Mr. Big? Mr. Bah Humbug! (A student comment)

Mr. Big operations (MBOs) are a police strategy that are unique to Canada. It first involves police officers going under cover by making a fictitious criminal organization and befriending the target who is typically a suspect in a major unsolved crime, usually a murder. Once the target is befriended and pulled into the organization by the officers, the target engages in what they think are criminal activities with the organization. This can span over a significant period of time. Eventually, to gain official membership or to build trust between the target and the officers, the officers introduce the target to the head of the organization AKA Mr. Big, where they are told they should or must confess to the crime being investigated. If they do confess, a charge will be laid by police. While each scheme is different depending on the scenario, this general narrative is followed. This type of undercover scheme is usually for suspects in murder cases where there is not enough evidence to charge them without a confession.

The issues with Mr. Big schemes are of a high magnitude. Namely, that they produce confessions that could be both involuntary and unreliable. However, the case of Hart sets out a two-prong test that seeks to address some of the issues that arise. This new common law rule of evidence treats confessions from MBO’s as initially inadmissible, which is a step in the right direction. But, it can be overcome where the Crown can establish that the probative value of the confession outweighs the prejudicial impact: a judge determines whether this test is met.

Determining the probative value of a confession involves assessing the reliability of the confession by considering two factors. The first factor involves considering the circumstances in which it was made. The circumstances would include the time span of the operation, the relationship and interactions between the undercover officers and the accused, the inducements or threats that were made/given, the interrogation that brought about the confession and the accused’s personality. The second factor involves considering the qualities and details of the confession itself, such as whether it led to the discovery of derivative evidence or revealed details unknown to the public or only that the offender would know.

Determining prejudicial impact involves a consideration of the development of potential moral and reasoning prejudice. Moral prejudice is at risk of developing when the jury is informed of the accused’s participation in simulated crimes through the fictitious organization and is enhanced when violence is involved in the simulated crimes.

Reasoning prejudice occurs when the jury is distracted from the charges at hand, which varies depending on the operation’s length, the time spent explaining it and whether controversy about whether a certain situation occurred.

The second part of the test involves a look at the doctrine of abuse of process. In accordance with this (the goal of which is to guard against misconduct by the state that threatens the justice system’s integrity), police are not to overpower an accused’s will to coerce a confession while conducting an operation. Violence, threats and the targeting of an accused’s vulnerabilities constitute examples of coercion that is impermissible.

The steps taken here by Hart are significant. It ensures that reliability of confessions will be met in order for confessions to be admitted into evidence. However, confessions could still be made without true free will, which is still a major area of concern for MBOs. Another troubling issue is still that many of the Charter rights that help protect an accused while in custody or while being detained do not apply in Mr. Big operations because the individual is not being detained. So, the Charter right to silence and right to counsel are not rights that are available to targets of an MBO. If the Charter was enacted to help protect and safe guard individual’s rights, it seems incredibly ironic that it would not apply here. While Hart does set out a common law rule, common law rules can be changed by the court over time and are may not be as well protected as rules and protections that stem from the Charter.

Another concern is the time and the money that is being spent on such operations by the police forces, and by extension, the taxpayers’ money. The cases of Hart and Mack spanned over several months, which is valuable time the officers involved could have spent focusing on other initiatives. When there’s a chance a confession may not even come out of it and a chance that the confession that does come out can be determined to be coerced, as was the case in Hart, it is tough to justify these efforts. The amount of money that is also expended on these operations seems outrageous. Hart for example was flown around Canada to engage in the simulated criminal activities. Such expenditures seem highly unnecessary and could be construed as a waste of tax payers money.

If you ask my opinion, I don’t think Mr. Big Operations should continue. It seems to be a waste of time and money and the confessions that result are still subject to ethical (if not legal) voluntariness issues. Also, if the Charter does not apply in a situation like this, is that not a sign that perhaps police are outmaneuvering the Constitution and is that acceptable to us as a populace? Hopefully moving forward, less MBOs will occur as a result of the strict guidelines Hart set for them. But only time will tell.

Sources:

R. v. Hart 2014 SCC

R. v. Mack 2014 SCC

Scrutinizing Mr. Big: Police Trickery, the Confessions Rule and the Need to Regulate Extra-Custodial Undercover Interrogations by Amar Khoday.