Supreme Court of Canada: Ruling against the “Mr Big” technique of extracting confessions from an accused wherein the state recruits an accused into a fictitious criminal organization and seeks to elicit a confession from him, the Court held that confessions during such operation should be presumed inadmissible. Applying the new common law rule of evidence, the Court held that the presumption in such cases is overcome only where the probative value of confession outweighs its prejudicial effect. The risk associated with prejudice is that jury’s focus will be distracted from the charges before the court, it can pose a problem depending on the length of the operation, and lead to a controversy as to whether a particular event or conversation occurred. This risk can be mitigated by excluding the pieces of particularly prejudicial evidence that are unessential to the case.
In this case the accused was suspected of murdering his two daughters. Due to lack of evidence against him, the police began a “Mr Big” operation by going undercover posing as members of a fictitious criminal organisation and the accused was recruited in the organisation. Meanwhile, he befriended two undercover officers and made bald statements confessing, he drowned his daughters. Thereafter, in the garb of a job interview he was interrogated by another undercover officer posing as one Mr Big (the head of the fake organisation). To him, accused confessed drowning his daughters and went to the crime scene and explained the incident.
Dismissing the trial courts decision, the Court concluded that “Mr Big” operation had breached accused’s right to silence under Section 7 of the Charter. It was viewed that the confessions contained internal contradictions, and in the absence of any confirmatory evidence capable of verifying the details of the confessions, conviction on such basis would be unsafe. The Court ordered a new trial while admitting only his bald statements to the undercover officers and excluding the confessions made to the undercover officer posing as Mr Big and the confession explaining the incident at the crime scene. R v. Hart, 2014 SCC 52, decided on 31-07-2014