Monday, October 2, 2017
Amar Khoday and Jonathan Avey (University of Manitoba - Faculty of Law and Osgoode Hall Faculty of Law) have posted Beyond Finality: R v Hart and the Ghosts of Convictions Past (Manitoba Law Journal, Vol. 40, No. 3, 2017) on SSRN. Here is the abstract:
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 this article, 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.