A betrayal of trust
Use of father to incriminate his son comes under scrutiny
Over several days last year, an estranged father and his teenaged son reconnected in the Toronto area — going for food at McDonald’s, shopping at the mall and playing video games in a motel room.
At one point, he told the boy he had his back because “I’m your dad and I care.” But it was all a ruse. The father was wired up — working as an agent for the Durham Regional Police — and following a “scenario instruction sheet” aimed at extracting a confession from the boy in the beating death of his fouryear-old nephew.
Ultimately, a judge would find police had gone too far, calling the betrayal of trust between father and son an abuse of process that would “shock the community.”
“It amounted to particularly manipulative trickery of (the boy),” Ontario Court Judge Susan MacLean wrote last month in declaring the boy’s statements to his father inadmissible.
The boy, now 17, was still found guilty of manslaughter after his younger brother told the court he had witnessed the boy hitting his nephew many times with a belt. This week, he was sentenced to 17 months’ probation, with an emphasis on intensive rehabilitation and counselling.
Even though a conviction was obtained, the unusual case has put police agencies on notice: tread carefully when using civilians as agents, especially when using parents to undercut their children.
“The potential long-term harm on a young person has to be considered,” said Jason Rabinovitch, the boy’s lawyer. “A parent should be the one person a child should be able to trust.”
A Durham police spokesman said Friday he was waiting for a response from the agency’s legal department.
In the summer of 2013, the boy, then 15, was often left to look after his 10-year-old brother and his half-sister’s three younger children in a sparsely furnished Bowmanville, Ont., home, while his mother worked.
One evening, emergency responders got a 911 call saying one of the children, a four-year-old boy, was not breathing. He later died in hospital from multiple, bluntimpact injuries.
Durham investigators enlisted the help of the boy’s estranged father, who has a criminal record and was absent for most of the boy’s life.
Before each encounter with his son, the father met with police and was given instructions on how to build rapport. Police gave the father a pair of Nike Air Jordan running shoes to give as a birthday
present and money so he could take him out for dinner. He was also given the keys to a rental car.
Officers told the father not to initiate discussion about the homicide. At most, he could say something like, “I know you’re going through some shit right now and you know I’m here for you.”
But after the few meetings didn’t yield much information, police changed tack in March 2014. They rented out a room at a Super 8 motel where the father could “hang out” with his son. This time, they told him to bring up the death.
Police had recently arrested the boy’s mother for failing to provide the necessities of life and the father was told to use the arrest to tell his son he was worried what might happen to him.
“C’mon, we need to talk about this,” police told him to say. At the same time, they cautioned the father to watch his tone — never threaten or intimidate the boy.
Ultimately, the boy never confessed to hurting his nephew. But the Crown still pushed for the boy’s statements to be admitted because he was unequivocal in saying his younger brother had no role in the death, leaving only one other suspect — him.
However, the judge would not allow the evidence, noting the father had not heeded police instructions
and became “relentless” in his attempts to get the boy to talk.
The father repeatedly attempted to undermine the boy’s wishes to remain silent, used “moral suasion” and “guilt,” and repeatedly told the boy he had his interests at heart — which was a lie.
“Well, that’s what you need to get through your thick skull, so yo, your dad is here for you,” he said to his son at one point. “You know what I mean? Your dad loves you B.”
Moments later, he said: “I can’t, cannot force you to, if you don’t want to tell me certain things or you have things in your mind and you don’t want to … want to keep it all boarded up inside, it’s up to you. But just know that me, my mom … a lot of people aren’t sleeping at night because everybody want to know what happened.”
Stopping short of saying police should never use a parent as a police agent, the judge found the father’s emotional and financial inducements in this case went too far and “may well have irreparably damaged any potential future relationship between them.”
“Since he was acting as an agent of the state, (the father’s) misconduct must be treated as police misconduct, even if the police never intended for him to act this way,” the judge wrote. “This misconduct
offends the community’s sense of fair play and decency.”
The judge was also troubled by the fact the father was re-introduced to his son when the boy was cut off from communicating with his mother.
Under the law, young offenders are entitled to consult a parent before speaking to police. In this instance, the only parent available to him for advice — his father — was a police agent.
The case wasn’t a traditional “Mr. Big” sting operation — where undercover cops recruit an accused person into a fictitious criminal organization with the aim of extracting a confession about a past crime during a meeting with the gang’s boss. Nonetheless, the judge’s reaction shows how last year’s Supreme Court of Canada decision tightening rules on the use of the Mr. Big technique has led to greater scrutiny of manipulative police tactics, said Jonathan Dawe, a criminal lawyer in Toronto.
“It’s hard to rank the cases on a line from better to worse,” he said, “but there is something about manipulating a vulnerable kid’s desire to have an emotional connection with his absent real dad that seems to make it qualitatively worse than merely setting up an undercover officer as a proxy fake father-figure.”
The potential long-term harm has to be considered. A parent should be the one person a child should be able to trust.