Mr. Big and the Ghosts of Convictions Past - a wrongful conviction thinkpiece
(Excerpted from Khoday and Avey's Beyond Finality: R v Hart and the Ghosts of Convictions Past, published in the Manitoba Law Journal 40(3) 2017 Robson Crim Edition)
In July 2014, the Supreme Court of Canada released its decision in R v Hart, in which it confronted the controversial police investigatory tactic knows as a “Mr. Big Operation” (MBO). MBOs are undercover operations wherein police officers assume the role of organized crime figures seeking to recruit the accused into their organization. Using inducements, threats, and/or an atmosphere of oppression, the officers elicit incriminating statements from the accused, which prior to Hart were admissible in subsequent criminal prosecutions. In Hart, however, the Supreme Court recognized the risk of false confessions as a result of the investigatory tactics used, and consequently, the risk of a wrongful conviction. The Court formulated a new common law rule: that an MBO-generated confession will be presumptively inadmissible unless the Crown can demonstrate that the probative value of the statement outweighs its prejudicial effect.
The new rule is a fundamental reversal from the way MBO-generated evidence has previously been considered. In our longer article, published in the criminal law edition of the Manitoba Law Journal we argue that while this rule will be considered in cases going forward, it should also be considered in past cases where the decision is no longer subject to appeal. In doing so, we confront the principle of finality, and examine when cases that are no longer before the courts should be re-examined for a retrospective application of a new law.
In our view, the notion of finality must give way where strong indicia suggests that a wrongful conviction due to problematic methods of evidence procurement may have occurred. To that end, we argue that past cases where individuals were convicted on the basis of MBO-generated evidence should be reviewed in order to determine whether the evidence would be admissible under the framework from Hart, and by extension, whether there is a risk that a wrongful conviction occurred. Finally, we examine different options of how closed cases could be re-examined, and posit that the most appropriate course of action is an inquiry headed by a Canadian judge.
While attention must be paid to the ways that courts are applying the test and factors in cases going forward (and whether the Hart test is a sufficiently effective way to handle the admissibility of MBO confessions), it is equally important for our legal system to return to pre-Hart cases with a view to considering whether miscarriages of justice ensued from the failure to exclude unreliable evidence. In this article, we have considered a number of cases that, when evaluated under the Hart criteria, we argue would have resulted in the confessions being ruled inadmissible. While the application of new norms to cases that have been finalized and are no longer subject to appeal is in tension with the notion of finality and principle of non-retroactivity, as this article has discussed, there are exceptions – and circumstances that should be exceptions. The rule in Hart qualifies as an exceptional watershed rule which should have retroactive application.
While the law in its current state would need to be altered in order to proceed in that manner, it is within the authority of the federal Minister of Justice to establish a formal inquiry, headed by a Canadian judge and modeled from the Self Defence Review conducted by Judge Ratushny. This would be an en bloc review of numerous individual cases with a view toward assessing the admissibility of their confessions under the standards set out in Hart. Where the reviewing judge or judges find that the impugned admissions would not be admissible under the Hart criteria and there is a possibility that a miscarriage of justice occurred, the reviewing authority would forward recommendations to the Minister as to whether a retrial should be ordered. It is our view that this procedure would best identify those cases where a wrongful conviction may have occurred and provide a remedy, while still upholding the principle of finality and maintaining public confidence in the administration of justice.
R v Hart, 2014 SCC 52 at para 6,  2 SCR 544
Sheehy, Elizabeth A., Defending Battered Women on Trial (February 26, 2015). Elizabeth A Sheehy, Defending Battered Women on Trial: Lessons from the Transcripts (Vancouver: UBC Press, 2014), pp 1-18.; Ottawa Faculty of Law Working Paper No. 2015-4. Available at SSRN: https://ssrn.com/abstract=2570977