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Articles 1 - 16 of 16
Full-Text Articles in Law
The Criminal Defence Lawyer's Role, David Layton
The Criminal Defence Lawyer's Role, David Layton
Dalhousie Law Journal
Defence lawyers often fight to prevent the conviction of people who have committed serious crimes. How can this role be justified? In providing his answer the author generally accepts the traditional view of criminal lawyering according to which defence counsel "does good" by ensuring that the state does not obtain a conviction in the absence of proof beyond a reasonable doubt based on admissible and reliable evidence Ethical advocacy in the criminal context is thus heavily influenced by a conception of justice that includes not only the search for truth but also due process rights for accused persons. The author …
Prosecuting The Fishery: The Supreme Court Of Canada And The Onus Of Proof In Aboriginal Fishing Cases, Peggy J. Blair
Prosecuting The Fishery: The Supreme Court Of Canada And The Onus Of Proof In Aboriginal Fishing Cases, Peggy J. Blair
Dalhousie Law Journal
In Sparrow and other decisions, the Supreme Court of Canada has outlined certain tests which must be met by the Crown and defence in the trial of aboriginal fishing cases where s.35 rights are at issue. This article describes the shifting burdens of proof which have resulted from those tests. The author argues that the Supreme Court of Canada has imposed procedural and substantive requirements of proof on the defence which may in themselves be unconstitutional.
Guilty Plea Revocation, Constitutional Waiver, And The Charter: "A Guilty Plea Is Not A Trap", John Dr Craig
Guilty Plea Revocation, Constitutional Waiver, And The Charter: "A Guilty Plea Is Not A Trap", John Dr Craig
Dalhousie Law Journal
The entry of a guilty plea has significant constitutional ramifications. It relieves the Crown of its obligation to prove the elements of an offence beyond a reasonable doubt and constitutes a waiver by the accused of various rights including the right to put the Crown's case to the test of a trial, the right to confront Crown witnesses through cross-examination and the right to remain silent in relation to the determination of legal guilt. In light of these constitutional dimensions, the article considers an issue which has received little academic attention: the revocation of a guiltyplea. The authorassesses the existing …
Sentencing Intimate Femicide: A Comment On R. V. Doyle, Teresa Scassa
Sentencing Intimate Femicide: A Comment On R. V. Doyle, Teresa Scassa
Dalhousie Law Journal
In August of 1989, Donald Michael Doyle murdered his wife of fifteen years by firing three shots into her chest while she slept. He was charged with first degree murder, and pleaded guilty to second degree murder. He was sentenced to life imprisonment without eligibility for parole until after the statutory minimum of ten years. The Crown appealed the sentencing decision of the trial judge, and argued for a greater period of parole ineligibility. The Nova Scotia Court of Appeal allowed the appeal and raised the period of imprisonment without parole to seventeen years. The differences between the sentencing decisions …
Equal Protection In Enforcement Towards More Structured Discretion, Peter Finkle, Duncan Cameron
Equal Protection In Enforcement Towards More Structured Discretion, Peter Finkle, Duncan Cameron
Dalhousie Law Journal
How often has it been said by administrators, politicians and members of the general public that a certain law is good, the problem is that it is not enforced?1 The very form of the question expresses the fact that for the general public and politicians alike, not to mention the legal profession, the law is usually thought of as that which is written in the books. In reality, however, that written law is only part of a much broader legal process which includes the decisions of those charged with the responsibility of enforcement and, indeed, the activities of judges and …
The Trials Of Israel Lipski, Paul Thomas
The Trials Of Israel Lipski, Paul Thomas
Dalhousie Law Journal
On June 28th 1887 in the East End of London a particularly dreadful murder took place. A woman was struck on the head and nitric acid poured down her throat as she lay in bed. Israel Lipski was found under the women's bed with some traces of nitre acid around his mouth but to no great ill effect. Both the victim and Lipski were in a room that had been locked from the inside. The room's two windows were impossible to open. Was Lipski guilty of murdering this women?
