Mr. not so BIG
Many people in Canada have heard about the police investigative tactic called a “Mr. Big” operation. This is a uniquely Canadian police tactic and is one that has been used in hundreds if not thousands of criminal cases in Canada. It is predominantly utilized in homicide cases, and homicide cases where the police have run out of viable leads or there is a lack of additional evidence. This investigative tactic was made famous in Canada due to the Supreme Court of Canada’s ruling in the case of R v Hart, 2014 SCC 52. In this case the Supreme Court of Canada set restrictions and guidelines on how the police are to utilize this investigative tactic.
A “Mr. Big” operation always has a similar script, at least for the initial portion of the investigation. Usually, a suspect in a serious crime will be indoctrinated into a fake criminal organization (“FCO”), this organization will be represented to be wealthy, and to have significant connections at all levels of society. But most importantly the FCO will be represented to be closer to a family then a business organization. For the first several months of the undercover operation the suspect will be taken in and made to feel as being part of this family while committing petty crimes. Then towards the end of the operation one of several things can happen that are designed to stimulate a confession. First, the organization can tell the suspect that to move forward with the organization and reap the full benefits of being part of this family, they have to be completely open and honest about their past crimes. This is the traditional “Mr. Big” operation or what we call the “enter the organization” method. The second tactic the police may use is what has been called a “truth verification strategy.” After indoctrinating the suspect into the organization, the police will then use a stimulation to get that person talking about the offence. This can include simply telling the suspect that through their police contacts they have learned that the suspect is being re-investigated, or that new evidence has come to light. The FCO will then tell the suspect that they can make this go away provided the suspect tells them everything about the crime. Sometimes they will even say they have a member of the organization who is going to be serving the rest of their life in jail and will confess to the suspects crime but needs all the details. Another stimulation is to go as far as telling the suspect that they are now going to be arrested and charged for the prior murder. The FCO then tells the suspect that they can make the problem disappear, again provided they give a full confession. This will usually occur while the FCO is actively hiding the suspect because, according to them, the police are out looking to arrest him or her for the prior murder. We call this tactic the “on the run” tactic, because in order to stimulate a confession the suspect is made to believe that they are “on the run” from the police and that the only thing stopping their arrest and detention in custody is the help of the FCO.
Overall, “Mr. Big” operations have been an incredibly successful investigative tactic and have led to convictions in virtually all the cases in which it has been used. In fact, even with the Supreme Court of Canada setting restrictions and guidelines on how the police can use this tactic the confessions that are derived from them are very rarely if ever excluded from evidence. The reason why these have been so successful is not hard to discern. Often the police are taking a marginalized individual, someone who has a small social circle, usually because everyone suspects them of being a murderer, and then gives them a close-knit set of friends who represent to be the persons family. At the end of the operation the person has the choice of losing this family or telling them what they want to know. Another reason why they have been so successful however, is because the SCC set specific guidelines on what the police can and cannot do during these operations. The police have adapted well to ensuring that everything that they do falls within those guidelines, even if their activities stray right to the edge. For example, the police are not allowed to use or threaten violence against the suspect during these operations. So, what the police frequently do is utilize violence or threats of violence against others on the periphery of the organization, typically including a fake “beat down” of someone. Therefore, they will indicate to the suspect that the organization is capable of violence and willing to use it, but do not overtly demonstrate that they will use it against a direct member of the organization, like the suspect. This creates an aura of violence but not one that can be said to be directed at the suspect. Another example deals with financial benefits. They will give the suspect money, but not so much money that anyone can say will overwhelm the suspects free will. Therefore, the guidelines placed on the use of these operations have been successful in somewhat stemming outrageous police behaviour during these investigations, but they have also made them very difficult to challenge in a suspect’s defence, because the police are operating within the guidelines set by the SCC even if they are straying very close to the line.
In our office however, we recently had success in defending an accused who gave a “Mr. Big” confession. We were able to argue that the confession should be excluded from evidence because first, it was an unreliable confession, and also because the way the police operated in the course of this Mr. Big operation was an abuse of process.
