Confessions from Mr Big Operations

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General Principles

See also: Admissions

A "Mr. Big" operation is where undercover officers lure a suspect into joining a fictitious criminal organization culminating in an interview where the officers seek to elicit a confession to the offence under investigation before the suspect can be permitted to join the criminal organization.[1]

Presumption of Inadmissibility
Where the accused gives a statement in the course of a "Mr. Big" operation the statement is presumptively inadmissible.[2]

Burden and Standard of Proof
This presumption can be overcome where the Crown can establish on a balance of probabilities that the "probative value of the confession outweighs its prejudicial effect".[3]

  1. R v Hart, 2014 SCC 52 (CanLII) at paras 1 to 2, 10
  2. Hart, ibid. at para 10 ("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")
  3. Hart, ibid. at para 85

Admissibility Analysis

The Court's approach takes the form of two phrases. First, the court looks at the admissibility of the confession and second, consideration of whether the doctrine of abuse of process would render the confession inadmissible.[1]

  1. R v Yakimchuk, 2017 ABCA 101 (CanLII) at paras 42 to 47

Analysis of Confession

The analysis of the confession requires four steps:[1]

  1. examination of the circumstances in which the confession was taken for admissibility concerns;
  2. look at markers of reliability;
  3. look at the prejudicial effect of the confession for moral and reasoning prejudice; and
  4. weigh the probative value against the prejudicial effect.
  1. Hart, supra at para 102 to 105
    Yakimchuk, supra at para 42 to 45

Circumstances of Confession

Examination of the circumstances of the taking of the confession includes consideration of:[1]

  1. length of the operation,
  2. the number of interactions between the police and the accused,
  3. the nature of the relationship between the undercover officers and the accused,
  4. the nature and extent of the inducements offered,
  5. the presence of any threats,
  6. the conduct of the interrogation itself, and
  7. the personality of the accused, including
    1. his or her age,
    2. sophistication, and
    3. mental health

Number of Operations
The number of operations can vary on average between 30 and 70 scenarios over 3 to 8 months.[2]

The relationship can be important where the accused is isolated and is made more isolated from the operation.[3] Courts will look at the accused's social ties to family and community to assess the relationship.[4]

Inducements are relatively frequent in a Mr. Big operation and do not per se render a statement involuntary.[5] The issue is whether the inducements become "coercive".[6]

Where inducements are financial and the accused is employed, the effect of inducements will be treated as reduced.[7] Where the accused was spending beyond his means which induced him is not by itself sufficient.[8] Nor is lack of employment or receipt of social assistance enough alone to render inducements "overwhelming".[9]

The presence of threats of violence against the accused or members of the organization will usually render the statement inadmissible.[10]

The court may consider whether there were any demonstrations that show that members who breach rules are not subject to violence.[11]

Threats of a non-violent form are acceptable.[12]

Consideration should also be made as to whether an opportunity is given to the accused or members to withdraw from participation if they do not feel comforable.[13]

In most cases, the accused will confess for fear of losing his position in the organization and its benefits.[14]

A distinction is made between confession as a "truth verification strategy" as oppose to "false bragging".[15] The bragging confession is considered less reliable.[16]

Personal Traits
A person with an extensive criminal past with "street smarts" will less likely be vulnerable.[17]

