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- Osgoode Hall Law Journal (19)
- Articles, Book Chapters, & Popular Press (4)
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- Georgia Journal of International & Comparative Law (2)
- Benjamin L Berger (1)
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- Bridges: An Undergraduate Journal of Contemporary Connections (1)
- Derek R VerHagen (1)
- Dr. Amar Khoday (1)
- ExpressO (1)
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Articles 1 - 30 of 41
Full-Text Articles in Law
Admissibility Of Hearsay Gathered Under Mlat: A Tempest In Canada, Robert Currie
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 …
A Comparative Examination Of Police Interrogation Of Criminal Suspects In Australia, Canada, England And Wales, New Zealand, And The United States, Carol A. Brook, Bruno Fiannaca, David Harvey, Paul Marcus, Renee Pomerance, Paul Roberts
A Comparative Examination Of Police Interrogation Of Criminal Suspects In Australia, Canada, England And Wales, New Zealand, And The United States, Carol A. Brook, Bruno Fiannaca, David Harvey, Paul Marcus, Renee Pomerance, Paul Roberts
William & Mary Bill of Rights Journal
The interrogation process is central to the investigation and resolution of criminal matters throughout the world. It is fundamental to a comprehensive understanding of comparative criminal procedure to study and appreciate the different approaches to the interrogation process in different nations. This Article developed through a series of conversations between six international criminal justice professionals— practicing attorneys, scholars, and judges—regarding the interrogation practices and rules in their respective countries. Providing a comparative look at this important area, this Article examines the applicable practices and procedures in the common law nations of Australia, Canada, England and Wales, New Zealand, and the …
Domestic Violence In Criminal Courts: The Larger Implications For Victims, Jason Johnson
Domestic Violence In Criminal Courts: The Larger Implications For Victims, Jason Johnson
Bridges: An Undergraduate Journal of Contemporary Connections
Academics have considered the treatment of domestic violence in Canada inadequate (Bell, Perez, Goodman, & Dutton, 2011) and “…an indicator of society's inattentiveness to violence against women…” (Garner & Maxwell, 2009, p. 44). Van Wormer (2009) further notes that there is still “…widespread dissatisfaction by battered women … and their advocates with the current system…” (p. 107). While much of the literature focuses on early aspects of the criminal justice system (police action, decision to prosecute, for e.g.), few authors have sought to understand victims opinions about the trial process (Hare, 2010; Smith, 2001). This paper conducts a literature review …
Re-Charting The Remedial Course For Section 11(B) Violations Post-Jordan, Andrew Pilla, Levi Vandersteen
Re-Charting The Remedial Course For Section 11(B) Violations Post-Jordan, Andrew Pilla, Levi Vandersteen
Osgoode Hall Law Journal
In R v Jordan, the Supreme Court of Canada adopted a new framework for establishing violations of the right to be tried within a reasonable time under section 11(b) of the Charter. It did not, however, adopt a new approach to the remedy applicable thereafter. Since the 1987 decision R v Rahey, the only remedy for unreasonable delay has been a stay of proceedings. This article contends that this “automatic stay rule” must be revisited post-Jordan. It does so by conceptualizing Jordan as a shift from an “interest balancing” framework—where individual and societal interests are …
You Made Gideon A Promise, Eh?: Advocating For Mandated Publicly Appointed Counsel At Bail Hearings In The United States Through Domestic Comparisons With Canadian Practices And Legal Considerations, Lauren Elizabeth Lisauskas
You Made Gideon A Promise, Eh?: Advocating For Mandated Publicly Appointed Counsel At Bail Hearings In The United States Through Domestic Comparisons With Canadian Practices And Legal Considerations, Lauren Elizabeth Lisauskas
Georgia Journal of International & Comparative Law
No abstract provided.
