It isn’t every day that the Supreme Court of Canada creates a new common law rule but that is what happened today in R. v. Hart: 2014 SCC 52.
Nelson Hart’s twin daughters drowned while in his care. The police immediately suspected Hart but they lacked evidence to charge him or successfully support a prosecution. Two years after the drowning, the police put a “Mr. Big” operation into place.
Moldaver J. writing on behalf of the majority described the general parameters of what is now commonly known as the “Mr. Big” technique:
When conventional investigations fail to solve serious crimes, police forces in Canada have sometimes used the “Mr. Big” technique. A Mr. Big operation begins with undercover officers luring their suspect into a fictitious criminal organization of their own making. Over the next several weeks or months, the suspect is befriended by the undercover officers. He is shown that working with the organization provides a pathway to financial rewards and close friendships. There is only one catch. The crime boss — known colloquially as “Mr. Big” — must approve the suspect’s membership in the criminal organization.
The operation culminates with an interview-like meeting between the suspect and Mr. Big. During the interview, Mr. Big brings up the crime the police are investigating and questions the suspect about it. Denials of guilt are dismissed, and Mr. Big presses the suspect for a confession. As Mr. Big’s questioning continues, it becomes clear to the suspect that by confessing to the crime, the big prize — acceptance into the organization — awaits. If the suspect does confess, the fiction soon unravels and the suspect is arrested and charged. [Paras 1 and 2]
In this case, the police recruited Hart into a fictitious criminal organization. At the time Hart was unemployed and socially isolated. As part of the recruitment, Hart participated in 63 “scenarios” with undercover [UC] officers. He was paid more than $15,000 for the work that he did for the “organization” and traveled to several Canadian cities, staying in hotels and sometimes dining in expensive restaurants with the cost covered by his fictitious employer. Over the course of the operation, Hart came to consider the UC officers his best friends and viewed them as his brothers. At one point during the operation, he baldly admitted to having drowned his daughters.
The Mr. Big operation culminated in a meeting between Mr. Big—the head of the criminal organization— and Hart. The meeting was essentially portrayed as an interview. Mr. Big interrogated Hart about the death of his daughters, seeking a confession so that he could be included in further and better activities of the organization. Hart initially denied responsibility but then confessed to the crime. Days later, Hart took a UC officer to the scene and described how he had pushed his daughters into the water. Hart was charged with the murders based on this evidence.
This case was particularly frail: there were internal inconsistencies in the account of the murder and there was no confirmatory evidence to support the confession. It was in this context that the Supreme Court of Canada grappled with the often-criticized Mr. Big technique. Moldaver J. noted the tension arising from the clash between the value of the technique in solving crime and the dangers inherent in the use of the technique:
To be sure, the Mr. Big technique has proven to be an effective investigative tool. It has produced confessions and secured convictions in hundreds of cases that would otherwise have likely gone unsolved. The confessions elicited are often detailed and confirmed by other evidence. Manifestly, the technique has proved indispensible in the search for the truth.
But the technique comes with a price. Suspects confess to Mr. Big during pointed interrogations in the face of powerful inducements and sometimes veiled threats — and this raises the spectre of unreliable confessions.
Unreliable confessions present a unique danger. They provide compelling evidence of guilt and present a clear and straightforward path to conviction. Certainly in the case of conventional confessions, triers of fact have difficulty accepting that an innocent person would confess to a crime he did not commit. And yet our experience with wrongful convictions shows that innocent people can, and do, falsely confess. Unreliable confessions have been responsible for wrongful convictions — a fact we cannot ignore
The concern about Mr. Big confessions does not end there. The confessions are invariably accompanied by evidence that shows the accused willingly participated in “simulated crime” and was eager to join a criminal organization. This evidence sullies the accused’s character and, in doing so, carries with it the risk of prejudice. It also creates credibility hurdles that may be difficult to overcome for an accused who chooses to testify.
Experience in Canada and elsewhere teaches that wrongful convictions are often traceable to evidence that is either unreliable or prejudicial. When the two combine, they make for a potent mix — and the risk of a wrongful conviction increases accordingly. Wrongful convictions are a blight on our justice system and we must take reasonable steps to prevent them before they occur.
