



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Johnston,









2016 BCCA 3




Date: 20160105

Docket:  CA39526

Between:

Regina

Respondent

And

Gary Donald
Johnston

Appellant

Restriction on Publication:
 A publication ban has been imposed under s. 486.5 of the
Criminal Code
restricting the publication, broadcasting or transmission in any way of evidence
that could identify undercover police officers.
This publication ban applies indefinitely unless
otherwise ordered.




Before:



The Honourable Mr. Justice Chiasson

The Honourable Mr. Justice Frankel

The Honourable Madam Justice D. Smith




On appeal from:  An
order of the Supreme Court of British Columbia, dated
April 15, 2011 (
R. v. Johnston
, New Westminster Docket No. X073860-2).




Counsel for the Appellant:



B.B. Olthuis

G.J. Allen





Counsel for the Respondent:



M.K. Brown





Place and Date of Hearing:



Vancouver, British
  Columbia

October 30, 2015





Place and Date of Judgment:



Vancouver, British
  Columbia

October 30, 2015





Place and Date of Reasons:



Vancouver, British
  Columbia

January 5, 2016















Written Reasons by:





The Honourable Mr. Justice Frankel





Concurred in by:





The Honourable Mr. Justice Chiasson

The Honourable Madam Justice D. Smith




Summary:

Appeal by J. from his
conviction by a trial judge for second degree murder.  The principal evidence
implicating J. came from admissions he made in a Mr. Big interview and a
videotaped statement his brother made to the police.  The videotaped statement
was admitted under an exception to the hearsay rule.  The trial took place
before the Supreme Court of Canada decision in R. v. Hart established a new
common-law rule with respect to the admissibility of Mr. Big statements. 
In a pre-Hart judgment this Court dismissed J.s appeal.  In that appeal, J.
did not challenge the admissibility of the Mr. Big interview.  Post-Hart,
the Supreme Court of Canada remanded the case for reconsideration.  On the
second appeal, J. challenged the admissibility of the Mr. Big interview. 
He contended that:  (a) the Mr. Big operation was an abuse of process
because it involved simulated violence; and (b) threshold reliability of
the statements he made during the Mr. Big interview had not been
established.  Held:  Appeal dismissed.  In the circumstances, the use of
simulated violence directed at third parties was not an unacceptable
investigative technique.  The threshold-reliability requirement was met having
regard, in particular, to the fact J. knew details of the murder that it was
likely only the killer would know.

Reasons for Judgment of the Honourable
Mr. Justice Frankel:

Introduction

[1]

Gary Donald Johnston was convicted by Mr. Justice Crawford of the
Supreme Court of British Columbia of the second degree murder of Victor Fraser. 
Mr. Fraser died of stab wounds to his neck.

[2]

The Crowns case included statements made by Mr. Johnston to
undercover police officers engaged in what is known as a Mr. Big
operation.  That operation involved 60 scenarios, i.e., occasions on which
undercover officers and Mr. Johnston interacted.  In the last scenariocommonly
referred to as the Mr. Big interviewMr. Johnston admitted killing Mr. Fraser. 
At the trial, Mr. Johnston did not object to the admissibility of any of
the statements he made during the Mr. Big operation.

[3]

The Crown also tendered as evidence a videotaped statement made under
oath by Mr. Johnstons brother, Michael Johnston.  In that statement
Michael Johnston said Mr. Johnston admitted to him that he killed Mr. Fraser. 
At trial, Michael Johnston testified he could not remember giving the statement
to the police.  Following a
voir dire
, the trial judge admitted Michael
Johnstons videotaped statement under the exception to the hearsay rule
discussed in
R. v. B.(K.G.)
, [1993] 1 S.C.R. 740.  In finding that the
threshold-reliability requirement for the admission of hearsay had been met,
the judge relied on statements Mr. Johnston made during the Mr. Big
interview.

[4]

Mr. Johnstons conviction appeal was dismissed by this Court on
April 11, 2014:  2014 BCCA 144, 354 B.C.A.C. 68.  On that appeal, his main
ground was the admissibility of Michael Johnstons videotaped statement.  He
did not contest the admissibility of his Mr. Big statements, only their
ultimate reliability.

[5]

On July 31, 2014, the Supreme Court of Canada released its judgment in
R. v.
Hart
, 2014 SCC 52, [2014] 2 S.C.R. 544, in which it articulated a new
common-law rule governing the admissibility of statements made during a Mr. Big
operation.  Following the release of
Hart
, Mr. Johnston filed an
application in the Supreme Court of Canada for an extension of time to file and
serve an application for leave to appeal from this Courts order dismissing his
appeal.  On February 26, 2015, the Supreme Court of Canada, acting pursuant to
s. 43(1.1) of the
Supreme Court Act
, R.S.C. 1985, c. S-26,
remanded Mr. Johnstons case to this Court for disposition in accordance
with
Hart
:  [2014] S.C.C.A. No. 478.

