Canada: Mr. Big: Reliability And Admissibility In Hart And Mack

The Supreme Court of Canada recently considered the issue of so-called "Mr. Big" confessions. In two separate decisions, the Court created a new common law rule of evidence to govern the admissibility of Mr. Big confessions and provided guidance on the application of this rule.

These two decisions - R. v. Hart1 and R. v. Mack2 - are of particular interest to police investigators designing Mr. Big operations as well as to Crown and defence counsel conducting trials involving Mr. Big confessions.

More generally, the two decisions (both written by Moldaver J.) serve as a notable example of the Court creating a legal test then applying that test to two different fact situations with opposite results.

What is a Mr. Big Confession?

The Mr. Big investigative technique is a Canadian invention. It has been used by police across Canada more than 350 times. Typically, a Mr. Big operation is designed to obtain a confession from a suspect by having undercover investigators pose as members of a fictitious criminal organization. The suspect is offered an opportunity to advance in the organization by proving he is a "tough guy." To prove this, the suspect is introduced to the organization's boss ("Mr. Big") who presses the suspect for details of the crime being investigated as proof of his criminal chops.

Until the judgment in Hart, Canadian law did not include a rule of evidence to govern confessions obtained as a result of Mr. Big operations. Such operations did not violate the accused's right to silence, nor engage the requirement that the Crown prove that the confession was voluntary.

This lacuna was troublesome because of the serious risks inherent in Mr. Big confessions.

Problems with Mr. Big Confessions

Confessions obtained as a result of Mr. Big operations carry a significant risk of unreliability. Suspects confess to Mr. Big during pointed interrogations in the face of powerful inducements and sometimes veiled threats.

The evidence surrounding a Mr. Big confession is also highly prejudicial to the accused. Despite the fact that the "criminal" organization and its "illegal" activities are entirely fictitious, the confession of the accused will be accompanied by evidence that shows he was eager to participate in a criminal organization and commit what he thought were crimes.

Aside from these evidentiary concerns, Mr. Big operations also run the risk of becoming abusive. Undercover officers induce the suspect to confess and are at risk of stepping over the line into coercion. In addition, because it involves creating a believable criminal organization, a Mr. Big operation will necessarily involve a perceived "aura of violence."3 Moldaver J. cautions that thought must be given to the kinds of police tactics we, as a society, are prepared to condone in pursuit of the truth.

The Solution: Presumption of Inadmissibility

In response to the risks posed by Mr. Big confessions, Hart introduces a new common law rule of evidence that would treat confessions obtained through a Mr. Big operation as presumptively inadmissible.4 The Crown can rebut this presumption by establishing (on a balance of probabilities) that the probative value of the confession outweighs its prejudicial effect.

Even where the confession is reliable, courts cannot condone state conduct that coerces the target of a Mr. Big operation into confessing. Therefore, as a second step in the analysis, where the accused establishes that an abuse of process has occurred, the court can fashion an appropriate remedy, including the exclusion of the confession.

Probative Value: A Function of Reliability

In Hart, Moldaver J. writes that a confession provides powerful evidence of guilt, but only if it is true. Therefore, the probative value of a Mr. Big confession is a function of its reliability. In the case of a Mr. Big confession, an assessment of reliability should examine the circumstances of the Mr. Big operation. A court faced with a Mr. Big confession should look at factors such as:

  • the length of the operation
  • the number of interactions between the police and the accused
  • the nature of the relationship between the undercover officers and the accused
  • the nature and extent of the inducements offered
  • the presence of any threats
  • the conduct of the interrogation itself
  • the personality of the accused, including his age, sophistication and mental health

Moldaver J. also held that the confession itself may bear markers of reliability. For example, the level of detail in a confession, whether it leads to additional evidence, whether it identifies elements of the crime that were not made public, or whether it simply describes accurately mundane details of the crime can speak to a confession's reliability.

Prejudicial Effect: A Familiar Challenge

Weighing the prejudicial effect of the confession is a more familiar exercise for triers of fact. The key concern with Mr. Big confessions is the moral prejudice that can result from hearing about the accused's willingness to participate in the simulated criminal activities orchestrated by the investigators. Moral prejudice may increase with Mr. Big operations that involve the accused in simulated crimes of violence.

A related concern is "reasoning" prejudice as the jury's focus is distracted from the facts of the actual charges against the accused by the often elaborate details of the Mr. Big operation.

Triers of fact are familiar with limiting the prejudicial effect of evidence in a criminal trial. In Mr. Big cases, the risk of prejudice may be mitigated by properly instructing the jury or by excluding particularly prejudicial evidence that is not central to the narrative.

