Mr. Big Confessions: Distinguishing Hart from Johnston
Among the more controversial areas of Canadian evidence law are confessions obtained through “Mr. Big” operations. This unique investigative tactic involves the creation of an elaborate but fictitious criminal organization that recruits the suspect of a cold case to join its ranks. Over the course of several “scenarios,” the participating undercover police officers engage the individual in their dealings, offering monetary and (sometimes significant) social incentives to the person, and exposing him or her to (usually quite violent) criminal activity. After building a sufficient bond, the target is ultimately given an “interview” with Mr. Big – the head of the organization—where a confession to the crime is sought.
Although their use is relatively widespread across Canada – and arguably constitute an effective investigative practice – they are equally troubling from a legal perspective. As Professor Lisa Dufraimont points out, there was a surprising dearth of jurisprudence on the regulation of Mr. Big confessions, given the “legal vacuum” in which these staged criminal organizations operated (“The Patchwork Principle against Self-Incrimination under the Charter” (2012), 57 SCLR (2d) 241, 258-260). The much-needed clarity in this controversial area of law arrived from the Supreme Court of Canada (“SCC”) in 2014, via R v Hart,  2 SCR 544 [Hart]. This decision, and its application by the British Columbia Court of Appeal (“BCCA”) in R v Johnston, 2016 BCCA 3 [Johnston], will be the focal point of this analysis.
R v Hart and the Presumptive Inadmissibility of Mr. Big Confessions
After having been suspected of the death of his two daughters, Mr. Hart was living in social isolation and extreme poverty. Things changed when he was recruited to a fictitious criminal organization, where he was handsomely compensated for various tasks. Ultimately, placed under significant pressure from Mr. Big, Mr. Hart confessed to having killed his daughters, and later re-enacted their murder in front of an undercover police officer. When prosecuted, he challenged the admissibility of his confession, and the appeal found its way up to the SCC.
This appeal was significant from the perspective of evidence law. As put by Timothy Moore et al, “the invasiveness of the technique, its inherent coercive nature and the strong inducements held out to elicit confessions, … [create] a real concern that the technique may cause innocent people to falsely confess, giving rise to the risk of wrongful convictions” (“Deceit, Betrayal and the Search for Truth: Legal and Psychological Perspectives on the ‘Mr. Big’ Strategy” (2009) 55 Crim L Q 348, 350).
This perspective was reflected in the five-judge majority reasons of Justice Moldaver, who expressed three central concerns with confessions obtained through this type of investigation: first, the strong potential for false confessions and wrongful convictions; second, the risk of prejudice arising from the jury’s depiction of the accused as someone of a poor moral character (with involvement in a criminal organization); and finally, the dangers associated with police misconduct and abuse during a Mr. Big operation. For this reason, the SCC declared that Mr. Big confessions are presumptively inadmissible, and must meet a stringent two-part test before being properly admitted as evidence.
First, the onus is on the Crown to establish that the probative value of such a confession outweighs its prejudicial effect. The probative value is largely linked to the reliability of the accused’s statement, and as such, the trier of law must examine the circumstances in which it was made, the markers of reliability, and any confirmatory or corroborating evidence. The prejudicial effect is instead tied to risk of propensity inferences—concerns that the jury’s reasoning will be tainted by a moral aversion to the accused’s eager and passionate involvement in the staged criminal organization. Should the Crown satisfy the trier of law that the confession’s probative value outweighs the prejudicial effect, it then moves on to establish that there was no abuse of process. If the police conduct is deemed unacceptable by the public, the evidence obtained therefrom may properly be excluded even if the probative value outweighs the prejudicial effect.
Recognizing Mr. Hart’s vulnerable social and financial situation, as well as the internal and external inconsistencies in his statement to the undercover officers, all nine judges agreed with the Newfoundland Court of Appeal on the inadmissibility of the confession. In short, the holding in Hart offered significant protection to those targeted by these elaborate sting operations.
The Post-Hart Admissibility of Mr. Big Confessions
At first blush, the practice certainly appears constitutionally suspect—in a sense, akin to police entrapment. The act of using strong incentives and veiled threats to induce a confession from oftentimes socially vulnerable individuals dangerously approaches the line of impermissible police conduct that “shocks the community” (Rothman v The Queen,  1 SCR 640 at 697). Moore et al. suggest that in France, similar tactics would automatically trigger a dismissal of all charges, and indeed, in discussing this case with family and friends while drafting this analysis, most expressed surprise that this invasive investigative tactic is even permitted by law in the first place.
Nevertheless, Justice Moldaver’s majority stopped short of declaring a blanket prohibition on the use of Mr. Big operations, and regarding their probative value, went as far as to declare that:
…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 indispensable in the search for the truth (Hart, para 4).
Recognizing this, Hart requires the trier of law to distinguish between confessions permissibly and impermissibly obtained, with the statement obtained by Mr. Hart found to have fallen into the latter category. In Johnston, a unanimous BCCA bench distinguished Hart on the facts, and upheld the admission of the accused’s confession as evidence.
