Law Commons^™

Post-Conviction Disclosure In The Canadian Context, Alexandra Ballantyne, Tamara Levy, K.C.

All Faculty Publications

It is common knowledge that the criminal justice system is fallible and prone to human error. The most egregious of such errors is the conviction of an innocent person. While wrongful convictions have been acknowledged in Canada in the last few decades, they are mostly regarded as rare and extraordinary events.16 In response to this perception, experts have identified the challenge of determining the number of wrongful convictions and their exact causes.17 A 2019 study estimates that at least 85 people have been exonerated in Canada.18 The recent advent of the Canadian Registry of Wrongful Convictions creates a centralized location …

Criminality And Inequity Under Canada's Legalization Of Cannabis: A Study Of Vancouver's Downtown Eastside, Stephanie Lake, Margot Young

All Faculty Publications

The origin of this essay reminds us of the importance of interdisciplinary collaboration to the development and assessment of public policy. It also demonstrates the serendipitous beginnings of many interesting inquiries. This collaboration was thus fortuitous: authors Lake and Young met during Lake’s doctoral dissertation defence. Young was on the examining committee. Lake presented a series of epidemiological studies (three of which are summarized below) involving the use of cannabis for therapeutic and harm reduction purposes among marginalized people who use drugs (PWUD) in Vancouver. Young’s lines of questioning involving the legal implications of Lake’s findings spurred the idea to …

Admissibility Of Hearsay Gathered Under Mlat: A Tempest In Canada, Robert Currie

Articles, Book Chapters, & Popular Press

One of the most pervasive and longstanding problems in the practice of mutual legal assistance in criminal matters between states has been ‘form of evidence’–specifically, can the requested state provide evidence in such form as will be useful and admissible under the criminal evidence laws of the requesting state?It tends to be common law states that have difficulties with admissibility of MLAT-sourced evidence, and these often develop ‘work-arounds’ in their laws which attempt to relax admissibility standards. Canada is one such state, but a series of recent prosecutions has revealed judicial resistance to the tools employed. This note examines these …

Wrongful Extradition: Reforming The Committal Phase Of Canada’S Extradition Law, Robert Currie

Articles, Book Chapters, & Popular Press

There has recently been an upswing in interest around extradition in Canada, particularly in light of the high-profile and troubling case of Hassan Diab who was extradited to France on the basis of what turned out to be an ill-founded case. Diab’s case highlights some of the problems with Canada’s Extradition Act and proceedings thereunder. This paper argues that the “committal stage” of extradition proceedings, involving a judicial hearing into the basis of the requesting state’s case, is unfair and may not be compliant with the Charter and that the manner in which the Crown conducts these proceedings contributes to …

Class Crimes: Master And Servant Laws And Factories Acts In Industrializing Britain And (Ontario) Canada, Eric Tucker, Judy Fudge

Articles & Book Chapters

This chapter compares the historical development and use of criminal law at work in the United Kingdom and in Ontario, Canada. Specifically, it considers the use of the criminal law both in the master and servant regime as an instrument for disciplining the workforce and in factory legislation for protecting workers from unhealthy and unsafe working conditions, including exceedingly long hours work. Master and servant legislation that criminalized servant breaches of contract originated in the United Kingdom where it was widely used in the nineteenth century to discipline industrial workers. These laws were partially replicated in Ontario, where it had …

‘It’S Kinda Punishment’: Tandem Logics And Penultimate Power In The Penal Voluntary Sector For Canadian Youth, Abigail Salole

Publications and Scholarship

This paper draws on original empirical research in Ontario, Canada which analyses penal voluntary sector practice with youth in conflict with the law. I illustrate how youth penal voluntary sector practice (YPVS) operates alongside, or in tandem with the statutory criminal justice system. I argue that examining the PVS and the statutory criminal justice system simultaneously, or in tandem, provides fuller understandings of PVS inclusionary (and exclusionary) control practices (Tomczak and Thompson 2017). I introduce the concept of penultimate power, which demonstrates the ability of PVS workers to trigger criminal justice system response toward a young person in conflict …

Celebrating Four Unruly Women, Elaine Craig

Articles, Book Chapters, & Popular Press

In 1846, prison administrators at the Kingston Penitentiary replaced the daily whipping and flogging of prisoners with a new form punishment - The Box. The Box, as Ted McCoy describes it in his new book, Four Unruly Women: S fries f Incarceration and Resistance from Canada's Most Notorious Prison, was a six foot tall, three foot deep coffin used to impose a form of extreme isolation on unruly prisoners. The Box became the primary form of severe punishment for women prisons at Kingston when flogging was abolished.

