In the Court of Appeal of Alberta

Citation: R v Ledesma, 2021 ABCA 143

Date: 20210421
Docket: 1901-0075-A
Registry: Calgary

Between:

Her Majesty the Queen

Respondent

- and -

Kyle Victor Ledesma

Appellant

Restriction on Publication
Witness Identity – See the Criminal Code, section 486.31.
By Court Order, the identity of the police witnesses must not be disclosed in the
course of these proceedings.
NOTE: This judgment is intended to comply with the identification ban.
Identification Ban – See the Criminal Code, section 631(6).
By Court Order, information that may identify the jurors may not be published,
broadcast, or transmitted in any way.
NOTE: This judgment is intended to comply with the identification ban.

_______________________________________________________

The Court:
The Honourable Madam Justice Marina Paperny
The Honourable Madam Justice Elizabeth Hughes
The Honourable Mr. Justice Kevin Feehan
_______________________________________________________
 Memorandum of Judgment

Appeal from the Conviction by

The Honourable Mr. Justice M.D. Gates Sitting with a Jury
Dated the 10th day of February, 2019
(Docket: 120236229Q1)
 _______________________________________________________

Memorandum of Judgment
_______________________________________________________

The Court:

I. Overview

[1] Kyle Ledesma appeals his conviction for the second degree murder of Dexter Bain. This
is the second time he is before this Court on the same matter, his first conviction having been
overturned: 2017 ABCA 131. The Crown’s case against Mr Ledesma was largely based on a
Mr Big operation and the confessions he made as a result. The admissibility of those confessions
as outlined in R v Hart, 2014 SCC 52, [2014] 2 SCR 544, was a major issue in both the first
and second trials.

[2] Mr Ledesma’s primary complaint on appeal is that the reasons of the trial judge for
admitting the Mr Big confessions, other pre-trial rulings, and trial rulings were released over
one year after the jury trial had concluded. He says they should not be considered on appeal.
He raises several other issues set out below.

[3] For the reasons below, the appeal is dismissed.

II. Facts

November 27, 2010: Bain murder

[4] On November 27, 2010, at 2:15 am the Our Place Pub in Calgary closed its doors for
the night. The last persons left in the pub were Dexter Bain, the bartender, and a friend, David
Nowak. At 3:17 am, they were joined by two friends, Jesse Stansel and McKenzie Fawcett, for
a late-night drink.

[5] A surveillance camera at a Mac’s convenience store in the same strip mall showed three
males, all dressed in dark clothing in the store: Harlan Obey, Christopher Ates, and Kyle
Ledesma. Mr Obey was seen leaving the Mac’s store at 3:21 am; Mr Ates and Mr Ledesma at
3:26 am.

[6] An independent witness saw two people wearing dark clothing in the alley going in one
of the back doors of the strip mall. At 3:30 am, Mr Nowak heard a loud noise like a door being
kicked in. Mr Stansel described a commotion and a group of masked persons entering the pub
through a back door from the alley. Mr Bain was standing at the bar when he was shot twice in
his back with a .22 calibre pistol. Mr Bain, Mr Fawcett, Mr Stansel, and Mr Nowak all fled the
pub through the front door. Mr Bain collapsed outside in the parking lot, where he was attended
by Mr Fawcett. Mr Stansel and Mr Nowak ran to the nearby Mac’s store to call 911, entering
 Page: 2

the store at 3:36 am. An acquaintance of Mr Ledesma, Nathan Kayseas, was present in the
parking lot at that time. Two witnesses saw one or two persons wearing dark clothing leaving
the back doors of the strip mall and heard “Where did he go?” or “What direction did he go?”,
and “Come on, we have to go”.

[7] Mr Bain died as a result of the two gunshot wounds to his trunk fired from a .22 calibre
pistol.

[8] There was no identification of Mr Ledesma at the scene and the forensic crime scene
unit found no bullet casings on a search of the alley.

March 12, 2011: Therrien shooting

[9] On March 12, 2011, there was a house party at the residence occupied by Mr Ledesma,
Mr Obey, and others. In the early morning hours, Mr Ledesma’s cousin, Jermaine Therrien,
was shot in the stomach. Either Mr Ledesma or Mr Obey were in an argument with Mr Therrien
and shot a gun at the floor; a rebound bullet hit Mr Therrien in the stomach. A taxi was called
and Mr Ledesma, Mr Therrien, and Jackie McDowell got in the taxi, asking to be taken to the
hospital. Instead of driving to the hospital, the taxi driver drove to a nearby 7-Eleven store and
called 911. Upon arriving, police found Mr Therrien wounded, lying on the ground by a taxi in
the company of Mr Ledesma. Mr Therrien was taken to Foothills Medical Centre where he
underwent surgery. The surgeons were unable to remove the bullet due to the danger posed to
Mr Therrien, and it was therefore unavailable for forensic testing.

[10] Police found a .22 calibre Ruger semi-automatic pistol in a field close to the 7-Eleven
at about 6:00 pm that day. Mr Ledesma’s DNA was found on the pistol. Later that day, police
executed a search warrant at the Ledesma residence and found .22 calibre ammunition, casings,
bullets, and bullet fragments.

[11] It was not possible to either confirm or eliminate that the bullets removed from Mr
Bain’s body had been fired from the .22 calibre Ruger seized by the police in the vacant lot by
the 7-Eleven.

August 23, 2011 to January 17, 2012: Mr Big investigation

[12] In August 2011, police commenced a Mr Big investigation targeting Mr Ledesma,

consisting of 45 scenarios spanning four and one-half months to January 17, 2012. Undercover
operators portrayed themselves as members of a criminal organization willing to engage in
violence, although the detective who was one of the undercover operators repeatedly told Mr
Ledesma violence would never be used against members of the organization.
 Page: 3

[13] A slow, start-and-stop friendship developed between Mr Ledesma and the detective. On
September 20, 2011 Mr Ledesma confronted the detective about potentially being a police
officer. After that, there was a gap in communication from Mr Ledesma until October 7, 2011,
when he contacted the detective.