R v Johnston: New Insight on Mr. Big Confessions
Although Mr. Gary Donald Johnston was a key suspect in the 1998 murder of Victor Frater, the police did not have enough evidence to lay charges at the time. As such, after his release from prison in 2009 for an unrelated manslaughter conviction, he became the target of a Mr. Big operation. Sixty “scenarios” later, he finally confessed to having committed the murder. This confession formed the basis of a conviction, which was upheld by the BCCA in 2014—months before Hart was released (2014 BCCA 144). When Johnston appealed his conviction to the SCC, it was remanded to the BCCA for reconsideration in accordance with Hart ( SCCA No 478). On January 5, 2016, the unanimous BCCA bench released its reasons for dismissing the appeal, and upholding the admissibility of the Mr. Big confession.
First, in applying the abuse of process test, Justice Frankel held that the mere presence of violence in the fictitious criminal organization does not automatically render the operation an abuse of process, noting as follows:
…such scenarios are used… to give the impression that the fictitious criminal organization tolerates and is prepared to use violence… to create an atmosphere in which the person under investigation will not be reluctant to discuss his or her past involvement in similar violent acts (Johnston, para 51).
On this point, the BCCA distinguished the circumstances surrounding Mr. Johnston’s confession from those in R v Laflamme, 2015 QCCA 1517. Here the Quebec Court of Appeal found that a confession obtained by undercover police was unacceptable, not because of the violence taking place within the fictitious criminal organization, but rather, because the target himself was subjected to implicit threats of violence. This notion was reinforced in R v Perrault, 2015 QCCA 694, where the absence of threats directed at Mr. Perrault lead to a finding that the Mr. Big confession was not the product of coercive police tactics—despite the presence of violence within the criminal organization. With that in mind, the absence of violence directed at Mr. Johnston, coupled with the fact that the police did not prey on his vulnerabilities, militated in favour of the confession’s admissibility, according to Justice Frankel.
It can certainly be argued, however, that the target’s direct exposure to violence towards those who betray the criminal organization is in and of itself an implicit threat to the target, even though no such threats are actually directed at the individual. In other words, the “aura of violence” (Hart, para 9) that permeates the fictitious criminal organization arguably can create an ongoing sense of fear in the mind of the target, who may become all the more vulnerable to falsely confessing to a crime he or she didn’t commit. Although Justice Moldaver recognized that threats and coercion will almost always amount to abuse of process, he was careful not to “foreclose the possibility that Mr. Big operations can become abusive in other ways” (Hart, para 118). With that in mind, this violent environment can become a serious concern, depending on the nature of the police activity—particularly if we take into account the following:
Officers teach the suspect that those who betray the trust of the organization are met with violence. They do this by telling the suspect that the organization kills “rats”, or by exposing him to simulated acts of violence perpetrated by members of the organization against other undercover officers as punishment for imagined betrayals […]. R v Hathway, 2007 SKQB 48, provides a stark example. In that case, undercover officers simulated an assault on a woman who had crossed the criminal organization. During the beating, officers threatened to kill the woman, her husband, and her infant child. The accused watched as undercover officers threw the bloodied woman into the trunk of a car (Hart, para 59).
Nevertheless, the BCCA’s decision in Johnston recognizes that, at least in some cases, the individual retains a degree of agency throughout the “sting” operation, affirming that the abuse of process strand of the Hart analysis will only be met when the undercover police officers were “shown to have overcome the will of the accused” (see R v Allgood, 2015 SKCA 88, para 57 [emphasis added]). On this point, Mr. Johnston was arguably much more forthcoming with his admissions to the undercover police officers than were the targets in Hart and its companion case, R v Mack,  3 SCR 3.
Analyzing the threshold admissibility of the Mr. Big confession, the BCCA found that the probative value of the confession greatly outweighed its prejudicial effect, especially given the substantial evidence confirming his statement. Moreover, the individual circumstances of the target were taken into account; whereas the SCC found Mr. Hart to be a socially destitute man whose vulnerabilities were “preyed upon” by the undercover officers (Hart, para 148), those involved in Mr. Johnston’s undercover operation were not nearly as involved in his personal life, and his calm demeanour throughout the Mr. Big interview supported the voluntariness of his confession (Johnston, para 67). Finally, the inconsistencies in his story—misstating the number of knives used in the attack, the number of stab wounds, and his motive for killing Mr. Frater—did not sufficiently diminish the reliability of his confession at the threshold stage.
Of course, the SCC’s decision in Hart continues to dominate the analysis of the admissibility of the Mr. Big framework, although the reasons for the judgment in Johnston can provide lower courts with additional useful guidance on this point—particularly given its factual dissimilarities from Hart. Indeed, this case is interesting in its analysis of abuse of process, and gives strong examples of investigative police conduct that steered clear of this standard—conduct that may be analogized to or distinguished from those employed in similar operations going forward.
Nevertheless, the possibility of an appeal to the SCC remains open to Mr. Johnston, who has already once sought leave to appeal the BCCA’s decision on this charge. On that note, Canada’s highest court may be willing to use this case as an opportunity to address the novel and interesting legal challenges that surround confessions obtained by Mr. Big confessions, and those fascinated by the law of evidence should keep an eye on these potentially interesting developments.