- September 22, 2012 - 12:32
Your headline grabber - Rush to Judgement - is a hugely inaccurate and unfair characterization of the Hart trial. Hart was convicted on the strength of his own unwitting confession secured during a sting operation undertaken by the RCMP. Putting aside the appeal court finding that Hart should have been allowed to testify in-camera (which defect in and of itself would not necessarily preclude a retrial and possible re-conviction), it is its rejection of the 'Mr. Big' sting that deals a fatal blow to any likelihood of a retrial. Justice Green has essentially said that barring any straightforward, uncoerced new confession from Hart, the truth can never be known. Well of course that's not happening and so the only recourse still open to the crown is an appeal to the Supreme Court of Canada. Such an appeal would no doubt contest both findings of justices Green and Harrington (to which Barry dissented). The Supreme Court of appeal could find that the sting did not violate the accused's right not to incriminate himself which would result in either reinstatement of the conviction or - subject to its ruling on the in-camera testimony issue - a retrial. Whether or not there is a further appeal, and irrespective its outcome, Ms. Frampton is wrong to imply that there has been a rush to judgement. This is a case in which the defendant was given what was deemed by the crown and the initial trial judge to be due process. That assertion has now been called into question based on the appeal justices' review of changing and evolving standards of what constitutes due process - not because there was any overt, intentional act of negligent or prejudicial behaviour on the part of police or the crown. Clearly there was no 'rush to judgement' within the conventional meaning associated with that phrase. .... Lawyers rely extensively on precedent when mounting an appeal to the Supreme Court of Canada. Among the precedents that could be cited, for example, is R. v. Oickle,  2 S.C.R. 3. This conviction was overturned on appeal because of the reliability of the confession obtained by police. The appeal court of Ontario vacated the trial judge's decision based on its doubt whether the confession was given voluntarily. However on appeal to the Supreme Court of Canada the lower court ruling was overturned and the conviction reinstated. Whether or not this particular case is on point, it should serve to remind us - and Ms. Frampton - that within the justice system 'it ain't over till the fat lady sings'.
- Pam Frampton
- September 23, 2012 - 11:25
Actually, the headline is meant to refer to the fact that, as human beings, we are sometimes quick to condemn or judge before we have all the facts. I would certainly never refer to the 10 years that got Nelson Hart to this point as a "rush." But thank you for your feedback all the same.