Judicial Framing of In-Custody Informers: Ontario Criminal Court Cases Over 30 Years

Abstract

Wrongful conviction literature has highlighted many problems often associated with the use of in-custody informers as evidence in criminal trials (Campbell, 2018; Genua, 2006). Recently, scholars have attempted to learn more about in-custody informers in Canadian criminal trials by reviewing cases that use informant evidence (Beshley, 2017). This thesis explores the role of in-custody informers in Ontario criminal trials over a 30-year period, from 1987 to 2017. The research project conducted a content analysis of 28 cases, which were divided between those that occurred prior to the implementation of the Ontario Crown Policy Manual on in-custody informers (pre-1997) and those after its creation (post-1997). The analysis revealed that over time judges have become increasingly aware of the relationship between in-custody informant evidence and wrongful convictions. The research also found that the use of accomplice testimony has become more common in these cases over time. Using social constructionism as a conceptual framework helps to understand the role judges play in framing in-custody informers in practice, as well as possible explanations for the rise in accomplice testimony in these cases. From a wrongful conviction perspective, this thesis emphasizes the need to review the use of cooperating witness evidence more broadly to develop a more thorough understanding of the role of incentivized witness testimony in possible miscarriages of justice.