua
    throw a punch, he could not say with certainty that Joshua made contact.
    Additionally, both Kayla and Lindsay testified that Joshua was involved in the
    altercation, but neither provided any specific details about his participation.
    According to Joshua, since the trial judge made no finding of fact about
    whether he did in fact punch Quinn, there was insufficient evidence about his
    involvement in the assault.

[36]

The
    respondent submits that the verdict was reasonable and founded in the evidence.
    The trial judge was entitled to make reasonable inferences on the basis of
    compelling evidence about who was actively involved in the assault against
    Quinn, and these inferences should be afforded deference on appeal. Moreover,
    the findings of guilt were well founded on the evidence of multiple witnesses.

[37]

I
    would not give any effect to this ground of appeal. As indicated, the
    appellants bear a very heavy burden in seeking to displace a verdict on the
    basis that it was unreasonable. The direct evidence at trial implicating both
    appellants in the assault was overwhelming.

[38]

Quinn,
    the victim of the assault, identified Joshua as first blocking him from exiting
    the garage, then grabbing him by the shirt, and punching him in the face, after
    which he fell to the ground. Quinn saw Jordan come towards him and join in on
    the assault against him. Quinn described being kicked, stomped, and punched
    while on the ground by all four assailants, including both appellants. He
    specifically identified both appellants as being involved in the melee. Quinn
    also testified that he clearly saw Jordan and Quincy banging on the hood of his
    car.

[39]

The
    trial judge noted that while Quinns evidence was credible, portions were not
    reliable. As such, the trial judge correctly looked for other corroborative
    evidence to satisfy him beyond a reasonable doubt of the veracity of the
    material portions of Quinns evidence.

[40]

There
    was an abundance of evidence at trial that substantiated Quinns version of
    events. In her evidence, Kayla identified both appellants as being on top of
    Quinn when he was on the ground. She observed Jordan and Joshua punching and
    kicking him. She also observed Jordan and Quincy banging on the hood of Quinns
    car. The trial judge found her evidence credible and consistent. Additionally,
    Ben testified that he saw Joshua push Quinn at the start of the assault. As
    well, Ben testified that he saw Joshua push and swing at Quinn. He was fairly
    certain that Joshua hit him in the head. He also noted that, subsequently,
    Jordan and Bradley swung at Quinn a couple of times, but was unsure if they
    hit him. Finally, both Zachary and Lindsay testified that they observed Jordan
    icing his hand, which was slightly swollen. The trial judge was entitled to
    accept some, none, or all, of each witnesses evidence.

[41]

It
    is clear from the trial judges reasons that he considered all the evidence. In
    light of the evidence and all available inferences, it was certainly open to
    the trial judge to make the findings that he did, including that both
    appellants were active participants in the group assault, resulting in bodily
    harm to Quinn.

[42]

In
    his supplementary factum, Jordan also argues that his police statement, which
    contained an exculpatory version of events (namely, admitting to being part of
    the altercation but only throwing a punch in defence of his cousin), was
    entirely consistent with the evidence of all Crown witnesses. According to
    Jordan, it follows that there remained a reasonable doubt as to his guilt.

[43]

I
    do not agree. The trial judges findings of fact are entitled to deference,
    unless the appellant can establish that he has committed a palpable and
    overriding error. I see no error in the trial judges findings of fact that
    warrants judicial interference. As indicated, it was open to the trial judge to
    accept some, none, or all of a witnesses evidence, including Jordans evidence
    that he injured his hand by striking a van, as opposed to injuring it when he
    was striking Quinn during the assault.

[44]

I
    am satisfied that the verdicts were reasonable. I would dismiss this ground of
    appeal.

(ii)

Did the Trial Judge Err in His Understanding of the
Mens Rea
for Assault Causing Bodily Harm?

[45]

While
    the appellants do not explicitly argue this issue as a separate ground of
    appeal, they include this issue as an argument within their submissions on the
    reasonableness of the verdict. The appellants argue that the trial judge erred
    in his self-instruction on the
mens rea
required for assault causing
    bodily harm. The appellants point to the trial judges reasons, which state:
    If a person participated in the melee [that caused the injuries to Quinn], I
    will find them guilty of assault causing bodily harm. The appellant says this
    is an incorrect statement of the law, as the crime charged required both
    participating in the melee and an intention to participate.

[46]

I
    would not give effect to this ground of appeal. The trial judges reasons, when
    read as a whole, suggest that he understood the requisite elements of the
    offence that the Crown had to prove beyond a reasonable doubt.

[47]

Technically,
    the appellants are correct that mere participation in a melee in which the
    complainant suffered bodily harm will not support a conviction of assault
    causing bodily harm unless the accused person had the requisite
mens rea
.
    The accused persons own act of participation must be intentional as opposed to
    accidental. Moreover, before he can be held responsible for bodily harm that
    may have been caused by another person involved in the group assault, it must
    be found that the accused knew that the others were engaging in an assault, and
    intended to assist in that assault:
R. v. Briscoe
, 2010 SCC 13, [2010]
    1 S.C.R. 411, at paras. 16-17. In the specific circumstances of this case, there
    was no need for the trial judge to address those
mens rea
requirements
    expressly.

[48]

The
    trial judge found that the appellants joined in the assault. No suggestion was
    available on the evidence that this could have been accidental or unintended.

[49]

Moreover,
    the trial judge understood that the appellants convictions depended upon his
    finding that they acted in concert with others. Acting in concert is inherently
    purposeful conduct. Unless there is a live and realistic
mens rea
issue,
    it is implicit in finding that an accused person actively participated in a
    group assault by joining in the assault that the accused person did so
    intentionally and for the purpose of assisting in that group assault. The trial
    judge found that both appellants actively participated in the non-consensual
    assault on Quinn in which Quinn was kicked, punched and stomped.

[50]

Although
    the trial judge did not explicitly address the
mens rea
issues, in my
    view, he did not err in finding that the Crown discharged its burden of proof.

[51]

Finally,
    an accused who is involved in an intentional assault that results in bodily
    harm cannot argue that he only intended the assault and not the bodily harm
    that resulted, provided that a reasonable person, in the circumstances, would
    realize that the force intentionally applied would put the victim at risk of
    suffering some kind of bodily harm:
R. v. Palombi,
2007 ONCA 486, 222
    C.C.C. (3d) 528, at paras. 38-39. This principle applies equally in group
    assaults. Where a reasonable person would realize that the group assault would
    put the victim at risk of suffering some kind of bodily harm, an accused person
    who has joined in a group assault cannot avoid responsibility by arguing that
    they did not intend to cause bodily harm. Although the trial judge did not
    explicitly address the objective foreseeability aspect of this offence, I am
    satisfied that he was cognizant of the legal test to be applied. Indeed, it was
    patently obvious from the evidence in this case that a reasonable person in the
    appellants shoes would realize that bodily harm could result from their
    actions.

[52]

The
mens rea
requirement was therefore satisfied, and the trial judge was
    correct in finding both appellants guilty of the charge. Accordingly, this
    ground of appeal is also dismissed.

(iii)

The Trial Judges Reasons Were Sufficient

[53]

The
    appellants submit that the reasons are deficient because the trial judge did
    not make sufficient findings of fact regarding party liability and the nature
    of their participation in the assault. Joshua submits that although the trial
    judge found him to be involved as one of the principle actors, the reasons do
    not explain what his involvement in the altercation consisted of. Likewise,
    Jordan argues that the trial judge did not make any findings of fact regarding
    his role in the fight. Jordan points to the fact that he was scarcely mentioned
    in this portion of the trial judges reasons.

[54]

An
    appeal based on insufficient reasons can only succeed if the appellants
    establish that the trial judges reasons are so deficient that they foreclose
    meaningful appellate review:
R. v. Vlaski
, 2019 ONCA 927, at para. 9,
    leave to appeal refused, [2020] S.C.C.A. No. 78;
R. v. Vuradin
2013
    SCC 38, [2013] 2 S.C.R. 639, at para. 10.

[55]

Appellate
    courts considering the sufficiency of reasons should read them as a whole, in
    the context of the evidence, the arguments and the trial, with an appreciation
    of the purposes or functions for which they are delivered:
R. v. R.E.M.
,
    2008 SCC 51, [2008] 3 S.C.R. 3, at para. 16. These purposes are fulfilled if
    the reasons, read in context, show why the judge decided as he or she did:
R.E.M.,
at para. 17.

[56]

The
    key question is whether the reasons demonstrate that the trial judge seized
    upon the substance of the critical issues at trial in a way that permits
    meaningful appellate review:
R.E.M.
, at para. 55.

