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Author: Lisa Silver Page 4 of 9

Lisa Silver is a proud Calgarian, lawyer, educator, and avid blogger. She holds a B.A. in Economics (UWO, 1984), LL.B. (Osgoode, 1987), and LL.M. (Calgary, 2001). She is a member of the Bars of Ontario (1989) and Alberta (1998). As a criminal lawyer, Lisa has appeared before all levels of Court, including the Supreme Court of Canada. Presently, she is an Assistant Professor at the University of Calgary, Faculty of Law, where she teaches criminal law, evidence and advocacy. Lisa also maintains her own law blog at www.ideablawg.ca where she does a podcast series on the Criminal Code. Her blog was recognized with a 2017 Clawbie – Canadian Law Blog Award in the Law Professor/Law School category. Lisa also sits on various Boards and committees. She has presented at many conferences and workshops.

Binding The Courts: The Use of Precedent in Sentencing Starting Points

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On December 16, 2019

In Criminal, Sentencing

By: Lisa Silver

PDF Version: Binding The Courts: The Use of Precedent in Sentencing Starting Points

Cases Commented On: R v Felix, 2019 ABCA 458; R v Parranto, 2019 ABCA 457

The Alberta Court of Appeal recently released two companion decisions on sentencing starting points in R v Felix, 2019 ABCA 458, and R v Parranto, 2019 ABCA 457. In Felix and Parranto, the Alberta Court of Appeal considers the appropriate sentencing starting point for an offender involved in the wholesale trafficking of fentanyl, an insidious and dangerous drug responsible for the deaths of many Albertans. These decisions are prime examples of how an appellate court grapples with precedential authority in arriving at the final outcome. In this post, I will discuss these cases as exemplars of this precedential process, which lies at the heart of the rule of law under our common law system. These decisions give us a glimpse of the complexities of precedent, in cases where there is no issue of whether precedent should be followed but rather on the issue of how best to follow it.

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A Lesson in First Year Criminal Law Principles: How The Supreme Court of Canada “Modifies” Objective Mens Rea Offences in R v Javanmardi

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On November 26, 2019

In Uncategorized

By: Lisa Silver

PDF Version: A Lesson in First Year Criminal Law Principles: How The Supreme Court of Canada “Modifies” Objective Mens Rea Offences in R v Javanmardi

Case Commented On: R v Javanmardi, 2019 SCC 54 (CanLII)

As I come to the close of the first half of teaching 1Ls criminal law principles, I review the course syllabus for the second half of the course to revise, delete, and add relevant case readings. Next term, I will discuss those crimes, which require the objective form of liability or objective mens rea. Although this area was once rife with disagreement and fractured alliances at the Supreme Court of Canada level, at the time of formulating last year’s syllabus, objective mens rea offences, such as unlawful act manslaughter and criminal negligence causing death, were well-defined both in terms of actus reus (prohibited act) and mens rea (fault element). However, the law can and does change; either through clarification or modification of accepted legal rules and principles or through the creation of completely new ones. In R v Javanmardi, 2019 SCC 54, the most recent Supreme Court of Canada decision on objective mens rea offences, it appears the Court has done more than clarify and modify what was a settled area of law but has, arguably, radically re-defined the legal tests and principles forobjective mens rea offences in the Criminal Code. This article will attempt to deconstruct the majority decision, authored by Justice Rosalie Abella, in an effort to understand the significance of this decision and the future impact it will have to this area of law.

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W(D) Strikes Again!

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On September 13, 2019

In Criminal

By: Lisa Silver

PDF Version: W(D) Strikes Again!