[6]

Mr. Johnstons appeal came back before this Court on October 30,
2015.  At that time he contended that his Mr. Big interview should not have
been admitted because the manner in which the Mr. Big operation was
conducted constituted an abuse of process.  He further submitted that the statements
he made during the Mr. Big interview did not meet the
threshold-reliability requirement set out in
Hart
.  He did not advance
an alternative argument challenging the ultimate reliability of his statements. 
Last, Mr. Johnston submitted that as the trial judge relied on his Mr. Big
statements in finding Michael Johnstons videotaped statement admissible, if
the Mr. Big statements were found to be inadmissible, then so too should Michael
Johnstons statement.

[7]

At the conclusion of Mr. Johnstons submissions we dismissed this
appeal with reasons to follow.  These are my reasons for so doing.

Factual Background

[8]

Mr. Fraser was murdered on March 10, 1998, at the home of his
sister, Eugenie Fraser, in Surrey, British Columbia; he had gone there to check
a water leak while she was at work.  Between 10:00 and 10:30 that morning, Ms. Frasers
boyfriend found Mr. Frasers body on the floor inside the door on the east
side of the house, off the kitchen; Mr. Frasers truck was parked in the
driveway.  Two knives were missing from a block in the kitchen.  Mr. Fraser
had been savagely attacked and stabbed in the neck.  The stabbing had been so
forceful that a knife blade that had broken from its handle was lodged above Mr. Frasers
right collarbone.  A second broken knife blade was found under Mr. Frasers
body.  His wallet was missing.

[9]

At the time of the murder, Mr. Johnston lived in the vicinity of Ms. Frasers
house.  Ms. Fraser testified she knew Mr. Johnston and he had been
inside her house.  Shortly after the murder Mr. Johnston moved away.

[10]

There was damage to the front door of Ms. Frasers house,
indicating someone had broken in.  The house had been ransacked; video-game and
other electronic equipment had been left in a pile on the living room floor,
drawers in the upstairs master bedroom were open, and a jewellery box kept
upstairs was on the living room floor.  A telephone handset was missing from
its charging station.

[11]

Darrell Barker, who lived two houses away from Ms. Fraser,
testified that he acted as a crossing-guard at an elementary school up the hill
from where he and Ms. Fraser lived.  He worked from 8:00 to 9:00 in the
morning.  On the day of the murder he saw Ms. Fraser drive by on her way
to work.  Shortly after 9:00 a.m., as he was putting away his crossing-guard
gear, he saw a man dressed in black wearing what he described as a fishermans
hat ride by on a black bicycle.

[12]

Mr. Barker said that as he was driving down the hill a few minutes
later to return home, he noticed a black bicycle by the east side of Ms. Frasers
house.  As he was backing his vehicle into his garage he saw the cyclist he had
seen earlier going up the stairs to the front of Ms. Frasers house and
entering through the front door.  That door faces south.

[13]

A member of the Royal Canadian Mounted Police who arrived at Ms. Frasers
house at approximately 2:00 p.m. on March 10, 1998, observed bicycle tire
tracks in the grass leading from the deck at the east side of the house through
the yard to the street.  The back door of the house is on the east side and
opens onto the deck.

[14]

On the day of the murder the RCMP issued a news release stating that a
43-year old man had been found dead of apparent stab wounds in a north Whalley
home just before 11:00 a.m. this morning.  The victims name was not
mentioned.  That release also contained the following:

Police found the front door of
the house had been forced open and effects from inside had been piled near the
door.  Investigators are looking into the possibility that the victim had
interrupted a break and enter at the residence sometime between 9:00 and 10:45
am.

[15]

The following day, March 11, 1998, the RCMP issued a second news release
which contained Mr. Frasers name, the date of the murder, and the address
at which he was stabbed.  That release contained the following:

Victor FRASER had attended at the North Surrey address for
the purpose of meeting a friend at that location.  When the friend arrived he
found the victim on the floor inside the residence and subsequently called
police.

Police found the front door of
the house forced open and there were a number of items from inside the
residence piled near the door. Police investigators are working on the theory
that the victim interrupted a break and enter in progress at the residence sometime
between 9:00 and 10:45 AM.

[16]

An autopsy revealed the injuries Mr. Fraser sustained included eight
to nine stab wounds to the neck and fractured displacement of the second to the
fifth upper right ribs.

[17]

The RCMP did not disclose the following information to the public (what
is commonly referred to as holdback evidence):  (a) the location of the
body; (b) the autopsy results; (c) the broken knife blades; (d) the
missing telephone; (e) the missing wallet; and (f) the bicycle and
associated tire tracks.

