The difficult question of how to balance police independence with accountability and oversight has received considerable attention recently, most often following events wherein it was feared that government exerted too much control over police operations. This is especially apparent in the context of public protests, such as the 1997 APEC Summit in Vancouver and the Ipperwash incident in Ontario (see Stenning 2000; Roach 2007; Sossin 2007). Other events, such as the death of Robert Dziekanski at the Vancouver airport and the subsequent Braidwood Inquiry into the actions of the Royal Canadian Mounted Police (RCMP) officers on the scene or police actions at the 2010 G20 Summit in Toronto, have led to calls for greater accountability for police brutality. However, in Canada and elsewhere, less attention has been paid to the proper balance between independence and accountability in the context of more general police policies surrounding the investigation of crime. This is particularly true of undercover of operations, perhaps because of their inherently secretive nature (Joh 2009).
This paper explores the use of the RCMP's "Mr. Big" undercover tactic as a case study of police independence and accountability in the context of "routine" policing, as opposed to the policing of highly public events and protests. This distinction is important, as routine policing is not subject to the same level of media commentary and scrutiny, compared to high-profile protest policing such as that which occurred at the G20 Summit.
Developed to elicit confessions, the Mr. Big technique involves the use of several undercover officers who pose as high-ranking members of a criminal organization. These officers befriend their target (the suspect in a murder investigation), gaining their trust through cash, women and alcohol. The officers then involve their targets in fake criminal acts that give the appearance of physical assaults, money laundering, drug trafficking and mafia-style executions, in order to demonstrate the power of the criminal organization. Once trust is solidified between the target and the undercover officers, the target is introduced to the crime boss, Mr. Big, who demands that the suspect admit to the crime (usually murder) to establish credibility and to protect the organization against future surprises. Legal, financial or other benefits are promised by the organization in return (McIntyre 2006). If the target does not comply, he or she will endure the wrath of Mr. Big. The technique has been used hundreds of times so far at significant cost. The RCMP argues that the technique is very successful. (1) Defence attorneys, civil rights groups and those advocating on behalf of the wrongfully convicted, however, contend that post-offence undercover tactics can induce innocent people to falsely confess to crimes.
Although police forces in Australia have recently asked the RCMP for advice on implementing this kind of investigative technique, several other countries, such as England, the United States and Germany, essentially prohibit the use of Mr. Big-style tactics. The existence of rules that discourage this particular kind of policing operation in other countries raises empirical and theoretical questions. We became interested in whether the RCMP's tactic is subject to any oversight by judicial, executive or legislative bodies in Canada. This empirical question is closely related to theoretical and normative questions regarding the existence of oversight and accountability mechanisms and the extent of such safeguards in this type of undercover policing technique. Would it be best to leave operational decisions to the police or is it legitimate for other state actors to set general policy about such police operations given their nature and potential consequences? In examining these questions, this article hopes to contribute to a growing comparative literature on undercover operations, which is moving away from a narrow interest in the legal liability of the investigators and the accused to a concern for regulating criminal procedure undergirded by "questions about institutional competence, compatibility with constitutional values, and the relative merits of different mechanisms for oversight and control" (Ross 2008b: 242).
The next section of this article reviews various theories of police independence and accountability to help address such questions. The article follows that discussion with an investigation of the degree to which the executive, courts, civilian complaint commissions and the legislative branch have paid attention to the use of Mr. Big. (2) Drawing on theoretical insights of police independence and accountability as well as comparative examples, the article then argues that the technique need not be banned, but its use requires stronger accountability and oversight. In keeping with the theory that webs of police oversight and accountability are preferable, the article argues that various state actors need to be involved in regulating Mr. Big and investigative techniques more generally. The final section of the article uses the Mr. Big case study to discuss more generally the role of police, government and other state or quasi-state actors (such as civilian complaints commissions) in shaping police operations policies without interfering in police operations. Such a discussion is essential in the context of undercover operations, which are secretive and often used for investigating serious crimes wherein the police face significant pressure to achieve results.
Balancing accountability and independence
Governance of the police in a liberal-democratic state is a difficult task as numerous actors are involved and various competing values are at stake. One source of tension revolves around the need to balance effective and efficient policing against democratic ideals, the rule of law, constitutional rights and values (Milner 1971; Roebuck and Barker 1974; Jones, Newburn and Smith 1996; Sklansky 2005). Within this dynamic lurks the issue of how responsibility should be shared between the courts and Parliament in creating rules to govern police investigations. The recent debate over whether courts or Parliament are best situated and most legitimately able to define police powers of "investigative detention" exemplifies this question (Stribopoulos 2005).
A parallel tension in governing the police arises from the desire for the police to be both independent of government, so that they do not become a tool of political actors (such as the prime minister, premier, city council or a political party), and accountable to government for their actions, as representatives of democratically elected governments. Police-executive relationships are a focal point for managing this tension.
Roach (2007) has identified four different models of police-executive relations in Canada. On one end of the scale is government policing. The RCMP Act technically enshrines this model: "The Governor in Council may appoint an officer, to be known as the Commissioner of the Royal Canadian Mounted Police, who under the direction of the Minister, has the control and management of the Force and all matters connected therewith" (R.S., 1985, c. R-10, s.5, emphasis added). At the other end of the scale is complete police independence. However, in reality, the two models in the middle of the continuum--core police independence and democratic policing--hold the greatest implications for everyday police administration and are the ones that best reflect the actual relationship between the RCMP and the minister, despite the RCMP Act noted above. The core model recognizes that the police should be free from political interference to exercise their law enforcement and criminal investigation powers, but also requires police to answer to the relevant cabinet minister (Roach 2007: 51). This is the view of policing that the Supreme Court of Canada supported in R v. Campbell and Shirose,  1 S.C.R. 565 The democratic policing framework is aligned with the core model insofar as it supports independence in the core functions of police work. However, this model allows for more political influence, as ministers may discuss ongoing criminal investigations if there are policy implications (53).
