Criminal Law Commons^™

Covid-19, Human Rights And Public Health In Prisons: A Case Study Of Nova Scotia’S Experience During The First Wave Of The Pandemic, Adelina Iftene

Dalhousie Law Journal

The importance of preventing outbreaks in prisons during a pandemic, such as COVID-19, cannot be overstated. The risk of the infection spreading rapidly once inside these institutions is much higher than in the community, due to the underlying vulnerabilities of prison populations and the congregated living nature of prisons. This article documents the Nova Scotia provincial prison system’s experience in dealing with COVID-19 during the first wave, including its uniquely swift decarceration efforts. One goal of this investigation is to identify a set of best practices that can help Canadian prisons systems with their short-term responses to crisis in a …

Submission To The Toronto Police Services Board’S Use Of New Artificial Intelligence Technologies Policy- Leaf And The Citizen Lab, Suzie Dunn, Kristen Mj Thomasen, Kate Robertson, Pam Hrick, Cynthia Khoo, Rosel Kim, Ngozi Okidegbe, Christopher Parsons

Reports & Public Policy Documents

We write as a group of experts in the legal regulation of artificial intelligence (AI), technology-facilitated violence, equality, and the use of AI systems by law enforcement in Canada. We have experience working within academia and legal practice, and are affiliated with LEAF and the Citizen Lab who support this letter.

We reviewed the Toronto Police Services Board Use of New Artificial Intelligence Technologies Policy and provide comments and recommendations focused on the following key observations:

1. Police use of AI technologies must not be seen as inevitable
2. A commitment to protecting equality and human rights must be integrated …

Do Independent External Decision Makers Ensure That “An Inmate’S Confinement In A Structured Intervention Unit Is To End As Soon As Possible”? [Corrections And Conditional Release Act, Section 33], Jane B. Sprott, Anthony N. Doob, Adelina Iftene

Reports & Public Policy Documents

The Government of Canada established Correctional Service Canada’s (CSC) Structured Intervention Units (SIUs) to be a substitute for “Administrative Segregation” as it officially was known, or Solitary Confinement as it is more commonly known. The goals – explicit in the legislation governing federal penitentiaries (the Corrections and Conditional Release Act) – included provisions that SIUs were to be used as little as possible and that prisoners would be transferred from them as soon as possible.

This report examines some aspects of the operation of the IEDMs – the only SIU oversight mechanism that is currently active – using administrative data …

The Quotidian And Constitutive Practice Of Police Brutality Against Indigenous People, Elaine Craig

Articles, Book Chapters, & Popular Press

In Settler Colonialism, Policing and Racial Terror: The Police Shooting of Loreal Tsingine Sherene Razack gives voice to the settler colonial violence perpetrated against Loreal Tsingine, a 27-year-old Navajo women who was shot and killed by Austin Shipley. Shipley, a white male police officer, claimed he was trying to apprehend her for alleged shoplifting. The article, which is brilliantly and compellingly written (as is typical of all of Professor Razack’s work) makes several claims. Most centrally, however, she asserts that racial terror – a violence done at both structural and individual levels – is at the very heart of the …

Metaphysics & Morals In Canadian Criminal Justice: A Pragmatic Analysis Of The Conflict Between Neuroscience And Retributive Folk Psychology, Sarah Greenwood

LLM Theses

The retributive justification of Canadian criminal law contains several assumptions about human nature that conflicts with what neuroscience has established regarding human behavior and the function of rationality. Interdisciplinary discourse on this conflict between law and neuroscience has unnecessarily implicated the free will debate and is further stagnated by epistemic cultural differences between the two disciplines. To avoid these roadblocks, this thesis applies the methodological principles of pragmatic philosophy. Rather than asking which description of human nature is true, pragmatic inquiry focuses on the difference either would make in practice. This analysis reveals that retributive folk psychology in practice causes …

Covid-19 Provincially Incarcerated Individuals - A Policy Report, Adelina Iftene

Articles, Book Chapters, & Popular Press

This document is the result of an investigation into the impact of the COVID-19 pandemic on provincially incarcerated individuals and the Nova Scotia government’s responses relating to its prison population. It was supported by the Nova Scotia COVID-19 Health Research Coalition. In this memorandum, we describe the results of the investigation and propose solutions to better prepare for the second wave of COVID-19 or an alike pandemic situation.

Solitary Confinement Continues In Canada Under A Different Name, Adelina Iftene

Articles, Book Chapters, & Popular Press

Abusive uses of Structured Intervention Units and the Correctional Service’s conduct mean Parliament must get rid of SIUs or adopt Senate amendments.

