A few months back, fellow MCL blogger Brian Holowka reviewed the latest pronouncement from the Supreme Court of Canada in R v Hart regarding Mr. Big operations: The Mr Big Operation: The SCC constrains but does not eliminate the practice.
In the Hart decision, the Supreme Court created a new common rule that now governs whether or not the results of a Mr. Big undercover operation should be admitted into evidence: R v Hart, 2014 SCC 52.
Hart was heard with a companion case: R v Mack, 2014 SCC 58. Mack was convicted at trial of first-degree murder. During the course of an undercover Mr. Big operation, Mack confessed to killing his roommate. He provided the undercover officers with a number of details about the murder, including the reasons he did it and the location of the body’s remains – which Mack had reduced to ashes. The Mr. Big confessions went to the jury for consideration, with an instruction from the trial judge that addressed any concerns about the confession’s reliability and potential for prejudice [para 56].
Mack appealed from conviction to the Alberta Court of Appeal, where his conviction was affirmed: 2012 ABCA 42.
On appeal to the Supreme Court, Mack advanced three arguments. Two of the three were concerned with the evidence gleaned from the Mr. Big operation. Mack argued that:
- The trial judge should have excluded the confessions he made to the undercover officers pursuant to s. 24(2) of the Charter; and,
- If the confessions were admissible, the charge to the jury was inadequate as to the dangers associated with them [para 2].
With respect to the first argument, the Supreme Court began by recognizing that Mack did not have the benefit of advancing an argument that the confessions should have been excluded pursuant to the new Hart framework. The two-pronged Hart rule dictates that a Mr. Big confession will be excluded where its prejudicial effect outweighs its probative value, or where it is the product of an abuse of process [para 32].
The Court applied the Hart framework to Mack’s case. The first prong involves a balancing of the probative value of the confession against any prejudicial effect.
Concerning the confession’s probative value, the Court found:
- The inducements provided by the officers were modest;
- The Appellant had well-paying, legitimate work readily available to him;
- The Appellant was not threatened by the officers;
- The Appellant was told that he could decline to say anything, an option he initially accepted [para 33].
Further, the Court concluded that there was “an abundance of evidence” that was potentially confirmatory. This included:
- The testimony of two other witnesses that described the same motive for killing that Mack had told the undercover officers;
- The fact that the Appellant led the undercover officers to a fire pit where his roommate’s remained lay yet undiscovered; and,
- The fact that shell casings fired from a gun found in the Appellant’s apartment were found in the same fire pit the Appellant led the officers to.
These factors, taken together, made the confession “highly probative” [para 34].
Concerning the confession’s prejudicial effect, the Court found any prejudice was limited. The Court considered that:
- Mack did not partake in any scenarios that involved violence;
- The operation did not reveal prejudicial facts about the Appellant’s past history; and,
- Mack’s role was limited to assisting with the repossession of vehicles and delivering of packages [para 35].
The Court concluded that “any prejudicial effect arising from the Mr. Big confessions is easily outweighed by their probative value” [para 35]. Under the first prong of the Hart test, the confessions would have been admitted.
The second prong of the Hart framework involves determining whether the police officers conducting the Mr. Big operation engaged in any improper conduct, that could ground an application for abuse of process [para 36]. Here, the Supreme Court found that:
- Mack was not presented with overwhelming inducements;
- Mack had legitimate prospects for work, that would have paid even more than what the undercover officers were offering;
- The officers did not threaten Mack with violence if he didn’t confess ; and,
- The officers made it explicitly clear that Mack did not have to speak with them [para 36].
The Supreme Court found that at most, the officers created “an air of intimidation” by referring to violent acts committed by members of the fictional organization, but this did not mean that Mack was coerced into confessing [para 36].
Under the second prong of the Hart test, the confessions would also have been admitted.
Although the Court ultimately dismissed Mack’s first ground of appeal for the exclusion of evidence based on s. 24(2) of the Charter, the Court also concluded that the confessions would “clearly be admissible under [the Hart] framework” [para 32]. As such, Mack’s first argument was dismissed.
With respect to the second argument, the Court reiterated that there are two major evidentiary concerns arising out of Mr. Big operations: the reliability of such confessions, and the bad character evidence that invariably accompanies them [para 43].
The Court found that while the Hart rule is intended to respond to these concerns, it does not purport to erase them entirely. It falls to the trial judge to adequately, but not perfectly, instruct the jury as to how to approach these confessions in reaching a verdict [paras 44, 48].
The approach taken by the British Columbia Court of Appeal in both R v Terrico, 2005 BCCA 361 and R v Fry, 2011 BCCA 381, was endorsed by the Supreme Court. Jury instructions that pertain to Mr. Big operations should be subject to a contextual, case-by-case review. There is no “magical incantation” that must be read to juries in all Mr. Big cases; the nature and extent of instruction will vary from case to case [para 49].
The Court did offer some additional guidance, but no prescriptive formula, for trial judges to consider when instructing a jury. Juries should be informed that the reliability of such a confession is a question for them to answer, and will necessarily be impacted by both the circumstances in which the confession was made and the details contained in the confession itself [para 52].
As articulated in Hart, the trial judge should alert the jury to:
- The length of the operation;
- The number of interactions;
- The nature of the relationship established;
- The nature and extent of inducements offered;
- The presence of any threats;
- The conduct of the interrogation itself; and,
- The personality of the accused [para 52, citing Hart at para 102].
Further, the trial judge should discuss that the confession itself may contain markers of reliability or unreliability. Juries should consider whether the confession led to the discovery of additional evidence, whether it identified any elements of the crime not publicly known, or whether it described mundane details of the crime the accused would likely not have known had he not committed it [para 53, citing Hart @ para 105).
Finally, the Supreme Court emphasized that the jury should be reminded that such a confession is admitted for the limited purpose of providing context for the confession, and cannot rely on the confession to determine whether the accused is guilty. The jury should also be reminded of the state’s role in simulating and encouraging criminal activity [para 55].
On the second ground of appeal advanced by Mack concerning Mr. Big operations, the Court found that trial judge’s instructions were adequate and revealed no error [para 58]. As such, Mack’s argument was again dismissed.
In reviewing the Hart decision for MCL, Mr. Holowka properly highlighted that Mr. Big operations are often spawned due to a dearth of other evidence, the results of which may now be difficult to admit if corroborative evidence is lacking. However, the Mack decision places important emphasis on the fact that it is not to be presumed that prejudice, coercion, or abusive tactics are necessarily present in all Mr. Big operations. Courts must still be alive to the significantly probative evidence that this investigative technique can generate. Although Hart may have left the Mr. Big technique alive, but only barely; Mack offers vital resuscitation.