[57]

The
    main issues in this case were whether the accused individuals intentionally
    assaulted Quinn, and whether, as a result of the assault, Quinn sustained
    bodily harm.  In his reasons, the trial judge carefully assessed all the
    evidence, including the evidence of the two appellants, and gave very clear and
    cogent reasons why he accepted and rejected the evidence that he did.

[58]

In
    the reasons, it is clear that the trial judge found both appellants guilty of
    the offence of assault causing bodily harm based on being parties to the
    offence. In so doing, the reasons of the trial judge demonstrate that he was
    satisfied beyond a reasonable doubt that both appellants were parties to
    punching, stomping, and kicking Quinn on numerous occasions, and these
    assaultive acts resulted in the serious injuries that Quinn sustained.

[59]

The
    trial judges reasons are not deficient simply because he did not identify the
    precise actions of each appellant in the assault. It is clear when his decision
    is read as a whole that he accepted testimony that the appellants participated
    in a group assault in which everyone was punching and kicking Quinn. A trial
    judge is not held to a standard of perfection:
R. v. Sheppard,
2002
    SCC 26, [2002] 1 S.C.R. 869, at para. 55. The trial judge need not detail their
    findings on each piece of evidence, so long as the findings linking the
    evidence to the verdict can be logically discerned:
R.E.M,
at paras.
    16-29 and 43.

[60]

When
    the reasons are read as a whole, within the context of the evidence and the
    arguments at trial, they are more than sufficient and fulfill the purpose for
    which they were intended. Accordingly, I would not give effect to this ground
    of appeal.

(iv)

Exculpatory Statements and the Right to Silence

[61]

The
    appellants argue that the trial judge erred in the manner in which he rejected
    their exculpatory police statements. Jordan argues that the rejection of his
    statement appeared to stem from his decision not to provide details about the
    fight and this runs counter to his constitutional right to silence. Meanwhile,
    Joshua argues that the trial judge erred in using a disbelief in his
    exculpatory statement to ground the conviction. He also argues that the trial
    judge subtly reversed the burden of proof when he made the following comment:
    Had Joshua Powell stated he was protecting his girlfriend from the argument
    with [Quinn] and a fight between the two had ensued, it may have been
    believable. According to Joshua, failing to consider this alternative
    explanation was an error, notwithstanding that Joshua did not raise it himself
    as he did not bear the burden of proof.

[62]

I
    cannot accede to these arguments. I am satisfied that the trial judge did not
    err in the manner suggested by the appellants.

[63]

It
    is without a doubt that an accused has a constitutional right to remain silent
    during any part of a police interview. This right remains intact even if the
    accused opts to speak to police about certain matters:

R. v. G.L.
,
    2009 ONCA 501, 67 C.R. (6th) 278, at para. 39. As the Supreme Court explained
    in
R. v. Turcotte
, 2005 SCC 50, [2005] 2 S.C.R. 519, at para. 52:

An individual can provide some, none, or all of the information
    he or she has. A voluntary interaction with the police, even one initiated by
    an individual, does not constitute a waiver of the right to silence. The right
    to choose whether to speak is retained throughout the interaction.

[64]

The
    right to silence prevents jurists from drawing adverse inferences from an
    accused persons decision not to say more: see
Turcotte
; David
    Paciocco, Palma Paciocco and Lee Stuesser,
The Law of Evidence
, 8th
    ed. (Toronto: Irwin Law, 2020), at pp. 420-421. It is an error of law for a
    trial judge to draw an adverse inference on an accuseds credibility from their
    silence during a police interview:
G.L.
, at paras. 38-39.

[65]

At
    first glance, the trial judges reasons appear to place some significance on
    Joshuas choice not to say more in the police interview. Specifically, in
    assessing Joshuas statement, the trial judge made the following comment:
    There was no question a significant altercation occurred, but Joshua provided
    little or no details about who was involved. The trial judge returned to this
    theme later in his reasons, noting that Joshua did not give details about the
    fight that occurred right at his feet. However, he then went on to comment:
    [w]hat evidence [Joshua] did give about the altercation was inconsistent with
    the other witnesses evidence. The trial judge then detailed the contradictory
    evidence of said witnesses, making clear that Joshuas statement simply did not
    have the ring of truth to it. On this issue, he concluded: Mr. Powells
    denial of any involvement in the altercation is rejected and does not raise a
    reasonable doubt in my mind.

[66]

A
    cursory review of the trial judges assessment of Jordans statement also
    appears to give weight to Jordans choice not to remain silent about particular
    details. Specifically, the trial judge commented: He chose to make a
    statement, and yet provided no details as to what went on in the fight.
    However, in the sentences that followed, the trial judge explained why Jordans
    statement did not raise a reasonable doubt. For example, he noted that Jordans
    excuse for needing ice for his hand was contradicted by the testimony of other
    witnesses, which confirmed that he was involved in the fight and had attacked
    Quinns car.

[67]

Certainly,
    the paucity of detail in the appellants police statements cannot give rise to
    an inference of guilt in these circumstances. But I am not convinced that the
    trial judges comments were significant or reflective of why the trial judge
    rejected the appellants exculpatory statements. In both cases, the trial judge
    followed these comments by providing a detailed analysis of why the appellants
    versions of events were blatantly contradicted by the other evidence. After
    considering the totality of the evidence before him, he was entitled to
    disbelieve the appellants version of events and find that they did not raise a
    reasonable doubt.

[68]

This,
    in my view, was a proper use of both statements and in no way infringed their
Charter
right to remain silent. Essentially, all the trial judge was saying was
    that the appellants chose to speak, as was their right, and in speaking, they
    lied to police. That is a factor that he could and should consider in assessing
    their credibility. After all, a right to silence is not a right to lie without
    impunity.

[69]

Had
    the trial judge drawn an inference of guilt from the fact that neither
    appellant testified nor called evidence in their defence, there would have been
    a breach of the appellants right to silence. Likewise, a breach would have
    occurred if the appellants had not provided a statement to the police and the
    trial judge had drawn an inference of guilt on that basis. In both
    circumstances, such comments would imply that an accused person is obliged to
    speak in their own defence, thus reversing the burden of proof, which firmly
    rests with the Crown.

[70]

However,
    in the case before us, I am satisfied that the trial judge did not improperly
    draw any adverse inferences from the appellants silence in their police
    interviews. Rather, the trial judge was aware of the appellants rights and
    instead rejected their statements due to a reasoned and considered assessment
    of all of the evidence. He was entitled to determine what weight, if any, he
    should afford to individual pieces of evidence, including the appellants
    police statements.

[71]

That
    being said, a trial judge must be careful not to equate disbelief of an
    accuseds version of events with guilt as that would displace the Crowns
    burden to prove an accuseds guilt beyond a reasonable doubt:
R. v. Coutts,
[1998] 40 O.R. (3d) 198 (Ont. C.A.),

at p. 203. I am satisfied
    that this did not occur in this case. While the trial judge disbelieved the
    evidence of the accused, he was mindful of the burden of proof on the Crown.
    For example, in his reasons, he noted:

If I accept the statement of the accused, then I must acquit.
    If the statement raises a reasonable doubt, I also must acquit. It is only if
    the Crown has proven all the elements of the case beyond a reasonable doubt
    that I can convict an accused.

[72]

As
    noted above, Joshua also takes issue with the following statement by the trial
    judge: Had Joshua Powell stated he was protecting his girlfriend from the
    argument with [Quinn] and a fight between the two had ensued, it may have been
    believable. This statement must be taken in its proper context. It is evident
    that the trial judge was using this illustration to make the point that there
    was no suggestion on the evidence before him that self-defence was in play. Both
    Joshua and Jordan denied involvement in the altercation. There was no air of
    reality to self-defence as there was no evidence upon which a reasonable jury
    could acquit on that basis.

[73]

When
    all is considered, I am not satisfied that the trial judge committed the legal
    error alleged by the appellants. As such, I would not give effect to this
    ground of appeal.

(v)

The Rejection of Zachary Powells Statement

[74]

The
    appellants argue that the trial judges rejection of Zacharys evidence was
    based on an unfounded inference of bias. They contend that the Crown did not
    raise the issue of bias in accordance with the rule in
Browne v. Dunn,
and
    it would be unfair to reject such evidence without any effort to impeach the
    witness or without any factual foundation to suggest bias.

