Police Error, Misconduct, & Bias: Preventing Wrongful Convictions Starts at the Investigatory Level
by Louise Turner
Wrongful convictions stand as a pillar of injustice in Canada’s society. Police misconduct, witness testimony, human error, and biases all contribute to the number of individuals that are incarcerated as a result of wrongful convictions. While efforts are being made to alleviate these contributing factors to wrongful convictions, one area of concern is still sanctioned by the government and not being addressed; Mr. Big Operations (MBO’s) (1). Over the years, guidelines have been discussed and ruled by the Supreme Court of Canada in R v Hart and R v Mack (2). These operations cause wrongful convictions through police error, tunnel vision, and biases all at the initial investigatory level. Expensive and time-consuming, MBO’s have caused wrongful convictions due to false confessions. R v Unger, a case from Manitoba (3), highlights issues with MBO’s including tunnel vision and unreliable confessions.
Police are under immense pressures to lay charges in high-profile criminal cases. The pressure may come from the media, family members of the victim, or police force itself. In situations where there may be little evidence, the pressures may lead to police narrowing in on the only individual they believe could possibly be a suspect. The Guy Paul Morin Commission discussed tunnel vision as “the single minded and overly narrow focus on an investigation or prosecutorial theory so as to unreasonably colour the evaluation of information received and one’s conduct in response to the information” (4). Tunnel vision by police officers has led to numerous wrongful convictions and even more wrongfully laid charges. While devastating to those impacted by police tunnel vision, it is seldom due to malice of the officers or incompetence, but rather due to external factors (5) that cause police to narrow their focus inappropriately. Bruce MacFarlane conducted an investigation on tunnel vision and wrongful convictions concluding that there are commonalities among tunnel vision cases (6). It was further concluded that there are three principle elements that consistently exist when police experience tunnel vision (7).
In cases where there is little evidence, few, if any, suspects, and high pressure to lay charges, MBO’s become a viable operation to elicit a confession from a suspect. Due to the time and financial burden associated with MBOs, they are typically only used for indictable crimes and violent cases that draw media attention. Many MBO’s are conducted as a last resort for police, when there are no other leads. This is where police fall victim to tunnel vision and confessions become crucial to the operation and for the operation to be a success. MBO’s are designed to gain confessions from the suspect, and while on occasion physical evidence is also obtained, it is more likely that a case will be built solely on the confession elicited.
In 1992, Kyle Unger was the target of an MBO by the Manitoba RCMP. This case occurred prior to the new Hart standards required for MBO’s, however, according to the Hart framework, the police did follow the requisite standards to consider this case an acceptable and lawful MBO. Despite this, the result of this operation was a wrongful confession and wrongful conviction (8). This case had a stark lack of evidence against Unger, and yet, the RCMP suspected him of being one of the parties involved in Grenier’s murder (9). In order to gain a conviction, the RCMP required a confession from Unger. The RCMP spoke to various inmates and jailhouse informants that were in contact with Unger when he was first held in prison during his initial charge. After speaking with a multitude of inmates, one swore that Unger had told him in the remand center “I killed her, and I got away with it” the day he received a stay of proceedings (10). This was used by the Crown as evidence against Unger, despite the fact that Unger never returned to the remand center after his stay was issued, thus rendering this confession impossible. To the police, this admission by the informant was reliable enough for the RCMP to launch an MBO with Unger as the target. The operation consisted of four officers and was a smaller operation in comparison to ones similar to the Hart operation, however it still followed the traditional approach to sting operations (11).
During the MBO, Unger was befriended by an officer and offered work that Unger later learnt was for a “criminal” organization. Throughout this operation, Unger maintained his innocence and would mention how he was wrongfully imprisoned and charged with a murder. When he was finally introduced to Mr. Big for a “job interview”, the agent acting as Mr. Big informed Unger that the organization was looking for someone that has “whacked somebody” and that tells him that a confession would make Unger trustworthy (12). Due to the pressures of wanting to be part of the organization, and being faced with Mr. Big, Unger confesses that he killed Grenier. While Unger was induced into this organization with friendships and the promise for a lucrative position, the promises and inducements made were still within the Hart framework. While the police unequivocally exploited these weaknesses to gain a confession, it was still deemed lawful. Unger was re-tried for the murder of Grenier in 1992. The case relied on the confession Unger had made to the police, and it was due to this confession that Unger was convicted for the murder of Grenier. It was not until DNA evidence conclusively proved Unger was not at the scene of the crime that he was acquitted almost 15 years later (13).
