It was a cold day in the fall of 2016, when Nilakshan Selvanayagam was enjoying a warming hot tub at the local gym in Burnaby British Columbia. While enjoying the jets, bubbles and warmth, a stranger approached Nilakshan and started a conversation. This conversation quickly established that Vijay was a successful businessman, and was seeking a local to assist him in finding investment properties in the area. This was an appealing proposition to Nilakshan, who undoubtedly was ecstatic he had gotten so lucky as to be approached by this man.
Unfortunately for Nilakshan, Vijay was not a successful businessman. His only business in fact, was to learn whether Nilakshan was in fact, the dangerous criminal the police suspected him to be. For Vijay was an undercover police over, who had just earned the trust of the man he suspected had vandalized a police car and left several threatening notes at the police station.
Over the course of several weeks, Vijay took Nilakshan out for several nice dinners, and had an associate work with Nilakshan to teach him how to scout out investment properties. It is presumed that this operation was effective, as Selvanayagam was eventually charged with Mischief under s 430(1.1) and Uttering threats under s 264.1(1), and was sentenced to two year’s probation. He has since submitted an application to decrease the term of his probation under s 732.2(3)(c).
Selvanayagam had confessed to vandalizing a police car at the Burnaby police station, and left a note stating “I keyed your car cause two corporals in your detachment made me angry and put me in a cell before…I also came here with a tactical bulletproof vest and a Glock 43 just in case I got caught.” This was followed by a similar incident, in which a police car was vandalized and a note was left. This time, it was more threatening, including lines such as: “If your officers ever fuck with me I will be ready to spray a lot of bullets at your members.”1 It was due to the escalation of threats that the police decided to use this method of investigation.
This operation had many of the key features of a Mr. Big Operation (MBO). This uniquely Canadian policing method earns its name from the practice of police using undercover police officers to coerce a confession from the suspect to the head of a fake criminal organization, the “Mr. Big”. The undercover officers befriend the suspect, have them work several “jobs” for them normally involving some sort of task closely linked to criminal behaviour but not necessarily a crime in itself. At the certain point in time, the police will coerce a suspect to confess to a crime the police suspect they have done, normally a serious offence such as murder, under the suggestion they need to trust this new member.
Excerpt from R v Hart:
This undercover operation had several key differences between traditional MBOs. Firstly, this was a legitimate business opportunity the suspect was offered, rather than membership in a criminal enterprise. This may lessen the concern of whether the admission of evidence will have a prejudicial impact on Court proceedings. The Supreme Court in R v Hart was concerned with risk that a trier of fact might be distracted by wilfulness of the accused to engage in criminal behaviour. This is outlined as both “moral prejudice” and “reasoning prejudice,” and both put the accused at an acute disadvantage and can results in a miscarriage of justice.2 If a judge or jury does not see a surrounding cloud of mistrust due to their enthusiasm to work in the fake-criminal organization, they can focus on the real issue at court, whether the accused did commit the crime and whether their confession is reliable.
The second key difference between this operation and the usual MBO, is that the crime committed was actually relatively minor. Unlike the usual murder offences, he was merely vandalizing a few vehicles and utter threats. While the threats were serious and regarding law enforcement officers, there was little reason to suspect this man was actually a violent offender. There will be no jury for mischief or uttering threats offences, therefore there is a lessened prejudicial factor. There is, however, a broader question of abuse of police process required to be asked.
MBOs are accepted by the Canadian public as the tax payer resources and deceptive methods are traditionally reserved for the most serious offence in Canada: murder. This significantly lowers the criminality required for these levels of deception and resources. This was also at the prerogative of the police. There is a slippery slope argument to be made that, if the police feel they are threatened as an organization by criminal behaviour, they are able to employ incredibly deceptive methods to extract a confession from suspects.
It is understandable and justified for the police to use every method available to protect themselves, and they play a crucial role in protecting citizens by upholding law and order in a democracy. Additionally, there is every reason to take threats of violence from fire arms as serious. However, if the public is not at risk, there should be a limit to the extent that the police can go to in order to extract confessions of crimes. If I make a joke about speeding at my next job interview, I would be rather distressed to learn that my future employer is actually a police officer and get handed a ticket.
1 Douglas Quan, “The RCMP Conduct an ‘Elaborate’ Undercover Sting on a man Suspected of Vandalism and Threats. Was it Too Much?”, The National Post, April 3rd 2018. <http://nationalpost.com/news/the-rcmp-conducted-an-elaborate-undercover-sting-on-man-suspected-of-vandalism-and-threats-was-it-too-much>.
2 R v Hart,  2 SCR 544 at para 74 - 78, 2014 SCC 52.