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Evidence - 'Mr. Big' Confessions. R. v. Lee
In R. v. Lee (Ont CA, 2024) the Ontario Court of Appeal dismissed a conviction appeal, here in a Mr. Big context (admissions regarding prior crimes made to undercover police who the defendant thought were higher-ranking criminals):[31] The appellant advances two grounds of appeal. His first ground is that the trial judge erred by ruling that his Mr. Big statements were admissible under the legal test established by the Supreme Court of Canada in R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544. Specifically, the appellant argues that the Crown failed to meet its onus of establishing that the appellant’s statements were sufficiently reliable to overcome the risk of moral and reasoning prejudice.
[32] This first ground of appeal has two branches, since the appellant argues that the evidence should have been excluded under both prongs of the two-part Hart test.
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(1) The admissibility of the appellant’s “Mr. Big” confessions
(1) The Hart test
[34] The admissibility of statements made to undercover officers by the targets of Mr. Big investigations is governed by the two-prong test established by the majority judgment in Hart. The Hart test applies to all statements made by the accused to the undercover officers participating in the Mr. Big investigation which the Crown seeks to adduce as part of its case: R. v. Amin, 2024 ONCA 237, at para. 40.
[35] The first prong of the Hart test requires the Crown to displace the presumption of inadmissibility by establishing, on a balance of probabilities, that the probative value of the inculpatory statement outweighs its prejudicial effect. As Moldaver J. explained in his majority reasons in Hart, at para. 85:In this context, the confession’s probative value turns on an assessment of its reliability. Its prejudicial effect flows from the bad character evidence that must be admitted in order to put the operation and the confession in context. [36] Under the second prong of the Hart test, the defence bears the burden of establishing on a balance of probabilities that the police conduct while carrying out the Mr. Big operation amounted to an abuse of process. As Moldaver J. stated at para. 11:Trial judges must also carefully scrutinize the conduct of the police to determine if an abuse of process has occurred. No matter how reliable the confession, the courts cannot condone state conduct — such as physical violence — that coerces the target of a Mr. Big operation into confessing. Where an accused establishes that an abuse of process has occurred, the court can fashion an appropriate remedy, including the exclusion of the confession or a stay of proceedings. [37] Moldaver J. explained further, at paras. 115-18, that a main focus of the abuse of process analysis will be on whether the police made coercive inducements and threats, but he also did not “foreclose the possibility that Mr. Big operations can become abusive in other ways”: Hart, at para. 118.
[38] Importantly, both branches of the Hart test require trial judges to make discretionary judgment calls. Discussing the first prong of the test, Moldaver J. explained at paras. 109-10 of his majority reasons:Determining when the probative value of a Mr. Big confession surpasses its potential for prejudice will never be an exact science. As Justice Binnie observed in Handy [R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908], probative value and prejudicial effect are two variables which “do not operate on the same plane” (para. 148). Probative value is concerned with “proof of an issue”, while prejudicial effect is concerned with “the fairness of the trial” (ibid.). To be sure, there will be easy cases at the margins. But more common will be the difficult cases that fall in between. In such cases, trial judges will have to lean on their judicial experience to decide whether the value of a confession exceeds its cost.
Despite the inexactness of the exercise, it is one for which our trial judges are well prepared. Trial judges routinely weigh the probative value and prejudicial effect of evidence. And as mentioned, they are already asked to examine the reliability of evidence in a number of different contexts, as well as the prejudicial effect of bad character evidence. They are well positioned to do the same here. Because trial judges, after assessing the evidence before them, are in the best position to weigh the probative value and prejudicial effect of the evidence, their decision to admit or exclude a Mr. Big confession will be afforded deference on appeal.
[39] With respect to the second prong, abuse of process, the question of whether the constellation of circumstances in a particular Mr. Big investigation rises to the level of an abuse requires a fact-driven and case-specific balancing of competing interests that also commands appellate deference: see e.g., R. v. Keene, 2020 ONCA 635, 394 C.C.C. (3d) 160, at para. 46; R. v. Baranec, 2020 BCCA 156, 387 C.C.C. (3d) 502, at paras. 172-73, leave to appeal refused, [2020] S.C.C.A. No 287; Amin, at para. 33. . R. v. Lee
In R. v. Lee (Ont CA, 2024) the Ontario Court of Appeal dismissed a conviction appeal, here in a Mr Big context (admissions regarding prior crimes made to undercover police who the defendant thought were higher-ranking criminals).
These quotes illustrate a sample of a Mr.Big operation:(2) The Mr. Big operation
[12] The police came to suspect that the appellant might have been the person who arranged the parking lot meeting with Mr. Hoang. This was in part because the appellant had previously used the name “ArEx” on social media and in a rap video, and because Mr. Hoang had a second number stored on his phone under the name “ArEx” which the police determined was in regular contact with the appellant’s girlfriend and siblings.
[13] The police commenced an undercover “Mr. Big” operation directed at the appellant that lasted for nearly six months. Over a series of meetings, undercover officers led the appellant to believe that they were part of a powerful and successful criminal organization. The trial judge referred to the two officers who served as the appellant’s main contacts by the pseudonyms “Mr. Gold” and “Mr. Green”, and I will do the same. Mr. Gold played the role of the head of the fictitious organization, while Mr. Green acted the part of one of his lieutenants.