[14] On September 28, 2011, a wiretap authorization was granted to intercept Mr Ledesma’s
private communications.

[15] After October 7, Mr Ledesma was paid by the detective to test fraudulent credit cards,
and accompany organization members as they collected money, counted money, placed a
tracking device on a vehicle, and delivered items to various locations. He was typically paid
$200 per day.

[16] On October 8, 2011, police intercepted a telephone call between Mr Ledesma and his
cousin, Paul Ledesma, in which Mr Ledesma said he had shot Mr Therrien by accident in the
stomach.

[17] On October 28, 2011, the organization carried out a mock kidnapping in the parking lot
of a casino, intending Mr Ledesma would see it, although he did not. On November 5, 2011,
the organization flew Mr Ledesma to Vancouver, to attend with others at a casino to look for a
person who was described as owing the organization close to $50,000. They searched for
approximately two hours but never located the fictional debtor.

[18] On November 6, 2011, the organization carried out a perceived violent kidnapping. Mr
Ledesma was sent to break a driver’s side window of the victim’s car with a crowbar. The
detective put the victim in a headlock, punched him repeatedly, and dragged him back to the
organization’s SUV. He screamed at the victim and threatened him. Simulated blood was used
to make it appear the victim was injured. The organization sent Mr Ledesma into a hotel to
search the victim’s room and when Mr Ledesma phoned from the room to say he needed a code
for the safe, the organization pretended to beat the victim until he gave them the code. The
victim begged for two more days to pay, and in front of Mr Ledesma, the detective called Mr
Big to ask him what to do. Mr Big told them to give the victim two more days and the detective
told the victim he was lucky because his preference would have been to kill him. When Mr
Ledesma and the detective dropped off the victim, the detective shot the victim with a prop
firearm and they drove away.

[19] After this incident, Mr Ledesma accepted that the detective was not a police officer.

December 2, 2011: first confession

[20] In late November or early December, 2011, the police released photographs of Mr
Ledesma taken from the Mac’s video to the media and identifying him as a person of interest
 Page: 4

in the Bain murder. On December 2, 2011 Mr Ledesma had dinner with the detective, during
which Mr Ledesma told the detective, without prompting, that he and a friend were on the news
because they were caught on camera around the time somebody was killed “last year”. The
detective opened the news story on his phone and they discussed what had occurred. Mr
Ledesma said it happened after hours, around 4:30 am. He said he was wearing a black hoody,
had used a .22 calibre handgun, and was concerned if anyone had seen his tattoos.

[21] On December 14 and 15, 2011, police intercepted telephone conversations between Mr
Ledesma and Mr Obey in which they discussed the photographs taken from the Mac’s video.
Mr Ledesma pressed Mr Obey to shave his face and head so he did not look like the person in
the photographs. He also told Mr Obey to get rid of the red toque he was wearing in the Mac’s
video.

[22] On December 14, 2011, the police also intercepted a telephone conversation between
Mr Ledesma and his girlfriend in which he said that if the police obtained their DNA, he and
Mr Obey were “going down for murder”.

[23] On December 15, 2011, police uploaded a Crime Stoppers re-enactment video of the
Bain murder, without audio, to YouTube. From December 16, 2011 to January 6, 2012 there
was no in-person contact between Mr Ledesma and the detective.

January 6, 2012: loaded handgun

[24] On January 6, 2012, Mr Ledesma brought a loaded .38 calibre handgun to a social
meeting at a strip club. He showed the gun to the detective, opened the cylinder and noted it
was loaded with three bullets. However, he placed it inside his coat in the trunk of a vehicle
when he went into the club. Later, when the detective dropped him off at home, Mr Ledesma
removed the gun and his coat from the trunk of the car and kept the gun until it was seized on
January 16, 2012.

January 16, 2012: second confession

[25] On January 16, 2012 police contacted members of Mr Ledesma’s family and advised he
was being sought for murder. Mr Ledesma, who was in Vancouver, was telephoned by his
father who told him police had been at their residence and were going to arrest him. Mr Ledesma
reached his lawyer, who advised him to turn himself in to police and not to speak to anyone.

[26] The detective and Mr Ledesma attended a meeting with Mr Big on that date. The
detective told Mr Big that Mr Ledesma had “some demons come up” and asked whether Mr
Big could obtain new identification for Mr Ledesma. Mr Big asked for details so that he would
know what he was getting himself into before agreeing to provide assistance.
 Page: 5

[27] Mr Ledesma told Mr Big the police were looking for him because of something that had
happened in a pub in November 2010 around 3:00 am. He said Dexter Bain had been shot “a
couple of times” and died in the plaza. He said he and two friends had been buying some drinks
at a Mac’s store and went to the pub because they had been told the man at the pub had drugs.
They banged on the back door pretending to be police. When the door opened, Mr Ledesma
said his friend started fighting with the man who had opened the door and during the course of
the confrontation Mr Ledesma “plugged him”, shooting him “basically in the ass”. He said Mr
Bain ran towards the front door of the pub to get away. He said the gun was a .22 Ruger with a
built-in silencer: an “11 clip”, cocked from the back instead of the top. He also said the police
now had the gun because he had ditched it in a field half a year ago after someone else had been
shot at his house. Mr Ledesma said they stole 15 pounds of marijuana and $10,000 in cash while
at the pub.

[28] During this confession to Mr Big, Mr Ledesma also described the Therrien shooting.
He said he and Mr Therrien had gotten into an argument and he was shooting at Mr Therrien’s
feet when one bullet ricocheted off the floor and hit him in the stomach.

[29] Mr Ledesma was arrested on January 17, 2012 for the murder of Mr Bain.

[30] The trial was held over 22 motion days, and 24 trial days with a jury, commencing
October 22, 2018. On February 10, 2019, the jury convicted Mr Ledesma of second degree
murder.

