Michael Ford (post until Oct. 31/18)

Ottawa should review Mr. Big convictions

Toronto criminal lawyer John Rosen says the federal government should move forward with a review of past cases involving the so-called Mr. Big undercover police sting operations and, in the process, develop recommendations or directives for the proper use of the investigative technique.

"Although the Supreme Court of Canada has given some direction on the proper use of this, I think the government needs to take the high court's decision and refine it so that it is applied in a standardized manner across Canada by different police forces," he tells AdvocateDaily.com. "There should be guidelines, directives or rules around any Mr. Big sting."

Rosen, partner at Rosen Naster LLP, is the latest expert to call for a systemic review of convictions involving the police investigative technique following a landmark ruling by the Supreme Court of Canada.

The high court found that confessions obtained through the Mr. Big method – which involves undercover officers recruiting a suspect to a fictitious criminal organization while posing as gangsters in order to extract a confession to a crime – must be presumed inadmissible in court unless the Crown can prove that it is reliable, reports the Canadian Press.

The RCMP has said it will review the Supreme Court decision to see how it will affect future investigations.

Rosen says that while the change in the law can be used on any existing appeals, the government should conduct a widespread review of convictions where appeals are no longer possible.

"In cases where people have exhausted their appeal rights and they are no longer in the court system but are serving their sentence, then it becomes a matter of reviewing the files on a case-by-case basis to determine whether applying the new standards would have made any difference," he says. "There should be a widespread review of those cases because they don't have any further access to the courts."

Rosen also says that while the Criminal Code does give convicted individuals the right to apply to the Attorney General of Canada for a review of their conviction and sentence after a legislative change, he doesn't think it should be up to individuals to ask for their own review.

"Applying to the Attorney General is a tedious, complex and difficult exercise," he says.

The Association in Defence of the Wrongly Convicted is also calling on the government to establish a working group to conduct a retroactive review of hundreds of convictions, says the Canadian Press. The association says the review is required because many of the cases are no longer in the judicial system, says the wire service.

According to the organization, there have been an estimated 350 Mr. Big investigations conducted across Canada since the early 1990s, when the technique was first used in British Columbia, says the Canadian Press.

But a federal government spokesperson has maintained a review is unnecessary because the Criminal Code already provides a mechanism for remedying miscarriages of justice, says the article.

Civil-rights activists say that the Supreme Court ruling could reduce wrongful convictions, says Canadian Press.

Rosen says a widespread review of cases where Mr. Big was used  – each time under differing circumstances – may trigger recommendations for limitations in the form of guidelines or directives for the use of this unique police investigative tool.

"Not only would a review allow for recommendations on whether specific convictions should stand on a case-by-case basis, it would provide valuable insight into developing rules and regulations around the overall use of the technique," he says.

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