Mr. Big confessions, a gesturing juror appeal, and slow notice of COVID-19 at the Surrey courthouse


Mr. Big investigations involve tricking a suspect into believing they are being recruited into a fictitious criminal organization. Often a large number of undercover RCMP officers are involved.

Typically, the undercover police officers will spend months having the suspect perform tasks for the fictitious criminal organization, paying them to do so.

Eventually, the suspect will be introduced to the fictitious boss of the fictitious criminal organization who will tell the suspect that they need to tell them about the real crime that is actually being investigated so that loose ends can be tied up or so that Mr. Big can protect the suspect.

Variations of this technique have been used hundreds of times in Canada.

Unfortunately, it can be so corrosive that multiple innocent people have confessed to committing crimes out of either fear of the fictitious criminal organization, a desire to join it and continue making money or in order to get continued attention.

As a result, the Supreme Court of Canada has made Mr. Big confessions presumptively inadmissible. To be used the Crown now needs to establish that the probative value of the confessions exceeds its prejudicial effect, and the operation didn’t constitute an abuse of process.

In the case discussed on the show, the fact that the RCMP facilitated the suspect breaching court orders he was subject to, without judicial authorization, was not found to be an abuse of process.

Also discussed is an appeal from a conviction for first-degree murder. The appeal is based on gestures alleged to have been made by one of the jurors to the family of the deceased child during the course of the trial.

A rarely used provision of the Criminal Code that permits live evidence to be heard on an appeal is being utilized so as to permit the cross-examination of various people who observed the gestures.

The section only permits witnesses who would have been compellable at the trial to testify at the appeal. Therefore, relying on a decision in a case from 1995 where a juror had an affair with a suspect in a murder trial, while the case was going on, the juror who made the gestures cannot be called as a witness.

Finally, at the Surrey courthouse, a number of sheriffs who were responsible for transporting prisoners tested positive for COVID-19. Court staff, including Crown Counsel, were notified and advised to self-isolate and get testing. No notice was, however, provided to other lawyers who had been at the courthouse at the same time out of a desire to provide privacy for the sheriffs.

This has caused a great deal of concern as the people who were not notified weren’t able to take timely steps to ensure their safety and the safety of their families.

Courthouses could adopt practices similar to restaurants and keep a record of people who attend each day, along with phone numbers or email addresses so as to facilitate rapid notifications if there is potential exposure.


Automated transcript of the episode:

Legally Speaking Dec 3, 2020

Adam Stirling [00:00:00] Time for Legally Speaking on CFAX 1070, joined as always by Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. Michael, good morning. How are you?

Michael T. Mulligan [00:00:08] Good morning. Great to be here. Still COVID-19 free, so can’t complain.

Adam Stirling [00:00:12] Indeed, we’re almost to the finish line. That vaccine seems to be all people are talking about these days, which I find quite hopeful.

Michael T. Mulligan [00:00:18] That’s right. Just keep clicking refresh on that news site, eventually it’ll be here.

Adam Stirling [00:00:23] Absolutely. Some interesting developments today from the Supreme Court of Canada dismissing leave of application, what’s being called a Mr. Big case. Now, this is a term that you’ve educated us with respect to before. What happened today?

Michael T. Mulligan [00:00:35] Well, I must say, Mr. Big is an operation that just keeps giving and giving from a law or investigative perspective I should say. The basic idea of Mr. Big Operation is that the police will have an undercover police officer meet somebody who’s a suspect in a criminal investigation, usually murder or something of some significance, and then they will spend ordinarily a number of months with usually a whole host of undercover police officers involved, gaining the trust of the suspect and leading them to believe that this group of undercover police officers are some form of underworld criminal organization. And they will get the trust of the suspect by having them go and do fake tasks for the fake undercover or fake criminal syndicate.

Adam Stirling [00:01:31] Hmm.

