“Mr. Big” case could ultimately head to the SCC
While the recent reversal of a Newfoundland murder conviction may be an influential decision when it comes to the use of a controversial police technique, it could ultimately have to pass scrutiny at the Supreme Court of Canada, says Toronto criminal lawyer Christopher Hicks.
In a recent 2-1 majority decision, the Newfoundland Court of Appeal reversed Nelson Lloyd Hart’s murder conviction in the deaths of his two daughters – a conviction based on the “Mr. Big” technique, where undercover police pose as crime figures to persuade suspects to admit their crimes as a gesture of commitment to a gang. According to reports, the suspect is arrested after he has been surreptitiously videotaped making his confession to “Mr. Big”, the head of the gang.
In this case, the court found that “Mr. Hart could not realistically have refused a demand to confess from Mr. Big”, as fear of losing a life of luxury and comradeship introduced to him during the sting operation “would have induced him to say just about anything,” say reports. Read Globe and Mail Story
In discussing the Mr. Big technique at a University of Guelph seminar a number of months ago, Hicks, a partner with Hicks Adams LLP noted that at the time, “every evidentiary and Charter objection that legal ingenuity could conjure up had been advanced at trials and had been unsuccessful.”
“Similarly, on appeal, able appellate counsel had argued every issue imaginable, and had done so before the most reasonable of appellate tribunals, and had been unsuccessful. For the Ontario Court of Appeal, Justice Marc Rosenberg wrote a decision which encompassed virtually every objection that could be raised to the “Mr. Big” ruse and dismissed them one by one,” he says.
However, he says, the Hart case now takes on seminal importance.
“The majority of the Court of Appeal for Newfoundland accepted the defense argument that Hart’s ‘confession’ was not reliable nor truthful because of the inducements of wealth & future prosperity offered by Mr. Big to Hart, a destitute figure after the death of his daughters,” he says.
Customarily in these scenarios, explains Hicks, the target reveals details of the crime to Mr. Big that only the perpetrator could know – details not released to the media at the time of the crime.
“Hart’s daughters had drowned, which deprived the investigation to a great extent of those forensic details which only the perpetrator would know,” he says.
“In the end result, the court held that offering wealth & future prosperity to an impecunious target induced a false confession,” he says, adding that obviously, this defense may not be available to all of Mr. Big’s targets.
Ultimately, says Hicks, the Court’s decision may have to pass scrutiny at the Supreme Court of Canada.
“The Court of Appeal for Newfoundland split 2-1 in the Hart decision, which may inspire an appeal by the Crown to the highest tribunal,” he adds.