Although Sossin (2007) finds Roach's models of police independence helpful, he prefers a less mechanistic approach and instead opts for a vision of apolitical and autonomous policing. He explains that police should strive to be apolitical, in the sense of being removed from partisan decisions and partisan politics, and autonomous, implying a functional separation from the government in terms of administrative practices and relationships (Sossin 2007: 98). Although a clear separation between policy and enforcement is ideal, this separation is not always easy to operationalize (99). Sossin, for example, asks whether the government creation of a "guns and gangs" task force or "zero tolerance" charging policies (such as in the context of domestic violence) are inappropriate or not. To help guide such decisions, Sossin suggests that three questions should be raised: "1) Does the executive have a legitimate public interest to advance; 2) would pursuing the goal respect the functional autonomy and apolitical status of the police; and 3) is there an overriding interest, either of individual rights or public safety, which is inconsistent with political involvement?" (2007: 101) This article will apply these questions to government guidelines about the use of Mr. Big.
While Sossin argues that police can only be accountable to the executive, he further argues that police should be enmeshed in various webs of oversight provided by courts, legislatures, complaints commissions, police boards, public inquires and different orders of government in the context of federalism. Others, such as Martin and Braithwaite, have emphasized a similar need for "multiple and overlapping" sites of oversight that move beyond the executive-police relationship (Braithwaite 1997: 333; Martin 2007: 288). These various channels of dependence and accountability include "oversight bodies, civil society, loosely organized community groups, a free press, the judiciary and, at the highest level, the executive branch of the state structure" (Martin 2007: 289). (3) The advantage to multiple and overlapping avenues of oversight is that the police are not beholden to a single group, which could have implications for independence and autonomy, as a single actor may attempt to impose direct control on the police organization. Indeed, multiple accountability sites create a situation in which the various actors involved in ensuring oversight can check each other's behaviour in order to ensure that no single actor dominates, while also checking the behaviour of the police organization. Moreover, multiple actors foster a more democratic process, with multiple access points creating the possibility for transparency and public involvement.
Of course, several of the studies above were written against the backdrop of incidents in which there was concern about too much political input into policing, such as the reports written for the Ipperwash Inquiry. There are, however, a number of what Beare (2007) has termed "zones of indifference" when it comes to political concern with policing. Joh (2009) has argued that undercover police operations, at least in the U.S. context, fit this description, as there is little political oversight or accountability given to their use. This is troubling for a number of reasons. First, criminologists have determined that there can be rather direct political ramifications of "ordinary" policing, such as when police investigate prostitution or other crimes in an effort to gather intelligence on individuals with political or social profiles (Brodeur 1983; Beare 2007). Second, these scholars have also pointed out that the very act of policing morality offences, such as prostitution or gambling, can have political overtones. Third, even if "ordinary" investigations are not used to target particular individuals or classes/groups of individuals (particularly politicians) or to enforce a general vision of "morality," how such investigations are conducted matters in several ways. Investigations reflect the values associated with the administration of justice in a community; they have important resource implications, especially for more elaborate operations; and, finally, their use can have important ramifications for both the participating and targeted individuals.
There is nothing to suggest that the Mr. Big sting operation is intended to expand the surveillance reach of the police, nor does if appear to be aimed at enforcing a particular societal vision or targeted against a particular class or group of people. The sting operations are discrete and have mostly been directed against individuals suspected of committing a serious crime. However, for the reasons suggested above, the stings deserve scrutiny as they represent a part of Canada's criminal justice system and its values, are costly to operate, and have the potential to lead to wrongful convictions. "Mr. Big" is not an unusual practice; if is estimated that the technique has been used between 180 to 350 times (Hutchinson 2007; Canadian Broadcasting Corporation 2008; Canada, Royal Canadian Mounted Police 2011).
In the following section, the article examines the degree to which state and quasi-state actors monitor Mr. Big operations.
Accountability and oversight of Mr. Big: empirical assessment
As noted above, the RCMP Act vests control over the RCMP in the minister of public safety. Agreements made between the RCMP and the provinces typically keep administrative control with "Canada," but require that the RCMP, when acting as the provincial police service, follow the direction of the minister, who sets objectives, priorities, goals and consults with the provincial minister over operational status (see, for example, the B.C. Provincial Police Service Agreement 1992). Such arrangements suggest that the most direct line of accountability for RCMP operations would be to the federal minister of public safety and then to the corresponding provincial minister.
An examination of the public information available on the website of Public Safety Canada yielded no information discussing Mr. Big specifically. An Access to Information request was filed for documents related to the Mr. Big undercover operations in terms of "their costs, rates of success, legal parameters, officer training, supervision of the operation, approval processes for the operation and so on." Tellingly, Public Safety Canada first responded by informing us that they were transferring our request to the RCMP. After we informed the department that we had also sent the request to the RCMP and asked for a search of its records, an official responded that the only documents that could be found relating to Mr. Big were public enquiries about Mr. Big and responses from the "ministerial correspondence unit" (which would be mostly redacted because they contained personal information).
Likewise, BoC.'s Ministry of Public Safety and Solicitor General informed us that they had no records pertinent to our request and suggested that we contact the RCMP directly. B.C. was selected as that province has featured numerous Mr. Big operations, including several high profile cases.
