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The appellants for this case are Dax Richard Mack .The respondant is Her Majesty the Queen
.The interveners are Attorney General of Ontario and Attorney General of British Columbia.
NEXT. A Vetrovec Warning is a warning given by a judge to a jury in regards to the
frailties of the evidence tendered by certain witnesses. NEXT
After a murder victim was reported missing, the police received information that his roommate Dax
Richard Max had confessed to killing him and initiated an investigation. The investigation had two
components: a Mr. Big operation and a wiretap authorization to intercept Daxs phone calls. During the
Mr. Big operation, Dax twice admitted to undercover police officers that he shot the victim and burned his
body. That information led police to conduct a search of a firepit where they located fragments of bones
and teeth later identified as belonging to the victim, and shell casings later determined to have been fired
from a gun seized from Daxs apartment. Dax was arrested and charged with first degree murder. At the
time of Daxs arrest, the Mr. Big operation had been in progress for four months and Dax had participated
in 30 scenarios with undercover officers. He had been paid approximately $5,000 for his work, plus
expenses. At trial, the Crown conceded that its wiretap authorization did not comply with the Criminal
Code and therefore, violated s. 8 of theCharter . As a result of this violation, the Crown did not adduce
any of Daxs calls, but did adduce his two confessions to the undercover police officers during the Mr.
Big operation. However, Dax argued that the wiretap authorization was so intertwined with the Mr. Big
operation that the illegality of the authorization necessitated excluding his confessions under s. 24(2) of
the Charter . The trial judge rejected this argument and determined that s. 24(2) was not engaged. The
trial judge provided instructions to the jury in relation to the evidence arising from the Mr. Big operation.
He also cautioned the jury about the testimony of the Crowns principal witness and provided a Vetrovec
warning in relation to his evidence. The jury found Dax guilty of first degree murder and his appeal from
conviction was dismissed by the Court of Appeal.
NEXT
The following information was collected from the Police Investigation into the Death of Robert Levoir.
NEXT
Mr. Levoir went missing in November 2002. At the time of his disappearance, he was living with the
appellant in Fort McMurray, Alberta. About a month after Mr. Levoirs disappearance, the police received
a call from Jay Love, a friend of the appellant. Mr. Love told the police that the appellant had confessed to
killing Mr. Levoir and burning his body. Acting on Mr. Loves tip, the police began investigating the
appellant to determine if he was responsible for Mr. Levoirs disappearance. The investigation had two
components: a Mr. Big operation, and a wiretap authorization to intercept the appellants phone calls. The
Mr. Big operation commenced in January 2004, approximately one year after the police received the call
from Mr. Love. An undercover officer, was introduced to the appellant at a nightclub in Fort McMurray.
The appellant was working at the club as a D.J.
A week after their introduction, Ben asked the
appellant to help him repossess a vehicle. The appellant did so and was paid $200. During a
conversation with Ben a few days later, the appellant mentioned his missing roommate. He told Ben that
Mr. Levoir was a crack head and a drug addict, and accused him of stealing from his sons piggy