Michael T. Mulligan [00:01:32] Things like one of the classic ones was, you know, delivering these diamonds on a train to Toronto, you know, things of this sort. Right. And they will develop trust and usually pay the suspect and sort of encourage them that they will become a member of this lucrative criminal underworld. And then eventually what they’ll do is say, look, you know, we’re able to you know, we’ve got access to all kinds of corrupt officials. We’re able to take care of problems in your past, but we need to know about them if we’re going to be able to solve them for you. So, you know, you’ve got to show your loyalty and tell us about some other heinous thing you’ve done to try to get the person to then say, oh, yes, I murdered that person six months ago, which is, of course, what the police are trying to investigate. So that’s what a Mr. Big operation is, and they are successful. They’ve run hundreds of times. The problem is that they can be too successful.

Adam Stirling [00:02:25] Hmm.

Michael T. Mulligan [00:02:25] In that there are multiple examples of people who did not commit the murder.

Adam Stirling [00:02:29] I was going to say, who lied. Yeah

Michael T. Mulligan [00:02:30] They lied because they wanted to be part of this lucrative criminal underworld or because they fear that they’re going to be, you know, whacked by the Mr. Big Mob Boss or whatever it might be. And so, we have multiple examples of where people who we know just didn’t do it.

Adam Stirling [00:02:46] Yes,.

Michael T. Mulligan [00:02:46] Wind up saying, oh, yes, yes. You know, I’m the perfect new member of your criminal organization. Right. I’ve murdered all kinds of people…

Adam Stirling [00:02:53] You wouldn’t know them.

Michael T. Mulligan [00:02:55] Everyone. I killed everyone. I’m fantastic. Hire me. So that’s the worry, and we’ve had examples of people who were convicted and jailed and then we later determined, no, they just didn’t do it.

Adam Stirling [00:03:07] Wow.

Michael T. Mulligan [00:03:07] And so a few years ago, the Supreme Court of Canada, in a case called Hart, set out some principles designed to stop innocent people from being convicted by this process. And now those kind of confessions are what they call presumptively inadmissible unless the crown can establish that on a balance of probabilities, the probative value of the confession, outweighs its prejudicial effect. And then as well, the second prong, there wasn’t an abuse of process. Now, the first part of that weighing the probative value would often involve things like is there something to independently confirm the confession?

Adam Stirling [00:03:44] yes.

Michael T. Mulligan [00:03:44] Like, for example, when a person says, you know, I murdered the person by, you know, killing them and then tucking a diamond in their mouth or something. Right. And nobody is aware of that fact was hold back evidence that might be shown as, look, this is very probative because no one would know that other than the person who committed the murder.

Adam Stirling [00:04:02] Yes.

Michael T. Mulligan [00:04:04] And the second part can involve things like, you know, are the police involved in criminal activity and so on, trying to get the person to confess, simulating violence and so on. So, the particular case that was decided today by dismissing a leave application to the Supreme Court of Canada involved one of these Mr. Big operations that went down a few years ago. And it was actually a Russian doll nesting Mr. Big operation, you might call it, because they were doing this Mr. Big operation on a suspected, an unrelated murder, and during this unrelated Mr. Big operation, trying to get this person to confess to some other murder.

Adam Stirling [00:04:41] Yes.

Michael T. Mulligan [00:04:42] You know, the usual thing. OK, do these various operations, OK, you want to tell us about ones we can clean it up, make sure there are no loose ends and protect you and the person admitted to a different murder. Well, by the way, I murdered this other person in Vancouver.

Adam Stirling [00:04:58] Oh no.

Michael T. Mulligan [00:04:58] And so that’s how this case got going, and so this appeal was the person who confessed to doing a contract killing for $15,000 of a woman in Vancouver on behalf of her husband and the husband’s lover, basically. And the man said, look, the husband’s lover paid me $15,000 to kill this woman. And then he described in great detail how he did it, including various information about what the house looked like and some hold back information which was stabbed her twice in the back.

Adam Stirling [00:05:33] Interesting.

Michael T. Mulligan [00:05:34] And so that’s the basis upon which the large part, it was found to be sort of the high probative value.

