6 November

No New Friends: A Look at the Law Relating to Mr. Big in R. v. Hart

By: Susannah Chung-Alvares

A Mr. Big operation is a Canadian police technique by which a suspect is drawn into a fictitious criminal organization with the ultimate goal of securing a confession.  Over a period of weeks or months, undercover officers within the organization befriend the suspect and offer him financial rewards. In the typical Mr. Big scenario, the suspect is questioned about the crime being investigated, and is ultimately pressed into giving a confession with the main incentive being membership into the criminal organization.

The Dangers of Mr. Big Operations

The jurisprudence recognizes the danger of unreliable confessions that are inherently part of Mr. Big operations because of the powerful nature of the inducements offered.  The Supreme Court in R. v. Hart also acknowledged that while unreliable confessions “provide compelling evidence of guilt and present a clear and straightforward path to conviction,” they “have been responsible for wrongful convictions – a fact we cannot ignore.”[i]

Mr. Big confessions also involve evidence that the accused willingly took part in simulated crimes and wanted to join a criminal organization.  This evidence tarnishes the accused’s character, and invites prejudice.  For an accused who chooses to testify, it creates a bar to being believed.

Despite the well-established rule prohibiting the Crown from leading bad character evidence, this evidence has been regularly admitted in Mr. Big cases because it provides the context in which the confession was elicited.  In fact, the accused might come to depend on the very evidence in order to show the type of inducements offered and, ultimately, why his confession should not be believed.  Indeed, for a visceral and shocking example, I recommend watching the first two episodes of The Confession Tapes, a made for Netflix series chronicling various problems with confessions.  (As a side-note, it is interesting that the Mr. Big technique is prohibited in the United States.  However, in the case documented in those episodes, the suspects were Canadian and the Mr. Big operation was conducted in Canada, by Canadian police, so the American court admitted the evidence.)

It is also clear that Mr. Big operations run the risk of becoming abusive.  This is apparent when considering the nature of the inducements, such as cash rewards, that are used to encourage suspects to confess, as well as an aura of violence that is often created by driving home the point that those who betray the organization are met with unfavourable consequences.

The Confession in R. v. Hart

There were three statements made by the accused in Hart.  The first was a bald confession made to one of the undercover officers who had become best friends with the accused two months into the investigation.  The second statement was made two months after the initial statement, during a “job interview” with Mr. Big where the accused was interrogated by the head of the criminal organization.  In that instance, the accused confessed after initially denying responsibility.  The third statement was made to an undercover officer at the scene of the drowning, where they attended two days after the confession to Mr. Big. The accused described how he pushed his daughters into the water.

The Court ruled that, for all three confessions, their probative value did not outweigh their prejudicial effect, resulting in their exclusion.

The Legal Test for Admission of Statements from Mr. Big Operations

In recognizing the inherent dangers of Mr. Big operations and the lack of redress, the Supreme Court of Canada held in Hart that such confessions were presumptively inadmissible and established a two-pronged test:

  1. Where the state recruits an accused into a fictitious criminal organization and seeks to elicit a confession, any resulting confession is presumptively inadmissible. The Crown must establish on a balance of probabilities that the probative value outweighs its prejudicial effect.  If the probative value does not outweigh its prejudicial effect, then the statement will be excluded.
  1. When an accused establishes that an abuse of process has occurred, the court can fashion an appropriate remedy, including the exclusion of the confession or a stay of proceedings.

The Probative Value of the Statements

Probative value is a function of the reliability of the statement. The Court noted that: “People do not normally confess to crimes they have not committed.  But the circumstances in which Mr. Big confessions are elicited can undermine that supposition.”[ii] As such, in assessing reliability, a trial judge must look at the circumstances in which the statement was made, including, but not limited to, length of operation, frequency of contacts, inducements offered, presence of any threats, and the personality of the accused, including age, sophistication, and mental health.  The Court held that there will be greater reliability concerns where a confession comes from a young person or person suffering from a mental illness or disability.

After determining whether and to what extent the reliability of the confession has been called into doubt by the circumstances in which it was made, the court then looks to the confession itself for markers of reliability.  In doing so, the trial judge should consider the level of detail within the confession, whether it leads to additional evidence, whether there are any elements of the crime that was not made public, and whether it accurately describes mundane details that only someone who committed the offence would know. The existence of confirmatory evidence is not a hard and fast requirement, but the greater the concerns raised by the circumstances in which the confession is made, the more important it will be to find markers of reliability in the confession itself or the surrounding evidence.

