Law360 Canada (August 7, 2026, 11:25 AM EDT) --

Timothy Moore

In March 1986, Lloyd Perkins was in jail in central Illinois. He disclosed to a fellow inmate (Donald Charlton) that he had murdered somebody in St. Louis a couple of years earlier. Charlton told the police. The police investigated. When they located Perkins, he was in a different jail for an unrelated crime.

An undercover police officer, pretending to be another prisoner, befriended him. Over time Perkins provided a detailed account of the murder. At his trial the confession was excluded on the grounds that there had been no Miranda warning. The appellate court concurred. In 1990, the U.S. Supreme Court reversed the lower courts’ decisions, arguing that a Miranda warning was unnecessary because the suspect had not been communicating with a person presumed to possess any legal authority.

The court said, “Miranda was not meant to protect suspects from boasting about their criminal activities in front of persons whom they believe to be their cellmates” (Illinois v. Perkins, 496 U.S. 292, 294, 110 S. Ct. 2394, 110 L. Ed. 2d 243 (1990) para. 298).

On April 15, 1987, Neil Hebert was arrested in Whitehorse for having committed a robbery in the Klondike Inn three months earlier. He contacted counsel and declined to give a statement. He was then placed in a cell with an RCMP officer (Daun Miller) masquerading as another suspect under arrest. During the ensuing conversation, Hebert made self-incriminating statements about the earlier robbery. At trial those statements were ruled inadmissible. The Court of Appeal ordered a new trial. The accused appealed to the Supreme Court, which declared that “the scope of the right [to silence] must extend to exclude tricks which would effectively deprive the suspect of this choice” (R. v. Hebert, [1990] 2 S.C.R. 151, para. 66).

These two decisions were released within a few days of one another in June 1990. Not only did the judgments starkly diverge, but each in its own way had a profound influence on subsequent legal proceedings and police practices. Perkins-like operations (POs), for example, proliferated. They became carefully orchestrated and stage-managed.

Fake inmates are selected to be similar in age and race to the suspect. Sometimes there are two or more pretend prisoners. Questions are persistent and unremitting, not unlike those in Reid-like interrogations, but they are not hostile or accusatory. Fake inmates are often empathetic. They work hard at establishing a trusting relationship. They may express a wish to help (i.e., “Tell me about what you did. I can help you frame it in a way that will produce the least blameworthy outcome”). Sometimes the suspect learns authentic forensic details that were divulged, wittingly or not, by the cellmates. If such holdback information is subsequently mentioned by the suspect, it can appear highly incriminating. Confessions arising from POs are rarely suppressed or excluded because they are not perceived as having violated a suspect’s constitutional rights.

In Canada, post-Hebert, undercover operations such as the Mr. Big procedure increased in frequency. In Hebert, Justice Beverley McLachlin had stipulated that the right to silence “applies only after detention.… In an undercover operation prior to detention, the individual from whom information is sought is not in the control of the state. There is no need to protect him from the greater power of the state.” In 1990, Mr. Big operations were not on the judicial radar. As Justice Michael Moldaver observed in Hart, 24 years later, “At present … these operations are conducted in a legal vacuum” (R. v. Hart, 2014 SCC 52, para. 79).

In 2004, Nelson Hart was engaged in an RCMP-orchestrated Mr. Big operation that lasted four months. The gang involved him in various criminal activities including smuggling alcohol and stolen credit cards. He was well paid. As a result, his life was transformed. He was lifted out of poverty and into a lifestyle of relative opulence. He travelled to cities across Canada. He stayed in fine hotels and dined in high-end restaurants. He was in regular contact with the undercover officers, whom he perceived to be his best friends and “true brothers.” He actually professed his love for them.

When Mr. Big asked him why he had killed his daughters, Hart said the drownings were an accident, but Mr. Big didn’t believe him. Mr. Big accused him of lying. Hart then capitulated and admitted to killing his daughters by pushing them into the lake. Two days later, Hart took undercover agents to the scene of the drownings where he re-enacted the crime. The reenactment differed from the narrative contained in his previous confession to Mr. Big. Hart was nevertheless arrested and charged with murder. His self-incriminating statements were admitted into evidence. The jury convicted him of first-degree murder in March 2007.

Was Nelson Hart under “state control” when he confessed to Mr. Big? He had not been detained. He wasn’t under arrest. He hadn’t been communicating with a “person in authority.” Was he under state control? The Court of Appeal thought so. As Chief Justice Green stated: “If anyone who was not in detention was ever in the control of the state it was Mr. Hart” (R. v. Hart, 2012 NLCA 61, para. 200). The SCC concurred two years later. To rectify the missing protections brought about by the Hebert decision, the Supreme Court introduced a new common law rule of evidence whereby confessions to Mr. Big would be thenceforth presumptively inadmissible. The Crown can dislodge this presumption with independent confirmatory evidence, thereby establishing a high degree of reliability.

Hundreds of Mr. Big operations were conducted nationwide prior to the Hart decision. Some entailed extraordinarily elaborate and violent staged murders. Jason Dix witnessed what he believed to have been a drug dealer shot at point-blank range with a sawed-off shotgun. Shortly after learning that the RCMP had interviewed his 4-year-old son, Dix became depressed and attempted suicide. The lead prosecutor planned to use the suicide attempt as circumstantial evidence at trial of consciousness of guilt on the part of the accused (Dix v. Canada (Attorney General), 2002 ABQB 580).

Alan Smith was a suspect in a decades-old murder case near Oshawa, Ont. He was engaged in disposing of the body of a rival drug dealer whom Mr. Big had purportedly robbed and shot. (The body was a mannequin wrapped in a tarpaulin.) Smith was petrified. The Mr. Big operatives believed that his terror would encourage him to confess to his own culpability. It didn’t. Justice Glass found his statements to have been “tremendously varying and contradictory.” In acquitting him, he also found an abuse of process (R. v. Smith, 2014 ONSC 3939, para. 112).

There is no disputing that undercover procedures can (and have) led to conviction of persons who would otherwise have probably gotten away with murder. But these procedures come with a price. Their inventiveness is also their downside. The costs include false confessions, wrongful convictions and shattered lives.

Timothy Moore is professor emeritus, Department of Psychology, Glendon College, York University.

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