Criminal Law Commons^™

Good Faith, Bad Faith And The Gulf Between: A Proposal For Consistent Terminology, Steve Coughlan

Articles, Book Chapters, & Popular Press

Since the earliest days of section 24(2) jurisprudence, the phrase “good faith” has been used. For nearly as long, it has been used inconsistently. The same is true, to a lesser extent, of the phrase “bad faith.” This article traces the confusion which arises in understanding and in reasoning from the failure to restrict these phrases to single meanings. The article then proposes particular meanings for each, which would limit their applicability to extreme situations at either end of the spectrum. It is proposed that the term “good faith” should only be used in circumstances where it settles that the …

Keeping 'Reasonable Grounds' Meaningful, Steve Coughlan

Articles, Book Chapters, & Popular Press

Two recent Court of Appeal cases (R. v. Jir and R. v. Bush, both reported ante, pp. 53 and 29) are examples of tendencies in some recent decisions to weaken the "reasonable grounds" standard for arrest. That the reasonable grounds standard for arrest is important is beyond question. As the Supreme Court of Canada has said, Without such an important standard, even the most democratic society could all too easily fall prey to the abuses and excesses of a police state. In subtle and sometimes unintentional ways, however, the reasonable ground standard is being undermined. This short article will examine …

R. V. Ryan - Duress Is Not Necessary Where Necessity Is Sufficient, Steve Coughlan

Articles, Book Chapters, & Popular Press

The accused's claim in R. v. Ryan that she committed an offence in response to a history of abuse is, at a factual level, stronger than that in the landmark case of R. v. Lavallee, which first established the relevance of such a claim to criminal defences. In each case there was expert evidence about the accused's psychological condition. In Ryan, however, the accused herself testified at length about events over a period of many years and her evidence was accepted by the trial judge, unlike Lavallee where the accused did not testify at all. Further, the threats of death …

Sex Work By Law: Bedford's Impact On The Municipal Regulation Of Sex Work, Elaine Craig

Articles, Book Chapters, & Popular Press

The recent Ontario trial decision in Bedford suggests three interrelated principles that municipal law makers should consider when formulating bylaws aimed at regulating sex work. These principles, if upheld on appeal, will inform the constitutionality of both current and prospective bylaws regulating sex work in Canadian cities.

In Bedford, Justice Himel concluded that the constitutionality of laws regulating the sex trade must be determined in a legal context which recognizes the violence faced by sex workers. She confirmed that laws that indirectly make sex work more dangerous and harmful must be consistent with those principles that our legal system, through …

Sex Work By Law: Bedford's Impact On The Municipal Regulation Of Sex Work, Elaine Craig

Articles, Book Chapters, & Popular Press

The recent Ontario trial decision in Bedford suggests three interrelated principles that municipal law makers should consider when formulating bylaws aimed at regulating sex work. These principles, if upheld on appeal, will inform the constitutionality of both current and prospective bylaws regulating sex work in Canadian cities. In Bedford, Justice Himel concluded that the constitutionality of laws regulating the sex trade must be determined in a legal context which recognizes the violence faced by sex workers. She confirmed that laws that indirectly make sex work more dangerous and harmful must be consistent with those principles that our legal system, through …

The Beasts In The Jungle: Animal Welfare In International Law, Catherine Sykes

LLM Theses

Animal welfare has emerged as a pervasive concern in modern international law. The purpose of this study is to situate the international legal principle protecting the welfare of animals within the broader framework of international law. The study uses a constructivist model to develop a theory of the place of animal welfare in the international legal regime that has due regard for cultural differences and the diversity of international society. The historical antecedents for an obligation to protect animal welfare in various global cultures are considered. The argument posits an internationally recognized principle of humane treatment of animals based on …

Are We Flipping Coins With The Liberty Of Potentially Dangerous Individuals?: A Comparative Analysis, Sébastien David Martineau

LLM Theses

The concept of dangerousness in Canadian and French criminal law is a central component in the development of prophylactic measures, such as section 810.1 and 810.2 of the 'Criminal Code' and similar French provisions. The imposition of preventive measures to control the risk of future behaviour of potentially dangerous individuals relies on inexact science to determine and assess dangerousness. In the last decades, several risk assessment tools have been developed, notably some in Canada, but their reliability in predicting dangerousness varies. The objectivity and reliability of a determination of dangerousness can be affected not only by the type of risk …

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 …

The Chemical Castration Of Recidivist Sex Offenders In Canada: A Matter Of Faith, Matthew R. Kutcher

