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Nelson Hart is led into the courtroom in Gander, Newfoundland and Labrador.Paul Daly/The Globe and Mail

The Court of Appeal of Newfoundland and Labrador was right last week to take a critical look at the investigative technique known as Mr. Big, in which police officers pretend to be members of a non-existent criminal organization.

Nelson Hart is a most unfortunate person, who failed grade five three times, and got no further. He has not often been employed, has hardly any friends and suffers from epileptic seizures. His home-care worker married him, however, and they had twin daughters. But on one outing without his wife, Mr. Hart had a seizure and his three-year-old daughters drowned.

The police detected some inconsistencies in his narrative, and suspected him of having killed them.

An essential element is a Mr. Big investigation is that the fake underworld kingpin demands from the recruit, as a proof of loyalty to him, a videotaped confession of some crime. In this case, the previously hapless Mr. Hart was showered with work, money, friendship and other benefits. The threat of being cast out, if he did not confess to drowning his children, presented him with a dreadful prospect of returning to a life of poverty and isolation. He complied, not imagining any consequences; then, he was charged and convicted of murder.

Chief Justice J. Derek Green did not get bogged down in the relationship of Mr. Big to the criminal law of confessions or the right to remain silent. In Mr. Hart's case, he observed, "virtually everything depends on the admissions obtained during the Mr. Big operation. In fact, without Mr. Hart's confession evidence, it is not possible to establish even that a crime was committed at all."

The practical conclusion is not that Mr. Big is always wicked, but that the results of this bizarre technique cannot stand on their own. There has to be substantial corroborating evidence to show that the prosecution's theory is not as fictitious as the criminal organization constructed out of thin air by the investigators. The Hart decision does not exactly make new law; it lets common sense prevail.

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