[75]

I
    disagree. The appellants are essentially asking this court to interfere with
    the trial judges factual findings as to the credibility of Zachary. There is
    no basis for this court to interfere with the trial judges factual findings. A
    trial judges credibility findings are entitled to deference. An appeal court
    may only interfere with a trial judges factual findings  such as a finding of
    bias  where the error is palpable and overriding:
Clark,
at para. 9.
    I see no such error here. There was evidence before the trial judge about
    Zacharys relationship with the appellants and one of their co-accused. The
    trial judge was entitled to consider it in deciding whether to rely on
    Zacharys evidence.

[76]

I
    also do not agree that the rule in
Browne v. Dunn
was violated. The
    rule in
Browne v. Dunn
is a rule of trial fairness that applies where
    a cross-examiner intends to impeach a witness with contradictory evidence on a
    matter of substance. It is meant to ensure that the witness is given a fair
    opportunity to challenge contradictory evidence that the witness might have
    been able to explain away:
R. v. Quansah
, 2015 ONCA 237, 323
    C.C.C. (3d) 191, at paras. 75, 81. The relationship between Zachary and the
    appellants is not contradictory evidence that challenged  anything Zachary
    said. It was biographical information relevant to his general credibility as a
    witness. Nor can there be any suggestion that the Crown conducted the
    cross-examination in a way that deprived Zachary or defence counsel from addressing
    this concern, had they chosen to do so. The rule in
Browne v. Dunn
was
    not offended.

[77]

The
    Crown is not precluded from inviting a trier of fact to be selective as to what
    part or parts of any witnesses evidence they should believe:
R. v. Walker,
[1994] 18 O.R. (3d) 184 (Ont. C.A.), at pp. 156-157. Similarly, as noted
    above, a trier of fact or a trial judge may choose to believe some, none, or
    all of a witness evidence. In this case, the trial judge used Zacharys
    evidence in the manner suggested by the Crown, and this was permissible.

[78]

In
    all the circumstances, I would also dismiss this ground of appeal.

F.

DISPOSITION

[79]

Both
    conviction appeals are dismissed. I would also not grant leave to appeal
    Jordans sentence.

Released: April 29, 2021 M.T.

M. Tulloch J.A.

I agree. David M. Paciocco J.A.

I agree. Harvison Young J.A.


COURT
    OF APPEAL FOR ONTARIO

CITATION: R. v. Quinton, 2021 ONCA 44

DATE: 20210125

DOCKET: C65249

Tulloch, Paciocco and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Carl Quinton

Appellant

Michael Dineen and
Emily Lewsen
, for the appellant

Craig Harper, for the respondent

Heard: August 17, 2020 by video conference

On appeal from the conviction entered by
    Justice Robert B. Reid of the Superior Court of Justice, sitting with a jury,
    on March 8, 2017, and from the sentence imposed on June 26, 2017.

Harvison Young J.A.:

A.

Overview

[1]

The appellant appeals his conviction for the second
    degree murder of Mark Gilby. Mr. Gilby was found dead in his apartment on Gale
    Crescent on January 19, 2014. The appellant knew Mr. Gilby and occasionally
    bought marijuana from him. He was captured on surveillance footage entering and
    leaving Mr. Gilbys apartment building during the morning of the murder.

[2]

Central to the Crowns case was a confession
    that the appellant made to undercover police officers more than a year after
    Mr. Gilby was found dead in his apartment. The confession was the culmination
    of an eight-month operation during which the Niagara Regional Police befriended
    the appellant and recruited him into a fictitious criminal organization.

[3]

In the course of the confession, Mr. Quinton
    divulged a number of details of the murder that, according to the Crown,
    corroborated his confession.

[4]

In circumstances that I will discuss in greater
    detail below, the trial judge did not hold a
voir
    dire
on the issues as set out in
R. v. Hart
, 2014 SCC 52, [2014] 2
    S.C.R. 544. The appellant argues that this was clearly an operation that fell
    within the parameters of a Mr. Big operation. This rendered the confession
    presumptively inadmissible and required the trial judge to conduct a
voir
    dire
to determine whether it met the
Hart
test for admissibility. Moreover, he takes the position that had
    the trial judge applied the
Hart
test and held a
voir dire
, there was ample basis to exclude
    the confession for two reasons: first, because its probative value did not
    outweigh its prejudicial effect; and second, because the circumstances leading
    up to the confession as a whole constituted an abuse of process on the part of
    the police, given the relationship that developed with the accused and his
    particular vulnerabilities. He seeks a new trial.

[5]

The appellant also submits that even if the trial
    judge did not err in admitting the confessions, he erred in failing to charge
    the jury in accordance with
R. v. Mack
, 2014 SCC 58, [2014] 3 S.C.R. 3.

[6]

The respondent Crown argues that the trial judge
    did not err in failing to hold a
Hart

voir dire
because the defence counsel at trial waived it
    at trial. It takes the position that in any event, any concerns about the
    reliability of the evidence were addressed by the corroborative evidence and also
    submits that nothing in the circumstances gave rise to abuse of process
    concerns. Finally, it submits that the charge to the jury met the functional
    requirements of
Mack
.

[7]

For the reasons that follow, I would allow the
    appeal and order a new trial. This was clearly a case to which the
Hart
considerations applied. The appellant did not waive a
voir dire
, and
    even had he done so, the waiver of the
voir dire
would have been
    invalid. It is not clear that the statement would have been admitted had a
voir
    dire
been held. In particular, the confession raised abuse of process
    concerns that needed to be canvassed in a
voir dire
.

B.

The Factual Background

(1)

The murder

[8]

Mark Gilby was discovered shortly before 5:00
    p.m. in his apartment entryway surrounded by blood and without vital signs. He died
    of blunt force injuries to the head, likely caused by a hammer or a hammer like
    tool. His friend Diane Doucette had become increasingly alarmed when she was
    unable to reach him on his phone throughout the day. She and a friend had gone
    to his apartment around 4:30pm. When there was no answer to the door, which was
    locked, they called 911. Paramedics found the body without vital signs.

[9]

Mr. Gilby had been given two sets of keys to his
    apartment, including electronic building fobs which had distinct serial numbers.
    Mr. Gilby was in frail condition and used a motorized scooter. One set of his
    apartment and scooter keys could not be located in his apartment after the
    murder.

(2)

The evidence against the appellant

[10]

The appellant quickly became a person of
    interest in the murder after surveillance footage indicated that he had been at
    the deceaseds apartment on the day of the murder.

[11]

Surveillance footage first captured the
    appellant at Mr. Gilbys apartment shortly before 10 a.m. on the day of the
    murder. After waiting in the vestibule area, he left the building and walked
    back in the direction that he came from. Afterwards, the appellant was captured
    on St. Catharines Motorcycle Centre surveillance footage travelling on his
    bicycle northbound on Riordan Street, just north of where it intersects with
    Gale Crescent. He was wearing a dark jacket, dark pants, dark shoes, and gloves.

[12]

At 10:25 a.m., the appellant again approached the
    intercom panel in the vestibule area of Mr. Gilbys building. After some
    discussion with a resident who was leaving the building, the appellant again
    left.

[13]

The appellant walked down the sidewalk before
    turning around and returning to the vestibule. At 10:29 a.m., he used the
    intercom to call Mr. Gilby and he was granted entry. The appellant walked
    towards the elevator. He was out of view for approximately seven minutes before
    he reappeared and exited the building at 10:37 a.m. When he reappeared, the
    surveillance footage appeared to show some discoloration in the pocket areas of
    the appellants jacket, as well as something bulging and protruding from his
    pockets.

[14]

The appellant conceded his identity in the
    surveillance footage and the fact that he was at the apartment to see Mr.
    Gilby. The appellant testified that, on his last visit that day, someone he
    thought was Mr. Gilby answered his call from the intercom and buzzed him into the
    building, but that when he knocked on Mr. Gilbys unit there was no answer, so
    he left.

[15]

Approximately one-and-a-half hours after the
    appellant left Mr. Gilbys apartment, he was captured on surveillance footage
    riding his bicycle. He was wearing a different jacket and shoes. The appellant
    testified that he changed his clothes because he got splashed while riding his
    bicycle.

[16]

The police searched the appellants apartment and
    seized clothing and a pair of boots. No blood was found on the items.

[17]

The appellant testified that he had been to Mr.
    Gilbys Gale Crescent apartment 10-15 times to purchase marijuana prior to the
    date of the murder. On at least one occasion, he saw Mr. Gilby go into a
    toolbox in his bedroom and return with half an ounce of marijuana. He testified
    that, on January 18, 2014, the day before the murder, he attended Mr. Gilbys
    residence and bought a gram of marijuana that Mr. Gilby had in a coat pocket in
    the closet of the apartment entryway. The appellant testified that on that
    date, there were no other people in the apartment that he could see. He further
    testified that on the other occasions when he visited Mr. Gilby, he was
    generally alone in the apartment.

