Police in Newfoundland suspected that Nelson Hart deliberately drowned his twin daughters but had no proof. They began an elaborate hoax to recruit Mr. Hart into a fictitious crime ring. After about 15 months of activity, it culminated in a meeting with “Mr. Big” who was presented as the head of the crime ring. Mr. Big demanded to know the truth about the twins’ death and Mr. Hart confessed to having murdered them. He was immediately arrested. He was convicted at trial but the Court of Appeal ordered a new trial. The Supreme Court of Canada heard an appeal from Mr. Hart. The Court noted that the Mr. Big technique is a Canadian invention and by 2008 had been used over 350 times. The Court further noted that use of this technique can lead to unreliable confessions and wrongful convictions, which the Court called “a blight on our justice system.” It concluded that the law as it presently stands provides insufficient protection to accused persons who confess during Mr. Big operations. The Court set out a two-pronged response:
1. A new common law rule of evidence that states that any confession made under a Mr. Big operation is presumed to be inadmissible until the Crown proves, on a balance of probabilities that the probative value of the confession outweighs its prejudicial effect. Probative value is a function of reliability based on the circumstances of the confession. The circumstances could include:
- the length of the operation;
- the number of interactions between the police and the accused;
- the nature of the relationship between the police and the accused;
- the nature and extent of inducements offered;
- the presence of any threats;
- the conduct of the interrogation itself; and
- the personality of the accused, including age, sophistication and mental health.
2. Confessions of this nature should be scrutinized by the doctrine of abuse of process, which is intended to guard against state misconduct that threatens the integrity of the justice system and the fairness of trials.
In this case, the Supreme Court decided that the Crown had not met the requirement of proving that the probative value of Mr. Hart’s confession outweighed its prejudicial effect. It stated: “Put simply, these confessions are not worth the risk they pose. It would be unsafe to rest a conviction on this evidence.” It excluded Mr Hart’s confessions from evidence but left it up to the Crown to decide how to proceed next. Several days after the Court’s decision the Director of Public Prosecutions announced that it would not proceed with a new trial and Mr. Hart would be set free.