Confessions obtained through the popular “Mr. Big” law enforcement technique raise the danger of wrongful convictions and should not be routinely admissible in court, the Supreme Court of Canada ruled in a decision released Thursday.
The controversial Canadian law enforcement technique, used more than 350 times since the early 1990s, involves recruiting the suspect to join a fake criminal organization and confess their crime to the fictitious crime boss “Mr. Big.”
The Supreme Court of Canada decision does not ban the tactic, but it places increased scrutiny on the reliability of the confession as well as police conduct during the investigation.
“The Mr. Big technique comes at a price,” wrote Supreme Court Justice Michael Moldaver in the majority decision.
The operations can be abusive and produce unreliable confessions, he wrote.
However, he also noted they can produce “valuable evidence.”
“In responding to the dangers posed by Mr. Big confessions, we should be wary about allowing serious crimes to go unpunished,” he wrote.
The court ruled that the Crown must prove that the confessions are admissible by meeting a two-stage test.
The trial judge must first determine that the confession is reliable and does not unfairly prejudice the accused. Then the judge must examine the police conduct during the investigation — considering whether the confession was coerced through violence or abuse, or by taking advantage of vulnerabilities like mental health problems or substance addictions.
In the case before the court, it is clear that the confessions should not have been admissible at trial, Moldaver wrote.
The concurrent opinion from Justice Andromache Karakatsanis goes further. “This case is more akin to entrapment,” she wrote. “I am greatly troubled by the extreme lengths to which the police went to pursue the respondent, exploiting his weaknesses in this protracted and deeply manipulative operation.”
There was not enough evidence to charge Newfoundland man Nelson Hart with murder after his twin 3-year-old daughters Krista and Karen drowned in a lake 12 years ago so the RCMP launched an elaborate sting to get a confession.
The gambit, beginning in 2005, involved months spent recruiting Hart into a fake violent criminal organization, paying him $16,000 for simulated crimes such as smuggling stolen goods, flying him around the country, putting him up at luxurious hotels and dining at fancy restaurants.
The organization, and the two undercover officers who befriended Hart, an unemployed, isolated man with a Grade 5-level education, became the focal point of his life. He repeatedly told them he loved them, that they were his brothers and even said he would leave his wife if that’s what it took to join the organization.
Hart allegedly made three confessions — one to an officer posing as his friend, one to Mr. Big and another during a re-enactment of the crime.
Hart initially told Mr. Big what he told the police — that he had an epileptic fit that night and didn’t know what happened — but after being called a liar he eventually said that he pushed the girls into the water.
Two days later, he re-enacted the events on the wharf at Gander Lake, where the twins drowned.
The confessions were ruled admissible at Hart’s 2007 trial, where a jury found him guilty on two counts of first-degree murder.
However, he was granted a new trial in 2012 by the Newfoundland and Labrador top court by a split 2-1 decision which found two of three confessions “doubtfully reliable (and) coerced” and a violation of Hart’s Charter rights.
“In my view, these circumstances, considered as a whole, presented the respondent with an overwhelming incentive to confess — either truthfully or falsely,” Moldaver wrote in the decision, which found all three confessions inadmissible. He added that the confessions were both inconsistent and had no evidence confirming them.
The majority of the court left it up to the Crown to determine whether they would proceed with case since but suggested that without the confessions there was little evidence for a jury to consider.
Earlier this week, an Oshawa court acquitted Alan Smith of the 1974 murder of Beverly Smith, his former next door neighbour after the judge declared his confessions, obtained through a “Mr. Big” sting inadmissible, violating Smith’s Charter rights and constituting an abuse of process.
The tactic produced confessions so unreliable you could “drive a Mack truck” through all the holes, the judge said.