The other executive departments most likely to have information about Mr. Big at the federal or provincial level are ministries of justice (or attorneys general). Justice Canada reported that it could not find any initial documents related to our Access to Information request. Similarly, the B.C. Ministry of Justice indicated that it had no records pertaining to the Mr. Big scheme. We also searched the websites of Justice Canada and the ministries of justice or the attorney general in all of the provinces. The only public information about Mr. Big available on the Justice Canada website was a statement from the minister regarding the reopening of the Kyle Unger case, in which Minister Nicholson stated, "I am satisfied there is a reasonable basis to conclude that a miscarriage of justice likely occurred in Mr. Unger's 1992 conviction" (Canada, Department of Justice 2009). However the press release made no mention of the methods used to secure Unger's conviction (i.e., the Mr. Big sting); rather, it provided commentary on the now faulty DNA evidence used to convict Unger, with no mention of the confession evidence. As a result, there was no real acknowledgement of the Mr. Big tactic. Unger was discussed once again by the Department of Justice in its 2009 annual report, which highlighted the remedies taken by the minister to reopen convictions, again with no mention of Mr. Big or the RCMP investigation. Justice Canada reported that it could not find any internal documents related to our Access to Information request.
The Alberta Attorney General website makes mention of two Mr. Big cases. First, the Alberta Justice and Alberta Solicitor General newsletter provides an overview of R v. Wytyshyn,  A.J. No. 1389 and the arguments made by the defence against the confession provided by the accused to the undercover police officers. According to the newsletter, the accused argued that his confession should be inadmissible due to unreliability, as he had motive to deceive the undercover police officers because he wanted to impress them. He added, moreover, that his confession was further induced by the assistance offered by the undercover police officers in framing another individual for the crime (Bilodeau 2003).
The Government of Alberta recognized the issues that can result from Mr. Big cases in its press release regarding the dismissal of charges against Jason Dix (who subsequently sued successfully for malicious prosecution). However, the statement did not acknowledge the myriad problems that were associated with the Dix investigation. It simply stated that there was no reasonable prospect of conviction (Tadman 1998). Although the Department of Justice did not publicly mention the controversial police investigation of Dix, the fact that the Crown was willing to intervene and halt the prosecution illustrates (arguably) one instance of success for this method of governmental oversight. That being said, the case of Jason Dix is the only Mr. Big case in the present study in which the charges were dropped and a subsequent successful malicious prosecution/investigation suit ensued.
The only other website that discusses a Mr. Big case is that of the Manitoba attorney general. In a press release responding to the termination of Crown proceedings against Kyle Unger, the attorney general explained that the DNA evidence used to help convict Unger was scientifically acceptable at the time of the trial but has now been debunked (Manitoba, Attorney General 2009). However, the press release explained that compensation for Unger was inappropriate because it was Unger's confession to the undercover police officers that caused his case to proceed. This suggests that Manitoba's attorney general at least tacitly approves of the Mr. Big scheme.
Courts in both England and the United States have been active in curtailing Mr. Big-like schemes. In Canada, courts have long had a role in delineating the parameters of police powers, but this role has expanded considerably since the introduction of the Charter of Rights and Freedoms in 1982. The following section assesses how Canadian courts have reacted to the Mr. Big scheme.
The present analysis compiled 153 Mr. Big cases, consisting of trials (including voir dires) and appeals from accused persons on various issues arising from the police investigation, between 1987 and 2011. (4) In only 13 of the 153 cases that went to trial were the accused either acquitted or successful in having evidence excluded. In other words, the investigation methods of the police and the evidence gathered were most often deemed admissible, with a success rate of 91.5 per cent.
Of the 140 other cases that were unsuccessful at trial or on appeal, several recurring arguments and issues were raised by the accused. These consisted of the right to remain silent (section seven of the Charter), the persons in authority doctrine, and abuse of process or "dirty tricks" by the police. Only arguments regarding the right to remain silent were received with limited success. (5) Table 1 summarizes the success rates of each of these key legal arguments.
Right to remain silent
In R v. Hebert,  2 S.C.R. 151, the court found that section seven of the Charter encompasses the right to silence prior to trial. A unanimous court found that this right applies only after detention, as prior to detention the individual is not in the control of the state. Thus, undercover operations do not require protection from the state as the individual being targeted is not yet detained, and the coercive power of the state is not engaged. This precedent appears to support the notion that the right to silence does not extend to undercover operations, which would include Mr. Big stings. For example, in R v. McIntyre,  N.B.J. No 293, the appellant was initially detained by the police in relation to a murder but was released due to lack of evidence. Upon his release, the police engaged an undercover sting operation. However, during his initial detention, McIntyre asserted his right to silence. The majority of the New Brunswick Court of Appeal found that McIntyre was not detained during the undercover operation, and because he was free to leave at any time, the confession obtained was voluntary and not in violation of his right to silence.
Persons in authority doctrine
In seventeen of the cases examined, the issue of whether undercover officers were considered "persons in authority" was questioned on appeal. This distinction is important--if the person who receives a confession is a person in authority, then the reliability and voluntariness of the statement is suspect. The statement cannot be entered into evidence unless the prosecution can satisfy the court that the statement was made freely and voluntarily (R v. Hodgson,  2 S.C.R. 449). While uniformed police officers are automatically considered persons in authority, all other individuals, including undercover police officers, are subject to the analysis articulated by the Supreme Court in Hodgson. The objective of this rule is twofold: first, to ensure that convictions are not based on unreliable confessions; second, to deter the use of coercive tactics (Hodgson: para 16).
