A trip to a casino, a poker game, drinks and lap dances at a strip club were part of an undercover Mr. Big operation that led Toronto police to arrest two of three suspects wanted for the beating death of a 25-year-old man almost three years ago.
Details of the elaborate sting — and the unusual legal challenges it created — were kept from a jury that this week convicted two men accused in the midtown attack that killed Zaher (Zack) Noureddine, 26, on Dec. 30, 2015.
Jurors were not told the Mr. Big operation resulted in a confession by one of the accused, nor that a judge last month declared a mistrial after prosecutors played an earlier jury a video she ruled had not been properly introduced into evidence. They also didn’t hear about all the entries on the trio’s rap sheets, nor details of an outstanding robbery charge that the Crown argues has similar facts to the Noureddine killing.
On Thursday, Patrick Smith, 28, was acquitted of first-degree murder but found guilty of second-degree murder. His co-accused, Matthew Moreira, 34, was convicted of manslaughter. Smith was also convicted of assaulting Mitchell Conery, Noureddine’s co-worker, while Moreira was found guilty of robbing Conery.
William Cummins, 32, still faces a first-degree murder charge and robbery charge. He and Moreira are also charged with committing a violent robbery weeks before about 100 metres from where Noureddine was killed.
The suspects came on the police radar a few days after Noureddine’s death, when two witnesses reported seeing a suspicious car and three occupants close to the crime scene. That led police to obtain video surveillance from a nearby apartment building, at 100 Merton St., that showed the three men together at various points before and after the attack.
In one video, taken hours after Noureddine was killed, the three men were recorded in an elevator laughing and recreating the attack.
Within a week, police had the three under surveillance and were building their case.
In March 2016, investigators decided to undertake a Mr. Big operation — which involved using undercover officers to establish a friendship with Smith to create sufficient trust so that he would cop to the brutal crime.
Details of the elaborate Mr. Big sting were outlined in an 18-page pretrial ruling on the admissibility of statements made by Smith to undercover officers. Superior Court Justice Maureen Forestell’s ruling meant the jury heard nothing about what was done or said during the sting. (Forestall was the judge on the first trial, which ended in mistrial, but her ruling carried over to the retrial.)
Mr. Big operations are a costly and controversial police tactic originally designed to yield a confession from a suspect tricked into thinking he’s joined some kind of criminal organization. A 2014 Supreme Court decision ruled such a confession based on that approach was “presumptively inadmissible.”
As a result, police have changed how Mr. Big ploys unfold.
Instead of convincing a suspect he’s joined a Mafia-type criminal enterprise — undercover officers, in this case, befriended Smith and made out like they were legitimate businessmen who operated as “fixers” who dabbled in criminality.
“There was to be no overt criminality (from the officers) and no violence or threats of violence,” Forestell wrote in her ruling.
The sting began when two undercover officers were inserted in a jail cell with Smith after he was arrested for stealing gas on March 7, 2016. One of the officers, whom the ruling calls K, was successful in striking up a conversation with Smith about women, drinking and playing poker. K also told Smith he had an older friend who gave him money to play poker, bought drinks and paid for lap dances at a nearby club. Smith gave K his phone number and they agreed to go to Casino Niagara with another man, G, also an undercover officer. The officers — whose identities are protected under a publication ban — secretly recorded their interactions with Smith.
On March 8, 2016, G picked up the tab for the trio to drink and have lap dances at the Sundowner, a Niagara Falls, Ont. strip club. They also hit the casino.
During that meeting, Smith spoke of selling drugs and said when he is disrespected “there’s no stopping me, like, I lose my mind.” The officers later ensured Smith, who was subject to a curfew under bail conditions, was home in time, the ruling says.
After that evening, the undercover officers continued to communicate by telephone and text message with Smith, and met up with him again in at a pub where they spoke of “work, women, partying and fighting.” Smith told K that he loved to fight and had martial arts experience.
At another pub meeting, Smith told K “his boy,” referring to Cummins, had been arrested for an unrelated robbery and he was concerned his car would be connected back to him. In response, K told Smith G was “a bit of a magician” and said he’d seen the other officer “pull rabbits out of a hat.”
Over a number of weeks, the deception deepened. The officers spun bogus tales all designed to suck Smith into believing he was keeping company with men who could do things for him, as long as he showed them honesty, loyalty and respect.
By mid-April, Smith was anxious to connect with Cummins, who had warned him not to talk by phone. Smith told his new friends he needed “clean” phones — ones the cops weren’t bugging — for himself and Cummins.
One day, while driving past the scene of Noureddine’s beating, Smith told K “that’s the place where the thing happened” — but the officers determined he wasn’t sober enough to give a usable confession.
They held off until their next meeting, in a Mississauga lounge.
After weeks of wining and dining, Smith opened up to the two undercover officers — even taking them on a “walk-through” of how the evening unfolded. He pointed out surveillance cameras after one of the officers gave “the impression” he “could take care of evidence on surveillance cameras,” according to Forestell’s ruling.
On April 12, 2016, Smith told the officers Cummins’ had “dropped one guy” — Noureddine — then turned to fight the other while Smith said he “smoke(d) buddy that died.” He described hitting one of the victims a couple of times and, as Cummins was “taking care of him,” Smith said he saw that the “guy that died” was getting up and kicked him in the face.
He said he learned a day later that Noureddine had died.
Toronto police arrested Smith and Cummins on April 13, 2016, the day after Smith confessed to the undercover officers, and charged them with murder.
But this Mr. Big operation had a twist.
Normally, the Crown wants Mr. Big confessions admitted into evidence and must, therefore, prove the statements are reliable.
In this case, they needed to demonstrate they were not.
That’s because in his Mr. Big confession Smith told the officers Moreira — whom he called B.K. — was not really in on the beating. Smith said he was there, but “never made any kind of moves,” according to Forestell’s ruling. Smith also claimed Cummins had been “jumped by two guys.” The Crown said both were lies.
Rather than ask to admit Smith’s entire confession, prosecutors Bev Richards and Mihael Cole sought permission to use Smith’s statements during cross-examination — to demonstrate he lied to his “new criminal friends.”
The crown attorneys also wanted admitted into evidence Smith’s boasts to the undercover officers about his experience in martial arts and his love of fighting, Forestell wrote in her ruling.
But the judge concluded it would be an abuse of process for the Crown to use the undercover statements for the purpose of cross-examining Smith.
“The use of deceit and trickery to elicit a reliable and true confession to a crime will, in some circumstances, be acceptable but the use of deceit and trickery to elicit bad behaviour and lies for the purpose of a future attack on credibility and character cannot be acceptable,” she wrote, adding she was not suggesting police sought to elicit bad behaviour and lies, nor that they engaged in any misconduct.
Moreira’s lawyers Chris Hicks and Jessica Zita, meanwhile, wanted the jury to hear Smith’s very favourable evidence — that their client “wasn’t involved” in the attack on Noureddine.
Forestell said that would be OK, as long as Smith didn’t testify.
But he did. So, in the end, jurors never heard anything about the confession or the Mr. Big operation.
Betsy Powell is a Toronto-based reporter covering crime and courts. Follow her on Twitter: @powellbetsy