Mr. Big Operations - crime control not worth Canada's soul

“I'm impressed at the baroqueness of the whole thing,” my partner mused. “But it sounds like what they ought to be doing in the Middle East. Not Canada”.

There are some Canadian concepts that, having moved here in my 20s, I'd had to learn at an older age what the locals expect you to know from childhood. Like what to do if you're attacked by a bear, how to survive 7 months of winter, and that literally every side thinks they uniquely won the war of 1812.

It turns out that many Canadians from birth are, however, unaware of the most Canadian of law enforcement stings, the Mr. Big Operation (MBO). In these stings, cops who need more evidence to link a suspect to a crime, conduct a highly detailed undercover operation to convince the suspect to join their criminal gang, ultimately requiring a suspect to boast about their past misdeeds to the syndicate's crime lord – Mr. Big – in order to gain acceptance. Mr. Big of course is an undercover officer as well, and with the confession they can launch a prosecution.

Just in February this year, a charge based on a 2015 Mr Big Operation against a Nova Scotia man, John Buckley was thrown out[1]. This $300,000 operation involved running job fairs, hiring him, smashing cars, and paid trips to see the Montreal Canadiens hockey team - ultimately, the only worth of the operation may have been as a minor economic stimulus package. Buckley ultimately confessed to killing his mother, but the Mr Big confession was found inadmissible as evidence, and the rest of the case relied on what the police had found – specifically, he had only confessed in the police station in response to being told that since he had already confessed during the MBO, there was no point in hiding it anymore. Without a valid MBO, the underlying reason for the confession in the police station was gone, and so was the rest of the case.

It's easy to have fundamental objections to the concept of a Mr. Big Operation – indeed, almost everyone I spoke to recently who was learning about them for the first time, in law school, was shocked that they were a thing. Canadians are normally proud of their culture of rights, with the Charter, the Bill of Rights, and the Canadian Museum of Human Rights located very close to Robson Hall, Law School, in central Winnipeg. Spending vast sums of taxpayer money on elaborate schemes to trick people into confessing to crimes when there's no hard evidence they committed them doesn't feel like a particularly Canadian thing to do.

There were two ways people might expect to gain protection from a MBO – Charter rights to silence and counsel, or the common law confessions rule. The Charter is of relatively little use – because the right to silence and the right to consult with a lawyer only come into effect when a person is being detained by the police. In a MBO, the suspect is not normally under detention, and the operation has entirely failed if they know they are in the presence of police. Nor will the common law confessions protocols apply as the suspect does not know he is dealing with a person in authority.

In response to these concerns, the current rules for an MBO come from two cases out of the Supreme Court: R v Hart [2] and R v Mack [3], both from 2014. These cases state that evidence emerging from an MBO will be presumptively inadmissible, unless the value of the confession and the way it was obtained clearly outweigh the negative effects it could have – for example, a suspect who is asked to commit minor crimes to gain their new crime family's trust (like couriering parcels) and then freely admits to prior crime in great detail unknown to the general population would be in a very different calculus than one who was browbeaten into committing assaults to demonstrate their loyalty, and were finally heavily prompted or threatened before claiming responsibility for widely known information. In addition, MBOs can only be used for serious crimes, and must not involve someone in a vulnerable situation – for example a young person, or someone who would easily crack under pressure.

Excerpted from Hart:

MBOs are generally illegal in western countries, as an example of an overbearing police state, yet evidence gathered legally using them in Canada can be used by other countries. Two of the most famous inmates as a result of an MBO are Atif Rafay and Sebastian Burns, jailed since 1994 in Washington State on evidence which could not have been legally gathered in the USA – because the MBO was valid in Canada, it was deemed admissible despite its many flaws. Canadian police use the tactic relatively frequently, even though the procedures can have bills of hundreds of thousands of dollars attached, and often wind up with evidence that is either useless or highly questionable.

Raymond Cormier, charged and found not guilty of the murder of Tina Fontaine was subject to a MBO which involved flying him to Whistler BC (where he failed to confess). John Buckley's confession was thrown out. As the tactic gains more media coverage, it potentially becomes less useful, as suspects become aware that this gang attempting to recruit them (in close proximity to their dealings with police) and then demand confessions may have ulterior motives.

The Mr. Big tactic may be a way to elicit information, but it doesn't feel like something that fits Canadian sensibilities, nor does it seem likely to produce reliable results on a regular basis. Mr Big Operations are flawed in theory, practice, and justification. Canada has many wonderful quirks, but when most every other developed country on Earth thinks something is wrong, they might actually be correct.

Endnotes

[1] R v Buckley, 2018 NSSC 1.

[2] R v Hart, 2014 SCC 52.

[3] R v Mack, 2014 SCC 58

[4] Amar Khoday. Scrutinizing Mr. Big: Police Trickery,the Confessions Rule and the Need to Regulate Extra-Custodial Undercover Interrogations. Criminal Law Quarterly Vol 60, 2013, at 280.

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