Case Commented On: R v Ibrahim, 2019 ONCA 631 (CanLII)

W(D), [1991] 1 SCR 742, is entrenched in our justice system. This seminal Supreme Court of Canada decision provides a tight three-pronged approach to the application of reasonable doubt to the oft divergent evidence from the prosecution and the defence. W(D) has been considered, re-considered, and applied over 10,100 times since its release in 1991. It serves as a continual source of discussion and inspiration for scholars like me. Although the principle in and of itself is not overly complex, it is in the application of the principle to complex and unique scenarios that can raise unforeseen or even novel W(D) issues. In this post, I will consider R v Ibrahim, 2019 ONCA 631, a recent decision from the Ontario Court of Appeal, tackling the thorny issue of applying W(D) to objective mens rea offences. This will also require a detailed discussion on objective and subjective mens rea. The purpose of this robust and far reaching discussion is not to outline the differences between the two forms of liability but to appreciate the similarities. Although objective and subjective mens rea have differing aspects and sightlines, they are part of a continuum of awareness, which is key to understanding what makes conduct a crime. Such exploration is necessary to expand our understanding of why – and how – W(D) matters. For more background on subjective and objective mens rea, read my previous article on “The Subjective/Objective Debate Explained.”

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Engaging the Criminal Justice System Through JH v Alberta Health Services

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On August 7, 2019

In Criminal, Health Law

By: Lisa Silver

PDF Version: Engaging the Criminal Justice System Through JH v Alberta Health Services

Case Commented On: JH v Alberta Health Services, 2019 ABQB 540 (Can LII)

We often assume the contours of the criminal justice system are clearly delineated in law and in fact. For a lawyer, every criminal case is immediately identifiable by its style of cause, the ubiquitous “Regina v”. For the non-lawyer, criminal law is a standout in media reports, providing eye catching headlines and a riveting Saturday morning read. We may not know every criminal offence abounding in Canadian law, even though s 19 of the Criminal Code, RSC 1985, c C-46– which provides that ignorance of the law is no excuse – suggests we should, but we certainly know crime when we see it. What we are less successful at identifying are those situations where the criminal justice system merely lurks in the background chatter of a decision or when the factual matrix does not involve overtly criminal behaviour. In those less obvious scenarios, the case narratives do not engage our interest so readily. In short, we miss the criminal law-ness of the situation. Yet, in these cases, the criminal justice system is, in fact, fully engaged but we criminal law observers simply miss the connection. By missing this connection, we may not appreciate the impact of the case. Instead, we misfile the decision or, worse yet, dismiss the decision as unimportant or inapplicable. By failing to read between the lines, we are missing out on the richness offered by interdisciplinary case law. The recent Alberta Queen’s Bench decision of Madam Justice Kristine Eidsvik in JH v Alberta Health Services, 2019 ABQB 540, is a good example of a case that transcends the purported area of interest – it is a mental health law decision that engages larger issues borrowed from the criminal justice system. In JH, the criminal justice system is fully engaged and plays a vital role in the outcome.

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Sentencing to the Starting Point: The Alberta Debate

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On May 23, 2019

In Sentencing

By: Lisa Silver

PDF Version: Sentencing to the Starting Point: The Alberta Debate

Case Commented On: R v Ford, 2019 ABCA 87

After R v Shropshire, [1995] 4 SCR 22, the future of starting points in sentencing seemed questionable but after R v M (CA), [1996] 1 SCR 500, the future of the concept seemed downright bleak. Yet, decades later in R v Lacasse, [2015] 3 SCR 1089, the Supreme Court still wrestled with the applicability of starting points in sentencing. Now, the province which embraced the concept is debating the efficacy of using this sentencing approach. Although the majority of the Alberta Court of Appeal has never wavered on the applicability of sentencing starting points, the meaning of such a tool has changed. In R v Ford, 2019 ABCA 87, the most recent pronouncement on the issue, the Court seems prepared to shed the past and move beyond this point of contention.

The Ford decision is brief and needs context. This requires a review of the principles surrounding starting points including a look back to the source of the principle. This review, however, and here is the spoiler alert, will not just engage a linear analysis of the law. It is not enough that we understand the divergent issues arising from applying starting points in sentencing to arrive at the final sentence determination in an individual case. We must also situate that starting point in the grander scheme of legal principle by asking the reason for using such a point in the first place. This exploration of the “why” requires us to understand what the attraction to a starting point in anything is anyway and whether, for this reason, we simply cannot shed the basic need to start from somewhere. For this part of the discussion, I will not start with the expected but with the unexpected.

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