A sad legal odyssey that began 12 years ago when Nelson Hart’s twin girls drowned in Gander Lake ended Tuesday as murder charges against him were dropped for lack of evidence.
Hart, now 45, was to be released to an undisclosed location after nine years behind bars. The Crown said it couldn’t retry him for murder in the deaths of his three-year-old daughters, Karen and Krista, who wound up in the water near a playground and boat launch called Little Harbour on Aug. 4, 2002. The girls had wanted to play on the swings.
“This brings the matter to a close,” Judge David Peddle said in provincial Supreme Court as Jennifer Hicks, mother of the twins and Hart’s ex-wife, listened without reaction. She did not comment as she left the courthouse.
Hart was to be set free after Canada’s highest court ruled Thursday that confessions he made to undercover Mounties during a so-called Mr. Big sting could not be used against him. The decision upheld a 2012 appeal court judgment overturning Hart’s 2007 first-degree murder conviction and a life sentence without chance of parole for 25 years.
Donovan Molloy, director of public prosecutions, said the Crown can’t make a case for retrial.
“Last week’s decision by the Supreme Court of Canada to exclude the confessions made by Mr. Hart to the undercover officers left us with insufficient evidence to meet our standard for prosecution, which is a reasonable likelihood of conviction,” he told reporters.
Molloy declined to comment when asked if Hart could face lesser charges such as criminal negligence, except to say any new evidence will be considered. Nor would he discuss whether Hart could make a case for wrongful conviction compensation.
He said the focus Tuesday should be on Hicks.
“She has lost her daughters. Our heartfelt sympathies go to her.”
Hart was not in court Tuesday. One of his lawyers, Robby Ash, said since his client was not required to attend it was best he prepare for the jolt of life on the outside.
“Mr. Hart obviously is very pleased with the outcome of the decision,” Ash said outside court. “But this is going to be a difficult time for him as well, a time of transition and a time of healing for him.
“They were also Mr. Hart’s daughters.”
Ash said Hart has had virtually no outside social ties in recent years, had no place to go and some of his lawyers, past and present, have tried to help smooth his release however they can.
The high court cast doubt on the reliability of Mr. Big stings and said the operation may have violated Hart’s Charter rights. Its ruling notes that Hart, with a Grade 5 education and on social assistance, was an especially prime target.
“The extreme lengths to which the police went to pursue (Hart), exploiting his weaknesses in this protracted and deeply manipulative operation, is troubling,” says the judgment. “This was not the usual undercover investigation where police join an existing criminal organization to witness criminals in action. This case is more akin to entrapment.”
Hart has maintained that the deaths of his daughters were accidental, but changed his story about what happened.
He initially told detectives that Krista fell in the water, but he didn’t jump in to help because he couldn’t swim.
His trial heard that Hart had a cellphone, but left his other daughter behind as he drove about 11 kilometres to his home, passing a hospital, to get his wife, who also couldn’t swim.
Karen was dead and Krista was floating unconscious in the water by the time police arrived. She was declared brain dead in hospital and removed from a ventilator.
Hart, a long-time sufferer of epileptic fits, later told police he’d had a seizure and couldn’t remember how his girls got into the lake. He said he didn’t mention it earlier for fear he’d lose his driver’s licence.
The case stalled until the RCMP launched the Mr. Big sting in February 2005.
They spent about $413,000 over four months while officers posing as gangsters recruited Hart to join their crime network. He was wined and dined across the country as he met other fake mobsters at restaurants, casinos and strip clubs, moving what he thought were stolen goods.
There were also repeated references to violence, even murder, which Hart’s lawyers later argued made him fear for his safety.
At one point, a purported mobster suggested he’d had to get rough at times with dishonest prostitutes working for the gang.
“The respondent (Hart) informed (the undercover officer) that he had no problem getting his hands dirty,” the high court ruling says. “He too had done terrible things in the past. At that point, he produced a picture of his daughters from his wallet and told (an officer) that they were both dead. He confided that he had planned their murder and carried it out.”
In a secretly videotaped exchange in June 2005, an officer posing as a mob leader asked Hart about the deaths of the twins in a concocted test of Hart’s loyalty. Hart thought acceptance into the gang and big money were on the line.
He began to talk about his seizure, but was told not to lie.
Hart then described how he could not accept that social workers planned to give his brother custody of his children. He is shown on another tape re-enacting on a Gander Lake wharf how he shoved the girls off.
Ash said Tuesday that even Hart’s alleged confessions were inconsistent and hopelessly tainted under the circumstances.
“We can’t use that to prosecute people.”
Ash said it’s too soon to say whether Hart might sue for wrongful conviction.
“It’s something, obviously, that we’ll be discussing with Mr. Hart over the next little while.”