© Gary Kean
Corner Brook lawyers, from left, Robby Ash and Jamie Merrigan, represented Nelson Hart in the Supreme Court of Canada.
The Supreme Court of Canada has dismissed the Crown’s attempt to have the Supreme Court of Newfoundland and Labrador's Court of Appeal’s decision to overturn Nelson Hart’s murder conviction reversed.
Hart, who was represented by Corner Brook lawyers Robby Ash and Jamie Merrigan when arguments were made in Ottawa last December, had been found guilty in 2007 of killing his twin daughters.
His three-year-old twin daughters, Karen and Krista, drowned in Gander Lake on Aug. 4, 2002. Hart was not charged with first-degree murder until 2005, following an elaborate undercover investigation conducted by the RCMP known as a Mr. Big operation.
He was convicted in 2007 after a trial, but that conviction was overturned by the province’s appeal court in 2012 and a new trial was ordered.
The Crown then turned to the Supreme Court of Canada to uphold the conviction, but Ash and Merrigan argued the RCMP’s techniques in the Mr. Big sting contained elements that would meet the threshold of shocking the community. They felt there should be a stay of proceedings against Hart, or a new trial if the Crown could come up with evidence other than that gained through the undercover operation.
The Supreme Court rendered its decision to dismiss the Crown’s appeal Thursday morning.
“This case is more akin to entrapment,” stated the court’s decision. “The police employed the power of the state to create an elaborate invented reality, designed to exploit a vulnerable person, introduce him to criminality, and force him to incriminate himself. In addition, the police witnessed the respondent suffering seizures both before the investigation began and during the operation itself. Yet, the undercover operatives continued to send him on driving assignments.”
The court concluded that Hart’s subsequent confession to killing his daughters was “of dubious reliability and is unsupported by any corroborative evidence or detail.” The ruling stated that evidence obtained in the Mr. Big operation must be excluded.
(Previous story from March 3, 2014)
Hart's lawyers believe RCMP's investigation details would shock the public
CORNER BROOK - When Robby Ash and Jamie Merrigan began reading over the transcripts from Nelson Hart's murder trial, there was a shocking element that was never really pursued and which stood out to them.
The two Corner Brook lawyers believe they are not the only ones who would be taken aback by the lengths to which the Royal Canadian Mounted Police went in the pursuit of getting Hart to admit he murdered his twin daughters.
In fact, they hope they have made successful arguments to the Supreme Court of Canada for a stay of proceedings against their client based on the police having put not only Hart, but members of the general public, at risk through its investigative technique.
Hart's three-tear-old twin daughters, Karen and Krista, drowned in Gander Lake on Aug. 4, 2002. He was not charged with first-degree murder until 2005, following an elaborate undercover investigation conducted by the RCMP known as a Mr. Big operation.
Drawn into a fabricated world of organized crime by police officers acting as members of a law-breaking syndicate, Hart eventually gave a confession that he killed his girls.
He was convicted of their murders in 2007, but that conviction was overturned by the Supreme Court of Newfoundland and Labrador's Court of Appeal in 2012.
The Crown has now appealed the highest provincial court's decision to the Supreme Court of Canada.
At the hearing of the appeal in Ottawa in early December, Ash and Merrigan argued the Mr. Big investigation that led to Hart's confession contained elements that would meet the threshold of shocking the community.
Before the Mr. Big scenario was conducted over a nearly five-month period in the winter and spring of 2005, Hart's driver's licence had been suspended.
Hart is an epileptic and was believed to have suffered a seizure that contributed to an accident in 2002, not long after the girls drowned.
Based on that information, the RCMP notified the provincial Motor Registration Division, advising those authorities that Hart was an active epileptic and should not be driving. His licence was subsequently revoked.
By the time of the Mr. Big operation, Hart had been given medical clearance to resume driving and once again held a legitimate driver's licence.
As part of the ensuing Mr. Big operation, Hart was hired as a courier for what he initially thought was a legitimate enterprise. He eventually was told by the undercover operatives that he was actually involved in a criminal organization.