In Hodgson, the court defined persons in authority as any person who is formally engaged in the arrest, detention, prosecution or examination of the accused. This test is largely subjective, as the person or persons must be believed to be in authority from the viewpoint of the person confessing, insofar as the individual confessing experiences "the fear of reprisal or hope of leniency that persons in authority may hold out ..." (Hodgson: para 24). In relation to Mr. Big schemes, many appellants believe that the leader of the criminal organization (the so-called Mr. Big) holds power over them and has the ability to influence the proceedings.
For example, in R v. Grandinetti,  1 S.C.R. 27, the appellant argued that he was made to believe that members of the criminal organization had corrupt police contacts who could shift the investigation away from him and influence the prosecution, thus making them, in his mind, persons in authority. The Supreme Court, however, did not agree with this position, stating that the accused clearly believed that he was dealing with members of a criminal organization and not the police. Furthermore, the court stipulated that the individuals have to be seen to be allied with the state's interests in order to be considered persons in authority, rather than working against the interests of the state, such as corrupt police officers.
In many of the cases, the appellants asked the courts to expand the persons in authority doctrine to cover the Mr. Big scheme based on the amount of power that is supposedly held by the Mr. Big character and the belief that Mr. Big is or will be an employer. For example in Burns v. United States,  1 S.C.R. 283, the appellants argued that the rule be expanded to include situations in which "... a person in authority is any person to whom the accused has confessed, who the accused truly believes has some degree of power over him ... who the accused believes could either make good his promise or carry out his threat" (para 7). However, throughout the cases examined the courts have rejected this position, reiterating the fact that the persons in authority must be working in collaboration with the authorities, while those who commit crimes (or at least make the confessor believe they committed crimes) simply cannot be considered to be working with or for the state and its prosecution of crime. In all of the cases in which the appellant made an argument against the persons in authority doctrine, the court refused to broaden the definition of a person in authority and instead followed the narrow precedent. In ten of the cases, the courts suggested that such change must come from elected officials rather than the bench because of its sharp departure from binding precedent.
Abuse of process and dirty tricks
Thirteen of the accused argued that the behaviour of the undercover officers in Mr. Big scenarios amounted to an abuse of power, which would shock the community and severely damage the reputation of the police and the public's confidence in the criminal justice system. For example, in R v. Unger,  M.J. No. 363, the appellant contended that the conduct of the undercover officers encouraged a confession with no concern for the validity of the statements (para 55). Appellants contested that the ends (a conviction) simply did not justify the means (the methods of investigation). When considering such arguments, the court is required to acknowledge the precedent set by the Supreme Court in R v. Mack,  2 S.C.R. 903 in that "competing social interest is in the repression of criminal activity ..." while at the same time upholding the rights of the accused (para. 76). The threshold to determine an abuse of process by the police is quite high. Indeed, the courts will only condemn the behaviour of the police in the "clearest of cases" when that behaviour so gravely offends that it is detrimental to the administration of justice and thus warrants intervention from the bench (Brauti and Welsch 1999: 69-70). This results in an extremely restrictive test, which places a heavy onus on the accused, creating a substantial hurdle for those who argue this issue upon appeal.
In all instances when this argument was made, the court reaffirmed its position that an informed public would not be shocked by the conduct of law enforcement in Mr. Big cases. As Justice Hewak stated in Unger:
I find it difficult to accept that a reasonable dispassionate person, aware of the difficulties in the investigation of the case, would consider the undercover operation and use of tricks by the officers, as being unfair or so unacceptable, indecent, and outrageous, that the evidence that was derived from that operation, if admitted.., could bring the administration of justice into disrepute (para 70).
This sentiment is echoed throughout the Mr. Big cases. Moreover, the courts have explained that, because the public would not be shocked by the behaviour of law enforcement officers in Mr. Big stings, the courts cannot protect those individuals who succumb to the tactics of the police, notwithstanding legitimate inequities in the police--suspect relationship (as in R v. Evans,  B.C.J. No. 3141). The British Columbia Court of Appeal articulates this position effectively in Roberts, "[a]bsent 'dirty tricks' the courts should hot set themselves up as the arbiters of good taste or the preferred methods of investigation ... the courts should not be so indulgent as to preserve the accused from himself and his own untrammelled tongue ..." (R v. Roberts,  B.C.J. No. 1544: para. 14).
Mr. Big cases in which the accused was successful
Although cases in which the accused successfully argued against Mr. Big are infrequent, an examination of one such case is useful. In R v. Mentuck  M.J. No. 69, the Manitoba Court of the Queen's Bench decided to acquit the accused because it found that, due to the persuasiveness of the undercover agents, the "... inducement for him to admit the offence [was] positively overwhelming." Only positive incentives for Mentuck to admit to the crime were presented; negative consequences would result if he continued to deny involvement in the murder (para. 96). In addition, the undercover officers paid Mentuck, an individual from a disadvantaged background, more money to commit "crimes" than he had ever seen in his life. As a result, the court found that this level of enticement to confess rendered Mentuck's confession too unreliable to be used as evidence of guilt.
An examination of Hansard, which contains all statements made in Parliament, yields no government statements pertaining to or conveying acknowledgement of the Mr. Big investigation tactic. Search terms included: undercover policing, undercover RCMP, Mr. Big, undercover murder investigation, RCMP tricks/trickery, police tricks/trickery, RCMP confession, RCMP sting, as well as specific terms, such as Mayerthorpe, Mentuck, Dix, Unger and other cases that garnered significant public interest.
