Other convictions are now in doubt
Supreme Court decision limiting Mr. Big stings doesn’t fix historic findings of guilt
Mr. Big has a long reach, across courtrooms in Canada and even extending to Australia — and problems follow him wherever he goes, many legal experts say.
For those working to clean up Mr. Big’s mess — including a potential for false confessions, miscarriages of justice, even wrongful convictions — the 2014 Supreme Court of Canada ruling only goes so far. The high court’s severe restrictions on the sting will limit the evidence accepted at future trials and probably discourage investigators from even running the operation.
But it’s estimated the controversial, made-in-Canada police tactic has been used more than 350 times since the early 1990s. What about those already convicted?
“These very procedures, which have now been significantly curtailed because of the dangers they pose — these were the same procedures that have been used for the past 20 years and have elicited confessions, followed by convictions,” said Timothy Moore, a York University psychology professor, who researches false confessions and the Mr. Big technique.
“Some of those confessions may be unreliable, and some of those convictions may be unwarranted.”
The Association in Defence of the Wrongly Convicted has therefore launched an initiative aimed at provoking a review of Mr. Big convictions.
Following the Supreme Court decision, the rights group reached out to then-justice minister Peter MacKay to perform a systemic review of all Mr. Big cases, and retroactively apply the new rules.
When the demand was unsuccessful, the association decided to review select cases on its own.
“It’s those cases that would fall within the rubric of the Supreme Court judgment that we’re trying to identify and isolate,” said James Lockyer, the association’s founding director, who is also with Lockyer Campbell Posner, the firm representing Alan Smith.
Convictions that could warrant a ministerial review are typically easy to identify because there is usually no evidence other than a confession wrung from the Mr. Big sting. The cases where the sting is used are generally “old and cold,” said Russell Silverstein, a Toronto lawyer and director on the association’s board.
“The Mr. Big approach is used by the police usually as a last-ditch investigative tool when they haven’t managed to come up with any other evidence,” he said.
The defence association plans to submit for ministerial review Mr. Big cases they’ve found where a miscarriage of justice was likely to have occurred — if not a wrongful conviction.
Moore, the York researcher, has been highlighting the problems inherent in the Mr. Big technique in Canadian court cases for well over a decade, as an expert witness in false confessions. Alongside fellow York professor Regina Schuller and Toronto lawyer Peter Copeland, Moore authored the first major legal and academic study on the Mr. Big scenario: “Deceit, Betrayal and the Search for Truth.”
This year, that expertise is set to take him to Australia, where homicide investigators were taught the made-in-Canada sting from mem- bers of the RCMP, Moore said.
Australian courts are now “between a rock and a hard place,” Moore said, because Canada’s Supreme Court has ruled Mr. Big confessions to be presumptively inadmissible, but there are no new constraints on its use in Australia.
“So they have imported a procedure which is now recognized to be somewhat problematic by its inventors. What will they do? They are not bound by Canadian case law, but they are surely not blind to the (Supreme Court decision). I don’t know what to expect.”