[18]

The appellants friend Sharon Shaw testified
    that she and the appellant would meet regularly and smoke marijuana together,
    which she purchased from the appellant. The appellant would purchase the
    marijuana from a number of sources, including Mr. Gilby. Ms. Shaw told police
    that two weeks after the murder of Mr. Gilby, the appellant gave her $170 in
    cash and a half-ounce of marijuana for free. She testified that this was out of
    the ordinary for the appellant. Ms. Shaw also testified that around this time,
    the appellant told her that he had a female friend who helped him dispose of a
    weapon.

(3)

The circumstances of the appellant

[19]

At the time of the murder, the appellant was
    living on disability benefits, which usually amounted to just over $1,000 a
    month. He testified that he had a trustee who handled his money, because he was
    not very good with money. His trustee ensured that he had enough money for rent
    and hydro.

[20]

After his expenses, he had around $500 a month
    leftover, which he mostly spent on alcohol and marijuana. He would often become
    intoxicated by the afternoon and would regularly drink to the point of passing
    out. He frequented Start Me Up Niagara, where he could receive free meals. He
    resold cigarette packs at a $5 profit on the side.

[21]

The appellant had documented anxiety and clinical
    depression, for which he took medication. After the murder, the appellant
    appeared to be in a bad mental state. His 58
th
birthday was coming
    up, and he was depressed because he was about to outlive his father, who had
    died by suicide over 20 years earlier.

[22]

In March, about two months after the murder, he
    sent Ms. Shaw a note. He and Ms. Shaw had a falling out, which he discussed in
    his note. He said he was depressed and heartbroken by what happened with Ms.
    Shaw. He also gave her his bank card and told her to withdraw $500 and to do something
    useful with it. She thought the note was a suicide note and went to the police
    with it.

(4)

Project Gale

[23]

In the spring of 2014, the Niagara Regional
    Police launched Project Gale, an undercover operation to investigate the
    appellant for the murder of Mr. Gilby. Detective Sergeant Sean Polly acted as
    the handler in charge of the operation. He testified that as a handler he did
    not tell the undercover operators anything about the investigation or the
    appellant.

[24]

On June 3, 2014, Ralph Hopiavuori, the principal
    undercover officer, established contact with the appellant by defending him
    from another undercover officer pretending to be an aggressive panhandler. Det.
    Hopiavuori was not aware of the details of the homicide, simply that there was
    a suspect.

[25]

Det. Hopiavuori then started attending
    breakfasts at Start Me Up Niagara. One day, the appellant invited Det. Hopiavuori
    to his home after they ran into each other on the street while the appellant
    was inebriated, and Det. Hopiavuori was carrying a six-pack of beer. This
    became a regular event. Det. Hopiavuori would attend the appellants apartment
    to watch movies together. Sometimes, Det. Hopiavuori would bring food or beer
    with him to share with whoever was in the appellants apartment. While the
    appellant would smoke marijuana almost daily, Det. Hopiavuori never smoked with
    him. During these encounters, the appellant would become very intoxicated,
    sometimes to the point of losing control of his bowels or bladder.

[26]

In mid-July 2014, Det. Hopiavuori recruited the appellant
    to Project Gales fictional criminal organization that trafficked in contraband
    cigarettes and stolen property from the United States and Southern Ontario and
    arranged for passports to be forged to enable its members to cross the border.
    The appellant went on box runs in which Det. Hopiavuori would drive him to
    various locations and the appellant would load boxes of what he thought was
    contraband with Det. Hopiavuori and other members of the organization. They
    also attended simulated business meetings.

[27]

In addition to Det. Hopiavuori, there were around
    a dozen other officers who pretended to work for the organization, although the
    appellant was not introduced to all of them. The appellant became acquainted
    with Detective Sergeant Chris Lemaich and Detective Constable Kevin Neufeld. Det.
    Lemaich acted as someone with a similar role as the appellant and Det. Neufeld
    acted as someone in a higher position within the organization.

[28]

Once, the appellant attended a clubhouse near
    Kitchener that was apparently affiliated with the organization. According to
    the appellants testimony the clubhouse had pool tables, a Bentley, and was
    lined with motorcycles. During this period, the appellant occasionally
    travelled to hotels and casinos with Det. Hopiavuori and others. The appellant
    testified that he thought that Det. Neufeld was connected to a biker gang.

[29]

In late August 2014, the appellant suffered a
    stroke and was hospitalized for 16 days. Det. Hopiavuori visited the appellant in
    the hospital regularly and Det. Neufeld visited once or twice. The appellant
    testified that no one else had come to see him, aside from one visit from a
    Start Me Up Niagara worker. Det. Hopiavuori also assisted the appellant by
    checking in on his home while he was in the hospital, delivering his marijuana
    and cigarettes to the hospital, and paying for a TV for his hospital room. He
    also returned the appellants overdue DVDs to the library and retrieved his
    bank card.

[30]

When the appellant was discharged, he had a
    severe leg tremor and was unable to walk or take showers unassisted. He was
    initially reliant on a wheelchair but Det. Hopiavuori bought him a walker as
    well as clothing, food, and a haircut. Det. Hopiavuori also drove him to
    doctors appointments. By his own words, the appellant was helpless after his
    stroke. He went from being a mobile person to being affected by leg tremors. The
    appellant continued to take part in the box runs after his stroke but in a
    modified capacity. Before his stroke, he assisted with moving boxes of
    contraband. After his stroke, his job was to keep watch for the police. He conducted
    11 or 12 more runs, to further locations, and his compensation increased to
    between $50 and $100 per run. Det. Hopiavuori continued to provide him with
    food and beer.

[31]

While the appellant was in the hospital, he was
    questioned by homicide detectives about Mr. Gilbys murder. He testified that
    the police would show up at his home and he would regularly bump into them on
    the street. In December, after what appeared to be months of increasing police
    pressure, Operation Gale staged a scenario where the appellant and Det.
    Hopiavuori were pulled over by the police. The police confiscated cigarettes
    from Det. Hopiavuoris truck, purportedly worth thousands of dollars. When
    questioned by Det. Neufeld about how this happened, Det. Hopiavuori told him
    that the appellant was the suspect in a murder. Det. Neufeld assured them that
    he would arrange something that would get the police to leave the appellant
    alone. He came up with the following plan. The appellant would relay the
    details of the murder to Det. Lemaich, who was supposedly dying of cancer. In
    exchange, Det. Lemaich would receive $10,000 from Det. Neufeld, for him to give
    to his family. Det. Lemaich was going to receive $5,000 up front and then
    $5,000 after he confessed. It was in this context that the appellant ultimately
    confessed to the murder.

[32]

The lead-up to the confession began on Monday,
    February 2, 2015, when the appellants Red Cross worker did not show up to help
    the appellant shower. The next day, Det. Hopiavuori took him to a hotel where
    he could bathe himself. On Wednesday, Det. Hopiavuori drove him home to
    retrieve medication he left behind. As part of the scenario, police were
    outside the appellants door when they arrived. The appellant wanted to stop
    and speak to them, but Det. Hopiavuori convinced him to return to the hotel. On
    Thursday, Det. Hopiavuori took the appellant to the doctor to obtain a new
    prescription. They planned to go to a pharmacy on Friday. At multiple points, the
    appellant suggested that he call the police or that he go back to his place.
    Det. Hopiavuori told the appellant that he would not take the appellant back to
    his apartment.

[33]

By this point, the appellant was, in his words, a
    mess. He had been without his medication for several days and was in an altered
    mental state. He said that he had no idea what was happening with his head and
    that he did not know where he was. The increasing pressure he felt throughout
    the week from the undercover officers to confess exacerbated this. He confessed
    on Thursday and Friday. He stated that he attended Mr. Gilbys apartment, stole
    his marijuana, and attacked him with a hammer that he brought with him. On his
    way out, he took Mr. Gilbys keys from the ignition of his scooter and locked
    the door. He turned his jacket inside out, as he was covered in blood, called a
    cab and returned home. He left the hammer in a park and threw the keys in a
    sewer.

[34]

His confession came out in fragments. The
    appellant alleges that many details were prompted by Det. Hopiavuori and other
    officers. When his narrative contradicted known facts about the murder, Det. Hopiavuori
    challenged him on it and worked with him to create a coherent narrative.

[35]

On Thursday, Dets. Hopiavuori and Neufeld took
    the appellant to a hardware store where the appellant pointed out a hammer
    similar to the one he said he used to kill Mr. Gilby. No hammer was ever found
    in the park.