[18]

The police considered both Mr. Johnston and Michael Johnston to be
persons of interest.  In August of 1998, Michael Johnston gave a videotaped
statement to the police in which he related that on the day of the murder Mr. Johnston
told him that he had broken into Ms. Frasers house and stabbed someone to
death using a kitchen knife.  The account of the murder Mr. Johnston gave
to Michael Johnston included a number of details consistent with the crime
scene, the autopsy, and other information gathered by the police.

[19]

Michael Johnston said he and Mr. Johnston went to a friends house
in Vancouver where Mr. Johnston burned the clothes he wore during the
stabbing.  Michael Johnston described the clothes as a rain jacket with a hood,
pants, socks, gloves, and a shirt, all of which were black.

[20]

On April 10, 2000, Mr. Johnston pleaded guilty to manslaughter
arising out of an incident in Saskatchewan and was sentenced to ten years
imprisonment.  In March 2009, after Mr. Johnston had been released on
parole, he became the target of a Mr. Big operation in which undercover
officers posed as members of a criminal organization with connections to both
the military and law enforcement.

[21]

The Mr. Big operation lasted five and one-half months.  During that
period Mr. Johnston received varying amounts of money totalling around $14,000
for doing tasks for the criminal organization.  Undercover officers bought Mr. Johnston
food and drinks and gave him a ticket to a rock concert.

[22]

The initial contact with Mr. Johnston took place on April 2, 2009,
in Trenton, Ontario.  At that time, Mr. Johnston was living in a suite on
the top floor of a house.  He did not appear to be employed, but may have been
receiving a disability pension.  During the Mr. Big interview, he stated
he had recently purchased a used motorcycle.

[23]

Constable I. approached Mr. Johnston on the street and asked for
his assistance in searching for the officers sister.  He told Mr. Johnston
he would pay for his assistance.  Mr. Johnston agreed and went with the
officer to a strip club, restaurant, and billiard hall among other locations. 
Constable I. told Mr. Johnston he was in the trucking business and had warehouses. 
Without prompting, Mr. Johnston said

he had spent 25 years in the
penitentiary and was presently on parole for murder, having done time for
killing a rat in Saskatchewan.  Constable I. gave Mr. Johnston $150 for
helping him.  (Scenario no. 1)

[24]

On April 9, 2009, Constable I. and Mr. Johnston continued to look
for the sister.  Constable I. gave Mr. Johnston $200.  (Scenario no. 2)

[25]

On April 10, 2009, Constable I. introduced Mr. Johnston to
Constable N. and asked him to assist Constable N. to get a storage locker and
to continue looking for his sister.  Mr. Johnston was paid $150. 
Following this Constable N. became the Mr. Big operations primary contact
with Mr. Johnston.  (Scenario no. 3)

[26]

Over the next several weeks, Mr. Johnston was involved with
Constable N. and other undercover officers in various scenarios.  Those
included continuing to look for Constable I.s sister, obtaining a storage
locker for Constable N. and being paid to manage the locker and its contents,
picking up packages, and assisting Constable N. in repossessing a vehicle from
a debtor.  Mr. Johnston also acted as Constable N.s bodyguard.  Mr. Johnston
was paid $250 per month for managing the storage locker and from $100 to $400 for
the other tasks he performed.

[27]

On May 8, 2009, Mr. Johnston hosted a barbeque at his residence
attended by Constable N., Constable I., and two other undercover officers.  He
told the officers he had purchased a barbecue for that occasion.  Mr. Johnston
offered Constable I. a leather jacket as a gift but, as it did not fit
Constable I., Mr. Johnston gave the jacket to Constable N.  Mr. Johnstons
residence appeared clean and well-kept.  (Scenario no. 14)

[28]

In early June 2009, Mr. Johnston assisted Constable N. in collecting
a $10,000 debt and received ten percent of the amount collected (i.e., $1,000)
for his services.  (Scenario no. 19)  Also in June, Mr. Johnston assisted
in picking up what purported to be explosives from an undercover officer posing
as a corrupt member of the Royal Canadian Air Force.  (Scenario nos. 20, 21)

[29]

On June 27, 2009, Mr. Johnston picked up a briefcase containing
$100,000 in cash from the storage locker and met with Constable N. and an
undercover officer posing as a client of the organization who was borrowing
that money. Mr. Johnston counted the money in front of the client.  Mr. Johnston
was paid $500.  That day Constable N. told Mr. Johnston there was a big
score coming with military involvement.  Constable N. said his father, who was
the boss of the criminal organization, would decide whether Mr. Johnston
would be allowed to participate in that big score.  (Scenario no. 27)

