SCC narrows scope of Mr. Big sting confessions
OTTAWA – The Supreme Court of Canada has ruled that confessions extracted through so-called Mr. Big police sting operations must be regulated more carefully in order to be admissible in court.
The ruling came today in the case of a Newfoundland man who was initially convicted in the first-degree murder of his three-year-old twin daughters.
The conviction of Nelson Hart was later overturned in 2007 by the province’s appeal court, but only by a 2-1 margin.
In a majority decision, the Supreme Court ruled that Hart’s Charter rights may have been violated and that Canada’s legal system does not adequately protect the rights of people who are subject to Mr. Big sting operations.
It was left up to the Crown to decide whether Hart faces a new trial, but his confession from the sting operation cannot be used.
The ruling by the land’s highest court calls into question the convictions of Canadians behind bars across the country.
The Mr. Big investigative technique involves undercover police officers who recruit a suspect to a criminal organization while posing as gangsters with the aim of obtaining a confession to a crime.
At trial, court heard that Hart showed undercover officers how he drowned his daughters Krista and Karen by shoving them into the waters of Gander Lake, Newfoundland.
“Mr. Big operations are a creative and sometimes useful law enforcement technique, but the courts must carefully police their boundaries lest they stray from being useful strategies into ploys that allow the state to manipulate and destroy the lives of individuals who are presumed to be innocent,” the court ruled.
“There is an absence of meaningful judicial safeguards respecting the admission of incriminating statements procured through Mr. Big Operations,” Toronto criminal lawyer Roots Gadhia tells AdvocateDaily.com
“These are undercover operations where officers masquerade as members of organized criminal enterprises seeking to recruit a suspect or accused into their organization with the objective of eliciting incriminating statements from the target of the operations,” says Gadhia. “During these operations, undercover agents provide various inducements, make threats and/or engage in vigorous discussions that are the functional equivalents of an interrogation.
“Such operations, and the means employed, undermine two core values of the criminal justice system; the voluntary nature and reliability of confessions,” Gadhia tells the online legal news service. “It suggests that one way in which judges can scrutinize the admission of incriminating statements elicited from Mr. Big operations is through the police trickery arm of the Common Law Confessions Rule. Given the highly subjective standard of the current test which assesses whether the ‘community’ would be shocked by the conduct of the state actors in using trickery, the Supreme Court of Canada’s decision ‘attempts’ to balance the use of such a technique by placing the onus on the Crown to show that the evidence elicited is more probative than prejudicial.
“In effect, in a circumstance where the confession goes directly to the heart of the issue, is corroborated with actual facts and details would likely be admissible unless it’s shown that the technique crossed the line by those involved would potentially amount to an abuse of process. In which case, it would seem that the onus shifts to the defence to show that the threats, inducements and trickery crossed the line. Alan Smith for example, a recent acquittal this past week prior to the SCC judgement, may very well have been admissible if the Crown was able to overcome on a balance of if probabilities that that the probative value of the confession outweighs its prejudicial effect and in addition, if the defence was unable to show that it crossed the line,” Gadhia tells AdvocateDaily.
“In assessing the reliability the courts must look into the circumstances of how the confession was elicited and if there is misconduct on the part of the police,” says Gadhia.
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