Al Potter attempted to quash Mr. Big confession before trial, but judge ruled against it
As jury deliberates first-degree murder charge, CBC News can reveal details of key ruling
Al Potter's defence team moved to keep his confession about stabbing Dale Porter from the jury at his first-degree murder trial, but a judge ruled against them weeks before the trial began.
Justice Garrett Handrigan ultimately decided that the Crown could admit Potter's confession to an undercover RCMP officer shortly before his arrest in 2016.
Those details were ultimately heard by the jury at his trial.
The jury is now sequestered, and has begun its deliberations over Potter's fate.
That clears the way for CBC News to report on what the jury didn't hear, and what the court was told before the trial began.
Sting was 'abuse of process,' defence argued
Potter had argued that the RCMP's major crime investigative technique — more commonly known as a Mr. Big sting — was an "abuse of process" because the officers coerced him to confess.
He also claimed he feared the undercover officers were going to "shoot him in the back of the head."
But Handrigan rejected defence arguments, saying they "failed to show" that the police coerced Potter to make statements to the undercover officer regarding his role in Porter's death.
"While statements were obtained by deceiving Mr. Potter, in the prevailing circumstances the community's sense of fair play and decency would be not offended," Handrigan wrote in his decision.
The RCMP began its undercover sting in the spring of 2016, about two years after Porter was stabbed 17 times, cut four times, and was beaten in the driveway of his North River, Conception Bay North, home.
In May 2016, two officers began infiltrating the Vikings Motorcycle Club, of which Potter was a member. The main covert officer even visited Potter while he was incarcerated at a jail in Lindsay, Ont., serving a sentence for assault.
The officer, posing as a debt collector who wanted to hire Potter as an enforcer, later convinced him to help bury a purported dead body — it was a deceased pig — and gained a confession after building trust.
The RCMP used a full patch member of the club as a police agent. Agents are paid by police to act for them and at their direction during an investigation. They build credibility and set the stage for the officers to get a confession. Agents must agree to testify in open court.
There was no disputing that Potter was deceived — tricked into thinking he was working underneath a debt collector, the judge said, but Potter spoke to the [undercover officer] "of his own volition and he was ready, willing and even eager to do whatever he could to endear himself to [the officer] so he could work with him."
The judge noted that Potter's ambition to be part of the criminal organization was consistent with other "aspirations" he expressed, including plans to set up a Hells Angels-affiliated motorcycle club in central Newfoundland.
"At another he talks about getting into the 'cleaning' business, an oblique way of describing contract-killing," Handrigan wrote.
Potter says he was fearful of officer
Potter claimed that the Mr. Big operation against him was an "abuse of process."
That issue was examined in the case of Nelson Hart, the Newfoundland man whose conviction for killing his twin three-year-old daughters was overturned by the Supreme Court of Canada.
Hart's videotaped confession to undercover officers was later ruled inadmissible on appeal, and the nation's top court found the evidence procured through the Mr. Big operation would not be included in any future trials.
But Handrigan rejected those abuse of process claims in Potter's case, saying he is "satisfied than neither inducements nor threats motivated Mr. Potter to tell (the undercover officer) about how he stabbed Dale Porter."
In coming to that conclusion, the judge, among other things, looked at whether the undercover officers threatened Potter, coerced him, or targeted any mental illness or addictions issue that he had.
Potter told the court during the hearing on the application that he's a heavy drinker and experiences psychiatric problems. But Handrigan said there is no evidence to suggest he has a serious mental disorder.
While audio and video recordings of Potter and the undercover officer show a chatty, upbeat Potter during a long drive after his release from prison, Potter claimed he was actually in fear.
And he said the confidence he exuded was only an attempt to scare his "new boss" from attacking him.
"Mr. Potter says he was hyper-vigilant, unduly anxious and prone to wild conjecture about what [the officer] was up to," Handrigan wrote.
Potter even said he was afraid someone would shoot him in the back of the head in the corn field, according to the judge — "he wondered if the officers planned to bury him in what he viewed as the overly-deep and neatly-dug grave they pushed the hockey bag into."
During the hearing, Potter confessed to fatally stabbing Porter, but claimed it was done in self-defence — something he did not tell undercover officers back in 2016.
The reason for telling police about the stabbing, Potter said, was to show "he would do the same thing to [the undercover officer] if he feared for his life from [the undercover officer]."
Handrigan noted that the confession had high probative value because it contained mundane details of the crime that only Potter would likely know, it detailed the reason why Porter was stabbed, and the confession was corroborated by testimony from the first police agent, who said he witnessed a knife being thrown into the ocean at Cape Spear.
Potter, a "career criminal," was not under the influence of drugs or alcohol when he made the confession, the judge noted.
"[The undercover officer] did not interrogate Mr. Potter but simply allowed him to talk about Mr. Porter's death and Mr. Potter responded readily, if not enthusiastically to the chance," the judge wrote.
Potter also told the court that he believed the work involved "surveillance of people, finding people. It was like a private investigator type of scenario," he said, adding he didn't think violence was involved.
The judge didn't buy it.
"Logic dictates for me that they wanted Mr. Potter because he has a propensity for violence and is not averse to committing criminal offences and that is why they solicited him for their fictitious business," Handrigan wrote.
The jury is currently deliberating Potter's fate.