Mr. Big confessions, a gesturing juror appeal, and slow notice of COVID-19 at the Surrey courthouse

Mr. Big investigations involve tricking a suspect into believing they are being recruited into a fictitious criminal organization. Often a large number of undercover RCMP officers are involved.Typically, the undercover police officers will spend months having the suspect perform tasks for the fictitious criminal organization, paying them to do so.Eventually, the suspect will be introduced to the fictitious boss of the fictitious criminal organization who will tell the suspect that they need to tell them about the real crime that is actually being investigated so that loose ends can be tied up or so that Mr. Big can protect the suspect. Variations of this technique have been used hundreds of times in Canada. Unfortunately, it can be so corrosive that multiple innocent people have confessed to committing crimes out of either fear of the fictitious criminal organization, a desire to join it and continue making money or in order to get continued attention. As a result, the Supreme Court of Canada has made Mr. Big confessions presumptively inadmissible. To be used the Crown now needs to establish that the probative value of the confessions exceeds its prejudicial effect, and the operation didn’t constitute an abuse of process.In the case discussed on the show, the fact that the RCMP facilitated the suspect breaching court orders he was subject to, without judicial authorization, was not found to be an abuse of process. Also discussed is an appeal from a conviction for first-degree murder. The appeal is based on gestures alleged to have been made by one of the jurors to the family of the deceased child during the course of the trial. A rarely used provision of the Criminal Code that permits live evidence to be heard on an appeal is being utilized so as to permit the cross-examination of various people who observed the gestures. The section only permits witnesses who would have been compellable at the trial to testify at the appeal. Therefore, relying on a decision in a case from 1995 where a juror had an affair with a suspect in a murder trial, while the case was going on, the juror who made the gestures cannot be called as a witness. Finally, at the Surrey courthouse, a number of sheriffs who were responsible for transporting prisoners tested positive for COVID-19. Court staff, including Crown Counsel, were notified and advised to self-isolate and get testing. No notice was, however, provided to other lawyers who had been at the courthouse at the same time out of a desire to provide privacy for the sheriffs.This has caused a great deal of concern as the people who were not notified weren’t able to take timely steps to ensure their safety and the safety of their families. Courthouses could adopt practices similar to restaurants and keep a record of people who attend each day, along with phone numbers or email addresses so as to facilitate rapid notifications if there is potential exposure. Follow this link for a transcript of the episode and links to the cases discussed.