Law Commons^™

The Role Of Pornography In The “Rough Sex” Defence In Canada, Lisa Gotell, Isabel Grant, Elizabeth Sheehy

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Drawing upon the authors’ earlier research studying the consent defence when it is used to suggest that the complainant agreed to “rough sex” involving violence, this paper develops an extended analysis of the complex role of pornography in these decisions. This paper focuses on a subset of “rough sex” cases, where pornography played a role in “scripting” the accused’s behaviour. Thematically, these cases included: those where the accused had a substantial history of consumption of violent pornography; cases in which the accused forced the complainant to view pornography as part of the assault; cases where the accused recorded the attack, …

Post-Conviction Disclosure In The Canadian Context, Alexandra Ballantyne, Tamara Levy, K.C.

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It is common knowledge that the criminal justice system is fallible and prone to human error. The most egregious of such errors is the conviction of an innocent person. While wrongful convictions have been acknowledged in Canada in the last few decades, they are mostly regarded as rare and extraordinary events.16 In response to this perception, experts have identified the challenge of determining the number of wrongful convictions and their exact causes.17 A 2019 study estimates that at least 85 people have been exonerated in Canada.18 The recent advent of the Canadian Registry of Wrongful Convictions creates a centralized location …

Sexual Assault Of Women And Adolescent Girls With Mental Disabilities, Janine Benedet, Isabel Grant

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This Report considers the research that addresses the sexual assault of women (age 18+) and adolescent girls (12-17) with mental disabilities (disabilities that affect cognition and decision-making, including intellectual disabilities present from birth, dementia, brain injury and certain psychiatric conditions.) These victims are targeted for sexual violence at rates even higher than for women generally. Yet when these women report abuse to authorities, the criminal trial process struggles to provide them with justice, while the consequences of disclosure can be severe and participation in the criminal justice process particularly traumatizing for them.

Resurrecting 'She Asked For It': The Rough Sex Defence In Canadian Courts, Elizabeth Sheehy, Isabel Grant, Lise Gotell

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According to rape crisis centres and women’s shelters in Canada, the US and the UK, women are reporting extreme levels of violence by men who rape them, including strangulation—a particularly dangerous form of violence that is highly predictive of femicide. At the same time, accused men are deploying the “rough sex” defence when the victim—nearly always a woman—has suffered bodily harm or even death as a result of the accused’s actions. This defence is used to suggest that the woman enjoyed strangulation, bondage or other violence as part of “sex play”, inviting judges and jurors to find that she either …

Criminality And Inequity Under Canada's Legalization Of Cannabis: A Study Of Vancouver's Downtown Eastside, Stephanie Lake, Margot Young

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The origin of this essay reminds us of the importance of interdisciplinary collaboration to the development and assessment of public policy. It also demonstrates the serendipitous beginnings of many interesting inquiries. This collaboration was thus fortuitous: authors Lake and Young met during Lake’s doctoral dissertation defence. Young was on the examining committee. Lake presented a series of epidemiological studies (three of which are summarized below) involving the use of cannabis for therapeutic and harm reduction purposes among marginalized people who use drugs (PWUD) in Vancouver. Young’s lines of questioning involving the legal implications of Lake’s findings spurred the idea to …

The Evolution Of Life Sentences For Second-Degree Murder: Parole Ineligibility And Time Spent In Prison, Debra Parkes, Jane Sprott, Isabel Grant

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Canada's murder sentencing regime has been in effect since 1976, and yet very little data has examined what these sentences actually mean for those convicted. This paper begins to fill this gap by examining the meaning of a life sentence for those convicted of second degree murder in Canada. Using data provided by the Correctional Investigator, we examine both the parole ineligibility periods imposed by sentencing judges, and how long people are serving before a grant of full parole over time from 1977 to 2020. We found statistically significant increases over time in both judicial parole ineligibility periods, and in …

The Meaning Of Capacity And Consent In Sexual Assault: R. V. G.F., Isabel Grant, Janine Benedet

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The Criminal Code provisions dealing with sexual assault have been amended in a piecemeal fashion several times since the major reforms of 1982, which replaced the offences of rape and indecent assault with a three-tiered sexual assault offence. Many of these reforms were brought forward in response to particular judicial decisions that provoked controversy and concern. In most cases, new provisions were added without removing or amending related provisions already in place. What remains is a set of provisions that do not work together as a coherent whole.

