In todays Globe and Mail, p. S1, Shannon Kari writes about so-called Mr. Big cases. Mr. Big is the moniker given to undercover operations in which the police pose as criminals in order to obtain a confession from a suspect. The ploy is usually confined to murder investigations where the police lack sufficient evidence to proceed with charges. Mr. Big operations are especially popular in Western Canada, and a great many have been conducted in B.C. over the last 15 years or so.

Defence lawyers have from the beginning expressed serious concern about the reliability of confessions obtained via the Mr. Big conceit. In essence, the confessions are enticed from the suspect with a promise of money and power in a criminal organization. While such inducements would render a confession to non-undercover police officers inadmissible at trial, courts have refused to apply the same rule to Mr. Big statements because the suspect does not believe himself to be speaking to a person in authority (see R. v. Grandinetti (2005), 191 C.C.C. (3d) 449 (S.C.C.)). Other court challenges to the admissibility of Mr. Big confessions have met a similar fate, as described in an article by Peter Schmidt and Richard Fowler entitled, "Role-Playing RCMP Style: General Overview of Defence Challenges to Mr. Big Confessions and Areas of Other Possible Challenge", presented at a Trial Lawyers Association of British Columbia Conference in September 2005.

One area of promise in attacking Mr. Big confessions lies in social science research regarding false confessions. Pioneered by psychologist Dr. Gisli Gudjonsson of King's College, London, the research was initially rejected by Canadian courts but is beginning to find some judicial acceptance as concrete evidence (often in the form of DNA results) that false confessions do in fact occur is coming to light.

In 2000, Dr. Gudjonsson testified in a Mr. Big case called R. v. Rose. The admissibility of his evidence was challenged by the Crown. The charges were stayed, however, before the court was required to make a ruling. Dr. Gudjonsson's book The Psychology of Interrogations and Confessions, 2003, contains a fascinating discussion of the Rose case, and the frailties of the confession, in Chapter 22.

Dr. Gudjonsson's latest foray in Canada concerns the Unger case mentioned in Shannon Kari's article. Unger is the first case in this country where a Mr. Big confession was presented in court. Mr. Unger was convicted in 1992. However, forensic evidence used by the prosecution has since been discredited, and there is now a concern that the confession may be false. In the fall of 2005 Dr. Gudjonsson was retained by the Department of Justice to review the confession, assess Mr. Unger and offer his opinion on the matter. He has yet to report his findings.

In 2004, a B.C. court for the first time admitted expert evidence on false confessions in a Mr. Big case called R. v. Moore (unreported, May 14, 2004, Prince Rupert, decision of Halfyard J.). The Moore judgment may mark a turning point in the law on false confessions, and provides ammunition, and hope, for defence counsel seeking to attack the reliability of a Mr. Big confession.

To read Shannon Kari's article click here. Unfortunately, the link will only work if you are an electronic subscriber to the Globe and Mail .

To read the Grandinetti case click here.

For copies of the Moore case, please contact David Layton.