Law Commons^™

Indigenous Self-Government And Criminal Law: The Path Towards Concurrent Jurisdiction In Canada, Michael Michel

Dalhousie Law Journal

This is a special contribution that has not been peer-reviewed.

The past few decades have seen an increase in culturally responsive policies and programs aimed at ameliorating the hardship and disadvantage faced by Indigenous peoples in the Canadian criminal justice system. These policies and programs, however, operate within a criminal justice system that consistently fails Indigenous peoples. What has yet to be tried is a nation-to-nation approach to criminal law jurisdiction where Indigenous peoples have legislative authority to enact and administer their own criminal laws. This paper shows that Indigenous jurisdiction over criminal law is possible within Canada’s constitutional framework. …

Committing To Justice: The Case For Impact Of Race And Culture Assessments In Sentencing African Canadian Offenders, Maria C. Dugas

Dalhousie Law Journal

Canadian judges have made notable, although too limited, strides to recognize the unique conditions of Black Canadians in sentencing processes and decisionmaking. The use of Impact of Race and Culture Assessments in sentencing people of African descent has gradually gained popularity since they were first introduced in R v “X.” These reports provide the court with the necessary information about the effect of systemic anti-Black racism on people of African descent and how the experience of racism has informed the circumstances of the offence, the offender, and how it might inform the offender’s experience of the carceral state. This paper …

The Intellectually Disabled Witness And The Requirement To Promise To Tell The Truth, Jonas-Sébastien Beaudry

Dalhousie Law Journal

Mentally disabled victims of sexual crimes may be prevented from acting as witnesses in a criminal trial if their mental capacity is challenged. They face an important obstacle to access justice if the case against their alleged aggressor mostly relies on their testimony In R. v. D.A.I., in 2012, the Supreme Court of Canada revisited the Canada Evidence Act's requirement of promising to tell the truth and lowered the previously ambiguous threshold of cognitive capacities required to satisfy this requirement. The Evidence Act has been amended in 2015 to reflect the Court's decision. While apparently facilitating people with mental disabilities' …

Criminal Law And The Counter-Hegemonic Potential Of Harm Reduction, Alana Klein

Dalhousie Law Journal

Harm reduction approaches to drug use have been lauded for saving lives, being cost-effective, elevating pragmatism over prohibitionist ideology, being flexible in tailoring responses to the problem, and for their counter-hegemonic potential to empower people who use drugs. This article examines the legal systems engagement with harm reduction, and, in particular,recent cases that incorporate harm reduction s focus on empirical evidence in policy making into Canadian constitutional rights jurisprudence. It argues that harm reduction approaches in this venue may hold promise as a bulwark against some of the marginalizing features of traditional criminaljustice approaches. However, the article also warns of …

Time To Unpack The Juggernaut?: Reflections On The Canadian Federal Parliamentary Debates On "Cyberbullying", Jane Bailey

Dalhousie Law Journal

Cyberbullying has come to the fore in federal parliamentary debate largely in the last two years in tandem with high profile media reporting of several teen suicides. The government responded with the Protecting Canadians from Online Crime Act that incorporates, among other things, criminal law responses to nonconsensual distribution of intimate images and gender-based hate propagation, but only at the expense of expanded state surveillance. However, a review of the parliamentary debates reveals a richer array of approaches in which the efficacy of criminal law responses was contested. This article reports on the diversity of viewpoints that emerged within the …

Imagining Success For A Restorative Approach To Justice: Implications For Measurement And Evaluation, Jennifer J. Llewellyn, Bruce P. Archibald, Don Clairmont, Diane Crocker

Dalhousie Law Journal

Whether restorative justiceis "successful," or not, is a complex question. Attempts to answer this question by practitioners, professionals, and scholars have often been bounded by common notions of success in standard criminal justice terms. The authors of this paper suggest that ifrestorative justice is properly understood in terms of its focus on relationship, success should be measured on new and different dimensions. This paper seeks to bring a relational imagination to the scholarly effort of capturing the essence ofrestorative justice and figuring out how to assess its successes and failures. The authors offer a foundation and agenda for future research …

"No Sinecure": William Young As Attorney General Of Nova Scotia, 1854-1857, William H. Laurence

Dalhousie Law Journal

Focusing on the tenure (1854-1857) of William Young, this article examines the legal work of nineteenth-century Nova Scotian attorneys general. Although he served without the benefit of an established justice department, Young fulfilled a wide range of duties and completed an impressive volume of work, which required knowledge of both public and private law, and which demanded advocacy advisory, solicitorial, and legislative drafting skills. This article argues that though Young's performance as a Crown prosecutor received the most public attention, his accomplishments outside the criminal courtroom, especially those relating to the administration ofjustice and legislative development, had the most significant …

Medicine And The Law: The Challenges Of Mental Illness, Beverley Mclachlin

Dalhousie Law Journal

In this lecture, I offer some thoughts on a medical/legal issue that is old, yet perennially pertinent; that is common, yet extraordinary; that is wellknown, yet all too often swept under the carpet. I refer to the issue-or more accurately the plethora of issues-that surround mental health and the law.