Adam Stirling [00:05:41] Yes.

[00:05:41] Because of the information only the killer would have.

[00:05:43] Yeah.

Michael T. Mulligan [00:05:43] But the one of the arguments made on the appeal, amongst others, was an interesting one, saying, look, the person who was the killer, the contract killer, who is the suspect or the subject of this original Mr. Big operation that led to this case. The police had done things, including having him go to Saskatchewan, contrary to conditions that he had been on at the time. He was on some unrelated matter, ordered to remain in British Columbia. And the police got him to breach those conditions, deleted the conditions from the police computer system so that other police would not be aware of them and then also allowed him to do various other things in breach of the order that he was on in British Columbia. He had an order not to be drinking and not to be going out past curfew and not be leaving B.C.

Adam Stirling [00:06:31] Interesting.

Michael T. Mulligan [00:06:31] The police encouraged him to violate all those things and didn’t stop him from doing things that were prohibited. And so, part of the argument was, well, look, this is an abuse of process, right? You have the police, you know, engaging in criminal activity by having this person do things. He was they knew he wasn’t allowed to do, facilitating them by taking the conditions out of the police computer system, for example. And so that was a large part of his argument, both at the B.C. Court of Appeal, where it didn’t work, and his leave application to the Supreme Court of Canada. Saying, look, you know, even if you get past that first part of the test on these Mr. Big things, the probative value versus prejudicial effect, the court ought not to sort of countenance or allow evidence of this kind of confession to the Mr. Big undercover police officer to go in when the police are having the person engage in criminal activity. That was the argument.

Adam Stirling [00:07:28] Interesting.

Michael T. Mulligan [00:07:28] It didn’t get traction. So, the upshot for the contract killer and the Mr. Big case and the husband who was also convicted are that they are going to continue serving their sentences. But, I think, just I find these cases overwhelmingly interesting because of how similar the investigative techniques are.

Adam Stirling [00:07:48] Yeah.

Michael T. Mulligan [00:07:48] And there was even a case, I recall, in B.C. where there was a killing in Washington State where the suspects were actually watching a news show about a Mr. Big operation while, they were the subject, Mr. Big Operation. And the police said, OK, this is it. It’s over. These guys, we’re getting our cover is blown.

Adam Stirling [00:08:08] On no turn it off, turn off the TV.

Michael T. Mulligan [00:08:10] They’re watching a news report about it. But nonetheless, they just didn’t catch on and carried on with the operation. So, it’s works hundreds time. The worry is that sometimes it just works a little too well.

Adam Stirling [00:08:21] That’s funny. I could just see the awkward conversation like the undercovers in the room with them and they sort of look at him as the TVs on putting it all together. What do you say in that particular, I have to go tell? I just got I got to go.

Michael T. Mulligan [00:08:32] I don’t know if it was fake news, close the door.

Adam Stirling [00:08:36] I always I always shake my head because I can’t put myself in the state of mind for a person who either knows or to know, in effect, that they are auditioning for the part of the loose end in a criminal conspiracy that would be tied up or eliminated at some point in future. And yet they do it.

Michael T. Mulligan [00:08:53] They do it. They do it time and time and time again. And I guess it’s a combination of people like the attention, I think is part of it. People like the money, but right. People that really are they’re getting paid for all of these things very well. They’ll put them up in hotels and pay them cash. And that seems kind of, you know, suddenly you’re 007 and really you’re just the pawn in this operation. But it’s worked, I think the stats from the Supreme Court of Canada, when they came out with that decision, finding that presumptively these kind of confessions are not admissible, is by that time there had been 350 of these operations,.

Adam Stirling [00:09:28] Wow.

Michael T. Mulligan [00:09:29] Some of them, of course, leading to innocent people being convicted. But nonetheless, it’s worked hundreds of times. So, there it is.

Adam Stirling [00:09:37] All right. Let’s take a quick break, Michael Mulligan. We’ll continue as we examine the latest news stories in legal affairs this week right after this break.