  1. Hart, supra at para 102
  2. Yakimchuk, supra at para 53
  3. Yakimchuk, supra at para 55
  4. Yakimchuk, supra at para 55
    R v MM, 2015 ABQB 692 (CanLII) at para 115 to 116
    R v Wruck, 2016 ABQB 370 (CanLII) at para 22
  5. Yakimchuk, supra at para 59
  6. Yakimchuk, supra at para 59
    R v Ledesma, 2014 ABQB 788 (CanLII) at para 123
  7. Yakimchuk, supra at para 59
    R v Mack, 2014 SCC 58 (CanLII) at para 33
    M(M), supra at para 86
    Wruck, supra at para 22
  8. Wruck, supra at para 22
  9. Yakimchuk, supra at para 59
    R v Allgood, 2015 SKCA 88 (CanLII) at para 58
    R v West, 2015 BCCA 379 (CanLII) at paras 86 and 100
    M(M) at para 86
    Johnston at para 66
  10. LaFlamme, at para 87
    Yakimchuk, supra at para 60
    Johnson, supra at para 51 to 52
    M(M), supra at para 175
  11. Yakimchuk, supra at para 60
    Allgood at para 13
    R v Randle, 2016 BCCA 125 (CanLII), at para 89
  12. Yakimchuk, supra at para 60
  13. Yakimchuk, supra at para 60
    Allgood, supra
  14. Yakimchuk, supra at para 63
    Hart, supra at para 32
    Perreault, supra at para 15
    Laflamme, supra at para 86
  15. Yakimchuk, supra at para 63
    R v Campeau, 2015 ABCA 210 (CanLII)
  16. Yakimchuk, supra at para 63
  17. Yakimchuk, supra at para 68

Markers of Reliability

The markers of reliability should include consideration of:[1]

  1. the level of detail contained in the confession,
  2. whether it leads to the discovery of additional evidence,
  3. whether it identifies any elements of the crime that had not been made public (e.g., the murder weapon), or
  4. whether it accurately describes mundane details of the crime the accused would not likely have known had he not committed it (e.g., the presence or absence of particular objects at the crime scene);

The appropriate strength of the "markers of reliability" will vary depending on the "concerns raised by the circumstances in which the confession was made".[2]

Confirmatory evidence is not necessary but is a "powerful guarantee of reliability".[3]

The level of detail given should be considered in light of the complexity of the crime.[4]

The mere fact that the confession correlates to public information does not lessen the probative value of the statement.[5]

The prejudice asks whether the jury will be distracted from the charges because of the amount of time spent on the operation.[6]

It also considers the character evidence that is brought along in with the Mr Big evidence that tends to show his "willingness to engage in criminal activity and his actual participation in that activity".[7]

The prejudicial effect can be "tempered" through the use of jury instructions and editing of the evidence.[8]

  1. Hart, supra at para 105
  2. Hart, supra at para 105
  3. Hart, supra at para 105
  4. R v Streiling, 2015 BCSC 597 (CanLII) at para 139
  5. Yakimchuk, supra at para 71
    M(M) at para 134
    Randle at para 82
  6. Hart, supra at para 106
  7. Hart, supra at para 145
    Allgood, supra at par 49
  8. Yakimchuk, supra at para 78
    Mack, supra at paras 56 and 61
    M(M), supra at para 164

Analysis of the Abuse of Process Doctrine

The abuse of process phase considers whether the limit state power so as to "guard against state conduct that society finds unacceptable, and which threatens the integrity of the justice system".[1]

Burden of Proof
The burden at this stage is upon the accused to establish an abuse of process.[2]

Violence or Threats of Violence
Abuse of process would include inquiry into the "use of physical violence or threats of violence, and operations that prey on the vulnerabilities of an accused (such as mental health problems, addictions, or youthfulness).[3]

There is nothing wrong with there being an "atmosphere" of violence in order ot give the accused a sense of freedom to discuss their past acts of violence.[4]

However, where the violence is directed at the accused or a member of the organization, this is likely abusive.[5] Violence directed at others less likely abusive.[6]

Simply offering inducements is not enough to be abusive. There must be something beyond that such as a vulnerable accused due to mental health, youth, or substance abuse issues.[7]

  1. Hart, supra at para 113
    Yakimchuk, supra at para 47
  2. Hart, supra at para 116 to 117
    Yakimchuk, supra at para 47
  3. Yakimchuk, supra at para 47
    Hart, supra at para 116 to 117
  4. Yakimchuk, supra at para 88
    Johnston, supra at para 51
    West, supra at para 99
  5. Yakimchuk, supra at para 89
    Laflamme, supra at para 84, 87
  6. Yakimchuk, supra at para 89
    Allgood, supra at para 13
    Randle at paras 88-89
  7. Yakimchuk, supra at para 91
    Allgood at para 67
    West at para 100