Open Access. Powered by Scholars. Published by Universities.®

Law Commons™

Open Access. Powered by Scholars. Published by Universities.®

Criminal Law

Series

All Faculty Publications

Keyword
Publication Year

Articles 31 - 60 of 76

Full-Text Articles in Law

The Turn To Corporate Criminal Liability For International Crimes: Transcending The Alien Tort Statute, James G. Stewart Jan 2014

The Turn To Corporate Criminal Liability For International Crimes: Transcending The Alien Tort Statute, James G. Stewart

All Faculty Publications

In November 2013, Swiss authorities announced a criminal investigation into one of the world’s largest gold refineries on the basis that the company committed a war crime. The Swiss investigation comes a matter of months after the US Supreme Court decided in Kiobel v. Royal Dutch Petroleum Co. that allegations like these could not give rise to civil liability under the aegis of the Alien Tort Statute (“ATS”). Intriguingly, however, the Swiss case is founded on a much earlier American precedent. In 1909, the U.S. Supreme Court approved the novel practice of prosecuting companies. Unlike the Court’s position in Kiobel …

Go to article

Sexual Assault And The Meaning Of Power And Authority For Women With Mental Disabilities, Janine Benedet, Isabel Grant Jan 2014

Sexual Assault And The Meaning Of Power And Authority For Women With Mental Disabilities, Janine Benedet, Isabel Grant

All Faculty Publications

The sexual assault of persons with mental disabilities (also described as cognitive, intellectual and developmental disabilities) occurs at alarmingly high rates worldwide. These assaults are a form of gender-based violence intersecting with discrimination based on disability. Our research on the treatment of such cases in the Canadian criminal justice system demonstrates the systemic barriers these victims face at the level of both substantive legal doctrine and trial procedure. Relying on feminist legal theory and disability theory, we argue in this paper that abuses of trust and power underlie most sexual assaults of women with mental disabilities. We argue that existing …

Go to article

Juries, Lay Judges, And Trials, Toby S. Goldbach, Valerie P. Hans Jan 2014

Juries, Lay Judges, And Trials, Toby S. Goldbach, Valerie P. Hans

All Faculty Publications

“Juries, Lay Judges, and Trials” describes the widespread practice of including ordinary citizens as legal decision makers in the criminal trial. In some countries, lay persons serve as jurors and determine the guilt and occasionally the punishment of the accused. In others, citizens decide cases together with professional judges in mixed decision-making bodies. What is more, a number of countries have introduced or reintroduced systems employing juries or lay judges, often as part of comprehensive reform in emerging democracies. Becoming familiar with the job of the juror or lay citizen in a criminal trial is thus essential for understanding contemporary …

Go to article

Migrant Smuggling: Canada's Response To A Global Criminal Enterprise, Benjamin Perrin Jan 2013

Migrant Smuggling: Canada's Response To A Global Criminal Enterprise, Benjamin Perrin

All Faculty Publications

Migrant smuggling is a dangerous, sometimes deadly, criminal activity. Failing to respond effectively to migrant smuggling and deter it will risk emboldening those who engage in this illicit enterprise, which generates proceeds for organized crime and criminal networks, funds terrorism and facilitates clandestine terrorist travel, endangers the lives and safety of smuggled migrants, undermines border security, and undermines the integrity and fairness of immigration systems. Introduced in the Canadian House of Commons in June 2011, the Preventing Human Smugglers from Abusing Canada’s Immigration System Act (Bill C-4) includes proposed amendments to the Immigration and Refugee Protection Act that would enhance …

Go to article

Admissibility Compared: The Reception Of Incriminating Expert Evidence (I.E., Forensic Science) In Four Adversarial Jurisdictions, Gary Edmond, Emma Cunliffe, Simon A. Cole, Andrew J. Roberts Jan 2013

Admissibility Compared: The Reception Of Incriminating Expert Evidence (I.E., Forensic Science) In Four Adversarial Jurisdictions, Gary Edmond, Emma Cunliffe, Simon A. Cole, Andrew J. Roberts