Reading The Judicial Mind: Predicting The Courts' Reaction To The Use Of Neuroscientific Evidence For Lie Detection, Jennifer Chandler

Dalhousie Law Journal

How will the courts react to the emerging technology ofdetecting deception using neuroscientific methods such as neuro-imaging? The sociological theory of the autonomy of technology suggests that if neuroscientific techniques come to be seen as reliable for this purpose, other objections will soon be abandoned. The history of the judicial reaction to DNA evidence illustrates this pattern. As DNA evidence came to be seen as highlyreliable, the courts rapidly abandoned their concerns that juries would be overwhelmed by the "mystique of science" and that the justice system would be "dehumanized." The legaljustifications for rejecting polygraph evidence are explored in order …

R' Blake Brown, A Trying Question: The Jury In Nineteenth-Century Canada, Mary Stokes

Dalhousie Law Journal

In a 1984 review essay on the inter-relationship(s) oflaw and society in English criminal law historiography, Doug Hay observed that "in history, there is no 'background,"" His point was that there are an infinite number ofbackgrounds, all of which are moving and changing, often in non-linear fashion, at different paces, either in counter-point or direct dialogue with the foreground which is the immediate subject ofexposition. Legal historians who put their topics "in context" by treating the background as static are now fortunately few, at least when this background is conceived of as social or economic. But as Hay observed, the …

Parents, Children, And The Law Of Assault, Hamish Stewart

Dalhousie Law Journal

The debate concerning the constitutionality and the possible repeal of s. 43 of the Criminal Code, the so-called "spanking" provision, has raised an important issue: when a parent touches a child without the child's consent, under what conditions is the parent's conduct an assault? Supporters of the'repeal of s. 43 have suggested that parents are protected from inappropriate prosecutions by the exercise of prosecutorial discretion and by the common law defences of de minimis non curat lex and necessity But prosecutorial discretion is not a suitable substitute for a proper definition of the scope of criminal liability,and the defences ofde …

C. English, Ed., Essays In The History Of Canadian Law, Volume Ix: Two Islands: Newfoundland And Prince Edward Island, R Blake Brown

Dalhousie Law Journal

The Osgoode Society for Canadian Legal History has played a vital role in encouraging legal history research in Canada, and one of its most important programs has been the Essays in the History of Canadian Law series. Canada lacks a legal history journal, but since 1981 the Osgoode Society has provided an opportunity for scholars to publish their work in one of its collections. Two Islands is the ninth such edited volume by the Osgoode Society that bears the title Essays in the History of Canadian Law. The first two volumes, published in 1981 and 1983, were general collections containing …

The Boundaries Of The Criminal Law: The Criminalization Of The Non-Disclosure Of Hiv, Isabel Grant

Dalhousie Law Journal

In this paper, the author examines the trend toward the increased criminalization and punishment of persons with HIV who fail to inform their stxual partners of their HIV-positive status. Since the Supreme Court of Canada's decision in R. v. Cuerrier, such behaviour may constitute aggravated assaultor aggravated sexual assault, the latter offence carrying a maximum sentence of life imprisonment. The paper surveys the Canadian case law and highlights the trend towards the imposition of increasingly harsh sentences. After reviewing public-health and criminal law options for dealing with nondisclosure of one's HIV status, the author concludes that criminal law should only …

Retribution, Restoration, And White-Collar Crime, Katherine Beaty Chiste

Dalhousie Law Journal

A "restorative" approach to criminality and conflict has been proposed in a number of common law jurisdictions in a variety of legal contexts, both civil and criminal, with an interesting exception: white-collar crime, which is discussedin an almost exclusively retributive vocabulary. This paper explores what a specifically restorative response to white-collar crime might look like, a response which above all else would seek to heal the harm the crime has done. In particular,the author looks at the possibilities for voluntary participation of victims and offenders; broad stakeholder inclusion and a focus on future relations rather than past offences-all necessaryparts of …

Child Pornography In Canada And The United States: The Myth Of Right Answers, Travis Johnson

