Canada: Supreme Court Remands "Mr. Big" Case To B.C. Court Of Appeal

On Feb. 26, 2015, the Supreme Court of Canada remanded a case involving a "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 victim.

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 Hart.

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.

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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