bank. He added that as far as he was concerned, Mr. Levoir was pushing up daisies. Early on in the
Mr. Big operation, the appellant began to suspect that Ben was involved in criminal activity. Ben told the
appellant that he worked for an organization headed up by a man named Liam who had his fingers into a
lot of things. Throughout January and February 2004, the appellant did several more jobs for the
organization. In early February, for example, the appellant was asked to pick up a package from a bus
depot in Edmonton. When he returned to his hotel room where Ben was waiting, Ben opened the package
and it contained $30,000 in cash. Later in February 2004, during a conversation between the appellant
and Ben, Ben mentioned that he had once been attacked by two men while working for the organization.
Ben told the appellant that Liam had looked after [the] two guys in what Ben called the weekend of
reckoning. Ben then asked the appellant if he had ever beat[en] anyone. The appellant replied that
there were two occasions, once when he was in a fist fight, and another time that he could not talk about.
Ben expressed his hope that the appellant would one day tell him about his secret.
Ben brought up
the appellants secret again in early March. He suggested that the person the appellant was talking about
[wasnt] walking anymore. The appellant nodded his head in agreement and added that every man has
a breaking point.
In mid-March, the appellant drove to Vancouver at Bens behest to have a meeting
with Liam. The appellant and Liam met at an apartment in the city. Liam brought up the appellants
missing roommate and attempted to question him about the disappearance. The appellant asked Liam if
he could decline to speak about the matter. Liam told the appellant that it was his choice, but that
refusing to speak meant he would remain on the organizations third line. The only way to advance to
the first line was by talking about his roommate and revealing his secret. The appellant again refused,
explaining that loose lips sink ships. NEXT After the appellants meeting with Liam, three weeks went
by before Ben and the appellant met again in person. On April 9, 2004, Ben asked the appellant if he
wanted to work. The appellant said that he did, and that he would do what it took. Ben asked the
appellant if he would be willing to sit down with Liam to talk about how his roommate had been killed.
The appellant agreed to do so. Ben then asked the appellant why he killed Mr. Levoir, and the appellant
responded that his former roommate had been a liar, a thief, and a piece of shit drug dealer. The
appellant told Ben that he shot Mr. Levoir five times four times in the chest and once in the back
with a .223 rifle. The appellant also said that there was nothing left of Mr. Levoir because he had
burned his body. The appellant initially offered to show Ben where Mr. Levoirs body had been burned.
However, he quickly backtracked, telling Ben that everything he had just said was bullshit and that he
had been lying. Ben replied that he really hope[d] the appellant had been telling the truth. In
response, the appellant changed his mind and took Ben out to a firepit on his fathers property. The
appellant told Ben that he had taken the ashes out of the firepit and that there was nothing left of Mr.
Levoir. NEXT A few days later, the appellant was flown to Edmonton for a second meeting with Liam.
That meeting took place on April 15, 2004. At the outset, the appellant described Mr. Levoir as a crack
head and accused him of stealing from his sons piggy bank. When Liam asked the appellant how he
had killed Mr. Levoir, the appellant replied that he shot him five times with a .223 rifle four times in
the chest and once in the back. He added that there had been a big fire at his dads place, and that there
was nothing left of Mr. Levoir.
The next week, on April 21, 2004, the appellant was arrested and
charged with first degree murder. The police searched his fathers property, and Mr. Levoirs remains
were found in the firepit that the appellant had pointed out to Ben. Shell casings fired by a rifle found in
the appellants apartment were also discovered in the firepit.
At the time of his arrest, the Mr. Big
operation had been in progress for four months and the appellant had participated in 30 scenarios with

undercover officers. He had been paid approximately $5,000 for his work with the organization, plus
expenses.
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Evidence of Jay Love
[17]
Jay Love, the man who initially brought the appellant to the attention of the police,
testified as a witness for the Crown and recounted the appellants December 2002 confession. Mr. Love
testified that he and the appellant went to a bar with another man named Michael Argueta on December
21, 2002. The appellant told Mr. Love that he was his best friend, and he asked Mr. Love if he could trust
him. The appellant was intoxicated at the time. Mr. Love testified that the appellant was unhappy with
Mr. Levoir because the appellant thought Mr. Levoir had stolen from his sons piggy bank, that he was
taking drugs in the house, and that he was using the appellants phone without permission.
[18]
The appellant then told Mr. Love that Robbie was dead. Mr. Love asked if the
appellant had outsource[d] the killing, and the appellant replied no, I did it myself. The appellant
also added that he burned Mr. Levoirs body.
NEXT
The Evidence of Michael Argueta
[19]
Michael Argueta was also called as a Crown witness. Mr. Argueta was a friend of the
appellant and he too testified that the appellant had confessed to him about killing Mr. Levoir. This
confession was said to have occurred at a bar in Edmonton, where the appellant told Mr. Argueta that he
had gotten rid of Mr. Levoir.
[20]
Mr. Argueta and the appellant did not talk again until they were driving home to Fort
McMurray the next day. Mr. Argueta testified that, during the drive, the appellant told him he shot Mr.
Levoir. Mr. Argueta did not believe the appellant, and the appellant added that he burned Mr. Levoirs
body on his fathers property. Mr. Argueta also testified that the appellant had been [v]ery agitated by
Mr. Levoir because Mr. Levoir owed the appellant money, had stolen from his sons piggy bank, and had
used his phone without permission.
[21]
Mr. Arguetas credibility was a central issue at trial. Prior to testifying, he had been
interviewed by the police a number of times and he had never mentioned the appellants second
confession during the car ride home. Indeed, in a statement given to police under oath, Mr. Argueta
expressly denied talking to the appellant about Mr. Levoirs disappearance during the drive home to Fort
McMurray. In his testimony, Mr. Argueta admitted knowing that drug dealers from Vancouver had put a
price on Robbie Levoirs head back in 2002, before he disappeared. Ultimately, the defence took the
position that Mr. Argueta had killed Mr. Levoir in order to collect on this bounty.
NEXT
The Appellants Evidence

