Mr. Big: Reliability And Admissibility In Hart And Mack

The Supreme Court of Canada recently considered the issue of so-called "Mr. Big" confessions. In two separate decisions, the Court created a new common law rule of evidence to govern the admissibility of Mr. Big confessions and provided guidance on the application of this rule.

These two decisions - R. v. Hart1 and R. v. Mack2 - are of particular interest to police investigators designing Mr. Big operations as well as to Crown and defence counsel conducting trials involving Mr. Big confessions.

More generally, the two decisions (both written by Moldaver J.) serve as a notable example of the Court creating a legal test then applying that test to two different fact situations with opposite results.

What is a Mr. Big Confession?

The Mr. Big investigative technique is a Canadian invention. It has been used by police across Canada more than 350 times. Typically, a Mr. Big operation is designed to obtain a confession from a suspect by having undercover investigators pose as members of a fictitious criminal organization. The suspect is offered an opportunity to advance in the organization by proving he is a "tough guy." To prove this, the suspect is introduced to the organization's boss ("Mr. Big") who presses the suspect for details of the crime being investigated as proof of his criminal chops.

Until the judgment in Hart, Canadian law did not include a rule of evidence to govern confessions obtained as a result of Mr. Big operations. Such operations did not violate the accused's right to silence, nor engage the requirement that the Crown prove that the confession was voluntary.

This lacuna was troublesome because of the serious risks inherent in Mr. Big confessions.

Problems with Mr. Big Confessions

Confessions obtained as a result of Mr. Big operations carry a significant risk of unreliability. Suspects confess to Mr. Big during pointed interrogations in the face of powerful inducements and sometimes veiled threats.

The evidence surrounding a Mr. Big confession is also highly prejudicial to the accused. Despite the fact that the "criminal" organization and its "illegal" activities are entirely fictitious, the confession of the accused will be accompanied by evidence that shows he was eager to participate in a criminal organization and commit what he thought were crimes.

Aside from these evidentiary concerns, Mr. Big operations also run the risk of becoming abusive. Undercover officers induce the suspect to confess and are at risk of stepping...