Dalhousie Law Journal

Chemical castration refers to the use of medication to reduce male testosterone to pre-pubertal levels. Since the mid-20th century reports have detailed this practice in attempts to control pathological sexual behaviour. In 2006, the Canadian Federal Court of Appeal ruled it constitutional for the National Parole Board to require that recidivist sex offenders, if found to be long-term offenders, be chemically castrated under their conditions of release. This paper examines the chemical castration of recidivist sex offenders in Canada through a review of long-term offender hearings reported between 1997 and 2009. The practice is analyzed from ethical, medical and legal …

Book Review: The International Criminal Court: A Commentary On The Rome Statute By William Schabas, Oxford: Oxford University Press, 2010, Robert Currie

Articles, Book Chapters, & Popular Press

"A Commentary on the Rome Statute" by William Schabas is a giant of a work by a giant in the field. This review examines the breadth and scope of one of the most important works in the field, concluding that the book is not just an excellent resource but an indispensable one for anyone working in or following the field of international criminal justice.

Caveat Emptor, Venditor Et Praescribor: Legal Liability Associated With Methyplenidate Hydrochloride (Mph) Use By Postsecondary Students, Jocelyn Downie, Fiona Campbell, Simon Outram

Articles, Book Chapters, & Popular Press

For years, students have endured the physical and mental stress that comes as a result of the demands of post-secondary education. All -night cramming for exams and marathon paper writing sessions are considered, by many, to be a rite of passage, endured by generations of students. For many years, students have also turned to stimulants (from coffee to energy drinks and caffeine pills) to extend their physical and cognitive limits in order to better cope with the demands of school and life. In this sense, the use of stimulants as study-aids is not a new phenomenon nor has it been …

Using Protection Of Privacy Legislation To Erode Privacy: R. V. Chehil, Steve Coughlan

Articles, Book Chapters, & Popular Press

The Nova Scotia Court of Appeal here in R. v. Chehil overturns the trial judge's conclusion that the accused had a reasonable expectation of privacy in the information the police obtained from the computer manifest. With respect, their application of the totality of the circumstances test is subject to question at several important points. For example, in assessing the objective reasonableness of an expectation of privacy, the Court of Appeal relies on the fact that the Westjet website informs customers that "information will be disclosed to the authorities without your knowledge and consent as required by law." The court then …

R. V. Munyaneza: Pondering Canada's First Core Crimes Conviction, Robert Currie

Articles, Book Chapters, & Popular Press

Canada recently completed its first genocide trial, which resulted in the conviction of the Rwandan accused, Desiré Munyaneza, for crimes committed during the Rwandan genocide. While the case is still under appeal, it represents a significant success for Canada’s relatively new core crimes legislation, the Crimes Against Humanity and War Crimes Act, and was the first prosecution undertaken pursuant to that law. Drawing upon the Munyaneza case, the authors analyze the legislation and evaluate its effectiveness. They conclude that the model is an effective one that both bodes well for Canada’s future participation in the battle against impunity, and provides …

Kwiatkowski: Privacy Protection And Risk Analysis: Losing The Forest In The Telephoto Shots Of The Trees, Steve Coughlan

Articles, Book Chapters, & Popular Press

Checklists of factors are a helpful feature in assisting courts to determine how to find the proper balance in a variety of situations. Properly used they can help to achieve a certain level of uniformity and predictability, though they do not guarantee it. However, it is also important to recognize that checklists are a way of getting at the right analysis — they are not in and of themselves that analysis. Checklists also create the possibility of becoming encumbered in specifics and therefore losing sight of the overall goal. The Supreme Court decided two decades ago that the reasonable expectation …

Stopping Vehicles On A Downhill Slope: R. V. Nolet, Steve Coughlan

Articles, Book Chapters, & Popular Press

The law need not stay the same. The Court has indicated its clear willingness to change the law to accommodate changing social conditions, or in other circumstances. However, when the law does change, it is better for all if that happens clearly: when it is apparent that the old approach no longer governs and it is clear what the new approach will be. In this regard, more could have been hoped for from Nolet. The case raises questions about the proper approach to search issues and to detentions involving vehicle stops and seems inconsistent with previous case law in both …