The Slow Death Of The Reasonable Steps Requirement For The Mistake Of Age Defence, Isabel Grant

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This article examines the demise of the “all reasonable steps” requirement in s. 150.1(4) of the Criminal Code which limits an accused’s ability to assert a mistaken belief in age as a defence to sexual offences against children where he has failed to take such steps. The article demonstrates that the Court of Appeal for Ontario in R v Carbone has rendered this requirement meaningless in Ontario. Even where the Crown has met its burden to prove beyond a reasonable doubt that the accused did not take “all reasonable steps” to ascertain age, the Crown must still go on and …

Non-Consensual Condom Removal In Canadian Law Before And After R. V. Hutchinson, Isabel Grant, Lise Gotell

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This paper examines the phenomenon of nonconsensual condom removal (NCCR) and its relationship to sexual assault in Canada. Using empirical studies and the insights of feminist theory, we explore the nature of the harms caused by NCCR and contend that this pervasive practice constitutes sexual assault. We then critique the decision of R v Hutchinson, which held that condom sabotage does not negate subjective consent, ignoring the dignitary harms of NCCR. While lower court decisions before Hutchinson recognized that consent to sex with a condom does not include consent to sex without, courts after Hutchinson have struggled to distinguish the …

Starting With Life: Murder Sentencing And Feminist Prison Abolitionist Praxis, Debra Parkes

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Advocates of decarcation often focus their critiques on imprisonment for non-violent offences. In this vein, current advocacy efforts to end mandatory sentences in Canada tend to carve out “serious violent offences” as not part of a reform agenda. In this chapter, Debra Parkes sketches out the contours of an argument for why feminists might not want to cede that ground, why anti-carceral feminism might involve centering our analysis on the most, rather than the least, serious crimes – starting with those who are serving life sentences for murder. Parkes identifies four non-exhaustive reasons for that focus. The first reason relates …

The Meaning Of Life: A Study Of The Use Of Parole Ineligibility For Murder Sentencing, Isabel Grant, Crystal Choi, Debra Parkes

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A number of legal developments in recent years suggest that murder sentencing may be becoming increasingly punitive. This study examines two aspects of setting parole ineligibility. First, using cases from three two-year time periods spanning the past three decades, the authors explore whether judicial calculations of parole ineligibility for second degree murder have changed over time. Second, the authors examine changes enacted in 2011 to allow parole ineligibility to be imposed consecutively for those who commit more than one murder. The study finds a national trend towards reduced reliance on the minimum 10-year period of parole ineligibility, a slight increase …

The Complex Legacy Of R. V. Cuerrier: Hiv Nondisclosure Prosecutions And Their Impact On Sexual Assault Law, Isabel Grant

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This article examines the impact of the Supreme Court of Canada decision in R. v. Cuerrier from two vantage points. First, the article examines the impact of the decision on HIV nondisclosure prosecutions. Second, it examines the damage done by Cuerrier to sexual assault law outside of the HIV context. The article argues that Cuerrier has both overcriminalized people living with HIV and distorted the law of sexual assault. Through Cuerrier, and subsequent cases, the Supreme Court of Canada has unduly limited the concept of consent and its voluntariness requirement, and distorted the concept of fraud such that deceptions around …

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

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In 2016, Gerald Stanley shot 22-year-old Colten Boushie in the back of the head after Boushie and his friends entered his farm. Boushie died instantly. Stanley relied on the defence of accident and was found not guilty be an all-white jury. Throughout the trial, Stanley invoked concerns about trespass and rural crime (particularly property crime), much of which was of limited relevance to whether or not the shooting was an accident. We argue that the assertions of trespass shaped the trial, yet were not tested by the jury through a formal invocation of the defence of property.

Breaking The Silence On Father-Daughter Sexual Abuse Of Adolescent Girls: A Case Law Study, Janine Benedet, Isabel Grant

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Adolescent girls are targeted for sexual violence at a rate higher than females at any other life stage. Girls most often face sexual violence at the hands of men that they know and trust within their own families, yet this type of abuse has largely evaded scrutiny from the #MeToo movement. In this article, the authors seek to revitalize the discussion of sexual abuse against adolescent girls by their fathers. The article is part of a larger study that examined all Canadian judicial decisions involving sexual offences against girls between the ages of twelve and seventeen inclusive over a three-year …

Does 'No, Not Without A Condom' Mean 'Yes, Even Without A Condom'?: The Fallout From R V Hutchinson, Lise Gotell, Isabel Grant

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In R v Kirkpatrick, the Court of Appeal for British Columbia held that consent to sexual activity cannot be established where a man proceeds with unprotected vaginal intercourse when his sexual partner has insisted on a condom. While this finding should be uncontroversial, it is in fact contrary to the Supreme Court of Canada ruling in R v Hutchinson. In this comment we argue that the approach taken in Kirkpatrick is correct and consistent with the landmark decision in R v Ewanchuk. We urge the Supreme Court of Canada to reconsider its majority judgment in Hutchinson in order to fully …