III. Grounds of Appeal

[31] Mr Ledesma submits the trial judge erred by:

1. failing to give reasons on a timely basis;

2. conducting an incorrect Hart analysis;

3. admitting some prior convictions and failing to provide an adequate warning to the jury
as to his previous criminal record;

4. improperly admitting evidence of the Therrien shooting;

5. misapprehending evidence about recent fabrication;

6. rendering an unreasonable verdict;

7. failing to give a Bonisteel warning;

8. misapprehending evidence about the first confession being spontaneous; and

 Page: 6

9. failing to order disclosure of jury array information.

IV. Standard of Review

[32] The standard of review on questions of law is correctness, on questions of fact is

palpable and overriding error, and on questions of mixed law and fact is palpable and overriding
error unless there is an extricable error of law: Housen v Nikolaisen, 2002 SCC 33, paras 7-37,
[2002] 2 SCR 235; R v Walle, 2007 ABCA 333, para 21, 230 CCC (3d) 181.

[33] Decisions about the admissibility of Mr Big confessions are afforded deference as trial
judges “are in the best position to weigh the probative value and the prejudicial effect of the
evidence”: Hart, para 110; R v Wruck, 2020 ABCA 270, para 60, 390 CCC (3d) 349.

[34] A Corbett decision (R v Corbett, [1988] 1 SCR 670, 41 CCC (3d) 385) is discretionary
and entitled to deference except where there has been an error in principle: R v Armstrong
(2003), 179 CCC (3d) 37, para 40, 176 OAC 319 (Ont CA); R v Wilson (2006), 210 CCC (3d)
23, para 32, 39 CR (6th) 345 (Ont CA); R v McManus, 2017 ONCA 188, para 84, 353 CCC
(3d) 493.

[35] A verdict is unreasonable or cannot be supported by the evidence if it is one that a

properly instructed jury, acting judicially, could not have reasonably rendered: R v WH, 2013
SCC 22, para 26, [2013] 2 SCR 180; R v Villaroman, 2016 SCC 33, para 55, [2016] 1 SCR
1000.

V. Analysis

Delay of written reasons post-verdict

[36] Mr Ledesma submits the lengthy delay of written reasons for decisions on the Hart (Mr
Big), Garofoli (wiretap), and Therrien applications, and the jury array challenge raise the
concern that a reasonable person would conclude the decision-making process was unfair. Thus,
the reasons ought not to be considered. However, if they are considered, he agrees they meet
the test for sufficiency of reasons set out in R v Sheppard, 2002 SCC 26, paras 28-29, 50, 55,
[2002] 1 SCR 869.

[37] The concern about a delay in reasons is two-fold: first, a person is entitled to know the
reason why he or she was convicted: Sheppard, para 55; R v Teskey, 2007 SCC 25, para 14,
[2007] 2 SCR 267. Second, there is a concern that extreme delay may undermine the perception
that the decision is based on an impartial and dispassionate view of all the evidence and, rather,
may reflect result-driven reasoning. In other words, depending on the circumstances, it may
raise the prospect of an unfair process: Teskey, para 18.
 Page: 7

[38] The presumption of judicial integrity and impartiality, encompassing notions of fairness
and regularity, is high and carries considerable weight, and properly so: Teskey, para 19; R v
Cunningham, 2011 ONCA 543, para 13, 274 CCC (3d) 338; R v Port Chevrolet Oldsmobile
Ltd, 2009 BCCA 357, para 58, 246 CCC (3d) 355. Our justice system depends on it: R v
Stephan, 2021 ABCA 82, paras 1, 107. Thus, allegations of reasonable apprehension of bias
are not easily established, nor is the presumption of integrity and impartiality easily displaced.
Even in the face of delay, that presumption remains intact absent cogent evidence showing that
a reasonable person would apprehend that the reasons constitute an after-the-fact justification
of a verdict or decision rather than the articulation of the reasons that led to it: Teskey, para 21.
The question is whether a reasonable person would conclude the decision-making process was
fundamentally fair, and that the judge decided impartially and independently: Cojocaru v BC
Women’s Hospital, 2013 SCC 30, paras 13, 16, [2013] 2 SCR 357.

[39] The need to give reasons for conviction has been stated at length in Sheppard. Fairness
and impartiality are jeopardized when the thought process leading to conviction is unclear or
unexplained, and the absence of reasons may prevent appellate review.

[40] However, the Supreme Court has acknowledged that it is often necessary to trial fairness
and efficiency for a trial judge to announce dispositions on evidentiary or Charter motions with
reasons to follow: Teskey, paras 16, 17.

[41] The question before us is whether on all the facts, the threshold to rebut the presumption
of judicial impartiality and integrity has been displaced. Did this lengthy delay in providing the
reasons for admitting the evidence obtained in the Mr Big operation amount to the type of
cogent evidence that would give rise to a reasonable apprehension that the reasons constituted
after-the-fact justification of the verdict rather than an articulation of the reasoning that led to
it?

[42] There are a number of factors to consider. Was there an apparent difficulty in reaching
a verdict or an expressed willingness to reconsider the verdict? What was the nature of the
evidence called, and was a detailed explanation required? Was there failure by the trial judge
to respond to repeated requests from counsel to give reasons and does the content of those
reasons suggest they were crafted after the decision was made? See Teskey, para 23.

[43] Additional factors can include the circumstances under which submissions were
received, a lack of explanation for the delay, or a lack of analysis in the original oral decision:
see Cojocaru, para 29; Cunningham, paras 38-41; R v KGK, 2020 SCC 7, paras 55, 62, 443
DLR (4th) 361.

