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Milligan’s Criminal Law Advisor | Mr.Big operation

First degree murder confession derived from Mr. Big operation held admissible

Milligan’s Criminal Law Advisor

By: Jeffrey Milligan

Appeal for a conviction for murder based on statements made in the course of a “Mr Big” operation is dismissed by the British Columbia Court of Appeal

Last year, the Supreme Court of Canada in R. Hart, [2014] 2 S.C.R. 544 held that confessions made to police in “Mr Big” operations are presumptively inadmissible unless the Crown can establish, on a balance of probabilities, that the probative value outweighs its prejudicial effect.

The evaluation of the probative value of the statements will turn, the court suggested, on an assessment of their reliability. This process, the court held, is akin to the assessment of “threshold reliability” where statements are tendered as an exception to the rule against hearsay.

The Supreme Court in Hart instructed that courts should carefully consider all of the circumstances surrounding the making of the statements in the course of “Mr Big” operations and, in particular, they should consider whether there is confirmatory evidence for what the accused said to police. This, they suggested at paragraph 105, might well provide “a powerful guarantee of reliability”. Courts should also consider the background and personality of the accused because that may shed light on how predisposed they might be to utter falsehoods to ingratiate themselves with the undercover officers and how vulnerable they might be to inducements. Courts should also look for “markers” of reliability such as the whether the statements included details that were not made available to the public by the police.

In a recent case, the British Columbia Court of Appeal upheld a conviction for first-degree murder that was based, in large part, on statements the appellant made to police in the course of a “Mr Big” operation.

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