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.


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


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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
19 Sep 2019, Seminar, Birmingham, UK

Providing GCs, Heads of Legal and senior in-house lawyers with timely, topical and practical legal advice on a variety of topics.

26 Sep 2019, Seminar, London, UK

Providing GCs, Heads of Legal and senior in-house lawyers with timely, topical and practical legal advice on a variety of topics.

8 Oct 2019, Seminar, Birmingham, UK

Supporting the development of paralegals, trainees and lawyers of up to five years' PQE by providing valuable knowledge and guidance together with practical tips.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions