It's known as the Mr. Big routine. Role-playing cops acting as gangsters get a suspect to confess to some serious crime, usually a murder, in front of the boss - supposedly to gain the Big Man's trust.
Cops have gone to extreme lengths staging elaborate shootouts and even murders to get suspects to confess to crimes.
But the courts and lawmakers appear indifferent to the potential hazards of Mr. Big stings. They view the police charade as ingenious, not insidious, so no action has been taken to ensure that there is accountability in the execution of undercover operations. Defence lawyers have often argued that the Mr. Big technique violates a suspect's contitutional right to silence, but the courts have routinely dismissed this claim.
Contrary to popular belief, the celebrated right to silence, intoned like a mantra on American TV cop shows, is little more than window dressing. Our laws allow police to exert enormous pressure and employ tricks and subterfuge to squeeze something, anything out of suspects who are trying to remain silent.
Arguing that the Mr. Big technique violates the right to silence misses the point anyway. The real problem with these undercover operations is the indiscriminate and pernicious way in which they're conducted.
In theory, the technique of cops posing as criminals to secure a confession is a sensible and rational approach to solving a crime. But as the theatrical scenarios become more clever and elaborate, the risks of wrongful conviction are magnified.
The police often get carried away in the drama of the moment, and despite many brilliant performances, the confessions given to impress Mr. Big are inherently unreliable.
Take the case of Clayton George Mentuck, who in 2000 was acquitted at his appeal trial for murder because the judge concluded the confession he provided to Mr. Big was unreliable.
Mentuck was a suspect in the unsolved killing of a young girl. The police paid him money to perform small tasks for their bogus criminal organization with the promise of riches upon joining the gang.
Mr. Big told Mentuck he would clear up his legal problems with the ongoing murder investigation by having a member of the gang who was dying of cancer take the rap. Mr. Big said he'd need as many details as possible about the killing before he could send his man to the police to confess to the crime. The boss also indicated that he would sue the government for harassment and false arrest on behalf of Mentuck and then pay Mentuck $85,000 out of the expected proceeds of the lawsuit.
There is little surprise that the judge would not convict when a confession is extracted in these circumstances. But it hasn't stopped the cops from concocting even more elaborate schemes.
In 2002, Jason Dix was a suspect in Operation Kabaya, a Mr. Big sting in Alberta in which more than 50 officers were employed to construct scenarios to fool Dix into joining their gang. At one point, the police had Dix count $1 million in cold cash to impress upon Dix the riches that awaited him.
The scenario culminated with the "Whack at Yaak," where officers staged a homicide at a motor home in Yaak, British Columbia. Dix drove the officers to a supposed drug deal at the motor home. While Dix waited in the car, the cops started firing a shotgun in the motor home and continued shooting while running from it. The cops told Dix that the drug deal went bust and that the trailer's occupant had been shot and killed.
While discussing how to dispose of the body, the cops told Dix that because he now had information that could be used against the gang, it was imperative, in order to gain Mr. Big 's trust, that he confess to the murder he was suspected of committing.
Dix remained resolute. He never admitted his guilt to the phony gang, though it's easy to see how someone of less resolve might falsely confess to a crime in these circumstances. He was eventually awarded hundreds of thousands of dollars in damages for a multitude of Charter violations.
Undercover officers engaged in a Mr. Big operation have no script or director to guide them. Most of what is done is improvised.
There must be some form of control to ensure that innocent suspects do not get caught up in the theatrical frenzy. The police are required to obtain a search warrant from a judge before entering someone's home for a few hours.
It stands to reason that they should obtain some similar form of authorization when they wish to enter someone's life for months or years by befriending them, abusing their trust and offering them power and wealth.
In 1901, Donald Todd was convicted for a murder in Winnipeg after a Mr. Big operation. The court noted then that the "means employed... to obtain the confession were contemptible." Still, the court had no qualms about convicting.
More than 100 years later, the same "contemptible" technique still evades all form of official control.