[30]

On July 4, 2009, Mr. Johnston participated with Constable N. and
other undercover officers in kidnapping two undercover officers posing as a
debtor and his girlfriend.  Before the kidnapping took place, Mr. Johnston
was told he could leave if he was concerned about his parole conditions, but he
agreed to participate.  Mr. Johnston drove the van used to transport the
victims.  A simulated beating of the victims took place in the back of the van. 
(Scenario no. 31)

[31]

On July 5, 2009, Constable N. took Mr. Johnston to a cabin where
the kidnap victims were purportedly being held; they were in the cabin bound
with tape.  Constable I. emerged from the cabin with blood on his face and
hands and was angry with Constable N. for bringing Mr. Johnston with him. 
Constable N. stated he was going to take care of the victims and went inside
the cabin.  As Mr. Johnston walked away from the cabin with Constable I.,
Constable N. fired three shots to make it appear the victims had been killed.  (Scenario
no. 32)  On July 7, 2009, Constable N. and Mr. Johnston went to a casino
where a security video was taken with an altered date to provide an alibi for
the incident at the cabin.  (Scenario no. 33)

[32]

Throughout the month of July, Mr. Johnston continued to perform
tasks for the organization for which he was paid.

[33]

On August 4, 2009, Constable N. and Mr. Johnston had two meetings
with undercover officers, each of whom invested $50,000 in the big score.  Mr. Johnston
helped deliver that money to an undercover officer posing as a corrupt army
officer.  Mr. Johnston was paid $800 that day, some of which was for past
tasks.  (Scenario no. 44)

[34]

On August 6, 2009, Mr. Johnston assisted another undercover
officer, Constable C., in picking up a duffel bag purported to contain guns from
a storage locker in Trenton and taking it to Constable N. in Montreal.  On the drive
to Montreal Constable C. told Mr. Johnston about an upcoming big job
connected with an army base for which Constable C. would be paid $20,000.  Later,
Mr. Johnston assisted Constable N. in delivering the guns to an undercover
officer who paid $10,000 for them.  Mr. Johnston was paid $1,500 for his
participation.  (Scenario no. 45)

[35]

Throughout August and into September, Mr. Johnston met and
socialized with undercover officers a number of times and performed some tasks
for the organization for which he was paid.

[36]

On September 16, 2009, Mr. Johnston and Constable C. drove to
Montreal in connection with planning to kill a witness.  Mr. Johnston told
Constable C. that he had brought clothes and shoes to throw away after the
killing, that he was up for doing anything, and that he was looking forward to being
involved in the killing.  Mr. Johnston said he wanted to kill his ex-wife
and a person who had ratted on him.  With respect to the upcoming killing, Mr. Johnston
told Constable C. he did not care about the money, he just liked the action and
excitement.  (Scenario no. 58)

[37]

On September 17, 2009, in Montreal, Constable I. showed Mr. Johnston
a motorcycle which Mr. Johnston took for a ride.  Constable I. said he had
repossessed the motorcycle and told Mr. Johnston the motorcycle would be
his.  It is not clear whether the motorcycle was presented as a gift, a reward
for participating in the killing, or something Mr. Johnston could pay for
over time.  Constable I. gave Constable C. $5,000 and told him it was half the
money Constable C. was to be paid for the hit (i.e., killing the witness). 
Constable I. said Mr. Johnston would be paid when given the go ahead for
the hit.  Mr. Johnston then accompanied Constable N., Constable C., and
another undercover officer, as they drove around Montreal looking at potential
locations for the hit.  (Scenario no. 59)

[38]

The final scenario (no. 60) took place on September 18, 2009, in
Montreal.  After Mr. Johnston had gone with several undercover officers to
look at another possible location for the hit, he was taken to a hotel to meet
with Sergeant D., who posed as the boss of the criminal organization.  Sergeant
D. conducted the Mr. Big interview, which was secretly videotaped.  Having
viewed the videotape, I agree with the following description of Mr. Johnstons
demeanor by the trial judge:

[107]     Gary Johnston is calm,
he is composed, he is relaxed, he is comfortable and at times reflective and
contemplative.  He knew and was secure in the confidence and friendship of the other
gang members.

[39]

Sergeant D. expressed concern that Mr. Johnston had been involved in
a murder that was still under investigation and that the investigation could
bring heat on the criminal organization.  Sergeant D. had press releases
about Mr. Frasers death and what he said were police documents.

[40]

Mr. Johnston disclosed to Sergeant D. that in 1998 he killed someone,
who he said was the brother of a neighbour.  He told Sergeant D. that at about
10:00 or 10:30 in the morning he rode on a bicycle to the neighbours house in
Surrey wearing a hoody with the hood pulled up over his head; he also had
gloves on.  He entered the house through the back (i.e., side) door, which was
open.

