Man acquitted in neighbour’s 1974 killing after judge throws out evidence from ‘Mr. Big’ sting
After nearly 40 years, two murder trials, one elaborate undercover operation and now an acquittal, Durham Regional Police’s oldest murder case remains unsolved.
Dealing the final blow to the first-degree murder case, Justice Bruce Glass acquitted Alan Smith of the 1974 slaying of Beverly Smith in an Oshawa courtroom Monday.
Glass effectively undid the case last month, when he threw out all evidence gathered in an intricate, year-long police sting known as a “Mr. Big” operation.
The undercover investigation — which convinced Smith he was enmeshed in a murderous crime ring, and culminated with the dumping of a fake corpse off a cliff — had violated Smith’s Charter rights and was an abuse of process, Glass ruled in June.
Without the evidence gathered during the sting, namely two widely varying murder confessions, Crown Attorney Frederick Stephens conceded there was little prospect of conviction.
“There is no reasonable alternative but to discontinue the prosecution,” he told court Monday.
Moments later, as Glass left the courtroom, Beverly Smith’s now-grown daughter, Rebecca, and Beverly’s twin, Barbra Brown, began yelling at Smith.
“She’ll never forgive you,” said Brown, who had been crying throughout the brief proceeding.
Leaving court accompanied by his siblings and defence team, Smith would not comment on insults hurled at him by Beverly’s relatives, but said he planned to spend time with his family and go on a vacation.
“I am actually glad that the ordeal is over with,” he said as he left court.
Alison Craig, one of Smith’s defence lawyers, said she hopes the case will be a lesson for future Mr. Big investigations, which she says are “notorious” for eliciting false confessions.
“There is a line you can’t cross,” Craig said outside court. “In this case, (police) not only crossed the line but they trampled it, and it resulted in a false confession and an innocent man being in jail for many years, and hopefully it won’t be repeated.”
It was the second time in six years that a vindicated Smith walked out of Oshawa courthouse.
Smith, who was a neighbour to Beverly Smith (no relation) at the time of her shooting death, was first charged in connection with the slaying in 2008, when police slapped him with a second-degree murder charge based on information from his ex-wife, Linda.
But her evidence was quickly proven false and the Crown withdrew the charges on July 31, 2008. Six months later, police initiated the Mr. Big sting.
The operation, dubbed Project Fearless, launched in early 2009 and involved convincing Smith he was involved in a crime ring. That task began with an undercover officer easily befriending Smith on a fake fishing weekend trip, which police told Smith he had won.
Bonding over a love of fishing, Smith and the undercover officer, who cannot be identified because of a publication ban, became close friends. Gradually the undercover officer began involving Smith in fake criminal endeavours, including small drug deals, and paying him for help.
Soon, Smith was introduced to his friend’s crime boss, the so-called Mr. Big. In July 2009, the fake criminal organization told Smith about its scheme to rob a drug dealer.
Smith was then told the robbery had gone south, and when he drove to an industrial area at Keele St. and Highway 407 to help, he found Mr. Big covered in fake blood, standing over what Smith believed was a corpse — a weighted-down mannequin wrapped in tarps.
Smith helped him drop the fake body off a cliff and burn the evidence. Shortly thereafter, Mr. Big told Smith he needed incriminating information about him, as insurance that Smith wouldn’t go to police about the killing.
Smith then confessed to killing Beverly Smith, alongside another man. The undercover operation continued for a further six months, at which point Smith made a second confession: that he alone killed Beverly Smith. In December 2009, homicide detectives rearrested Smith.
Glass’s ruling last month said allowing information obtained through the Durham police operation would “shock the sense of trial fairness to Canadian society” — and Smith’s account of the 1974 murder had “many holes in it.”
“One might say you could drive a Mack truck through the accounts to the point that you would question whether this was nothing more than a pack of lies,” he wrote.
The acquittal is likely the end of the case against Smith, his defence said. The Crown is presumably reserving its right to appeal, but beyond that, lawyer Joanne McLean said outside court, “This is the end.”
Smith’s acquittal comes just three days before the Supreme Court of Canada (SCC) is set to rule on the use of Mr. Big operations by police. Though it previously examined peripheral issues, Thursday’s ruling will mark Canada’s highest court’s first head-on examination of the tactic.
The Supreme Court case stems from a Mr. Big investigation involving Newfoundland man Nelson Lloyd Hart, who, after making incriminating statements to undercover officers, was convicted in the drowning deaths of his twin daughters.
In 2012, the Newfoundland Court of Appeal reversed Hart’s murder conviction, ruling Hart had no choice but to confess to the crime in the scenario police had created.
McLean said she expects the Supreme Court ruling will state that no sting operation should give police carte blanche, allowing them to do whatever they can to produce results.
“This was not just a Mr. Big,” she said of the Smith case, “it was a Mr. Big without any limits whatsoever. And that is most certainly across whatever lines the Supreme Court will ultimately draw.”
Speaking briefly to the Star in 2009, shortly after Smith was arrested for the second time, Barbra Brown said she and her family were eager for the day Smith would appear back in court.
“I’m just really hesitant about saying anything at this point with the trial coming,” Brown said at the time. “I don’t want it to (fall apart) again.”