I recognize that the RCMP’s classic “Mr. Big” sting to cajole murder suspects to confess to horrendous crimes has been criticized by many civil libertarians as an abuse of process.
Yes, there are cases where the scenario and inducements to confess are suspect, particularly where the police masquerade as members of a murderous criminal gang. However, there are many cases where the tactics, frequently approved by our criminal courts, have been sanctioned as a legitimate tool for law enforcement, particularly after the Supreme Court of Canada issued their analysis in R. v. Hart. (2014 SCC 52)
In the Hart case our highest court found that confessions given during such operations are often unreliable and introduced a stringent new test for their admissibility as evidence in criminal cases. As such, the decision seeks to curtail the abuse of police power in coercing unreliable confessions.
In a recent Ontario case, R. v. Kelly, 2017 ONCA 621, Michael Earl Kelly was convicted of the murder of his wife, whose body was found four years after Mr. Kelly reported her missing. The trial court utilized the standards articulated by R. v. Hart, although the trial occurred before the Hart case was handed down by our highest court. Mr. Kelly was convicted of the first degree murder of Judith Thibault.
Ms. Thibault was found in Thunder Bay a few feet from Wolf Bay Road. She had one 22 caliber bullet wound in her head and was wrapped in a carpet. Although the police had no forensic evidence incriminating Mr. Kelly they were certain he was their main suspect and devised a plan to induce him to confess his crime.
RCMP sergeant “Bob”, parading as a private investigator for an insurance company, contacted Mr. Kelly, who had moved to Alberta with his new wife, and advised him that Ms. Thibault had left a life insurance policy for $3,000, naming him as the beneficiary. Bob paid the bogus insurance money to Mr. Kelly and told him that he needed to sign a release form acknowledging his receipt of the money and releasing any further claims to any other life insurance policies.
Bob told him he would investigate to determine if there was any other life insurance policies naming him as beneficiary before he released his rights. Shortly thereafter Bob contacted Mr. Kelly again and told him he had discovered two additional policies totalling $571,000. Bob showed him two fictious documents saying there was a hold on pay-out of the latter two policies because Mr. Kelly was a suspect in Ms. Thibault’s murder.
Bob told Mr. Kelly that he would not receive the proceeds of the two policies until he was cleared as a suspect and presented an insurance scam to Mr. Kelly, that would benefit both of them. His idea was that Bob had a friend, “Donnie”, who was terminally ill who would confess he was the murderer, thus removing any suspicion from Mr. Kelly, who could then receive the insurance payout. Donnie and Bob would receive $150,000 from the insurance proceeds for their assistance in the scam.
The only trick was that Mr. Kelly had to provide enough information about the murder to convey to Donnie so that the police would be convinced they had their murderer when Donnie confessed.
While Mr. Kelly initially denied any involvement in the murder, eventually he provided information that only the true murderer would know and was promptly arrested for first degree murder.
He appealed his murder conviction to the Ontario Court of Appeal who dismissed his appeal finding that the insurance scam was a variation of the typical Mr. Big sting and not an abuse of process.
The appeal court said:
…this case involved a police sting scenario that was a very modified version of a Mr. Big, without any violent criminal activity or gang aspect to it. Nor did the undercover officers befriend the appellant to make him vulnerable to pressure as a friend. It was an insurance fraud scheme.”
While the Mr. Big sting is illegal in the United States it has been a significant tool for Canadian law enforcement and has resulted in convictions that might never otherwise have been obtained.
Lawdiva aka Georgialee Lang
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