[41]

Mr. Johnston said no one was in the house when he entered.  He ransacked
the place looking for things to take and left video-game and other electronic
equipment on the living room floor.  When he heard the victims truck arrive he
sat at the kitchen table and waited for the victim to come inside.

[42]

Mr. Johnston said he stabbed the victim in the neck about 30 times,
using four knives he took from a block in the kitchen.  He said he kicked the
victim in the ribs several times as he lay on the floor gasping for breath.  At
one point Mr. Johnston said two knife blades broke off in the victims neck;
at another point he said four knife blades broke off in the victims neck.  He said
he killed the victim because the victim owed him $1,800 and did not want to pay
it back.  The victims body was on the kitchen floor.

[43]

Mr. Johnston told Sergeant D. he left the house through the back
(i.e., side) door and rode away on his bicycle.  He took the four knife handles
and buried them.  He did not take a telephone.  With the help of his brother he
burned everything he was wearing that day at a friends house.  He told his
brother he got into a beef with someone who died.

Analysis

Abuse
of Process

[44]

Mr. Johnston contends that the Mr. Big operation was an abuse
of process because of the scenarios where it was made to appear that two
persons were kidnapped, beaten, and then killed (Scenario nos. 31 and 32), and
because the operation was designed to prey on the poverty and social isolation
he experienced upon release from prison.  He submits that the simulated
violence used in this operation is unacceptable to Canadians and that the
statements he made during the Mr. Big interview should be excluded.

[45]

In discussing the application of
the doctrine of abuse of process to Mr. Big operations in
Hart
, Mr. Justice
Moldaver said:

[115]
It is of course impossible to set out a precise
formula for determining when a Mr. Big operation will become abusive. 
These operations are too varied for a bright-line rule to apply.  But there is
one guideline that can be suggested.  Mr. Big operations are designed to
induce confessions.  The mere presence of inducements is not problematic ([
R.
v.

Oickle
, 2000 SCC 38 at para. 57, [2000] 2 S.C.R. 3]).  But
police conduct, including inducements and threats, becomes problematic in this
context when it approximates coercion.  In conducting these operations, the
police cannot be permitted to overcome the will of the accused and coerce a
confession.  This would almost certainly amount to an abuse of process.

[116]
Physical violence or threats of violence provide
examples of coercive police tactics.  A confession derived from physical
violence or threats of violence against an accused will not be admissible  no
matter how reliable  because this, quite simply, is something the community
will not tolerate (see, e.g.,
R. v. Singh
, 2013 ONCA 750, 118 O.R. (3d)
253).

[117]
Violence and threats of violence are two forms of
unacceptable coercion.  But Mr. Big operations can become coercive in
other ways as well.  Operations that prey on an accuseds vulnerabilities 
like mental health problems, substance addictions, or youthfulness  are also
highly problematic (see [
R. v. Mack
, [1988] 2 S.C.R. 903] at p. 963). 
Taking advantage of these vulnerabilities threatens trial fairness and the
integrity of the justice system.  As this Court has said on many occasions,
misconduct that offends the community's sense of fair play and decency will
amount to an abuse of process and warrant the exclusion of the statement.

[118]
While coercion is an important factor to consider, I
do not foreclose the possibility that Mr. Big operations can become
abusive in other ways.  The factors that I have outlined, while not identical,
are similar to those outlined in
Mack
, with which trial judges are
well-familiar (p. 966).  At the end of the day, there is only so much guidance
that can be provided.  Our trial judges have long been entrusted with the task
of identifying abuses of process and I have no reason to doubt their ability to
do the same in this context.

[46]

In the present case, the officer who directed the undercover operation
testified that in a Mr. Big operation, each scenario (with the possible
exception of the initial contact) is designed based on how the person under
investigation responded to the previous scenario.  With respect to the staged
killing of the kidnap victims, the officer testified:

[T]he objectives at the start
were to  to show Mr. Johnston that Constable [N.s] organization were [
sic
]
capable of violence, and to conduct a scenario which would expose a crime
somewhat similar to the crime being investigated.

[47]

Mr. Johnston relies on the recent judgment of the Court of Appeal
of Quebec in
R. c. Laflamme
, 2015 QCCA 1517, in which a Mr. Big
operation was found to constitute an abuse of process, resulting in the setting
aside of a conviction for first degree murder and the entry of a stay of
proceedings.  He submits
Laflamme
stands for the proposition that it is
unacceptable for the police conducting a Mr. Big operation to use
scenarios involving violence or threats of violence.  I do not agree.  As I
will explain, the Mr. Big interview in
Laflamme
was conducted in a
significantly different manner than the interview involving Mr. Johnston.

