Mr Big Operations, still preying on dumb-asses

The Mr. Big technique is a Canadian invention. Although a version of the technique appears to have been used more than a century ago, its modern use began in the 1990s and, by 2008, it had been used by police across Canada more than 350 times. The technique, used only in cases involving serious unsolved crimes, has secured confessions and convictions in hundreds of cases. The confessions wrought by the technique are often detailed and confirmed by other evidence.

However, the Mr. Big technique comes at 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 provide compelling evidence of guilt and present a clear and straightforward path to conviction. In other contexts, they have been responsible for wrongful convictions — a fact we cannot ignore.

Mr. Big confessions are also 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.

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. We must take reasonable steps to prevent them before they occur.

Mr. Big operations also 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. There is a risk these operations may become coercive. Thought must be given to the kinds of police tactics we, as a society, are prepared to condone in pursuit of the truth.

Under existing law, Mr. Big confessions are routinely admitted under the party admissions exception to the hearsay rule. Attempts to extend existing legal protections to Mr. Big operations have failed. This Court has held that Mr. Big operations do not engage the right to silence because the accused is not detained by the police at the time he or she confesses. And the confessions rule — which requires the Crown to prove an accused’s statement to a person in authority is “voluntary” — is inoperative because the accused does not know that Mr. Big is a police officer when he confesses.

In sum, the law as it stands provides insufficient protection to accused persons who confess during Mr. Big operations. A two-pronged response is needed to address the concerns with reliability, prejudice and police misconduct raised by these operations.

via CanLII – 2014 SCC 52 (CanLII)

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