All Faculty Publications

There is an epistemic crisis in many areas of forensic science. This crisis emerged largely in response both to the mobilization of a range of academic commentators and critics and the rise and influence of DNA typing. It gained popular and authoritative support through the influence of the National Academy of Science (NAS) and a surprisingly critical report produced under its auspices by a committee of the National Research Council (NRC). Interestingly, as this article endeavors to explain, the courts themselves seem to have played a rather indirect, inconsistent and ultimately ineffective role in the supervision and evaluation of forensic …

Go to article

Positive Obligations And Criminal Justice: Duties To Protect Or Coerce?, Liora Lazarus Jan 2013

Positive Obligations And Criminal Justice: Duties To Protect Or Coerce?, Liora Lazarus

All Faculty Publications

This chapter explores the relationship between criminal law, criminal process and human rights from a slightly different perspective. It demonstrates that while human rights may well be used to limit the excesses of security and law and order politics, the nature of the relationship between human rights and criminal justice cannot be captured alone by the view of rights as a limit on the coercive reach of the criminal law and criminal justice institutions. Increasingly, human rights, cast as positive rights, have resulted in claims for the extension of the criminal law, the creation of preventative duties or ‘protective policing …

Go to article

Ten Reasons For Adopting A Universal Concept Of Participation In Atrocity, James G. Stewart Jan 2013

Ten Reasons For Adopting A Universal Concept Of Participation In Atrocity, James G. Stewart

All Faculty Publications

The legal doctrine that assign blame for international crimes are numerous, unclear, ever-changing and often conceptually problematic. In this Essay, I question the prudence of retaining the radical doctrinal heterogeneity that, in large part, produces this state of disarray. Instead of tolerating different standards of participation across customary international law, the ICC statute and national systems of criminal law, I argue for a universal concept of participation that would apply whenever an international crime is charged, regardless of the jurisdiction hearing the case. Although I have argued elsewhere that a unitary theory of perpetration should serve this role, I here …

Go to article

A Situational Approach To Incapacity And Mental Disability In Sexual Assault Law, Janine Benedet, Isabel Grant Jan 2013

A Situational Approach To Incapacity And Mental Disability In Sexual Assault Law, Janine Benedet, Isabel Grant

All Faculty Publications

Prosecutions for sexual assault most often focus on whether the Crown has proven that the complainant did not consent to the sexual activity in issue, based on her subjective state of mind at the time of the offence. However, Canadian criminal law also provides that no consent is obtained where the complainant is incapable of consenting. In cases where the complainant has a mental disability affecting cognition or decisionmaking, prosecutors in Canada have been reluctant to argue that the complainant was incapable of consenting. In this article, the authors agree that claims of incapacity should be used sparingly, but contend …

Go to article

‘Don't Read The Comments!’: Reflections On Writing And Publishing Feminist Socio-Legal Research As A Young Scholar, Emma Cunliffe Jan 2013

‘Don't Read The Comments!’: Reflections On Writing And Publishing Feminist Socio-Legal Research As A Young Scholar, Emma Cunliffe

All Faculty Publications

This article responds to reviews written by Eve Darian-Smith and Mehera San Roque and published in Feminists@Law. Darian-Smith and San Roque's reviews focus on the contributions made by my 2011 book, Murder, Medicine and Motherhood. In this response, I have taken the opportunity to reflect a little on the experience of writing Murder, Medicine and Motherhood, and on its reception. In the first section, I trace the choices and unanticipated challenges that structured my research for Murder, Medicine and Motherhood. Both Darian-Smith and San Roque have commented on this methodology, and I have noticed that after publication, the scope and …

Go to article

The End Of 'Modes Of Liability' For International Crimes, James G. Stewart Jan 2012

