The Duty to Disclose The Challenges , Costs and Possible Solutions : Final Report EXECUTIVE SUMMARY (original) (raw)

The Law of Disclosure : A Perennial Problem in Criminal Justice

2020

This edited collection explores the topic of disclosure of evidence and information in the criminal justice process. The book critically analyses the major issues driving the long-standing problem of dysfunctional disclosure practice, with contributions from academics, lawyers, former police officers and current police policymakers. The ultimate objective is to review the key problems at the investigative, trial and post-conviction stages of criminal proceedings and to suggest a way forward through potential routes of reform, both legal and cultural. The collection represents a significant and novel contribution to the policy debate regarding disclosure and advances thought on resolving this issue in a fair and sustainable manner. The book provides a valuable resource for academics, practitioners and policymakers working on this vital aspect of criminal procedure.

Further improving reporting in crime and justice: an addendum to Perry, Weisburd and Hewitt (2010)

Journal of Experimental Criminology, 2012

Objectives To elaborate on guidelines designed to improve the descriptive validity of reports of criminological research, whatever research design, focusing in particular on the inclusion of items relating to the causal mechanisms through which interventions are believed to operate and to the setting, circumstances, and procedures in which measures are applied. Methods The literature on reporting guidelines in criminology and health is reviewed. Particular attention is paid to the SQUIRE guidelines, designed to improve reporting quality in the field of healthcare improvement. Results Criminological treatments of descriptive validity have focused on reporting quality in randomized controlled trials only, drawing on the CONSORT Statement, which is widely used in reports of medical trials. These guidelines, reflecting the field from which they originate, pay little attention to issues that are important in appraising crime and justice studies and for replication and scale-up efforts. Reporting guidelines items related to causal mechanisms and implementation are presented, drawing heavily on the SQUIRE guidelines. Conclusions Sloppy, incomplete reporting threatens to frustrate the advancement of criminological research and constrain its utility for informing policy and practice. The development of criminology-specific reporting guidelines to stimulate improvements in the descriptive validity of criminological research is welcomed. A plan for the future development of reporting guidelines in criminology is suggested.

Benchmark The “ Ultimate Issue ” Problem in the Canadian Criminal Justice System

Later, in a landmark decision (R. v. Mohan, 1994), Mr. Justice Sopinka, writing for the Supreme Court of Canada, set forth clearly articulated admissibility rules for expert testimony in Canada. This so called "Mohan Test" requires that expert testimony be a) relevant, b) necessary to assist the trier of fact, c) not violate any exclusionary evidentiary rule, and d) provided by an appropriately qualified expert. Mention of the need to carefully scrutinize novel theories was also included in this document.

Manitoba Law Journal Volume 43(3) 2020

Criminal Justice and Evidentiary Thresholds in Canada: The Last Ten Years, 2020

This volume contains papers presented at the Criminal Justice Evidentiary Thresholds in Canada: The Last Ten Years conference, hosted at the Faculty of Law, University of Manitoba. The conference focussed on the evolution of the law of evidence and the sometimes radical transformations it has seen over the last ten years since the seminal decision of R v Grant in 2009, which reoriented the test for exclusion of evidence at trial. The conference explored questions of the conception of knowledge in modern criminal legal proceedings and the changes in the nature of knowing and constructing criminal responsibility over the last ten years as the information age continues to develop the law of evidence. Unparalleled connectivity, state surveillance capabilities, Canada’s commitment to truth and reconciliation with Indigenous communities, and anxieties pertaining to large scale security calamities (like terror events), have altered the landscape in which crime is investigated, and in which evidence is subsequently discovered, and admitted. The conference discussed and unpacked these issues and developed a tremendous body of scholarship which we are proud to present in this volume. i Continuing the Conversation: Exploring Current Themes in Criminal Justice and the Law DAVID IRELAND AND RICHARD JOCHELSON 1 Reclaiming Prima Facie Exclusionary Rules in Canada, Ireland, New Zealand, and the United States: The Importance of Compensation, Proportionality, and Non-Repetition KENT ROACH 49 An Empirical and Qualitative Study of Expert Opinion Evidence in Canadian Terrorism Cases: November 2001 to December 2019 MICHAEL NESBITT AND IAN M. WYLIE 111 The Unclear Picture of Social Media Evidence LISA A. SIL VER 155 Cree Law and the Duty to Assist in the Present Day DAVID MILWARD 207 Involuntary Detention and Involuntary Treatment Through the Lens of Sections 7 and 15 of the Canadian Charter of Rights and Freedoms RUBY DHAND AND KERRI JOFFE 249 Forensic Mental Health Assessments: Optimizing Input to the Courts HYGIEA CASIANO AND SABRINA DEMETRIOFF 273 Constructing, Assessing, and Managing the Risk Posed by Intoxicants within Federal Prisons JAMES GACEK AND ROSEMAR Y RICCIARDELLI 295 Mr. Big and the New Common Law Confessions Rule: Five Years in Review ADELINA IFTENE AND VANESSA L. KINNEAR 357 Judicial Constructions of Responsibility in Revenge Porn: Judicial Discourse in Non-Consensual Intimate Image Distribution Cases – A Feminist Analysis ALICIA DUECK-READ 391 Harm in the Digital Age: Critiquing the Construction of Victims, Harm, and Evidence in Proactive Child Luring Investigations LAUREN MENZIE AND TARYN HEPBURN 421 Victim Impact Statements at Canadian Corporate Sentencing ERIN SHELEY