Four Unruly Women depicts a shocking portrait of the cruelty and inhumanity imposed …

Extradition And Trial Delays: Recent Developments (And Lessons?) From Canada, Robert Currie, Laura Ellyson

Articles, Book Chapters, & Popular Press

Extradition – the formal rendition of criminal fugitives between states – is well-known to be a time-consuming process that often has impacts, minor or major, on the ability of states to complete prosecution in a timely manner. Thus, the extradition process can sometimes be at odds with the right to trial within a reasonable time, which is part of the overall package of fair trial rights enshrined in international human rights law. In Canada, this right is implemented by paragraph 11(b) of the Canadian Charter of Rights and Freedoms. In recent years Canadian courts have developed a series of principles …

Extradition And Trial Delays: Recent Developments (And Lessons?) From Canada, Robert Currie, Laura Ellyson

Articles, Book Chapters, & Popular Press

Extradition – the formal rendition of criminal fugitives between states – is well-known to be a time-consuming process that often has impacts, minor or major, on the ability of states to complete prosecution in a timely manner. Thus, the extradition process can sometimes be at odds with the right to trial within a reasonable time, which is part of the overall package of fair trial rights enshrined in international human rights law. In Canada, this right is implemented by paragraph 11(b) of the Canadian Charter of Rights and Freedoms. In recent years Canadian courts have developed a series of principles …

Social Media Crime In Canada: Annotated Criminal Code, R.S.C., 1985, C. C-46, 2nd Ed., Benjamin Perrin

All Faculty Publications

Over 80% of Canadians use the Internet and approximately 20 million Canadians are active on social media networks. It is not surprising that criminal activity is taking place in these global digital communities and this is raising challenges for criminal law and the criminal justice system. The Supreme Court of Canada recently recognized in R. v. K.R.J. that “[t]he rate of technological change over the past decade has fundamentally altered the social context” in which certain crimes are occurring and social media networks have given “unprecedented access to potential victims and avenues” for offending.

This annotated Criminal Code aims to …

Extradition And Trial Delays: Recent Developments (And Lessons?) From Canada, Laura Ellyson

Articles, Book Chapters, & Popular Press

Extradition – the formal rendition of criminal fugitives between states – is well-known to be a time-consuming process that often has impacts, minor or major, on the ability of states to complete prosecution in a timely manner. Thus, the extradition process can sometimes be at odds with the right to trial within a reasonable time, which is part of the overall package of fair trial rights enshrined in international human rights law. In Canada, this right is implemented by paragraph 11(b) of the Canadian Charter of Rights and Freedoms. In recent years Canadian courts have developed a series of principles …

Contact Is A Stronger Predictor Of Attitudes Toward Police Than Race: A State-Of-The-Art Review, Amy Alberton, Kevin M. Gorey

Social Work Publications

Purpose – This scoping review thoroughly scanned research on race, contacts with police and attitudes toward police. An exploratory meta-analysis then assessed the strength of their associations and interaction in Canada and the USA. Key knowledge gaps and specific future research needs, synthetic and primary, were identified. The paper aims to discuss these issues.

Design/methodology/approach – A germinal methodological framework for conducting scoping reviews was used (Arksey and O’Malley, 2005). The authors searched for published or unpublished research over the past 15 years and retrieved 33 eligible surveys, 19 of which were included in a sample-weighted meta-analysis.

Findings – The …

Unlocking The Doors To Canadian Older Inmate Mental Health Data: Rates And Potential Legal Responses, Adelina Iftene

Articles, Book Chapters, & Popular Press

This article is based on a quantitative study investigating the quality of life of older Canadian prisoners. For this study, social science methodology was used to answer certain legal questions, such as: what are the mental health issues of older male offenders and how are these needs influencing the exercise of their legal rights? Are institutions prepared to deal with the increased needs of older offenders? If no, is this an infringement of this group's rights? In this article, the mental health problems of older offenders are first outlined. Second, the legal, policy, and institutional limitations in responding to these …

Impacts Of The Criminalization On The Everyday Lives Of People Living In With Hiv In Canada, Barry D. Adam, Richard Elliott, Patrice Corriveau, Ken English

Sociology, Anthropology, and Criminology Publications

As part of a study on the social consequences of the criminal justice system on people living with HIV or AIDS (PHAs) in Canada, this article focuses on how heightened public identification of HIV with criminal matters is having wide ranging effects on perceived personal security and in particular on negotiating potential romantic and sexual interactions. As articulated by the Supreme Court of Canada, the courts have been enforcing a requirement that HIV-positive people disclose their sero-status to prospective partners, relying on the notion that “through deterrence it [the Criminal Code] will protect and serve to encourage honesty, frankness and …

