Criminal Law Commons^™

Twenty Years After Krieger V Law Society Of Alberta: Law Society Discipline Of Crown Prosecutors And Government Lawyers, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

Krieger v. Law Society of Alberta held that provincial and territorial law societies have disciplinary jurisdiction over Crown prosecutors for conduct outside of prosecutorial discretion. The reasoning in Krieger would also apply to government lawyers. The apparent consensus is that law societies rarely exercise that jurisdiction. But in those rare instances, what conduct do Canadian law societies discipline Crown prosecutors and government lawyers for? In this article, I canvass reported disciplinary decisions to demonstrate that, while law societies sometimes discipline Crown prosecutors for violations unique to those lawyers, they often do so for violations applicable to all lawyers — particularly …

A Legal History Of The Regulation Of Assault-Style Rifles In Canada, R. Blake Brown

Dalhousie Law Journal

This article provides the first legal history of the regulation of “assault-style” weapons in Canada. A contentious part of Canada’s gun control regime is the firearms classification system that divides guns into non-restricted, restricted, and prohibited firearms. The sale of semi-automatic firearms, often based on military designs that could be quickly fired and reloaded, sparked concerns since the 1970s, particularly after mass shooting events. Canada adopted a classification regime relying on both statutory provisions that used technical details of firearms and Orders-in-Council to name models of firearms as restricted or prohibited weapons. Critics warned that this system allowed private citizens …

Anchoring Lifeline Criminal Jurisprudence: Making The Leap From Theory To Critical Race-Inspired Jurisprudence, Danardo S. Jones

Dalhousie Law Journal

This article takes as a starting point the claim that anti-Black racism permeates Canadian society and finds expression in our institutions, most notably the criminal justice system. Indeed, anti-Black racism in criminal justice and its impact on Black lives are not credibly in dispute. Thus, what should concern legal scholars is the staying power or permanence of racism. In other words, should Canadian legal scholars ‘get real’ about the intractability of race? Or can anti-Black racism be effectively confronted by developing legal and evidentiary tools designed to fix, rather than dismantle, the current system? Put another way, this article aims …

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. …

Conditions Of Confinement In Nova Scotia Jails Designated For Men: East Coast Prison Justice Society Visiting Committee Annual Report 2021-2022, Sheila Wildeman, Harry Critchley, Hanna Garson, Laura Beach, Margaret-Anne Mchugh

Reports & Public Policy Documents

This is the second Annual Report of the East Coast Prison Justice Society (“ECPJS”) Visiting Committee (“VC”).

The purpose of the ECPJS VC is to bring increased accountability and transparency to the Nova Scotia correctional system in light of human rights standards, domestic and international. While the Elizabeth Fry Society of Mainland Nova Scotia provides human rights monitoring of conditions of incarceration experienced by women and non-binary people in federal prisons and provincial jails in the Atlantic region, and the federal Office of Correctional Investigator provides further oversight of conditions in federal prisons, there is no comparable independent oversight of …

Advocates’ Perspectives On The Canadian Prison Mother Child Program, Martha Paynter, Clare Heggie, Ruth Martin-Misener, Adelina Iftene, Gail Tomblin Murphy

Articles, Book Chapters, & Popular Press

Over twenty years ago, Correctional Services Canada launched the Mother Child Program (MCP) to mitigate harms of separating incarcerated mothers from their babies. It has never been subjected to internal evaluation or independent study. The aim of the qualitative study was to explore the experiences of advocates employed by Elizabeth Fry Societies (EFS), community organizations dedicated to the support of incarcerated women, with respect to supporting people who were pregnant or had young children while federally incarcerated and did or did not participate in the MCP.

The Legal Regulation Of Sadomasochism And The So-Called “Rough Sex Defence”, Elaine Craig

Articles, Book Chapters, & Popular Press

The focus of this article is on the judicial application of Canada’s sexual assault doctrine in the context of the so called ‘rough sex defence’. Canadian criminal courts have seen an increased prevalence of legal narratives about S/M in recent years. In particular, courts are increasingly confronted with individuals who defend themselves against allegations of sexual assault by claiming that the impugned acts constituted consensual S/M or ‘rough sex’. The analysis is aimed at illustrating the way in which courts may fail to properly apply legal doctrine because of a problematic approach to the S/M context in which allegations arose. …

Editors' Note, Robert Currie, Neil Boister, Masha Fedorova, Sabine Gless, Cecily Rose, Sara Wharton

Articles, Book Chapters, & Popular Press

No abstract provided.

