If defence lawyers were looking for someone to illustrate how a gullible patsy could be duped by a police sting operation, they couldn't have cast a better candidate than Nelson Hart.
He had never finished elementary school, was chronically unemployed and once couldn't even afford a bed to sleep on. His big dream was to have enough money so he and his wife could fly from their Newfoundland hometown to California to attend a taping of the game show "The Price is Right."
The marginal lifestyle of the Gander resident is a key aspect of Thursday's Supreme Court ruling about the unreliable nature of confessions obtained in so-called “Mr. Big” undercover operations.
The country's top court unanimously found that Mr. Hart's admission that he drowned his two daughters, which was extracted in a Mr. Big setup, was unreliable and cannot be used against him in trial.
RCMP officers pretending to be criminals had recruited Mr. Hart to transport contraband smokes. They dazzled him with cash, steak dinners, casino chips and paid trips from Montreal to Vancouver. Then, at a meeting with their purported crime boss, the eponymous Mr. Big, they pressed him about the death of his daughters and prodded him into saying he had murdered them.
“The police conduct was egregious … The extreme lengths to which the police went to pursue [Mr. Hart], exploiting his weaknesses in this protracted and deeply manipulative operation, is troubling,” the Supreme Court said.
A majority of the justices suggested setting a new common law rule to evaluate future Mr. Big confessions, which would be deemed to be inadmissible until the prosecution could demonstrate otherwise.
Trial judges would also have to assess whether the undercover operation preyed on an accused’s vulnerabilities and resulted in a coerced confession.
The top court unanimously felt that the admissions Mr. Hart made to undercover agents was not trustworthy. “Put simply, these confessions are not worth the risk they pose,” the ruling said.
The case began nearly a dozen years ago, the morning of Aug. 4, 2002, when Mr. Hart drove his three-year-old twin daughters, Krista and Karen, to a lakeside wharf in Little Harbour, a remote area 11 kilometres from his Gander home.
An hour later, an ambulance was called because the girls had drowned.
Initially, Mr. Hart said the tragedy started when Krista accidently fell in the water. He couldn't swim so, in a panic, he left his other daughter behind and drove home to ask his wife, Jennifer, for help.
He didn’t use his cellphone, claiming that he thought it had run out of minutes. And he couldn't explain why he didn’t stop at a gas station and hospital that were on his way.
After police re-interviewed him, Mr. Hart switched to a new story: the drownings happened while he had an epileptic seizure.
There was a possible motive. Police discovered that child protection officials were considering removing the children from Mr. Hart’s custody and placing them with his brother. Still, investigators were unable to clinch the case so they turned to Mr. Big to loosen his tongue.
Between February and June 2005, undercover agents interacted with him on 63 carefully scripted occasions.
First, they posed as businessmen as they befriended him and said they wanted to hire him. They flew him to Halifax and gave him money, casino chips and Canadian Tire points.
He hugged his new friends and said he loved them. Gradually they said they were involved in crime but he went along, his feelings smoothed down by more cash, free meals and Canadian Tire money.
At one point, Mr. Hart had to be confronted by the fact that one hotel had charged him for stolen towels. He admitted he wasn’t used to staying in hotels and thought the towels would be thrown out.
"To say the least, Hart was an unsophisticated person," Marie Henein, the lawyer who was appointed to argue on his behalf, said in her brief to the Supreme Court.
The Supreme Court concurred with her argument that Mr. Hart had been manipulated.
"The police led Mr. Hart through the looking glass into a parallel universe where, for many months, they employed extensive state resources to prey on his lack of education, intellect, and life experience; his social isolation; and his extreme poverty,” Justice Moldaver wrote.
Mr. Hart alledgedly made his first confession in April 2005 while dining with “Jim,” one of the undercover Mounties. According to the officer, Mr. Hart pulled out a photo of his daughters from his wallet and said he had murdered them.
Because the admission was allegedly made without prompting, a majority of the judges said it could be mentioned in a trial. However, the conversation was not recorded and Mr. Hart denied that it took place.
On June 9, 2005, Mr. Hart got to meet Mr. Big in Montreal. This time, the meeting was secretly videotaped and the bogus kingpin told Mr. Hart he had to come clean about his past before he could start working for the gang.
"He had every incentive to confess, whether he committed the crime or not. Nevertheless, he protested his innocence until it was apparent that only a confession would be accepted," Justice Michael Moldaver noted in the ruling.
There were also inconsistencies between that confession and another one three days later, when Mr. Hart re-enacted the scene, Ms. Heinen noted. At first, he said he had pushed the girls with his shoulder. But the second time, with an undercover agent kneeling in front of him, Mr. Hart had to use his knee.
Two days later, he was arrested. The ruling said that Mr. Hart was “so thoroughly enmeshed in his make-believe world” that when he was arrested, his first act was to call one of the undercover agents, whom he assumed to be a friend.
"Hart was devastated to learn that his new life, where he had felt valued and respected, had all been a carefully constructed illusion. He had no friends. He had not been employed because he was `smart': rather, he was thoroughly duped," Justice Moldaver wrote.
He noted that Mr. Hart became so wary afterward that he wouldn’t trust his lawyers or his wife. He had to be committed to a psychiatric ward and the court had to appoint Ms. Henein to make arguments on his behalf.
In total, the Mounties had paid Mr. Hart $15,720 and the whole operation cost $413,268.
On March 28, 2007, a jury convicted Mr. Hart of two counts of first-degree murder. However, the Court of Appeal of Newfoundland ordered a new trial.
It is now up to the Crown to decide whether it wants to pursue a new trial, minus the videotaped confessions.