[44] The significant evidentiary and Charter challenges before the trial judge are shown in
the table below, with the date of reasons filed, noting that only four sets of written reasons post-
verdict are the subject of grounds of appeal.
 Page: 8

Trial dates with commenced: concluded:

pre-trial October 22, February 10,
applications 2018 2019

Application Date Date Oral/Emailed Written Delay

Commenced Concluded Decision Reasons Filed

Jordan (s 11(b) October 22, October 22, reserved December 25, 2

Charter) 2018 2018 2018 months
application (2018 ABQB
1055)
Hart (Mr Big) October 24, November December February 12, 15
application 2018 22, 2018 31, 2018 2020 months
(2020 ABQB
117)
Garofoli November November December March 31, 2020 16
(wiretap) 22, 2018 22, 2018 31, 2018 (2020 ABQB months
application 222)
Jury array January 11, January 14, January 14, March 20, 2020 14
challenge 2019 2019 2019 (2020 ABQB months
195)
Corbett January 28, January 28, reserved March 8, 2019 1.5
(criminal 2019 2019 (2019 ABQB months
record) 88)
application
Therrien November November January 7, February 12, 13
shooting 19, 2018 21, 2019 2020 months
application 2018/January (2020 ABQB
4, 2019 117)

Notice of March 11,

appeal 2019
Appellant’s November
factum 27, 2019

[45] In our view, having regard to the totality of the circumstances, the presumption of
judicial impartiality and integrity is not displaced. We agree that the delay was extraordinary in
preparing the reasons for the rulings on the Mr Big application (15 months), the wiretap
application (16 months), and the jury array challenge (14 months). We do not condone the delay
but note that delay on its own does not establish a reasonable apprehension of bias. Moreover,
 Page: 9

while the admissibility of this evidence was important, arguably vital, to the Crown’s case,
particularly the evidence of the Mr Big operation, these are reasons for evidentiary rulings made
during the course of a trial, not reasons for a verdict. That distinction is important in considering
the factors discussed in Teskey and in considering the impact on trial fairness in this case.

[46] Some of the Teskey factors are fact-specific and are not relevant to the analysis here.
Factors that are relevant are the complexity of the facts, the amount of evidence, the volume of
authorities to be considered and the limited institutional resources. The matter was complex.
Several different evidentiary rulings were made during the course of the trial, engaging complex
facts and challenging legal principles. In addition, the trial judge was mindful that the re-trial
was necessitated in part as a result of insufficient reasons for the Mr Big rulings in the first trial.
The reasons here are detailed and thorough.

[47] The correspondence between counsel and the trial judge reflect an inquiry from trial
Crown on March 6, 2019 asking if there were going to be written reasons on some matters and
reminding the trial judge that they were awaiting written reasons on others. On November 8,
2019, appellate Crown counsel inquired about the status of the written reasons. On November
29, 2019, the trial judge replied, advising that current workload had not allowed him to attend
to the matter and he hoped to have reasons out early in the new year. On February 6, 2020,
appellate Crown wrote to the trial judge asking about the status of the reasons and advising that
the Crown’s deadline for filing its factum on appeal was February 28, 2020.

[48] The constellation of circumstances that arose in Teskey and gave rise to the concern
about apprehension of bias are not present on these facts. The delay was inordinate but does
not, without additional facts, displace the presumption of impartiality. There are no additional
facts that can be pointed to in support of the argument that the delay in reasons rendered the
trial process unfair. In our view, the reasons are complete and must be considered in assessing
the grounds of appeal raised by the appellant.

Mr Big confessions

[49] The Mr Big technique, while often successful in securing confessions and ultimately
convictions, carries an identified risk of prejudice to the accused’s character and the prospect
of unreliable coercive confessions.

[50] It is for this reason that Mr Big confessions are presumptively inadmissible: Hart,
paras 10, 85. The presumption is overcome when the Crown establishes in a voir dire that the
probative value of the confessions outweighs their prejudicial effect. The onus is on a balance
of probabilities: Hart, paras 108-110. To rebut admissibility, the defence may raise in the voir
dire the doctrine of abuse of process to deal with the issue of police misconduct in the Mr Big
operation. The defence must establish an abuse of process: Hart, paras 86, 89.
 Page: 10

[51] In assessing probative value versus prejudicial effect, the trial judge does not decide
whether the confession is true; rather, this process involves limited weighing of the evidence
for the purpose of deciding “whether the evidence is worthy of being heard by the jury”: Hart,
paras 95, 98, 145-149. The trial judge only decides threshold reliability: Hart, paras 98, 100.

[52] With respect to probative value, the trial judge must assess the reliability of the Mr Big
confessions in that the probative value of the confessions come from their reliability. The trial
judge must examine all the circumstances that led up to the making of the confessions. Factors
that may assist in the assessment of reliability include the length of the Mr Big operation, the
number of meetings and the nature of the relationship between the accused and the undercover
officers, what inducements if any were offered, the presence of threats and the personal
circumstances of the accused. A trial judge must also consider the confession itself to look for
“markers of reliability”. Reliability is enhanced if the confessions led police to discover new
evidence, identify elements of the crime not made public, or accurately describe details of the
crime that only the perpetrator would know: Hart, para 105.

[53] Prejudicial effect is concerned with trial fairness. The trial judge must assess the moral
and reasoning prejudice these confessions raise. Moral prejudice involves the jury’s temptation
to use bad character evidence for prohibited propensity reasoning, including the involvement
in simulated crimes of violence or a demonstrated past history of violence. Reasoning prejudice
may arise from the length of the Mr Big operation, the amount of time that must be spent
detailing the operation, and controversy over whether an event happened or a conversation
occurred, all of which may distract the jury from the charges: Hart, para 106.

[54] With respect to abuse of process, the trial judge looks for coercion of a confession;
police violence, or threats of violence; taking advantage of an accused’s vulnerabilities; placing
the accused’s or the public’s safety at risk; or other factors which offend the community’s sense
of fair play and decency: Hart, para 115-118, 148-149.

[55] Mr Ledesma testified in the Hart voir dire, denied any involvement in the murder of Mr
Bain, and said he lied to the detective during the Mr Big operation. The trial judge did not
believe Mr Ledesma when he said he had been privately told of confirmatory particulars by his
acquaintance, Mr Kayseas, particularly since Mr Kayseas maintained to the police that he had
never spoken to anyone about the events of the dates in question and he did not have “any sort
of relationship” with Mr Ledesma.