Dalhousie Law Journal

Child pornography is an increasing worldwide concern and is one of the most active fronts in the ongoing battle between freedom of expression and public safety and morality. In 2005, the child pornography provisions of the Canadian Criminal Code were amended in response to the controversial decision of the Supreme Court in R. v. Sharpe. Similar legislative response has occurred in the United States following the U.S. Supreme Court decision inAshcroft v. Free Speech Coalition. A comparative examination of the legislative and judicial treatments of the issue of child pornography in these countries reveals that despite reaching differing rights-balancing positions, …

The Big Chill?: Contextual Judgment After R. V Hamilton, Richard Devlin, Matthew Sherrard

Dalhousie Law Journal

The tone and thrust of the Ontario Court ofAppeal's decision in R. v. Hamilton will serve to chill efforts by sentencing judges to tailor their responsibilities to accord with the recognized realities of systemic and intersectional inequality in Canadian society The decision presents an unduly conservative response to the judicial function question, and an understandable, if excessively cautious, answer with regard to the application of systemic, intersectional inequality issues in practice. Specifically, the decision underplays the overall remedial goal of section 718 of the Criminal Code by overemphasizing the particularity of Aboriginal peoples, and ignoring the specificity of especially vulnerable …

Spaceship Sheriffs And Cosmonaut Cops, Lee Seshagiri

Dalhousie Law Journal

This paper examines some of the current legal regimes applicable to criminal law in outer space and offers insights into options for future legal developments in the cosmos. It begins by setting out the context for law enforcement in outer space, emphasizing the commercial nature of future space exploration and the need for laws and law enforcement in that environment. Next, various methods for assigning legal jurisdiction in space are examined, and the underlying justifications for the exercise of such jurisdiction are considered. The paper goes on to explore preventative approaches to space crime, highlighting the usefulness of such approaches …

The Criminal Defence Lawyer's Role, David Layton

Dalhousie Law Journal

Defence lawyers often fight to prevent the conviction of people who have committed serious crimes. How can this role be justified? In providing his answer the author generally accepts the traditional view of criminal lawyering according to which defence counsel "does good" by ensuring that the state does not obtain a conviction in the absence of proof beyond a reasonable doubt based on admissible and reliable evidence Ethical advocacy in the criminal context is thus heavily influenced by a conception of justice that includes not only the search for truth but also due process rights for accused persons. The author …

Guilty Plea Revocation, Constitutional Waiver, And The Charter: "A Guilty Plea Is Not A Trap", John Dr Craig

Dalhousie Law Journal

The entry of a guilty plea has significant constitutional ramifications. It relieves the Crown of its obligation to prove the elements of an offence beyond a reasonable doubt and constitutes a waiver by the accused of various rights including the right to put the Crown's case to the test of a trial, the right to confront Crown witnesses through cross-examination and the right to remain silent in relation to the determination of legal guilt. In light of these constitutional dimensions, the article considers an issue which has received little academic attention: the revocation of a guiltyplea. The authorassesses the existing …

Sexual Assault In Abusive Relationships: Common Sense About Sexual History, Christine Boyle

Dalhousie Law Journal

In this paper, the author, using a hypothetical fact scenario as a focus, discusses competing interpretations of the new "rape shield"provisions in ss. 276-276.4 of the Criminal Code. In spite of identifying appealing arguments based on the importance of examining context in the resolution of legal issues, she argues that s. 276(1) should be read as barring all evidence of sexual history between the complainant and the accused, including "pattern evidence", unless it relates to something other than consent or credibility.

A Confluence Of Authority And Critique, H Archibald Kaiser

Dalhousie Law Journal

Reading about murder in the news, seeing it portrayed on the longrunning British television series Inspector Morse, or pondering it as one digests Crime and Punishment are in many ways far preferable to studying, teaching or practising the law of homicide. After a few chapters, and particularly following my re-immersion into the cold substantive law of homicide which commences in chapter 3, one is certainly reminded that this is not a work to read as a pastime in "blissful circumstances". It is, nonetheless, a remarkably good book in terms of its breadth, authority and originality in approach and substance. It …

Sedition In Nova Scotia: R. V. Wilkie (1820) And The Incontestable Illegality Of Seditious Libel Before R. V. Howe (1835), Barry Cahill

Dalhousie Law Journal

Given its primacy and exceptionality in the Nova Scotian context, Wilkie both exemplifies the judiciary's role in official repression, and instantiates the importance of what Wright calls "the ideological mechanisms of the criminal law" in prescribing the outer limits of legitimate political discourse. This paper examines the first known use by the government of Nova Scotia of the eighteenth-century, judicially-invented misdemeanour of seditious libel in order to silence and punish criticism of the ruling eite. As Nova Scotia had neither indigenous caselaw, nor statutory legislation to supplement and reinforce the common law offence-Upper Canada's SeditionAct (1804) was still in full …

Proportionality As A Guiding Principle In Young Offender Dispositions, Paul Riley

