R. v. NLH

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The case concerns the admissibility of a confession obtained during a Mr. Big sting operation. In a Mr. Big operation, a suspect is “recruited” by undercover police officers to join a fictitious criminal organization led by a boss (“Mr. Big”). The premise is that suspects will confess their prior criminal acts to Mr. Big in order to gain admission to the criminal organization. Mr. Big confessions were typically admitted into evidence with little to no scrutiny as exceptions to the hearsay rule.

In this case, the trial judge admitted evidence collected from a Mr. Big operation and the accused was convicted on the basis of that evidence alone. The Supreme Court of Newfoundland and Labrador (Court of Appeal) overturned the conviction and ordered a new trial on the basis that the use of the evidence breached the accused’s rights under s. 7 of the Charter of Rights and Freedoms.

The BCCLA intervened in this case at the Supreme Court of Canada. The BCCLA argued that evidence obtained through a Mr. Big operation must be subject to a threshold test to determine its reliability before that evidence is admitted. The BCCLA argued that admissions made by an accused in the course of a Mr. Big scheme are unique from other types of admissions against interest, and that trial fairness requires a special analysis be applied to that evidence.

In its decision, the SCC agreed that Mr. Big operations are unique, recognizing that Mr. Big techniques “run the risk of being abusive” and raise “the spectre of unreliable confessions”. The Court established a new common law rule of evidence specific to Mr. Big confessions: under this rule, Mr. Big confessions are presumed to be inadmissible as evidence. In order for a Mr. Big confession to be considered as evidence, the Crown must establish that the confession is reliable and not excessively prejudicial.

The SCC also sought to “remind trial judges that these operations can become abusive, and that they must carefully scrutinize how the police conduct them.” The Court emphasized that it would be an abuse of process if a confession was found to be coerced. Importantly, it recognized that in the context of Mr. Big operations, coercion can take the form of violence, threats of violence, or conduct that takes advantage of the accused’s vulnerabilities, such as mental health problems or substance addictions.

The BCCLA is represented by Michael Feder of McCarthy Tetrault; David Crossin, Q.C. and Elizabeth France of Sudgen, McFee & Roos LLP; and Michael Sobkin, Barrister & Solicitor.”

SCC judgment

Supreme Court of Canada.