The Supreme Court of Canada dealt a blow
last week to a style of sting operation that has been used by police in
criminal investigations in Canada for more than 20 years: the Mr. Big technique. The case of R. v. Hart, 2014 SCC 52, sounds like the improbable
plot of a Hollywood movie with a wise-cracking rogue detective, but its jolly
name belies a dangerous long con to inveigle a suspect to confess to a serious
crime.
In the 1990s, when Mr. Big cases went to
court there were publication bans on the evidence relating to the sting. The police rationale was that if the details
were made public, police would no longer be able to employ the technique. Newspapers and advocates for civil liberties argued
that the technique ought to be subjected to public scrutiny. The details of the sting were made public,
and it shows the power of the method that the police have continued to obtain
confessions this way for 20 years since the gag was removed.
In essence, a Mr. Big sting is an elaborate
con to ensnare a suspect in a fake criminal organization, entice the suspect to
participate in fake crimes, and reward the suspect with a taste of a lavish
lifestyle financed by the proceeds of those fake crimes. It is a costly operation undertaken only in
the case of serious crimes. In the Hart case the cost totaled more than
$400,000.
The stakes are high, and the dangers of
this type of evidence are equally high.
Hart was accused of drowning his twin daughters. Everyone wants whoever was guilty of that
crime to be convicted, but we do want also to be very certain we have the right
person. We have a long and sorry history
of wrongful convictions in Canada, including people who have confessed and then
been exonerated by DNA evidence.
We have law that excludes coerced
confessions made to persons in authority because they not only offend our sense
of fairness, they also constitute evidence that is simply not reliable. This
rule recognizes the power that police have over a suspect who may try to
manipulate the odds in his or her favour.
Why would we not recognize the power that a (fake) crime boss has over a
suspect who similarly would like to compose a story to improve his or her
position? There is a darker turn to the
story where the suspect believes the crime boss to be a powerful and violent
despot.
In this case, Mr. Hart is unlikely to have
the benefit of dramatic DNA exoneration evidence, but the court rightly
concluded that it would be dangerous to rely on his confession in this
case. Mr. Big is not dead. The police can still use this method, but our
courts now have a structured, balanced approach to weighing the reliability of
confessions obtained in this way against damaging effect they may have on the process
of justice.
Never try to talk your way out of it with the police or anyone. Seek the advice of an experienced criminal lawyer.