In this case, R v Dauphinais, 2021 ABQB 21 the accused was indoctrinated into a FCO over a number of months. However, to stimulate a confession the police used the “on the run” tactic described above. Specifically, what they did, was have an actual police detective call the accused when he was alone with one of the undercover officers and tell him that the police were going to be arresting and charging him with the murder of his wife, which occurred in 2002. At the same time actual police officers were sent to the accused’s home where his teenage sons were home alone, and those officers told his sons that the accused was going to be arrested and charged for the murder of their mother. For the next four days the FCO hid the accused in various hotel rooms representing to him that there was a “manhunt” out for him and the only thing that was going to keep him out of jail was if he gave the FCO, or “Mr. Big” specifically, all of the information they needed about the killing of his wife. Over the four days the accused was made to believe he was “on the run” he was interviewed numerous times by members of the FCO, he was made to believe that close friends outside of the FCO had been “ratting” on him, and that the only people he could trust were the undercover operators. Over the course of the first 3 days, he gave mildly incriminating statements, but on the 4th and final day of the operation he indicated that he had done something to his wife. However what he said did not corroborate other known evidence and was in fact internally inconsistent.
In defending this individual, we could not argue that the police paid him too much money, or threatened him overtly with violence, and thereby did not step outside the guidelines imposed by the Supreme Court of Canada, although we certainly tried. Instead, the main focus of our argument was that the use of this “on the run” tactic was an abuse of process and that the pressure it created, coupled with the lack of detail in the confession, made it unreliable evidence. Our argument was therefore not focused on the overall operation and what the police did throughout the operation, but rather the pressure they placed on the accused at the end of the operation to try and generate a confession. Specifically, we focused on the fact that the accused was told that he was going to be arrested and go to jail for the murder of his wife. At the same time, the FCO was dangling a “get out of jail free card” in front of his face if he told them what they wanted to hear. The pressure that this creates is certainly undeniable and many people guilty or innocent when faced with such an offer may be tempted to take the “get out of jail free card”. We were arguing that the police should not be able to use this tactic or place this kind of pressure on an accused because the potential for false confessions would be too high.
Ultimately, the trial judge agreed with us, although with some differences. She found that the confession was unreliable and could not be admitted into evidence because of the pressure the police put on the accused coupled with the fact that the confession they ultimately obtained was inconclusive, inconsistent, and was not corroborated by other evidence in the case. Further, she found that there was an abuse of process. She did not find that the police were wrong in telling the accused that he was going to be arrested and charged with the murder of his wife, but instead found that they put too much pressure on him after telling him that. Specifically, she found that the police telling the accused there was a “manhunt” out for him, confining him in hotel rooms, sending police to his home to speak to his children, and turning him against others outside of the organization, was police misconduct that coerced a confession from the accused. While she did not find that everything the accused said over the course of the 4 days he was on the run should be excluded because of police misconduct, she found that what he said on the 4th day, and the day he made his most incriminating statements, should be excluded.
In the end, no evidence that was obtained during this “Mr. Big” operation was admitted into evidence. As a result, the Crown prosecutors have stayed the charges against our client and have indicated that they will not be appealing the trial judge’s decision. While this was a unique case, with unique facts, it shows that regardless of the success rate of “Mr. Big” operations they are not infallible, and sometimes it is important not to focus too heavily on what the police do throughout the operation, but rather what they do at the end of the operation. Like in this case, the police may toe the line and stay within the guidelines throughout the course of the operation but may step outside at the end. And when we are considering “Mr. Big” operations the end is often the most crucial part.
Here is a link to the decision as well as a Global New report on the case:
https://www.canlii.org/en/ab/abqb/doc/2021/2021abqb21/2021abqb21.html?autocompleteStr=2021%20ABQB%2021&autocompletePos=1
https://globalnews.ca/news/7647314/crown-stays-murder-terrie-anne-dauphinais-calgary/
