By: Erin Sheley

PDF Version: Wilful Blindness and the Contradictions of Sentencing

Case Commented On: R v Giroux, 2018 ABCA 56 (CanLII)

Sentencing is a notoriously self-contradictory component of the criminal process. On the one hand, it allows judges freedom from many of the oft-restrictive rules of evidence that govern the trial itself, giving them the flexibility to take into account aspects of the individual accused’s circumstances and history, often in favor of leniency within the very broad statutory ranges where the facts urge it. On the other, the rule of law requires a degree of consistency across sentences, and for particularly serious cases a trial judge’s broad discretion is limited by mandatory minimums created by Parliament. Furthermore, section 718 and related provisions of the Criminal Code, RSC 1985, c C-46, specify principles that must govern sentencing, codifying the various accepted theoretical purposes of criminal punishment, particularly denunciation, deterrence and rehabilitation. Often, these principles directly contradict one another when applied to the facts of a particular case: it is easy to imagine, for example, how the goal of rehabilitating the offender may urge a very different sentence from the goal of denouncing particularly serious conduct. Furthermore, case law construing these statutory sentencing provisions imposes further constraints on lower courts.  Due, however, to the difficulties in navigating these choppy legal waters, sentencing judges typically receive a high degree of deference as they have the closest view of the facts before them and the testimony of the accused, victims, and other relevant witnesses. Indeed, a court of appeal may disturb a sentence only where: 1) the sentence reflects an error of principle; or 2) the sentence is demonstrably unfit (see R v Cowan, 2012 ABCA 199 (CanLII) at para 14). Finally, after R v Gladue, [1999] 1 S.C.R. 688, 1999 CanLII 679 (SCC), Parliament amended section 718(e) of the Code to require that sentencing judges take into account the particular circumstances of Aboriginal defendants in considering alternatives to incarceration. Continue reading →

By: Erin Sheley

PDF Version: Criminal Negligence and the Reasonable Parent

Case Commented on: R v Lovett, 2017 ABQB 46 (CanLII)

In R v Lovett the Alberta Court of Queen’s Bench added a new entry to the rapidly developing jurisprudence on criminal negligence. For much of the past 20 years, the SCC has grappled with articulating the appropriate mens rea standard required by Section 219 of the Criminal Code. Starting with R v Tutton, [1989] 1 SCR 1392 (CanLII), the Court has wavered a bit as to whether the Crown could prove that the accused committed an unlawful act or omission showing a “wanton or reckless disregard for the lives or safety of other persons” with regard to an objective standard (that of the “reasonable person”) or whether it must prove that the accused had subjective awareness of such a risk. As of 2008, with R v JF, (2008) SCC 60 (CanLII), the standard has ostensibly been settled as objective: criminal negligence requires only “a marked and substantial departure from the conduct of a reasonably prudent person in circumstances in which the accused either recognized and ran an obvious and serious risk… or, alternatively, gave no thought to that risk” (JF, at para 9). Notably, this standard requires a higher deviation from the standard of care than that required in other objective fault offences: the departure must be marked and substantial as opposed to simply marked. Continue reading →