Mr. Big Operation Scripts Post-Hart

Abstract

Mr. Big operations (“MBOs”) are a Canadian invention, a version of which dates back over 120 years, with its modern use beginning in the 1990s. However, it was not until 2014, with the Hart decision, that the Supreme Court of Canada found occasion to subject MBOs to regulation. The question this paper endeavours to undertake is whether the court’s new analytical framework, which treats MBO confessions as presumptively inadmissible, has affected the scripting of MBOs – or if there remains a proliferation of the same basic plot points across multiple scenarios. In analyzing the 14 cases in which the MBO took place post-Hart, four of which in-depth – Buckley, Dauphinais, Rockey, and Caissie – the author concludes that Hart has had no meaningful impact on MBO scripting, apart from superficial changes regarding the criminality of the fictional organization the suspect is recruited into, and the level of direct violence utilized. The coercive, manipulative tactics used by MBOs which can induce false confessions remain embedded within the technique. MBOs by their very nature remain problematic, and Hart’s legal tinkering has not defused their potential for wrongful convictions and abuse of process. However, despite the merits of MBO abolition, this is unlikely to occur anytime soon. As such, the author proposes several interim MBO reforms: (1) greater external oversight; (2) re-invigorating the abuse of process analysis; and (3) treating MBOs as akin to in-person interrogations.