Appeals court says Durham police can’t sue Crown for ‘negligent’ advice in botched ‘Mr. Big’ murder sting

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Appeals court says Durham police can’t sue Crown for ‘negligent’ advice in botched ‘Mr. Big’ murder sting


“Mr. Big” — a controversial police sting technique that has come under fire for producing false confessions — is driving a wedge between his two closest allies.

Five years after Cobourg man Alan Smith was acquitted of first-degree murder following an elaborate and lengthy Mr. Big undercover operation, the Durham regional police who ran the sting and the Crown lawyers who advised them throughout have turned against each other in a fight over who’s at fault for the ill-fated investigation.

The resource-intensive probe ended in Smith charged with first-degree murder in region’s oldest cold case — the 1974 death of Beverly Smith (no relation) — after he provided two varying confessions to undercover officers. But the case crumbled in 2014, when a judge tossed Smith’s confessions, saying they were so unreliable you could “drive a Mack truck” through the holes.

Smith, who was acquitted after more than four years in jail, sued police and Crown lawyers for $19 million, claiming police misused their power and Crown lawyers should have known their tactics created a risk of false confessions.

His lawsuit has since set off an unusual fight pitting Crown lawyers against the police, who launched their own crossclaim alleging two prosecutors provided them with “negligent advice” during the sting.

“But for receiving this legal advice and direction, (Durham police) would not have proceeded with the investigation in the manner it was undertaken or charged (Smith),” reads the Durham police crossclaim, as quoted in a recent Court of Appeal ruling.

In a 64-page decision released last week, Ontario’s highest court ruled that the Crown lawyers could not be held liable for guidance given to investigators during the probe, underscoring that police and Crown lawyers have “separate and distinct” roles. While police investigate allegations of crime, the Crown assesses whether a prosecution is in the public interest.

“To put it bluntly, while police can seek legal advice from Crown Attorneys, they do not have to take it and the decision whether to lay charges is theirs alone,” reads the ruling, written by Justice Michael Tulloch.

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The ruling upholds a lower court’s decision finding that the Crown cannot be sued due to “prosecutorial immunity.” The status is given to Crown lawyers to allow them to be guided entirely by what’s in the interest of justice rather than be distracted by other considerations, such as whether they’ll be sued.

If Crowns were liable to be sued, it could have a chilling effect on their willingness to offer guidance and advice to police — potentially threatening “a long tradition in Ontario of police consulting with Crown Attorneys at the pre-charge stage,” Tulloch wrote.

But the dispute may not end there. Durham police are now contemplating whether to seek leave to appeal the decision to the Supreme Court of Canada, said C. Kirk Boggs, one of the lawyers representing the police.

The case “raises serious issues relating to the relationship between the Crown and the police,” Boggs said, adding that recent decisions on negligent investigations and the limits of prosecutorial immunity show Canada’s highest court needs to provide further guidance.

Richard Posner, the lawyer representing Smith, says his client’s suffering continues each day the matter drags on “while the Crown and the police are fighting amongst themselves.”

“Mr. Smith went through a horrific ordeal — he was prosecuted for a crime he didn’t commit, suffered the most severe psychological consequences that can be imagined, (and) he was the subject of mental torment and abuse by the police,” Posner said Wednesday.

“Our hope is that this matter can now proceed to trial on the merits, so that Mr. Smith can have closure on this matter in a case where he spent years in jail for a crime he didn’t commit.”

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A Mr. Big sting is an RCMP-created gambit aimed at solving cold cases, typically homicides where police may have a suspect but no evidence against him. The operation involves undercover officers infiltrating the life of their target, first befriending him and slowly bringing him into a circle of friends he is led to believe are criminals.

The target, who is drawn in by the financial benefits and companionship of a criminal organization, is made to believe that to gain the acceptance of the group, he must tell a crime boss — the Mr. Big — about a serious offence.

The operation has been used hundreds of times in Canada and led to successful convictions in homicides, including recently in the murder of Pickering woman Carmela Knight. But it has also drawn fire for eliciting false confessions, and in 2014 — just weeks after Smith’s confessions were tossed from an Oshawa court — the Supreme Court of Canada set strict limits on how the technique could be employed.

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Smith was first implicated in Beverly Smith’s death in 2008, when his ex-wife provided testimony pinning him with the murder. She and Smith lived across from Beverly at the time of the murder, which happened on the evening of Dec. 9, 1974.

But the ex-wife’s account later proved unreliable, and Crown lawyer John Scott withdrew a second-degree murder charge against him in July 2008, as there was no reasonable chance of conviction. Nevertheless, Scott “urged” Durham regional police to resume investigating Smith via wiretaps, according to Smith’s claim, as summarized by the Court of Appeal.

Months later, investigators launched Project Fearless, an increasingly complex operation that ended with Smith and an undercover cop disposing of a fake corpse covered in sheep’s blood. Smith was led to believe the corpse was a man killed by Mr. Big.

When Smith confessed to Beverly’s murder soon after, he believed he was talking to a homicidal crime boss. He later said he was terrified he would be killed if he didn’t confess.

“The officers in effect pushed the envelope with the use of a corpse to shake loose admissions from (Smith),” ruled Ontario Superior Court Justice Bruce Glass in his June 2014 decision.

According to the Durham police’s statement of defence, the officers involved in the sting relied “in good faith” on legal guidance from Crown lawyers throughout the investigation and in “concluding that they had reasonable and probable grounds to charge the plaintiff,” the Court of Appeal decision states.

The recent ruling from the Court of Appeal is in line with most court decisions in cases in which people try to sue the Crown in civil court, said Carissima Mathen, a law professor at the University of Ottawa. That is, it recognizes the broad immunity for Crown decisions and shows judges are “very reluctant to allow exceptions to that.”

Mathen noted the Court of Appeal was concerned about the chilling effect that could come into play if Crowns were liable for their advice to police, showing that “there’s a sense that in itself is a valuable thing to have happen.”

Lisa Jorgensen, a Toronto criminal defence lawyer who is not connected to the case, agrees that pre-charge consultation between police and Crown lawyers should continue and she hopes there’s no chilling effect in the opposite direction.

“I wouldn’t want police services to take away from this decision that they shouldn’t consult with Crowns, that they shouldn’t get legal advice,” she said in an interview.

“It’s just that at the end of the day, that does not negate their responsibility to still exercise their discretion in a way that they think is appropriate.”

Wendy Gillis





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