Dalhousie Law Journal

Sentencing is traditionally regarded as one of the most difficult and challenging functions of the criminal justice system. In arriving at the appropriate sanction to be imposed upon an offender, a court must reconcile the principles and objectives of the criminal law with the criminal act committed, the circumstances surrounding its commission, and the character of the offender who committed it. The court must, with the guidance of a few abstract, broadly philosophical, and often contradictory principles of sentencing, decide upon a sanction which is appropriate in the very concrete and factually specific case within which it is presented. This …

Family Violence-Investigating Child Abuse And Learning From British Mistakes, Alastair Bissett-Johnson

Dalhousie Law Journal

It seems appropriate at the onset to set out something of what the disciplines of law, medicine and social work know about family violence and when, during recent years, this knowledge came to the attention of professionals, the public and legislature. We can then, perhaps, judge whether our existing laws, rules of evidence and procedure take this information adequately into account in dealing with cases of violence within the family. Whilst solving these problems takes time, and law often lags behind the behavioural sciences, the question arises whether the lag is too long and whether differences between experts in the …

A Guide To Pathological Evidence For Lawyers And Police Officers, Gilles Renaud

Dalhousie Law Journal

The Bench, the Criminal Bar, the Civil Bar, and Law Enforcement officers will all hail the publication of the Third Edition of this outstanding work by Dr. Jaffe, whose lengthy and distinguished career as the former Medical Director of the Centre of Forensic Sciences has been marked by a desire to educate and to demystify the science of pathology. Although the text is relatively brief, the 246 pages include 17 well structured and clearly written chapters that discuss authoritatively subjects ranging from the Medico-Legal Autopsy to the role of the Pathologist in instructing defence counsel. Of note, the topic of …

Criminology: A Reader's Guide, Bruce P. Archibald

Dalhousie Law Journal

As a journeyman law teacher, sometime sociologist, enthusiastic law reformer, and an occasional dabbler in criminology and comparative law, this volume came to me like manna from heaven. It's an intelligent catalogue of almost all I ever wanted to know but most often never had time to read. Modestly called "a reader's guide", this book will serve a multitude of purposes for anyone with an interest in criminology. It is an excellent starting point for the student wishing to commence research on nearly any serious criminological topic. Criminal justice professionals who wish to step out of their narrow niche and …

Aboriginal Peoples And Criminal Justice: A Special Report Of The Law Reform Commission Of Canada, Bruce P. Archibald

Dalhousie Law Journal

Canada's criminal justice system has been shaken out of its stolid complacency in recent years by demonstrated instances of unfair treatment of religious, ethnic and racial minorities, and in particular our Aboriginal peoples.' Faced with a hue and cry directed at the justice system, the federal Minister of Justice asked the Law Reform Commission of Canada to study "as a matter of special priority, the Criminal Code and related statutes and to examine the extent to which those laws ensure that Aboriginal persons and persons who are members of cultural or religious minorities have equal access to justice and are …

Paedophilia: The Criminal Responsibility Of Canada's Churches, Dawn Russell

Dalhousie Law Journal

In the last few years Canada's churches have been plagued by sexual abuse scandals from Newfoundland to British Columbia. Members of the clergy and of lay orders across the country have been charged with, and convicted of, criminal offences involving the physical and sexual abuse of children. Mediareports and television documentaries have emphasized the tremendous scope of the problem of clergy paedophilia, the seriousness of the harm done to the victims, and the irresponsible and sometimes heartless behaviour of church officials who received reports of such abuse. These stories have shocked the Canadian public and have given rise to a …

The Annotated Criminal Code En Version Quebecois: Signs Of Territoriality In Canadian Criminal Law, Nicholas Kasirer

Dalhousie Law Journal

Why bother annotating the Criminal Code? At first blush the answer seems as plain to the casual reader as it did to Sir Charles: judges and others join Parliament in making criminal law. Indeed, despite the promise implicit in its short title, the Criminal Code is no more than An Act respecting the Criminal Law - a near-code which was and is a boat designed to be full of holes, to the great comfort of those standing by as it was launched in 1892 and, to a lesser extent, those hard at work bailing it out today. Today's Code admits …

Canadian Criminal Jury Instructions, James P. Taylor

Dalhousie Law Journal

Canadian Criminal Jury Instructions ("CRIMJI") is an ambitious project. The authors, the Honourable Mr. Justice John Bouck (of the Supreme Court of British Columbia) and Professor Gerry Ferguson (of the Faculty of Law, University of Victoria) set out to provide a book that will "assist Canadian judges and Canadian lawyers in drafting and delivering a charge to a jury in a criminal case". The authors' twovolume work handily accomplishes this objective.