Background
In September 2014, Carmela Knight was murdered in her home. The scene was staged to look like a suicide. At the time of her death, Ms. Knight was involved in divorce proceedings with her husband (David Knight), and her lawyer just filed a motion for exclusive possession of their matrimonial home.
While Mr. Knight was an obvious suspect in the murder, he had an alibi. Acting on a tip, the police learned that his friend, Mr. MacDonald, had done some work in the family home around the time of her death and began to suspect they worked together to kill Ms. Knight.
The Mr. Big Operation
Mr. MacDonald was targeted in a “Mr. Big” operation which was commenced in November of 2014. It involved 40 interactions with the appellant over the course of three months and nine days. All conversations between Mr. MacDonald and the UCOs were audio-recorded.
The primary Undercover Officer, “Rob”, befriended Mr. MacDonald in the Port Hope area, where he lived at the time. Rob pretended to fence stolen property; he engaged the appellant in some of these dealings, providing him with modest remuneration. At some point during their relationship, Mr. MacDonald told Rob that he had been questioned about a murder, but denied that he was involved. Mr. MacDonald told Rob that he knew Mr. Knight and did work at the house where his wife had been killed.
Rob eventually introduced the appellant to another UCO, “Uncle Dan”. Rob told Mr. MacDonald that he considered Uncle Dan to be his mentor who had helped him out in the past. Mr. MacDonald was also introduced to another UCO, “James”, who was portrayed as a long-time friend of Rob. Mr. MacDonald was told that James had terminal cancer and did not have long to live.
On January 31, 2015, Mr. MacDonald went ice fishing with Rob on Lake Simcoe. As they drove to the lake, they were pulled over by police engaged in a fictitious traffic stop. They were told that the police were looking for suspects in a recent robbery. After the appellant and Rob identified themselves to the officer, the officer contacted dispatch on his radio with their information and advised Mr. MacDonald that an officer investigating Ms. Knight’s murder wished to speak with him.
Mr. MacDonald and Rob continued on their trip to the lake and Mr. MacDonald told Rob that he had retained a lawyer to provide him with advice concerning the murder investigation. He said that the lawyer told him that the police did not have a case against him.
After arriving at the ice fishing hut, the men chatted. Rob showed Mr. MacDonald a fictitious newspaper article, dated ten years earlier, concerning the discovery of a body in the Niagara River. Rob told the appellant, “if it wasn’t for fuckin’ Uncle Dan, I would not be fuckin’ sitting here with you. Nor would fuckin’ James be fuckin’ walking the streets and fuckin’ living an extra nine years.” The two men continued to talk. Rob never specifically told Mr. MacDonald what Uncle Dan did to help him. Nonetheless, Mr. MacDonald asked Rob whether Uncle Dan could help him as well.
What happened next is at the heart of the appeal. Mr. MacDonald and Rob talked about whether the appellant should call his lawyer before speaking to Uncle Dan. The two men went back and forth and Rob told Mr. MacDonald that it was likely that his lawyer would call the police and they would simply tell him very little about the investigation. It would not be helpful. Rob further stated , “I think you need to talk to Uncle Dan, however you wanna do it”. Rob then made a call to Uncle Dan, who happened to be ice fishing in a nearby hut. Before Uncle Dan arrived, Mr. MacDonald confessed to Rob that he killed Ms. Knight and that he and Mr. Knight planned the murder in advance.
When Uncle Dan arrived, he asked Rob to leave so that he could have a private conversation with Mr. MacDonald. Mr. MacDonald confessed again and asked Uncle Dan for his help. Uncle Dan said he would be in touch and they would speak again soon about potential next steps.
On February 7, 2015, Uncle Dan, Rob, James, and Mr. MacDonald met at a location that was portrayed to be Uncle Dan’s boardroom. Uncle Dan proposed that James, who claimed to be dying of cancer, would make a statutory declaration in which he would admit to murdering Ms. Knight. In return, Uncle Dan agreed to create trusts for James’ two children in the amount of $10,000 each. It was agreed that Mr. MacDonald would repay this money over time.
At the boardroom meeting, Uncle Dan insisted on a detailed confession from Mr. MacDonald in order to make the statutory declaration appear more reliable. This involved a visit to the murder scene where Mr. MacDonald provided further details about the plan and the murder. During the course of Mr. MacDonald’s confessions he revealed that Mr. Knight had promised to pay him $100,000 to kill Ms. Knight and arrange a job for him in Florida. However, at that point, the appellant had only been paid $2,600.
Mr.. MacDonald told the UCOs that, since the murder, Mr. Knight had disappeared and that he was frustrated and wanted to get paid what he was owed. Uncle Dan said he would locate Mr. Knight and following a series of meetings Mr. MacDonald and Mr. Knight were arrested. Both Mr. Knight and Mr. MacDonald were charged and convicted with first degree murder, conspiracy to commit murder, and arson. Both appealed their convictions, primarily on the admissibility of Mr. MacDonald’s admissions.
Mr. Big Operations and Reliability
While the Mr. Big technique is undeniably an effective investigative tool, courts are cognizant that the risk of unreliable confessions, and wrongful confessions, loom over the trier of fact.
Stemming from the Supreme Court’s decision in R v. Hart, 2014 SCC 25, confessions derived from Mr. Big scenarios are presumptively inadmissible and the judge must determine whether, on balance, the probative value of the confession outweighs its prejudicial effect. Where the state recruits an accused into a fictious criminal organization in the pursuit of a confession, a judge must also scrutinize the conduct of police to determine if an abuse of process was part of coercing the target into a confession. A main focus of the analysis is whether police overcame the will of the accused and coerced a confession.
In this case, the Mr. Big Operation into Mr. MacDonald involved over 40 interactions, all audio-recorded, over the span of three months. The primary UCO befriended Mr. MacDonald and engaged him in fencing property to gain trust. Eventually, “friendship” led to Mr. MacDonald confessing to killing Ms. Knight.
The judge characterized the operation as relatively brief, and the fictitious relationship as one of friendship and trust. Importantly, the court found the operation did not involve any violence, Mr. MacDonald was not the subject of any threats, and any inducements offered were minimal with no bearing on his ultimate confession. Specific details about the murder that were elicited from Mr. MacDonald also provided significant markers of reliability.
Appeals Dismissed
On appeal, Mr. MacDonald argued that the judge erred in not finding that the conduct of the police leading up to his ice hut confession amounted to an abuse of process, including trying to prevent him from calling his lawyer. Ultimately, the Court of Appeal upheld the conviction, finding that Mr. MacDonald was given a choice to decide what he wanted to do.
In dismissing Mr. MacDonald’s appeal, the Court found:
[66]… It cannot be said that the single, brief exchange between the appellant and Rob in the ice hut about consulting a lawyer would offend society’s notions of fair play and decency so as to undermine the integrity of the justice system.
Conclusion
In this case, the court found that actions by the police (UCO) in attempting to dissuade the suspect from calling their lawyer will not necessarily lead to an abuse of process. While the court had concerns about the UCO’s attempt to dissuade the accused from calling his lawyer, the court concluded that the conversation about Mr. MacDonald’s lawyer did not denigrate the lawyer and had no real impact on the accused’s inculpatory statements. One of the take aways from this decision is that police should be cautious to avoid any attempts at dissuading a “target” from contacting counsel.
If you require additional information or further assistance, please contact David McKnight and Naomi Krueger.
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