The End Of 'Modes Of Liability' For International Crimes, James G. Stewart

All Faculty Publications

Modes of liability, such as ordering, instigation, superior responsibility and joint criminal liability, are arguably the most discussed topics in modern international criminal justice. In recent years, a wide range of scholars have rebuked some of these modes of liability for compromising basic concepts in liberal notions of blame attribution, thereby reducing international defendants to mere instruments for the promotion of wider socio-political objectives. Critics attribute this willingness to depart from orthodox concepts of criminal responsibility to international forces, be they interpretative styles typical of human rights or aspirations associated with transitional justice. Strangely, however, complicity has avoided these criticisms …

Go to article

Sexual Assault Cases In The Supreme Court Of Canada: Losing Sight Of Substantive Equality?, Emma Cunliffe Jan 2012

Sexual Assault Cases In The Supreme Court Of Canada: Losing Sight Of Substantive Equality?, Emma Cunliffe

All Faculty Publications

The equality guarantee contained in section 15 of the Canadian Charter of Rights and Freedoms has prompted reforms that protect women as complainants in sexual assault cases. This article considers the effectiveness of these reforms. Part 2 supplies a history of the relationships between consent, trial procedure, and substantive equality in sexual assault law. The author argues that substantive equality has had a significant effect on both substance and procedure. Part 3 examines the impact of these reforms by considering the extent to which substantive equality has infused judicial reasoning and fact determination in contested sexual assault cases. Specifically, the …

Go to article

From Smith To Smickle: The Charter's Minimal Impact On Mandatory Minimum Sentences, Debra Parkes Jan 2012

From Smith To Smickle: The Charter's Minimal Impact On Mandatory Minimum Sentences, Debra Parkes

All Faculty Publications

This paper attempts to assess the impact that the Canadian Charter of Rights and Freedoms has had, and may have in the near future, on mandatory minimum sentences and their legislated proliferation. To answer those questions, the paper first briefly reviews the Supreme Court of Canada case law on the constitutionality of mandatory minimum sentences. The next two sections will outline the approach taken in the recent Smickle decision in the Ontario Superior Court of Justice before moving on to argue that courts should subject the purported goals, justifications and implications of mandatory minimum sentences to a more searching form …

Go to article

Ipeelee And The Pursuit Of Proportionality In A World Of Mandatory Minimum Sentences, Debra Parkes Jan 2012

Ipeelee And The Pursuit Of Proportionality In A World Of Mandatory Minimum Sentences, Debra Parkes

All Faculty Publications

The law of sentencing in Canada is being pulled in opposing directions: Parliament regularly legislates new mandatory sentences that limit judicial discretion while the Supreme Court strongly affirms the “highly individualized” nature of sentencing. Mandatory sentences have proliferated in recent years, contrary to overwhelming social science evidence that they do not deliver on their promises of deterrence and crime control, and largely unimpeded by the Charter. However, the recent decision in R v Ipeelee arguably puts the principles relevant to the sentencing of Aboriginal people on a collision course with the substantial limits on judicial discretion that are central to …

Go to article

Overdetermined Atrocities, James G. Stewart Jan 2012

Overdetermined Atrocities, James G. Stewart

All Faculty Publications

An event is overdetermined if there are multiple sufficient causes for its occurrence. A firing squad is a classic illustration. If eight soldiers are convened to execute a prisoner, they can all walk away afterwards in the moral comfort that “I didn’t really make a difference; it would have happened without me.” The difficulty is, if we are only responsible for making a difference to harm occurring in the world, none of the soldiers is responsible for the death — none made, either directly or through others, an essential contribution to its occurrence. In many respects, this dilemma is the …

Go to article

The Normal Ones Take Time': Civil Commitment And Sexual Assault In R. V. Alsadi, Isabel Grant Jan 2012

The Normal Ones Take Time': Civil Commitment And Sexual Assault In R. V. Alsadi, Isabel Grant

All Faculty Publications

This comment addresses the issue of whether a woman who is civilly committed in a psychiatric facility can ever give a valid consent to sexual activity with someone employed by that facility to ensure her safety and protection. The paper argues that such a consent would be involuntary and invalid because it was obtained as a result of an abuse of a position of trust. It is argued that the imbalance of power between a civilly committed psychiatric patient and, in Alsadi, a security guard employed by the hospital is so significant that no meaningful or voluntary consent can be …