The central independent oversight body for the RCMP is the Commission for Public Complaints against the RCMP (CPC). Created by Parliament in 1988, the mandate of the CPC, outlined in Part VII of the RCMP Act, is to receive complaints from the public regarding the RCMP (both on an organizational and individual member scale), conduct reviews and investigations of the complaints, hold hearings based on the conflicts, and issue reports and recommendations (Canada, CPC 2010). Yet, the ability of the CPC to monitor the RCMP effectively was compromised in a number of ways, including not being given the authority to review the practices, policies and guidelines of the RCMP. Not surprisingly, perhaps, we found no CPC documentation relating to the Mr. Big scheme.
Recently, however, the Minister of Public Safety introduced Bill C-38 (An Act to amend the Royal Canadian Mounted Police Act and to Make Consequential Amendments to other Acts, 40th Parliament, 3rd Session, 2010), creating a new oversight body for the RCMP called the Royal Canadian Mounted Police Review and Complaints Commission. The proposed commission would have the power to summon witnesses, compel disclosure and investigate any matter relating to the RCMP (Crawford 2010).
Prior to the bill's demise when the 2011 federal election was called, the proposal had received attention from the critics of Mr. Big, specifically Tiffany Burns, sister of Sebastian Burns (a man convicted via a Mr. Big sting) and director of "Mr. Big: A Documentary." Burns urges the commission (when established) to make its first duty the investigation of Mr. Big operations by the RCMP; she has yet to receive a response (CanWest News Services 2010).
With some exceptions in certain court cases, there appears to be little interest among state or quasi-state actors to provide accountability and oversight for undercover operations like the Mr. Big tactic. This section reviews the RCMP's own administrative protocols and statements concerning the Mr. Big scheme. An Access to Information request was filed to inquire into the process for authorizing such stings, the average cost of an operation, and any training associated with it. The RCMP response noted that it was "difficult to predict," especially given the various human resources involved, but estimated that the stings cost approximately $155,000 per operation. The Access to Information request also yielded portions of the RCMP operation manual pertaining to undercover operations. Among other things, the manual states that entrapment is prohibited and that if officers plan on committing illegal acts they need to be authorized to do so by the minister (of public safety) or a "senior official" within the RCMP to whom the minister has delegated authority as specified in s.25 of the Criminal Code. However, because the crimes associated with the Mr. Big stings are "fake," they are not considered to be a form of entrapment or illegal activity. (6) Therefore, it would appear that only the ordinary rules for undercover operations contained in the RCMP manual (chain of command issues, prohibitions against speaking to the media, etc.) would apply to Mr. Big operations.
The paucity of information gained via information requests led us to look to publicly available information from the RCMP on Mr. Big. The British Columbia RCMP website provides an explanation of the Mr. Big technique and confirms that such operations are lawful, that the objective of the investigations is to secure the truth, and that officers are highly trained in techniques to determine the reliability of a confession (Canada, Royal Canadian Mounted Police: British Columbia 2011). This web page conveys to readers that the Mr. Big technique is a completely reliable and non-controversial investigation tactic. For example, the web page claims that over 90 per cent of British Columbia poll respondents approved of the tactic; unfortunately, though, no other information pertaining to the survey is provided.
Discussion and policy recommendations
The preceding analysis indicates that, with the exception of certain judicial decisions, the RCMP's use of the Mr. Big scheme is subject to little oversight. This raises several important questions. To what extent does the technique comport with the fundamental values that we hold in the administration of justice? On a practical level, do the results justify potential costs (both in resources and potential for wrongful convictions)? If this kind of sting operation should be regulated, how should it be done and by which actors? The next section analyses these questions with reference to how the Mr. Big technique would be viewed in other jurisdictions.
The Australian High Court has accepted Canada's Mr. Big tactic as a legitimate method to procure a confession. The Australian court has held that "law enforcement agencies owe it to the community they serve to pursue every available avenue towards bringing those responsible for crimes against the community to justice. The well-informed criminal who conceals himself in legal grey areas is a worthy target of a covert police investigation (emphasis added)" (Stuesser 2008: 1). Despite sharing many political and legal norms, Australia's position differs from that of England.
In England elected officials have taken an active role in defining the parameters of police power, most notably by Parliament's passing of the Police and Criminal Evidence Act (PACE) in 1984 (Police and Criminal Evidence Act 1984 c.60). One of the supplemental codes of practice to PACE is Code C, which governs detention and questioning of suspects. In R v. Christou and Wright,  1 Q.B. 979, the accused argued that police circumvented Code C by establishing a jewelry shop staffed with undercover officers in order to catch burglars in North London. Christou and Wright claimed that conversations with the undercover officers should have been excluded because cautions prior to the questioning had not been administered. The British Court of Appeal indicated that Code C was not applicable in this instance because the undercover officers had not been acting overtly as police officers. However, the court added that "... it would be wrong for police officers to adopt or use an undercover pose or disguise to enable themselves to ask questions about an offence uninhibited by the requirements of the Code [Police And Criminal Evidence Act 1984] and with the effect of circumventing it" (Christou and Wright: 991).
This caveat (used in subsequent cases), along with other factors that courts use in England to decide on whether to admit confessions to undercover officers, leads to the conclusion that the Crown would face considerable difficulty in trying to introduce confessions obtained using a Mr. Big-style investigation. The factors reviewed by British courts include whether the behaviour of the police was active or passive in the procurement of the confession or evidence; the degree of intrusiveness of the investigation; and the degree of inducement offered by the police (R v. Loosely  UKHL 53, para 12: 23-28). These factors are all present in typical Mr. Big investigations.