R. V. Munyaneza: Pondering Canada's First Core Crimes Conviction, Robert Currie, Ion Stancu

Articles, Book Chapters, & Popular Press

Canada recently completed its first genocide trial, which resulted in the conviction of the Rwandan accused, Desiré Munyaneza, for crimes committed during the Rwandan genocide. While the case is still under appeal, it represents a significant success for Canada’s relatively new core crimes legislation, the Crimes Against Humanity and War Crimes Act, and was the first prosecution undertaken pursuant to that law. Drawing upon the Munyaneza case, the authors analyze the legislation and evaluate its effectiveness. They conclude that the model is an effective one that both bodes well for Canada’s future participation in the battle against impunity, and provides …

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. …

Parents, Children, And The Law Of Assault, Hamish Stewart

Dalhousie Law Journal

The debate concerning the constitutionality and the possible repeal of s. 43 of the Criminal Code, the so-called "spanking" provision, has raised an important issue: when a parent touches a child without the child's consent, under what conditions is the parent's conduct an assault? Supporters of the'repeal of s. 43 have suggested that parents are protected from inappropriate prosecutions by the exercise of prosecutorial discretion and by the common law defences of de minimis non curat lex and necessity But prosecutorial discretion is not a suitable substitute for a proper definition of the scope of criminal liability,and the defences ofde …

Laws Of Desire: The Political Morality Of Public Sex, Elaine Craig

Articles, Book Chapters, & Popular Press

In deciding cases that involve the intersection of criminal law and sexual mores, the courts are faced with the challenge of determining the appropriate moral framework from which to approach simultaneously private and social concerns. In indecency cases, Canadian courts historically employed a communitarian model of sexual morality based on the community’s standard of tolerance. However, the Supreme Court of Canada’s recent jurisprudence affirms a harm-based test, which relies upon and protects the fundamental values enshrined in the Canadian constitution. This article analyzes the Court’s decisions in R. v. Labaye and R. v. Kouri and demonstrates that these cases represent …

Beyond The Goudge Inquiry: Is The Coroner Part Of 'The Crown' For Stinchcombe Disclosure Obligations?, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

Pediatric forensic pathology evidence is a critical component of the investigation and prosecution of child and infant death. Several years ago, concerns arose over the work of Dr. Charles Smith, then a renowned expert in the field. The Office of the Chief Coroner for Ontario ("The Coroner") then commissioned an external review of his work on 45 cases. For each case where his findings or conclusions were disputed and the accused had not been acquitted, the defence counsel was given the corresponding reports. In response to the review, the Government of Ontario commissioned a public inquiry led by Justice Stephen …

Great Strides In Section 9 Jurisprudence, Steve Coughlan

Articles, Book Chapters, & Popular Press

The perfect is the enemy of the good. Could the approach to section 9 laid out in Grant have been constructed differently? Yes. But are we, because of that decision, magnitudes of order clearer on how to approach section 9? Also yes. The Supreme Court's decision in Grant, seemingly the product of careful negotiation given the time it has taken for the judgment to be handed down in a fashion having a clear majority, has created what has for over 25 years been lacking with regard to arbitrary detention. Where before we had very few decisions, those decisions not easily …

R. V. Ha: Upholding General Warrants Without Asking The Right Questions, Steve Coughlan

Articles, Book Chapters, & Popular Press

To date, in considering general warrants, courts have been failing even to think about a distinction which ought to be seen as essential. The distinction arises in connection with the requirement in section 487.01 (l)(c) of the Criminal Code that a general warrant is only available when no other provision in any statute could authorize the search. In R. v. Ha, reported ante p. 24, the Ontario Court of Appeal notes that: The simple fact is that there is no provision in the Code, the CDSA, or in any other federal statute that would authorize an unlimited number of covert …

The Political Morality Of Public Sex, Elaine Craig

Articles, Book Chapters, & Popular Press

In deciding cases that involve the intersection of criminal law and sexual mores, the courts are faced with the challenge of determining the appropriate moral framework from which to approach simultaneously pri- vate and social concerns. In indecency cases, Canadian courts historically employed a communitarian model of sexual morality based on the community’s standard of tolerance. However, the Supreme Court of Canada’s recent jurisprudence affirms a harm-based test, which relies upon and protects the fundamental values en- shrined in the Canadian constitution. This article ana- lyzes the Court’s decisions in R. v. Labaye and R. v. Kouri and demonstrates that …

Ten Years After Ewanchuk The Art Of Seduction Is Alive And Well: An Examination Of The Mistaken Belief In Consent Defence, Elaine Craig