Telus: Asking The Right Questions About General Warrants, Steve Coughlan

Articles, Book Chapters, & Popular Press

The general warrant provisions in the Criminal Code have often been interpreted by lower courts in a way which threatens to make that power quite open-ended, and to make those warrants available as a way of making an "end run" around the requirements of other provisions. This note argues that the Supreme Court of Canada is correct, in Telus,to adopt a "substantive equivalence" approach to general warrants, thereby limiting the circumstances in which they can be used. Lower courts have sometimes taken the view that a general warrant is only unavailable if the proposed technique would fall squarely within some …

The Rise And Fall Of Duress (Or How Duress Changed Necessity Before Being Excluded By Self-Defence), Steve Coughlan

Articles, Book Chapters, & Popular Press

The Supreme Court of Canada decision in R. v. Ryan significantly reshaped both the common law and statutory defenses of duress, harmonizing them and, in the case of the common law defense, fully articulating it for the first time. The decision is admirable for that reason. This paper argues that two further results can also be seen. First, the defense of necessity is a common law one which is conceptually similar to duress. The Court's reasoning at a policy level about duress ought therefore to be applicable to necessity: this paper traces the ways in which that latter defense ought …

Book Review: Gary Botting, Extradition Between Canada And The United States (Ardsley: Transnational Publishers, 2005), Robert Currie

Articles, Book Chapters, & Popular Press

Both domestic and international laws regarding the extradition of fugitive criminal offenders are in a state of flux throughout the world. The current legal landscape reflects tension between the interest of state authorities in promoting “security,” on the one hand, and increasing recognition that human rights obligations are at play, on the other. Gary Botting’s book, Extradition Between Canada and the United States, successfully addresses this tension by way of a detailed examination of what is probably the most integrated extradition partnership outside the European Union.

Electronic Evidence In Canada, Robert Currie, Steve Coughlan

Articles, Book Chapters, & Popular Press

This chapter discusses the issues surrounding electronic evidence in Canada. Topics discussed include the best evidence rule, electronic signatures, web-based evidence, and video-tape and security camera evidence. In addition rules around protection of privacy, discovery, and confidentiality are pursued. Finally the chapter also considers the many issues which arise around gathering electronic evidence in the criminal context, including wiretaps, general warrants, and searches of computers and cell phones.

Criminal Justice Models: Canadian Experience In European And Islamic Comparative Perspective, Bruce P. Archibald

Articles, Book Chapters, & Popular Press

This paper examines Canadian models of criminal justice in a European and Islamic comparative perspective. The traditional model of Canadian criminal justice is a state centred adversarial one intended to punish, deter and/or rehabilitate offenders who are accorded formal due process protections embedded in a liberal constitutional and procedural rights. This model has been transformed recently into an ambiguously tripartite adversarial model through an overlay of victims’ rights at all stages. However, Canadian law also recognizes alternative processes through various forms of problem solving courts and sometimes comprehensive restorative justice approaches, the latter rooted in relational notions of rights. Meanwhile, …

Prosecutorial Discretion In Assisted Dying In Canada: A Proposal For Charging Guidelines, Jocelyn Downie, Ben White

Articles, Book Chapters, & Popular Press

English Abstract: An Expert Panel of the Royal Society of Canada and a Select Committee of the Québec National Assembly both recently recommended the issuance of permissive guidelines for the exercise of prosecutorial discretion on voluntary euthanasia and assisted suicide and “medical aid in dying” respectively. It seems timely, therefore, to propose a set of offence-specific guidelines for how prosecutorial discretion should be exercised in cases of voluntary euthanasia and assisted suicide in Canadian provinces and territories. We take as our starting point the only existing guidelines of this sort currently in force in the world (i.e. the British Columbia …

Recent Crime Legislation: The Challenge For Prison Health Care, Adelina Iftene, Allan Manson

Articles, Book Chapters, & Popular Press

This article reviews the potential effects of Bill C-10 and related legislation that provide for more legal minimum sentences and reduce the possibility of conditional release. Without more resources overcrowding - an already pressing issue in Canadian corrections - will increase. We further review the potential effects of overcrowding as exemplified in other jurisdiction.

Recent Crime Legislation: The Challenge For Prison Health Care, Adelina Iftene, Allan Manson

Articles, Book Chapters, & Popular Press

This article reviews the potential effects of Bill C-10 and related legislation that provide for more legal minimum sentences and reduce the possibility of conditional release. Without more resources overcrowding - an already pressing issue in Canadian corrections - will increase. We further review the potential effects of overcrowding as exemplified in other jurisdiction.