(2014) Crim.L.R. Disclosure of Criminal Records and the R

Criminal Law Review, 2014

When and to whom should a person’s criminal record be disclosed? What information contained in criminal records should be disclosable? This article considers the British disclosure rules in the context of the judgment of the European Court of Human Rights in MM v United Kingdom, and also in the framework of the principles underlying the Rehabilitation of Offenders Act 1974. It argues that, despite recent changes, the UKsystemstill fails to strike the right balance between public protection, the individual’s right to privacy, and the criminal justice system’s interests in rehabilitation and social reintegration.

Needing Closure on Disclosure: The Application of R. v. Stinchcombe in Human Rights Proceedings

Dalhousie Journal of Legal Studies, 1997

Human rights commissions were first introduced in this country as an alternative mechanism to address complaints of discrimination. From the outset, human rights proceedings were designed to operate differently than criminal proceedings. While criminal courts assess the guilt or innocence of an accused using the reasonable doubt standard of proof, boards of inquiry assess evidence according to the balance of probabilities. Moreover, the boards of inquiry are mandated to compensate the victims of discrimination, and not necessarily to punish the discriminators. Despite these differences, boards of inquiry and courts alike have started, in recent years, to compare criminal and human rights proceedings and to hold human rights commissions to the same standards of conduct as criminal prosecutors. This has been especially evident with respect to the subject of disclosure. More specifically, the issue of disclosure in the context of human rights proceedings has been dramatically affected ...

The Public Inquiry and the Presumption of Innocence: The Prospects for Mutual Survival

2019

The suppression of public inquiries by the successful invocation of the presumption of innocence is only one of many devices which may be used to derail or handicap an inquiry. The terms of reference of the inquiry and the conduct of the proceedings, as well as the final report, must also meander through the minefields of division of powers and other sections of the Canadian Charter o f Rights and Freedoms,1 including ss. 7 (with emphasis on the right to silence, but including some additional potential support for the presumption of innocence beyond 11(d)), 11(c) (the right not to be compelled to be a witness against oneself) and s. 13 (the right not to have the witness' own incriminating testimony used to incriminate him or her). Many of the existing protections or proposed reforms for inquiries address the dictates of other Charter provisions. However, the threat presented by the use of the argument founded on s. 11(d) may ultimately provide the most damaging blow to the inquiry and this article will concentrate on responding to this challenge in particular. Reining in the Emerging Judicial Attack on Inquiries The public inquiry has become a vital institution in democratic societies, but it is under increasing attack in Canada as courts assert their vigilance to protect the rights of the accused individual. In a short period the judiciary has moved well beyond its previous position on public inquiries which dealt with their relationship to the Charter almost in passing. In O'Hara, the Supreme Court made only general statements concerning the impact of an inquiry on an individual's rights: [n]eith er a province nor Parliam ent may infringe th e rights o f C anadian citizen s in establishing inquiries o f th is kind ... Thus, n either lev el o f governm ent may e stablish and insist upon procedures w hich infringe fundam ental rights and freedom s, such as th e right against self-incrim ination as it is d efin ed in our la w .... I therefore express no op inion upon th e nature and extent o f rights guaranteed by th e Charter and th e law o f evid en ce as they relate to th e inquiry's p roceed in gs except to say that th ose rights, o f course, m ust b e respected by th e relevant authorities.2 *Of the Faculty o f Law, Dalhousie University. a rt I o f the Constitution Act, 1982, being schedule B of the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter Charter], 17H A. Kaiser, "Legitimation and Relative Autonomy: The Donald Marshall Jr. Case in Retrospect" (1990) 10 Windsor Yearbook o f Access to Justice 171-193, at 181. 18Alberta Law Reform Institute, Proposals For The Reform o f The Public Inquiries Act (Report No. 62) (Edmonton: Alberta Law Reform Institute, 1992) at 1. 19Ibid. at 18-23. 20Supra, note 3 at 673. 3ftThc Law Reform commission of Canada, Report on Our Criminal Procedure (Number 32), (Ottawa, 1988) at 27. Basically, the commission was reiterating one o f the warnings urged above with respect to the public's confidence in the criminal justice system. That is, a system that places less faith in its citizens or fundamentally excludes them, risks the public's alienation and even hostility. The move away from the public inquiry and the destabilizing assumptions about juries will tend to reduce the public's tremulous sense of ownership o f the criminal justice system. 40M. Mandel, The Charter o f Rights and the Legalization ofPoM cs in Canada (Toronto: Wall and Thompson, 1989) at 308. 1985, c. C-46. 49Supra, note 37 at paragraph 122. Recommendations 9 and 14 respectively. 55Supra, note 18 at 81-82. x Ibid. at 82.

Beyond Finality: R v Hart and the Ghosts of Convictions Past

Manitoba Law Journal, 2017

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.

The "Ultimate Issue" Problem in the Canadian Criminal Justice System

2007

The Duty to Disclose The Challenges , Costs and Possible Solutions : Final Report EXECUTIVE SUMMARY (original) (raw)

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