It was after hours at Our Place Pub in Calgary, Alberta, on November 27, 2010, and bartender Dexter Bain was hanging out with regular David Nowak and friends when masked intruders came through the back door. Bain was shot in the back by a .22 calibre firearm and died in the parking lot. Kyle Ledesma was seen on CCTV footage at a nearby Mac’s store and became a suspect.

Over three months later, on March 12, 2011, Calgary police went to another shooting at a 7-Eleven store near Ledesma’s residence. Jermaine Therrien had been shot in the stomach and Ledesma was trying to get him to a hospital. Later that day a .22 calibre firearm was found by the police in a field near the store. Ledesma also became a suspect in that investigation.

The tracks went cold as another five months drifted by so the police targeted Ledesma in a Mr. Big operation that consisted of 45 scenarios from August 23, 2011, to January 17, 2012. Undercover police officers connected with Ledesma and introduced him to a lavish criminal lifestyle on the bankroll of a fictitious criminal organization. Ledesma was led to believe that he might get help from the organization to avoid prosecution for murder if he confessed to the boss. Mr. Big was, of course, an undercover police officer.

Ledesma made two statements to the undercover officers implicating himself in the Bain homicide. In the first confession he admitted that “the altercation” was at a store after hours and the gun was a .22 calibre. In the second confession he said that he and some associates went to “jack this dude and things went sour”. He opened the back door and shot him “basically in the ass” with a twenty-two. Ledesma also said that he accidentally shot Therrien, his cousin, in the stomach with the same gun and “ditched it” in a field where the police found it.

The police also obtained two wiretap authorizations during the Mr. Big operation under s. 186 of the Criminal Code. Two years later, the police officer who swore the affidavits in support of the wiretap authorizations would testify on an evidence exclusion motion that the wiretap was necessary because the Mr. Big operation would only gather what Ledesma said to the police and not “his communications with key players who were not undercover officers”.

On May 12, 2014, Ledesma’s exclusion motion began before Justice S.J. LoVecchio in the Court of Queen’s Bench of Alberta, at Calgary. The motion was then adjourned pending the ruling of the Supreme Court of Canada in R v Hart, [2014] 2 SCR 544 which is now the leading case on the admissibility of Mr. Big confessions. On December 23, 2014, Justice LoVecchio held that the confessions were admissible in a ruling reported as R v Ledesma, 2014 ABQB 788. The jury convicted of second degree murder. Ledesma appealed.

On April 28, 2017, the Alberta Court of Appeal rendered the unanimous per curiam judgment of Justices J.D.B. McDonald, B.L. Veldhuis and S.L. Martin reported as R v Ledesma, 2017 ABCA 131. The panel ruled that Justice LoVecchio failed to properly balance the probative value of Mr. Big confessions against their prejudicial effect. Ledesma had argued that the trial judge (a) incorrectly interpreted Hart to mean that the prejudice factor is static for all Mr. Big operations and (b) failed to engage in a prejudice analysis. The panel agreed, at paras. 46-8:

“We agree with the appellant that the trial judge completely failed to discuss or weigh the prejudicial effect of introducing the Mr. Big operation. The trial judge may have taken the comments of Justice Moldaver [in Hart] to mean that there would always be prejudice and as long as he was satisfied that the probative value was high, he could then simply caution the jury about moral and reasoning prejudice.

The trial judge did not discuss the prejudice at all. Therefore he erred when he did not carry out the second step of balancing the probative value of the appellant’s confessions against the prejudicial effect of introducing the Mr. Big operation.

The potential for prejudicial effect is fairly constant in the Mr. Big context, and the majority of the analysis should focus on the assessment of the confession’s reliability. However, consideration of the prejudicial effect of a Mr. Big confession requires more than merely referencing those concerns raised by Hart. Judges must consider the particular confession before them and the potential for moral and reasoning prejudice in the circumstances of the particular Mr. Big operation. This includes looking at the types of crimes that were simulated during the operation and the extent of the accused’s role in those simulations, as well as consideration of information about the accused’s history of crime or violence that will come in as part of the confession. It may also include consideration of other forms of prejudice that may arise as a result of the unique circumstances of the confession.”

Ledesma also argued that the trial judge erred by admitting evidence of the Therrien shooting without an analysis of prejudice and probative value. This evidence was admitted on the basis that it gave “context” to what Ledesma said to the police. Ledesma asserted that the trial judge’s comment was “an incomplete answer to the issue of whether the Therrien shooting evidence was relevant, probative, or potentially prejudicial”. Again, the panel agreed, at para. 55: “Evidence of the accused’s prior discreditable conduct introduced for context or narrative background must still be subject to a balancing analysis. This exercise is completely separate from simply providing an instruction to the jury on bad character. As with the first ground of appeal, the trial judge failed to engage in any balancing of the probative value versus the prejudicial effect.”

Having granted the appeal on that basis, and ordering a new trial, it was not necessary for the panel to consider whether, in the application for the wiretap authorizations, the police had established investigative necessity under s. 186(1)(b) of the Code which required that the authorizing judge be satisfied that other investigative procedures had been tried and failed or were unlikely to succeed. The panel’s comments on investigative necessity are strictly obiter dicta.

Ledesma argued that the trial judge failed to correctly analyze the investigative necessity prerequisite because other investigative procedures were still available to the police and, indeed, were ongoing. The panel characterized the argument this way, at para. 65: “The appellant argues that, in finding that the issuing judge could have granted the Part VI wiretap authorizations, the trial judge erred by failing to conduct a ‘but-for’ analysis as to whether the investigative necessity requirement had been established.” Let’s step back, then, to the ruling on the exclusion motion where the trial judge made two key findings of fact, at para. 44. First, at the time the affidavit was sworn in support of the wiretap application, the Mr. Big operation was underway and Ledesma had participated in some of the phoney undercover scenarios. But, second, he continued to question whether the principal undercover operative was a police officer. The police were therefore concerned that Ledesma may not make incriminating statements before the Mr. Big operation was over.

The panel concluded that the trial judge did not err in these findings of fact based on the wiretap affidavits and the evidence of the affiant during cross-examination. The affiant also testified that the wiretap was necessary to corroborate what Ledesma said to the undercover police officers and that the Mr. Big operation, as a stand alone technique, would not capture Ledesma’s “communications with key players who were not undercover officers”. The panel concluded, at para. 87, that: “Investigative necessity sufficient for a Part VI authorization does not require a recourse of last resort; it can include gathering independent confirmatory evidence that is not reasonably available by other methods.”

Although the panel is correct that investigative necessity is not a last resort test it is important that privacy interests be protected when the police seek court authorization to use highly invasive investigative tools. The text of the Code provision must be read with a simultaneous awareness of two competing values – enabling investigations and protecting privacy rights. In R v Araujo, [2000] 2 SCR 992, not cited by the Ledesma court, LeBel J., having rejected “a pure last resort test” went on, at para. 29, to caution against overly broad electronic searches and stated that a wiretap authorization should only be granted “as far as need is demonstrated” by the supporting affidavit. And further, at para. 35, Le Bel J. urged authorizing judges to apply the investigative necessity requirement in a “balanced way” with important values of Canadian society and “look seriously at whether there is, practically speaking, no other reasonable alternative method of investigation.”

Investigative necessity, then, is not a test of last resort but one of reasonableness.