Victoria Criminal Lawyer Michael Mulligan on CFAX – Legally Speaking – discussing the police use of Mr. Big undercover operations. In a Mr. Big operation, undercover police officers pose as members of a fictitious criminal organization. The suspect is paid to perform various tasks for the fictitious origination and, typically, are treated to various lavish things including trips and meals. After months of this sort of activity the suspect is introduced to Mr. Big – the fictitious crime boss. They are then encouraged to confess to the crime being investigated in order to continue working for the fictitious criminal organization. Often the Mr. Big character suggests that the suspect will be charged and convicted of the offence due to some new fictitious evidence unless they admit to doing it – in which case the fake criminal organization can protect them.
Courts have concluded that this investigative technique can be extremely coercive and can result in suspects confessing to crimes that they did not commit.
As a result of a the 2014 Supreme Court of Canada decision in R. Hart confessions obtained in this way are presumptively inadmissible unless the Crown can establish that the probative value of the evidence outweighs its prejudicial effect and that the admission of the evidence wouldn’t result in an abuse of process. A court may exclude the Mr. Big confession for abuse of process if, for example, it was obtained by physically assaulting the suspect or threatening to do so if they don’t confess.
In a recent Victoria case, R. v. Streiling 2015 BCSC 1044, resulted in the accused being found not guilty even after the Mr. Big confession was found to be admissible as the judge concluded that it was not reliable. The judges reasons for finding the accused not guilty in that case can be found here: RvStreiling