Mr. Big police undercover operations involve the police posing as criminals in order to obtain a confession from a suspect. The suspect is usually enticed to confess by inducements ("if you own up to some crimes we'll let you into our lucrative gang") and/or threats ("you better come clean with us because the our boss doesn't take kindly to liars"). Invariably these operations are run in murder cases where the police otherwise lack sufficient evidence to lay a charge. The stakes in terms of convicting the guilty or framing up the innocent are extraordinarily high.

We've discussed Mr. Big cases in past postings. Defence counsel have taken many apporaches in trying to exclude Mr. Big confessions. None have succeeded. The latest failed attempt comes in the case of R. v. Osmar, a judgment of the Ontario Court of Appeal.

The Supreme Court of Canada recently granted leave to appeal in a BC case that raises important right to silence issues. It's worth watching closely.

In R. v. Kim the Court of Appeal found that defence counsel was in an impossible conflict in representing two co-accused. It thus struck out the Appellant's guilty plea and ordered a new trial. The case is an exemplar for defence lawyers of how not to represent co-accused. Conflicts are extremely common when co-accused are represented by a single lawyer (or by members of the same firm or lawyers sharing office space). Sometimes even a waiver of conflict after independent legal advice cannot remove the taint. In Kim, there was no ILA and no waiver, so the possibility that the problem could be so solved was not considered.

Michel Proulx, one of Canada's great criminal defence advocates and appeal court judges, passed away yesterday after a long illness. He impressed and touched all who met him with his intelligence, curiosity, enthusiasm and warmth of heart. I first met Michel over 10 years ago, and he became a good friend and mentor. I will miss him dearly but can certainly say that his influence in the legal community will be felt for years to come.

For a description of Michel's life and work, and particularly his impact in the legal community, see the obituary written by Yves Boisvert that appeared this morning in La Press.

Last week we described a near-fight that took place between a Crown witness, Todd Kealy, and the defence lawyer who was cross-examining him, Reid Rusonik. The upshot of the imbroglio was that the judge ordered Rusonik to have no contact with Kealy, and another lawyer was retained to finish the cross-examination. Rusonik apparently remained on the case as counsel. The trial resumed with Kealy's continued cross-examination, but after a break the court learned that Rusonik had defied its order and made contact with Kealy, it appears because he was concerned that Kealy was out for revenge and might hurt Rusonik's family. Rusonik ended up taking the stand in order to provide this explanation to the court. As matter then stood at that point, the judge was considering whether to order a mistrial.

Last Thursday the Judge Mossip court took the only viable option left to her: she declared a mistrial.

We've been following a wild story out of Ontario, about a lawyer and Crown witness almost coming to blows in the courtroom. Kirk Makin first reported the case in the December 16, 2006 Globe & Mail. Two accused were being tried in Newmarket on a charge of attempt murder. The alleged victim was ex-biker Todd Kealy. Kealy testified as a Crown witness and claimed that shots had been fired at his car after an altercation in a bar. Defence counsel Reid Rusonik was cross-examining Kealy for one of the accused. The cross-examination was heated. After Kealy responded to a question by making what could be interpreted as a threat to Rusonik, Rusonik challenged Kealy to fight him outside the courtroom. Things degenerated further from there, including this stellar retort by Rusonik in response Kealy's admonition to "use your head": "any time you fuckhead, any time you little shit". The matter was adjourned so that everyone could cool down. Rusonik apologized upon the court reconvening, but Kealy had disappeared. The case was adjourned for a few more days, at which point Rusonik again apologized. The case was then adjourned until January 4, at which point the fate of the trial would be considered.

Today the Globe and Mail gave us an update.

We have already written about the landmark decision in Khelawon, released December 14 of last year. There, the SCC overruled two earlier judgments and held that when assessing the threshold reliability of a hearsay statement under the principled exception a trial judge can properly consider the presence or absence of any corroborating facts that exist external to statement. Our Court of Appeal has wasted no time in taking up the cause. In T.G.N., released early last week, the Court used Khelawon to reject the three appellants' contention that the trial judge had erred by using corroborating evidence to help find that threshold reliability had been established. If the judgment had come out even a month before, the result in this respect would have been very different.

In the late 1990s and early 2000s, there were a number of cases in which the Crown had made disclosure in electronic form but the defence sought production of hard copies. The Crown clearly has some discretion regarding the form in which disclosure is made, so these cases tended to turn on their facts. The key issue was whether the defence was, “meaningfully able to properly use the information … to rebut the Crown’s evidence and arguments and make all decisions required to exercise his or her right to make full answer and defence”. Usually, hard copies would be ordered by the court only if the format of the electronic disclosure was unworkable or particularly unwieldy.

A case that stands out among these "hard copy" judgments is a decision of the Ontario Provincial Court called R. v. Obront (1998), 39 W.C.B. (3d) 340. The case involved a complex fraud prosecution where the Crown had provided disclosure in electronic format. The defence sought hard copies of all of the disclosure. The submission of the defence was that some of the lawyers were “computer illiterate”. The Court held that it would be unfair to force defence counsel to train themselves in the use of computers or force the accused to pay for reproducing copies of all of the documents. Hard copies of the disclosure were thus ordered produced.

The "computer illiteracy" plea may have worked in 1999 - just. Does it hold any currency with courts today?