Extradition And Trial Delays: Recent Developments (And Lessons?) From Canada, Laura Ellyson
Extradition And Trial Delays: Recent Developments (And Lessons?) From Canada, Laura Ellyson
Articles, Book Chapters, & Popular Press
Extradition – the formal rendition of criminal fugitives between states – is well-known to be a time-consuming process that often has impacts, minor or major, on the ability of states to complete prosecution in a timely manner. Thus, the extradition process can sometimes be at odds with the right to trial within a reasonable time, which is part of the overall package of fair trial rights enshrined in international human rights law. In Canada, this right is implemented by paragraph 11(b) of the Canadian Charter of Rights and Freedoms. In recent years Canadian courts have developed a series of principles …
Earwitness Evidence: The Reliability Of Voice Identifications, Christopher Sherrin
Earwitness Evidence: The Reliability Of Voice Identifications, Christopher Sherrin
Osgoode Hall Law Journal
While much attention has been paid to the frailties of eyewitness evidence, little attention has been given to the reliability of voice identification evidence, even though such “earwitness” evidence has been tendered in several wrongful conviction cases. The author reviews the empirical literature on the reliability of earwitness evidence and compares it to the principal factors used by Canadian criminal courts to assess earwitness testimony. The author concludes that earwitness evidence often can be quite unreliable and that the courts have not always properly assessed its reliability, offering some suggestions for reform.
Comparative Reflections On Duncan V. Louisiana And Baldwin V. New York, William Pizzi
Comparative Reflections On Duncan V. Louisiana And Baldwin V. New York, William Pizzi
Publications
No abstract provided.
The Charter And Criminal Justice: Twenty-Five Years Later, Jamie Cameron, James Stribopoulos
The Charter And Criminal Justice: Twenty-Five Years Later, Jamie Cameron, James Stribopoulos
Jamie Cameron
When the Charter of Rights and Freedoms turned twenty-five in 2007, Professors Jamie Cameron and James Stribopoulos organized a conference which brought together leading thinkers on the Charterand criminal justice. A strong faculty of academics, judges and practitioners debated and discussed the Charter's impact on criminal justice. The papers from this conference, which have now been edited by Professors Cameron and Stribopoulos, provide a fascinating look at how the Charter has transformed the Canadian criminal justice system.
Criminal Law And Procedure: Cases And Materials, 10th Edition, Kent Roach, Benjamin Berger, Patrick Healy, James Stribopoulos
Criminal Law And Procedure: Cases And Materials, 10th Edition, Kent Roach, Benjamin Berger, Patrick Healy, James Stribopoulos
Benjamin L Berger
Building on Martin Friedland's acclaimed and innovative course materials, this new edition of Criminal Law and Procedure provides a valuable teaching tool for introductory courses on criminal law and criminal justice. Students are provided with an overview of the entire criminal process, from police investigation to sentencing.