[48]

In 2007, a Mr. Big operation was directed at Mr. Laflamme, who
was suspected of killing his wife in 1976.  Undercover officers posing as
members of a criminal organization engaged Mr. Laflamme in 40 scenarios
over the course of four months, during which time he was paid some $12,000.  Mr. Laflammes
primary contact with the organization was an officer known as Vince, with
whom he developed a strong friendship.  The 41st scenario was the Mr. Big
interview, during which Mr. Laflamme admitting strangling his wife to
death.

[49]

In the first scenario involving violence, Mr. Laflamme accompanied
Vince to visit a bad debtor.  While Mr. Laflamme waited outside a motel
room, Vince went inside and simulated beating up the debtor.  In the next
scenario involving violence, Vince, in Mr. Laflammes presence, grabbed an
undercover officer posing as a corrupt bank employee by the throat and threatened
her with a pistol.

[50]

As is typical, the Mr. Big interview was conducted for the purpose
of determining whether Mr. Laflamme would be accepted into the criminal
organization.  During that interview the undercover officer posing as the crime
boss implied that serious harm would befall both Mr. Laflamme and Vince if
the interview did not go well.

[51]

Scenarios involving violence are a common feature of a Mr. Big
operation directed at a person suspected of having committed murder.  Such
scenarios are used, as they were in the case at bar, to give the impression that
the fictitious criminal organization tolerates and is prepared to use violence. 
This is done to create an atmosphere in which the person under investigation
will not be reluctant to discuss his or her past involvement in similar violent
acts:  see
R. v. West
, 2015 BCCA 379 at para. 99.

[52]

In
Laflamme
, it was not the scenarios involving violence directed
at persons outside the criminal organization that took the investigation over
the line.  Rather, what the Court found unacceptable was the directing of
threats at Mr. Laflamme and Vince.  Those threats were unacceptable
because they amounted to coercion for the purpose of extracting a confession:  paras. 77-87.

[53]

That
Laflamme
does not stand for the proposition it is
unacceptable for the police to use scenarios involving violence or threats of
violence is reflected in
R. c. Perreault
, 2015 QCCA 694, 19
C.R. (7th) 393 (
Perreault No. 2
), another recent judgment of the Court
of Appeal of Quebec.  That judgment was the second by the Court of Appeal addressing
an appeal by Mr. Perreault from his conviction for first degree murder. 
The first judgment was rendered prior to the Supreme Court of Canadas judgment
in
Hart
:
R. c. Perreault
, 2013 QCCA 834 (
Perreault No. 1
). 
Following the release of
Hart
, Mr. Perreault filed an application
in the Supreme Court of Canada for an extension of time to file and serve an
application of leave to appeal from the order dismissing his appeal.  That
Court, acting pursuant to s. 43(1.1) of the
Supreme Court Act
,
remanded Mr. Perreaults case to the Court of Appeal for disposition in
accordance with
Hart
.

[54]

The Mr. Big operation in
Perreault
involved a fictitious criminal
organization engaged in various illegal activities including the extortion of
an escort agency.  There were 41 scenarios, the last being the Mr. Big
interview.  In one scenario the undercover officer who befriended Mr. Perreault
simulated beating up an escort.  Also, the officer who befriended Mr. Perreault
told him that he had approved the murder of a woman:
Perreault No. 1
at paras. 5-8;
Perreault No. 2
, paras. 14-16.

[55]

In rejecting Mr. Perreaults argument that the Mr. Big
operation constituted an abuse of process, the Court, in
Perreault No. 2
,
noted no violence or threats of violence had been directed at Mr. Perreault. 
Having regard to all the circumstances, it held that the admissions Mr. Perreault
made during the Mr. Big interview were not the product of coercive police
tactics:  paras. 87-89.

[56]

Also instructive is the recent judgment of the Court of Appeal for
Saskatchewan in
R. v. Allgood
, 2015 SKCA 88, 327 C.C.C. (3d) 196.  Mr. Allgood
was suspected of having shot and killed the mother of his child and attempting
to kill her partner.  At the time the Mr. Big operation began, Mr. Allgood
was unemployed and known to frequent a pawn shop.  There were two scenarios
involving violence.  In the first, Mr. Allgood participated in the kidnapping
of a person who owed the organization a large sum of money and witnessed that
person being assaulted.  Shortly afterwards, it was made to appear that this
person had been shot and killed out of Mr. Allgoods sight.  In the second
scenario, Mr. Allgood accompanied an undercover officer who intimidated
and assaulted a woman and threatened both her and her daughter.  Over the
course of the four-month operation Mr. Allgood was involved in 43
scenarios and received $8,500.  Prior to the Mr. Big interview he was told
that if the crime boss approved, then he would be able to participate in a big
job for which he would receive $25,000:  paras. 14-17.

