Hart: More Positive Steps Needed to Rein In Mr. Big Undercover Operations

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R v Hart, Mr Big Operations, Mr Big Confessions, Admissibility, Criminal Investigation, Criminal Evidence, Abuse of Power


R v. Hart will be celebrated after many prior disappointments when Mr. Big confessions were accepted uncritically by the courts. Once the cheering subsides, muted though it may be, the reality that Canadian investigators can continue to utilize this technique will settle in. The "vital concerns," "the reliability of the evidence generated; the autonomy of suspects, and the potential for abuse of state power," as well as "criminal propensity evidence that can undermine trial fairness," have not been entirely eradicated. The risks to individual accused and the systemic worry that "Mr. Big Leads to Moral Decay" endure. Appropriate near-term responses must be envisaged to further counter the continuing dangers of this type of operation.

For the first time, the Supreme Court of Canada has taken "an in-depth look at Mr. Big confessions and the principles that should govern their admissibility," creating "a legal framework that addresses the unique issues which accompany such confessions." The result is frustrating given its preservation of a residuum of Mr. Big, but on balance it represents progress in reducing the likelihood of wrongful convictions and it points in the right direction in terms of improving investigative standards.

In this comment, the "new common law rule of evidence" and the "more robust conception of the doctrine of abuse of powers" will be briefly analyzed, with some reflections on outlooks that may have been preferable. Then, some possible post-Hart chores for several institutions will be delineated. The intention of the article is to stimulate discussion on the most desirable trajectory for Mr. Big operations in the wake of Hart.