During the high-profile homicide case involving Tina Fontaine in 2014, the Winnipeg Police Service (“WPS”) engaged in a controversial investigative technique known as “Mr. Big”. This policing tactic was developed by the RCMP in the early 1990s and has been used across Canada on more than 350 occasions as of 2008. Mr. Big operations are used by law enforcement in situations where they have a strong belief that a suspect is responsible for committing a serious crime (usually murder) but do not have sufficient evidence to lay charges.
Mr. Big operations are implemented in a variety of ways, they all follow a common narrative. Undercover police officers approach the suspect and attempt to develop a relationship, and slowly begin working together. This stage can last several months. The suspect is then asked to engage in a number of seemingly illegal tasks, such as delivering suspicious packages or counting large sums of money.
Eventually the suspect is introduced to the idea that the undercover officers work for a criminal organization. The suspect is then required to meet the head of the ‘ficticious’ criminal organization, Mr. Big. In a job-interview setting, Mr. Big asks about the suspects criminal past and the specifically the crime under investigation by police. As the meeting goes on it becomes clear that confessing to the crime will allow the suspect to become a member of the criminal organization and have protection from the police.
Although unsuccessful, the WPS attempted to utilize this technique to catch Tina’s suspected killer, Raymond Cormier. Cormier was set up in an apartment where the undercover officers conducted surveillance and slowly befriended him. An officer, acting as “Mohammed”, a neighbor in Cormier’s apartment block hired Cormier for small jobs eluding to the fact that he worked for a man named “Mr. J”. Cormier says he was paid approximately two-thousand dollars for engaging in odd jobs, which required him to pick up luggage at the airport marked with a red ribbon and bring it to a specified location, clean up Mohammed’s apartment after he told him he assaulted his girlfriend, and travel to B.C. to engage in a “collection”. In B.C. “Mr. J” confronted Cormier about the murder of Tina Fontaine, where he denied committing the murder and immediately suspected that the police were involved. Cormier was later arrested and charged with second-degree murder but was never convicted.
Due to the nature of Mr. Big operations, one of the main concerns that arise are the reliability of the confessions they produce. In 2014, shortly before the Tina Fontaine homicide case, Mr. Big operations were scrutinized by the Supreme Court of Canada in a pair of decisions, R v Hart and R v Mack. The decision in Hart recognized the vulnerabilities of suspects to falsely confess to crimes under Mr. Big operations. In an attempt to address this issue, the Hart decision stated that confessions obtained during a Mr. Big operation are presumptively inadmissible unless the crown can establish: 1- On a balance of probabilities that the probative value of the confession outweighs its prejudicial effect; and 2- Whether the statements should be excluded on the basis of abuse of process. In Mack the court gave further clarification on how the framework established in Hart should be applied. It illustrated that the court still has the ability to utilize confessions obtained in a Mr. Big operation if they meet the criteria established in Hart. These decisions marked an important evolution of the law related to Mr. Big operations and will impact the decisions of cases for years to come.
R v Hart, 2014 SCC 52.
R v Mack, 2014 SCC 58.
“Undercover Operations” (5 January 2015), online: Royal Canadian Mounted Police <http://bc.rcmp-grc.gc.ca/ViewPage.action?siteNodeId=23&languageId=1&contentId=6941>.