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Evidence - 'Mr. Big' Confessions. R. v. MacDonald
In R. v. MacDonald (Ont CA, 2026) the Ontario Court of Appeal dismissed a 'Mr.Big' criminal appeal, here brought against convictions for "first degree murder, conspiracy to commit murder, and arson".
Here the court considers whether the Mr.Big scheme (Mr Big cases typically attract a confession analysis) included any abuse of process substantial enough to undermine the case:[48] The appellant’s submissions on appeal operate in a highly discretionary domain. In R. v. Lee, 2024 ONCA 411, 438 C.C.C. (3d) 119, Dawe J.A. said, at para. 39: “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 also R. v. Keene, 2020 ONCA 635, 394 C.C.C. (3d) 160, at para. 46, citing R. v. Baranec, 2020 BCCA 156, 387 C.C.C. (3d) 5092, at paras. 172-173, leave to appeal refused, [2020] S.C.C.A. No. 287.
[49] Since Hart was decided in 2014, there have been numerous decisions of this court that address the application of the general principles respecting the admissibility of confessions derived from Mr. Big operations: see e.g., Keene; R. v. Amin, 2024 ONCA 237, 171 O.R. (3d) 561; R. v. Quinton, 2021 ONCA 44, 399 C.C.C. (3d) 514; R. v. Zvolensky, 2017 ONCA 273, 135 O.R. (3d) 401, leave to appeal refused, [2017] S.C.C.A. No. 403; R. v. Kelly, 2017 ONCA 621, 387 C.R.R. (2d) 93, leave to appeal refused, [2017] S.C.C.A. No. 474.
[50] Being presumptively inadmissible, the general onus is on the Crown to satisfy the motion judge that the balancing of probative value and prejudicial effect favour admission. However, on the abuse of process side of the equation, the onus is on the accused person to establish on a balance of probabilities that state actors acted in a manner that society finds unacceptable, and which threatens the integrity of the justice system: Hart, at para. 113. As Dawe J.A. observed in Lee, at para. 37, a main focus of this part of the Hart analysis is whether the police overcame the will of the accused and coerced a confession. According to Moldaver J. in Hart, at para. 115: “This would almost certainly amount to an abuse of process.” However, he also said, at para. 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 Supreme Court entrusted trial judges with the task of identifying abuses of process in this broader context.
[51] As noted above, the appellant submits that the motion judge was singularly focused on whether the actions of Rob and Uncle Dan were impermissibly coercive and that he did not sufficiently consider whether the operation was abusive in “other ways”, as alluded to in Hart.
[52] I accept that coercion was a major focus of the motion judge; it was the major focus in Hart. It was a major theme in the submissions of trial counsel. While the motion judge referred to the broader scope of the abuse of process inquiry mentioned in Hart, his concluding words in his reasons focus only on coercion, reproduced above at para. 45.
[53] However, in substance, the motion judge properly assessed the ice hut scenario and found that there was no impropriety in the conduct of the officers. In short, he found that Rob had not directed the appellant to speak to Uncle Dan before calling his lawyer. Rob left it up to the appellant to decide what he wanted to do – i.e., “however you wanna do it”. Before the appellant eventually confessed to Rob, he never raised the issue of speaking to counsel first. The trial judge found that this was because the appellant believed he was confessing to a friend and was “in no jeopardy” at the time.
[54] Since the appellant’s trial, this court considered the propriety of a similar scenario in Lee, in which the police discouraged the accused from consulting counsel during the course of a Mr. Big operation. This court held that the conduct of the officers did not amount to an abuse of process.
[55] The police investigated Mr. Lee for his suspected role in a homicide. The Mr. Big operation in that case followed the more traditional model involving UCOs posing as members of a powerful criminal organization that offered the target, Mr. Lee, the potential for large material benefits. Similar to the appellant’s case, the police in Lee staged a traffic stop during which Mr. Lee was told that he had been flagged as a suspect in a murder investigation. As Mr. Lee discussed his options with a UCO about contacting the officer who wished to speak with him, he asked the UCO whether he should go to the meeting with a lawyer. The UCO responded, “Well, why would you need a lawyer?” The UCO reminded Mr. Lee that he had already spoken to the police without a lawyer and then asked, “Then why you gotta go for this one with a lawyer?” As the conversation continued, the officer continued to dissuade Mr. Lee from consulting a lawyer, suggesting that doing so might undermine a lucrative deal, which would threaten Mr. Lee’s continued involvement with the organization. The trial judge in that case admitted the evidence derived from the Mr. Big operation. Mr. Lee was convicted.