[36]

On Friday, the appellant said that he disposed
    of the keys with the hammer or elsewhere in the park. Later that day, however,
    the appellant brought Dets. Hopiavuori and Neufeld to a sewer where he said he
    threw the keys. The keys were found in the sewer. The appellant was arrested
    and charged shortly thereafter.

C.

The issues

[37]

There are three issues on appeal which will be
    addressed in turn:

1.

Did the appellant waive the
voir dire
and, if so, was the
    waiver valid?

2.

Would the confession have been admitted if a
voir dire
was
    held?

3.

Was the jury charge adequate in warning the jury of the dangers
    inherent in the confession?

D.

Law and Analysis

(1)

Did the appellant waive the
voir dire
requirement from
Hart
?

The Application of
Hart

[38]

The trial
    Crown took the position that
Hart
did not apply because the appellant did
    not make a Mr. Big confession. On appeal, the Crown did not seek to maintain this
    position, arguing instead that the appellant waived the need for a
Hart voir dire
. The appeal Crowns concession that
Hart
applies to the
    appellants confession is correct. I will explain why this is so, and then
    address the Crowns waiver argument.

[39]

Hart
dealt with the admissibility of
    confessions made in the course of Mr. Big investigations. The classic Mr. Big operation
    involves the luring of a suspect into a fictitious criminal organization. The
    suspect is offered financial inducements and friendship. The operation
    culminates with an interview-like meeting between the suspect and Mr. Big:
Hart
, at para. 2. During this interview,
    Mr. Big questions the suspect about the crime and pushes the suspect for a
    confession. By confessing, the suspect can gain acceptance into the fictious
    criminal organization. Confessions made during a Mr. Big investigation are
    presumptively inadmissible, because of the dangers posed by the investigative
    technique.

[40]

In
Hart
, Moldaver
    J. foresaw that police might make superficial changes to their operations to avoid
Hart
. As a result, he
    defined a Mr. Big investigation broadly, at paras. 10, 85:
where the state recruits an accused into a
    fictitious criminal organization of its own making and seeks to elicit a
    confession from him
any confession is presumptively
    inadmissible (emphasis added).

[41]

Accordingly, this court took an expansive view of the application of
Hart
in
R. v. Kelly
, 2017 ONCA 621, 387 C.R.R. (2d) 93, leave
    to appeal dismissed, [2017] S.C.C.A. No. 474. Feldman J.A. wrote, at para. 35,
    that although the undercover operation in
Kelly
did not have the most
    offensive tactics of the traditional Mr. Big operation,
Hart
still
    applied. The relevant question to determine whether
Hart
applies to an
    operation is whether the operation poses the potential for the three dangers
    identified in
Hart
: unreliable confessions, the prejudicial effect of
    the evidence of the appellants participation in the scheme, and the potential
    for police misconduct:
Kelly
, at para. 35.

[42]

The appellants confession satisfies the requisite
    criteria. The operation satisfies the
Hart
definition because (i) the state recruited the appellant into a
    fictitious criminal organization of its own making in order to (ii) elicit a
    confession:
Hart
, at
    para. 10. The expanded criteria in
Kelly
are also met. As the following analysis discloses, the operation used
    to secure the appellants confession posed the potential of producing an
    unreliable confession, generated prejudicial evidence relating to the
    appellants participation in the scheme, and had the potential for police
    misconduct.

The confession was
    presumptively inadmissible, and the requirement for a
voir dire
was
    triggered, in which the Crown would have to show the confession to be
    admissible.

Waiver of the
voir
    dire

[43]

The admissibility of
    evidence is for the trial judge to determine:
R. v. J.H.
, 2020 ONCA
    165, at para. 56. The party seeking to admit presumptively inadmissible
    evidence must apply to the trial judge for an order permitting its reception:
J.H.
, at para. 57. The general practice is to invoke s. 645(5) of the
Criminal
    Code
and to have the application heard before jury selection:
J.H.
,
    at para. 58.

[44]

Of course, a party may generally waive the benefit
    of exclusionary rules, thereby permitting presumptively inadmissible evidence
    to be received. The respondent argues that this occurred here. It maintains
    that through his trial counsel the appellant exercised his right to waive a
Hart voir dire
. The respondent contends
    that absent an ineffective assistance of counsel argument (which the appellant
    did not advance), the appellant must live with the consequences of tactical
    decisions made by his counsel. Counsel is presumed to know the law. He was
    aware of
Hart
and the
voir dire
procedure, as is evident by his
    lengthy submissions to the trial judge on this issue. He made a tactical decision
    to dispense
with the
voir dire
.

[45]

However, the law of waiver is unique as it
    applies to confessions, no doubt because a confession is often decisive in
    establishing guilt. A trial judge is obliged to conduct a
voir dire
into
    the admissibility of a confession, even in the absence of objection, unless the
    right to a
voir dire
has been expressly waived:
Park v. R.
, [1981]
    2 S.C.R. 64, at p. 70. In
R. v. Sabir
, 2018 ONCA 912, 367 C.C.C. (3d)
    426, at para. 24, Strathy C.J.O. described what is required:

As the Supreme
    Court explained in
R.
    v. Park
, [1981] 2 S.C.R. 64, at p. 73, there is
    no particular wording or formula required to communicate an informed waiver.
    However, the waiver must be express. "The question is: Does the accused
    indeed waive the requirement of a
voir dire
and admit that
    the statement is voluntary and admissible in evidence?":
R. v. Park
, at p. 74. In the context of a waiver made by defence counsel, the
    court stated that the trial judge must be "satisfied that counsel understands
    the matter and has made an informed decision to waive the
voir dire
": at p. 73.The onus on a trial judge with respect to
    voluntariness is high, even where an accused is represented by counsel. As the
    Supreme Court noted in
R. v. Hodgson
, [1998] 2
    S.C.R. 449, at para. 41: "The trial judge has a duty 'to conduct the trial
    judicially quite apart from lapses of counsel': see
R. v. Sweezey
(1974),
    20 C.C.C. (2d) 400 (Ont. C.A.), at p. 417. This includes the duty to hold a
voir dire
whenever the prosecution seeks to adduce a statement of the accused
    made to a person in authority.

[46]

Once a waiver has been offered the trial judge
    has discretion to accept the waiver, to hold a
voir
    dire
, or to make inquiries of counsel as to
    factual admissions underlying the waiver:
Park
, at p. 70.
Although a trial judge is not
    required to make inquiries before accepting the waiver, the trial judge must be
    satisfied that counsel understands the matter and has made an informed
    decision to waive the
voir dire
:
Park
, at p. 73.

[47]

In
Hodgson
, [1998] 2 S.C.R. 449, at para. 41,

Cory J. noted that where the defence has not requested a
voir dire
and a statement of the
    accused is admitted into evidence, the trial judge will only have committed
    reversible error if clear evidence existed in the record which objectively
    should have alerted him or her to the need for a
voir
    dire
notwithstanding counsels silence. It
    follows that if a statement of the accused is admitted into evidence without a
    valid waiver, the trial judge will have committed a reversible error if clear
    evidence existed in the record which objectively should have alerted him or her
    to the need for a
voir dire
.

[48]

As I will explain, this review of the law
    exposes problems in finding that the appellant waived his right to a
voir dire
. First, defence counsel did
    not purport to waive the right to a required
voir
    dire
. Instead, he erroneously conceded that a
voir dire
was not required because the rule
    requiring a
voir dire
did
    not apply. This concession was not a waiver. Second, it is evident that
    defence counsel did not understand the law that applies, and the trial judge
    accepted the waiver without satisfying himself that counsel understood the matter
    and made an informed decision. Indeed, there was clear evidence on the record
    that should have alerted the trial judge to the need for a
voir dire
to determine compliance with
    the rule in
Hart
,
    notwithstanding defence counsels mistaken concession that the rule did not
    apply. Hence, even if defence counsels concesssion amounts to a waiver, it was
    not a valid waiver.

The circumstances of the purported waiver

[49]

In order to address the validity of the
    appellants purported waiver, it is necessary to consider the pre-trial and
    mid-trial discussions between counsel and the trial judge.

[50]

The admissibility of the statement was not
    properly canvassed at the judicial pre-trial. According to the trial Crown,
    there was brief discussion about the admissibility of the confession at the
    pre-trial stage. However, the appellant changed counsel after this pre-trial
    discussion. When new counsel attended a continued judicial pre-trial, he was
    not fully versed in the appellants case. There was no discussion about a
Hart
    voir dire
at that point
.
He stated that he believed that the only
    live issue at the continued pre-trial was the
Charter
compliance of
    the intercepts.

