The Supreme Court of Canada struck a significant blow to Law Enforcement today with a ruling that may have essentially killed covert Police operations commonly called “Mr Big” investigations.
The Court upheld a lower court ruling that ordered a new trial for murder suspect Nelson Lloyd Hart. Hart was charged with two (2) counts of First Degree Murder in connection with the August 4, 2002 drownings of his twin three (3) year old daughters.
The ruling means Hart will likely never be held accountable for his heinous crime.
The circumstances of the killings were not complex. On the date in question, Hart had taken the girls to play on swings at a park near their home in Gander, Newfoundland. Once they arrived, things went horribly wrong. First Responders would subsequently find the girls floating in a lake near the park.
In all, Hart provided Police two improbable explanations regarding how the deaths occurred. Neither explanation satisfied the investigators who believed Hart was responsible for the unthinkable crime. Unfortunately, Hart refused to crack during his interrogations and no evidence existed to facilitate charges. As a result, Police decided to make Hart the target of a “Mr Big” operation.
A “Mr Big” operation is a covert undercover Police sting designed to recruit a suspect into a fictitious criminal organization to gain his trust and ultimately, extract a confession. The primary goal of the operation is to secure information from the killer that only someone involved in the crime would know.
The “Mr Big” technique is a Canadian invention that was used by Police as far back as 1901. Its modern use began in the 1990’s and since 2008, the investigative technique has been used as many as three hundred and fifty (350) times.
According to the ruling, “To date, there are no established wrongful convictions stemming from its use.” (Page #42)
That didn’t stop the Supreme Court from identifying three (3) significant areas of concern regarding “Mr Big” investigations;
- Potential for Police Misconduct
Because of the these concerns the Supreme Court is of the opinion the law as it stands does not give sufficient protection to accused persons who confess during a “Mr Big” operation.
(Sound familiar – offender driven justice system at work once again.)
The Court now dictates that a two-pronged approach is required to address their concerns;
- The first prong requires a new common law rule of evidence. Under this rule “Mr Big” confessions will treated as presumptively inadmissible. That means the Crown must establish, on a balance of probabilities, that the probative value of the confession outweighs its prejudicial effect.
- The second prong relates to abuse of process. Essentially, Police cannot be permitted to overcome the will of the accused and coerce a confession.
Is the Supreme Court of Canada in touch with reality and the will of the people?
The Supreme Court puts context on their concerns;
The Court expresses concerns regarding “unreliable confessions.” “Unreliable confessions have been responsible for wrongful convictions, a fact we cannot ignore,” the Court stressed.
In assessing the reliability of a Mr Big confession the Courts suggest the following circumstances should be considered;
- the length of the operation
- the number of interactions
- the nature of the relationship between the accused & undercover operators
- the nature and extent of the inducements offered
- the presences of threats
- the conduct of the interrogation itself
- the personality of the accused
- the age of the accused
- the sophistication of the accused
- the mental health of the accused
The Court also suggests Police must not “prey” on the suspect’s vulnerabilities, such as;
- mental health issues
- substance addictions
- employment status
- financial situation
- social status
The Court indicates “Mr Big” investigations are inherently prejudicial to an accused because jurors are exposed to evidence the suspect participated in “simulated crimes.” The Court suggests, “This evidence sullies the accused’s character and, in doing so, carries with it the risk of prejudice.”
3) Potential for Police Misconduct
The Court expresses concerns the stings, “run the risk of becoming abusive.” They suggest, “Thought must be given to the kinds of Police tactics we, as a society, are prepared to condone in pursuit of the truth.”
The view from down here;
When I look at the Courts concerns it reminds me of just how far the scales of justice have tilted towards the offender. I ask you, exactly how many hats do Police investigators have to wear. The Courts expect Police Officers to play the roles of Psychologist, Sociologist, Social Worker, Personality profiler and Addictions counsellor.
Where does it end?
Heaven forbid the Police might prey on a suspect’s vulnerabilities in their efforts to solve a brutal murder.
It occurs to me, killers often prey on their victim’s vulnerabilities when they decide to play God with people’s lives. An irrelevant factor in modern-day justice.
When it comes to criminal justice it seems that the truth is always the first casualty?
A criminal trial is supposed to be a search for the truth. If a suspect has the inclination to participate in organized crime that should be a relevant factor. No one forces “Mr Big” suspects to do anything. They operate with free will and voluntarily participate in the scenarios. Why is the character of a suspect such an important factor during sentencing but somehow becomes irrelevant during a trial? If you were deciding a suspects guilt or innocence wouldn’t you want to know something about their character?
3) Potential for Police Misconduct
You may be surprised to hear I agree with these concerns. Police have to be careful when they initiate these investigations. Pushing the envelope to far can jeopardize investigations and create bad case-law that can impact all of Law Enforcement. Police have to be reasonable and appreciate that boundaries exist when it comes to criminal investigations.
Having said that, I think the Supreme Court of Canada might be surprised exactly what society might be prepared to condone in pursuit of the truth when it comes to solving the horrific murders of children and our fellow citizens.
Where does the ruling leave us?
When I assess the Courts ruling I’m concerned the presumption of inadmissibility and increased scrutiny placed on these investigations may have effectively killed a covert Police investigative technique that has resolved literally hundreds of unsolved murder cases.
Those cases represent a tremendous amount of grieving, relief and closure to hundreds of surviving family members, relatives, co-workers and friends. I’m personally thankful to the RCMP for having the commitment to victims of crime to run these labour intensive, expensive investigations.
The Supreme Court of Canada justifies their decision by suggesting, “Wrongful convictions are a blight to our justice system.”
It seems to me the Supreme Court of Canada should also place some sort of emphasis on unsolved heinous murders and the rights of victims of crime.
If there was any doubt, esteemed criminal defense attorney Greg Brodsky enthusiastically interpreted the meaning and intent of the ruling during a CBC radio interview;
“The ruling means we are more interested in this Country in a fair trial then we are in a determination of who did the dirty deed.”
With all due respect…..
That’s not my Canada.