The appellant testified and denied killing Mr. Levoir. According to the appellant, he and Mr.
Argueta had plans to go hunting on November 6, 2002. They invited Mr. Levoir to come along, and he
did. The three men drove to the property owned by the appellants father, intending to hunt on his land.
[23]
The appellant testified that after the group arrived at his fathers property, Mr. Levoir
and Mr. Argueta separated from him. Several minutes later, the appellant heard a series of gun shots. He
returned to the road and encountered Mr. Argueta. According to the appellant, he asked [w]heres
Robbie?, and Mr. Argueta responded [t]hats what you get for the price on his head for pissing off the
big boys. The appellant then looked over and saw Mr. Levoirs body lying in the grass. Mr. Argueta
then told the appellant to [j]ust shut up, and dont worry about it, stating that he would come back and
look after it. The appellant also claimed that Mr. Argueta told him, in a conversation at a bar
approximately one month later, that he had burned the body for two days in a firepit at the same property.
[24]
As for his purported confession to Jay Love, the appellant claimed that Mr. Love had
misheard him at the bar on December 21, 2002. He said that what Mr. Love had heard as a confession
was actually an attempt on his part to tell Mr. Love that Mr. Argueta had killed the deceased. With
respect to Mr. Arguetas evidence, the appellant said it was untrue. And while he admitted to making
admissions to the undercover officers, he explained that he made those statements out of a desire for
money, protection, a belief that the confessions were necessary for self-preservation, and to sound big
and tough and bad like them.
[25]
The appellant also called two other witnesses who testified that, on separate
occasions, Mr. Argueta made statements in which he suggested he was involved in Mr. Levoirs death.
26]
At the appellants trial, the Crown conceded that the wiretap authorization it had
obtained to intercept the appellants phone calls did not comply with the requirements of the Criminal
Code, R.S.C. 1985, c. C-46 , and had therefore been obtained in violation of s. 8 of the Canadian
Charter of Rights and Freedoms .[2] As a result of this violation, the Crown did not adduce
any of the conversations that had been intercepted pursuant to the wiretap
authorization. Nonetheless, the appellant moved to have all of the statements he
made during the Mr. Big operation none of which were recorded on the wiretaps
excluded as well. The appellant argued that the illegal wiretap was being used to
design the undercover operation and that the operation would not have been
conducted without it. As a result, the wiretap authorization was so intertwined with
the Mr. Big operation that the illegality of the authorization necessitated excluding
his statements to the undercover officers under s. 24(2) of the Charter .
[27]
The trial judge, Mr. Justice Hillier, rejected this argument. He concluded that s. 24(2)
of theCharter was not engaged because the appellants incriminating statements to undercover officers
had not been obtained in a manner that violated any of his rights under the Charter (para. 187).
Although the appellant made his incriminating statements to the undercover officers while the illegal
wiretap was in place, there was no causal connection between the existence of the illegal wiretap and the
appellants confessions to the undercover officers (para. 184). The most that could be said was that the
wiretaps were helpful to the undercover officers during the Mr. Big operation, because they provided
the officers with assurances that their cover had not been blown (para. 175). The trial judge did not
accept that the wiretaps were used to design and carry out the Mr. Big operation.

