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Criminal Law

2012

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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

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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 …

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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

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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 …

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Overdetermined Atrocities, James G. Stewart Jan 2012

Overdetermined Atrocities, James G. Stewart

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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 …

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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

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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 …

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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

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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 …

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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

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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 …

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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

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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 …

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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

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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 …

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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

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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 …

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