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 …

State Responsibility For International Bail-Jumping, Robert Currie, Elizabeth Matheson

Articles, Book Chapters, & Popular Press

Over the last decade, there has been a spate of incidents in Canada and the United States involving Saudi Arabian nationals who, while out on bail for predominantly sexual crimes, were able to abscond from the countries despite having surrendered their passports. Investigation has revealed evidence supporting a reasonable inference that the government of Saudi Arabia has, in fact, assisted its nationals to escape on these occasions. This article makes the case that this kind of conduct amounts not just to unfriendly acts but also to infringements upon the territorial sovereignty of both states and serious breaches of the international …

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 …

Non-Consensual Condom Removal In Canadian Law Before And After R. V. Hutchinson, Lise Gotell, Isabel Grant

Dalhousie Law Journal

This paper examines the phenomenon of non-consensual condom removal (NCCR) and its relationship to sexual assault in Canada. Using empirical studies and the insights of feminist theory, we explore the nature of the harms caused by NCCR and contend that this pervasive practice constitutes sexual assault. We then critique the decision of R v Hutchinson, which held that condom sabotage does not negate subjective consent, ignoring the dignitary harms of NCCR. While lower court decisions before Hutchinson recognized that consent to sex with a condom does not include consent to sex without, courts after Hutchinson have struggled to distinguish the …

R. C. Bissonnette And The (Un)Constitutionality Of Consecutive Periods Of Parole Ineligibility For A Life Sentence: Why The Qcca Got It Right And Why Section 745.51 Should Never Be Re-Written, Adelina Iftene

Articles, Book Chapters, & Popular Press

This article reviews the constitutional arguments upheld by the QCCA in Bissonnette and weighs them against the challenges that trial judges have encountered in applying s. 745.51 since 2012. By drawing on a qualitative review of cases in which s. 745.51 has been applied, as well as Charter principles, sentencing case law, and international practices, this article posits that the QCCA was correct in its approach to s. 745.51, both in finding it unconstitutional and in finding that the provision should not be read down to render it constitutional. This article advances the central argument that, in the context of …

Call For Action: Provinces And Territories Must Protect Our Genetic Information, Leah Hutt, Elaine Gibson, Erin Kennedy

Dalhousie Law Journal

The Genetic Non-Discrimination Act (GNDA), passed by Parliament in 2017, seeks to protect Canadians’ genetic information. The GNDA establishes certain criminal prohibitions to the use of genetic information and also amends federal employment and human rights legislation to protect against genetic discrimination. However, we argue that the GNDA alone is insufficient to protect Canadians given constitutional limitations on the powers of the federal government. Areas of profound importance relating to genetic discrimination are governed by the provinces and territories. We identify three key areas of provincial/territorial jurisdiction relevant to protection against genetic discrimination and outline the applicable legislative environments. We …

Critique-Inspired Pedagogies In Canadian Criminal Law Casebooks: Challenging "Doctrine First, Critique Second" Approaches To First-Year Law Teaching, Sarah-Jane Nussbaum

Dalhousie Law Journal

This article is a critical evaluation of Canadian criminal law casebooks. The author explores the aims, practices, and challenges of these teaching texts by examining their relationship to critique-inspired pedagogical methods. A number of English-language Canadian criminal law casebooks add a welcome feature to the Canadian common law teaching landscape: all but one of six recently published casebooks teach doctrine and critique together. The research builds on an emerging scholarship of Canadian legal education by demonstrating evidence of critical political commitments and critique-inspired teaching methods within Canadian criminal law education. Yet casebook editors and other professors who utilize critical methods …

A Review Of Harold Johnson, Peace And Good Order: The Case For Indigenous Justice In Canada, Haneen Al-Noman

Dalhousie Law Journal

Haneen Al Noman: A Review of Harold Johnson, Peace and Good Order: The Case for Indigenous Justice in Canada (Toronto: McClelland & Stewart, 2019).