[57]

Mr. Allgood was convicted of first degree murder and attempted
murder by a judge sitting without a jury prior to the Supreme Court of Canadas
judgment in
Hart
.  In appealing those convictions, he argued that a new
trial should be ordered so that the admissibility of his statements could be
tested under the
Hart
framework.  In dismissing the appeal, the Court of
Appeal applied that framework.  With respect to the contention that the Mr. Big
operation constituted an abuse of process, Mr. Justice Herauf said this:

[56]      In the context of Mr. Big operations, the
Supreme Court held that the police cannot be permitted to overcome the will of
the accused and coerce a confession.  Violence and threats of violence, preying
on the accuseds vulnerabilities (e.g. mental health problems, substance addictions,
or youthfulness) are also highly problematic.  Misconduct that offends the
communitys sense of fair play and decency will amount to an abuse of process
and warrant the exclusion of the statement.



[67]      I believe [the abuse of process] argument can be
dealt with quickly.
The Supreme Court found that operating a typical Mr. Big
operation alone does not amount to an abuse of process.  Something more is
required;
the police must be shown to have overcome the will of the accused
and coerced a confession.  There was no indication that there was violence,
threats of violence, or taking advantage of Mr. Allgoods vulnerabilities
on the part of the police.  I do not find that there was any other misconduct
that would offend the communitys sense of fair play and decency.  I would not
give effect to this ground of appeal and agree with the trial judge that the
confession was admissible evidence. [Emphasis added.]

[58]

In the case at bar, the Mr. Big operation directed at Mr. Johnston
was, in substance, no different than those described in
Allgood
and in
this Courts judgment in
West
.  In other words, it was typical.  Although
Mr. Johnston was unemployed, there is no suggestion he was destitute or
socially isolated.  The police neither preyed on his vulnerabilities, nor
directed violence or threats of violence at him or anyone close to him.

[59]

In a passage oft-quoted from
Rothman v. The Queen
, [1981] 1
S.C.R. 640 at 697, Mr. Justice Lamer (as he then was) said this:

It must also be borne in mind
that the investigation of crime and the detection of criminals is not a game to
be governed by the Marquess of
Queensbury
rules.  The authorities, in dealing with shrewd and often sophisticated
criminals, must sometimes of necessity resort to tricks or other forms of
deceit and should not through the rule be hampered in their work.  What should
be repressed vigorously is conduct on their part that shocks the community.

[60]

In my view, reasonable and well-informed members of the community would
not find the manner in which the police investigated Mr. Frasers murder
shocking and unacceptable.

[61]

I would not accede to this ground.

Threshold
Reliability of the Mr. Big Interview

[62]

Mr. Johnston submits that the statements he made during the Mr. Big
interview should be excluded because their probative value is demonstrably
outweighed by their prejudicial effect.  He says his statements during that
interview are unreliable and, therefore, of low probative value because: 
(a) he is unsophisticated and was induced by the gifts, money, and
friendships bestowed upon him by a fictitious criminal organization that
implicitly subjected him to threats of violence; (b) there is a possibility
Michael Johnston committed the murder and told him about it; (c) some of the
details of the killing he related to Sergeant D. are inconsistent with the actual
facts, i.e., the use of four knives to inflict 30 stab wounds, and that he killed
the victim because of an unpaid debt; and (d) the interview did not result
in the discovery of any new evidence.  He further submits the evidence from the
Mr. Big operational is prejudicial as it shows he participated in
simulated criminal activity and was prepared to participate in killing a
witness.

[63]

As Mr. Johnston was being tried by a judge sitting without a jury
there was little risk of either moral prejudice or reasoning prejudice:
West
at para. 78.

[64]

It is important to keep in mind
that threshold-reliability is a gatekeeper standard; it is used to determine
whether evidence can properly be considered by a jury or, in the case of a
judge-alone trial, by the judge sitting as the trier of fact:
Hart
at para. 98. 
In discussing the approach to be taking in deciding this issue,
Moldaver J. said:

[102]     Thus, th
e first
step in assessing the reliability of a Mr. Big confession is to examine
those circumstances and assess the extent to which they call into question the
reliability of the confession.  These circumstances include  but are not
strictly limited to  the length of the operation, the number of interactions
between the police and the accused, the nature of the relationship between the
undercover officers and the accused, the nature and extent of the inducements
offered, the presence of any threats, the conduct of the interrogation itself,
and the personality of the accused, including his or her age, sophistication,
and mental health.

[103]
Special note should
be taken of the mental health and age of the accused.  A confession arising
from a Mr. Big operation that comes from a young person or someone
suffering from a mental illness or disability will raise greater reliability
concerns.

