Scrutinizing Mr. Big: Police Trickery, the Confessions Rule and the Need to Regulate Extra-Custodial Undercover Interrogations

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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.