[14] The appellant and Mr. Gold are both of Korean heritage, and the appellant began referring to Mr. Gold as “hyung”, which is a Korean term of respect for an older male. Mr. Green, who was the appellant’s closest contact in the fictitious criminal organization, took on what the trial judge characterized as “an almost father-like role”.
[15] As the Mr. Big operation continued, the officers paid the appellant to perform tasks that he was told were connected to the organization’s criminal activities, and led him to believe that if he kept working with the organization, he would be able to earn significantly more. At one point, the undercover officers involved the appellant in what they claimed was a scheme to shield one of the organization’s members from criminal liability for a serious assault.
[16] The Mr. Big investigation culminated on May 20, 2015 when Mr. Green took the appellant to a meeting in Niagara Falls with Mr. Gold and some members of a (fictitious) Russian criminal organization, ostensibly to finalize a lucrative deal to supply the Russians with fake credit cards. The appellant was told that he would receive a share of the profits if the deal was consummated.
[17] As Mr. Green and the appellant were driving back to Toronto together after the meeting, the police conducted a staged traffic stop, during which they told the appellant that there was an entry on CPIC advising that the York Regional Police wanted to question him as a suspect in some Richmond Hill shootings.
[18] Mr. Green then told the appellant that his being a suspect in a murder investigation could jeopardize the deal with the Russians, but that if the appellant was involved in the shootings the organization could protect him by arranging for a terminally ill person to falsely assume responsibility. However, Mr. Green added that for this cover-up scheme to work, the appellant would need to explain in detail exactly what had happened. He encouraged the appellant to be open and honest about any role he might have played, emphasizing that he did not care if the appellant was implicated in the shootings, but only wanted to arrange to have any such involvement covered up.
[19] The appellant and Mr. Green continued to discuss this for the rest of the day. For the first few hours, the appellant denied any knowledge of or involvement in the shootings, and expressed puzzlement about why the police would suspect him. However, he then changed his story and admitted to Mr. Green that he had been present during the shootings. He explained that he had “set up” Mr. Hoang by luring him to the scene at the request of a friend named “P.”, who had a gang‑related “beef” with the deceased regarding a previous shooting in Toronto. The appellant added that he had helped P. because he expected P. to reward him by supplying him with cocaine.
[20] The appellant explained further that they had driven to the meeting place in Richmond Hill with a group of eight to ten other men, travelling in three vehicles. In this first version, the appellant told Mr. Green that when they arrived at the meeting place he had stayed in the car, and that “P.” and another Asian male named J.T. had been the shooters.
[21] The appellant initially told Mr. Green that he had known from the outset that P. meant to kill Mr. Hoang, but he later equivocated about this, telling Mr. Green:I knew it, but like I didn’t, like you know, when it happens is that’s when - like, you know, reality hits.
Mr. Green replied, “You knew they were gonna do it though? The appellant responded, “I knew they – they, well I – I kinda did”. [22] Mr. Green told the appellant that it was unsafe for him to go home while the police were looking for him, and arranged to put him up in a hotel overnight. When they met again the next morning, Mr. Green pressed the appellant to explain how he been able to describe the shootings if he had waited in the car. The appellant then changed this part of his account, and told Mr. Green that he had actually left the car and witnessed the shootings. However, he continued to maintain that he had not been armed with a gun and had not been one of the shooters.
[23] Mr. Green then told the appellant: “So then I don’t need a guy to cover for you from what you’re telling me”, to which the appellant responded: “Yeah, well, what do I have to do then?”. Mr. Green reiterated that the organization had a terminally ill man who would come forward early the next week, and that the organization would have to “get [the appellant] outta here before Monday or Tuesday”. He then pressed the appellant to give the details about his new story of having seen the shooting after getting out of the car, stating:I need to know if you did it or not. If you … merked him, that’s fine, I don’t care. I honestly don’t care, but, I wanna make sure that everything’s covered up, honestly. I’m not fucking lying here. [24] After some further conversation, the appellant said: “Okay. I’ll tell you. It was me and P”. He proceeded to explain that P had given him a gun and they had gone to the alley together. When Mr. Hoang approached them, P started shooting and then followed Mr. Hoang as he ran back towards his car. The appellant stayed where he was and fired only one shot, which missed, after which his gun jammed. P then ran back to where the appellant was standing, and the appellant gave P his gun. P cleared the jam before running back to Mr. Hoang’s car and firing more shots.
[25] The appellant also explained how he and P had left the area afterwards, and told Mr. Green that he had later helped the others throw the dismantled guns onto the ice near Port Credit.
[26] Mr. Green and the appellant spent the rest of the day preparing for the organization to fly the appellant to Calgary the next morning. They also planned for Mr. Green to provide the appellant with an alibi for the night of the shootings. That afternoon, they drove to Port Credit and the appellant unsuccessfully tried to find the place where they had thrown away the disassembled guns. Mr. Green eventually took the appellant to a hotel near the airport and booked him a room for the night.
[27] The next morning, Mr. Green picked up the appellant and they had a further discussion about the shootings, during which the appellant told Mr. Green that P’s real name was Kevin Pham. Later that morning, the police moved in and arrested the appellant.
[28] The appellant’s inculpatory statements to Mr. Green were central to the Crown’s case against him at trial. After a lengthy voir dire, the trial judge ruled that the statements were admissible. This ruling is the subject of the appellant’s main ground of appeal.
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