Law Commons^™

Exploring The Importance Of Criminal Legal Aid: A Canadian Perspective, Trevor C. W. Farrow, Marcus Pratt

Articles & Book Chapters

There is a growing global recognition that, in order to address the current access to justice crisis, more research, together with a better understanding of data, is needed. This article, through an examination of existing legal aid research primarily in the area of criminal law, explores some of what we know and do not know about the relative benefits and costs of providing different kinds of criminal legal aid services. Although not a comprehensive review of all available research, this article identifies data strengths and gaps and the need for further research and reforms.

Current Complications In The Law On Myths And Stereotypes, Lisa Dufraimont

Articles & Book Chapters

Myths and stereotypes represent an ongoing problem in Canadian sexual assault trials. Often, and paradigmatically, defence lawyers and trial judges rely on discredited sexist assumptions to the prejudice of female sexual assault complainants. However, a review of the recent appellate case law reveals many cases that do not fit this paradigm. Complications that have arisen include stereotypes about men or accused persons, legitimate defence arguments misidentified as stereotypes, close cases where reasonable people disagree about whether stereotypes have been invoked, and prejudicial forms of reasoning based other axes of discrimination. This paper surveys these developments and assesses an attempt by …

A Colonial Castle: Defence Of Property In R V Stanley, Alexandra Flynn, Estair Van Wagner

Articles & Book Chapters

In 2016, Gerald Stanley shot 22-year-old Colten Boushie in the back of the head after Boushie and his friends entered Stanley’s farm. Boushie died instantly. Stanley relied on a hangfire defence, rooted in the defence of accident, and was found not guilty by an all-white jury. Throughout the trial, Stanley invoked concerns about trespass and rural crime (particularly property crime) that raised much evidence of limited relevance to whether or not the shooting was an accident. We argue that the assertions of trespass, without formerly raising the defence of property or trespass, shaped the trial by providing a racist, anti-Indigenous-tinged …

The Costs Of Justice In Domestic Violence Cases : Mapping Canadian Law And Policy, Jennifer Koshan, Janet Mosher, Wanda Wiegers

Articles & Book Chapters

Domestic violence cases in Canada present unique access to justice challenges due to complex power dynamics, structural inequality, and the fact that victims, offenders, and children must often navigate multiple legal systems to resolve the many issues in this context. The complexity of these cases has both personal and systemic impacts. Different legal systems – for example, criminal, family, child protection, social welfare, and immigration – have differing objectives and personnel with varying levels of expertise in domestic violence. Conflicting decisions by different courts and tribunals with overlapping jurisdiction may impair the safety of victims and children, and may require …

Book Review - Canadian Justice, Indigenous Injustice: The Gerald Stanley And Colten Boushie Case By Kent Roach, Benjamin Berger

Articles & Book Chapters

Kent Roach’s important book exploring the 2018 acquittal of Gerald Stanley for the killing of Colten Boushie, a twenty-two-year-old Cree man from the Red Pheasant First Nation in Saskatchewan, begins by asking, “Why write a book about this case?” His answer is that the “Stanley/Boushie case will not and should not go away”

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 …

Judicial Discretion And The Rise Of Individualization: The Canadian Sentencing Approach, Benjamin Berger

Articles & Book Chapters

“Who are courts sentencing if not the offender standing in front of them?”

The epigraph to this paper points to the ethical heart of a distinctive and important development in Canadian sentencing law. It is drawn from a case in which the Supreme Court of Canada grappled with the signal societal trauma wrought by the operation of the criminal justice system – the travesty of Indigenous over-representation in Canadian prisons. This development involves an approach that has already disrupted certain elements of contemporary sentencing practice in Canada, and it is one that, depending on how sentencing judges embrace it, may …

Methods And Severity: The Two Tracks Of Section 12, Benjamin Berger, Lisa Kerr

Articles & Book Chapters

This paper argues that there are two main routes – two tracks – by which one can arrive at the fundamental wrong at the heart of section 12 of the Charter. On the “methods track”, the state can run afoul of section 12 by using intrinsically unacceptable methods of treatment or punishment. For historical reasons, jurisprudence on this track is not well developed in Canada, though it would clearly prohibit the death penalty and most methods of corporal punishment. On the “severity track”, the concern is with excessive punishment. Here, even where the state has chosen a legitimate method of …

