THE ‘MR. BIG’ SCENARIO

Is It A Dirty Trick?

THE TYPICAL ‘FACTS’ The police lack the grounds to lay a charge. The police ‘investigate’ a suspect who is

perceived to be open to overtures from sophisticated and prosperous criminals.

A police officer posing as a lower echelon member of a criminal “crew” pretends to befriend the suspect.

The officer causes the suspect to believe that he can arrange his entrée into the criminal organization and thereafter he will be set up financially for life.

THE TYPICAL ‘FACTS’ The milieu is such that shame is reserved for the weak

and a killer is to be embraced. The Boss – ‘Mr. Big’ - is a person invested with

enormous power in this lawless world who, according to the subordinate, will demand proof of the nominee’s bona fides as a criminal to hold over him should he ever become disloyal.

The Boss must approve the candidate so a meeting with ‘Mr. Big’ is set up and what to tell him is well rehearsed.

The ‘truth’ to be told must be a confession to an unsolved crime.

The suspect is arrested and the key evidence against him is the confession to the undercover police officers.

Winners and Losers

The police have a major responsibility in building a case against the defendant it must be strong enough to secure a conviction or they will be the loser.

Adding to this problem is the conception that the police as a whole are doing societies ‘dirty work’ but receive little recognition for a job well done.

When nobody wants to be a loser and one party has considerable power over the game, the odds are certainly not equal.

This culminates in a ‘we against them’ mentality that justifies the use of the ‘Mr. Big’ scenario in order to get a tough job done.

POLICE MISCONDUCT

Police, the gatekeepers to the criminal justice system, are subject to: Bias Ends-Means reasoning Ambition Isolation.

All contribute to misconduct

Suspect Interrogation Admissions of guilt are not always prompted by internal

knowledge of guilt but are often motivated by external influences

“I did it” may assume the damming form of a confession, but it may be the calculated lies of the determined job applicant or a desperate attempt to belong or even the repetition of facts drawn from other sources

Confessions are not always reliable Jurors treat confessions as more probative than any type

of evidence False confessions are a significant cause of wrongful

convictions

IS IT A DIRTY TRICK? Covert police operatives are able to sidestep the

centuries old safeguards such as the person in authority protections of the common law while claiming unprincipled formalistic adherence.

Since the suspect is not formally detained, constitutional protections are avoided giving carte blanche to rouge police officers to obtain confessions from non-detained suspects by any means.

The “Mr. Big Technique” circumvents both the common law protections against courts receiving unreliable confessions and the constitutional guarantee against unfairly obtained evidence.

FALSE CONFESSIONS The extreme biasing effect of false confessions on the

perceptions and decision making of all participants in the administration of justice is likely to lead to miscarriages of justice.

A false confession to any crime is both counterintuitive and self-destructive yet continues to be a key contributing cause to wrongful convictions.

Police and prosecutors rarely consider the possibility that a confession may have been mistakenly elicited or coerced, because they are reluctant to admit mistakes and are committed to the principle that innocent people do not falsely confess.

Retracted confessions are viewed with derision and the presumption of dishonesty can not be displaced.

The presumption of guilt set in motion in jurors and the administration of justice by a suspect’s confession is all but irrefutable even when the confession discloses no verifiable fact only known to the perpetrator.

Interrogation of a suspect can lead to a false confession: duress, Coercion or threats, financial need, protection of friends or family, promise of reward, avoidance or ending physical harm or discomfort, exhaustion, Fear or violence, intoxication, diminished capacity or mental impairment, ‘dirty tricks’ – [ie. dressing up like a priest or lawyer] ignorance of the law, Ignorance of consequences.

Trial FairnessIn Regina v. White the Supreme Court of Canada focused on the issue of the coercive power of the state when a person is not detained. The Court identified four factors which compelled the exclusion of the statements (para. 53 – 55, 56 – 60, 61 – 62, and 63 – 66):

Existence of coercion – the Motor Vehicle Act compels a driver to give a statement to the police following an accident;

Adversarial relationship – the police investigating the incident put law enforcement interests against the right to silence;

Unreliable confessions – because of the prospect of a criminal conviction based on the coerced statement, there is a strong incentive for a driver to give a false statement to the police – even if the person is innocent. The Court held that a rule forbidding the prosecution from using such a statement at trial would “enhance, rather than impair, the effectiveness of the statutory reporting scheme”.

Abuse of power – police officers may well misconduct themselves including failing to seek independent evidence of the crime. Preventing abusive state action was a “major concern underlying the principle against self-incrimination”. The Court found that such abuse could operate “to circumvent or defeat a driver’s s.7 right to remain silent when under when under investigation for a criminal offence”.The Court did not strike down the statute; it simply ruled that the elicited statements could not be used by the Crown to incriminate an accused at trial. Obtaining the evidence did not violate s.7, but its admission at trial would violate the Charter. Exclusion takes place by virtue of s. 24(1) of the Charter because the trial would be rendered unfair because rights would be violated by the police obtaining the evidence.

The Future A coerced confession unencumbered by any substantive or procedural protections

accorded an accused during a police interrogation infringes s.7 of the Canadian Charter of Rights and Freedoms and the elicited utterances must be excluded from evidence to be proffered at a criminal trial pursuant to s. 24 (2) of the Charter.

The “Mr. Big Technique” lays claim to the forensic value of “an admission against interest’ while debasing the coinage of confession. Everything that makes a false confession improbable and counter-intuitive is stripped away and replaced by powerful incentives to admit a crime, truthfully or otherwise. The trick circumvents both the common law protections against courts receiving unreliable confessions and the constitutional guarantee against unfairly obtained evidence. Are courts powerless?

The Supreme Court of Canada in Regina v. Swain held that courts of competent jurisdiction are not powerless to remedy the injustice that would be occasioned by the unprincipled formalistic adherence to unconstitutional judge made laws:

“The Charter analysis here, because the appeal involved a Charter challenge to a common law, judge-made rule, involved somewhat different considerations than would apply to a challenge to a legislative provision … after the existing common law rule was found to limit the s. 7 Charter rights.  It would be appropriate to consider at this stage whether an alternative common law rule could be fashioned which would not be contrary to the principles of fundamental justice. If it is possible to reformulate a common law rule so that it will not conflict with the principles of fundamental justice, such a reformulation should be undertaken.

Criminal Defence Lawyer

Daniel J. Brodsky Barristers Chambers 11 Prince Arthur Avenue Toronto, Ontario M5R 1B2 T. (416) 964-2618 F. (416) 964-8305

E. DBrodsky@Daniel-Brodsky.com