[56] Mr Ledesma submits the trial judge erred in admitting the Mr Big confessions, in that
he misapprehended the voir dire evidence, erred in identifying evidence as confirmatory, erred
in his assessment of the appellant’s credibility, and failed to balance actual prejudice to the
appellant.
 Page: 11

Misapprehension

[57] Mr Ledesma says the trial judge misapprehended that it was only in Mr Kayseas’ second
statement to police that he said he did not speak to anyone about these events. He says the trial
judge’s assessment of these statements was crucial to rejecting his evidence on how he learned
of the calibre of the firearm, so it related to his credibility on an important issue. The trial judge
characterized Mr Kayseas’ evidence by saying the most he told police was that he saw two
small blue marks on Mr Bain’s back when he saw him lying on the ground outside the pub. He
stated that Mr Kayseas “never described the marks as bullet holes, let alone offering an opinion
of the calibre of weapon that may have caused the blue marks.” Even if the trial judge did
indicate Mr Kayseas made a disclaimer in both statements to police, that had no impact on his
conclusion that particulars about the number of shots fired and the weapon used did not
originate with Mr Kayseas.

[58] Mr Ledesma also says the trial judge erred in describing his confession of December 2,
2011 as “spontaneous”, as spontaneity is inconsistent with the appellant being the subject of a
stimulus scenario in a Mr Big investigation. The trial judge did not misapprehend the evidence
when he said the first confession was “spontaneous”. What he clearly meant was that the
statement was instigated by Mr Ledesma “without any prompting”. Use of the word
“spontaneous” does not negate the fact that the first confession followed a stimulus event, but
goes only to the fact that it was Mr Ledesma who first introduced and led the discussion
throughout.

[59] The trial judge’s error with respect to the date the Crime Stoppers video was released to
the public, which he said was December 15, 2011, was not material. In fact, it was initially
released on November 29, 2011 and uploaded to YouTube on December 15, 2011.

[60] We see no misapprehensions of evidence that had any impact on the admissibility of
the Mr Big confessions.

Credibility

[61] Mr Ledesma further submits the trial judge improperly impugned his credibility in
finding his evidence of a chance encounter with Mr Kayseas was “rehearsed and based entirely
on information cobbled together from Kayseas’ statements to police and evidence that he
provided in the Accused’s first trial.” Mr Ledesma says that determination was impermissible
and could only have been made by using his s 7 Charter right to disclosure as a trap.

[62] However, the trial judge’s role was not to decide whether Mr Ledesma was telling the
truth, but only to determine the admissibility of the evidence. In assessing Mr Ledesma’s
evidence in the voir dire, the trial judge said he approached his evidence “with great caution”
in light of his submission that he lied throughout the undercover operation. He found Mr
 Page: 12

Ledesma’s claim of having learned from Mr Kayseas the number of shots fired and the make
and model of the firearm was not plausible.

[63] The mere fact that an accused person’s testimony conforms to disclosure may not be
used as a basis to reject his evidence, but in this case the trial judge found that Mr Ledesma’s
testimony was fabricated and structured to meet the allegations he was facing. His passing
reference to disclosure was simply a possible source to explain the fabrication and is not a
reason to overturn his decision on admissibility of the Mr Big statements.

Confirmatory evidence

[64] The trial judge also reviewed the evidence that he found was confirmatory and went to
the truthfulness or accuracy of Mr Ledesma’s confessions in a material way. The trial judge
properly acknowledged that confirmatory evidence, although not a necessary requirement, is
an important indicator of reliability, and the greater the concerns raised by the circumstances in
which a confession is made, the more important it will be to find markers of reliability: Hart,
para 105. He recognized that some details, including that Mr Ledesma and his accomplices had
stolen 15 lb of marijuana and $10,000 after shooting Mr Bain, were not confirmed
independently nor reasonable.

[65] Mr Ledesma says not all the evidence listed by the trial judge as corroborative of his
confession to Mr Big was indeed corroborative of material aspects, relying on R v Bradshaw,
2017 SCC 35, paras 44-45, [2017] 1 SCR 865. We disagree that Bradshaw is applicable. As
we said in R v Wruck, 2020 ABCA 270, paras 69, 76-78, Hart elaborates upon the party
admissions exception to the hearsay rule, not when corroborative evidence may be used to
assess threshold reliability in the principled approach to the admission of hearsay statements
governed by Bradshaw. Mr Ledesma testified on the voir dire, so the inquiry is directed to
confirmatory rather than corroborative evidence. His statements were sought to be admitted
into evidence against him and not some other party, thus invoking the traditional party
admissions exception to the hearsay rule. The Court is required to look to the confession itself
for markers of reliability to determine whether the probative value of the statements outweighs
the prejudicial effect: Hart, paras 105, 108-110.

[66] Whether evidence can be confirmatory is a common sense analysis of whether the
evidence can provide comfort to the trier of fact that the witness is telling the truth: R v Klaus,
2019 ABCA 483, para 10, citing R v Khela, 2009 SCC 4, para 39, [2009] 1 SCR 104.
Confirmatory evidence need not directly implicate the accused or confirm the Crown witness’
evidence in every respect, but should “be capable of restoring the trier’s faith in the relevant
aspects of the witness’ account” (emphasis in original): R v Kehler, 2004 SCC 11, paras 12-13,
[2004] 1 SCR 328, aff’g 2003 ABCA 104, 178 CCC (3d) 83.
 Page: 13

[67] Mr Ledesma’s description of entering the bar was consistent with eyewitness accounts.
His description of his visit to the Mac’s store was consistent with the video recordings. His
statements made to the police were consistent with statements intercepted in wiretap
conversations. His statement to the police that Mr Bain was shot twice was confirmed by the
autopsy report. Such points are materially confirmatory because they support an inference that
Mr Ledesma was telling the truth when he confessed to the murder of Mr Bain.

[68] The trial judge referenced the wiretap conversations that confirmed details of the date,
time, particulars, and place of the murder. Mr Ledesma’s intercepted conversations with Mr
Obey, Mr Ledesma’s girlfriend, his mother, and his cousin Paul confirmed key aspects of the
confessions, including that if the police had his DNA he would be “going down for murder”,
his responsibility for the accidental shooting of Mr Therrien, and his preoccupation with Mr
Obey cutting his hair and disposing of his red toque.

