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Canada Top court upholds Alberta conviction in boost for ‘Mr. Big’ tactics

Veritas (Truth) guards the entrance of the Supreme Court of Canada as the Peace tower is seen in the background in Ottawa.

ADRIAN WYLD/THE CANADIAN PRESS

The Mr. Big undercover technique for investigating suspected killers received a boost from the Supreme Court on Friday, in a unanimous ruling upholding the murder conviction of an Alberta man tricked by police into confessing to having killed his roommate.

The ruling comes just two months after the same court cast the technique into doubt, in a ruling that warned that the Mr. Big technique could elicit false confessions from people who are easy to manipulate because of low education, poverty or other reasons.

The technique involves undercover officers who create a fake underworld organization, headed by a "Mr. Big" who asks a man for a confession to a crime, ostensibly so the man may prove his criminal bona fides.

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In the case before the Supreme Court, undercover officers posing as criminals paid Dax Mack of Fort McMurray $5,000 over four months for small jobs, including a break-and-enter. At the time, Mr. Mack was unemployed and raising two children. The defence argued that Mr. Mack lied to the undercover officers because he needed the money they were paying him, and because he was afraid the crime group would harm him if he didn't tell them something.

"The psychological manipulation and trickery in a 'Mr. Big' sting is real and potent," lawyer Laura Stevens argued in a document filed with the Supreme Court. "It would be wrong to assume that the police are not in control in such situations – they are effectively, bringing the full power of the state into an accused's personal and private life."

Ms. Stevens also argued that the police sting created evidence that Mr. Mack was of "bad character," in his willingness to do small criminal jobs, and could therefore prejudice a jury into thinking he was capable of murder.

Even so, his confession on two occasions to undercover officers stood up in court because in one instance in which he confessed, he led the police to a firepit where they found bone fragments of the victim, Robert Levoir, and because the details in his confessions matched those in confessions Mr. Mack made to two other people. Also, the court did not deem him vulnerable.

Mr. Mack "was not presented with overwhelming inducements," Justice Michael Moldaver wrote in the 7-0 ruling. "He had prospects for legitimate work that would have paid even more than the undercover officers were offering. Nor did the officers threaten [him] with violence if he would not confess. The most that can be said is that the officers created an air of intimidation by referring to violent acts committed by members of the organization." Mr. Mack, however, "was not coerced into confessing."

Any risk of prejudice against Mr. Mack for his small criminal jobs was minor because none of those jobs involved violence, Justice Moldaver said.

The trial judge had convicted Mr. Mack of first-degree murder, which carries an automatic life sentence with the first chance at parole at 25 years. Mr. Mack appealed to the Alberta Court of Appeal, which upheld the conviction, and then to the Supreme Court.

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In his confessions, Mr. Mack said he had shot Mr. Levoir because while living in his home Mr. Levoir had sold drugs, failed to pay back money he owed him and stolen money from his children's piggy bank.

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