[104]
In listing these
factors, I do not mean to suggest that trial judges are to consider them
mechanically and check a box when they apply.  That is not the purpose of the
exercise.  Instead, trial judges must examine all the circumstances leading to
and surrounding the making of the confession  with these factors in mind  and
assess whether and to what extent the reliability of the confession is called
into doubt.

[105]
After considering
the circumstances in which the confession was made, the court should look to
the confession itself for markers of reliability.  Trial judges should consider
the level of detail contained in the confession, whether it leads to the
discovery of additional evidence, whether it identifies any elements of the
crime that had not been made public (e.g., the murder weapon), or whether it
accurately describes mundane details of the crime the accused would not likely
have known had he not committed it (e.g., the presence or absence of particular
objects at the crime scene).
Confirmatory evidence is not a hard and fast
requirement, but where it exists, it can provide a powerful guarantee of
reliability.
The greater the concerns raised by the circumstances in which
the confession was made, the more important it will be to find markers of
reliability in the confession itself or the surrounding evidence. [Emphasis
added.]

See also:
R. v. Mack
, 2014 SCC 58 at para. 34,
[2014] 3 S.C.R. 3.

[65]

In
Hart
, the statements made by Mr. Hart implicating himself
in the drowning of his two daughters were excluded because of a combination of
factors.  At the time the Mr. Big operation began Mr. Hart was
unemployed, socially isolated, and living on welfare.  Over four months he was
paid over $15,000 and told a $25,000 pay day was coming.  The undercover
officers became his closest friends and transformed his life.  His descriptions
of how the crime was committed were inconsistent.  Further, and of considerable
importance, there was no confirmatory evidence.

[66]

In the present case, while Mr. Johnston was unemployed, he was not
socially isolated, destitute, or vulnerable.  He had a criminal past that he
freely disclosed to Constable I. the first time they met; a past that includes
taking another persons life.  He was not a person unaccustomed to violence.

[67]

Although Mr. Johnston became friendly with a number of the
undercover officers, particularly Constable N., those officers did not engrain
themselves in his life to the same extent as occurred in
Hart
.  No
violence or threats of violence were ever directed at Mr. Johnston, or at
anyone close to him.  He was calm and composed during the Mr. Big
interview.

[68]

Of particular significance is Mr. Johnstons
knowledge of aspects of the holdback evidence such as the killers use of a
bicycle, the stab wounds to Mr. Frasers neck, and the broken knife blades. 
His statement that he kicked the victim in the ribs is consistent with the injuries
Mr. Fraser sustained.  That Mr. Johnston misstated the number of
knives used and the number of stab wounds inflicted together with stating that
he killed the victim over an unpaid debt does not render his statements
unworthy of consideration by a trier of fact.  A finding of threshold
reliability is not precluded merely because there are some inaccuracies in an
accuseds description of the actual facts:
West
at para 87;
Allgood
at para. 64.  I note that the trial judge, in finding ultimate reliability,
referred to Mr. Johnston having overstated the number of knives as well as
the number of stab wounds as exaggerations:  paras. 146, 149.

[69]

Other markers of threshold reliability (i.e., potentially confirmatory
evidence) are:

(a)      Mr. Johnstons description
of how he was dressed and his statement as to the time at which he rode a bicycle
to Ms. Frasers house (which is generally consistent with Mr. Barkers
testimony);

(b)      his knowledge that Mr. Fraser
arrived in a truck;

(c)      his knowledge that the knives
came from a block in the kitchen; and

(d)      his
knowledge that video-game and other electrical equipment had been left on the
living room floor.

[70]

As is readily apparent, Mr. Johnston knew details of Mr. Frasers
murder that it was likely only the killer would know.  This knowledge provides
a powerful guarantee of the reliability of his statements during the Mr. Big
interview.  At the threshold-reliability stage, that guarantee is not
diminished by the possibility that Mr. Johnston could have learned those
details from Michael Johnston.

[71]

In my view, the threshold-reliability requirement for Mr. Big
statements set out in
Hart
was satisfied.

[72]

I would not accede to this ground.

Admissibility
of Michael Johnstons Videotaped Statement

[73]

Mr. Johnstons objection to the admissibility of Michael Johnstons
videotaped statement is tied directly to his objection to the admissibility of
the Mr. Big interview.  He accepts that if the Mr. Big interview is
admissible, then his objection to the videotaped statement must fail.

[74]

As I have found the Mr. Big interview admissible, I would not
accede to this ground.

Disposition

[75]

As noted, these are my reasons for dismissing the appeal.

The Honourable Mr. Justice Frankel

I AGREE:

The
Honourable
Mr.
Justice Chiasson

I AGREE:

The Honourable
Madam Justice D. Smith


