Mr. Big

“Mr. Big” no longer uncommon

Defence counsel want them excluded

The Courts include them

Mr. Big operates within two human dynamics: greed and the desire to belong

Three stage process: introduction, credibility building and evidence gathering

The police stage criminal activities, ultimately membership is conditional on revealing past criminal activity to Mr. Big to show trustworthiness – this confession is the whole point thereof

The first Mr. Big in Canada: 100 years ago R. v. Todd (Man. K.B.)

Held: inducements not related to charge itself and persons involved could not be considered persons in authority

We analyze under “police trickery”

The “community shock” test

Under Oickle

Someone so greedy and intent on joining the criminal organization, confesses to something he did not do

The concern

Is “Mr. Big” a “person in authority” situation?

Answer: no; no subjective belief in same

Grandinetti: “the operative question , is whether the accused, based on his or her perception of the recipient’s ability to influence the prosecution, believed either that refusing to make a statement would result in prejudice, or that making one would result in favourable treatment.”

Applying Oickle

Absent unusual circumstances, Mr. Big (or any undercover officer) will not be a person in authority

The fact that the accused believed his criminal cohorts were involved with corrupt police officers does not qualify – as such a voluntariness voir dire is not even necessary

Seems to offer little protection Does not apply in Mr. Big, notably due to

the absence of detention (Hebert, McIntyre)

Singh: any residual protection beyond the voluntariness rule comes from the aspect of detention

Charter s.7

Expert evidence respecting the situation of the accused himself has found some success in admissibility, not so regarding the generalities of Mr. Big

In Bonisteel, the Appellant had proposed to call an expert to give opinion evidence on false confessions, based on expert’s general review of literature

Expert Evidence on False Confessions (Mr. Big)

Held: in absence of an interview with the particular accused, or at least a review of the particular Mr. Big operation, the opinion was unnecessary, jury could form a judgment on its own with the help of a charge from presiding Judge

excluded

Some propose that this is how one should deal with Mr. Big situations

In most cases it will be appropriate for the TOL to exhort the jury as to the inherent unreliability of statements made by a proposed gang member to an alleged gang leader

Jury Charges

False confessions can happen, the accused can have other obvious motives to confess

Note: warnings have neither been deemed necessary for admission of Mr. Big, nor is there any standard form

Other ideas to tell jury

Held: while there is a general power to edit statements for prejudice and probative value concerns, there is a reluctance to do so for Mr. Big (context concerns)

A warning is preferred

Bad Character/Editing

Some defence lawyers choose tactically to agree to admit the statement, and then go on to explain that their client, because of his criminal past, is especially vulnerable, and prone to puffery as to his achievements

Author: this approach has serious risks attached (especially re character)

Attacking the Statement