R. v. Hart, 2014 SCC 52:
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.
The first prong requires recognizing a new common law rule of evidence. Under this rule, where the state recruits an accused into a fictitious criminal organization 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.
The probative value of a Mr. Big confession is a function of its reliability. In assessing the reliability of a Mr. Big confession, courts must first look to the circumstances in which the statement was made. These circumstance include — but are not strictly limited to — the length of the operation, the number of interactions between the police and the accused, the nature of the relationship between the undercover officers and the accused, the nature and extent of the inducements offered, the presence of any threats, the conduct of the interrogation itself, and the personality of the accused, including his or her age, sophistication and mental health. The question for the trial judge is whether and to what extent the reliability of the confession has been called into doubt by the circumstances in which it was made.
After considering the circumstances in which the confession was made, the court should look to the confession itself for markers of reliability. Trial judges should consider the level of detail contained in the confession, whether it leads to the discovery of additional evidence, whether it identifies any elements of the crime that have not been made public, or whether it accurately describes mundane details of the crime the accused would likely not know had he or she not committed it. Confirmatory evidence is not a hard and fast requirement, but where it exists, it can provide a powerful guarantee of reliability. The greater the concerns raised by the circumstances in which the confession was made, the more important it will be to find markers of reliability in the confession itself or the surrounding evidence.
Weighing the prejudicial effect of a Mr. Big confession is a more straightforward and familiar exercise. Trial judges must be aware that admitting Mr. Big confessions creates a risk of moral and reasoning prejudice. With respect to moral prejudice, the jury learns that the accused wanted to join a criminal organization and committed a host of "simulated crimes" that he believed were real. Moral prejudice may increase with operations that involve the accused in simulated crimes of violence, or that demonstrate the accused has a past history of violence. As for reasoning prejudice — defined as the risk that the jury's focus will be distracted away from the charges before the court — it too can pose a problem depending on the length of the operation, the amount of time that must be spent detailing it, and any controversy as to whether a particular event or conversation occurred. However, the risk of prejudice can be mitigated by excluding certain pieces of particularly prejudicial evidence that are unessential to the narrative, or by providing limiting instructions to the jury.
In the end, trial judges must weigh the probative value and the prejudicial effect of the confession at issue and decide whether the Crown has met its burden. Because trial judges, after assessing the evidence before them, are in the best position to conduct this exercise, their decision to admit or exclude a Mr. Big confession will be afforded deference on appeal.
This new common law rule of evidence goes a long way toward addressing the concerns with reliability, prejudice, and police misconduct that are raised by Mr. Big operations. It squarely tackles the problems with reliability and prejudice. In addition, it takes account of police misconduct both by placing the admissibility onus on the Crown and by factoring the conduct of the police into the assessment of a Mr. Big confession's probative value. However, the common law rule of evidence I have proposed does not provide a complete response to the problems raised by Mr. Big operations. On its own, it might suggest that abusive police conduct will be forgiven so long as a demonstrably reliable confession is ultimately secured.
The second prong of the response fills this gap by relying on the doctrine of abuse of process. The doctrine of abuse of process is intended to guard against state misconduct that threatens the integrity of the justice system and the fairness of trials.
Trial judges must be aware that Mr. Big operations can become abusive. It is of course impossible to set out a precise formula for determining when a Mr. Big operation will reach that threshold. But there is one guideline that can be suggested. In conducting an operation, the police cannot be permitted to overcome the will of the accused and coerce a confession. This would almost certainly amount to an abuse of process. While violence and threats of violence are two forms of unacceptable coercion, operations can become abusive in other ways. Operations that prey on an accused's vulnerabilities, such as mental health problems, substance addictions, or youthfulness, can also become unacceptable.