Nelson Lloyd Hart was the target of a Mr. Big sting following the drowning deaths of his twin daughters. Photo: Tara Brautigam/Canadian Press file photo Mr. Big stings — the controversial undercover police operations designed to draw confessions from suspects — run the risk of becoming abusive and producing unreliable evidence, Canada’s top court ruled Thursday, as it laid out new rules to protect those targeted by them.
While the technique has proven valuable and resulted in hundreds of convictions, confessions can sometimes come from “powerful inducements” and “veiled threats,” the Supreme Court of Canada said in its long-awaited decision.
Trial judges must consider the circumstances in which the confession was made, including the extent of inducements offered and the presence of threats, as well as the sophistication and mental health of the accused, the top court said.
Trial judges must also examine the confession for “markers of reliability,” including the level of detail and whether the accused has provided details of the crime that have not been made public.
“Wrongful convictions are a blight on our justice system. We must take reasonable steps to prevent them before they occur,” Justice Michael Moldaver wrote for the majority.
In a Mr. Big operation, officers posing as members of a criminal organization befriend the suspect — typically a murder suspect — and then gain the suspect’s trust with money, booze and companionship. They get the suspect to carry out jobs for the group and slowly involve him in staged criminal acts, such as money laundering and drug trafficking.
Eventually, a meeting is set up with the group’s boss, Mr. Big, designed to get the suspect to cough up details of a past crime. The suspect might be told that police are onto him and he needs to tell the boss everything. Or the suspect could be told he needs to share his past because it’s the only way the organization can ensure his loyalty.
The willingness of the accused to join a criminal organization and participate in simulated crimes can have a prejudicial effect on a jury, the court said. It is up to the Crown to show, on a balance of probabilities, that the probative value of the confession outweighs the prejudicial effect of the “bad character” evidence, the court said.
Judges must also be vigilant for police abuses, the court said, suggesting that police cannot be allowed to “overcome the will of the accused and coerce a confession.” Violence or threats of violence are unacceptable; so too are operations that prey on a suspect’s vulnerabilities, such as mental health problems or youthfulness.
Thursday’s decision stemmed from the case of Nelson Lloyd Hart, convicted in 2007 in Newfoundland of two counts of murder in the drowning deaths of his twin three-year-old daughters, Krista and Karen.
Hart, who has a Grade 5 education and was living on social assistance, was the target of a four-month Mr. Big sting. Officers pretending to be part of a criminal gang befriended Hart and assigned him to be a courier for the group. They paid him $16,000 cash, put him up in fancy hotels and fed him nice meals. Hart came to view them like “brothers.”
When it came time to meet the group’s boss, Hart initially denied involvement in his daughters’ deaths, insisting he had suffered an epileptic seizure — the same story he had originally told police. But the boss refused to accept Hart’s answer, repeatedly telling him, “Don’t lie to me.”
Hart changed his answer and said he had drowned his daughters because he was worried his brother would gain custody of them. A couple days later he took an undercover officer to the scene of the drowning and explained how he had pushed his daughters into the water.
In 2012, a majority of the Supreme Court of Newfoundland and Labrador’s Court of Appeal overturned Hart’s conviction and ordered a new trial, questioning the reliability of his confession. The Crown appealed to the Supreme Court of Canada.
The top court Thursday said that the financial and social inducements provided to Hart raised serious doubts about the reliability of Hart’s confession. There was also significant potential for prejudice. After all, here was a man who had bragged about killing his children.
“It would be unsafe to rest a conviction on this evidence,” the court said. However, it left up to the Crown to decide whether to have a new trial.
While Justice Thomas Cromwell agreed with the bulk of the majority’s decision, he said the admissibility of Hart’s statements should be determined at a new trial.
Mr. Big stings have come under increasing scrutiny in recent years. In June, an Ontario Superior Court judge threw all out the evidence gathered by police in a Mr. Big sting against Alan Dale Smith, who was charged in a 1974 murder.
The Toronto Star reported that the judge said that the sting carried out by Durham Regional Police elicited a confession from Smith with holes so big you could “drive a Mack truck” through them.
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