Granted, the Unger case is not such an egregious MBO compared to other cases that have been heard. However, this case illustrates underlying issues and concerns surrounding MBO’s and their role in criminal investigations. The Unger case would likely pass the Hart criteria (14); particularly when analyzing the second prong of the Hart test (15). While the Hart criteria poses important limitations to the police on what inducements they can offer, and how extreme they can pose these scenarios, they are still able to use coercive and manipulative techniques to elicit confessions.
MBO’s target individuals who have undergone life changing traumatic incidents. These operations should be scrutinized by the courts on a case-by-case basis, and not readily accepted simply because some base criteria are fulfilled (16). Becoming a suspect of such a serious crime is not in the ordinary realm of what people typically go through and targets of these operations are going to be emotionally susceptible and vulnerable. Trained police officers then move in with one goal; to gain a confession. It is only a logical conclusion that wrongful confessions will be prevalent during these operations.
(1) By way of background, Mr. Big Operations (MBO’s), are situations where police go undercover and induce a suspect into joining illegal activities and a “gang”. Every “gang member” the suspect comes in contact with is an undercover officer. One police officer will attempt to bond with the suspect while posing as a member of the gang and endeavor to gain their trust. During this time, sometimes spanning months, the officer offers to help the suspect get jobs within the gang and have more responsibility within the organization. Finally, the suspect finally meets “Mr. Big'', or the head of the gang. At this point, “Mr. Big'' attempts to elicit a confession through sanctioned coercive techniques.
(2) For more information on Mr. Big Operations and a more thorough analysis, please refer to: https://www.robsoncrim.com/post/2018/04/23/in-defence-of-mr-big-legitimate-operations-aid-in-investigations
(3) R v Unger, 2005 MBQB 238 at para 2, 2005 CarswellMan394.
(4) Canada, The Commission on Proceedings Involving Guy Paul Morin, vol 1 at 217 – 218.
(5) Bruce A. MacFarlane, “The Effect of Tunnel Vision and Predisposing Circumstances in the Criminal Justice System” (2008), <https://www.attorneygeneral.jus.gov.on.ca/inquiries/goudge/policy_research/pdf/Macfarlane_Wrongful-Convictions.pdf>.
(7) First, there is the overly narrow focus during the investigation or prosecutorial theory. Second, this narrow focus colors the information received by the police, and therefore effects how it is evaluated. Finally, the coloring process will cause the police to filter information and evidence that supports their theory while failing to process evidence that contradicts the theory or leads in a different direction. Per Supra note 5.
(8) Supra note 3.
(9) In 1990, a young Kyle Unger was attending a music festival with friends. This was the same festival that a Brigitte Grenier and Timothy Houlahan were attending as well. During this festival Timothy Houlahan and Brigitte Grenier were seen together engaging in light sexual activity throughout the festival. The day after the festival ended, Grenier’s body was found in the woods with substantial evidence that indicated a violent sexual assault and abrasions consistent with a fight. Houlahan had similar scrapes and bruising that were consistent with Grenier’s. Kyle Unger was never seen with the victim, and the only evidence that implicated Unger was a single hair found on Grenier that was linked to Unger using hair microscopy. Houlahan’s evidence was vast and he was a clear suspect in the murder. Unger’s evidence was so minimal, that the case against him resulted in a stay of proceedings. For reasons unclear, the RCMP still believed that Unger had a role in the killing of Grenier, despite having a conviction against Timothy Houlahan.
(10) Supra note 3.
(13) Innocence Canada “Kyle Unger”, online: Innocence Canada <http://innocencecanada.com/exonerations/kyle-unger/>.
(14) R v Hart, 2014 SCC 52
(15) Looking to the second prong, that the prejudicial value of the evidence outweighs the probative effects, the Crown could reasonably prove that the financial inducements given to Unger were not so extreme as to warrant the disqualification of the operation. Unger was not socially isolated, he still had a social circle outside of the ‘criminal organization’, there were no threats of violence inducing Unger to confess.
(16) Amar Khoday. Scrutinizing Mr. Big: Police Trickery,the Confessions Rule and the Need to Regulate Extra-Custodial Undercover Interrogations. Criminal Law Quarterly Vol 60, 2013.