SCC sets high standard for Mr. Big confessions

The Supreme Court of Canada today set tough new standards for the admissibility of confessions elicited from “Mr. Big” operations — elaborate stings where undercover agents recruit suspects into fictitious criminal organizations to gain their trust and extract a confession.

The appeal in question, R. v. Hart, involved the conviction of Nelson Lloyd Hart, in Newfoundland, for the murder of his twin daughters, who drowned in a lake.

Initially, agents had insufficient evidence to charge Hart, who reported differing accounts of the incident. Two years later, the RCMP initiated the sting, in which Hart was recruited into a criminal organization and participated in 63 “scenarios” over four months. During this time, he allegedly confessed to the murder of his daughters three times. He was arrested shortly thereafter.

On appeal, Hart was granted a new trial based on the court’s finding that two of three confessions were inadmissible.

The SCC today — in a unanimous ruling written by Justice Michael Moldaver — upheld the appeal court ruling and went much further, instituting a new judiciary principle that presumes all such confessions inadmissible unless the Crown can meet a rigorous two-prong test.

Lisa Dufraimont, an associate law professor at Queen’s University, says it’s a remarkable ruling — one that will give defence counsel far greater powers to protect their clients from wrongful conviction: “I think it's really exciting to see that the Supreme Court has gone that extra mile to recognize the potential for false confessions here.”

Indeed, the onus has been entirely flipped, says Rob Gray, co-counsel for the respondent at Poole Althouse. “Mr. Big confessions are now presumptively inadmissible unless the Crown meets the test for admissibility. So that provides some protection now for individuals who are the targets of these particular stings.”

The first prong of the test involves prejudice and reliability. Crown prosecutors must take care not to unduly prejudice a jury by presenting evidence that suggests the immoral nature of the suspect (although the court acknowledges that some prejudice is inescapable given the suspect’s willingness to join a criminal organization).

More important is the reliability of the confession. As the ruling states, confessions extracted under Mr. Big operations are inherently dubious: “. . . 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.”

The reliability of these confessions can be greatly strengthened, however, if the confession leads to “confirmatory evidence,” which suggests the suspect was involved. This may, for instance, include the suspect’s knowledge of minute details of the crime scene, or even, in the case of a murder, the whereabouts of a body.

“Confirmatory evidence is not a hard and fast requirement, but where it exists, it can provide a powerful guarantee of reliability. The greater the concerns raised by the circumstances in which the confession was made, the more important it will be to find markers of reliability in the confession itself or the surrounding evidence.”

Outside of such powerful confirmatory evidence, Moldaver’s decision lays out a laundry list of contextual considerations that should come into play, although the ruling provides ultimate deference to trial judges, who are in the best position to weigh these various considerations.

According to the ruling, these circumstances include, but are not limited to, “the length of the operation, the number of interactions between the police and the accused, the nature of the relationship between the undercover officers and the accused, the nature and extent of the inducements offered, the presence of any threats, the conduct of the interrogation itself, and the personality of the accused, including his or her age, sophistication and mental health.”

The second prong of the SCC’s test involves abuse of process. The court, in this ruling, expresses serious concern about the potential for abuse in these kinds of operations. While the majority saw no need to conduct an abuse-of-process test for this particular case, Hart’s counsel point to an incident where police paid Hart to drive on highways, despite having witnessed his susceptibility to epileptic seizures — thus endangering public safety in what may constitute criminal negligence.

As the ruling states: “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.”

Jamie Merrigan, who also represented Hart, says, while the success of Mr. Big operations means they will likely continue, police will have to be far more careful in how they conduct their affairs.

Records, for instance, will have to be much more carefully logged and officers will have to take care not to engage in behaviour a court could consider coercive. “The harder they push the more likely it will be inadmissible,” he says. “The closer they get to the line, the more of a problem they have.”

Dufraimont, for her part, doesn’t think it’s necessarily a bad thing that Mr. Big operations will remain permissible, but she says that presumptive inadmissibility will give police pause and provide defence counsel with useful new strategies.

“There really were very limited options available to defence lawyers to try to challenge the admissibility of this kind of evidence, and that is just not the case anymore,” she says.

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