Despite ruling, Mr. Big tactic ‘a must’: expert

WATCH: The Supreme Court of Canada ruled confessions obtained using controversial Mr. Big undercover operations are now inadmissible. Shirlee Engel explains.

OTTAWA – The Supreme Court of Canada ruled today that confessions obtained using the so-called Mr. Big technique must be presumed inadmissible.

The court upheld a ruling allowing a new trial for Nelson Hart, who confessed to killing his young daughters in 2002 after undercover police used the technique on him.

The controversial method of investigation is used to obtain confessions in cold cases. Undercover police befriend a suspect, posing as members of a criminal organization trying to recruit him or her. Once they have gained the suspect’s trust, they set up an interview with the head of the fake organization, known as ‘Mr. Big.’

The officer posing as Mr. Big then asks about the crime the police are investigating, often putting pressure on the suspect to confess. If they get a confession, the suspect is arrested and charged.

Garry Clement, a former RCMP superintendent, said he understands why the court is urging caution. However, he warns about the dangers of getting rid of it.

“I think this is a tool that is a must,” said Clement. “A lot of when we use this type of operation … it’s dealing in the case of murders. A lot of times it’s dealing in cold cases.”

Often, the police see a Mr. Big scenario as the only way to solve a cold case.

“I think society has this expectation that law enforcement never does forget cold cases,” said Clement.

Although the court didn’t ban the Mr. Big technique altogether, they said it poses serious risks on three different fronts, all of which will have to be taken into account in future cases.

First is the danger of getting a false confession.

“Confessions are dangerous things,” said Russell Silverstein, a lawyer for the Association for the Defence of the Wrongfully Convicted.

“Juries don’t tend to appreciate that innocent people sometimes falsely confess when they’re given enough incentive to do so.”

Second is the prejudicial nature of this kind of evidence. In a trial, the jury will know that the defendant was willing to join a criminal organization, and more, that the defendant participated in fake crimes.

Third, and perhaps most difficult for the police to overcome, is the question of police misconduct. Under the new rules of evidence set by the court, even if the prosecution manages to clear the first two hurdles, the confession will be thrown out if the courts determine the police went too far.

“I think the RCMP will have to be careful in terms of how long these operations go, how much pressure’s applied, and could it be perceived that they are abusing the criminal justice process, calling the integrity of the justice system into question,” said Troy Riddell, a professor of political science at the University of Guelph, who has studied these investigations.

The court ruled that Hart’s case violated all three of the criteria set out in the judgement.

Hart’s vulnerability as a suspect was a factor in the ruling; he had a grade five education and, before meeting the undercover police officers, had little social contact with people other than his wife.

According to the judgement, he grew to love and trust the officers, calling them his brothers.

In addition, there was no corroborating evidence that Hart had killed his daughters.

The court left it up to the Crown to decide whether Hart should have a new trial, which would not be allowed to use the confession obtained in the Mr. Big operation.

It is too soon to say what effect this ruling will have on future Mr. Big scenarios.

“I would suggest that anyone who is now serving time as the result of a Mr. Big was on the phone to their lawyer immediately after hearing the Supreme Court ruling,” said Clement.

As for Hart’s case, the Crown would not comment on whether they planned to order a new trial, saying they had to review the ruling before making a decision.