[69] The trial judge considered the level of detail contained in the confessions, the
circumstances of the statements, and surrounding evidence. He did not err in determining there
existed evidence confirmatory at law of Mr Ledesma’s confessions to the police.

Failure to balance

[70] Mr Ledesma says the trial judge conducted a “theoretical instead of actual balancing”
of probative value versus prejudicial effect.

[71] The trial judge carefully considered probative value against prejudicial effect of the
confessions and was satisfied that this case is one in which “the value of the evidence is worth
its cost”. He said any concerns with respect to prejudicial effect could be addressed by limiting
instructions, which he gave.

[72] We see no merit to this submission.

Abuse of process

[73] The trial judge’s reasons thoroughly address the issues of potential police misconduct,
the use of stimulus scenarios, police acquiescence in Mr Ledesma’s possession of the .38 calibre
handgun, evidence of potential police illegality during their “role playing”, and submissions
that the police had dissuaded Mr Ledesma from following his lawyer’s advice. The trial judge
rejected defence submissions on these issues.

[74] Release of information immediately before both the first and second confessions
constituted stimuli to induce a confession, but these stimuli did not contain false information
intended to mislead Mr Ledesma, Mr Big was never portrayed as “infallible”, and the trial judge
did not accept that Mr Ledesma was led to believe the justice system could not be trusted.
 Page: 14

[75] The trial judge found that the detective’s impromptu plan to ensure Mr Ledesma did not
have access to the gun the evening at the strip club was reasonable, though he was troubled by
the decision to leave the weapon in Mr Ledesma’s possession for a further week, since that left
the public at risk. However, he was not persuaded the police conduct amounted to an abuse of
process that would shock the conscience of the community. It was impractical in the context of
the undercover operation for the officers to have taken the handgun from Mr Ledesma at that
time.

[76] Moreover, Mr Ledesma failed to discharge his onus to demonstrate that the simulated
crimes by police violated the community’s sense of decency and fair play. Any simulated
violence in the various scenarios during the Mr Big operation did not coerce or overbear Mr
Ledesma’s will. He was enthusiastic about the violence, not intimidated by it at all, and he was
not unfamiliar with violence, as he had a significant criminal record including multiple
convictions for firearms-related offences, offences of violence, and offences contrary to the
administration of justice. The trial judge was satisfied the police had never explicitly or
implicitly advised Mr Ledesma to ignore legal advice.

[77] In the result, the operation of the Mr Big investigation did not violate the community’s
sense of decency and fair play or amount to an abuse of process. Police acted with diligence,
skill, and care throughout the operation and there was no evidence police tactics overcame Mr
Ledesma’s will.

Cumulative analysis

[78] We see no error in the detailed Hart analysis conducted by the trial judge. After review
of the issues and submissions involved in balancing probative value and prejudicial effect, and
considering the potential for abuse of process, the trial judge concluded that it was fair and
reasonable to leave the Mr Big confessions with the jury. The trial judge properly balanced
probative value versus prejudicial effect, reliability, confirmatory evidence, and moral and
reasoning prejudice. He properly determined allegations of abuse of process and properly
conducted a final cumulative analysis. His considered determination to admit the confessions
into evidence is entitled to deference and we find no basis to interfere with his ruling. The test
for admissibility is threshold admissibility only and we see no error in the trial judge having
left this evidence with the jury.

Bonisteel warning

[79] Mr Ledesma submits the trial judge should have included a sharp warning to the jury
about the inherent unreliability of Mr Big statements as outlined in R v Bonisteel, 2008 BCCA
344, paras 38, 49, 66, 72,77, 236 CCC (3d) 170. Bonisteel holds that jurors should be cautioned
against propensity reasoning. Evidence of bad acts conducted during a Mr Big operation should
not be used as evidence that it is more likely than not that the offence was committed.
 Page: 15

[80] In R v Mack, 2014 SCC 58, paras 44-50, [2014] 3 SCR 3, the Supreme Court addressed
the evidentiary concerns that arise in a Mr Big operation, reliability and bad character evidence.
The Court made clear that even in cases where Mr Big confessions are admitted into evidence,
concerns with reliability and prejudice will persist, and it therefore falls to the trial judge to
properly instruct the jury on how to approach the confessions in light of these concerns.

[81] The Court rejected the submission that a Bonisteel warning is required in all Mr Big
cases, saying there is no “magical incantation” or “prescriptive formula” that trial judges must
use in instructing juries. What counts is the substance of the charge, and the nature and extent
of the instructions required will vary from case to case.

[82] In place of the Bonisteel warning, the trial judge reminded the jury that a Mr Big
operation was specifically designed to elicit a confession from Mr Ledesma. He told them that
accused persons sometimes falsely confess to a crime they have not committed, that false or
unreliable convictions have been responsible for wrongful convictions, and that the idea of
someone incriminating themselves when they are innocent may seem illogical but that the jury
had to put themselves in Mr Ledesma’s place when the confessions were made to try to
understand his behaviour. He said the context of these confessions “was an elaborate,
manipulative scheme created by the police in an effort to try to get him to confess”, and that he
was provided with incentives, including financial reward, status, security, opportunities for
advancement and protection, all of which required that the jury approach the confessions with
“great care and caution.”

[83] Further, he instructed the jury on how they could and could not use evidence of bad
character.

[84] On the functional approach endorsed in Mack, the trial judge provided the jury with the
necessary instructions to assess the Mr Big confessions.

Corbett application

[85] Mr Ledesma says the trial judge erred both in admitting into evidence his convictions
for prior firearms offences and in failing to correctly instruct the jury on the proper use of those
convictions.

[86] Prior to testifying, Mr Ledesma sought editing of his criminal record by entirely
removing certain convictions, including six firearm convictions from 2009. As the murder
involved a firearm, he argued the jury would engage in propensity reasoning by inferring he
had a gun at the time of the murder. He said the firearms offences were too similar to the offence
here and too remote in time to his credibility in 2019.
 Page: 16

[87] Exercising his discretion, the trial judge edited one conviction and eliminated three
others from Mr Ledesma’s criminal record, but not his firearm convictions. Defence counsel
conducted a direct examination on only some of Mr Ledesma’s criminal record.