Abuse of Process

In Hart, Moldaver J. was careful not to suggest that police misconduct will be forgiven so long as a demonstrably reliable confession is ultimately secured. Courts must guard against Mr. Big operations that are abusive. While a bright-line test for an abusive operation is not possible, Moldaver J. held that a Mr. Big operation will be abusive if the inducements offered amount to coercion.

A clear example of coercive tactics would be violence or threats of violence, but operations that prey on a suspect's vulnerabilities (like mental health problems, substance addictions, or youthfulness) are also problematic and potentially abusive.

Application: Two Operations, Two Outcomes

The appeals in Hart and Mack were heard on the same day, but the decisions were released nearly two months apart.

Following the release of the decision in Hart, where the Court excluded the Mr. Big confession, commentators quickly cautioned that law enforcement services across Canada may have to think twice about conducting Mr. Big operations.5

However, the Mack decision applied the Hart framework to a different Mr. Big operation and concluded that the confession met the two-prong test.

Having back-to-back decisions with opposite outcomes is of particular value to police investigators: they now have two concrete examples to compare and analyze as they fashion Mr. Big operations that will more likely result in an admissible confession. The different results in the two appeals stem directly from the differences between the two Mr. Big operations.

On the reliability prong, the accused in Hart was socially isolated and the Mr. Big operation had a "transformative effect on his life". The Mr. Big operation lifted Hart out of poverty and changed his lifestyle. Moreover, the undercover officers became Hart's best friends; he even purported a willingness to leave his wife if that is what it would take to join the organization.

When the time came for Hart to confess to Mr. Big, Hart knew that his ticket out of poverty and social isolation was at stake. Moldaver J. considered this to be an "overwhelming incentive to confess - either truthfully or falsely."6

Moreover, Hart's description of how the crime was committed was inconsistent.

In contrast, the circumstances of the Mr. Big operation in Mack support the conclusion that the confession was reliable. Mack was not presented with overwhelming inducements. He had prospects for legitimate work that would have paid even more than the undercover officers were offering. Mack was not threatened with violence. Importantly, Mr. Big made it clear to Mack that he could remain silent and stay in his position on the organization's "third line", but he had the option to advance in the organization if he shared details of the murder in question. Nothing in the conduct of the operation in Mack undermined the reliability of the confession.

Indeed, Mack's confession retained its consistency over multiple tellings and was consistent with the physical evidence. All of this made for a confession that was highly probative.

When considering prejudicial effect, Moldaver J. thought it significant that, while Mack's involvement with the organization was limited to assisting with repossessing vehicles and delivering packages, Hart was painted as a man who devoted his entire life to trying to join a criminal gang and who bragged about killing his three-year-old daughters to gain the approval of a group of criminals.

Conclusion

The two decisions in Hart and Mack constitute a significant advance in the law of evidence governing Mr. Big confessions. The Court has established a clear framework and provided two examples of how that framework is to be applied.

Rather than bringing an end to Mr. Big operations in Canada, the Court's decisions in Hart and Mack  should serve as a blueprint for how such an operation can be designed and conducted to obtain a reliable confession that does not cross the line into coercion and abuse of process

Footnotes

1 2014 SCC 52.

2 2014 SCC 58.

3 Hart at para. 9.

4 It is interesting to note the concurring sets of reasons in Hart. Cromwell and Karakatsanis JJ. both agree with Moldaver J. that the appeal should be dismissed and the judgment of the Court of Appeal ordering a new trial should be sustained. However, where Moldaver and Karakatsanis JJ. concluded that the Mr. Big confession ought to be excluded from the evidence at the new trial, Cromwell J. would have ordered that the trial judge address the issue of admissibility. It is also interesting to note that, while Moldaver and Karakatsanis JJ. arrive at the same result, they do so through different means: Moldaver J. introduces a new common law rule of evidence to deal with Mr. Big confessions, while Karakatsanis J. would have excluded the confession under s. 24(2) of the Charter. As the Court makes clear in the Mack decision, Moldaver J's approach prevails.

5 see, for example:

Mark Gollom, CBC News, 'Mr. Big' ruling a 'game changer' for those convicted in sting operations, Aug. 1, 2014,

Alysha Hasham, Supreme Court of Canada tightens rules around 'Mr. Big' stings, July 31, 2014, and

CBC News, Mr. Big ruling prompts withdrawal of murder charge in Rhonda Wilson case, Sep. 24, 2014.

6 Hart at para. 140.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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