Guest opinion: Any day now the Supreme Court of Canada will render judgement in a case that may be of interest to some of your readers. The case involves an appeal about an important but controversial investigative technique often employed by the RCMP. The technique is commonly referred to as a “Mr. Big” operation. It is only used in serious cases where after exhausting all other usual methods of investigative means police have a suspect but not the evidence to successfully prosecute.
Posing as members of a criminal organization undercover RCMP officers befriend the suspect. They show him a good time, flash lots of money and let him take part in a couple of fake crimes and pay him well for his role. It is usually made known to the suspect, albeit somewhat indirectly, that the organization uses violence to keep discipline and to solve problems. After gaining the suspect’s confidence the pretend criminals offer him a chance to join their organization assuring him that he will make a lot of money and enjoy friendship and protection. However, as a condition of admission the suspect is told he has to meet with Mr. Big, the head of the organization, and tell him the truth about a serious crime he has committed. The reasons usually given the suspect for this is to insure his loyalty, boost his credibility and demonstrate trust. Another reason often given is that if the suspect levels with him Mr. Big can use his power and influence to make any problem the suspect may have with the police go away.
Mr. Big, of course, is really another undercover police officer. If the suspect agrees to the condition, he goes to a hotel room to meet with Mr Big. The meeting is secretly recorded on video and when the suspect tells Mr. Big the details of his crime the police have their confession.
This trick has enabled RCMP to solve hundreds of tough cases since they began using it in the 1990s. These operation tend to be quite expensive. According to some researchers the cost averages $155,000. per case. One case is said to have cost over a million.In about 90% of cases the confession obtained results in a conviction. In fact it often results in a guilty plea.
Despite its successes, the Mr Big method of obtaining a statement is not without controversy. The main concern is for the reliability of these confessions. The suspect who would fall for the ruse is obviously vulnerable and the sting puts him under tremendous pressure to confess. There is always the danger it will lead to false confessions and wrongful convictions. Strange as it may seem, there are people who confess to crimes they did not commit.
On September 17th, 2012 the Newfoundland and Labrador Court of Appeal set aside the murder conviction of Nelson Hart. On March 28, 2007 he had been found guilty by a jury of drowning his three-year-old twin daughters. The main evidence against Mr. Hart consisted of admissions he made during a Mr Big sting operation that involved 64 interactions with undercover police and lasted from February to June 9th of 2005.
Mr. Hart was a destitute, uneducated, unemployed, seizure prone, and socially isolated individual. During the sting operation the undercover police treated him to a lavish lifestyle and paid him handsomely — with promises of more to come.
At trial the admissibility of the Mr. Big evidence was challenged in a voir dire (a trial within a trial). The trial judge applying a traditional analysis ruled the statement admissible. The trial proper proceeded and Mr Hart was convicted by the jury. He subsequently appealed. The court of appeal by a majority of 2-1 held that the trial judge had erred in admitting the accused’s confession to Mr. Big. The conviction was therefore set aside.
The majority concluded that the police control over Mr Hart during the sting operation was so complete that it was tantamount to detention. This more expansive view led them to decide that the Mr Big operation violated Mr. Hart’s right to silence or some other broader principle of fundamental justice protected by s. 7 of the Charter such as the right not to have to incriminate himself. As a result of all the circumstances they ruled the statement to Mr Big should have been excluded under s. 24(2) of the Charter because its admission would bring the administration of justice into disrepute.
The case was appealed by the Crown to the Supreme Court of Canada. The Supreme Court heard argument on December 3, 2013. The Court usually issues decisions about six months after a hearing.
Gerard Mitchell, Charlottetown, is the former chief justice of Prince Edward Island and currently serves as P.E.I.’s Police Commissioner