As is the case in England, Germany has legislative guidelines in place for appropriate police conduct when obtaining confessions during interrogation. In response to the Nazi era, the German Code of Criminal Procedure places particular emphasis on the concept of human autonomy, which creates comparatively high thresholds for "voluntariness" of confessions--for instance, the use of deception is prohibited during interrogations. Although these rules do not explicitly apply to undercover confessions, German courts have begun to apply them to backward-looking undercover operations. For example, a German appellate court suppressed a confession given to an undercover officer because the officer's specific and detailed questions made it a functional interrogation, and the quasi-custodial setting undermined the accused's autonomy (Ross 2008a: 467). Therefore, although the application of rules to obtain confessions in the undercover context remains somewhat ambiguous in Germany, it would appear that confessions obtained by Mr. Big tactics would face significant hurdles to admission.
Compared to England or Germany, limits on police power in the United States are found more in common law and constitutional doctrine than in legislative guidelines and their interpretation by courts. American courts have held that, although police are allowed to use trickery and deception during interrogations, involuntary confessions resulting from inducements or coercion are to be excluded from evidence. Various justifications underlie this doctrine, from a practical concern about reliability, to the principle that one should not be bound to inform on oneself (as reflected in constitutional rights), to deterring oppressive police tactics (Kassin et al 2010: 25). In Arizona v. Fuhninante,  499 U.S. 279 the U.S. Supreme Court ruled that Fulminante's confession to sexually assaulting and killing his stepdaughter to an FBI jailhouse informant was coerced. The FBI informant, who was posing as the leader of a criminal organization, had promised to protect Fulminante from the rough treatment he was receiving in prison as long as he told the informer about the crime. The court recognized the coercion even though the confession was not made to a traditional "person in authority." (7) Given that the police tactics in this case were analogous to those used in the Mr. Big technique, it would be difficult in the U.S. for prosecutors to introduce confessions obtained in such a manner.
Nowlin (2004) has argued that Canada should exclude confessions obtained through Mr. Big schemes as they are inherently unreliable, which would move us closer to the U.S. Others, such as Keenan and Brockman (2010), who have serious reservations about the moral aspects of the Mr. Big scheme (such as the discourse used during the stings, the psychological effects on the participants and the overall effects on the administration of justice and the rule of law), argue that if the Mr. Big tactic continues to be utilized, then legal reforms must be implemented to rein in the scheme, particularly in order to increase the reliability of the evidence.
Given the potential utility of the Mr. Big scheme and the fact that, despite the entrenchment of the Charter, opinion polls and judicial decisions point to relatively less emphasis on individual rights in Canada than in the U.S. (with its greater individual rights and general distrust of the state) or in Germany (with its emphasis on protecting human dignity and autonomy), (8) this article does not argue for prohibiting the technique altogether. Instead, the Mr. Big tactic should be "reined in" as Keenan and Brockman put it. Although we agree with several of their useful suggestions (incorporated below), we believe that an overly legalistic approach to the problem would lack sufficient accountability and oversight in the real world. Moreover, Keenan and Brockman's discussion does not consider questions of institutional capacity or issues concerning police governance in a liberal-democratic system.
Policy recommendations for Canada
This article makes the following recommendations:
1) Parliament should pass a series of legislative guidelines, modeled after those in England, to govern police investigations. Since the question of governing police undercover operations is becoming more problematic in various countries as the popularity of such police tactics continues to grow, these guidelines need to address undercover operations. Although the details of such guidelines would need to be carefully considered, we offer the following sample suggestions:
a) The RCMP needs prior approval from a provincial (or, in some cases, federal) Crown attorney to conduct a Mr. Big operation (and possibly other undercover schemes). The approval document would have to justify why this technique is needed (as compared to more "regular" tactics) and offer a general outline of the scenario.
b) Judges should be instructed to carefully consider the reliability of evidence derived from the Mr. Big scenario by examining a number of factors, such as the inducements or threats made by police informants or undercover officers and the presence of sufficient corroborating evidence (such as statements made by the accused unknown to the public and identification of where a body was left).
c) The undercover scenarios and the actions of undercover officers should balance the need for effective law enforcement and the safety of undercover officers with the goal of adhering to the rule of law and minimizing disrepute to the administration of justice through illegal or immoral behaviour on the part of undercover police.
d) Interactions between undercover police operatives and the suspect should be videotaped to the greatest extent possible.
2) Courts would interpret and apply the guidelines set out by Parliament on a case by case basis, particularly adopting the broader rules for consideration of reliability of the evidence. On a constitutional level, judges would continue to evaluate police powers (and rules about police power made by Parliament) against the Charter of Rights and Freedoms.
a) Courts should consider expanding the understanding of the "persons in authority" doctrine to include situations in which the individual who confesses may genuinely believe that the person with whom they are interacting holds significant power over them, even if this power is the product of police subterfuge.
3) A board of management should be created at the national level for the RCMP, as recommended in the Task Force on Governance and Cultural Change in the RCMP (Brown) Report (2007). The Board would provide important management oversight of human and financial resources, strategic planning and risk assessment. Although law enforcement operations would remain under the direct control of the Commissioner, the Board's overall management functions should include a review of undercover operations from various analytical perspectives including cost/benefit, human resources, and the effects on the administration of justice. This role would build on the original mandate delineated by the Brown Report (2007).
4) The RCMP employed in any province should provide the provincial solicitor general or minister of public safety with reports that evaluate the costs and benefits of undercover techniques such as Mr. Big and how they contribute more generally to achieving policy goals set by the provincial government.
5) The RCMP needs to improve training with respect to undercover operations, including emphasizing the importance of corroborating evidence and increasing awareness of the psychological dimensions involved in false confessions.