ANALYSIS
Court of Queens Bench of Alberta,
At the appellants trial, the Crown conceded that the wiretap authorization it had obtained to intercept
the appellants phone calls did not comply with the requirements of the Criminal Code, R.S.C. 1985, c. C46 , and had therefore been obtained in violation of s. 8 of the Canadian Charter of Rights and Freedoms
.[2] As a result of this violation, the Crown did not adduce any of the conversations that had been
intercepted pursuant to the wiretap authorization. Nonetheless, the appellant moved to have all of the
statements he made during the Mr. Big operation none of which were recorded on the wiretaps
excluded as well. The appellant argued that the illegal wiretap was being used to design the undercover
operation and that the operation would not have been conducted without it. As a result, the wiretap
authorization was so intertwined with the Mr. Big operation that the illegality of the authorization
necessitated excluding his statements to the undercover officers under s. 24(2) of the Charter .
The trial judge, Mr. Justice Hillier, rejected this argument. He concluded that s. 24(2) of theCharter
was not engaged because the appellants incriminating statements to undercover officers had not been
obtained in a manner that violated any of his rights under the Charter (para. 187). Although the
appellant made his incriminating statements to the undercover officers while the illegal wiretap was in
place, there was no causal connection between the existence of the illegal wiretap and the appellants
confessions to the undercover officers (para. 184). The most that could be said was that the wiretaps were
helpful to the undercover officers during the Mr. Big operation, because they provided the officers with
assurances that their cover had not been blown (para. 175). The trial judge did not accept that the
wiretaps were used to design and carry out the Mr. Big operation.
Alberta Court of Appeal
On appeal, the appellant submitted that the trial judge erred in concluding that s. 24(2) of
theCharter was not engaged, and that his instructions to the jury in relation to the evidence arising from
the Mr. Big operation and Mr. Arguetas credibility were deficient.
The Court of Appeal rejected these arguments. It noted that a trial judges decision under s. 24(2) of
the Charter is entitled to deference, and it could see no basis for interfering with the trial judges
determination that the s. 8 violation and the accuseds statements to the undercover officers were not
sufficiently related to trigger s. 24(2) . In relation to the Mr. Big operation, the trial judge instructed the
jury against engaging in propensity reasoning and pointed out the reliability concerns raised by the
operation. In the Court of Appeals view, nothing further was required. Similarly, regarding Mr.
Arguetas testimony, the Court of Appeal observed that the trial judge had reminded the jury of the
defence position that Mr. Argueta was the killer, and he had warned them of the reliability dangers
associated with Mr. Arguetas evidence. Here, too, the Court of Appeal could find no error.
NEXT
[30]
(a)

The appellant raises three issues on appeal:

Did the trial judge err in concluding that s. 24(2) of the Charter was not engaged?

(b)

Did the trial judge err in his instructions to the jury on the Mr. Big confessions?

(c)

Did the trial judge err in his instructions to the jury relating to Mr. Arguetas testimony?

