By : Allya Davidson
Behind the gun the towers and razor wire at Monroe Correctional Center in Washington state sit two men who are either some of Canada’s most notorious killers or, according to them, victims of police entrapment. Rafay and Burns confessed to killing Rafay’s family to what they thought was a criminal gang who had been paying them to make illicit bank deposits.
Atif Rafay was 18 when he and his friend Sebastian Burns were implicated in the brutal murders of Rafay’s father, mother and sister. Rafay’s family was beaten to death inside their Bellevue, Washington home. They had recently relocated from Vancouver while Atif Rafay completed his freshman year at Cornell University. Rafay and Burns, now nearly 40, have spent half their lives in prison serving 3 consecutive life sentences with no chance of parole.
But a ruling made 4000 kilometres away may offer faint hope to their case. A July 2014 decision at the Supreme Court of Canada has curtailed how, when and on whom the controversial “Mr. Big” operation can be used.
Mr Big as it’s carried out today was invented primarily by the BC RCMP in the early 1990s. The operation involves undercover cops forming a phony criminal gang to solve murders (usually cold cases). After months of studying a suspects daily activities, an undercover officer posing as a gang member “accidentally” befriends the suspect. Next, the suspect is offered easy odd jobs with the criminal such as driving a car from one city to another, or making bank deposits. The suspect is paid up to thousands of dollars for these tasks. Eventually, once the suspect trusts the gang, they are introduced to the crime gang’s boss - Mr. Big. Mr Big tells the suspect that in order to stay on good terms with the gang (and the easy money that comes along with it) they must confess to a past crime. Mr. Big offers to help make any incriminating evidence linking the suspect to that crime disappear, but only if the suspect is straight with him and confesses in full detail. The RCMP always videotapes this meeting using a hidden camera. Once the suspect confesses, they are arrested and charged a few days later. The RCMP says Mr. Big operations have resulted in 350-400 arrests. Critics say the operation is little more than entrapment. The sting is illegal in many other countries, including the United States.
The suspect at the centre of the Supreme Court case, Nelson Hart, was so taken in by the operation that after his arrest, he used his one phone call to contact a member of the criminal gang. He described the man “like a brother,” still not realizing that it had all been a staged operation. Hart’s lawyers took his case all the way to the Supreme Court of Canada, arguing that his confession to Mr. Big should not be admissible because of Hart’s lack of education, poverty and lack of sophistication. Hart has a grade 5 schooling and was living on social assistance when he was targeted by the sting. Hart ate his first ever steak dinner as part of the operation and was paid $16,000 and put up in hotels. The Supreme Court ruled that when determining the admissibility of Mr. Big confessions in the future, courts should consider the circumstances of the confession (ie the presence of threats from the gang, the mental health, age and sophistication of the accused), whether the payments changed the suspects standard of living and whether the confession contains specific details only the real killer could have known. The Court has warned that including a confession from an operation where the accused takes part in what they think are criminal acts could prejudice a jury, so the reliability of the confession must outweigh this possibility.
Atif Rafay argues that it was his naivete and youth - not guilt- that led him to tell Mr. Big he had murdered his family. In the early hours of July 13, 1994, Rafay’s best friend Sebastian Burns made a frantic 911 call: “”My friend… his Mom and Dad… we think they’re dead.” Police arrived to find the bodies of Atif’s parents and his 20-year-old autistic sister barely clinging to life while the teen boys waiting outside. Neither Rafay nor Burns had an answer for why they did not help his sister, who later died in hospital. What followed was a pattern of behaviour that focused suspicion squarely on the 18-year-olds.
They skipped the family funeral and took a bus back to Vancouver. Both declined to be interviewed by investigators or media. The BC RCMP began the plans for a Mr. Big sting for the murder case in Washington. In April 1995, Sebastian Burns had what seemed to be an accidental meeting with a friendly stranger. Sebastian gave him a ride, followed by a few drinks at a strip club. Burns thought he’d met a criminal gang member; in fact, it was an undercover cop. Soon, he was being paid thousands of dollars to make what he thought were illicit bank deposits for the gang.
In a taped meeting a hotel room, Mr. Big gives Sebastian a supposed secret police memo from the Bellevue Police telling Burns, “You should read this piece of shit. That was fucking turned over. It’s gotta be destroyed.” But to get Mr. Big’s help, Burns and Rafay must first gain his trust by describing the murders in detail:
Mr Big: “What? Both you guys woke up one day and said ‘Hey, let’s go off your family and f------g get all their money?’
Burns - Basically, essentially, yeah, I mean ...
Mr. Big – How’d you f----n do three people at once?