[00:09:44] COMMERCIAL.

Adam Stirling [00:09:45] Back on the air here at CFAX 1070 with Michael Mulligan from Mulligan Defence Lawyers. Michael, I was still laughing during the break. I can just picture the undercovers. OK, what’s he doing now? He’s watching us. He’s watching a TV show about Mr. Big Operations. (laughter) Oh, no, somebody stop him, but I guess I guess in the moment, it just didn’t click. Well, what else is on the docket for today?

Michael T. Mulligan [00:10:06] The next one is an interesting appeal. It’s going to be heard in the B.C. Court of Appeal following a Victoria case which resulted in a woman being convicted of murdering her 18-month-old daughter. A very sad fact pattern there. But the issue on the appeal is a fascinating one in that the accused is arguing that one of the jurors on the original trial was biased because the juror was making gestures to the family member, or a family member or members, of the little girl who was killed. And so, the, in support of that appeal, apparently the defence has collected up the observations of 22 different people who are in the courtroom, sheriffs, lawyers, spectators, people in the public gallery and so forth.

Adam Stirling [00:11:00] mhmm.

Michael T. Mulligan [00:11:01] One thing that was not provided, interestingly enough, I think we touched on this briefly before, was a report from the judge but whether the judge saw anything, that wasn’t provided.

Adam Stirling [00:11:11] hmm.

Michael T. Mulligan [00:11:11] But there was a recent decision that just came out from the Court of Appeal providing some further guidance in terms of how this appeal is going to proceed. A couple of things are notable about it. I think at least three. One, is that the court has confirmed that there should be an order sealing anything that would identify the jurors, so that person cannot be identified, or their name or description provided during the hearing of the appeal. Some of the evidence has been sealed, presumably with respect to the identity of the juror. And then there’s also an interesting reference here, as listeners might reasonably think, well, why don’t we just hear from the juror and what they have to say?

Adam Stirling [00:11:50] Indeed, can we ask them?

Michael T. Mulligan [00:11:51] Yeah, because on the appeal and this is unusual to, a number of witnesses are going to be coming to testify and be cross-examined on the appeal, which is very unusual. Usually appeals are a review of a transcript of what happened.

Adam Stirling [00:12:04] Yeah,.

Michael T. Mulligan [00:12:04] Like a record of it.

Adam Stirling [00:12:06] Oh, interesting.

Michael T. Mulligan [00:12:07] But there’s a section of the Criminal Code, rarely used, 683.1(b) that provides that on an appeal. In some unusual circumstances, witnesses can be heard from. But this is the language it uses and that’s why it matters here. It says 6dftgd3 wouldn’t be that Court of Appeal can order any witness who could have been compelled, a compellable witness at the trial, whether or not he was called to testify. So now you’re going to think, well, the juror is that person compellable?

Adam Stirling [00:12:38] Yeah, I don’t know.

Michael T. Mulligan [00:12:40] And we have a case dealing with exactly that. And the case is you may remember this, a case involving Gillian Guess if that name rings a bell. Gillian Guess was a juror on a murder trial in Vancouver in 1995. It was a murder trial of a number of people who went on for a very long time. And during the course of the trial, she struck up a relationship with one of the accused, which turned into a sexual relationship during the trial. And ultimately, the jury all acquitted the various accused. And then there was an investigation into Ms. Guess and whether her activity of having a relationship with the accused during the trial amounted to obstruction of justice. And there are a few things that are notable. First of all, I thought some of the quotes from her were great. One of the things she had to say, and this was a very long trial.

Adam Stirling [00:13:37] Yes.

Michael T. Mulligan [00:13:38] She said that after eight months of trial, even the trial judge started looking good and then described…

Adam Stirling [00:13:44] excuse me. I just had a cough there, completely unrelated to anything we’re discussing.

