Ismael Habib trial: Defence questions legitimacy of Mr. Big sting confession
Should defendant's confession count if he would have told 'the Boss' anything in belief he could get passport?
Ismael Habib, 29, believed he was talking to a crime boss when he confessed he wanted to go to Syria and fight with ISIS. Now his defence lawyer, Charles Montpetit, is arguing his words should not be used against him.
Montpetit is contesting the admissibility of a key piece of evidence obtained in a Mr. Big-style sting operation which took place last February.
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Habib is charged with attempting to leave Canada to commit terrorist acts and giving false information to obtain a passport. The trial, now in its sixth day, is being heard by Quebec Court Judge Serge Délisle at the Montreal courthouse.
How Mr. Big sting works
For the last few days, the court has been hearing from an undercover RCMP officer known as "the Boss" about a series of scenarios involving at least six undercover agents which have the hallmarks of a Mr. Big-style operation.
The Boss testified he portrayed himself as the leader of an organization that could help Habib illegally obtain a passport. Habib's own had been seized in 2013.
In a Mr. Big sting, undercover cops pretend to be part of a criminal organization. An officer posing as a gang member befriends the suspect, and after being hired to do menial odd jobs, the suspect is confronted by the boss of the fictitious gang and told to either confess to a past crime or explain some incriminating evidence in the boss's possession.
Police investigators videotape the confession with a hidden camera.
Since the 1990s, this technique has been used in Canada more than 350 times and has secured confessions and convictions in hundreds of cases.
Supreme Court restrictions
However, a Supreme Court of Canada decision in 2014 limited how evidence derived from a Mr. Big-style sting can be used.
Now, the starting point from a Mr. Big investigation is that confessions derived from such a sting are not admissible to prove a defendant's guilt.
A Mr. Big confession can be found admissible only if it proves to be a critical piece of evidence that is corroborated by other evidence — and if the police can show they have not abused their power in persuading the accused to confess.
After all the evidence is presented, it will be up to the judge to determine whether Habib's words can be used against him in determining whether he is guilty.
Can intention be confessed?
The defence is also arguing that Habib's confession of his intention to go overseas and wage jihad is different from confessing to an actual murder that has already been committed.
In Habib's case, he believed the agent was able to get him a passport — something multiple Crown witnesses have testified he wanted badly. Habib's wife and children are living overseas, and the court has heard that he wanted to see them again.
Habib's defence will argue that in this circumstance, he would have said anything to please the Boss, which taints his testimony.
Habib is the first adult in Quebec to be tried under this section of the Anti-Terrorism Act, which was enacted under the Conservative government in 2013.
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