Ian Mulgrew: Doubtful ‘Mr. Big undercover stings continue to haunt judges

.

The RCMP’s Mr. Big undercover tactic continues to baffle judges despite being blamed for numerous wrongful convictions and nearly a decade after the Supreme Court of Canada warned of its dangers.

.

In a recent decision, backed by Chief Justice Robert Bauman and Justice Bruce Butler, Judge Elizabeth Bennett upheld Garry Handlen’s first-degree murder conviction for a 1978 murder based on a confession produced by one of these elaborate covert operations.

.

The Crown did not proceed with a second charge that he killed another girl, Kathryn Hebert, in 1975.

The trial judge ruled out that confession while admitting his statements about Monica Jack during the 2014-2015 operation in which the Mounties played criminals committing apparent crimes and violence to catch him.

The decision once again raises the cumbersome legal thicket around this controversial ruse.

Hundreds of British Columbia crimes have been solved through the use of this Canadian-made police feint, but numerous people have also been wrongfully convicted.

.

In 2014, the Supreme Court of Canada said the potential for miscarriage of justice was so great that judges should examine police conduct before accepting any confession to ensure innocents were not ensnared.

First mentioned in a 1901 Manitoba murder, in which two detectives acted as partners in crime to mislead the suspect, the tactic was described as “vile”, “vile”, and “despicable”. However, the man was convicted.

In the early 1990s, the technique was enthusiastically adopted by the RCMP, particularly in BC.

The infamous Atif Rafay-Sebastian Burns cross-border family murders revolved around a Mr. Big stage video of them coolly discussing the heinous murders.

In the US, such evidence would be considered illegally obtained, but US courts accepted it from Canadian police because the technique is legal here.

.

The decision triggered a strong but unsuccessful campaign by the Innocence Project led by Rubin “Hurricane” Carter, the wrongfully imprisoned boxer praised in a 1970s Bob Dylan song.

For years, the RCMP struggled to keep details of the scam hidden, while critics complained that the role-playing scenarios undermined fundamental principles of justice and were likely to catch the innocent just as often as the innocent. the culprits.

Concurrent with this 10-month Mr. Big operation involving 103 scenarios in 2013 and 2014, another on Vancouver Island resulted in a murder trial being canceled after police and prosecutors were challenged.

The charges were dropped.

Mr. Big’s confessions fall into a gap between traditional rules of admissible evidence: existing safeguards against self-incrimination and the right to remain silent do not apply because the suspect is not in custody and does not know that he is talking to the police.

.

There is also a built-in detrimental effect of wanting to join a gang and engage in crime.

And claiming that a confession was a lie “wraps the accused with an aura of mistrust,” especially when you’re someone like Handlen, who turned 67 during the background investigation for July 1969 indecent assault, a November 1971 rape. , a second rape on September 11, 1978, and for which he received a 12-year prison sentence.

He was in custody from his arrest that month until his release in 1987.

In this case, 12-year-old Jack was abducted on May 6, 1978, probably shortly after 7 p.m.

His remains were discovered 17 years later, on June 2, 1995, by a forestry crew during a controlled burn on a logging road west of Nicola Lake.

.

The evidence against Handlen included four written statements from witnesses who had subsequently been hypnotized, his vague confession to Mr. Big, and a similar re-enactment. But no real evidence.

The statements entered under an exception to the hearsay rule did not implicate Handlen; they only suggested that the girl might have been kidnapped by a man driving a motorhome/truck.

However, the now-retired Chief Justice of British Columbia, Austen Cullen, found the confession and reenactment “reliable enough” to be admitted.

Cullen’s decision was based on Handlen’s analysis of testimony, inference, and speculation about 45-year-old vague statements that he concluded supported the reliability of the confession but could not otherwise be verified.

.

“However, I am convinced that, in light of the circumstances in which the confessions were made, in light of the confession itself and the confirmatory evidence taken as a whole and in combination, the fundamental question of ‘whether the evidence is worthy of being heard by the jury’ is satisfied. … Clearly there will be the possibility of some prejudicial reasoning in this case, but in my opinion, in all circumstances, and with proper warning to the jury, the prejudicial effect of admitting the evidence does not outweigh its probative value.”

That finding is entitled to deference, Bennett concluded.

“Mr. Handlen has not shown that there was a palpable or overriding error in the judge’s exercise of discretion in admitting Mr. Big’s statement. Indeed, in my opinion, the evidence that established the threshold of reliability of the confession and reenactment was very strong… That evidence confirmed the entirety of Mr. Handlen’s confession and reenactment, including the limited proposition that he abducted and killed Monica before disposing of her body.”

.

“Very strong” and “reliable enough”? Deference?

Handlen did not find the places where the girl was kidnapped or killed. In the absence of Mr. Big, as in the case of Hebert, the Crown would not have proceeded.

Shouldn’t first degree murder be decided on the basis of evidence beyond a reasonable doubt?

[email protected]

twitter.com/ianmulgrew

More news, less ads, faster loading time: Get unlimited, ad-lite access to the Vancouver Sun, Province, National Post and 13 other Canadian news sites for just $14/month or $140/year. Subscribe now through vancouver sun either The province.