Over-Indebted Criminals In Canada, Stephanie Ben-Ishai, Arash Nayerahmadi

Articles & Book Chapters

The criminal justice system often imposes financial, as well as penal, consequences upon offenders. Often these fines and surcharges are levied on those who are least able to bear the cost. This article examines the "justice debt" regime, including the formerly mandatory victim surcharge, to illustrate the ways it interacts with the lives of indigent Canadians. After canvassing American scholarship on the topic, the authors conclude with recommendations on how the problem can be alleviated, and how the topic can be more fully researched in a Canadian context.

What Humility Isn’T: Responsibility And The Judicial Role, Benjamin Berger

Articles & Book Chapters

In recent years, academic literature has given some attention to humility as an important adjudicative principle or virtue. Drawing inspiration from a Talmudic tale, this chapter suggests that the picture of judicial humility painted in this literature is not only incomplete, but even potentially dangerous so. Seeking to complete the picture of what this virtue might entail, this piece explores the idea that humility is found in awareness of one’s position and role in respect of power, and a willingness to accept the burdens of responsibility that flow from this. The chapter examines elements of Chief Justice McLachlin’s criminal justice …

Introduction: War Measures And The Repression Of Radicalism, 1914-1939, Barry Wright, Eric Tucker, Susan Binnie

Articles & Book Chapters

This fourth volume in the Canadian State Trials series, Security, Dissent, and the Limits of Toleration in War and Peace, 1914–1939, brings readers to the period of the First World War and the inter-war years. it follows an approach similar to that of others in the series. the central concern remains the legal responses of Canadian governments to real and perceived threats to the security of the state. the aim is to provide a representative and relatively comprehensive examination of Canadian experiences with these matters, placed in broader historical and comparative context.

Proportionality, Discretion, And The Roles Of Judges And Prosecutors At Sentencing, Palma Paciocco

Articles & Book Chapters

The Supreme Court of Canada recently held that prosecutors are not constitutionally obligated to consider the principle of proportionality when exercising their discretion in a manner that narrows the range of available sentences: since only judges are responsible for sentencing, they alone are constitutionally required to ensure proportionality. When mandatory minimum sentences apply, however, judges have limited sentencing discretion and may be unable to achieve proportionality. If the Court takes the principle of proportionality seriously, and if it insists that only judges are constitutionally bound to enforce that principle, it must therefore create new tools whereby judges can avoid imposing …

Objective Mens Rea And Attenuated Subjectivism: Guidance From Justice Charron In R. V. Beatty, Palma Paciocco

Articles & Book Chapters

Justin Ronald Beatty was driving on the Trans-Canada Highway on July 23, 2003 when, for no apparent reason, his truck suddenly crossed the solid centre line and collided with an oncoming car, killing three people. Beatty was charged with dangerous operation of a motor vehicle causing death. He was acquitted at trial on the grounds that his momentary lapse of attention was not enough to establish fault. The Crown appealed, and the Court of Appeal ordered a new trial after concluding that the trial judge had misapplied the fault standard. Beatty appealed to the Supreme Court of Canada, which undertook …

Commentary On "Prosecutions, Politics And The Public Interest: Some Recent Developments In The United Kingdom, Canada And Elsewhere", Mary Condon

Articles & Book Chapters

Professor Stenning is to be congratulated for providing a fresh and timely perspective on some crucial dilemmas of prosecutorial decision-making, and for grounding his incisive analysis in a close discussion of a particularly provocative case emerging from the U.K. House of Lords in 2008. The core conundrum he addresses in his paper is the long-standing one of what should be the contours of the role played by a jurisdiction's Attorney General in prosecutorial decision-making. The context here is one in which attorneys general have multiple and significant responsibilities in governmental arenas. Specifically, he poses two questions about the Attorney General's …

Criminal Justice Law Reform: Stealing A Page From The American Playbook, James Stribopoulos

Articles & Book Chapters

Criminal justice law reform is a major component of the Federal Government's current legislative agenda. Unfortunately, instead of basing reforms on criminological research or the advice of experts, our current Government, by its own admission, is far more interested in what ordinary Canadians think about the criminal justice system.

