Time to kill Mr. Big

The criminal justice system exists to convict and punish the guilty. When the innocent are convicted there are two failures: an innocent is punished but almost as important a criminal goes free.

Such wrongful cases have become all too familiar in Canada; the cases of Donald Marshall Jr., David Milgaard, Erin Walsh 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. Unger was convicted of a 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 killer.

What went wrong? How could the wrong man be convicted?

There was some mischaracterized physical evidence -- for example a hair supposed to be from Unger was not his. But that evidence was not 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, a confession that, in hindsight was clearly false and obtained by police in a highly questionable fashion.

And that's where the problem arises. Unger's confession was a result of a notorious investigative method -- the "Mr. Big" technique.

In the Mr. Big technique, undercover police pretend to be members of a criminal gang. They befriend a suspect and offer to let the suspect join the gang promising money, drugs, sex or whatever they think will entice the suspect. 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 and that's where the confession comes in. In Unger's case the technique led to the confession that convicted him.

The tactic is not considered entrapment, because the police are neither committing crimes nor inducing the suspect commit a crime. The right to silence is not brought into play because the suspect is not detained by police (and does not even know he's talking to police). Constitutionally there is no reason to exclude the evidence of a Mr. Big confession.

But Mr. Big confessions are can be unreliable; almost by definition such confessions are made by desperate people who are bragging. Without some corroboration -- say information in the confession that would be known only to the real killer -- the confessions are next to worthless.

Obviously it is easy to blame people like Unger for making a false confession -- he was trying to join a criminal gang. But even if there is some fault on Unger, and he was a young man being manipulated by the RCMP to say exactly what they wanted him to say, the Mr. Big technique allows the real criminal to escape justice and, perhaps, to kill again.

Police must be allowed freedom to use a broad range of investigatory techniques. Mr. Big is a technique 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 should not be allowed in Canadian courts.