The Canadian Criminal Jury, Neil Vidmar, Regina Schuller

Faculty Scholarship

The Canadian criminal jury system has some unique characteristics. In contrast to American law, that gives precedent to free speech over fair trial, and English law, that favors fair trial over free speech, Canadian law occupies a middle ground balancing these competing values .Jury selection procedure in most trials is similar to that of England: jurors are assumed to be “impartial between the Queen and the accused” and are selected without a voir dire. However, in cases involving exceptional pretrial publicity or involving accused persons from racial or ethnic minority groups, jurors are vetted by a “challenge for cause” process …

R. V. Munyaneza: Pondering Canada's First Core Crimes Conviction, Robert Currie, Ion Stancu

Articles, Book Chapters, & Popular Press

Canada recently completed its first genocide trial, which resulted in the conviction of the Rwandan accused, Desiré Munyaneza, for crimes committed during the Rwandan genocide. While the case is still under appeal, it represents a significant success for Canada’s relatively new core crimes legislation, the Crimes Against Humanity and War Crimes Act, and was the first prosecution undertaken pursuant to that law. Drawing upon the Munyaneza case, the authors analyze the legislation and evaluate its effectiveness. They conclude that the model is an effective one that both bodes well for Canada’s future participation in the battle against impunity, and provides …

R. V. Munyaneza: Pondering Canada's First Core Crimes Conviction, Robert Currie

Articles, Book Chapters, & Popular Press

Canada recently completed its first genocide trial, which resulted in the conviction of the Rwandan accused, Desiré Munyaneza, for crimes committed during the Rwandan genocide. While the case is still under appeal, it represents a significant success for Canada’s relatively new core crimes legislation, the Crimes Against Humanity and War Crimes Act, and was the first prosecution undertaken pursuant to that law. Drawing upon the Munyaneza case, the authors analyze the legislation and evaluate its effectiveness. They conclude that the model is an effective one that both bodes well for Canada’s future participation in the battle against impunity, and provides …

Effects Of The Criminalization Of Hiv Transmission In Cuerrier On Men Reporting Unprotected Sex With Men, Barry D. Adam, Richard Elliott, Winston Husbands, James Murray, John Maxwell

Sociology, Anthropology, and Criminology Publications

This paper reports on the perceptions and practices of men who have frequent unprotected sex with men in a socio-legal environment defined by the 1998 decision of the Supreme Court of Canada in R. v. Cuerrier. HIV-positive people are increasingly finding themselves in court since Cuerrier and many are trying to take account of legal reasoning in their own conduct. The judicial construction of behaviour likely to transmit HIV relies on a set of presumptions concerning individual responsibility, rational and contractual interaction, and consenting adults that raise a series of ambiguities and uncertainties among HIV-positive people attempting to implement …

Rodriguez Redux, Jocelyn Downie, Simone Bern

Articles, Book Chapters, & Popular Press

Assisted suicide has once again surfaced as an issue of public attention. Just in the past year, four cases have been in the news. In addition the results of a major study on the attitudes of cancer patients in palliative care towards euthanasia and physician-assisted suicide and the results of an Ipsos Reid public opinion poll on assisted suicide were released. Vigorous calls both for and against the decriminalization of assisted suicide followed. Given that it has been fifteen years since the release of the most famous assisted suicide case in Canada, and given this recent spate of attention, we …

Book Review: Gary Botting, Extradition Between Canada And The United States (Ardsley: Transnational Publishers, 2005), Robert Currie

Articles, Book Chapters, & Popular Press

Both domestic and international laws regarding the extradition of fugitive criminal offenders are in a state of flux throughout the world. The current legal landscape reflects tension between the interest of state authorities in promoting “security,” on the one hand, and increasing recognition that human rights obligations are at play, on the other. Gary Botting’s book, Extradition Between Canada and the United States, successfully addresses this tension by way of a detailed examination of what is probably the most integrated extradition partnership outside the European Union.

Comparative Jurisprudence On Participation Offenses: Joint Criminal Enterprise, Aiding, And Abetting In Jurisdictions For The International Criminal Tribunal For Rwanda, The International Criminal Tribunal For Yugoslavia, England (And Wales), Scotland, South Africa, Australia, New Zealand, Canada, And The United States, Cwru Law

War Crimes Memoranda

No abstract provided.

Hard Cases, Carl E. Schneider

Articles

Robert Latimer was born in 1953 on a farm on the prairies of Saskatchewan and grew up to own a 1,280-acre farm. In 1980 he married, and that year Tracy, the first of four children, was born. During her birth, Tracy's brain was terribly damaged by lack of oxygen, and severe cerebral palsy ensued. By 1993 Tracy could laugh, smile, and cry, and she could recognize her parents and her siblings. But she could not understand her own name or even simple words like "yes" and "no." She could not swallow well and would so often vomit her parents kept …