A New Standard for “Mr. Big” Confessions: R v Hart
R v Hart, 2014 SCC 52 [Hart], is about the admissibility of confessions elicited during “Mr. Big” operations, a relatively common sting tactic used by police across the country. The Supreme Court of Canada (SCC) found that confessions given during such operations are often unreliable and introduced a stringent new test for their admissibility as evidence in criminal cases. As such, the decision seeks to curtail the abuse of police power in coercing unreliable confessions.
Before looking at the facts of the case, it’s helpful to consider the history of Mr. Big operations, which the Court’s decision (delivered by Justice Moldaver) helpfully provides.
The History of Mr. Big Operations
The SCC described the Mr. Big technique as a “Canadian invention” (para 56) that has been “used to secure convictions in hundreds of cases” (para 61). Citing the B.C. RCMP, the SCC noted that, since 2008, the tactic has been used in Canada on more than 350 occasions (para 56). The SCC also stated that there have been “no established wrongful convictions” stemming from the use of the tactic but pointed to two cases giving pause: the 1992 murder conviction of Kyle Unger, which relied on a Mr. Big confession as well as on forensic evidence that has since been called into question; and R v Bates, 2009 ABQB 379, in which an accused “overstated his involvement” (Hart, para 62) in a manslaughter case.
Mr. Big’s “Script”
The Court identified the following elements as forming part of the familiar “script” (para 57) of Mr. Big operations:
- Undercover police officers surreptitiously conduct surveillance of the suspect. They approach the suspect and begin to socialize and work together.
- It soon becomes apparent that the officers are engaged in a (fictional) criminal organization. Over a period that can last several months, the suspect “is assigned simple and apparently illegal tasks” (para 57). The suspect is rewarded both financially and through social acceptance by the group.
- The operation culminates when the suspect is introduced to the boss of the putative criminal organization – the so-called Mr. Big – who extracts a confession to the crime under investigation. The crime boss might use coercive techniques to induce the confession – for instance, by implying an “aura of violence” (para 59), providing “a consequence-free ticket into the organization” (para 68) or promising protection from a police investigation (para 59).
The Unreliable Evidence in Hart
In the case under consideration, in which the defendant was found guilty of murdering his twin daughters, events played out according to the script outlined above. The defendant ultimately confessed on three separate occasions to the killings.
However, the facts of the case indicate that several factors may have induced his confessions, casting doubt on their reliability. For instance, the defendant was “lifted … out of poverty” (para 134) through his work for the fictional criminal organization; his extreme social isolation was overcome through his friendship with the undercover officers (para 136); and he was exposed to extreme violence when the undercover officers “simulated an assault” and threated to kill the family of a woman who had supposedly crossed them (para 59). Furthermore, the Court found inconsistencies in the defendant’s confessions (para 133) as well as a “complete lack of confirmatory evidence” (para 143).
A Two-Pronged Test
The test that emerges from the case seeks to address three concerns associated with Mr. Big operations:
- the risk of eliciting an unreliable confession;
- the risk that the suspect’s participation in “simulated” crimes (para 73) might prejudice the jury; and
- the risk of police misconduct that “may impact on the reliability of a confession, or in some instances amount to an abuse of process” (para 78).
The proposed solution involves a two-pronged approach (paras 84–88).
(1) The first step addresses the concerns outlined above by recognizing “a new common law rule of evidence”:
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 (para 85 [emphasis added]).
In this formulation, the probative value of a confession is directly related to its reliability (para 99). This, in turn, may be assessed by considering the special circumstances in which a confession was made (with particular attention paid to the suspect’s age and mental health) and by examining a confession’s inherent reliability (paras 99–105).
(2) The second step of the proposed solution addresses the risk of police misconduct. While recognizing that identifying abuses of process is within the discretion of trial judges, the SCC emphasized that “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” (para 117).
After applying this test to the facts in Hart, the SCC found that all three of the defendant’s confessions must be excluded from evidence.
It’s interesting to consider the implications of the decision for Canadian police forces. The SCC has not prohibited the use Mr. Big operations. However, in setting a new, more stringent threshold for establishing the admissibility of Mr. Big confessions, the SCC has underlined its grave concerns with that police tactic.