[88] It is settled law that “[t]he fact that a witness has been convicted of a crime is relevant
to his trustworthiness as a witness” and that “prior convictions do bear upon the credibility of
a witness”: Corbett, 685-86. The probative value of a criminal record depends on the nature of
the convictions; offences of dishonesty or against the administration of justice have greater
probative value related to testimonial trustworthiness than other offences: R v Charland, 1996
ABCA 301, paras 5-6, 35-36, 110 CCC (3d) 300, aff’d [1997] 3 SCR 1006, 120 CCC (3d) 481.

[89] Convictions for violence may be relevant to credibility and “in the context of a lengthy
criminal record, such prior convictions have probative value that is greater than trifling because
a jury could reasonably conclude that the convictions reflect a disregard for the laws and rules
of society, making it more likely that the person who harbours such attitudes would lie”:
Charland, para 36. Proximity to the time of testimony enhances probative value, whereas
remoteness causes the probative value to decline: Charland, paras 10-11; and fairness may
require this information be made available to the jury where the defence amounts to a credibility
contest: Corbett, 745.

[90] In his reasons admitting the record, the trial judge reviewed Corbett in detail as to the
underlying rationale of s 12 of the Canada Evidence Act, RSC 1985, c C-5, allowing cross-
examination on a prior criminal record to assist the jury in assessing the credibility of a witness,
ensuring that the jury is not left with a misleading picture, and giving the jury all of the
information, subject to a clear direction as to the limited use to be made of such information.
He summarized the non-exhaustive factors to be considered in the exercise of discretion to
exclude certain prejudicial criminal convictions. He also quoted at length from this Court’s
decision in Charland.

[91] Mr Ledesma had a lengthy criminal record including firearms offences, evidencing his
familiarity with firearms and his disregard for the laws and rules of society. Additionally, the
defence which was advanced challenged the credibility of the detective and Mr Big, and placed
Mr Ledesma’s credibility, along with theirs, directly in issue.

[92] We do not disturb this discretionary finding of the trial judge in admitting into evidence
Mr Ledesma’s prior firearms convictions. It is entitled to deference, and we see no error in him
having allowed direct examination of Mr Ledesma on his criminal record.

[93] As Mr Ledesma says in his factum, in the pre-charge meeting defence counsel initially
suggested the jury instruction on Mr Ledesma’s firearm offences was too broad and invited
speculation by the jury as to how exactly they should consider that evidence. However, as Mr
Ledesma's factum also points out, trial counsel then withdrew the request, saying that asking
 Page: 17

the Court to change the wording would be an attempt to go behind the ruling that had been
made. The appellant says ultimately whether defence counsel objects or not, the jury charge is
the responsibility of the trial judge, citing R v Jacquard, [1997] 1 SCR 314, 113 CCC (3d) 1.

[94] Mr Ledesma then submits that although the trial judge instructed the jury they could use
the 2009 convictions in conjunction with their assessment of Mr Ledesma’s expressed fear of
violence by the criminal organization, he did not instruct them on how they could do that
without engaging in propensity reasoning.

[95] A jury must be warned against propensity reasoning: Corbett, 694, and a jury must
be instructed as to the value and effect of the evidence, and how it is to apply to their findings:
R v JB, 2019 ONCA 591, para 133, 378 CCC (3d) 302. The general principle is one of
inclusivity: Corbett, 691.

[96] The trial judge said the evidence of Mr Ledesma’s firearms offences could be used only
“for a very limited purpose,” to consider his “familiarity with guns” and their assessment of his
explanation “for lying to the police on account of his fear of violence being directed towards
him.” He also explained to the jury on two occasions how they were not permitted to use
evidence of the prior convictions.

[97] Again, we see no error in the trial judge’s charge to the jury on the use to be made of
this evidence. We do not agree that the trial judge’s instructions invited the jury to engage in
propensity reasoning; rather, he explained clearly how the jury could and could not use this
evidence.

Therrien shooting

[98] The defence applied to exclude some but not all of the evidence of the Therrien shooting.
The defence suggested that all the jury needed to know was that the police found the .22 calibre
handgun in a field and that Mr Ledesma’s DNA was found on bloodstains located on the trigger
and butt of the firearm. The rest of the evidence of the Therrien shooting should be excluded.
The defence, however, also contended that any evidence of violence outside the Therrien
shooting incident should be included, so as to allow Mr Ledesma to advance the defence that
he felt compelled to confess as a consequence of his exposure to the violence displayed during
the course of the operation.

[99] The basic test of relevance in a criminal matter has two components: logical relevance
and legal relevance. Logical relevance is established where the evidence tends to establish a
fact in issue: R v Mohan, [1994] 2 SCR 9, 20-21, 89 CCC (3d) 402. Legal relevance depends
upon the probative value of the evidence outweighing its prejudicial effect: R v Seaboyer,
[1991] 2 SCR 577, 610-11, 66 CCC (3d) 321. A matter that is logically relevant may still be
excluded “if its probative value is overborne by its prejudicial effect, if it involves an inordinate
 Page: 18

amount of time which is not commensurate with its value or if it is misleading in the sense that
its effect on the trier of fact, particularly a jury, is out of proportion to its reliability”: Mohan,
21. The trial judge has a duty to charge the jury in this regard, and to warn them against the
improper use of the evidence: R v SGG, [1997] 2 SCR 716, para 65, 116 CCC (3d) 193.

[100] The trial judge held the evidence of the Therrien shooting to be logically relevant and
considered the probative value to be high because it showed Mr Ledesma possessed a firearm
of the same calibre as the one used in the Bain murder, a .22 calibre Ruger pistol, “disposed of
in a field and subsequently found by the police” on which his DNA had been identified after
the Therrien shooting. Additionally, the evidence about the shooting was consistent with the
story told by Mr Ledesma in his confession to Mr Big and to his cousin Paul.

[101] Admission of evidence of the Therrien shooting by the trial judge was a determination
of mixed law and fact. The decision of the trial judge was discretionary and is owed deference.
We see no error in this determination.

