Mr. Big police undercover operations involve the police posing as criminals in order to obtain a confession from a suspect. The suspect is usually enticed to confess by inducements ("if you own up to some crimes we'll let you into our lucrative gang") and/or threats ("you better come clean with us because the our boss doesn't take kindly to liars"). Invariably these operations are run in murder cases where the police otherwise lack sufficient evidence to lay a charge. The stakes in terms of convicting the guilty or framing up the innocent are extraordinarily high.
We've discussed Mr. Big cases in past postings. Defence counsel have taken many apporaches in trying to exclude Mr. Big confessions. None have succeeded. The latest failed attempt comes in the case of R. v. Osmar, a judgment of the Ontario Court of Appeal.
Recognizing that he had an uphill battle (Rosenberg J.A. used the term "insurmountable"), defence counsel made some innovative arguments in favour of expanding the right to silence (RTS) to prevent the Mr. Big technique. Among other things, he relied on a somewhat offhand comment made by the SCC in Turcotte to the effect that the RTS might possibly apply even where the suspect is not detained. I've always found this comment intriguing and had wondered whether it could be used as a wedge to attack Mr. Big confessions, which almost by definition are made where the suspect is not detained. Apparently not, says Osmar. Justice Rosenberg considered himself bound by express obiter to the contrary in Herbert (not a Mr. Big case) and the ratio of the very brief SCC endorsement in McIntrye (another Mr. Big case).
Another point of interest in Osmar is the decision to uphold the trial judge's exclusion of expert evidence pertaining to the existence of and factors that contribute to false confessions. Trial counsel had engaged a big fish to testify on the point, leading expert Dr. Richard Ofshe from the United States, but to no avail. What is interesting about the Court of Appeal's approach on this point is that the possibility of calling such a witness in certain circumstances is not rejected. The Court's reasons can be read to provide guidance that will allow defence counsel to better focus applications to call expert evidence in the future. The door remains open on this issue, and we may yet see Canada follow the U.K. in routinely allowing expert evidence of false confessions.
