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David Butt

David Butt

DAVID BUTT

Like hockey, Court’s 'Mr. Big' decision clarifies the rule book and the ‘code’ Add to ...

David Butt is a Toronto-based criminal lawyer

What are Canada’s pre-eminent cultural symbols? Hockey is surely a top contender. The values of the rink are deeply embedded in our broader social values. Another contender is our criminal justice system, which strikes a quintessentially Canadian compromise between individual liberty, and collective responsibility. On Thursday, the Supreme Court of Canada demonstrated how similar they are.

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The Court has ruled on a police trick known as the “Mr. Big” sting. An undercover officer pretending to be a rich gangster (Mr. Big) befriends the target of the police investigation and shows him a high-rolling good time. Mr. Big then tells the target that to join the criminal elite he must be a serious criminal himself. The target, eager to please, confesses to what police have suspected but not yet been able to prove. A deliberate, elaborate and expensive police ruse extracts a confession the target would never have offered had he known Mr. Big was a police officer.

Is this police trick permissible? The Supreme Court said in most cases no. And to understand why, we need to think hockey.

The culture of hockey is defined by not one, but two sets of rules: the official rule book, and the “code”. The rule book and the code interact in subtle and fascinating ways. Tripping is prohibited by the rule book. So you should never trip another player, right? Wrong. Sometimes tripping is a “good penalty”, for example if it prevents a sure goal. And while fighting is against the rules but sanctioned by the code, kicking during a fight is against the code because it is far too dangerous.

Together, the rule book and the code send a defining cultural message. A certain degree of rough-and-tumble is part of life, but only to a point: and that point is serious danger of injury.

Neither the hockey rule book nor the code are fixed. For example the current debate about fighting in hockey, informed by research on head trauma, is prompting an evolution of both. Constant improvement of the game means regularly re-thinking what is acceptable under both the rule book and the code.

Our criminal justice system mirrors these hockey values. The “rule book” grants us many different rights and freedoms that the police must respect. But the “code” says the courts will overlook breaches of the rules by the police when those breaches would not cause serious injury to the justice system. For example, evidence seized without a warrant violates the rules, but frequently that evidence is allowed in court anyway, if the breach of the rules is not terribly serious. In other words, a certain tolerance of rough-and-tumble is also part of the culture of law enforcement. And like hockey, neither the rule book nor code are fixed, as courts issue new rulings that develop both.

So, the Supreme Court has said Mr. Big schemes are generally undesirable. The Court’s decision can be perfectly understood in hockey terms. The Court has not taken away the police tactic of deception altogether. The Court has not said police must behave like perfect angels, it has merely told police to tone down that deception in certain situations. Like kicking with skates, Mr. Big schemes are just too dangerous. They risk creating false confessions which can lead to innocent people being wrongly convicted. This is a cautious, thoughtful adjustment of the bounds of propriety, the “code” of acceptable law enforcement.

A rough and tumble hockey approach makes perfect sense in the context of law enforcement. Criminals need to be caught, and (spoiler alert) many of them are nasty people who don’t play by the rules. So if the police are to do their job effectively, they must have their fair share of hard-hitting tactics to beat aggressive rivals, which includes some latitude to do unpleasant things on occasion. But on the other hand, if we condone dangerous police tactics that can cause serious wrongs like convicting the innocent, we bring the system into disrepute.

So the Canadian criminal justice system replicates the values of the rink. Both are extremely important to us, so in both we play hard, we play to win, and if some rules are occasionally overstepped, so be it. But beneath that hard-driving Canadian ethic is equally fundamental Canadian decency: do not under any circumstances breach the code.

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