The Aftermath of R v. Hart: The Consistent Admission of Statements Made during Mr. Big Sting Operations
By: Jordyn Benatar, Associate, Derstine Penman Criminal Lawyers
No new friends! Despite recent changes to the law surrounding confessions elicited through Mr. Big sting operations, accused and suspected individuals must remain vigilant and suspicious of those who befriend them in an effort to elicit incriminating information.
What is a “Mr. Big Sting Operation”?
The Mr. Big sting operation has a contentious history in Canada – it has been compared to entrapment, and yet, has withstood constitutional scrutiny.
A Mr. Big operation begins with a group of undercover officers befriending a suspect and luring the suspect into a fictitious criminal organization. Among the group, there is a focus on friendship, trust, and a motivation to confess prior criminal activity in order to prove credibility and fight for acceptance into the organization. “Mr. Big” probes the suspect on the details of the specific crime under investigation until he successfully induces a confession and the entire criminal organization unravels, resulting in the suspect’s arrest.
The methods through which confessions are induced in the context of Mr. Big operations raise concerns regarding the reliability of confessions and the potential for abusive investigations.
R v. Hart, 2014 SCC 52: A Victory for the Defence
The Supreme Court of Canada case of R v. Hart marked a dramatic shift with respect to Mr. Big confessions. What was formerly presumptively admissible, became presumptively inadmissible and subject to a two-prong test. The case was the first to create a legal framework through which to analyze the unique issues that plague Mr. Big confessions.
Prior to Hart, defence counsel had only two options for challenging confessions obtained via Mr. Big operations. Defence counsel could argue an abuse of process or urge the trial judge to use his/her inherent discretion to exclude evidence that is more prejudicial than probative; neither of which were often successful.
Following the decision in Hart, the presumption of inadmissibility can be overcome only where the crown can establish that the probative value of the confession outweighs its prejudicial effect. The court is also instructed to carefully scrutinize the police conduct that forms the basis of the operation and is cautioned that, no matter how reliable to confession, the court mustn’t condone abusive or coercive state conduct. This two-prong test is intended to protect against false confessions and preserve the integrity of the justice system, ensuring that only reliable statements, which are not the result of police misconduct, are admitted.
The Aftermath of R v. Hart
Despite the decision in Hart, virtually all of the subsequent cases involving confessions elicited through Mr. Big operations have resulted in the admission of those confessions. Accordingly, while R v. Hart appeared, on its face, to be a big win for the defence bar, overhauling the judicial treatment of Mr. Big confessions, practically, it has had a limited effect.
The message is clear: accused and suspected individuals must remain on guard and continue to exercise caution in speaking with unknown individuals about their criminal activity. Defence counsel, on the other hand, must continue to vigorously challenge the admission of Mr. Big statements and confessions in an effort to practically realize the theoretical impact of the Hart decision.