Wrestling With Punishment: The Role Of The Bc Court Of Appeal In The Law Of Sentencing, Benjamin Berger, Gerry Ferguson

Articles & Book Chapters

This article, one in a collection of articles on the history and jurisprudential contributions of the British Columbia Court of Appeal on the occasion of its 100th anniversary, looks at the role and the work of the court in the area of sentencing since the court was first given jurisdiction to hear sentence appeals in 1921. In the three broad periods that we canvass, we draw out the sometimes surprising, often unique, and frequently provocative ways in which the BCCA has, over its history, wrestled with the practice of criminal punishment and, with it, the basic assumptions of our system …

'Prisoner Never Gave Me Anything For What He Done:' Aboriginal Voices In The Criminal Court, Shelley A. M. Gavigan

Articles & Book Chapters

Aboriginal people participated in different ways in the criminal process in the early years of the North-West Territories region of Canada, including, as accused persons, as Informants, and as witnesses. Their physical participation was often mediated by interpreters, both linguistic and cultural, and their signatures invariably marked “X” on their depositions. Scholarship that has examined the relationship of Aboriginal peoples to the criminal law has tended to interrogate the criminalization and moral regulation strategies implicit in the process of colonization and domination of the First Peoples. This paper will discuss less visible aspects of the legalized processes of colonization: (1) …

Emotions And The Veil Of Voluntarism: The Loss Of Judgment In Canadian Criminal Defences, Benjamin Berger

Articles & Book Chapters

In this perspective piece, the author attacks the notion of "moral involuntariness" in the Supreme Court of Canada's judgment in R. v. Ruzic. He asserts that the voluntarist account of criminal liability is purely descriptive. Through the embrace of a mechanistic understanding of human agency, it forestalls judgment and veils the normative foundation of criminal law. The author asserts the need for a more normative approach, one which seeks to evaluate the moral blameworthiness of an act. In the case of duress, the author suggests that it is not enough to simply state that a person's will is constrained because …

Reasonable Expectations Of Privacy And Open Fields: Taking The American ‘Risk Analysis’ Head On, James Stribopoulos

Articles & Book Chapters

This article argues that the "open fields" doctrine should not be adopted in Canada as it is premised upon the perilous American "risk analysis" which the Supreme Court has previously rejected.

The Myth Of Retributive Justice, Brian Slattery

Articles & Book Chapters

In fairy tales, villains usually come to a bad end, snared in a trap of their own making, or visited with a disaster nicely suited to their particular villainy. Read a story of this kind to children and you will be struck by the profound satisfaction with which this predictable of events is greeted. Yet, if children cheer when the villain is done in, they are just as satisfied when the hero manages to get the villain by the throat but takes pity and spares him. These tales of retribution and mercy, even reduced to their barest bones, seem to …

Greffe: A Section 8 Triumph Or A Thorn In The Side Of Law Enforcement, Alan N. Young

Articles & Book Chapters

This article concerns the constitutionality of drug enforcement laws in the context of R. v. Greffe.

The Criminal Law Amendment Act 1985: Implications For International Criminal Law, Sharon A. Williams

Articles & Book Chapters

The new criminal law amendment act 1985 was proclaimed into force on December 4, 1985. It has far-reaching goals. It seeks to take Canada's criminal justice system into the realm of contemporary criminal activities, and includes a wide range of crimes from domestic offences such as impaired driving and boating and computer crime to international concerns such as hostage-taking and offences against nuclear material. The Act is mammoth, comprising 212 sections and five annexes. The aim of this short analysis is to discuss only the main provisions that concern international criminal law, notably the offence of hostage-taking and offences against …

Compelling Disclosure By A Non-Party Litigant In Violation Of Foreign Bank Secrecy Laws: Recent Developments In Canada-United States Relations, Jean-Gabriel Castel

Articles & Book Chapters

The question whether Canadian or American courts should enforce their laws in a manner that respects the laws of friendly sovereign states has recently been examined by the Supreme Court of Canada and the United States Court of Appeals for the Eleventh Circuit. Their decisions will be the object of this note in the light of recent developments in Canada-United States relations in the area of legal assistance in civil and criminal matters.

Often our courts are asked to compel a person not a party to the litigation or investigation to produce documents or give evidence in Canada when to …