Burns – Not at once, it was one after the other”
Only a handful of officers have played Mr. Big. Their identities are closely guarded - video of confessions either show Mr. Big off camera or with his face blurred. Al Haslett was one of the creators of the technique in the early 1990s. Recently retired from the RCMP, he can now talk about the dozens of cases where he coaxed confessions from murder suspects - including Rafay and Burns. He tell the fifth estate’s Bob McKeown that the sting is not the reckless operation it has been made out to be by critics, “[We] seek the truth. We don't go there, we don't wake up in the morning and say ‘we're going to get confessions.’ This is not a bunch of cowboy cops going out and doing this. This is planned, the scenarios are planned, thought out, and we go to seek the truth.” He was able to extract shocking details from Rafay and Burns in that hotel room 20 years ago:
Haslett/Mr. Big: “Did you use a metal or a wooden bat?
Burns – A metal one.
Haslett- How do you f---n hit someone with a baseball bat, have to shower and have no blood on you?
Burns - You do it naked.
Haslett – How does it feel to kill your parents and knock off your sister?
Rafay – Pretty rotten, but it’s tempered by the fact that I felt it was necessary.
Rafay – It was necessary to, I guess, achieve what I wanted to achieve in this life.”
Haslett is still confident that Rafay and Burns’ confessions were the real deal, but not everyone in the legal world is convinced. Marie Henein is a leading Toronto defence counsel. Many may have heard her name because she represents former CBC Radio host Jian Ghomeshi against charges of sexual assault. But weeks before that scandal broke, the fifth estate contacted her because she was the amicus (appointed by the court to cover an aspect of the case) on the case involving Nelson Hart, the man who was at the centre of the crucial Supreme Court decision in 2014. She cautions that in criminal confessions, appearances can be deceiving, “Youth is a factor and anyone who’s interacted with a 17 year old boy has to know how stupid they are and how they will say just about anything. What you want to think about is- is what’s coming out of their mouth true? And you know, with a lot of 16, 17 year old boys, it’s not. The fact that [Burns] says it with bravado, that doesn't tell me that he did it, it tells me that he's a guy that speaks with bravado.”
Haslett maintains that Burns, who was 19 at the time of the Mr. Big operation, wasn’t showing off, he was being himself: “It’s what came out of his mouth that convicted him.” Indeed, soon after their confessions, Rafay and Burns were arrested and taken into custody in Vancouver until the State of Washington waived its right to seek the death penalty. They were then extradited to the U.S. to stand trial for murder.
There are other Mr. Big operations that resulted in charges the Crown did not pursue. That’s what happened to Andy Rose. It began in British Columbia in 1983. A young German couple were backpacking through the interior and for some reason, someone, shot them to death. Police searches and roadblocks proved futile and the case went nowhere for six years. Then, a local woman came forward with a strange story. She said that back in 1983, on the night of the murders, a man named Andy Rose had come to her trailer in blood-soaked jeans. She said he told he had just killed two people. The she forgot all about that night until six years later, she bragged to a drug dealer that she knew someone who had committed a murder. That drug dealer turned out to be a police informant. He told police what he knew and they had the woman called her friend Andy Rose out of the blue and bring up the murders:
Woman – You come home one night and told me you killed 2 people.
Rose – I might be a lush, but I ain’t no fuckin’ murderer.
Despite Rose’s adamant denials, he was arrested and charged with the double murder. Rose was in disbelief, “I told them they’re nuts. You know, you don’t just decide one night you need some dollars, you’re gonna kill two people.” There was no forensic evidence tying Rose to the crime nor a murder weapon or confession to the police. Based solely on the testimony of that local woman, Rose would be tried and convicted of the murders, sent to prison, released on appeal, retried, convicted again and released on appeal again. Rose had to face yet another trial after a California woman came forward claiming that her husband had told her he committed the 1983 murders before committing suicide in 1985. Despite this man’s confession, the Crown opted to try Andy Rose a third time.
In 1999, Rose was out on bail, awaiting his third trial, an alcoholic, jobless and broke when he bumped into a man he thought was a member of a gang looking for some help, “He started asking me you know can I help him out and all this kind of stuff. I’ll give you 50 bucks. Yeah and I was flat broke.” The sting then takes a familiar turn, a hotel meeting the the crime boss. As with Rafay and Burns, Mr. Big offers to help with the case but only if Rose gives a full confession. The problem is Rose, even after nearly 10 years in jail and 2 lost trials, maintains his innocence, he seems desperate in the secret police recording, “I will not say I did it when I didn’t do it. And I didn’t do it. And that’s it.” Mr. Big, once again played by Al Haslett, tells the alcoholic Rose to go down to the bar with another undercover cop and think about it. Two hours later, Rose returns with a new story. The other undercover officer apparently suggested in the bar that Rose’s drunken alter-ego, “Andy 2” committed the killings:
Rose: Yup, I need your help.
Haslett/ Mr. Big: Well I know you do.
Rose – Maybe I was blacked out. I was Andy 2 right?
Haslett – Hmm
Rose – Can I get your help or what? Well. Please? We’ll go with I did it, okay?
Haslett - Did you off those two people?