The Prejudicial Effect of Mr. Big Evidence

In weighing the prejudicial effect, trial judges must be aware that admitting Mr. Big confessions creates a significant risk of moral and reasoning prejudice.

Moral prejudice is engaged since the jury will learn that the accused wanted to join a criminal organization and committed simulated crimes that he thought were real, and may increase when violence is involved.  By marring the accused’s character in that way, there is a risk that the jury will reason the accused is guilty, or that he deserves to be punished in any event.

Reasoning prejudice occurs when the jury’s focus is distracted away from charges before the court.  It can pose a problem depending on the length of the operation, the amount of time that must be spent detailing it, and any controversy as to whether a particular event or conversation occurred. To an extent, risk can be mitigated by excluding prejudicial evidence unessential to the narrative or by providing limiting instructions.

Mr. Big Operations and Abuse of Process

The Court in Hart held that a sufficiently reliable and probative confession may nonetheless be excluded, or the proceedings stayed, if the police conduct in the operation amounted to an abuse of process, with the onus falling on the accused to establish the abuse.

The Court declined to establish a precise formula, but is clearly concerned with police conduct that amounts to or approximates coercion, including inducements, threats, violence, or threats of violence. The Court also acknowledged that preying on an accused’s vulnerabilities is also “highly problematic” and that there may be other ways in which the conduct becomes abusive[iii], and relied on the common law abuse of process doctrine to address issues on a case by case basis.

The Exclusion of the Evidence in Hart

The Court found in Hart that the circumstances of the statements cast serious doubt on the reliability of the confessions. At the time the Mr. Big operation began, the accused was unemployed and socially isolated. The accused participated in 63 scenarios and had near daily phone contact with the two undercover officers, who became his closest friends.  It was a lengthy and intense operation. The operation had a transformative effect on his life, lifting him out of poverty and providing him with friendships. The financial and social inducements gave him an overwhelming incentive to confess, regardless of the truth.

The Court found that the respondent’s description of how the crime was committed was “somewhat inconsistent”.[iv]  First, he denied killing his daughters, then later said they fell into the water, then he claimed he pushed them in with his shoulder, but in his re-enactment, he nudged the undercover officer with his knee.

The Court held that the confessions contained internal contradictions and that there was no confirmatory evidence capable of verifying any of the details contained within the confessions.  As such, their reliability was left in serious doubt, and the Court was forced to conclude that there was little probative value.

As in all Mr. Big confessions, there was an obvious potential for prejudice.  There was extensive evidence that for four months, the accused devoted himself to trying to join a criminal organization and participated in criminal acts.  He bragged about killing his three-year-old daughters to gain the approval of a group of criminals.  The potential for moral prejudice in the circumstances were significant.

The court found that the limited probative value of the statements was outweighed by their prejudicial effect, and that the confessions were not worth the risk they posed. The Supreme Court excluded from evidence all three of the statements.

As for the earlier confession, although unprompted, it came about when the respondent and an undercover were bragging about their willingness to engage in violence, when the respondent was already under the spell of powerful financial and social inducements.  It also contained no details, but was just a bald assertion that he killed his daughters and had planned it.  Finally, it was not recorded and the respondent denied making it, which made it only harder to assess probative value.  In the end, the probative value of this statement also did not outweigh the prejudicial effect.

As the Crown did not meet their onus, it was not necessary for the Court in Hart to determine whether or not the police conduct amounted to an abuse of process.  However, the Court went on to state that there was “no denying that this was an extremely intensive Mr. Big operation, and one that preyed upon the respondent’s poverty and social isolation”[v] and that “[w]ithout question, the police conduct in this case raises significant concerns, and might well amount to an abuse of process.”[vi]

Concluding Thought

Despite the inherent dangers of Mr. Big operations, including false confessions and the resulting potential for wrongful convictions, prejudice and abuse, and the enormous costs associated, it remains a tool used by the state. As long as the law remains in effect, it may be wise to adhere to the adage “no new friends”.

End Notes

[i] R. v. Hart, 2014 SCC 52 at para. 6.

[ii] Ibid. at para. 102.

[iii] Ibid. at paras. 117-118.

[iv] Ibid. at para. 142.

[v] Ibid. at para. 148.

[vi] Ibid. at para. 149.

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