Michael T. Mulligan [00:13:50] And then one point, there was the investigating her the police did all kinds of things. They planted a bug in her bedroom like a recording device that were tapping her phone, doing all these things. One of her other comments was that her attraction to him, the accused, was completely intoxicating. It got to the point where I couldn’t see straight and just became an obsession. In any case, the jury acquitted in that trial.

Adam Stirling [00:14:15] mhmm.

Michael T. Mulligan [00:14:15] The crown appealed. The new trial was ordered, but they were never retried. The accused on the murder counts. Ms. Guess was convicted of obstruction. She was sentenced to 18 months. Her response was, I’ve been convicted for falling in love and nothing more. I have not committed a crime. Well, she did commit a crime. She served twelve weeks at a minimum-security facility and then was released. But with all of those salacious details, the Court of Appeal considered her case and concluded she’s not a compellable witness. And so that’s why Ms. Guess affair as a juror with the accused matters in this Victoria case.

Adam Stirling [00:14:52] Interesting.

Michael T. Mulligan [00:14:52] If the Court of appeals cites that case, the Gillian Guess case, confirming that the juror is not a compelling witness, right. and so that is why on the appeal of this murder conviction in Victoria, we’re going to potentially or potentially all of these 22 people who witnessed it, some of them are going to be called and cross-examined before the Court of Appeal. That’s very unusual. But what we will not hear from is the juror.

Adam Stirling [00:15:22] Interesting.

Michael T. Mulligan [00:15:23] Because, of course, you would think that might be a way to sort of get to the bottom of this. What were you doing?

Adam Stirling [00:15:27] Yeah,.

Michael T. Mulligan [00:15:28] Right. But that’s not going to happen. And we also won’t find out the identity of these jurors. So, they’re going to remain their identity is going to be sealed. They will not have an opportunity to testify and the Court of Appeal panel is going to need to listen to these other people and the evidence from the sheriffs and lawyers and people in the gallery and so on to try and determine whether this juror was biased.

Adam Stirling [00:15:52] What happens if they find that the juror was biased?

Michael T. Mulligan [00:15:55] My expectation is that if you found the juror was biased, you’re likely to have a new trial ordered.

Adam Stirling [00:16:01] I see.

Michael T. Mulligan [00:16:01] That’s like that’s the likely outcome there. And of course, in that case, they mentioned the Gillian Guess case.

Adam Stirling [00:16:06] Yes.

Michael T. Mulligan [00:16:07] Ultimately, the crown was successful in getting a new trial ordered because of the relationship of the juror to one of the accused during the trial. And that got a new trial ordered there, although the crown never proceeded with the new trial and instead prosecuted Ms. Guess for obstruction and also prosecuted the murder suspect for obstruction. He received a sentence of six years for that but was never convicted of murder.

Adam Stirling [00:16:35] Fascinating. We’ve got six and a half minutes left now. There are two stories on the docket. I think we have time.

Michael T. Mulligan [00:16:41] Yeah. So, in some respects, they’re kind of interrelated. So, the maybe I’ll do them in reverse order, make the most sense. All right. Well, one of the things which has occurred in the justice system over the past few weeks is that it turned out that a number of sheriffs working at the Surrey provincial courthouse contracted Covid-19. That, of course, is a very serious concern because sheriffs are going to have close interaction with other people in the justice system, including accused people that they’d be transporting. And they would also have interaction with judges. They could have interaction with court staff, lawyers, this kind of thing. And it’s become a bit of a controversy because when the it was determined that this group of sheriffs had Covid-19, there was a warning, a notice sent out to Crown Counsel and some court staff telling them of this diagnosis and advising them that they should be self-isolating or seeking testing if they had any symptoms, because of the prospect they were infected at work. But no notice was provided to defence counsel who worked in the courthouse, which caused a number of them to be very upset when they found out sort of through the grapevine later that this was going on. Because a number of them were concerned that they could have been infected, as well as with this much likelihood of crown or other court staff. And they were concerned that they weren’t told of the potential risk so that they could avoid doing things like potentially infecting family members.

Adam Stirling [00:18:17] Yes,.