A Tale Of Two Countries' Engagement With The Fair Cross Section Right: Aboriginal Underrepresentation On Ontario Juries And The Boston Marathon Bomber's Jury Wheel Challenge, Marie Comiskey
Chicago-Kent Law Review
In both Canada and the United States, the constitutional right to a jury trial includes the right to select a jury from a representative cross-section of the jury-eligible population. This article compares and contrasts how this right has been interpreted in the two countries through the lens of recent controversies. In Part I, the article examines how the Supreme Court of Canada and the United States Supreme Court have defined the representative cross-section component of the right to a jury trial in the two respective countries. In Part II, the article focuses on the crisis of Aboriginal underrepresentation on coroner …
Juror Bias, Voir Dire, And The Judge-Jury Relationship, Nancy S. Marder
Juror Bias, Voir Dire, And The Judge-Jury Relationship, Nancy S. Marder
Chicago-Kent Law Review
In the United States, voir dire is viewed as essential to selecting an impartial jury. Judges, lawyers, and the public fervently believe that a fair trial depends on distinguishing between prospective jurors who are impartial and those who are not. However, in England, Australia, and Canada, there are impartial jury trials without voir dire. This article challenges the assumption that prospective jurors enter the courtroom as either impartial or partial and that voir dire will reveal the impartial ones. Though voir dire fails as an “impartiality detector,” this article explores how voir dire contributes to the trial process in two …
Justice As A Rounding Error?: Evidence Of Subconscious Bias In Second-Degree Murder Sentences In Canada, Craig E. Jones, Micah B. Rankin
Justice As A Rounding Error?: Evidence Of Subconscious Bias In Second-Degree Murder Sentences In Canada, Craig E. Jones, Micah B. Rankin
Osgoode Hall Law Journal
There are few areas of law that grant judges as much discretion as the sentencing of criminal offenders. This discretion necessarily leads to concerns about the influence of biases, including those that result from subconscious processes associated with human cognition; that is to say, heuristics. In this article, the authors explore one heuristic—number preference—through an examination of all reported second degree murder parole ineligibility decisions between 1990 and 2012. Number preference leads individuals to predictably round off measurements to certain favoured numbers. The authors identify a tendency for parole ineligibility decisions to cluster around even numbers and multiples of five, …
Refusal To Extradite: An Examination Of Canada's Indictment Of The American Legal System, Jami Leeson
Refusal To Extradite: An Examination Of Canada's Indictment Of The American Legal System, Jami Leeson
Georgia Journal of International & Comparative Law
No abstract provided.
County Court, Nassau County, People V. Osbourne, Diane Matero
County Court, Nassau County, People V. Osbourne, Diane Matero
Touro Law Review
No abstract provided.
The Ethical Obligations Of Defence Counsel In Sexual Assault Cases, Elaine Craig
The Ethical Obligations Of Defence Counsel In Sexual Assault Cases, Elaine Craig
Osgoode Hall Law Journal
The treatment of sexual assault complainants by defence counsel has been the site of significant debate for legal ethicists. Even those with the strongest commitment to the ethics of zealous advocacy struggle with how to approach the cross-examination of sexual assault complainants. One of the most contentious issues in this debate pertains to the use of bias, stereotype and discriminatory tactics to advance one’s client’s position. This paper focuses on the professional responsibilities defence lawyers bear in sexual assault cases. Its central claim is as follows: Defence counsel are ethically obligated to restrict their carriage of a sexual assault case …
An Anachronism Too Discordant To Be Suffered: A Comparative Study Of Parliamentary And Presidential Approaches To Regulation Of The Death Penalty, Derek R. Verhagen
An Anachronism Too Discordant To Be Suffered: A Comparative Study Of Parliamentary And Presidential Approaches To Regulation Of The Death Penalty, Derek R. Verhagen
Derek R VerHagen
It is well-documented that the United States remains the only western democracy to retain the death penalty and finds itself ranked among the world's leading human rights violators in executions per year. However, prior to the Gregg v. Georgia decision in 1976, ending America's first and only moratorium on capital punishment, the U.S. was well in line with the rest of the civilized world in its approach to the death penalty. This Note argues that America's return to the death penalty is based primarily on the differences between classic parliamentary approaches to regulation and that of the American presidential system. …
Uprooting The Cell-Plant: Comparing United States And Canadian Constitutional Approaches To Surreptitious Interrogations In The Detention Context, Amar Khoday
Dr. Amar Khoday
No abstract provided.