Dangerous Offenders, Isabel Grant
Dangerous Offenders, Isabel Grant
Dalhousie Law Journal
The specific focus of this paper is on the Dangerous Offender provisions in Part XXI of our Criminal Code.' However, the issues that arise in any form of preventive detention2 go to the heart of our criminal justice system. Hence, these provisions will be used as a vehicle for dealing with the broader issues. Ethical considerations will be discussed as they arise. The paper begins with an analysis of the history of Part XXI, with emphasis on the moral and legal problems that had to be faced as the legislation developed. The legislative history and the case law are important …
The Principle Of Analogy In Sino-Soviet Criminal Laws, Dana Giovannetti
The Principle Of Analogy In Sino-Soviet Criminal Laws, Dana Giovannetti
Dalhousie Law Journal
"Analogy" is a principle of substantive criminal law which permits the conviction of an accused despite the absence of any defined criminal behavior.' If the actions of the accused are perceived to be inimical to the socio-political order then he may be found guilty of a defined crime which prohibits analogous behavior. Analogy may also be employed in a more restrained fashion as a principle of sentencing law. If the accused has committed a defined crime which is now perceived to be more deleterious his punishment may exceed the maximum legislatively mandated sentence. Analogy is, therefore, one method of defining …
The Parole Board: What Liability To Victims?, Keith Jobson
The Parole Board: What Liability To Victims?, Keith Jobson
Dalhousie Law Journal
What is the legal position of a victim of crime who is assaulted and severely injured by a person on parole release? The victim, of course, has a right to sue his or her assailant personally in tort for damages, but does the victim have a right to sue the prison and parole agencies for negligence in releasing or in supervising the offender? The victim's right to recovery against the authorities requires an examination of the right to damages in an action in negligence under the common law, as well as consideration of a possible remedy under the Charter of …
Discretion Of A Trial Judge In Trial To Exclude Otherwise Admissible Evidence, Clayton Hutchins
Discretion Of A Trial Judge In Trial To Exclude Otherwise Admissible Evidence, Clayton Hutchins
Dalhousie Law Journal
The divers, and diverse, opinions of the English judiciary over the last quarter of a century as to the existence and scope of the discretion of a trial judge in a criminal trial to exclude evidence had created a state of uncertainty in this area of evidentiary law. That uncertainty has been largely dispelled by the recent decision of the House of Lords in R. v. Sang. The facts are these. Sang was charged with conspiracy to utter counterfeit American banknotes. On his arraignment he pleaded not guilty to the charge. Then, in the absence of the jury, his counsel …
Scientific Statistical And Methodology And The Doctrine Of "Reasonable Doubt" In Criminal Law; (With Specific Reference To The Breath Analysis For Blood Alcohol) Empirical Fact Or Legal Ficton?, A. Burton Bass, H. Davidson Gesser, K. Stephan Mount
Scientific Statistical And Methodology And The Doctrine Of "Reasonable Doubt" In Criminal Law; (With Specific Reference To The Breath Analysis For Blood Alcohol) Empirical Fact Or Legal Ficton?, A. Burton Bass, H. Davidson Gesser, K. Stephan Mount
Dalhousie Law Journal
Lawyers pride themselves on being men of reason. After all, they postulate, it is the "reasonable man" who is enshrined at the apex of the Anglo-American legal system in the adjudication of civil disputes; it is the legally trained mind that proves so finely honed a tool in the area of problem solving in private practice; the rational decisional process is the hallmark of the judicial mind. Where the life or liberty of an individual is in contention this expert "sense" of reason is brought one step further - the criminal law, with few exceptions, will not countenance a mere …
Acquittal Of The Guilty, Alec Samuels
Acquittal Of The Guilty, Alec Samuels
Dalhousie Law Journal
Every acquittal is an injustice. Either a guilty man has escaped conviction, or an innocent man has been subjected to false accusation, with all the accompanying worry, anxiety, publicity, humiliation, perhaps detention, probably expense. Some of the difficulties undoubtedly spring from the adversary system, a system evolved in the eighteenth and nineteenth centuries to meet the then contemporary problems. It is a system with certain inherent inefficiencies and ineffectivenesses, a system designed to ascertain whether the prosecution has proved an allegation against D the defendant beyond all reasonable doubt and not designed to ascertain the truth of the incident in …
Acquittal Of The Guilty, Alec Samuels
Acquittal Of The Guilty, Alec Samuels
Dalhousie Law Journal
Every acquittal is an injustice. Either a guilty man has escaped conviction, or an innocent man has been subjected to false accusation, with all the accompanying worry, anxiety, publicity, humiliation, perhaps detention, probably expense. Some of the difficulties undoubtedly spring from the adversary system, a system evolved in the eighteenth and nineteenth centuries to meet the then contemporary problems. It is a system with certain inherent inefficiencies and ineffectivenesses, a system designed to ascertain whether the prosecution has proved an allegation against D the defendant beyond all reasonable doubt and not designed to ascertain the truth of the incident in …
Acquittal Of The Guilty, Alec Samuels
Acquittal Of The Guilty, Alec Samuels
Dalhousie Law Journal
Every acquittal is an injustice. Either a guilty man has escaped conviction, or an innocent man has been subjected to false accusation, with all the accompanying worry, anxiety, publicity, humiliation, perhaps detention, probably expense. Some of the difficulties undoubtedly spring from the adversary system, a system evolved in the eighteenth and nineteenth centuries to meet the then contemporary problems. It is a system with certain inherent inefficiencies and ineffectivenesses, a system designed to ascertain whether the prosecution has proved an allegation against D the defendant beyond all reasonable doubt and not designed to ascertain the truth of the incident in …
Acquittal Of The Guilty, Alec Samuels
Acquittal Of The Guilty, Alec Samuels
Dalhousie Law Journal
Every acquittal is an injustice. Either a guilty man has escaped conviction, or an innocent man has been subjected to false accusation, with all the accompanying worry, anxiety, publicity, humiliation, perhaps detention, probably expense. Some of the difficulties undoubtedly spring from the adversary system, a system evolved in the eighteenth and nineteenth centuries to meet the then contemporary problems. It is a system with certain inherent inefficiencies and ineffectivenesses, a system designed to ascertain whether the prosecution has proved an allegation against D the defendant beyond all reasonable doubt and not designed to ascertain the truth of the incident in …
Acquittal Of The Guilty, Alec Samuels
Acquittal Of The Guilty, Alec Samuels
Dalhousie Law Journal
Every acquittal is an injustice. Either a guilty man has escaped conviction, or an innocent man has been subjected to false accusation, with all the accompanying worry, anxiety, publicity, humiliation, perhaps detention, probably expense. Some of the difficulties undoubtedly spring from the adversary system, a system evolved in the eighteenth and nineteenth centuries to meet the then contemporary problems. It is a system with certain inherent inefficiencies and ineffectivenesses, a system designed to ascertain whether the prosecution has proved an allegation against D the defendant beyond all reasonable doubt and not designed to ascertain the truth of the incident in …