[51]

Defence counsel finally raised the issue a few
    weeks prior to the start of the trial, advising Crown counsel that he believed
    that
Hart
applied. Crown counsel disagreed and took the position that
    defence counsel bore the onus of proving that the investigation was a Mr. Big
    operation before the Crown was required to establish the admissibility of the
    confession. It seems that the Crown took this position because, according to
    him, there was no criminal hierarchy or violence.

[52]

The issue did not come up again until mid-trial.
    In his cross-examination of Det. Polly, defence counsel asked questions related
    to the nature of the operation and the officers understanding of the
    appellants alcohol addiction, seemingly to establish a factual record for
    admissibility. The trial judge challenged defence counsel on the relevance of
    this line of questioning. The next morning, on March 1, 2017, defence counsel
    made his first submissions on
Hart
:

[A]t the end of my
    questioning of, of this witness, I would be arguing that
Hart
appliesafter
    this witness is completed, I would be asking for you to make a finding. I would
    ask that then we would
voir dire
the, the next witness. Not
    necessarily about the statements themselves, just about circumstances in which
    the statements were taken, the utterances were taken. And, and Your Honour
    would, would make a finding that if the Crown had or had not satisfied the onus
    that I believe is now a common law onus.

[53]

Upon hearing this, the trial judge was concerned
    that this was not canvassed at the pre-trial stage and was specifically
    concerned that the jury would be inconvenienced by the time it would take to
    make a decision on this issue. The trial judge initially characterized the
    question as whether or not the confession would go into evidence. At this,
    defence counsel offered a third course:

I think Your
    Honour will find that
Mack
is the, is, is  covers the ground here and
    that you will suggest that we just hear the evidence in front of the, the jury
    and then at the end Your Honour can make appropriate cautions about the, about
    the evidencethere are two  three outcomesYou could just deny the, the
    application, assuming that youll hear the application, youll deny the
    application. And I can understand how that could happen. You could grant the
    application, do the
voir dire
and
with the
    remedies that are available or I think with an eye to the
Mack
case
which is a case, as I understand it, and please, I, I dont
Im not terribly familiar with it at this juncture
. But
    in, in
Mack
the trial proceeded to, to the end and the issue was the,
    the judge making the appropriate cautionary remarks to the jury about what use
    they can put the evidence to. [Emphasis added.]

[54]

The trial Crown stated that he would have called
    its evidence in an entirely different manner had he known that this issue would
    have been raised. He also stated his position that, if there was a
voir
    dire
, that the Crown would have to introduce all 280 hours of recordings
    and call other police witnesses.

[55]

At this point, the discussion of the
    admissibility of the confession paused so that the cross-examination of Det.
    Polly could be completed. The issue was again addressed after the completion of
    the cross-examination. The trial judge summarized the live issues in this way:

As I see it, there
    are two issues for the Court to consider at this point. The first is should
    there be consideration of the confession, at this point, based on pre-trial
    conference discussions. To put that another way, the whole point of pre-trial
    discussions is to sort out in advance issues that are going to impact the
    trial, so that once the trial begins, particularly with a jury, it can proceed
    with relative efficiency, if I can call it that. The second issue for me to
    consider at this point is  and Ill put this in, in a short form, does
Hart
apply.
In other words, is there sufficient evidence
    of a Mr. Big operation to trigger the presumption of inadmissibility at common
    law?
[Emphasis added.]

[56]

Crucially, from this point on, it seems that the
    only submissions on the substantive law related to whether or not
Hart
applied
     not whether the confession was ultimately admissible.

[57]

Crown counsel again insisted that if a
voir
    dire
was to be held he would have to play weeks of intercepted
    conversations to the Court:

I dont know what the procedure is for you to
    consult with your colleague but no such application was brought before the
    Court. The Crown would have called its evidence in an entirely different manner.
    And if we are compelled to enter into a
voir dire
at this stage, I can
    tell you there are  in order for the Crown to make the record complete, there
    are 280 hours of recorded conversations.

Its up to the
    Crown to put all of the admissible evidence that would be relevant, in terms of
    how this relationship developed, how it was fostered, the nature of it and, I
    would respectfully submit that if it isnt being challenged on a
voir dire
,
    with all those factors in mind.

[58]

Both defence counsel and trial judge pushed the Crown
    on this position. Defence counsel stated that he anticipated that a
voir
    dire
would take a few hours. The trial judge stated that it would not be
    necessary or realistic to hear all the intercepts to determine whether there
    was a Mr. Big or not. The trial judge indicated that a
voir dire
with
    280 hours of recordings would lead to a mistrial. However, Crown counsel reiterated
    his position that all 280 hours would have to be introduced into evidence.

[59]

On the substantive issue, Crown counsel stated
    that the onus was on the appellant to establish that it was a Mr. Big operation
    and that the groundwork for that argument had to have been done in a pre-trial
    motion.

[60]

The trial judge again expressed concern about
    the effect that a long
voir dire
would have on the jury and encouraged
    counsel to come to make reasonable concessions to shorten the time required for
    a
voir dire
. He also encouraged counsel to have an off-the-record
    discussion.

Well, it might  can I suggest that rather
    than have a kind of an open, free flowing discussion on the record, you have a
    discussion and then based on what you may conclude you can advise me on the
    record.

If, as between
    counsel, you can agree that the only other evidence, or I should say, testimony
    thatll be called on
this threshold issue of whether a
    Mr. Big operation applied
and, if so, as to the Crowns onus, if the
    only evidence that you require is whats currently before the Court and the
    evidence of Mr. Hopiavuori then we can proceed on that basis. [Emphasis added.]

[61]

The Court took a recess so that the Crown and
    defence counsel could have an off-record discussion about how to proceed. They
    returned having come to an agreement that: (i) defence would accept the Crowns
    position that there was no Mr. Big within the meaning of
Hart
; (ii)
    the issue of the reliability of the statement would be left to the jury; and
    (iii) counsel would be expecting an instruction from the trial judge about the
    nature of the inducements provided to the appellant. The Crown addressed the
    court:

Your Honour, Mr.
    Hadfield and I have had conversations and what Ive suggested to him is if
he concedes the Mr. Big point
, the evidence could easily
    be used that weve already heard to tell the jury that perhaps Mr. Quintons
    will was overwhelmed when he was speaking with this officer and I think thats,
    thats fair play. So thats what were aiming for. [Emphasis added.]

[62]

After the next recess, Crown counsel confirmed
    that they would be proceeding without a
voir dire
and that the reliability
    of the confession would be dealt with in the jury instruction. Defence counsel
    made no explicit factual admissions.

[63]

The trial judge made no inquiries about the
    legal basis for the conclusion that this was not a Mr. Big confession. But
    during the pre-charge discussions, defence counsel made the following comment,
    suggesting that in his view the criminal activity was not sufficiently serious,
    and the organization was not sufficiently hierarchical to technically
    constitute a Mr. Big operation:

[W]hether Your
    Honour would have found this to be a Mr. Big operation or a Mr. Big style
    operation except with a very small Mr. Big and a very mundane and paltry
    criminal organization.
There are analogues between, in my
    respectful submission, between Mr. Big style and this, this operation.
[Emphasis added.]

[64]

The trial judge appeared to agree with the
    position that the crimes were not sufficiently serious for the operation to
    constitute a Mr. Big operation. In pre-charge discussions, he distinguished
    between Project Gale and a Mr. Big operation in the following way:

[U]nlike a Mr. Big
    where theyre looking at some serious bad crime and in effect having to prove
    that youre capable of similar bad crime  this is to me some petty crime about
    moving some cigarettes around.

The purported waiver
    was not a waiver

[65]

The respondents submissions that the appellant
    waived his right to a Mr. Big
voir dire
cannot be accepted. Appellants
    trial counsel did not advise the court that the appellant was waiving his right
    to a
voir dire
into the admissibility of the confession. Instead, he had
    agreed to accept the Crown position that Mr. Big did not apply. No waiver
    occurred.

[66]

Even if defence counsels mistaken concession
    that
Hart
did not apply to the appellants confession qualified as a
    waiver, it would not have been a valid waiver. The decision made by defence
    counsel was not informed and the trial judge failed to determine that it was.

[67]

First, it does not seem that defence counsel
    appreciated the legal issues involved. The entirety of the on-the-record
    discussion, prior to the purported waiver, related to the question of whether
Hart
applied to the confession. None of the discussion related to the
    admissibility of the confession under
Hart
.

[68]

In addition, it does not appear that defence
    counsel had turned his mind to the abuse of process concerns in this case.
    Defence counsels response to the trial judges challenge to the relevance of
    his questioning of Det. Polly related to the nature of the inducements provided
    and how those inducements may undermine the reliability of the statement. Not
    once during this exchange or during pre-charge discussions did defence counsel
    highlight the abuse of process concerns.

