The Mr. Big Sting and Variations On It


The Classic Mr. Big Sting

The classic “Mr. Big” operation involves undercover officers befriending the suspect as members of a criminal organization run by their boss, the so-called Mr. Big.

The suspect is recruited to work for the organization, and to carry out simple, apparently illegal tasks. He is included in the lavish lifestyle and camaraderie of the group, but is told that his ultimate acceptance depends on Mr. Big, and that honesty, trust and loyalty are required. The organization operates within an aura of violence, perpetrated against any member who betrays the trust. The operation culminates with Mr. Big demanding that the suspect confess to a crime he has learned the individual is suspected of: the confession will be proof of the suspect’s trustworthiness.

The Problem with Mr. Big Confessions

There are at least three concerns regarding these types of confessions:

 1) they can result in unreliable confessions obtained by threats and inducements;

2) the prejudicial effect of a Mr. Big confession because the context shows the suspect as an unsavoury character who wants to participate in a criminal organization, leading to the potential for moral and reasoning prejudice on the part of the jury;

 3) the risk of police misconduct in their pursuit of a confession.

In light of these concerns, Mr. Big confessions are presumptively inadmissible.

The doctrinal framework for assessing the admissibility of Mr. Big confessions is set out in the leading case of R. v. Hart, 2014 SCC 52.

Police Schemes That Don’t Fit the Classic Mr. Big Scenario

In R. v. Kelly, 2017 ONCA 621, the Court of Appeal for Ontario considered whether a police sting operation that didn’t fit the classic Mr. Big operation fell within the ambit of the legal doctrine set out in R. v. Hart.

The police scheme in that case involved the inducement of a large financial payout based on a fraud on an insurance company.  While a confession was obtained, the sting lacked the usual features of a Mr. Big operation in that there was no criminal organization, no Mr. Big, no violent culture, and no friendship and camaraderie.

The Court had this to say:

“The relevant question is: is there in this police sting scheme sufficient potential for the three dangers:

·         unreliable confessions,

·         prejudicial effect of the evidence of the appellant’s participation in the scheme, and

·         potential for police misconduct

to warrant the application of the new approach from Hart?”

It serves little purpose to conduct an analytical exercise of differentiating and distinguishing variations of police schemes, when the same concerns are raised, even though those concerns may be attenuated.

R. v. Kelly, 2017 ONCA 621, at para. 36.

Stuart O'Connell, O'Connell Law Group, www.leadersinlaw.ca


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