Re-examination

[102] Mr Obey was called by the defence on his knowledge of the Therrien shooting. In direct
examination his evidence was that he shot Mr Therrien at the house party and later threw the
.22 calibre firearm into a bush. He said Mr Ledesma had nothing to do with the shooting of Mr
Therrien and was not present when it took place. He said he was highly intoxicated when he
went to the police station to give a statement.

[103] On cross-examination he could not remember anything he had told the police. However,
when he watched the video recording of his police statement, he said he had lied to them about
who had shot Mr Therrien at the house party on March 12, 2011. His statements on direct and
cross-examination were clearly incompatible and the Crown submitted this challenged his
credibility.

[104] Mr Ledesma argued at trial he should have been allowed to re-examine Mr Obey to
show that in his police interview, Mr Obey did not identify him as the person who shot
Mr Therrien. In rejecting an application to re-examine, the trial judge made no error. Neither
party claimed at trial that Mr Obey’s police statement was believable, and re-examination would
only have permitted details about a police statement which the witness said he did not remember
and was a lie. Nothing in a re-examination would assist the jury in determining his credibility,
the only point of the Crown’s cross-examination.

[105] We find no error in the trial judge’s decision not to allow re-examination of Mr Obey
on this point.
 Page: 19

Unreasonable verdict

[106] As indicated above, a verdict is unreasonable or cannot be supported by the evidence if

it is one that a properly instructed jury, acting judicially, could not have reasonably rendered:
WH, para 26; Villaroman, para 55. A verdict may be unreasonable if an essential inference or
finding of fact is “plainly contradicted by the evidence relied on by the trial judge in support of
that inference or finding” or “is shown to be incompatible with evidence that has not otherwise
been contradicted or rejected by the trial judge”: R v RP, 2012 SCC 22, para 9, [2012] 1 SCR
746.

[107] Mr Ledesma says it was unreasonable to find him guilty of second degree murder and
at most he ought to have been found guilty of manslaughter. He says the evidence was that Mr
Bain was shot twice in the back, with the bullets entering at a downward angle from right to
left.

[108] Firing a .22 calibre Ruger pistol twice into someone’s back, even if intended to be low
in the back, engages the common sense inference that “a sane and sober person intends the
reasonable and probable consequences of his acts”: R v Walle, 2012 SCC 41, para 36, [2012] 2
SCR 438. This is a permissible inference that may be drawn in appropriate circumstances
though not a presumption.

[109] The court said in R v Bains (1985), 7 OAC 67, para 27, leave to appeal refused [1985]
1 SCR v:

All firearms are designed to kill. A handgun is a particularly insidious and lethal
weapon. It is easy to carry and conceal, yet at close range, it is every bit as deadly
as a .50 calibre machine gun. It follows that when, at close range, a handgun is
pointed at a vital portion of the body of the victim and fired, then in the absence
of any explanation the only rational inference that can be drawn is that the gun
was fired with the intention of killing the victim. No other reasonable conclusion
can be reached: a deadly weapon was used in the very manner for which it was
designed – to cause death. It is appropriate to conclude that in these
circumstances the gun was fired in order that it might fulfill its design function
and kill. An element of surprise arises only if death does not occur.

We find no error in leaving second degree murder with the jury as a potential verdict in
this case. It is a verdict which a properly instructed jury, acting reasonably, could have
reached, and did.
 Page: 20

Jury array disclosure

[110] Mr Ledesma submits the trial judge should have ordered disclosure of the province’s
efforts to compile a representative jury roll, dismissed the current jury, and ordered a new jury
selection.

[111] In R v Kokopenace, 2015 SCC 28, paras 2, 39, 51, 61, 70, [2015] 2 SCR 398, the
Supreme Court set out the appropriate legal test for jury representativeness. It said that
representativeness “focuses on the process used to compile the jury roll, not its ultimate
composition.” Therefore, the fair opportunity for a broad section of society to participate in the
jury process will be met when the state makes reasonable efforts to compile the jury roll using
random selection from lists that draw from a broad section of society, and deliver jury notices
to those who have been randomly selected. There is no right to a jury roll of a particular
composition, nor to one that proportionately represents all the diverse groups of Canadian
society. When this process is followed, the accused’s Charter right to a representative jury will
be respected. That statement of the law was followed by this Court in R v Newborn, 2019
ABCA 123, 375 CCC (3d) 264, leave to appeal refused [2020] SCCA No 282. This Court said
the broad principles are that an accused is entitled to a fairly chosen representative jury, not one
with a particular composition; the focus is on the process to select the jury, which must include
the delivery of notices to citizens randomly selected from broadly based sources; individuals
with varied perspectives should have the opportunity to be included, and the deliberate or
systemic exclusion of segments of the population is not acceptable; and some limits on jury
eligibility are permissible.

[112] At Mr Ledesma’s application for disclosure, the Crown called the supervisor of jury
management. Her evidence was exceptionally detailed as to the selection of the jury array, with
random selection of the original 100,000 names and random downloading of the names of 1,099
persons sent jury summonses, 793 of which were effectively served, and the reasons why
individuals were excused from jury service.

[113] On that basis, the trial judge found the state had made reasonable efforts to compile the
jury roll, using random selection from lists drawn from a broad cross-section of society, and
deliver jury notices to those who had been randomly selected.

[114] As to the disclosure application, the trial judge found that Mr Ledesma had failed to
establish the necessary basis for a concern about the process employed. We see no error on the
evidentiary record before the trial judge.

[115] We find no error in the determination of the trial judge not to adjourn the trial, dismiss
the current jury, order a new jury selection, and produce copies of all juror summonses and
records with respect to jury selection.
 Page:21

VI. Conclusion

[116] The appeal is dismissed.

Appeal heard on November 12, 2020

Memorandum filed at Calgary, Alberta

this 21st day of April, 2021

Authorized to sign for: Paperny J.A.

FILED
21 Apr 2021

RM
Hughes J.A.

Feehan J.A.
 Page: 22

Appearances:

A.S. Barg
for the Respondent

P.J. Milczarek
for the Appellant