Go to article

Gladue: Beyond Myth And Towards Implementation In Manitoba, Debra Parkes, David Milward Jan 2012

Gladue: Beyond Myth And Towards Implementation In Manitoba, Debra Parkes, David Milward

All Faculty Publications

In the mid-1990s, section 718.2(e) of the Criminal Code of Canada was enacted in response to the alarming over-representation of Aboriginal people in Canada’s prisons and jails. Its admonition to consider “all available sanctions other than imprisonment that are reasonable in the circumstances… with particular attention to the circumstances of Aboriginal offenders” requires, according to the Supreme Court in the leading case of R v Gladue, that justice system participants do things differently in sentencing Aboriginal people. However, in the ensuing years the level of over-representation has got worse, rather than better. There are a number of different explanations that …

Go to article

A Tale Of Two Cases: Urging Caution In The Prosecution Of Hiv Non-Disclosure, Isabel Grant, Jonathan Glenn Betteridge Jan 2012

A Tale Of Two Cases: Urging Caution In The Prosecution Of Hiv Non-Disclosure, Isabel Grant, Jonathan Glenn Betteridge

All Faculty Publications

Two provincial Courts of Appeal have recently released unanimous decisions that clarify the law regarding the obligation imposed upon people living with HIV to disclose their HIV status prior to sexual relations. The decision of the Manitoba Court of Appeal in R v. Mabior and of the Quebec Court of Appeal in R c. D.C. must be seen against a background of increasing criminal prosecutions in Canada of people with HIV who allegedly do not disclose their HIV status to sexual partners. Since the first HIV nondisclosure prosecution in 1989, there have been over 120 prosecutions. A high proportion of …

Go to article

Taking Threats Seriously: Section 264.1 And Threats As A Form Of Domestic Violence, Joanna Birenbaum, Isabel Grant Jan 2012

Taking Threats Seriously: Section 264.1 And Threats As A Form Of Domestic Violence, Joanna Birenbaum, Isabel Grant

All Faculty Publications

An alarming number of women are in abusive relationships where violence and threats of violence pervade their lives. This article examines the offence of uttering threats in the Canadian Criminal Code, using the Manitoba Court of Appeal decision in R v O’Brien as a backdrop. We make two arguments. First, we argue that, in intimate relationships, threats of death and bodily harm are a form of domestic violence, often used by men in concert with physical violence and other forms of intimidation to control and dominate women. The Canadian criminal justice response to charges of uttering threats in intimate partner …

Go to article

Migrant Smuggling: Canada's Response To A Global Criminal Enterprise: With An Assessment Of The Preventing Human Smugglers From Abusing Canada's Immigration System Act (Bill C-4), Benjamin Perrin Oct 2011

Migrant Smuggling: Canada's Response To A Global Criminal Enterprise: With An Assessment Of The Preventing Human Smugglers From Abusing Canada's Immigration System Act (Bill C-4), Benjamin Perrin

All Faculty Publications

Migrant smuggling is a dangerous, sometimes deadly, criminal activity which cannot be rationalized, justified, or excused. From both a supply and demand side, failing to respond effectively to migrant smuggling and deter it will risk emboldening those who engage in this illicit enterprise, which generates proceeds for organized crime and criminal networks, funds terrorism and facilitates clandestine terrorist travel; endangers the lives and safety of smuggled migrants, undermines border security, with consequences for the Canada/U.S. border, and undermines the integrity and fairness of Canada’s mmigration system. Introduced in Parliament in June, 2011, the Preventing Human Smugglers from Abusing Canada’s Immigration …

Go to article

The Prosecution Of Non-Disclosure Of Hiv In Canada: Time To Rethink Cuerrier, Isabel Grant Jan 2011

The Prosecution Of Non-Disclosure Of Hiv In Canada: Time To Rethink Cuerrier, Isabel Grant

