In R. v. Hart, the Supreme Court of Canada recognized the dangers of Mr. Big operations at least as it played out with respect to Mr. Hart. The decision was profound in that the Court deemed it necessary to fashion a new evidentiary rule to specifically address some of the controversy surrounding the Mr. Big end product (incriminating statements). In Hart, the Court held that any statements made by the accused in the context of a Mr. Big operation are presumptively inadmissible. In order to overcome that presumption, the Crown must prove that the probative value of the statements outweighs their prejudicial effect. The probative value of the confession will be a function of its reliability. Its prejudicial effect stems from the bad character evidence that necessarily accompanies its admission. The Court also supported a re-invigorated abuse of process doctrine and suggested a careful analysis when examining the tactics used by the police during a Mr. Big operation.
The Court’s decision seemed to be driven, at least in part, by an overwhelming concern for wrongful convictions. The decision was welcomed by criminal lawyers who had expressed concern about this technique for many years yet could not persuade trial judges that Mr. Big was inherently dangerous and not just “skillful police work.”
The Hart decision gave some hope that the tide had perhaps turned on the use of this technique. Yet since the Court’s decision in July 2014, Mr. Big statements seem to be surviving the scrutiny encouraged by Hart. In fact the SCC endorsed the Mr. Big operation used in R v. Mack and when admitting Mr. Mack’s incriminating statements, found that the Crown [easily] satisfied the new evidentiary rule.
Post-Hart, the Crown is encouraging trial judges to confine Hart to only those cases involving vulnerable targets. The CDAS is concerned about confining the Hart decision in such a way. We are thus working to organize Mr. Big case material in a way to provide criminal defence counsel with the most up-to-date decisions on admissibility and otherwise. In addition to compiling post-Hart case law, CDAS plans to set up “electronic” discussion groups to share ideas about issues arising post-Hart. For example, in British Columbia, there appears to be an inconsistent approach to Crown giving its consent to a re-election to a judge alone trial after the incriminating statements are ruled admissible. Our discussion will consider the effectiveness of an abuse of process challenge to a refusal to consent. It could also be useful to examine the breadth of the Mr. Big evidence now elicited on the admissibility voir dire. We may also consider a recent attempt by the Crown to use the bad character evidence (demonstrated during the 86 scenarios) of the target on a dangerous offender application.