Hart's job was to transport various items - cash, cigarettes, snowmobiles, diamonds - to various locations. Although he sometimes took public transportation, including planes, trains and buses, there were several occasions when he would drive vehicles, including cube vans loaded down with cargo, across long distances.
In all, there were nearly 60 scenarios in which Hart interacted with undercover police officers.
During the 26th scenario, the officer accompanying Hart witnessed what he would later testify to at Hart's trial as being unusual behaviour. He came to the conclusion that Hart was experiencing a seizure.
The officer testified that he managed to get Hart to go to a washroom to regain his composure, giving the officer an opportunity to call his RCMP supervisor to see what he should do.
That conversation between the undercover officer and whoever he called was not pursued at trial.
After this incident, the RCMP asked Hart to drive relatively long distances on at least five different occasions. Those trips included two trips from St. John's to Corner Brook and St. John's to Deer Lake. They also included interprovincial travel in a cube van between Cornwall, Ont. to Montreal, Que. and in a U-Haul truck from Moncton, N.B. to Halifax, N.S.
The fifth trip was between Halifax and Amherst, N.S. in a U-Haul.
The type of vehicle used during the trips on the Trans-Canada Highway across the island of Newfoundland was not specified in the trial transcripts.
Given the RCMP had sought the suspension of Hart's driver's licence after police had become aware of his active epilepsy in 2002, Ash and Merrigan said they were flabbergasted to see the police took no such action after realizing his seizures had returned during the Mr. Big scenarios in 2005.
"The RCMP put an active epileptic behind the wheel, incentivizing him to drive by paying him," said Ash. "In the RCMP's own estimation that's dangerous. But, because they are in their noble pursuit of a confession so they could lay a murder charge, they turned a blind eye to that, which they weren't willing to do before."
Ash said the police had other options that could have kept the integrity of the Mr. Big operation intact while not putting a potentially dangerous driver on public highways.
"What the police could have done was continue the operation, but give Mr. Hart a different role," said Ash. "They were obviously exerting great influence over him by this time. They could have gotten him to transport these goods by bus or plane, which they had done before.
"I don't know why they didn't."
Uncomfortable with Hart's driving
Merrigan said if a legitimate courier business permitted one of its employees to drive when they were known to be an active epileptic, they could be charged with offences under not only the Occupational Health and Safety Act, but also the Criminal Code of Canada for endangering public safety.
"We submit that what the RCMP did here was beyond appalling," said Merrigan.
One officer who had been accompanying Hart during a scenario subsequent to the witnessed seizure testified that, at one point, he was so uncomfortable with Hart's driving that he insisted on doing the driving instead.
Eventually, the investigating officers stopped accompanying Hart on his bogus missions.
The police, continued Merrigan, have a duty to be active in their protection of the public
"They have an obligation to act in ways the rest of us can't in the pursuit of that duty," said Merrigan. "Here, our argument is they abdicated that duty and acted against it."
There is no doubt Hart made choices of his own throughout the Mr. Big operation, including knowingly participating in what he thought was criminal activity.
The general public, argued Ash, did not have any choice in sharing the road with him if he was prone to seizures.
"Thankfully, this operation concluded without a catastrophe, without the cube van plowing into a bus full of kids or something happening to Nelson Hart himself," said Ash. "It's really the danger to the public that makes this beyond the pale."
On the advice of Ash and Merrigan, Hart was not made available for an interview for this story. He remains in prison since he has not applied for bail since his conviction was overturned.
His lawyers are eagerly awaiting the ruling of the Supreme Court of Canada, which also heard from a number of intervenors interested in the Mr. Big tactic of police investigations and the issue of false confessions.
"If we can prove that the police conduct in this case shocks the community, the remedy for that most oftentimes is a stay of proceedings," said Ash.
A stay of proceedings would put a halt to the prosecution of Hart, unless the Crown can produce other evidence on which it feels it can get a conviction.