Articles, Book Chapters, & Popular Press

It has been a decade since the Supreme Court of Canada released its controversial decision in R. v. Ewanchuk. One of the central doctrinal issues raised by critics of Ewanchuk was a concern that it would not sufficiently allow for the mistaken belief defence in cases involving ‘morally innocent’ accused engaged in typical sexual overtures or in cases where the accused and complainant were in an ongoing sexual relationship at the time of the offence. A review of the reported cases, since 1998, demonstrates that the Ewanchuk analysis, properly interpreted, does not unjustly criminalize the progression of intimate behavior between …

Towards An Equality-Enhancing Conception Of Privacy, Jane Bailey

Dalhousie Law Journal

Canadian jurisprudence has explicitly recognized the impact of child pornography on the privacy rights of the children abused in its production. In contrast, it has generally not analyzed other forms of harmful expression, such as hate propaganda and obscenity,to be violations of the privacy rights of those targeted. In a previous article, the author suggested that this distinction in the jurisprudence reflected the relative ease with which the privacy interests of the individual children whose abuse is documented inchild pornography meshed with the prevalent Western approach toprivacy as a negative individual liberty against intrusion. Noting the historic role that the …

Retribution, Restoration, And White-Collar Crime, Katherine Beaty Chiste

Dalhousie Law Journal

A "restorative" approach to criminality and conflict has been proposed in a number of common law jurisdictions in a variety of legal contexts, both civil and criminal, with an interesting exception: white-collar crime, which is discussedin an almost exclusively retributive vocabulary. This paper explores what a specifically restorative response to white-collar crime might look like, a response which above all else would seek to heal the harm the crime has done. In particular,the author looks at the possibilities for voluntary participation of victims and offenders; broad stakeholder inclusion and a focus on future relations rather than past offences-all necessaryparts of …

The Boundaries Of The Criminal Law: The Criminalization Of The Non-Disclosure Of Hiv, Isabel Grant

Dalhousie Law Journal

In this paper, the author examines the trend toward the increased criminalization and punishment of persons with HIV who fail to inform their stxual partners of their HIV-positive status. Since the Supreme Court of Canada's decision in R. v. Cuerrier, such behaviour may constitute aggravated assaultor aggravated sexual assault, the latter offence carrying a maximum sentence of life imprisonment. The paper surveys the Canadian case law and highlights the trend towards the imposition of increasingly harsh sentences. After reviewing public-health and criminal law options for dealing with nondisclosure of one's HIV status, the author concludes that criminal law should only …

Missing Privacy Through Individuation: The Treatment Of Privacy Law In The Canadian Case Law On Hate, Obscenity, And Child Pornography, Jane Bailey

Dalhousie Law Journal

Privacy is approached differently in the Canadian case law on child pornography than in hate propaganda and obscenity cases. Privacy analyses in all three contexts focus considerable attention on the interests of the individuals accused, particularly in relation to minimizing state intrusion on private spheres of activity However, the privacy interests of the.equality-seeking communities targeted by these forms of communication are more directly addressed in child pornography cases than in hate propaganda and obscenity cases. One possible explanation for this difference is that hate propaganda and obscenity simply do not affect the privacy interests of targeted groups and their members. …

Reforming Homicide Law To Separate Guilt From Sentence: An International Gloss, Steve Coughlan

Articles, Book Chapters, & Popular Press

This article argues that Canadian homicide law is handicapped by trying to combine two contradictory approaches. In general, Canadian criminal law adopts the approach of setting out relatively rigid rules for determining guilt or innocence. That is, the Criminal Code sets out particular offences, and if the elements of an offence can be proven, then failing the presence of any defence (also relatively rigidly defined), any accused will be found guilty. The question of guilt or innocence is not individualized to the circumstances of the offender. On the other hand, sentencing decisions adopt exactly the opposite approach, and are made …

Prenatal Management Of Anencephaly, Rebecca J. Cook, Joanna Erdman, Martin Hevia, Bernard M. Dickens

Articles, Book Chapters, & Popular Press

About a third of anencephalic fetuses are born alive, but they are not conscious or viable, and soon die. This neural tube defect can be limited by dietary consumption of foliates, and detected prenatally by ultrasound and other means. Many laws permit abortion, on this indication or on the effects of pregnancy and prospects of delivery on a woman's physical or mental health. However, abortion is limited under some legal systems, particularly in South America. To avoid criminal liability, physicians will not terminate pregnancies, by induced birth or abortion, without prior judicial approval. Argentinian courts have developed means to resolve …