Criminal Law Commons^™

Twenty Years After Krieger V Law Society Of Alberta: Law Society Discipline Of Crown Prosecutors And Government Lawyers, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

Krieger v. Law Society of Alberta held that provincial and territorial law societies have disciplinary jurisdiction over Crown prosecutors for conduct outside of prosecutorial discretion. The reasoning in Krieger would also apply to government lawyers. The apparent consensus is that law societies rarely exercise that jurisdiction. But in those rare instances, what conduct do Canadian law societies discipline Crown prosecutors and government lawyers for? In this article, I canvass reported disciplinary decisions to demonstrate that, while law societies sometimes discipline Crown prosecutors for violations unique to those lawyers, they often do so for violations applicable to all lawyers — particularly …

State Responsibility For International Bail-Jumping, Robert Currie, Elizabeth Matheson

Articles, Book Chapters, & Popular Press

Over the last decade, there has been a spate of incidents in Canada and the United States involving Saudi Arabian nationals who, while out on bail for predominantly sexual crimes, were able to abscond from the countries despite having surrendered their passports. Investigation has revealed evidence supporting a reasonable inference that the government of Saudi Arabia has, in fact, assisted its nationals to escape on these occasions. This article makes the case that this kind of conduct amounts not just to unfriendly acts but also to infringements upon the territorial sovereignty of both states and serious breaches of the international …

The Disruption Of Covid-19: How A Virtual World Creates Opportunity For Improvement In The Criminal Justice System’S Treatment Of Complainants Of Sexual Violence, Leah Roberston

Law in a Post-Pandemic World

This paper argues that the COVID-19 pandemic has normalized video conferencing within the legal system such that survivors ought to be able to routinely testify outside of the court environment. Though there have always been high rates of sexualized violence, the onset of the pandemic has led to increased rates of sexualized violence, which could lead to greater numbers of trials prosecuting perpetrators. However, only a small amount of complainants turn to the court as a form of justice. This is likely due to the inhumane conditions inflicted on complainants during the trial process. The pandemic has revealed that the …

Reasonable Expectations Of Privacy In An Era Of Drones And Deepfakes: Expanding The Supreme Court Of Canada’S Decision In R V Jarvis, Suzie Dunn, Kristen Mj Thomasen

Articles, Book Chapters, & Popular Press

Perpetrators of Technology-Facilitated gender-based violence are taking advantage of increasingly automated and sophisticated privacy-invasive tools to carry out their abuse. Whether this be monitoring movements through stalker-ware, using drones to non-consensually film or harass, or manipulating and distributing intimate images online such as deep-fakes and creepshots, invasions of privacy have become a significant form of gender-based violence. Accordingly, our normative and legal concepts of privacy must evolve to counter the harms arising from this misuse of new technology. Canada’s Supreme Court recently addressed Technology-Facilitated violations of privacy in the context of voyeurism in R v Jarvis (2019). The discussion of …

Dispute Settlement Under The African Continental Free Trade Area Agreement: A Preliminary Assessment, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

The African Continental Free Trade Area Agreement (AfCFTA) will add a new dispute settlement system to the plethora of judicial mechanisms designed to resolve trade disputes in Africa. Against the discontent of Member States and limited impact the existing highly legalized trade dispute settlement mechanisms have had on regional economic integration in Africa, this paper undertakes a preliminary assessment of the AfCFTA Dispute Settlement Mechanism (DSM). In particular, the paper situates the AfCFTA-DSM in the overall discontent and unsupportive practices of African States with highly legalized dispute settlement systems and similar WTO-Styled DSMs among other shortcomings. Notwithstanding the transplantation of …

Sentencing Persons Convicted Of Minor Offences In Ghana: Reducing Judicial Over-Reliance On Imprisonment, Nenyo Kwasitsu

LLM Theses

This thesis argues that there is overuse of imprisonment for minor offenders in Ghana. These are offenders whose punishments go up to 3 years of jail time, essentially offending mainly for reasons of material poverty. Statutory sentencing provisions have essentially limited judges to impose jail terms. It is argued that one way to decongest Ghana’s prisons is to consider the institutionalization of a regime of community service orders and probation, the administration of which would equip the offenders with income-earning skills while they also reform. Drawing on Kenya, a country that has achieved reasonable success in this reform effort, this …

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 …

Judging The Social Sciences In Carter V Canada (Ag), Jodi Lazare

Articles, Book Chapters, & Popular Press

This paper examines a recent example of evidence-based decision making affecting social policy at the trial court level. It offers a close reading of Carter v Canada (AG), decided by the British Columbia Supreme Court, and of Justice Lynn Smith's careful scrutiny of the social science evidence when invalidating the Criminal Code prohibition on assistance in dying. Drawing on literature which examines the legal system's use of social science evidence and expert witnesses, this paper suggests that Justice Smith's treatment of the evidence in Carter provides an example of skilled judicial treatment of the extensive amounts of social science evidence …

Person(S) Of Interest And Missing Women: Legal Abandonment In The Downtown Eastside, Elaine Craig

Articles, Book Chapters, & Popular Press

Women are disappearing. Sixty-nine of them disappeared from the Downtown Eastside of Vancouver between 1997 and 2002. Northern communities in British Columbia believe that more than 40 women have gone missing from the Highway of Tears in the past thirty years. The endangered do not come from every walk of life. Most of these women are Aboriginal. Many of them are poor. To be more precise then, poor women and Aboriginal women are disappearing. Aboriginal women in particular are the targets of an irrefutable epidemic of violence in Canada today.

