



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.