Mr. Big And The New Common Law Confessions Rule: Five Years In Review, Adelina Iftene, Vanessa Kinnear

Articles, Book Chapters, & Popular Press

The Supreme Court of Canada released its decision of R v Hart in July of 2014. The decision provided a two-prong framework for assessing the admissibility of confessions obtained through the undercover police tactic known as “Mr. Big”. The goal of the framework was to address reliability concerns, to protect suspects from state abuse, and to reduce the risk of wrongful convictions. The first prong of the test created a new common law evidentiary rule, under which Mr. Big obtained confessions are now presumptively inadmissible. The second prong revamped the existing abuse of process doctrine.

In this article, the authors …

Sentencing Persons Convicted Of Minor Offences In Ghana: Reducing Judicial Over-Reliance On Imprisonment, Nenyo Kwasitsu

LLM Theses

This thesis argues that there is overuse of imprisonment for minor offenders in Ghana. These are offenders whose punishments go up to 3 years of jail time, essentially offending mainly for reasons of material poverty. Statutory sentencing provisions have essentially limited judges to impose jail terms. It is argued that one way to decongest Ghana’s prisons is to consider the institutionalization of a regime of community service orders and probation, the administration of which would equip the offenders with income-earning skills while they also reform. Drawing on Kenya, a country that has achieved reasonable success in this reform effort, this …

Employing Older Prisoner Empirical Data To Test A Novel S 7 Charter Claim, Adelina Iftene

Articles, Book Chapters, & Popular Press

This article builds the case for expanding s 7 of the Charter of Canadian Rights and Freedoms to apply to prison regulations and decisions in the specific context of an aging prison population. As original empirical data shows, prisons are highly insensitive to age-related problems, and inappropriate or insufficient medical treatment receives official sanction from a wide range of correctional documents. The stark inadequacies of the current system endanger older prisoners’ security of the person, and sometimes their lives, in ways that violate their rights under s 7, since the deprivations they suffer result from legislative policies and state conduct …

Improving The Criminal Justice System In Nigeria Through Restorative Justice: Lessons From Canada And New Zealand, Olaniran Akintunde

LLM Theses

This thesis argues the need for Nigeria to incorporate restorative justice within its criminal justice system. Its prevailing adversarial system is bedevilled with various challenges such as over- incarceration, recidivism, high rates of juvenile crime and prison congestion. The work draws lessons from Canada and New Zealand, two jurisdictions that have made improvements to similar systems like Nigeria via the adoption and practice of restorative justice. The advantages that a restorative justice alternative bring to criminal justice administration in Nigeria include less use of incarceration, improvement in social relationships, rehabilitation and the reintegration of young offenders. The thesis recommends that …

End-Of-Life In Prison Symposium Report, Adelina Iftene, Crystal Dieleman, Hanna Garson

Articles, Book Chapters, & Popular Press

In 2016, the Canadian Parliament passed “An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying)” (S.C. 2016, c. 3). This statute decriminalized providing medical assistance to the dying in a defined set of circumstances. The Corrections and Conditional Release Act (CCRA) was also amended: section 19 now reads “(1.1) Subsection (1) does not apply to a death that results from an inmate receiving medical assistance in dying, as defined in section 241.1 that Act.”

Pursuant to these amendments, this meeting focused on issues that may arise in implementing MAiD in …

The Case For A New Compassionate Release Statutory Provision, Adelina Iftene

Articles, Book Chapters, & Popular Press

In the last decade there has been a steady growth in the number of federally incarcerated people aging in prisons. These individuals have a long list of medical needs while they present low risk to communities. However, this category of people tends to spend more time in prison than their younger counterparts and face difficulties in being released. Using original empirical data, as well as the existing literature, I argue that a high number of these individuals need to be released through a compassionate release mechanism. This article has two purposes. One is to show that compassionate release does not …

The Pains Of Incarceration: Aging, Rights, And Policy In Federal Penitentiaries, Adelina Iftene

Articles, Book Chapters, & Popular Press

The number of aging people in prison has been on the rise in the last few decades. Their heightened needs place burdens on correctional institutions that have not been encountered before. This article presents the results of a study conducted with 197 older prisoners. This study’s findings identify issues raised by chronic pain in older prisoners and the management of this pain in a prison setting. Correctional Service Canada (CSC) does not acknowledge older prisoners as a vulnerable prison group, and correctional policies thus tend not to include age (and its implications) as a variable worthy of consideration. Data from …

