Importing a Canadian Creation: A Comparative Analysis of Evidentiary Rules Governing the Admissibility of Confessions to 'Mr. Big' (original) (raw)
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Psychology, Public Policy, and Law, 2009
Canada's legal system recognizes that police interrogation procedures may contribute to false confessions, and has provided safeguards designed to protect the rights of the accused and reduce the likelihood of these errors. Police in Canada are using a complex noncustodial interrogation procedure called the "Mr. Big" technique, to elicit confessions for recalcitrant suspects. Remarkably, this undercover (in that suspects do not know they are speaking to law enforcement officers) interrogation technique boasts a 75% confession rate and a 95% conviction rate when used (Gardner, 2004). However, it is possible that suspects in these situations may experience undue pressure to confess falsely. The purpose of this paper is fourfold: (1) to explore the nature of the Mr. Big technique; (2) summarize some recent Canadian legal cases relevant to confession evidence (e.g., R. v. Oickle, 2000; R. v. Mentuck, 2000); (3) examine Canadian law and police practices in the context of different jurisdictions around the world; and, (4) discuss the scientific evidence relevant to the Mr. Big procedure. We conclude the paper by discussing recommendations for current and future police practice, directions for future research, and the ways in which psychological research could inform legal policy and procedures in the future.
Criminal Law Quarterly , 2013
This article examines the absence of meaningful judicial safeguards respecting the admission of incriminating statements procured through Mr. Big Operations. These are undercover police operations where officers masquerade as members of organized criminal enterprises seeking to recruit a suspect or accused into their organization with the objective of eliciting incriminating statements from the target of the operations. During these operations, undercover agents provide various inducements, make threats and/or engage in vigorous discussions that are the functional equivalents of an interrogation. This article argues that such operations and the means employed undermine two core values of the criminal justice system – the voluntary nature and reliability of confessions. It suggests that one way in which judges can scrutinize the admission of incriminating statements elicited from Mr. Big Operations is through the police trickery arm of the Common Law Confessions Rule. Given the highly subjective standard of the current test which assesses whether the “community” would be shocked by the conduct of the state actors in using trickery, a new test with a series of objective factors is offered. This article argues that a change in the current test is justifiable in light of the Supreme Court of Canada’s attacks in recent years respecting community shock tests.
Mr. Big and the New Common Law Confessions Rule: Five Years in Review
Manitoba Law Journal , 2020
The Supreme Court of Canada released its decision of R v Hart in July of 2014. The decision provided a two-prong framework for assessing the admissibility of confessions obtained through the undercover police tactic known as "Mr. Big". The goal of the framework was to address reliability concerns, to protect suspects from state abuse, and to reduce the risk of wrongful convictions. The first prong of the test created a new common law evidentiary rule, under which Mr. Big obtained confessions are now presumptively inadmissible. The second prong revamped the existing abuse of process doctrine. In this article, the authors review the last five years of judicial application of the new Hart framework. In total, all 61 cases that applied Hart were analyzed qualitatively and quantitatively, looking at whether the goals of the Hart framework have been met, what effect the framework has had on the admissibility of Mr. Big obtained confessions, and what, if any, shortcomings the framework has. The authors argue that the flexibility and discretion built into the Hart framework have resulted in an inconsistent application of the two-prong test. In the end, the framework has had a negligible impact on the number of confessions that are admitted.
Canadian Public Administration, 2012
This paper analyses the RCMP's "Mr. Big" undercover investigation technique, which involves the use of undercover officers posing as high-ranking members of a criminal organization. These officers befriend a target (the suspect) and promise the suspect that their leader (Mr. Big) can help the target in several ways; in exchange, the officers demand that the suspect truthfully reveal past criminal activity to establish credibility and protect the organization against surprises. There appears to be little interest on the part of state actors, other than the courts, in reducing police independence and providing more accountability and oversight for Mr. Big and other undercover operations. Yet, as parts of Canada's criminal justice system, such operations deserve scrutiny because of their cost and potential for wrongful convictions. This article calls for oversight of the police by several actors, including legislators providing guidelines for police investigations, closer judicial scrutiny and executive oversight of police operations, and improved police training.
The Law in Undercover Policing
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Confession evidence in Canada: psychological issues and legal landscapes
Psychology, Crime & Law, 2010
Canada's legal system recognizes that police interrogation procedures may contribute to false confessions and has provided safeguards designed to protect the rights of the accused and reduce the likelihood of these errors. Although it is difficult to determine how often false confessions occur, it is worth considering the extent to which Canadian legal protections are likely to be effective and the degree to which they address the relevant psychological issues that might increase the likelihood of a false confession. The purpose of this paper is to summarize some recent Canadian legal cases relevant to confession evidence (e.g. R. v.
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1995
Private security, employed as a means of tackling the ever-increasing amount of crime against business, is a growing industry. One source puts the costs to business in Australia (in 1992 figures) at $631 million annually (Walker 1994, p 7). Increasing demands for protection of people and property, together with financial constraints on governments, have greatly expanded the role of security providers, inquiry agents and private police in Australia. This paper looks at one aspect of this trend.
International rights and Australian adaptations: Recent developments in criminal investigation
Sydney L. Rev., 1995
Nations General Assembly, International Covenant on Civil and Political Rights (1966) Resolution 2200 A(xxI). Article 14(2). 2 Id at Art 14(2)(g). 3 The right to silence in English legal convention has undergone legislative qualification and restriction over the years (eg, Thefr Act 1968 (Eng) s31, Supreme Court Act 1981 s72, Criminal Justice Act 1987 (Eng) s2, Criminal Evidence (Northern Ireland) Order 1988), but these incursions have either been justified because of the extreme nature of the prohibitions enacted, or through the qualification of the resultant disclosures via limited "use" immunities. 4 See Criminal Justice Act 1994. Interestingly this legislative position contradicts the common law evidentiary rule that no inference of guilt should be drawn from the fact that a person has exercised their right to silence (see R v Whitehead [I9291 1 KB 99; R v Keeling [I9421 1 All ER 507; R v Bathurst [I9681 2 QB 99).
In Colorado v. Connelly the Supreme Court held that police misconduct is necessary for an inadmissible confession. Since the Connelly decision, courts and scholars have framed the admissibility of a confession in terms of whether it successfully deters future police misconduct. As a result, the admissibility of a confession turns largely on whether U.S. police acted poorly, and only after overcoming this threshold have courts considered factors pointing to the reliability and voluntariness of the confession. In the international context, this translates into the routine and almost mechanic admission of confessions—even when there is clear indication that the confession is coerced or unreliable. Confessions obtained by foreign officers seldom meet the Connelly threshold because the United States has neither the ability, nor the goal, of controlling foreign police conduct. In light of the international context, courts should reexamine the Connelly test, which is not in line with the fundamental ideals of justice and fairness that the U.S. Constitution protects. Courts should tailor a test focused on the reliability of the confession in order to protect the defendant’s fundamental rights.