The "Statutory Rape" Myth: A Case Law Study Of Sexual Assaults Against Adolescent Girls, Isabel Grant, Janine Benedet

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This article examines three years of Canadian case law involving sexual offences against adolescent girls between the ages of twelve and seventeen inclusive, with a view to identifying the types of cases that are making it to court, whether these cases are resulting in convictions, and what are the types of sentences being imposed on individuals convicted of these offences. A significant majority of cases under review involved men considerably older than the complainant. The average age difference between the accused and the complainant was nineteen years and, where family members were excluded, 15.6 years. The small number of cases …

Confronting The Sexual Assault Of Teenage Girls: The Mistake Of Age Defence In Canadian Sexual Assault Law, Isabel Grant, Janine Benedet

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Teenage girls experience high rates of sexual assault. The Criminal Code permits the Crown to substitute proof of young age for proof of non-consent for sexual assault and related offences applicable to young complainants. This paper focuses on the defence of mistaken belief in age. It provides a defence where the accused honestly believed that the complainant was at or above the age of consent and where the accused took all reasonable steps to ascertain her age. A review of the cases considering the defence indicates that it is often applied incorrectly, where the accused does not have any belief …

Social Media Crime In Canada: Annotated Criminal Code, R.S.C., 1985, C. C-46, 2nd Ed., Benjamin Perrin

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Over 80% of Canadians use the Internet and approximately 20 million Canadians are active on social media networks. It is not surprising that criminal activity is taking place in these global digital communities and this is raising challenges for criminal law and the criminal justice system. The Supreme Court of Canada recently recognized in R. v. K.R.J. that “[t]he rate of technological change over the past decade has fundamentally altered the social context” in which certain crimes are occurring and social media networks have given “unprecedented access to potential victims and avenues” for offending.

This annotated Criminal Code aims to …

Unreasonable Steps: Trying To Make Sense Of R. V. Morrison, Isabel Grant, Janine Benedet

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Children and youth routinely have easy, unsupervised access to the internet through smartphones and tablets. This connectivity increases the danger that adults will sexually exploit them. Adult chat rooms, which may require nothing more than a child checking a box indicating that they are over the age of 18, are a common site for such exploitation. In most cases, this behaviour only comes to light when either a parent becomes aware of the activity, or when an in-person sexual offence against a child is detected and the online communications are discovered in the course of the investigation.

The Role Of Section 718.2(A)(Ii) In Sentencing For Male Intimate Partner Violence Against Women, Isabel Grant

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This article examines sentencing for male intimate partner violence against women since the 1996 enactment of s 718.2(a)(ii) of the Criminal Code, which requires that a spousal/common-law relationship between an offender and victim be considered an aggravating factor in sentencing. The article argues that, while in general appellate courts in Canada are taking this violence seriously, cases involving level I sexual assaults still demonstrate the longstanding tendency to treat the intimate relationship as mitigating. Further appellate guidance is necessary on how courts should reconcile s 718.2(a)(ii) with s 718.2(e), which requires that all options other than incarceration be considered when …

Henry V. British Columbia: Still Seeking A Just Approach To Damages For Wrongful Conviction, Emma Cunliffe

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Henry v. British Columbia (Attorney General) was the first case in which a claimant sought damages under section 24(1) of the Canadian Charter of Rights and Freedoms for breaches of rights that led to a wrongful conviction and imprisonment. In its 2015 decision, the Supreme Court of Canada clarified the criteria for the award and quantum of such damages. In June 2016, Hinkson C.J.S.C. awarded $8,086,691.80 in damages to Ivan Henry in compensation, special damages and “to serve both the vindication and deterrence functions of s. 24(1) of the Charter”.

In this article, I describe the events that led to …

Illicit Exploitation Of Natural Resources - Art. 28l Bis Of The Malabo Protocol, James G. Stewart, Daniëlla Dam

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Article 28A(1)(13) of the Protocol to the Statute of the African Court of Justice and Human Rights lists ‘Illicit exploitation of natural resources’ as a criminal offense within the Court’s jurisdiction. In conjunction with the new mandate of the African Court, which includes the exercise of jurisdiction over corporations for the first time in an international treaty, the prohibition of “illicit exploitation of natural resources” creates an offense with especially sharp teeth, for business people, their corporations, military actors and politicians. The crime constitutes an important innovation in international law, since it offers a distinct legal basis for prosecution of …

Equality And The Defence Of Provocation: Irreconcilable Differences, Isabel Grant, Debra Parkes

