STORY: "Man acquitted of murder after Mr. Big sting sues police and Crown," by Wendy Gillis, published by the Toronto Star, on January 25, 2016."
SUB-HEADING: "Alan Smith, who spent years in jail after falling for the controversial technique now reined in by the Supreme Court, is seeking $19 million in damages."
PHOTO CAPTION: "Beverly Smith, a 22-year-old new mom, was shot dead in the kitchen of her home in Raglan, Ontario while alone with her infant daughter on a frigid December night in 1974. Her former neighbour, Alan Smith, served five years in jail for her murder before being exonerated." Photo: Richard Lautens;
GIST: "The target of an elaborate, lengthy and ultimately failed “Mr. Big” sting has filed a $19-million lawsuit against a dozen officers from three Ontario police forces who ran a controversial police operation aimed at solving Durham region’s oldest unsolved murder. In a rare move, Alan Smith is also suing the Attorney General of Ontario and three Crown attorneys who counselled homicide investigators throughout their increasingly complex undercover operation. Smith alleges the Crowns knew, or should have known, the police tactics in the case created a risk of false confessions or wrongful imprisonment. “The police misused their power and breached their oath of office. The Attorney and his agents misused and abused their offices,” Smith alleges in the statement of claim, filed in Toronto court Friday. The conduct of all involved in the Mr. Big sting was “outrageous, reckless, wanton, entirely without care, intentional, deliberate, callous, (and) disgraceful,” alleges the claim, prepared by lawyers Richard Posner, Brian Eberdt and Alison Craig.......... In July 2014 Smith was acquitted of first-degree murder in the 1974 slaying of 22-year-old Beverly Smith (no relation). During a Mr. Big police sting, Smith had confessed — twice — to being involved in the shooting death of the young mother while she was alone in her Raglan home, her infant daughter in the next room. Smith was in jail awaiting trial for more than four years. Ontario Superior Court Justice Bruce Glass quashed the case and threw out all evidence gathered during the nearly yearlong sting after finding the police operation “pushed the envelope” and produced confessions full of holes “you could drive a Mack truck through.” “In my opinion, the use of this information obtained in this manner would shock the sense of trial fairness to Canadian society,” Glass wrote. Three days after Smith’s acquittal, the Supreme Court of Canada placed strict new limits on the Mr. Big technique, ruling that any confessions produced during the gambit must be carefully scrutinized before being ruled admissible in court because of the danger of false confessions. Created in Canada in the 1990s, the Mr. Big sting is an undercover operation aimed at obtaining a confession from a suspect, often someone police believe is responsible for a crime but have little evidence against. Often used in cold cases, the subterfuge involves convincing the target of the sting that he is consorting with criminals and must confess to a serious crime — usually to the boss, Mr. Big — to gain trust and entry into the criminal group. Critics have said the sting is unethical and produces unreliable confessions. It often offers the target companionship and significant financial benefits, making the sting particularly effective on socially isolated and poor suspects. Among the biggest criticisms is that police contrive a situation that is so beneficial to the suspect — they suddenly have new friends and money — that they have more incentive to lie than tell the truth when prodded about a murder; in essence, they will say anything when membership in the group is on the line. The Supreme Court, however, did not entirely ban the sting, acknowledging that it can produce “valuable evidence.” A confession, for instance, can be more reliable if it includes information only the killer would know. The sting involving Smith was launched after he had already been charged, then cleared, in Beverly’s murder.
Smith first became a prime suspect in 2008,
when his ex-wife came forward with new information that implicated him.
But the case quickly fell apart when her evidence was proven false.
Still convinced Smith was guilty, Durham police regrouped and launched
their Mr. Big operation, coined “Project Fearless,” in 2009. Investigators lured Smith in with his pastime,
fishing, by tricking him into thinking Smith had won a weekend fishing
package. An undercover officer — who cannot be identified because of a
publication ban — posed as another lucky contest winner and easily
became fast friends with Smith, who was a broke loner living in his
daughter’s basement. Gradually, the undercover officer began
involving Smith in fake drug deals and paying him for help. Soon Smith
was introduced to his new best friend’s supposed crime boss, the
so-called Mr. Big, then pushed into increasingly bizarre situations
meant to provoke a confession. At the height of the sting, Smith was made to
believe he had become involved in a murderous robbery gone wrong. Using
sheep’s blood and a weighted-down mannequin wrapped in tarps,
investigators tricked Smith into believing he’d helped dispose of the
body of a man killed by Mr. Big. Because Smith now had supposedly incriminating
information about Mr. Big, the undercover officer posing as the crime
boss told Smith he must provide information about his own criminal past,
as insurance that Smith wouldn’t go to police. Smith went on to make
two wildly differing confessions, one in which he killed Beverly Smith
alongside another man, and another where he did it alone. “They put me through all kinds of horrific scare tactics. I thought my life was in jeopardy,” Smith, now 63, told the Star in 2014. “Is this what we do in this country?” Smith’s lawsuit alleges police exploited
Smith’s psychological weaknesses “to cause severe and lasting emotional
harm and psychological damage.” “If not for the defendants’ negligent and
unlawful actions, (Smith) would not have been subjected to the anxiety
and trauma of the Mr. Big operation; would not have been arrested as a
result of his false confessions; would not have been prosecuted for
first degree murder; and would not have spent any of this time in
prison,” the statement of claim alleges. After Smith’s acquittal, Alison Craig, who
represented Smith alongside Joanne McLean in his criminal proceedings,
told reporters police had “not only crossed the line but they trampled
it.” “It resulted in a false confession and an innocent man being in jail for many years, and hopefully it won’t be repeated.”
The entire story can be found at:
http://www.thestar.com/news/crime/2016/01/25/man-acquitted-of-murder-after-mr-big-sting-sues-police-and-crown.html
See related Toronto story by Toronto Star crime reporter Wendy Gillis: "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,” says 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 (AIDWYC) 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, AIDWYC 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, AIDWYC’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 AIDWYC’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. Later this year, AIDWYC plans to submit for ministerial review any 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.” Later this year, that expertise is set to take him to Australia, where homicide investigators were taught the made-in-Canada sting from members of the RCMP, Moore said. Australian courts are now “between a rock and a hard place,” Moore says, 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.”
The entire story can be found at:
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