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Univ. of South Carolina School of Law

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Tuesday, August 12, 2014

Absof***inglutely: Supreme Court of Canada Creates New Rule of Evidence Deeming Mr. Big Confessions Presumptively Inadmissible

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. R v. Hart.

Now, pursuant to the recent opinion of the Supreme Court of Canada in Hart, Mr. Big confessions are presumptively inadmissible.

In Hart,

H's twin daughters drowned on August 4, 2002.  The police immediately suspected that H 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 H into a fictitious criminal organization.  At the time, H 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, H worked with the undercover officers and was quickly befriended by them.  Over the next four months, H 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, H was also sent on several trips across Canada — to Halifax, Montreal, Toronto and Vancouver.  H 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 H’s best friends and H came to view them as his brothers.  According to one of the undercover officers, during this time frame, H 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 H and “Mr. Big”, the man purportedly at the helm of the criminal organization.  During their meeting, Mr. Big interrogated H about the death of his daughters, seeking a confession from him.  After initially denying responsibility, H confessed to drowning his daughters.  Two days later, H went to the scene of the drowning with an undercover officer and explained how he had pushed his daughters into the water.

At trial, the Crown introduced H's confessions into evidence, and H later appealed their admissibility. In addressing the issue, the Supreme Court of Canada noted a number of concerns that accompany Mr. Big confessions:

•"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;"

•"Mr. Big confessions are...invariably accompanied by [character] evidence that shows the accused willingly participated in "simulated crime" and was eager to join a criminal organization;"

•"Mr. Big operations also run the risk of becoming abusive" and "may become coercive."

And yet, before Hart, "Mr. Big confessions [we]re routinely admitted under the party admissions exception to the hearsay rule."

But that's not the case any more. According to the Supreme Court of Canada,

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 Court, found, however, this first prong

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.                      

Therefore, a

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.

-CM

http://lawprofessors.typepad.com/evidenceprof/2014/08/the-mr-big-technique-is-a-canadian-invention-although-a-version-of-the-technique-appears-to-have-been-used-more-than-a-ce.html

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