Canada’s top court will release its decision Thursday on whether confessions elicited from so-called Mr. Big police sting operations can be used in court after the technique helped convict a Newfoundland man of killing his two daughters.
The Supreme Court of Canada agreed early last year to hear the case of Nelson Hart, who was found guilty by a jury of first-degree murder in the drowning deaths of his three-year-old twin daughters, Krista and Karen, on Aug. 4, 2002, at Gander Lake.
The Crown asked the Supreme Court to throw out a provincial appeal court ruling that overturned the 2007 conviction and ordered a new trial.
In the fall of 2012, the Newfoundland and Labrador Court of Appeal ruled 2-1 that a confession Mr. Hart gave during an elaborate undercover RCMP operation should not have been entered as evidence.
The appeal judges were divided 2-1 on the key question of whether the confession obtained during the Mr. Big sting was the result of improper conduct that violated Mr. Hart’s Charter rights.
Two of the appeal court judges ruled Mr. Hart’s confession inadmissible. But the third judge said, “the tricks employed by the undercover police were not such as to shock the conscience of the community” and were not proven to be excessive coercion or inducement.
At trial, the Newfoundland and Labrador Supreme Court heard Mr. Hart initially told police he could not swim and drove away from Gander Lake to find help after Krista fell into the water, leaving Karen unattended. His trial would later hear that Mr. Hart told police a different story two months later: that he could not remember how his daughters ended up in the water because he had an epileptic seizure but failed to mention it earlier for fear of his losing his driver’s licence.
Karen was dead and Krista was floating unconscious in Gander Lake when police arrived. Krista died in a St. John’s hospital.
The RCMP launched the Mr. Big sting in 2005 after the investigation into the girls’ deaths stalled. The investigative technique involves undercover officers pretending to be gangsters who recruit a suspect to a fictitious criminal organization to obtain a confession about prior criminal acts.
The operation cost about $413,000 over four months as officers posed as gang members. They recruited Mr. Hart to travel with them across Canada, where he met other fake mobsters and was taken to restaurants, casinos, racetracks and strip clubs.
On a video shown at his trial, Mr. Hart told undercover officers he shoved the girls from the Gander Lake wharf into the water, eventually re-enacting the scene for them.
“I struck them with the shoulder, like that,” he said on a recording made without his knowledge or consent. He said he feared that social workers were about to give his brother custody of his children.
Mr. Hart’s defence lawyer challenged the confession, saying his client needed money and was intimidated by people he thought were gang leaders.
The Supreme Court of Canada generally hears cases of national importance or those that involve split decisions on key legal points.