Michael T. Mulligan [00:18:18] Happily after a few days, there was enough testing done that determined that it doesn’t appear that the infected sheriffs infected other people at the courthouse, but it produced a great deal of concern over that period of time. And I think it raises some important issues in terms of the balancing of privacy interests.

Adam Stirling [00:18:37] Yes.

Michael T. Mulligan [00:18:37] Versus the interests of people to ensure their safety and safety of other people who may be in contact with.

Adam Stirling [00:18:43] Yes,.

Michael T. Mulligan [00:18:44] Because the rationale for not just telling everyone, hey, by the way, these 20 people all seem to have Covid, you know, be alert if you had any dealings with them, they don’t do that out of concern for the privacy interests of the people that have been found to be Covid-19 positive. But not telling people about it, has a real impact. And you’ll see that as well and other government releases of information about people who have tested positive. It’s done in a way that’s designed to maintain some anonymity for the individuals who are diagnosed right. When there’s a for example, and a person on an airplane, you’ll see these notices saying, well, if you were sitting between rows 4 and 11, you know, be alert, you might want to be self-isolating or getting tested. But they don’t say the person in 4B as covid-19 because that would identify who that person is. And so, there’s a tension there. And I think they’re, generally speaking, should be an earring on the side of public health and transparency, particularly in a case where it’s not something which would ordinarily be viewed as socially stigmatizing, right?

Adam Stirling [00:20:01] Yes.

Michael T. Mulligan [00:20:01] The fact that somebody picked up a respiratory disease at work, I don’t think is this kind of event that people are going to receive social stigma for. Sort of well, that was very unfortunate, right? Wash your hands and be careful and get tested.

Adam Stirling [00:20:13] Yes,.

Michael T. Mulligan [00:20:14] But that’s how the this played out at the Surrey courthouse and certainly produced lots of concern from the groups that were not notified because they weren’t able to take steps to ensure that they didn’t get other people sick and that they got tested in a timely way. So, the outcome seems OK, but I think raises some important questions for all of us working in the justice system.

Adam Stirling [00:20:39] Indeed, we have 100 seconds remaining.

Michael T. Mulligan [00:20:42] Well, I think this relates to that. The final case was a man who was convicted and sentenced. He pled guilty to drug trafficking and he was sentenced to six months in jail. When he was sentenced, he pointed out that he had a serious respiratory illness. He had COPD for which he received medication. The judge said, well, six months is sort of the bottom end of the usual range of sentence and said, well, that medical issue might make serving a jail sentence harsher than if he was healthy, it didn’t amount to an exceptional circumstance to avoid the six month jail sentence. The Court of Appeal disagreed, and they found that, while that sentence might have been suitable otherwise, given the medical evidence that was presented about, it was a 62-year-old man who was convicted.

Adam Stirling [00:21:28] yes.

Michael T. Mulligan [00:21:28] And the medical evidence from his doctors that he would be a very high risk if he got Covid. The Court of Appeal found that that was an exceptional circumstance, that the judge should have taken that into account in a different way and concluded that the man should not continue to serve the six month jail sentence and instead should be at home on strict conditions for that period of time. So that’s an example of where Covid can have a real impact in terms of what’s appropriate. But in this case it involved, you know, specific medical opinion with respect to this man and him being at a particularly high risk. So, there it is.

Adam Stirling [00:22:05] Indeed. The balancing exercise shifting with respect to Covid risk incarceration. Is something that I’ve been thinking a lot about lately. I think it’s fair to say.

Michael T. Mulligan [00:22:14] Yes. And, you know, better look carefully at the sheriff, the transport to their too.

Adam Stirling [00:22:18] Absolutely. Michael Mulligan with Mulligan Defence Lawyers. Thanks for your time, as always. Until next week, my friend.

Michael T. Mulligan [00:22:23] Always a pleasure. Stay safe.

Adam Stirling [00:22:24] All right. By now.

Automatically Transcribed on December 3, 2020 – MULLIGAN DEFENCE LAWYERS