On Feb. 26, 2015, the Supreme Court of Canada remanded a case
"Mr. Big" confession back to the Court of Appeal of
British Columbia for reconsideration in accordance with R v.
Hart, 2014 SCC 52.
A Mr. Big operation is an investigative technique where the
police use a fictitious criminal organization to entice a suspected
felon to confess to "Mr. Big" (the head of the
organization) the crimes he committed. In Hart, the
Supreme Court limited the admissibility of confessions obtained
through the use of this technique to those that are reliable and
are not a product of coercion.
As Moldaver J. explained in Hart, the confession must
not have been obtained through an abusive police operation and the
inducements offered (such as expensive dinners and fancy hotel
rooms) must not amount to coercion. Furthermore, the
confession must be reliable. For instance, in Hart, the
Mr. Big operation had a transformative effect on Hart's life
because he believed that his ticket out of poverty and social
isolation would be through Mr. Big. Moldaver J. considered this to
be an "overwhelming incentive to confess-either truthfully or
falsely," thus rendering the confession unreliable.
In the recently remanded case, Johnston v. The Queen
("Johnston"), the Crown accused Gary Johnston of
breaking into the victim's home and savagely stabbing him. At
the time of the crime (March 1998), the police apprehended
Johnston's brother, Michael, who gave a lengthy statement to
the police implicating Johnston in the crime. The Crown, however,
did not lay a criminal charge at that time. Instead, between March
and September 2009, Johnston was the subject of a Mr Big operation
that resulted in a statement in which he admitted to killing the
As in Hart, Johnston was led to believe that he was on
the edge of entry into a well-organized criminal organization.
Johnston was on parole and without funds at the time of the Mr. Big
investigation. Under the guise of a fictitious criminal
organization, the police provided Johnston with money, trips to
bars, strip clubs and a concert. Similar to Hart,
Johnston's Mr. Big confession was inconsistent with his
brother's Michael statement.
The trial judge addressed the inconsistencies in the statement
Johnston gave to Mr. Big and noted that the comments relating to
the crime of 1998 were exaggerated, specifically the number of stab
wounds. Despite these inconsistencies, the trial judge admitted
Johnston's confession into evidence and convicted Johnston of
second degree murder. The Court of Appeal upheld the conviction,
dismissing Johnston's challenge to the admissibly of the Mr.
Big confession. The Court of Appeal's decision was released
three months before the Supreme Court's decision in
The Supreme Court's order remanding Johnston to be
reheard by the BC Court of Appeal is another case in the developing
law of the admissibility of Mr. Big confessions. The BC Court of
Appeal will now re-examine the facts in Johnston to
determine whether the confession meets the Hart test for
admissibility. The Court of Appeal will need to determine whether
Johnston was presented with inducements that created within him an
overwhelming need to belong to the group regardless of what was at
stake. The Court will examine all the circumstances of the
investigation and the confession, including inconsistencies within
Johnston's statements and the effect of the police inducements
in determining whether Johnston's "Mr. Big"
confession ought to have been admitted into evidence.
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