[69]

The agreement counsel reached after their
    off-the-record discussion was not an agreement that fully informed defence
    counsel would have made. After the discussion, defence counsel agreed to accept
    Crown counsels position that
Hart
did not apply. In return, Crown
    counsel agreed that a
Mack
-style jury warning on the reliability of
    the confession would be given. However, the appellant would have been entitled
    to a jury warning on the reliability of the confession in any event if the
    evidence was admitted after a
voir dire
. A jury warning is required in
    every single case involving an admissible Mr. Big confession. Defence counsel
    received nothing in return for his concession. As appellant counsel described,
    this agreement was more of an unconditional surrender than it was a deal.

[70]

Finally, statements made by defence counsel further
    support the view that the waiver was not informed. Defence counsel was, by his
    own admission, unfamiliar with the law around Mr. Big confessions. During the
    pre-charge discussions, defence counsel characterized the operation as a Mr.
    Big style operation, except with a very small Mr. Big and a very mundane and
    paltry criminal organization. The only case that defence counsel relied upon
    in his submissions other than
Hart
and
Mack
was
R. v. Derbyshire
,
    2016 NSCA 67, 340 C.C.C. (3d) 1.
Derbyshire
did not involve a Mr. Big
    investigation. Indeed, the circumstances of
Derbyshire
were far afield
    from this case.

[71]

Upon review of the statements made by counsel on
    the record, the nature of the agreement reached off-the-record, and the legal
    issues, the only reasonable inference is that defence counsel did not
    understand the legal issues and did not appreciate the implications of the
    waiver of the
voir dire
. In short, the purported waiver was not
    informed. Yet the trial judge failed to satisfy himself that counsel understood
    the matter and had made an informed decision to waive the
voir dire.
He should have done so.

There was ample evidence on the record that should
    have alerted the trial judge that
Hart
applied, entitling the appellant to a
voir
    dire
. The
trial judge
    erred in not holding one.

[72]

However, this is not the end of the analysis. When
    there is no
voir dire
at trial, appellate courts will not intervene if
    it is clear that the statement would have met the admissibility threshold if a
voir
    dire
had been held:
R. v. Niemi
, 2017 ONCA 720, 355 C.C.C. (3d)
    344, at paras. 3, 28;
Kelly
, at para. 78.

[73]

In
Niemi
, the confession was admitted
    at trial, before the Supreme Courts decision in
Hart
. Paciocco J.A.
    dismissed the appeal, as he found that the statements would have been admitted
    under the
Hart
test. In his confession, Mr. Niemi had provided a
    number of unreleased details of the murder. This bolstered the reliability of
    the confession, in spite of the non-coercive inducements given to secure the
    confession: at para. 29. The probative value of the statements was
    impressive: at para. 29. In addition, there was no abuse of process; the
    trial judge found that the Mr. Big operation was exemplary and excellent
    police work: at para. 31.

(2)

Would the confession have been admissible if a
voir dire
had been held?

[74]

The appellant argues that the record in this
    case is insufficient for this Court to resolve the ultimate question of the
    admissibility of the confession. However, he argues that, on the record
    available, there is doubt that the confession was reliable. In addition, he
    submits that it is highly arguable that the police conduct in this case would
    shock the conscience of the community.

[75]

The respondent argues that the confession would
    have been admitted. He argues that nothing in the circumstances of the
    investigation suggests that the appellants will was overborne and that his
    confession was unreliable. In addition, the confession had several markers of
    reliability, including that it contained precise details, including some not
    publicized, and that it led to the discovery of further evidence. On the abuse
    of process branch, the respondent argues that the investigation was skillful
    police work. The investigation did not involve coercive behaviour that would
    shock the conscience of the community.

[76]

A confession made during a Mr. Big operation is
    problematic because there is a risk that the confession is unreliable and an
    admitted confession is generally accompanied by bad character evidence:
Hart
,
    at paras. 68-77. In addition, Mr. Big operations create a risk that the police
    will resort to unacceptable tactics in their pursuit of a confession:
Hart
,
    at para. 78. Unacceptable police tactics can undermine the reliability of a
    confession or be an abuse of process. In recognition of these dangers, Mr. Big
    confessions are presumptively inadmissible.

[77]

In order to be admitted, the confessions
    probative value must outweigh its prejudicial effect, and the police conduct
    must not have amounted to an abuse of process. The confessions probative value
    is tied to the reliability of the statement, while its prejudicial effect arises
    primarily from the bad character evidence that must be disclosed during trial about
    the subjects misconduct during the operation:
Hart
, at para. 85.

[78]

The abuse of process prong of the test is
    intended to guard against state conduct that society finds unacceptable, and
    which threatens the integrity of the justice system:
Hart
, at para.
    113. The operation cannot be permitted to overcome the will of the accused and
    coerce a confession:
Hart
, at para. 115. Importantly, Moldaver J.
    stated, at para. 117, that operations that prey on an accuseds vulnerabilities
     like mental health problems, substance addictions, or youthfulness  are also
    highly problematic.
Taking advantage of these
    vulnerabilities threatens trial fairness and the integrity of the justice
    system
 (emphasis added).

[79]

In addition to mental health problems and
    substance addiction, courts have explored whether the accused possessed traits
    such as intelligence and street smarts and have also explored the degree to
    which the accused was emotionally bonded to the undercover operatives, dependant
    on the fictional criminal organization, socially isolated, and destitute:
Kelly
,
    at paras. 38-39;
Neimi
,

at para. 29;
Yakimchuk
, 2017
    ABCA 101, 352 C.C.C. (3d) 434, at para. 69.

[80]

Notably, Moldaver J. wrote that the abuse of
    process in
Hart
was a reinvigorated analysis. He acknowledged, at
    para. 114, that the abuse of process doctrine was rarely used to guard against
    police misconduct in Mr. Big operations:

I acknowledge
    that, thus far, the doctrine has provided little protection in the context of
    Mr. Big operations. This may be due in part to this Courts decision in
R.
    v. Fliss
, 2002 SCC 16, [2002] 1 S.C.R. 535, where Binnie J., writing for
    the majority, described the Mr. Big technique as skillful police work (para.
    21).
But the solution, in my view, is to reinvigorate the
    doctrine in this context, not to search for an alternative framework to guard
    against the very same problem.
The first step toward restoring the
    doctrine as an effective guard against police misconduct in this context is to
    remind trial judges that these operations can become abusive, and that they
    must carefully scrutinize how the police conduct them. [Emphasis added.]

[81]

The Mr. Big operation in
Hart
preyed
    upon the respondents poverty and social isolation: at para. 148. In addition,
    the police allowed Mr. Hart to drive long distances despite knowing that he had
    a risk of seizure and could have had an accident while driving. Moldaver J.
    commented, at para. 149, that the police conduct in this case raises
    significant concerns, and might well amount to an abuse of process.

Analysis on
    admissibility

[82]

I agree with the appellants submissions that
    there are substantial issues related to the reliability of the confession and
    the police conduct in this case that require a new trial and a
voir dire
to properly address. I cannot say that had a
voir dire
been held, the
    confession would have been admitted.

[83]

It the outset, I note that the trial Crowns
    position was that all 280 hours of intercepts would need to be introduced into
    evidence on a
voir dire
. This position was unreasonable and appears to
    be one of the root causes of why a
voir dire
was never held. In the
    face of the trial Crowns submissions on this point, the trial judge stressed
    that counsel should attempt to come to an agreement and make reasonable
    concessions and, in the end, defence counsel conceded the Mr. Big point. The
    respondent now attempts to argue on appeal that there is enough of an
    evidentiary record to conclude that the appellants confession would have been
    admitted had a
voir dire
been held.

(i)

Probative value vs. prejudicial effect

[84]

The respondent is correct that the confession
    appears to have led to the discovery of powerful inculpatory evidence: Mr.
    Gilbys missing set of keys, which were in the storm sewer that the appellant
    led police to. This is, on its face, a persuasive indicator of the reliability
    of the confession. The defence position at trial was that the police officers coached
    the appellant on the content of the confession and that the officers led the
    appellant to the location of the keys. The appellant was simply responding to
    non-verbal clues when he directed them to the correct storm sewer. The
    appellant says that the recordings of the confession support the coaching
    theory. He called evidence which suggested that the keys would have been
    discovered much earlier, had they been deposited in the storm sewer when the
    appellant said they were. Given my conclusion on the abuse of process concerns
    and the fact that the record is incomplete on this issue, it is not necessary to
    comment on the reliability of the appellants confession, other than to say
    that the evidentiary record on this point is incomplete.

