This article argues that the objections to the Mr. Big investigation technique have been apparent since the very first use of it over a century ago, but that the law has not had the tools to give legal form to those objections until quite recently. The article traces the development of the abuse of process doctrine (from “none at all” to “forward-looking only” to “backward-looking as well”) and of exclusion of evidence (from “none at all” to “only for Charter breaches” to “for non-Charter breaches as well”). Based on that discussion, it argues that it is only in the past couple of years that the law has reached the point of being able to address directly what it is that is problematic about Mr. Big, and therefore that it is no surprise the technique remained largely unchecked until R. v. Hart. Based on that historical analysis, it argues that the second prong of the Hart solution, a reinvigorated abuse of process doctrine, is the more promising approach for the future.
"Threading Together Abuse of Process and Exclusion of Evidence: How it Became Possible to Rebuke Mr. Big."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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