The Ethics of undercover police operations

Alberta Prime time - Discussing the latest in crime topics are Greg Dunn a Calgary Criminal Defence lawyer, Mark Cherrington a Youth Justice Advocate, and Dr. Monetta Bailey with Ambrose University.



The Ethics of Undercover Police Operations

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          Clip:  Shyback: I kind of gave her an ultimatum.

          Greg: What was your ultimatum?

          Shyback: Things would have to change or she’d have to go.

Michael: It was during that police interview in 2013 Ellen Shyback discussed the challenges in his relationship with his common-law wife Lisa Mitchell. That same year nearly 12 months after Mitchell went missing, police staged a collision to establish a false relationship with Shyback. An undercover female officer told the Calgary courtroom earlier this month how she intentionally drove into Shyback’s car as an opportunity to meet the suspect. The sting dubbed operation Aurora led to Shybacks alleged confession and arrest. Shyback has been charged with second degree murder and interfering with the body he has pled not guilty. 

Greg, the sting isn’t the first of its kind for police, what did these Mr. Big operations typically consist of?

Greg: Michael, Mr. Big’s are originated, really, its a Canadian police invention, originated in the 1980s and they’re essentially very complex, generally investigations that go over a fairly long period of time and police use them when they got no other leads. The case has gone cold but they suspect that they have someone that may be a suspect in an investigation. What they entail is a complex investigation in which the target is essentially seduced into a fictitious organized crime - a criminal organization - and so what happens is they’ll be an initial meeting like in this particular case in which they’ll stage a car accident and then they’ll meet this individual and they’ll secure this individual in terms of sending him on small errands promising him gifts, promising him some money, and eventually the individual works his way up in this fictitious criminal organization. He works himself up to a point in which he’s going to be promised to be part of the, essentially, the ruling order of the criminal investigation. But before he can partake in that, he has to be M.r Big and he has to be forthright with Mr. Big, and he has to tell Mr. Big the whole truth. This particular meeting is used to glean essentially a confession for what really is otherwise a police interview. Overall they are extremely effective. They almost always obtain confessions from individuals because these guys really want to be part of the criminal organization and some of them tend to be false and some of them tend to be true and tend to be accurate.

Michael: Ok now, similar Orgon operations to be criticized in Canadian courts in some cases, evidence has been ruled inadmissible. Greg, when should evidence be allowed in the courts?

Greg: Well look, historically defines lawyers have been fighting these particular Mr. Big operations for a very long period of time. We were always of the view that they had considerable issues with respect to the reliability of statements because of the enormous amount of pressure that’s exerted on these individuals. They’ve always been deemed to be admissible, and the reason is because they’re cleverly designed to fall outside of really Canadian constitutional protections. A recent decision of R. Vs Hart or Regina versus Hart, which came by the Supreme Court of Canada, kind of flipped the law on it’s head and it said that these confessions that arise from these Mr. Big operations or crime boss investigations are going to be presumptively inadmissible and the Crown’s going to have to show that they’re reliable. So essentially they’re not admissible anymore - that case has changed a landscape. The Crown has now got the burden to show that they’re admissible and that they’re reliable and what they’ll so is they’ll essentially rely on evidence and respect to the nature of the investigation the frailties are not frailties of the target and what’s especially important in determining reliability is what we call hold back information. If this particular individual knew a lot about the event, a lot about the particular offense. He had specific details that were not released to the general public, which comported with what we call police hold back information, then the statements going to be seen as inherently reliable and possibly admissible in a court of law.

Michael: Ok, Mark - how far should police be allowed to push the limits in order to get to the truth?

Mark: Well, I think our police always need to be innovative, they need to look at ways to solving crime and in working with all sorts of resources that they have and I think that, as Greg has said, that the true gatekeepers are our courts and our defence lawyers, so I think that, you know, what I like to see police in this incident, they were very innovative, they looked at ways to sort of get to the truth and I think it’s an area of community safety and for the aspect of justice that we have to give our police the responsibility and a wide berth to do their investigations and as long as it falls in with the parameters of our Charter and our Constitution then I think that’s ok and again we have our court system to vet that and if its inappropriate, then it’s to nobody’s interest, including the police if someone’s acquitted based on a breach of their rights.

Michael: Monad, where should the parameters be in terms of usage?

Monetta: well, we have to be very careful about usage because while I agree with Mark that the police need to use every tool at their discretion, they need to use these tools in order to do their job. Some reports suggest that up to 25% of these confessions can be false confessions. And you know, some populations are more subjected to false or as susceptible to false confessing falsely, for instance, as Greg described, if you are befriending someone and you have someone who is craving that friendship or that connection, those individuals are more likely to falsely confess that other individuals, or if there is seem as some reward, some financial reward, then we have individuals who are marginalized financially more likely to confess. So there has to be a lot of parameters around the usage and the practices that the police engage in, but here is where I agree with Mark again, is that the courts then, really have that responsibility to vet that evidence, and as Greg suggested the prosecutor has the responsibility to show that that information is reliable, given kind of those questions around false confessions.

Michael: Okay, time for a break - but when we come back, the bundling of legal services for Albertans and changing policies for transgender inmates - more from our crime panel in a moment.

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