ISSUE A
At the outset, it bears mentioning that the appellants only challenge to the admissibility of the
confessions he made to undercover officers during the Mr. Big operation came under s. 24(2) of
theCharter . The appellant did not have the benefit of this Courts decision in Hart, in which a twopronged framework for assessing the admissibility of Mr. Big confessions was set out. Under the Hart
framework, a Mr. Big confession will be excluded where its prejudicial effect outweighs its probative
value, or where it is the product of an abuse of process. In this context, the confessions probative value
is a function of its reliability. Its prejudicial effect stems from the harmful character evidence that
necessarily accompanies its admission
Neither the courts below nor the parties before this Court have considered whether the appellants
confessions would be admissible under the two-pronged framework set out in Hart.
To begin with, the probative value of the appellants confessions is high. The inducements provided by
the undercover officers were modest the appellant was paid approximately $5,000 over a four-month
period, at a time when well-paying, legitimate work was readily available to him. He was not threatened
by the officers. And he was told, in his first meeting with Liam, that he could decline to say anything and
remain on the organizations third line an option he initially accepted.
Moreover, there was an abundance of evidence that was potentially confirmatory. First, the appellants
purported confessions to Mr. Argueta and Mr. Love described the same motive for killing Mr. Levoir as
his confessions to the undercover officers. They also made reference to burning Mr. Levoirs body.
Second, immediately after confessing to Ben, the appellant led him to the firepit in which Mr. Levoirs
remains lay undiscovered. And third, shell casings fired from a gun found in the appellants apartment
were found in the same firepit. All of this made for a confession that was highly probative
ISSUE B
In Hart, this Court identified two evidentiary concerns with confessions that are the product of a Mr. Big
operation. The first is that the confessions may be unreliable. Mr. Big operations are intended to induce
confessions, and the inducements offered to a suspect may incentivize the suspect to falsely confess.
Second, Mr. Big confessions are invariably accompanied by bad character evidence in which the accused
has shown a willingness to commit crimes to gain entry into a criminal organization
The common law rule of evidence that was set out in Hart was intended to respond to the evidentiary
concerns raised by Mr. Big operations. However, while this rule responds to these two evidentiary
concerns, it does not erase them. The focus of the rule is to determine whether a Mr. Big confession
should be admitted into evidence. It does not decide the ultimate question of whether the confession is
reliable, nor does it eliminate the prejudicial character evidence that accompanies its admission. Thus,
even in cases where Mr. Big confessions are admitted into evidence, concerns with their reliability and
prejudice will persist. It then falls to the trial judge to adequately instruct the jury on how to approach
these confessions in light of these concerns.

As for the bad character evidence that is admitted, the appellant submits that trial judges must provide a
strong and specific limiting instruction that includes specific directions focused on the significant
efforts [the] police employed to cause and encourage the accuseds participation in misconduct .
ISSUE C
In his charge, the trial judge instructed the jury to consider Mr. Arguetas evidence in light of the defence
position that it was Mr. Argueta who killed Mr. Levoir. The trial judge referred to the possibility that the
appellants knowledge of the murder may have come from Mr. Argueta. In addition, he pointed out to the
jury that even on Mr. Arguetas own account, he had lied to the police under oath when he told them that
he and the appellant had not discussed Mr. Levoirs death on the drive back to Fort McMurray from
Edmonton. The trial judge noted that Mr. Argueta had provided no explanation for this lie and that he
appeared quite unapologetic about it. He cautioned the jury that Mr. Arguetas apparent lack of
concern for the seriousness of the oath leaves open the question of whether you may rely on anything he
says.
[63]
Because of these concerns, the trial judge provided a Vetrovec[4] warning in
relation to Mr. Arguetas evidence, instructing the jury that it would be dangerous for them to
accept his testimony in the absence of other evidence that confirmed his account. The trial judge
provided two examples of evidence that might be capable of supporting Mr. Arguetas evidence. The first
was Mr. Arguetas testimony that the appellant was angry with Mr. Levoir because he suspected Mr.
Levoir had stolen from his sons piggy bank and had run up telephone bills at [the appellants] place.
The second was that the appellant separately testified to what he knew about the price on [Mr.] Levoirs
head, which was similar to what Mr. Argueta said on that matter, but was not attributed as having come
to [the appellant] from Mr. Argueta.
[64]
The appellant contends that these instructions were deficient. In particular, he
submits that the trial judges instructions on the importance of Mr. Arguetas admitted lie to the police
under oath was confusing, because the appellants position at trial was that Mr. Arguetas statement to
police was truthful and his testimony was a lie. Moreover, the appellant contends that the Vetrovec
caution and the related instruction to seek out confirmatory evidence before relying on Mr. Arguetas
evidence was misplaced, because if Mr. Argueta provided information about the murder that turned out to
be true, this did not bolster the Crowns theory that the appellant was guilty of murder. Rather, it
supported the defence position that Mr. Argueta, and not the appellant, had killed Mr. Levoir.

NEXT. THE END.