[56] In dismissing Mr. Lee’s appeal, Dawe J.A. shared the trial judge’s “serious concern” about the UCO’s attempts to discourage the accused from speaking to a lawyer. However, like the motion judge in this case, the trial judge in Lee concluded that the conversation about a lawyer had no real impact on Mr. Lee’s subsequent inculpatory statements. Dawe J.A. concluded that the trial judge was entitled to reach this conclusion on the record before him. I would reach the same conclusion on the record on this appeal.
[57] The appellant submits that Lee should be distinguished because, in this case, the appellant had already retained a lawyer and demonstrated some trust in that lawyer prior to Rob’s comments. In Lee, the accused had yet to make contact with a lawyer. The appellant also seeks to distinguish Lee on the basis that Rob intentionally undermined the appellant’s pre-existing relationship with his lawyer.
[58] I do not accept that these differences in the two cases are meaningful to the abuse of process analysis of the motion judge.
[59] In terms of Rob’s stated intention, it is important to distinguish between what he intended and what he actually said to the appellant in the ice hut before the appellant’s first confession, prior to Uncle Dan’s arrival. While his intention may have been to discourage the appellant from reaching out to his lawyer before speaking to Uncle Dan, by his words, he left it up to the appellant to decide what to do. He was not forceful with the appellant at all. The appellant made the decision to speak to Uncle Dan before speaking to his lawyer.
[60] The appellant submits that, had he contacted his counsel before speaking to Uncle Dan (or Rob), he would have told his lawyer about the traffic stop and his lawyer would have immediately advised the appellant that he was enmeshed in a Mr. Big operation. Any lawyer of reasonable competence would have detected the true nature of the traffic stop and advised the appellant accordingly. It would have brought the Mr. Big operation to an end.
[61] These submissions rest largely on speculation. Because the appellant did not testify on the voir dire, we have no way of knowing what information the appellant may have conveyed to his lawyer (i.e., whether he would have spoken about his new “friendship” with Rob and the opportunity for an introduction to Uncle Dan) or what advice the lawyer might have provided. As Rob said in his evidence, he believed the appellant hoped that his lawyer would call the police and be able to ascertain more details about the investigation, which the appellant would then share with Rob and Uncle Dan.
[62] In his references to contacting counsel, Rob was not in any way disparaging of the appellant’s counsel in terms of his competence or his role in the system as defence counsel. The appellant accepts that Rob’s comments did not personally denigrate the appellant’s lawyer. Rather, the appellant submits that Rob challenged the utility of the appellant speaking to any lawyer. This argument was squarely before the motion judge, who considered whether Rob “denigrat[ed] and diminish[ed] the utility that a lawyer’s help would provide”. He found that Rob’s attempted dissuasion did not constitute an abuse of process. I see no error in the motion judge’s analysis on this point. If anything, Rob was more disparaging of the police in suggesting that they would not provide any useful information to the appellant’s counsel.
[63] Moreover, after both ice hut confessions (the first to Rob, and the second to Uncle Dan), neither UCO attempted to discourage the appellant from speaking with his lawyer. The appellant attempted to contact his lawyer during the lengthy interval between the ice hut confessions and the boardroom meeting. Even though the appellant was not successful in reaching his lawyer, his attempts demonstrate that the actions of the officers did not undermine any confidence the appellant may have had in his lawyer. Presumably, the appellant could have delayed this meeting until he spoke to his lawyer. He chose not to do so.
[64] Lastly, the fact that the appellant already had a lawyer is not an important distinction from the scenario that unfolded in Lee. The fact that the appellant seemed to trust his lawyer rested on the impressions gained by Rob in his interactions with the appellant. Again, the appellant did not testify on the voir dire to provide greater context for this issue.
F. Conclusion
[65] The motion judge conducted a careful analysis of the appellant’s unequivocal Mr. Big confessions that he murdered Carmela at the request of Mr. Knight. Engaging the principles in Hart, he determined that the utterances were reliable and they were admissible. He conducted a thorough balancing of their probative value against their prejudicial effect, a determination left unchallenged on appeal.
[66] The motion judge’s conclusion that the actions of the UCOs did not give rise to an abuse of process was available on the record before him. It cannot be said that the single, brief exchange between the appellant and Rob in the ice hut about consulting a lawyer would offend society’s notions of fair play and decency so as to undermine the integrity of the justice system. The appellant’s incriminatory comments were not the product of abusive or coercive conduct on the part of the UCOs. The utterances were admissible. . 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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