Telus: Asking The Right Questions About General Warrants, Steve Coughlan
Telus: Asking The Right Questions About General Warrants, Steve Coughlan
Articles, Book Chapters, & Popular Press
The general warrant provisions in the Criminal Code have often been interpreted by lower courts in a way which threatens to make that power quite open-ended, and to make those warrants available as a way of making an "end run" around the requirements of other provisions. This note argues that the Supreme Court of Canada is correct, in Telus,to adopt a "substantive equivalence" approach to general warrants, thereby limiting the circumstances in which they can be used. Lower courts have sometimes taken the view that a general warrant is only unavailable if the proposed technique would fall squarely within some …
Taking The Stand: Access To Justice For Witnesses With Mental Disabilities In Sexual Assault Cases, Janine Benedet, Isabel Grant
Taking The Stand: Access To Justice For Witnesses With Mental Disabilities In Sexual Assault Cases, Janine Benedet, Isabel Grant
Osgoode Hall Law Journal
In this article the authors argue that the existing adversarial trial process often prevents the stories of sexual assault complainants with mental disabilities from being heard in court. Relying on social science evidence, the authors argue that subjecting a woman with a mental disability to a rigorous cross-examination with repeated and leading questions, in a manner that is confrontational and often accusatory, is probably the worst way to get her story heard accurately in court. It is likely to unfairly undermine her credibility and to result in unjustified acquittals or in prosecutors deciding not to pursue a case. The article …
Electronic Evidence In Canada, Robert Currie, Steve Coughlan
Electronic Evidence In Canada, Robert Currie, Steve Coughlan
Articles, Book Chapters, & Popular Press
This chapter discusses the issues surrounding electronic evidence in Canada. Topics discussed include the best evidence rule, electronic signatures, web-based evidence, and video-tape and security camera evidence. In addition rules around protection of privacy, discovery, and confidentiality are pursued. Finally the chapter also considers the many issues which arise around gathering electronic evidence in the criminal context, including wiretaps, general warrants, and searches of computers and cell phones.
The Canadian Criminal Jury, Regina Schuller, Neil Vidmar
The Canadian Criminal Jury, Regina Schuller, Neil Vidmar
Chicago-Kent Law Review
The Canadian criminal jury system has some unique characteristics. In contrast to American law, that gives precedent to free speech over fair trial, and English law, that favors fair trial over free speech, Canadian law occupies a middle ground balancing these competing values. Jury selection procedure in most trials is similar to that of England: jurors are assumed to be "impartial between the Queen and the accused" and are selected without voir dire. However, in cases involving exceptional pretrial publicity or involving accused persons from racial or ethnic minority groups, jurors are vetted by a "challenge for cause" process in …
The Canadian Criminal Jury, Neil Vidmar, Regina Schuller
The Canadian Criminal Jury, Neil Vidmar, Regina Schuller
Faculty Scholarship
The Canadian criminal jury system has some unique characteristics. In contrast to American law, that gives precedent to free speech over fair trial, and English law, that favors fair trial over free speech, Canadian law occupies a middle ground balancing these competing values .Jury selection procedure in most trials is similar to that of England: jurors are assumed to be “impartial between the Queen and the accused” and are selected without a voir dire. However, in cases involving exceptional pretrial publicity or involving accused persons from racial or ethnic minority groups, jurors are vetted by a “challenge for cause” process …
Offence Definitions, Conclusive Presumptions, And Slot Machines, Michael Plaxton
Offence Definitions, Conclusive Presumptions, And Slot Machines, Michael Plaxton
Osgoode Hall Law Journal
Canadian evidence scholars frequently claim that conclusive presumptions are nothing more than substantive offence definitions. This position reflects a persistent confusion, not about the function of legal presumptions in the law of evidence, but about the function of offence definitions beyond the law of evidence. Offence definitions, unlike conclusive presumptions, serve the normative function of defining wrongful conduct for citizens. This commentary argues that the language of conclusive presumptions allows us to distinguish the gravamen of a criminal offence from a means of facilitating proof of that wrong. It is, to that extent, worth preserving the distinction between conclusive presumptions …
The Role Of Innocence Commissions: Error Discovery, Systemic Reform Or Both?, Kent Roach
The Role Of Innocence Commissions: Error Discovery, Systemic Reform Or Both?, Kent Roach
Chicago-Kent Law Review
This article examines the role of innocence commissions as emerging criminal justice institutions. It draws a distinction between commissions devoted to the correction of errors in individual cases and commissions which make systemic reform recommendations in an effort to prevent wrongful convictions in future cases. The British and Scottish Criminal Cases Review Commission and the North Carolina Innocence Inquiry Commission are examined as examples of the former type of commission while Canadian public inquiries and commissions in Illinois, California and Virginia are examined as examples of the latter type of commission. Innocence commissions have had difficulties combining error correction and …
Compelled Self-Reporting And The Principle Against Compelled Self-Incrimination: Some Comparative Perspectives, Mark Berger
Compelled Self-Reporting And The Principle Against Compelled Self-Incrimination: Some Comparative Perspectives, Mark Berger
Faculty Works
This article examines the tension between mandatory self-reporting and identification statutes and the right to be free of compelled self-incrimination. The author reviews decisions addressing this issue taken by the European Court of Human Rights ('ECtHR'), the Privy Council, and the Supreme Courts of Canada and the United States. He then analyses applicable public policies and assesses the alternative approaches available to accommodate these conflicting interests.
