Revisiting “Mr. Big” Confessions: R v Mack
In R v Hart, 2014 SCC 52 [Hart], the Supreme Court of Canada (“SCC”) set out a new framework for the admissibility of confessions elicited during “Mr. Big” operations. (I wrote about the decision in a previous post.) In this post, I will look at the companion decision in R v Mack, 2014 SCC 58 [Mack], which provides another opportunity to consider this evolving area of the law.
“Mr. Big” Revisited
The Mr. Big tactic is a kind of sting operation used by police across the country. It is a peculiarly Canadian invention in which undercover officers befriend a suspect, engage him in an elaborate (though spurious) criminal conspiracy, and attempt to induce a confession as proof of his loyalty to the supposed criminal organization. In the cases considered by the SCC, these operations lasted for months, involved multiple plot twists, and required the participation of a large cast of supporting characters.
Under the Hart framework, confessions elicited during a Mr. Big operation are presumptively inadmissible. The onus falls on the Crown to establish, on a balance of probabilities, that such a confession’s probative value outweighs its prejudicial effect (Hart, para 85). (Here, a confession’s probity is assessed with reference to its reliability, while its prejudicial effect stems from the harmful character evidence that would inevitably accompany information about the suspect’s participation in staged criminal activities.) The second prong of the test considers whether the statement should be excluded on the basis of an abuse of process.
Applying the Hart Standard in Mack
Mack was not argued on the basis of Hart, but the SCC considered how the newly articulated framework might apply.
The case involves the murder of Robert Levoir of Fort McMurray, Alberta. The accused is the victim’s former roommate, Dax Richard Mack. The investigation followed a familiar script, with the accused receiving payment for carrying out what he believed to be illegal acts on behalf of a shady criminal organization. He was soon introduced to the putative crime boss and promised advancement within the organization if he confessed to the crime in question. At first, Mack declined to do so, but eventually told an undercover officer that he had shot the victim with a hunting rifle and disposed of the body at his father’s property, where the victim’s remains were later discovered. The accused was found guilty at trial of first-degree murder.
In his defence, Mack claimed that he had made incriminating statements to the undercover officers “out of a desire for money, protection, [and] a belief that the confessions were necessary for self-preservation” (para 24). He also alleged that the murder was carried out on a hunting trip by a third associate, Mark Argueta, who later informed Mack of where the body had been disposed of. However, the only matter considered by the SCC was the admissibility of Mack’s confession.
The Two-Pronged Test
In applying Hart, Justice Moldaver, writing for a unanimous court, determined that Mack’s confession was “highly probative” (Mack, para 34) on the grounds that inducements offered by the undercover officers (including about $5,000 paid out over a four-month period) were “modest” (para 33). The court also pointed to “an abundance of potentially confirmatory” evidence (para 34) – such as the discovery of the victim’s remains – to demonstrate the confession’s reliability.
By contrast, the court found that prejudicial information accompanying the confession was limited, since it did not involve violent scenarios or details about the accused’s past history. The court concluded that the probative value of Mack’s confession “easily outweighed” (para 35) any prejudicial effect arising from his involvement in the sting operation.
Furthermore, the court held that circumstances surrounding the confession did not amount to an abuse of process: “The most that can be said is that the officers created an air of intimidation by referring to violent acts committed by members of the organization. But the appellant was not coerced into confessing” (para 36).
The SCC went on to offer some “guidance” (para 51) regarding instructions that ought to be given to juries when considering Mr. Big confessions. The court reasoned that “[t]he task is simply to alert the jury to the concern about the reliability of the confession, and to highlight the factors relevant to assessing it” (para 54).
With respect to the negative character information that might accompany such confessions, the jury should be instructed that the evidence is contextual and should not be relied on in determining the accused’s guilt. However, the SCC held that the trial judge’s failure in Mack to explicitly address this issue did not render the confession inadmissible.
While the decision in Hart falls short of eradicating Mr. Big operations entirely, it would appear to limit the overzealous application of state power by introducing stringent new requirements for admitting such confessions into evidence. However, Mack suggests that there is still much latitude for police to continue making use of the tactic.
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