All Faculty Publications

The author of this article argues that Canada’s current approach to the criminalization of HIV transmission is deeply flawed and cries out for clarification. The article first considers the risk of transmission of HIV under various conditions, as determined by recent scientific studies, and concludes that HIV is not easily transmissible through sexual activity. It next examines several crucial factors that contribute to the significance, or lack of significance, of sexual activity by HIV-positive individuals, concluding that the current law creates a “numbers game” for triers of fact. The article then proceeds to a comparative analysis of other Commonwealth countries, …

Go to article

Sentencing Circles, Clashing Worldviews, And The Case Of Christopher Pauchay, Toby S. Goldbach Jan 2011

Sentencing Circles, Clashing Worldviews, And The Case Of Christopher Pauchay, Toby S. Goldbach

All Faculty Publications

The case of Christopher Pauchay demonstrates some of the differences between predominant Euro-Canadian and First Nations approaches to dispute resolution. The principles of sentencing circles sometimes overlap with the principles of restorative justice and suggest their potential incorporation into the criminal justice system. The use of alternative processes that share some common values is not enough to overcome to chasm between Euro-Western and Aboriginal justice. Where underlying worldviews diff er, those who can choose between competing values amidst limited possibilities will likely choose the values that refl ect the conventional system. A comparison of Euro-Western and Aboriginal approaches to crime …

Go to article

Corporate War Crimes: Prosecuting Pillage Of Natural Resources, James G. Stewart Jan 2010

Corporate War Crimes: Prosecuting Pillage Of Natural Resources, James G. Stewart

All Faculty Publications

Pillage means theft during war. Although the prohibition against pillage dates to antiquity, pillaging is a modern war crime that can be enforced before international and domestic criminal courts. Following World War II, several businessmen were convicted for the pillage of natural resources. And yet modern commercial actors are seldom held accountable for their role in the illegal exploitation of natural resources from modern conflict zones, even though pillage is prosecuted as a matter of course in other contexts. This book offers a doctrinal road-map of the law governing pillage as applied to the illegal exploitation of natural resources by …

Go to article

The Age Of Innocence: A Cautious Defence Of Raising The Age Of Consent In Canadian Sexual Assault Law, Janine Benedet Jan 2010

The Age Of Innocence: A Cautious Defence Of Raising The Age Of Consent In Canadian Sexual Assault Law, Janine Benedet

All Faculty Publications

In 2008, Canada raised the age of consent to sexual activity with an adult from 14 years of age to 16. This change was motivated, in part, by several high profile cases of internet “luring” of younger teenagers. This article considers whether raising the age of consent has had any benefits. It begins by discussing the history and development of age of consent laws in Canada. The justification for a statutory age of consent has shifted from one based on the age at which a girl is deemed to be sexually available to one based on her capacity to give …

Go to article

The Sexual Assault Of Intoxicated Women, Janine Benedet Jan 2010

The Sexual Assault Of Intoxicated Women, Janine Benedet

All Faculty Publications

This article considers how the criminal law of sexual assault in Canada deals with cases of women who have been consuming intoxicants (e.g. alcohol and or drugs). In particular, it considers under what circumstances the doctrines of incapacity to consent and involuntariness have been applied to cases in which the complainant was impaired by alcohol or drugs. It also reflects on problems of proof in such cases. Finally, it examines whether the treatment of this class of complaints tells us anything about the law’s understanding of consent, and capacity to consent, more generally, in the context of competing social understandings …

Go to article

Intimate Femicide: A Study Of Sentencing Trends For Men Who Kill Their Intimate Partners, Isabel Grant Jan 2010

Intimate Femicide: A Study Of Sentencing Trends For Men Who Kill Their Intimate Partners, Isabel Grant

All Faculty Publications

This article examines sentencing trends over the past 18 years for men who kill their intimate partners. Using a sample of 252 cases, the article demonstrates that periods of parole ineligibility for second degree murder rose significantly after the Supreme Court of Canada’s decision in Shropshire but have more recently levelled off to a range that is still higher than the pre-Shropshire era. With respect to manslaughter, changing social attitudes and the amendments to the Criminal Code making the spousal nature of the crime an aggravating factor have resulted in increasingly severe sentences for spousal manslaughters. While a large number …

