“Mr. Big” and the Confession Rule

The “Confession Rule” applies to all oral or written statements made out of court by an accused to a person in authority proffered by the Crown in criminal or quasi-criminal proceedings. To exclude a confession, the inducement (or other coercive action) must emanate from a person in authority, which of course police officers are in the named class. As stated in R. v. B. (A.) (1986), 50 C.R. (3d) 247, at 257-59, [1986] O.J. No. 91 (Ont. C.A.), Justice Cory said:

 As a general rule, a person in authority is someone engaged in the arrest, detention, examination or prosecution of the accused. When the word “examination” is used, I believe it refers to interrogation by police officers, detention or security guards and members of the Crown attorney’s office.

The “Confession Rule” has now been examined in a whole new light in R. v. Hart 2014 SCC 52, a judgement published on July 31, 2014. Hart’s twin daughters drowned in Gander Lake, Newfoundland, on August 4, 2002. The police immediately suspected that Hart was responsible for their deaths. However, they lacked the evidence needed to charge him. As a result, two years after the drowning, undercover officers began a “Mr. Big” operation by recruiting Hart into a fictitious criminal organization. At the time, Hart was unemployed and socially isolated — he rarely left home and when he did, he was in the company of his wife. After he was recruited to the organization, Hart worked with the undercover officers and was quickly befriended by them. Over the next four months, Hart participated in 63 “scenarios” with the undercover officers and was paid more than $15,000 for the work that he did for the organization. As part of that work, Hart was also sent on several trips across Canada — to Halifax, Montreal, Toronto and Vancouver. Hart often stayed in hotels and occasionally dined in expensive restaurants during these trips, all at the fictitious organization’s expense. Over time, the undercover officers became Hart’s best friends and Hart came to view them as his brothers. According to one of the undercover officers, during this time frame, Hart made a bald statement in which he confessed to having drowned his daughters.

The operation culminated with a meeting akin to a job interview between Hart and “Mr. Big”, the man purportedly at the helm of the criminal organization. During their meeting, Mr. Big interrogated Hart about the death of his daughters, seeking a confession from him. After initially denying responsibility, Hart confessed to drowning his daughters. Two days later, Hart went to the scene of the drowning with an undercover officer and explained how he had pushed his daughters into the water. He was arrested shortly thereafter.

At trial, Hart’s confessions were admitted into evidence. The trial judge denied Hart’s request for permission to testify with the public excluded from the courtroom. A majority of the Court of Appeal allowed Hart’s appeal and ordered a new trial. The Court of Appeal unanimously held that the trial judge erred in refusing to allow Hart to testify outside the presence of the public. A majority of the court also concluded that the Mr. Big operation had breached Hart’s right to silence under s. 7 of the Charter. The majority excluded two of Hart’s confessions, the one to Mr. Big and the one to the undercover officer at the scene of the drowning. However, the majority concluded that Hart’s bald confession was admissible and ordered a new trial. The Crown appealed to the SCC, and a 5:2 panel dismissed the appeal.

For those officers unfamiliar with the “Mr. Big” operation, the 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 according to the SCC in that 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 the SCC said it 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 according to the SCC. Speaking for the majority, Justice Moldaver said 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.

Justice Moldaver said:

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.

At paras. 81 and 83, Justice Moldaver said:

Having determined that the law must respond to the risks inherent in Mr. Big confessions, the more difficult question is what form that response should take. Mr. Big operations raise three distinct concerns — reliability, prejudice, and the potential for police misconduct — and we must ensure that trial judges have the tools they need to address all three of these issues.

In searching for a response to the concerns these operations raise, we must proceed cautiously. To be sure, Mr. Big operations can become abusive, and they can produce confessions that are unreliable and prejudicial. We must seek a legal framework that protects accused persons, and the justice system as a whole, against these dangers. On the other hand, Mr. Big operations are not necessarily abusive, and are capable of producing valuable evidence, the admission of which furthers the interests of justice. We ought not forget that the Mr. Big technique is almost always used in cold cases involving the most serious crimes. Put simply, in responding to the dangers posed by Mr. Big confessions, we should be wary about allowing serious crimes to go unpunished.

At paras. 84-86, Justice Moldaver said:

In this section, I propose a solution that, in my view, strikes the best balance between guarding against the dangers posed by Mr. Big operations, while ensuring the police have the tools they need to investigate serious crime. This solution involves a two-pronged approach that (1) recognizes a new common law rule of evidence, and (2) relies on a more robust conception of the doctrine of abuse of process to deal with the problem of police misconduct.

The first prong recognizes a new common law rule of evidence for assessing the admissibility of these confessions. The rule operates as follows. Where the state recruits an accused into a fictitious criminal organization of its own making 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. In this context, the confession’s probative value turns on an assessment of its reliability. Its prejudicial effect flows from the bad character evidence that must be admitted in order to put the operation and the confession in context. If the Crown is unable to demonstrate that the accused’s confession is admissible, the rest of the evidence surrounding the Mr. Big operation becomes irrelevant and thus inadmissible. This rule, like the confessions rule in the case of conventional police interrogations, operates as a specific qualification to the party admissions exception to the hearsay rule.

Second, I would rely on the doctrine of abuse of process to deal with the problem of police misconduct. I recognize that the doctrine has thus far proved less than effective in this context. While the problem is not an easy one, I propose to provide some guidance on how to determine if a Mr. Big operation crosses the line from skillful police work to an abuse of process.

At trial, Mr. Hart maintained that he was “intimidated, scared and felt trapped in his ability to get out” and that his motive to lie about having murdered his children was “the money, the friendships he created with undercover operators, the lifestyle and the chance to get out of Newfoundland”.

And finally, at paras. 150-151, Justice Moldaver said:

The Court of Appeal excluded the respondent’s June 9 and 11 confessions and quashed his convictions. It ordered a new trial on the basis that the respondent’s April 10 confession was admissible, and that it provided a “sliver” of evidence upon which a jury could convict the respondent of murder (para. 258).

I have concluded that the April 10 confession must also be excluded. As such, it is doubtful whether any admissible evidence remains upon which a jury, properly instructed and acting reasonably, could convict. However, the final decision on how to proceed rests with the Crown. In the result, I would dismiss the appeal.

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