6) The new civilian complaints process needs greater legal and administrative tools not only to investigate complaints against individual officers, but also to examine policies and practices of the RCMP, including aspects related to undercover operations.
These recommendations involve many actors in the criminal justice system. Bronitt argues that "... judicial efforts to control covert policing through existing evidential and procedural rules have met with only limited success" (2004: 37); this article contends that, even if the courts on their own were to change legal doctrine, there would be insufficient oversight and accountability. Abuses of power and failings of duty can be most effectively remedied and prevented "when there are many actors with causative or preventative capability" (Braithwaite 1997: 334). Indeed, a multitude (or web) of actors to whom the police are answerable would prevent the dominance of any one actor, thus fostering independence. Martin contends that this web of accountability promotes both independence from undue political interference and accountability when the police structure is "receptive to checks on power from diverse sources" (2007: 288).
Central to this web of oversight and accountability is the role of elected legislators. Clearly, parliamentarians have not been eager to create guidelines for police investigations. This article argues, however, that, because police investigations are public policy matters with important implications for balancing values of community safety, justice and the rights of individuals (not to mention the fiscal implications associated with these policies), politicians responsible to the electorate have a duty to address these issues. Moreover, although courts frequently hear criminal cases, Parliament is better equipped to conduct ongoing research into these matters and to develop cost/benefit analyses of different policy options. Many criminal cases are plea bargained, and appeals are relatively infrequent, which means that judges, especially appellate judges, see only fragments of what happens "on the ground" in criminal justice. Courts also lack the ability to process information beyond those data allowed by legal rules and do not have the capacity to research the effects of their decisions systematically. As noted above, in Mr. Big cases, the courts repeatedly shy away from articulating the boundaries of undercover operations, preferring to defer to elected officials for the provision of new rules. The Manitoba Court of Appeal stated, for example, "Courts should hot be setting public policy on the parameters of undercover operations" (R v. Unger 1993: para 69).
Both Roach (2007) and Stenning (2000) contend that policy makers can legitimately set parameters on how the police generally investigate crime while simultaneously avoiding encroaching on the prerogative of the police to govern the specifics of investigations. The British and German examples show that, in creating these policy guidelines, elected politicians can respect and even promote individual rights and due process within the criminal justice system. Moreover, courts would play an important role in interpreting and applying the guidelines in individual cases and would still be expected to review guidelines against constitutional values articulated in the Charter of Rights and Freedoms. The relative insulation of courts from public opinion would help to protect individual rights. Should Parliament disagree with a judicial decision, it could respond with a revised law (or, theoretically, use the section 33 override clause in response to a Charter decision) to articulate its vision of balancing individual rights against the need for effective law enforcement. In other words, discourse can occur between Parliament and the courts, which hopefully would result in better decision making.
Although this article argues that Parliament should take a leadership role in governing undercover operations like Mn Big, it also suggests that, if Parliament does not take action, then the courts should initiate a dialogue by incrementally changing existing legal doctrine, such as altering the person in authority rule to recognize the power projected by the "leader" of a criminal organization.
Beyond Parliament and the courts, there is an important role for the executive in regulating police power. A Crown attorney (most often, this would be a provincial Crown as murder charges are prosecuted by provinces) needs to approve the Mr. Big operation. This approval requirement is within the proper boundaries of executive-police relationships. Returning to Sossin's criteria for autonomous and apolitical policing, it is clear that such an approval requirement would 1) further a legitimate public interest (by regulating undercover behaviour); 2a) respect the functional autonomy of the police (the RCMP would initiate the process and only have to demonstrate why they are using the tactic as opposed to other methods of investigations and that the plan follows legal parameters), and b) respect the apolitical status of the police (Crown attorneys would not be expected to make decisions based on politics. In the unlikely event that the potential target is a politically sensitive one, safeguards, such as constitutional conventions and the relationship between Crown counsel and the attorney general (see Rosenberg 2009), would help to remove the political calculus from the approval process); and, finally, 3) prevent extremely dangerous (even if rare) cases in which the police incessantly pursue a suspect with no solid evidence pointing to guilt, as in the case of Jason Dix (Dix v. Canada (Attorney General),  A.J. No. 1273). Given the serious crimes targeted by this scheme and the potential for wrongful convictions, there is an overriding interest in terms of public safety and individual rights to justify this involvement. Overall, requiring pre-authorization would be an incremental change to guidelines that exist in most jurisdictions requiring police consultation with Crowns in complex or high profile cases.
In addition to Crown approval, the executive should be better informed about the number of undercover operations, their costs and how they fit within overall criminal justice policy goals. For provinces that contract services from the RCMP, this would mean directing more information from the RCMP to the provincial solicitor general (or minister of community safety). This recommendation fits with the more general call for better cost reporting and evaluation of operations ruade in the report prepared for the Alberta government in 2007 by KPMG concerning the work of the RCMP in that province (Alberta, Ministry of Solicitor General and Public Security 2007). (9)
At the federal level, the Brown report (2007) offers compelling reasons for the creation of a board of management for the RCMP, which could help to initiate reforms to human resource and financial management practices. As a buffet between the RCMP and the minister, this body would be better positioned to monitor the direction of the RCMP more closely--something that the government may have been reluctant to do under the current system (Canada, Report of the Task Force on Governance and Cultural Change in the RCMP 2007).
