A Supreme Court of Canada ruling in a case of a Gander man who had been charged with drowning his twin daughters could change the way police nationwide conduct sting operations.
The Crown in this province was trying to get evidence obtained from a “Mr. Big” operation permitted in the case against Nelson Hart.
That appeal was shot down by a seven-member panel of justices at the country’s highest court in Ottawa Thursday.
Hart had confessed to drowning the three-year-old girls, Karen and Krista, to undercover officers posing as members of an organized crime group, saying he had shoved them into the waters of Gander Lake on Aug. 4, 2002.
But the court concluded that the way officers obtained Hart’s confession breached his right to silence under Canada’s Charter of Rights and that the confession cannot be used against him should he face another trial.
The panel said Mr. Big stings can be risky, pointing out that confessions extracted in this way tend to be unreliable, are open to abuses and must be regulated more carefully in order to be admissible in court.
Developed by the RCMP in B.C. in the early 1990s, the Mr. Big investigative technique involves undercover police officers recruiting a suspect to a ficticious criminal organization while posing as gangsters.
The aim is to obtain a confession to a crime.
Hart, who has a Grade 5 education and was living on social assistance, was the target of a four-month sting after investigators could come up with little evidence in the case.
Police officers pretended to be part of a criminal gang and made friends with Hart. They assigned him to be a courier for the group and paid him $16,000, put him up in swanky hotels and fed him gourmet meals. Hart got comfortable and began to look at them as brothers.
When it came time to meet the group’s boss, Hart initially denied having anything to do with his daughters’ deaths. He repeated that he had suffered an epileptic seizure at the time and didn’t know what happened. But the boss refused to accept Hart’s answer, repeatedly telling him, “Don’t lie to me.”
Hart eventually changed his story and said he had drowned the girls because he was afraid his brother would get custody of them.
Hart was arrested and in 2007, was convicted of two counts of first-degree murder.
But after years of legal ramblings, in 2012, a majority (2-1) of the Supreme Court of Newfoundland and Labrador’s Court of Appeal overturned Hart’s conviction, questioning the reliability of his confession. The Crown appealed to the Supreme Court of Canada.
The hearing was held in December 2013 in Ottawa. Frances Knickle and Elaine Reid of St. John’s presented arguments for the Crown, while Hart’s lawyers, Jamie Merrigan and Robby D. Ash of Corner Brook, presented the defence’s side.
In its written decision, the panel said the Mr. Big sting is abusive, since undercover officers provide their targets with inducements, including cash rewards, to encourage them to confess. They also cultivate an aura of violence by showing that those who betray the criminal organization are met with brutality.
“There is a risk these operations may become coercive,” Justice Michael Moldaver wrote on behalf of the panel’s majority.
“Thought must be given to the kinds of police tactics we, as a society, are prepared to condone in pursuit of the truth.”
The decision calls into question several convictions of Canadians behind bars who were targets of Mr. Big stings.
The court said police and lawmakers must figure out a better way to extract solid confessions from suspects in criminal cases.
“We must seek a legal framework that protects accused persons, and the justice system as a whole, against these dangers,” it said.
“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.”
With Hart’s confessions excluded, Moldaver concluded, “As such, it is doubtful whether any admissible evidence remains upon which a jury, properly instructed and acting reasonably, could convict. However, the final decision on how to proceed rests with the Crown.”
In an emailed statement from the province’s Justice Department, Attorney General Felix Collins said the department will review the ruling and decide whether or not to proceed with the case against Hart or dismiss it.
“As it is still an open prosecution, we are, at present, unable to publicly address any questions arising from (Thursday’s) decision,” the statement said. “We will be taking time to review the decision and to determine our next steps in regards to this prosecution.”
Hart remains in custody on the murder charges, as the 45-year-old did not pursue a bail review application pending appeal.
Since he’s been in jail, he’s been charged with other offences — assaulting corrections officers at Her Majesty’s Penitentiary and uttering threats towards them.
He’s due back in provincial court in St. John’s on Aug. 19 to answer to those charges, laid earlier this year.
- With files from The Canadian Press