It’s as expansive as Rose’s confession gets, and it’s problematic according defence counsel Marie Henein, “Nobody says the police are supposed to have their hands tied and not engage in that. But let’s go back to the fundamental problem. If in utilizing and taking advantage of someone’s weakness, what I am eliciting is an unreliable confession. We have to guard against that. So that’s the fundamental problem here.” Veteran Mr. Big counters that the police can’t take any statement at face value, “The police have a job to do. The public expects the police to do a thorough job. Just because someone denies it initially if we get up and walk away on any crime because someone denies it, there’d be a lot of crime not solved in this country, in any country.”
Andy Rose’s “confession” brought him to trial for the 1983 murders a third time. The prosecutor refused to proceed against Mr. Rose after a pair of bloody jeans from the crime scene matched 5 different sets of DNA, none of them his.
One man was also cleared of his crime after a Mr. Big sting, but unlike Andy Rose, he went after the RCMP and won. Jason Dix was accused of the double murder of James Dieter and another machinist machinists in a recycling plant outside Edmonton. Like with Rose, police had no fingerprints and no evidence but they still managed to come up with a motive and a suspect. Police knew Jason Dix had spent the night before the murders at a local bar with two companions - his coworker James Dieter and a woman with whom Dix was having an extra-marital affair.
The local RCMP detachment decided it must be an affair gone wrong- that Dix was afraid Dieter would tell his wife about his affair. Investigators concluded that the next morning, Dix drove to the plant where James Dieter worked and fired three bullets into his head. He then killed another employee to eliminate the only witness.
Police knew that with no physical evidence, they would need a confession from Dix. Enter Mr. Big. But unlike with other stings, Dix never confesses. The RCMP arrest and charge him anyway. Through an 11-hour interrogation, Dix doesn’t waver. Mounties even go as far as interviewing Dix’s 4-year-old son about the crimes. Through it all, Dix was kept behind bars without bail for almost two years. After the murder charges were dismissed for lack of evidence, Jason Dix sued the RCMP and Crown for malicious prosecution. He was eventually awarded $765,000 in damages.
Back in Monroe Atif Rafay hopes to use the Canadian Supreme Court ruling to somehow reopen his case. Unlike Dix, he confessed to Mr. Big and despite the fact that the sting is illegal in the U.S., his confession to Canadian cops was deemed admissible in Washington state court. By the time Rafay and Burns were convicted in 2004, after lengthy extradition processes, they had already been behind bars for almost 10 years. Now, more than a decade after that, barring any legal changes, both will die in prison. Now 39 years old, Atif Rafay has devoted his time to prison university courses and writing. One of his academic essays was published in The Walrus in 2011.
In his first post conviction interview. Today, he tells Bob McKeown over the phone from inside Monroe Correctional Center that he was suspicious of Sebastian Burns’ “new friends” from the start, “I mean I didn’t approve of the thing at all from the beginning. It just seemed very, seemed like nothing I wanted to have much to do with.” He also claims he never intended to do anything violent for the undercover criminal gang and that he acted out of fear: “I wanted to indicate to them that this is not something that I’m ever going to do and yet at the same time I’m not ever going to rat you out, I’m not going to do anything to compromise your organization. Really, it was all a dream world created out of movies. It would seem very possible after watching “Goodfellas” that Mr. Big would simply kill me because I was potentially a threat to him. That seemed all completely convincing and I think in a way that it would only be convincing to an 18 year old kid.” Defence counsel and Mr. Big detractor Marie Henein argues that threats, veiled or otherwise are at the problematic heart of Mr. Big operations: “So that's precisely the message that was being sent. So when you say it's imagination, they're not making it up. It's because they're told, "You know who you're sitting with? You’re sitting with somebody that kills people. So you might wanna play ball."
Still, that begs the question of why Rafay would admit to a murder he says he didn’t commit. Rafay says this is the key to why Mr. Big is both so successful and so dangerous “I think they’re very clever about that. The Mr. Big operation essentially makes you try to be as plausible as you can in your false confession and that plausibility is what convinces a juror or someone else that: ‘oh it must be true, it must be true’ despite all the countervailing evidence.” Rafay now rests his hopes on the unlikely prospect that the Supreme Court of Canada ruling may have some legal implication south of the border. Failing that, he will remain in prison along with high school friend Sebastian Burns, without any chance of parole.
With Andy Rose, the Mr. Big came close to a wrongful conviction, save for DNA evidence and a skeptical prosecutor, is now a free man. He is still struggling to put his life back together. Jason Dix has started a new family and lives in Western Canada.
Supporters of Mr. Big claim no one has ever been imprisoned as a result of a false confession to Mr. Big. Critics maintain that if that is in fact true, it’s more a case of a good luck than good work. Both sides are clear that the new guidelines set out by the Supreme Court will have a profound impact on how and if police proceed with any Mr. Big sting in the future.