The Case For A New Compassionate Release Statutory Provision, Adelina Iftene

Articles, Book Chapters, & Popular Press

In the last decade there has been a steady growth in the number of federally incarcerated people aging in prisons. These individuals have a long list of medical needs while they present low risk to communities. However, this category of people tends to spend more time in prison than their younger counterparts and face difficulties in being released. Using original empirical data, as well as the existing literature, I argue that a high number of these individuals need to be released through a compassionate release mechanism. This article has two purposes. One is to show that compassionate release does not …

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 …

Section 276 Misconstrued: The Failure To Properly Interpret And Apply Canada's Rape Shield Provisions, Elaine Craig

Articles, Book Chapters, & Popular Press

Despite the vintage of Canada’s rape shield provisions (which in their current manifestation have been in force since 1992), some trial judges continue to misinterpret and/or misapply the Criminal Code provisions limiting the use of evidence of a sexual assault complainant’s other sexual activity. These errors seem to flow from a combination of factors including a general misunderstanding on the part of some trial judges as to what section 276 requires and a failure on the part of some trial judges to properly identify, and fully remove, problematic assumptions about sex and gender from their analytical approach to the use …

Tort Claims And Canadian Prisoners, Adelina Iftene, Lynne Hanson, Allan Manson

Articles, Book Chapters, & Popular Press

Prisoners can be tragically wronged by the prison system, as highlighted by the recent Ashley Smith case. Tort actions have proven to be a problematic form of recourse for them. Negligence claims made by prisoners face many obstacles at every stage of the analysis: the duty of care, standard and breach, and causation. The authors offer an overview of tort litigation coming out of Canadian prison with a focus on health care based negligence claims, risks arising from other prisoners and the risk of self-harm. They find that these cases are unevenly resolved when the plaintiff is a prisoner. The …

Organized Crime Outlaws: An Evaluation Of Criminal Organization Legislation In Canada, Carol Fleischhaker

PhD Dissertations

This thesis explains how some organized crime outlaws, such as anti-Prohibitionists, the North American Mafia or La Cosa Nostra, outlaw motorcycle gangs, and Aboriginal street gangs, come to exist and thrive in Canadian society. It sets forth the historical development and nature of criminal organization laws in Canada, and compares the definition of “criminal organization” in the Criminal Code with other criminal law concepts, such as corporate criminals and white-collar criminals; conventional criminality or garden-variety predatory crime; terrorists; and criminal conspirators, parties, and accessories. It uses various concepts and assertions within criminological, sociological and psychological theories to explain the formation …

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.

Why Restorative Justice Is Not Compulsory Compassion: Annalise Acorn's Labour Of Love Lost [A Review Of 'Compulsory Compassion: A Critique Of Restorative Justice,' Annalise E. Acorn (Vancouver: University Of British Columbia Press, 2004)], Bruce P. Archibald

Articles, Book Chapters, & Popular Press

Annalise Acorn has produced an immensely engaging book about love, sexuality and law, written with verve and elan; however, it paints a hugely misleading picture of restorative justice that could be seriously damaging to what is arguably the most significant development in criminal justice since the emergence of the nation state. Restorative justice is changing the nature of criminal justice systems the world over. The Canadian criminal justice system is a leader in this regard, though it is far from being alone. Simplistic and dysfunctional systems of punitive criminal justice are being altered and supplemented by restorative programs that are …

Shooting Ourselves In The Foot: Why Mandatory Reporting Of Gunshot Wounds Is A Bad Idea, Merril Pauls, Jocelyn Downie

Articles, Book Chapters, & Popular Press

A recent position statement by the Ontario Medical Association’s Section on Emergency Medicine called on the Ontario government to pass a law requiring physicians to report gunshot wounds to police. The Ontario government quickly passed a motion to “introduce legislation to require hospitals and physicians to report gunshot wounds and knife injuries to their local police service.” The goals behind the position statement are laudable: “to assess and reduce immediate public risk and to collect data to inform future prevention strategies.” However, mandating that physicians report gunshot wounds is an ill-conceived response to the problem of gun-related violence. It will …

Restorative Justice: A Conceptual Framework, Jennifer Llewellyn, Robert L. Howse

Reports & Public Policy Documents

Restorative justice has become a fashionable term both in Canadian and foreign legal and social policy discourse. Restorative justice is certainly not a new idea. In fact, it is foundational to our very ideas about law and conflict resolution. There is, nevertheless, a lack of clarity about the meaning of this term. Often it is used as a catchall phrase to refer to any practice which does not look like the mainstream practice of the administration of justice, particularly in the area of criminal justice. Little attention has been spent attempting to articulate what distinguishes a practice as restorative. Rather, …