The Mr. Big stings can be a large drain on human and financial resources--the Mayerthorpe investigation, for instance, involved several million dollars and required several hundred personnel (Cotter 2007; Libin 2009). As such, government departments should pay close attention to the value that they receive from such investments. As Warburton (2004: 140) argues, since some accountability can be achieved through competition for limited resources, the police must be seen to be attempting to fulfill the goals set forth by the government. Similarly, although Peter Russell acknowledges that the "scale and deployment" of police resources has been subject to little debate among elected politicians, he thinks that advocates for greater scrutiny of police resource deployment are on the right track. Proper oversight is a mechanism for democratic direction and accountability (Russell 1985: 291).
Setting aside financial and human resources implications, from a normative standpoint it would seem that the departments to which police are ultimately accountable should have a greater awareness of the techniques that the police use to achieve policy goals set by the government. This is particularly true of schemes like Mr. Big, which can help catch perpetrators of serious crimes, but also leave open the possibility of wrongful convictions and erosion of the values of the criminal justice system. As suggested above, there is a legitimate role for executive guidance in shaping overall police operations as long as careful thought is given to the nature of the police-executive relationship.
Finally, better police training and a bolstered public complaints commission are integral to the efficiency and accountability of undercover operations. Before concluding, however, it is important to highlight that the above recommendations are interconnected and would be self-reinforcing if implemented. For instance, research in England has suggested that better police interrogation techniques followed Parliament's enactment of guidelines governing police investigations (Kassin et al 2010). In addition, oversight mechanisms are built into various points in the process, from training to pre-authorization by Crowns, to review by judges and possible investigation by a civilian complaints commission after the fact.
Although this case study focussed on the RCMP's Mr. Big undercover technique, it concludes with a recommendation that some of the general principles for reform be applied more broadly to governing police in Canada. First, legislators should play a more active and leading role in defining police powers and their limits. Guidelines could be created for various contexts, such as investigatory detentions, "regular" investigations and detentions, undercover operations, national security-related operations and even public demonstration operations. Second, despite the fact that governments have recently been (correctly) admonished for unduly interfering in individual police operations, the executive should not be deterred from carefully monitoring and remaining accountable for how the police conduct investigations, or from determining whether goals are achieved with the efficient use of financial and human resources. Boards of management at both the federal and provincial levels (rather than just local police boards) may help to provide greater supervision while allaying fears of too much direct executive involvement. Third, police accountability and oversight need to be enmeshed within interconnected webs involving various actors at different stages of the process. How these webs operate will be contextual and will depend on how politically sensitive the police operation is; nevertheless, even undercover operations like Mr. Big, which are designed to catch "ordinary" murderers, have important public policy implications.
It is surprising and disappointing to learn just how much indifference there is to this kind of police operation in Canada among state or quasi-state actors. Media attention has also largely been lacking for Mr. Big schemes (Puddister and Riddell 2010). With the exception of a couple of documentaries and some critical newspaper commentary, most news stories about Mr. Big in the print media tend to be factual, without critical analysis, or offer support for the technique.
Political scientists and scholars of public policy and management have made some important contributions to policing in the context of national security, but more attention needs to be paid to "ordinary" policing, given the important questions that policing raises for the relationship between state and citizen, justice, independence and accountability, and the use of financial and human resources. However, we are hopeful of signs, such as this special edition of Canadian Public Administration, which suggest that this may be changing. We believe that policing and other aspects of criminal justice will be better for it.
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(1) The number of Mr. Big operations that have been implemented across Canada ranges from an estimated low of 180 to a high of 350 stings, with a success rate cited as low as seventy-five per cent to as high as ninety-five per cent (when success is determined by a conviction or the elimination of a suspect) (Hutchinson 2007; Canadian Broadcasting Corporation 2008; Royal Canadian Mounted Police 2011).
(2) As such, this article does not analyse the internal oversight mechanisms that exist in all police forces, such as the reporting to superior officers.
(3) We recognize that there is also value in having non-state actors, primarily the media, help to hold police accountable, but in this article we focus on the more formal institutional arrangements governing police independence and accountability. For an examination of media reactions to the Mr. Big scheme, see Puddister and Riddell 2010.
(4) Relevant cases were gathered through Westlaw-Carswell abridgment digests.
(5) In a number of cases examined, the accused often argued several issues upon appeal and in trial applications, often covering more than one of the most common arguments.
(6) Keenan and Brockman argue that police behaviour during Mr. Big operations, such as the uttering of threats or facilitating the illegal transportation of weapons, does violate the Criminal Code. According to Keenan and Brockman, trial decisions that have exonerated such police behaviour suggest that courts have been taken in by the "success" of Mr. Big investigations (2010: 90-91).
(7) A narrow majority of the court ruled, however, that admission of the evidence at trial constituted a "harmless error" particularly in light of other evidence adduced for the crime.
(8) The judicial decisions discussed above point to a lower standard in Canada. Polling conducted by the RCMP in B.C. showed that 47 per cent "strongly approved" and 34 per cent "somewhat approved" of a technique "in which police officers pretend to be an important crime boss in order to get suspected criminals to provide evidence in an investigation" (quoted in Keenan and Brockman 2010: 115-16).
(9) The most recent RCMP agreements signed between Canada and B.C. and Alberta, which came into effect in April 2012, contain provisions for an enhanced "Contract Management Committee" that would help to facilitate "information sharing" and "foster timely consultation and collaboration on service delivery, policing policies and other issues ..." (Article 21). The agreements also allow for directed reviews of policing services, which may be called for by the Contract Management Committee (see Articles 19 and 21). We see this as a step in the right direction, though we remain concerned that undercover operations such as Mr. Big may still not get the attention they deserve.
Kate Puddister is a doctoral candidate, Department of Political Science, McGill University. Troy Riddell is associate professor, Department of Political Science, University of Guelph. They would like to thank the anonymous reviewers and the editors of this theme issue of the journal.…