Canadian Fundamental Justice And American Due Process: Two Models For A Guarantee Of Basic Adjudicative Fairness, David M. Siegel
Canadian Fundamental Justice And American Due Process: Two Models For A Guarantee Of Basic Adjudicative Fairness, David M. Siegel
ExpressO
This paper traces how the Supreme Courts of Canada and the United States have each used the basic guarantee of adjudicative fairness in their respective constitutions to effect revolutions in their countries’ criminal justice systems, through two different jurisprudential models for this development. It identifies a relationship between two core constitutional structures, the basic guarantee and enumerated rights, and shows how this relationship can affect the degree to which entrenched constitutional rights actually protect individuals. It explains that the different models for the relationship between the basic guarantee and enumerated rights adopted in Canada and the United States, an “expansive …
Anger And Intent For Murder: The Supreme Court Decisions In R. V. Parent, Joanne Klineberg
Anger And Intent For Murder: The Supreme Court Decisions In R. V. Parent, Joanne Klineberg
Osgoode Hall Law Journal
In R v. Parent, the Supreme Court of Canada recently held that intense anger alone is not, of itself, a defence to murder, although anger does play a role in reducing murder to manslaughter in connection with the defence of provocation. The Court's brief decision ignores twenty years of contrary jurisprudence and fails to provide detailed reasons for its conclusion, resulting in uncertainty about the scope and application of the decision. In this article, the author explores the relationship between anger and intent for murder, and outlines some possible arguments the Court could have relied on that would have provided …
Mandatory Minimum Sentences And Women With Disabilities, Fiona Sampson
Mandatory Minimum Sentences And Women With Disabilities, Fiona Sampson
Osgoode Hall Law Journal
This article examines the issue of mandatory minimum sentencing from the unique perspective of women with disabilities. Concerns about the discriminatory application of mandatory minimum sentences are outlined and analyzed from a gendered disability perspective, as are concerns about the devaluation of the lives of persons with disabilities through the support of reduced sentences for those convicted of murdering persons with disabilities. This examination makes it clear that the different concerns of women with disabilities are difficult to reconcile, as they mandate contradictory positions with respect to the possible abolition of the sentencing practice. The challenges inherent in the development …
Disarming Canadians, And Arming Them With Tolerance: Banning Firearms And Minimum Sentences To Control Violent Crime--An Essay On An Apparent Contradiction, Helene Dumont
Osgoode Hall Law Journal
In an article published in French in 1997, the author offered reflections on feminism and criminal law that would allow for a better control of violent crime, without Parliament having to resort to excessively severe sentences. In this respect, she argued that there was no contradiction in supporting the radical ban of firearms in Canada, while opposing a minimum sentence of four years under the Firearms Act, which currently affects approximately ten serious Criminal Code offences. After setting out her position in favour of the "disarmament" of Canadians, the author argued that minimum sentences of four years were unconstitutional. Such …