(ii)

Abuse of process

[85]

The police conduct in Project Gale raised
    serious concerns about abuse of process. The appellant was an alcoholic. He had
    anxiety and depression that he was taking medication for, and at least one
    recent instance of suicidal ideation. He eked out an existence on disability
    benefits. He drank and smoked marijuana regularly and had to leave his
    disability cheques with a trustee out of fear that he would not be able to
    afford his living expenses due to his substance consumption.

[86]

When Det. Hopiavuori appeared as a new friend,
    the appellants life became easier. He suddenly had a network of people he
    cared for, and who appeared to care for him. Det. Hopiavuori regularly bought
    him food and alcohol. He received cash from the organization. The amounts may
    not seem like a lot of money for most, but the appellant was a man scraping by
    on his benefits. In eight months, he incurred $585 worth of debt and repaid
    $440. Over that same period, the organization paid the appellant about $910.
    During the time before the appellants stroke, Det. Hopiavuori spent $260 on
    alcohol for the two of them and whoever else was around. In total, he spent
    over $970 on alcohol and almost $1,900 on food during the operation. He spent
    around $160 on other expenses, including the walker, clothes, and a haircut for
    the appellant. The fictitious organization also spent $837.88 on hotels for the
    appellant. As Det. Polly acknowledged, the money was a lot for the appellant. Perhaps
    most importantly, he was also made to feel useful and valued by the
    organization, which began to give him tasks in this apparently criminal
    enterprise.

[87]

Up until the point of the appellants stroke in
    August 2014, the circumstances of Operation Gale, although still concerning, may
    not have been much different from many Mr. Big operations. However, from that
    point on, the police conduct raised even more significant concerns. As the
    appellant submits, Det. Hopiavuori took on a caregiving role in addition to a
    friendship role. Det. Hopiavuori visited him in the hospital; purchased things
    for him, including a walker and a TV; and picked up his medication.

[88]

This chronology reveals a significantly
    increased level of dependence and vulnerability on the part of the appellant
    after he suffered the stroke. While the evidence of Dets. Polly and Hopiavuori
    was that they were merely looking after him so that he would be able to
    continue in Operation Gale, it is clear that this also fostered a relationship
    of increased dependency on the part of the appellant. The appellant was even
    more vulnerable than he had been before the stroke. They accommodated his
    physical constraints by limiting his role to that of lookout. He testified that
    when he expressed some surprise at this, he was told that he was valued because
    he was smart. They also took him to a hotel and paid so he could bathe which he
    was unable to do, at least initially, at home.

[89]

It was during this period that the police
    increased the pressure on him. They pulled the appellant and Det. Hopiavuori
    over and seized what the police convinced the appellant were thousands of
    dollars worth of cigarettes. Under this pressure, Det. Neufeld purportedly came
    up with a plan that would relieve that pressure and provide the appellants
    friend, Det. Lemaich, with a way to support his family.

[90]

Then, in the final days before the confession, the
    appellants Red Cross worker did not show. The police staged an elaborate
    operation, where it appeared that his apartment was swarmed by police. When Det.
    Hopiavuori and the appellant saw the police cruisers, the appellant wanted to
    speak to the police and clear things up. The appellant also wanted to retrieve
    his medication. Det. Hopiavuori refused and convinced the appellant to leave. They
    ended up back at a hotel. During the time at the hotel, Det. Hopiavuori
    increasingly pressured the appellant to confess. Most concerning of all, the
    appellant did not have his medication for the entire time at the hotel. By the
    time he confessed, he was a mess, mentally.

[91]

In summary, the appellant was extremely
    vulnerable and came to depend on Det. Hopiavuori: he had very little money and
    lacked a social network; he had documented mental health issues, including
    addition to alcohol; by the time of his confession, he had significant physical
    health issues; and he was off his medication for three days in the lead-up to
    his confession. The appellants vulnerabilities were exploited, consciously or
    not, by the operation: the police officers provided him with money; they made
    him feel valued; they provided him food and alcohol; they were invaluable to
    the appellant while he was recovering from his stroke; and they actively
    prevented the appellant from obtaining medication right before the confession.

[92]

These are serious issues and it is by no means
    obvious that the confession would have survived the scrutiny of a
voir dire
.
    As the appellant states, it is highly arguable that the police conduct in this
    case would shock the conscience of the community. I stress that these
    statements were presumptively inadmissible, and the onus was on the Crown to
    show otherwise.

[93]

A search of the post-
Hart
case law
    indicates that very few Mr. Big confessions have been excluded because the
    police conduct amounted to an abuse of process, despite Moldaver J.s comments
    that the doctrine must be reinvigorated to guard against abusive police
    conduct. It appears that the doctrine of abuse of process might still be
    somewhat of a paper tiger, especially in cases like the case at bar, where the
    accused was not threatened with overt or implied violence:
Hart
, at
    para. 79. This is despite Moldaver J.s comments, at paras. 78, 114, that
    police conduct must be carefully scrutinized in light of the obvious risk that
    the police will go too far.

[94]

The promise of a reinvigorated abuse of
    process doctrine must not be an empty one. The facts of this case demonstrate
    that there is an ever-present risk that the police might go too far. It is the
    courts role to provide for an effective mechanism for monitoring the conduct
    of the undercover officers who engage in these operations and to protect
    against abusive state conduct:
Hart
, at paras. 79-80. That did not
    happen in this case. These comments should not be taken to suggest that a
    particular result must be reached in a new trial of this matter. Instead, they
    are intended to signal to the courts more broadly that they must seriously
    consider the applicability of the abuse of process doctrine in cases of this
    nature.

(3)

The jury charge

[95]

Because of my conclusion on the admissibility of
    the confession, it is not necessary to decide whether the jury charge was adequate
    because a jury charge presupposes that the confession was properly admitted.
    Moreover, had a
voir dire
been conducted, additional evidence may have
    been admitted, thus affecting the necessary content of the charge. It may be
    useful, however, to restate a few applicable principles.

[96]

First, and most importantly, even if a
    confession obtained through a Mr. Big operation is determined to reach the
    admissibility threshold at a proper
voir dire
and is admitted into
    evidence, the issues about reliability and potential for prejudice identified
    in
Hart
are not eliminated. These evidentiary issues must still be
    mitigated at the jury instruction stage of the trial:
Mack
, para. 44.

[97]

The appellant argues that the jury charge fell well
    short of the guidelines in
Mack
. Specifically, the jury charge did not
    address specific reliability concerns associated with Mr. Big confessions and
    it did not review the circumstances relevant to the confession. As a result, it
    did not properly caution the jury about the reliability concerns in the
    confession.

[98]

The respondent argues that the jury charge was
    adequate. The charge as a whole accorded with the requirements of
Mack
.
    He argues that a more detailed charge about the circumstances of the confession
    would not have assisted the defence, because it would have included a list of
    evidence that confirmed the reliability of the confession.

[99]

It is well established that an accused is
    entitled to a properly, but not perfectly, instructed jury:
Mack
, at
    para. 48. An adequate jury charge must caution the jury about the two
    evidentiary concerns raised by Mr. Big confessions: the risk that the
    confession may be unreliable and the fact that any confession is accompanied by
    bad character evidence. These concerns do not disappear after the confession is
    admitted:
Mack
, at para. 44. The details of this evidence will,
    obviously, inform the specific content of the instructions to be given to the
    jury.

[100]

There is no magic formula for a jury instruction in Mr. Big cases. However,
    with respect to the reliability concerns, the trial judge should highlight that
    the reliability of the confession is a question for the jury:
Mack
, at
    para. 52. The trial judge should alert the jury to several factors relevant in
    assessing the  reliability of the confession, including 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. The trial judge should also discuss any markers of reliability
    that the confession contains.

[101]

Because there was no
voir dire
held in this case, it is not
    useful to parse the trial judges charge beyond setting out these general
    principles. Depending on the
voir dire
, there may be more or less
    evidence adduced at trial in relation to the reliability of any statements or
    confession admitted.

E.

The sentence appeal

[102]

While the notice of appeal included a sentence appeal which has not
    been formally abandoned, the issue was not argued before us. In any event, it
    is not necessary to deal with the appeal given the conclusions I have reached
    in the conviction appeal.

F.

Disposition

[103]

For these reasons I would allow the conviction
    appeal and order a new trial.

Released: January 25, 2021

M.T.

A. Harvison Young J.A.

I agree
M. Tulloch J.A.

I agree
David M. Paciocco J.A.