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Recent amendments to the defence of provocation have limited access to the defence to those who are provoked by conduct that, if prosecuted, would have been an indictable offence punishable by at least five years imprisonment. The paper argues that these amendments are both over- and under-inclusive and fail to confront the central problem surrounding provocation which is that it privileges loss-of-control rage often in the context of male violence against women or in response to same-sex advances. The paper supports the abolition of the defence of provocation but only if mandatory minimum sentences for murder are abolished providing trial …

The Ahistoricism Of Legal Pluralism In International Criminal Law, James G. Stewart, Asad Kiyani

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International criminal law (“ICL”) is legally plural, not a single unified body of norms. As a whole, trials for international crimes involve a complex dance between international and domestic criminal law, the specificities of which vary markedly from one forum to the next. To date, many excellent scholars have suggested that the resulting doctrinal diversity in ICL should be tolerated and managed under the banner of Legal Pluralism. To our minds, these scholars omit a piece of the puzzle that has major implications for their theory – the law’s history. Neglecting the historical context of the international and national criminal …

The Sexual Assault Of Older Women: Criminal Justice Responses In Canada, Isabel Grant, Janine Benedet

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This article examines sexual violence against older women, a problem that has been largely hidden from view in the societal and legal discussion of sexual assault. The article identifies a significant disconnect between the social science description of sexual assault against older women, on the one hand, and the available case law, on the other. The social science literature suggests that older women are most likely to be sexually assaulted by somebody they know and that a disproportionate number of the sexual assaults against older women take place within care facilities. The case law, however, paints a very different picture …

The Strangely Familiar History Of The Unitary Theory Of Perpetration, James G. Stewart

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A unitary theory of perpetration is one that does not espouse different legal standards for different forms of participating in crime. In this Article, I pay homage to Professor Damaška’s influence on my work and career by reiterating my earlier arguments for a unitary theory of perpetration in international criminal law. Whereas my earlier work defended the unitary theory in abstract terms then for international criminal law in particular, this Article looks to the history of the unitary theory in five national systems that have abandoned differentiated systems like that currently in force internationally in favor of a unitary variant. …

Instrumentalizing The Expressive: Transplanting Sentencing Circles Into The Canadian Criminal Trial, Toby S. Goldbach

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This Article examines reforms to criminal sentencing procedures in Canada, focusing on Aboriginal healing circles, which were incorporated as “sentencing circles” into the criminal trial. Using the lens of comparative law and legal transplants, this Article recounts the period of sentencing reform in Canada in the 1990s, when scholars, practitioners, and activists inquired into Aboriginal confrontation with the criminal justice system by comparing Euro-Canadian and Aboriginal justice values and principles. As a way to bridge the gap between vastly differing worldviews and approaches to justice, judges and Aboriginal justice advocates transplanted sentencing circles into the sentencing phase of the criminal …

Intimate Partner Criminal Harassment Through A Lens Of Responsibilization, Isabel Grant

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Feminist scholars have demonstrated the gendered nature of intimate violence, and the tendency to put the responsibility on women to avoid both sexual and physical violence. The degree to which this responsibility is based on stereotypes about the “good victim” has been well documented in the context of sexual assault. This paper applies these insights to the context of intimate partner criminal harassment. All available statistics suggest that intimate partner criminal harassment is committed overwhelmingly by men against former female intimate partners. This crime affects thousands of women annually and can have devastating implications for their physical and mental health. …

More Than Words: Enhancing The Proposed Canadian Victims Bill Of Rights (Bill C-32), Benjamin Perrin

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This brief Commentary provides an evaluation of the proposed Canadian Victims Bill of Rights (a key part of Bill C-32), and recommendations aimed at ensuring that it meets the objective of meaningfully enhancing the rights of victims within the criminal justice system. Part 2 provides a synopsis of victimization in Canada, including both self-reported crime and police-reported crime. Groups of victims suffering disproportionately high levels of violent victimization are highlighted and reasons for under-reported crime related to the justice system are identified. Part 3 summarizes the key components of the Canadian Victims Bill of Rights. Part 4 evaluates this proposed …

The Punishment Agenda In The Courts, Debra Parkes

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This paper critically examines the potential of prisoner litigation in Canada to shed light on what U.S. Supreme Court Justice Anthony Kennedy has called “the hidden world of punishment.” It considers whether prisoner’s rights litigation can act as a meaningful legal check on the growing punishment agenda in Canada. The paper begins with a brief description of some aspects of the punishment agenda before moving on to consider case law under the section of the Canadian Charter of Rights and Freedoms which speaks directly to punishment and its limits, the section 12 right to be free from “cruel and unusual …