Finally, Mr. Big operations run the risk of becoming abusive. Undercover officers provide their targets with inducements, including cash rewards, to encourage them to confess. They also cultivate an aura of violence by showing that those who betray the criminal organization are met with violence. Thought must be given to the kinds of police tactics we, as a society, are prepared to condone in pursuit of the truth. [Paras 4 to 9][Emphasis added]
As a result of these inherent dangers, the majority of the SCC held that the appropriate response would be two pronged:
- The creation of a new common law rule of evidence
- Reliance on a more robust conception of the doctrine of abuse of process to deal with the problem of police misconduct. [Para 84]
The New Common Law Rule
Moldaver J. summarized the new rule that seeks to examine both the reliability of the statement and therefore its probative value as well as the prejudicial nature of the participation in the fictitious criminal organization:
Where the state recruits an accused into a fictitious criminal organization of its own making and seeks to elicit a confession from him, any confession made by the accused to the state during the operation should be treated as presumptively inadmissible. This presumption of inadmissibility is overcome where the Crown can establish, on a balance of probabilities, that the probative value of the confession outweighs its prejudicial effect. In this context, the confession’s probative value turns on an assessment of its reliability. Its prejudicial effect flows from the bad character evidence that must be admitted in order to put the operation and the confession in context. If the Crown is unable to demonstrate that the accused’s confession is admissible, the rest of the evidence surrounding the Mr. Big operation becomes irrelevant and thus inadmissible. This rule, like the confessions rule in the case of conventional police interrogations, operates as a specific qualification to the party admissions exception to the hearsay rule. [Para 85] [Emphasis added]
Abuse of Process Reinvigorated
In R. v. Fliss, 2002 SCC 16, Binnie J. described the Mr. Big technique as “skillful police work”. Moldaver J. and the majority of the Court distanced themselves from that characterization and chose to reinvigorate the abuse of process doctrine rather than attempting to seek an alternative framework to guard against what they viewed as the very same problem. [Para 114]
Moldaver J. provided the following guidance as to how the reinvigorated abuse of process doctrine should be applied in the context of Mr. Big operations:
It is of course impossible to set out a precise formula for determining when a Mr. Big operation will become abusive. These operations are too varied for a bright-line rule to apply. But there is one guideline that can be suggested. Mr. Big operations are designed to induce confessions. The mere presence of inducements is not problematic (Oickle, para. 57). But police conduct, including inducements and threats, becomes problematic in this context when it approximates coercion. In conducting these operations, the police cannot be permitted to overcome the will of the accused and coerce a confession. This would almost certainly amount to an abuse of process.
Physical violence or threats of violence provide examples of coercive police tactics. A confession derived from physical violence or threats of violence against an accused will not be admissible — no matter how reliable — because this, quite simply, is something the community will not tolerate (see, e.g., R. v. Singh, 2013 ONCA 750, 118 O.R. (3d) 253).
Violence and threats of violence are two forms of unacceptable coercion. But Mr. Big operations can become coercive in other ways as well. Operations that prey on an accused’s vulnerabilities — like mental health problems, substance addictions, or youthfulness — are also highly problematic (see Mack, at p. 963). Taking advantage of these vulnerabilities threatens trial fairness and the integrity of the justice system. As this Court has said on many occasions, misconduct that offends the community’s sense of fair play and decency will amount to an abuse of process and warrant the exclusion of the statement.
While coercion is an important factor to consider, I do not foreclose the possibility that Mr. Big operations can become abusive in other ways. The factors that I have outlined, while not identical, are similar to those outlined in Mack, with which trial judges are well-familiar (p. 966). At the end of the day, there is only so much guidance that can be provided. Our trial judges have long been entrusted with the task of identifying abuses of process and I have no reason to doubt their ability to do the same in this context [Paras 115 to 118]
In the case of Mr. Hart, the Supreme Court excluded all of his statements to the UC officers on the basis that the probative value did not outweigh their prejudicial impact. While not ruling on the abuse of process issue, the Court commented that the police conduct in the case raised significant concerns and might well have amounted to an abuse of process. [Paras 126 to 151]
The Future of the Mr. Big Operation
While Justice Moldaver noted that the Mr. Big technique is most often used in cold cases related to the most serious crimes and is used in ensuring that some of the most serious crimes in our society do not go unpunished, the new rules will surely discourage most future Mr. Big operations. The real concerns regarding wrongful convictions drove the creation of the new common law rules and the reinvigoration of the abuse of process doctrine.
The reality is that most of the cases where the Mr. Big operation is used, it is used because there is a dearth of other evidence. The new rules will make it very difficult to have the confessions ruled to be admissible due to the absence of other corroborative evidence. [See para 105] The Mr. Big technique is alive but only barely.