The criminal justice system exists to convict and punish the guilty. But convicting the innocent creates two failures: someone is unjustly punished and, almost as importantly, a criminal goes free.
Such wrongful conviction cases have become all too familiar in Canada. The cases of Donald Marshall Jr., David Milgaard, and Erin Walsh have all shown the fallibility of Canadian justice.
The Kyle Unger case is just the latest example of an innocent man freed after a wrongful conviction and years in prison. He was convicted of the brutal sex slaying of a teenager at a rock concert, a killing that now seems likely to have been committed by someone who told the RCMP Unger was the culprit.
What went wrong? How could the courts convict the wrong man?
There was some mischaracterized physical evidence; for example, a hair supposed to be from Unger wasn’t his.
But that evidence wasn’t enough to drive the wrongful conviction. As Manitoba Justice Minister Dave Chomiak said, “all the other available evidence would not have sent him to jail.”
What convicted Unger was a confession that, in hindsight, was clearly false and one police obtained in a highly questionable fashion.
That’s where the problem arises. Unger’s confession was the result of a notorious investigative method, the Mr. Big technique.
In a Mr. Big operation, undercover police pretend to be members of a criminal gang. They befriend a suspect, whom they offer to let join the gang by promising enticements such as money, drugs or sex.
Eventually, they introduce the suspect to the fake head of the supposed gang, Mr. Big. Mr. Big then demands a confession to some serious crime in order to prove the suspect is worthy of joining the gang. That’s where the confession comes in. In Unger’s case, the technique led to the evidence that convicted him.
The tactic is not considered entrapment because the police are neither committing crimes nor inducing the suspect to commit an offence. The right to silence doesn’t come into play since police don’t detain the suspect. Constitutionally, there is no reason to exclude the evidence of a Mr. Big confession.
But such evidence can be unreliable. Almost by definition, the confessions come from desperate people who are bragging. Without some corroboration, such as information that only the real killer would know, they are next to worthless.
Obviously, it’s easy to blame people like Unger for making a false confession as he was trying to join a criminal gang. But even if there is some fault on Unger, the Mr. Big technique allows the real criminal to escape justice and, perhaps, to kill again.
Moreover, confessions, no matter how they come about, receive great weight even by educated people. I teach a course on evidence at Osgoode Hall Law School, where almost every year students, on hearing some confessions aren’t admissible, say they can’t even imagine that they’re false. But the effect of letting a jury hear a confession is overwhelming.
If it’s false, a wrongful conviction is very possible.
Police must have the freedom to use a broad range of investigative techniques. Mr. Big is one that can work but only where it leads to hard evidence directly linking the suspect to the crime.
Standing alone, Mr. Big is closer to a Mr. Zero. It leads to unreliable and misleading confessions and shouldn’t be allowed in
Canadian courts.
James Morton is a lawyer with Steinberg Morton Hope & Israel LLP and a past president of the Ontario Bar Association who teaches evidence at Osgoode Hall Law School.