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 Disruption Of Covid-19: How A Virtual World Creates Opportunity For Improvement In The Criminal Justice System’S Treatment Of Complainants Of Sexual Violence, Leah Roberston

Law in a Post-Pandemic World

This paper argues that the COVID-19 pandemic has normalized video conferencing within the legal system such that survivors ought to be able to routinely testify outside of the court environment. Though there have always been high rates of sexualized violence, the onset of the pandemic has led to increased rates of sexualized violence, which could lead to greater numbers of trials prosecuting perpetrators. However, only a small amount of complainants turn to the court as a form of justice. This is likely due to the inhumane conditions inflicted on complainants during the trial process. The pandemic has revealed that the …

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 …

Reasonable Expectations Of Privacy In An Era Of Drones And Deepfakes: Expanding The Supreme Court Of Canada’S Decision In R V Jarvis, Suzie Dunn, Kristen Mj Thomasen

Articles, Book Chapters, & Popular Press

Perpetrators of Technology-Facilitated gender-based violence are taking advantage of increasingly automated and sophisticated privacy-invasive tools to carry out their abuse. Whether this be monitoring movements through stalker-ware, using drones to non-consensually film or harass, or manipulating and distributing intimate images online such as deep-fakes and creepshots, invasions of privacy have become a significant form of gender-based violence. Accordingly, our normative and legal concepts of privacy must evolve to counter the harms arising from this misuse of new technology. Canada’s Supreme Court recently addressed Technology-Facilitated violations of privacy in the context of voyeurism in R v Jarvis (2019). The discussion of …

Private Records, Sexual Activity Evidence, And The Charter Of Rights And Freedoms, Elaine Craig

Articles, Book Chapters, & Popular Press

In December 2018, Parliament amended the Criminal Code to add a new regime dictating the process and admissibility criteria for private records in the possession of an accused in a sexual assault proceedings. The legislation also includes new procedural requirements for applications to introduce evidence of a complainant’s other sexual activity under section 276 of the Criminal Code. Several courts have concluded that various parts of these new provisions – which some have nicknamed the Ghomeshi Rules – are unconstitutional. The problem with these decisions is that, in each one, the court has failed to properly balance the competing …

Book Review: Research Handbook On Transnational Crime, Robert Currie

Articles, Book Chapters, & Popular Press

No abstract provided.

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 …

Human Rights And Transnational Organized Crime, Robert Currie, Sarah Douglas

Articles, Book Chapters, & Popular Press

This chapter will scrutinize the points at which these two legal regimes intersect with and infuse each other. It will proceed in three sections. The first section will provide a brief overview of the international human rights law system, specifically tailored to ground the following parts. The second section will examine the means by which protection is given to the human rights of individuals who are targeted for criminal investigation and prosecution as a result of their alleged involvement in TOC (referred to for efficiency as “accused persons” or “the accused”). It will first briefly explain the means by which …

Dispute Settlement Under The African Continental Free Trade Area Agreement: A Preliminary Assessment, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

The African Continental Free Trade Area Agreement (AfCFTA) will add a new dispute settlement system to the plethora of judicial mechanisms designed to resolve trade disputes in Africa. Against the discontent of Member States and limited impact the existing highly legalized trade dispute settlement mechanisms have had on regional economic integration in Africa, this paper undertakes a preliminary assessment of the AfCFTA Dispute Settlement Mechanism (DSM). In particular, the paper situates the AfCFTA-DSM in the overall discontent and unsupportive practices of African States with highly legalized dispute settlement systems and similar WTO-Styled DSMs among other shortcomings. Notwithstanding the transplantation of …

Forecasting Crime? Algorithmic Prediction And The Doctrine Of Police Entrapment, Mathew Zaia

Canadian Journal of Law and Technology

As the Commissioners of Police in mid-19th century England illustrate above, the prevention of crime is an inherent function of public policing. To carry out their function of detecting and combating crime, police frequently endeavour to locate and use new tools enabling them to pre-empt criminal activity.2 Many conceptual policing models that drive law enforcement’s focus have been highlighted in scholarly literature: community, problem-oriented, CompStat- driven (short for computer statistics), harm-focused, and order maintenance policing. Developments in modern technology provide additional tools, allowing police forces to delve deeper into suspects’ behaviour and uncover previously unknown patterns of information. Such developments …

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.

Disabling Solitary: An Anti-Carceral Critique Of Canada's Solitary Confinement Litigation, Sheila Wildeman

Research Papers, Working Papers, Conference Papers

The title of this chapter signifies at least three things. The first is the disabling effects of solitary confinement. The second is recent efforts of prison justice advocates in Canada to use law, or specifically litigation, to disable the logic of solitary confinement: to disrupt that logic through the logic of human rights. The third, most oblique reference, and one I develop here, speaks to dangers presented by the path Canada’s solitary confinement litigation has taken: a path of isolating disability-based prison justice claims from the wider ambitions of intersectional substantive equality. My thesis is that this isolation of disability …