Robert Pickton is thought to have murdered almost 50 of …

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 …

The Rise And Fall Of Duress (Or How Duress Changed Necessity Before Being Excluded By Self-Defence), Steve Coughlan

Articles, Book Chapters, & Popular Press

The Supreme Court of Canada decision in R. v. Ryan significantly reshaped both the common law and statutory defenses of duress, harmonizing them and, in the case of the common law defense, fully articulating it for the first time. The decision is admirable for that reason. This paper argues that two further results can also be seen. First, the defense of necessity is a common law one which is conceptually similar to duress. The Court's reasoning at a policy level about duress ought therefore to be applicable to necessity: this paper traces the ways in which that latter defense ought …

Organized Crime Outlaws: An Evaluation Of Criminal Organization Legislation In Canada, Carol Fleischhaker

PhD Dissertations

This thesis explains how some organized crime outlaws, such as anti-Prohibitionists, the North American Mafia or La Cosa Nostra, outlaw motorcycle gangs, and Aboriginal street gangs, come to exist and thrive in Canadian society. It sets forth the historical development and nature of criminal organization laws in Canada, and compares the definition of “criminal organization” in the Criminal Code with other criminal law concepts, such as corporate criminals and white-collar criminals; conventional criminality or garden-variety predatory crime; terrorists; and criminal conspirators, parties, and accessories. It uses various concepts and assertions within criminological, sociological and psychological theories to explain the formation …

Sex And The Supremes: Towards A Legal Theory Of Sexuality, Elaine Craig

PhD Dissertations

This thesis examines how the Supreme Court of Canada, across legal contexts, has tended to conceptualize sexuality. It focuses primarily on areas of public law including sexual assault law, equality for sexual minorities, sexual harassment and obscenity and indecency laws. There were a number of trends revealed upon reviewing the jurisprudence in this area. First, the Court’s decisions across legal contexts reveal a tendency to conceptualize sexuality as innate, as a pre-social naturally occurring phenomenon and as an essential element of who we are as individuals. This is true whether one is speaking of the approach to gay and lesbian …

Too Good To Be True: Second Thoughts On The Proliferation Of Mental Health Counts, H Archibald Kaiser

Articles, Book Chapters, & Popular Press

The last two decades have witnessed the proliferation of mental health courts, proffered by governments as an efficacious and sometimes exclusive response to the complex social dynamics causing the criminalization of persons who live with mental health problems. the ready embrace of this variant of the problem-solving-courts genre has diverted policy-makers and citizens from confronting the root causes of the challenging intersection of mental illness and crime. the new courts have acquired a legitimacy that belies a wide range of doubts about their existence and operation. this commentary will offer a counterpoint to the accelerating momentum of mental health courts. …

The Principled Exception And The Forgotten Criterion, Steve Coughlan

Articles, Book Chapters, & Popular Press

The principled exception to the hearsay rule is routinely described as being settled by the "twin criteria" of necessity and reliability. In fact a third criterion is also — or at least ought to be — at play: that admitting the evidence through hearsay would not undermine any other rule of evidence. The Court has made reference to this third criterion in the past, but it has largely been ignored in both Supreme Court and lower court decisions. The recent judgement in Couture depends in a limited way on that question, and so it marks an opportunity to articulate the …

Restorative Justice: A Conceptual Framework, Jennifer Llewellyn, Robert L. Howse

Reports & Public Policy Documents

Restorative justice has become a fashionable term both in Canadian and foreign legal and social policy discourse. Restorative justice is certainly not a new idea. In fact, it is foundational to our very ideas about law and conflict resolution. There is, nevertheless, a lack of clarity about the meaning of this term. Often it is used as a catchall phrase to refer to any practice which does not look like the mainstream practice of the administration of justice, particularly in the area of criminal justice. Little attention has been spent attempting to articulate what distinguishes a practice as restorative. Rather, …

Book Review Of Passion: An Essay On Personality , Richard F. Devlin Frsc

Articles, Book Chapters, & Popular Press

Passion is a cogently structured, compel Jingly argued and seductively enthralling masterpiece which, in years to come, will undoubtedly stand out as an inspirational source for many who seek social transformation. Unger's style, in this essay at least, is lucid and inviting. Substantively, Passion demonstrates not only the depth of his penetrating intellect but also his command of an array of' disciplines. Unger's polymathy is all the more impressive when we remember that ours is an era in which idiosyncratic specialization is the norm.