The trials of murder suspects who confess to their crime during so-called Mr. Big undercover police operations have just gotten more complicated.
Up to 15 current prosecutions involving Mr. Big confessions in B.C. are expected to be impacted by a recent Supreme Court of Canada ruling on the controversial police technique.
Some of the upcoming trials may result in lengthy and costly legal challenges filed by defence lawyers to the admissibility of those confessions.
That’s because the new ruling raises questions about the reliability of the confessions and says they should be treated as “presumptively” inadmissible, putting the onus on the Crown to prove they should be heard in court.
“Whether the Crown satisfies the court that the threshold for admissibility has been met is something that will have to be resolved on a case-by-case basis,” said Crown spokesman Neil MacKenzie.
He added in an email that the Supreme Court has not ruled that the confessions will never be admitted, but has provided new guidelines as to how the lower courts should approach the evidence.
“That may affect conduct and content of pre-trial proceedings in cases involving such evidence, but at this point I don’t want to speculate about specific effects, or make generalizations, as each case turns on its own facts.”
MacKenzie noted that the ruling says the presumption of inadmissibility can be overcome when the Crown establishes on a balance of probabilities that the probative value of the confession outweighs its prejudicial effect.
Riva Hira, a prominent Vancouver lawyer familiar with Mr. Big operations, said the ruling will mean the Crown in deciding whether to lay charges based primarily or solely on Mr. Big confessions is going to have to look for more corroborative evidence.
For cases set for trial, because the Mr. Big confession is presumptively inadmissible, the Crown is going to have to run an extensive pre-trial hearing to show that the probative value of the confession outweighs any prejudicial effect, he said.
And Mr. Big cases currently under appeal may be able to rely on the ruling to garner a new trial with the new trial being run under the new rules, said Hira.
Richard Fowler, a defence lawyer who has represented a number of accused in Mr. Big operations, said while the ruling is “very important” in a number of ways, trials have always been complicated when it comes to admissibility of statements to police in general.
“It just basically treats these statements to police with the same degree of skepticism that has always been used with an accused’s statement to police.”
Mr. Big operations are typically launched by police for unsolved serious crimes such as murders.
A suspect is recruited by what he is told is a criminal organization and asked to carry out what he is told are criminal activities on behalf of the gang. At the end of the operation, the suspect is brought before Mr. Big, a police officer posing as a crime boss, with police hoping to wring a confession out of him.
The former B.C. Mountie who helped create the Mr. Big operations in the early 1990s resulting in hundreds of convictions believes the ruling will bring with it longer and costlier investigations of unsolved murders.
Al Haslett, a retired RCMP inspector, says the judges on Canada’s highest court got it “drastically wrong” when they threw out the confession of Nelson Hart, a Newfoundland man convicted of drowning his twin daughters.
The court said that suspects confess during pointed interrogations in the face of powerful inducements and sometimes veiled threats, raising the possibility of unreliable confessions and wrongful convictions.
But Haslett, an RCMP officer for 39 years, defended the operations, saying that the police in every Mr. Big operation are simply seeking the truth.
“We do not set out to obtain confessions. There’s been a number of cases where we have proven that the suspect on the case through this technique is in fact innocent.”
Haslett said the impact of the ruling is that it will put greater restrictions on police.
“These investigations now are going to cost a lot more money. They have the potential to take substantially longer, which will involve more contact with suspects.”
Many of the Mr. Big operations now run for many months and cost hundreds of thousands of dollars, he noted.
Haslett said many people — the public, the lawyers and even prosecutors and judges — don’t understand how the investigations into unsolved homicides and other serious crimes are started and how in fact they are monitored.
“This is not a bunch of rogue cowboys and policemen out there playing movie star. There’s a lot of scrutiny put on everything they do, at all times. There’s no script to follow in these things. Every case is individual. Every suspect is an individual. Everything goes by a case-by-case basis.”
Haslett dismissed critics who say that the Mr. Big operations lead to false confessions and wrongful convictions.
“They are just shooting from the hip. They have never come and talked to anybody involved in this technique, people that use it, people that are experts in it. They have no credibility at all as far as I’m concerned.”
Prior cases such as the notorious Rafay-Burns case in Seattle may also be impacted by the ruling, said Haslett.
He was referring to the case of Atif Rafay and Sebastian Burns, two B.C. men who confessed to the murder of Rafay’s family in Washington state following a Mr. Big operation.
“I was talking to the prosecutor down there last week and he said there’s a good chance that someone may try and open that up again,” he said of the Rafay-Burns case.
A spokesman for the King County prosecuting attorney’s office said no defence motions to reopen an appeal of the Rafay-Burns convictions have yet been filed.
But the biggest impact the ruling will have is on the families of crime victims, said Haslett.
“They’re the ones who are going to be left in limbo, possibly for years and years, because their case may never get solved now.”
Asked to comment on the Hart ruling, the RCMP in an email said it respects the decision and acknowledges the guidance provided and will take time to review the implications on operational protocols.
“The major crime technique has evolved over the last ten years since the Hart case. Some of the RCMP undercover operations are already reflective of the Supreme Court findings in the Hart decision.”