Go to article

Rethinking Risk: The Relevance Of Condoms And Viral Load In Hiv Nondisclosure Prosecutions, Isabel Grant Jan 2009

Rethinking Risk: The Relevance Of Condoms And Viral Load In Hiv Nondisclosure Prosecutions, Isabel Grant

All Faculty Publications

An HIV-positive individual who fails to disclose his or her status to a sexual partner may face charges ranging from nuisance to murder for such behaviour, with the most common charges being aggravated assault and aggravated sexual assault. The number of prosecutions in Canada against individuals who fail to disclose their HIV-positive status to their sexual partners has risen over the last ten years. At the same time, scientific advancements in treatment options and our understanding of transmission, condom usage, and viral load are constantly influencing the assessment of the risk that nondisclosure poses to the complainant in any given …

Go to article

Contextualizing Criminal Defences: Exploring The Contribution Of Justice Bertha Wilson, Isabel Grant, Debra Parkes Jan 2009

Contextualizing Criminal Defences: Exploring The Contribution Of Justice Bertha Wilson, Isabel Grant, Debra Parkes

All Faculty Publications

The authors survey the opinions of Justice Wilson in three important criminal defence cases: R. v. Perka, R. V. Hill, and R. v. Lavallee. These cases reveal the development of her understanding of equality in criminal law, ranging from a formal individualistic understanding of equality in Perka through to a nuanced substantive approach to equality in Lavallee. Next, the authors discuss two different ways that context figures in those opinions, to: (1) understand the accused's actions, and (2) to locate the defence itself in its social and historical context to reveal biases and inequalities reflected therein. Finally, the authors examine …

Go to article

The Future Of The Grave Breaches Regime: Segregate, Assimilate Or Abandon, James G. Stewart Jan 2009

The Future Of The Grave Breaches Regime: Segregate, Assimilate Or Abandon, James G. Stewart

All Faculty Publications

Grave breaches of the Geneva Conventions are one type of war crime. In this Article, I argue that the grave breaches regime has three possible futures. In the first, the regime remains segregated from other categories of war crimes in deference to the historical development of these crimes. This future, however, is one that will see a relatively dramatic decline in the use of grave breaches in practice, primarily because other offences cover the same acts more efficiently. In the second possible future, the grave breaches are entirely abandoned, but this eventuality seems both improbable and undesirable. Even though judicial …

Go to article

Can Corporate Monitorships Improve Corporate Compliance?, Cristie Ford, David Hess Jan 2009

Can Corporate Monitorships Improve Corporate Compliance?, Cristie Ford, David Hess

All Faculty Publications

Over the last few years, prosecutors and SEC enforcement attorneys have increasingly relied on settlement agreements (such as deferred prosecution agreements) to combat securities violations and other corporate criminal acts. Many of these agreements require the use of corporate monitors to oversee the corporation's compliance with the settlement and its implementation of a compliance program to prevent future violations of the law. Although these agreements have received significant attention from legislators and scholars, there has been no investigation into the critically important question of whether or not the use of corporate monitors achieves its intended goals. Based primarily on interviews …

Go to article

Humanitarian Assistance And The Private Security Debate: An International Humanitarian Law Perspective, Benjamin Perrin Jan 2008

Humanitarian Assistance And The Private Security Debate: An International Humanitarian Law Perspective, Benjamin Perrin

All Faculty Publications

The changing nature of armed conflict has had a dramatic impact on the security risks facing humanitarian personnel. Historically, the safety of humanitarian aid delivery was secured through the consent of the relevant Parties to the conflict. However, non-international ethnically-motivated armed conflicts, failed and failing states, and insurgency-based warfare have fundamentally challenged the viability of this traditional security paradigm. In confronting today's complex security climate, humanitarian organizations are faced with a diverse menu of alternatives to enhance their security. The debate over armed protection that has sharply divided the humanitarian community is explored in this paper, including a critique of …

Go to article

First Prev Next Last