A suspect in a criminal investigation meets a stranger who claims to be part of a crime organization. He involves the suspect in some minor illegal activities and then says “Mr. Big” (the head of the crime organization) wants to meet him. Mr. Big is ready to give the suspect a big assignment, but there’s one catch: the suspect needs to confirm that he committed the crime for which he’s being investigated and give Mr. Big all the details.

Actually, there’s a second catch: Mr. Big and the others involved with the suspect are not criminals. They are police or RCMP officers trying to trap the suspect into confessing.

Professor Kate Puddister
Kate Puddister

“This became a fairly popular strategy,” says political science professor Kate Puddister, whose research focuses on the intersection of law and politics. She studied “Mr. Big” cases with Prof. Troy Riddell, also in political science. “But it brings up a lot of questions: Do we want our police acting like criminals and doing these things to persuade people to confess? Who is watching the police, especially when they are working undercover like this?”

A recent story in the Toronto Star reports on the case of Alan Smith, who spent years in jail due to a Mr. Big sting before being exonerated. He is now suing for $19 million in damages.

The Mr. Big approach is banned in the United States, but other countries such as Australia have approached the RCMP to learn how to run these undercover operations. Last year, the Supreme Court ruled that confessions obtained through Mr. Big stings are not automatically admissible as evidence but police can still conduct them, with some restrictions.

Puddister grew up in Guelph and did her undergrad and master’s studies at U of G; she then attended McGill University to complete her PhD. For her dissertation, she looked at another aspect of law and politics that is unique to Canada: the reference case. In Canada, the prime minister can ask the Supreme Court to rule on any question; the premier of each province can do the same at the Provincial Court of Appeal. Reference cases are abstract: no one is being tried or making a lawsuit. “The case is created out of thin air,” explains Puddister.

Many important issues are settled this way. For example, same-sex marriage became legal across Canada after one of these reference cases. Puddister says political leaders choose this approach to avoid making decisions on issues that are political “hot potatoes,” to deal with arguments over jurisdiction, and to get a ruling on a policy they want to pursue to avoid future challenges.

“These reference cases give the government an extraordinary amount of power,” says Puddister. “They can ask the question any way they want to shape the response that suits their goals. Also, we should think about what it means for the independence of the courts when they are used to meet political goals.” As part of her research, she created the first database of all reference cases in Canada.

She’s also explored how former prime minister Stephen Harper’s government used private member’s bills to pass criminal justice legislation. “The Harper government passed more private member’s bills than any previous government, and many are related to criminal justice,” says Puddister. “These private member’s bills get less scrutiny and less public attention, meaning less accountability.”