Author Archives: Lisa Silver

About Lisa Silver

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.

R v Hills and R v Hilbach and Section 12 of the Charter: The Twelfth Dimension of Sentencing

By: Lisa Silver

Cases commented on: R v Hills, 2023 SCC 2 (CanLII); R v Hilbach, 2023 SCC 3 (CanLII)

PDF Version: R v Hills and R v Hilbach and Section 12 of the Charter: The Twelfth Dimension of Sentencing

Editors’ Note: This is the third in our series of posts to mark Equity, Diversity, and Inclusion Week at the University of Calgary, which deals with the impact of mandatory minimums sentences on the Charter rights of Indigenous persons.

 

We live in four dimensions of space, famously described by the space-time continuum imagined by Albert Einstein. In legal terms, a courtroom is an example of this kind of space we perceive when practicing law. If we look outside of law and further into the field of physics, even more dimensions are possible – upwards of 26 according to the Closed Unoriented Bosonic String Theory. This article is concerned with a previously unacknowledged dimension of the law, found within the confines of the sentencing hearing. In the recent Supreme Court of Canada decisions of R v Hills, 2023 SCC 2 (CanLII) and R v Hilbach, 2023 SCC 3 (CanLII) a new dimension of the sentencing hearing is revealed through the application of s 12 of the Charter, which protects the right “not to be subjected to any cruel and unusual treatment or punishment”. Specifically, in Hills and Hilbach this section is engaged by the minimum terms of imprisonment mandated by the offence provisions, both of which involve firearms. The subsequent s 12 inquiry is, like the dimensions conjured by string theory, not necessarily perceived by everyone in every sentencing hearing but is an ever-present reminder of core sentencing principles, like proportionality and parity, which ensure the continual presence of human dignity in the sentencing process. Although this twelfth dimension has been revealed by virtue of the Hills and Hilbach decisions, the s 12 inquiry itself reveals much about the limits of sentencing and the frailties of our system of justice. Continue reading →

What Did You Say? Making Sense of the Admissibility of Evidence in R v Schneider

By: Lisa Silver

Case Commented On: R v Schneider, 2022 SCC 34 (CanLII)

PDF Version: What Did You Say? Making Sense of the Admissibility of Evidence in R v Schneider

The law of evidence gets a bad rap. Too often, I hear lawyers muse that the rules of evidence are to be learned by rote and applied strictly. Evidence, if you know the rules, is simply a matter of application. There’s no magic, so the naysayers say, when it comes to evidence; it is what is, or it isn’t. The rules cannot change facts, nor can they create them. As a teacher and connoisseur of the law of evidence, I disagree. Evidentiary principles are built on legal and factual relationships that can be complex and intriguing. There is a hidden joy to those rules and principles. Yet, at the same time, evidentiary rules can revel in incongruities and blurry lines. This is why when the Supreme Court of Canada releases a decision on the law of evidence, we rule-lovers (or rule-breakers – perspective is everything when it comes to evidence) sit up and take notice. The most recent evidence decision in R v Schneider, 2022 SCC 34 (CanLII), is one such case offering clarity and opaqueness, laying down principles and applications, creating agreement and dissent, and all in all a package reminiscent of an old-fashioned “whodunnit”. In short, by trying to make sense of those rules, we find them to be much more nuanced, engaging, and personal than we expected. In this blog post, we will take out the old magnifying glass to analyze the Schneider decision to see where the drama lies when the Supreme Court of Canada tries to make sense of the rules surrounding the admissibility of evidence. In doing so, I will be laying down some “rules” or propositions of my own. Continue reading →

Placing Parity in Perspective

By: Lisa Silver

Case commented on: R v Germain, 2022 ABCA 257 (CanLII)

PDF version: Placing Parity in Perspective

The recent Alberta Court of Appeal decision of R v Germain, 2022 ABCA 257 (CanLII), reads like a judge’s “how to” manual for applying the sentencing principle of parity. Here, the Court not only discusses the role of parity in making a sentencing determination but also provides a step-by-step approach to applying the principle in practice. To do this, the Court relies on precedent and deference, the cornerstones of appellate review of sentencing. Significantly, the decision attempts to reconcile a long line of Court of Appeal decisions on starting points, with recent direction by the Supreme Court of Canada in R v Parranto, 2021 SCC 46 (CanLII), R v Friesen, 2020 SCC 9 (CanLII), and R v Lacasse, 2015 SCC 64 (CanLII), that sentencing is not a “mindless numbers game” involving a strict adherence to a minimum sentencing regime (see R v Ostertag, 2000 ABCA 232 (CanLII) at para 21). Rather, sentencing strives for individualization in the context of general principles. This seemingly incongruous task creates uncertainty in those very principles the sentencing court is bound to apply. Although the Germain decision clarifies the practicalities of sentencing, there remains considerable room in future decisions for further delineation of the framework of sentencing and the proper placement of the parity principle within it. Continue reading →

Does the Punishment Fit the Crime?

By: Lisa Silver

Appeals commented on: R v Hills (SCC Case No 39338), R v Hilbach and the companion appeal, R v Zwozdesky (SCC Case No 39438)  

PDF Version: Does the Punishment Fit the Crime?

The week of March 21 was a momentous occasion for criminal law. In that week, over the course of three days, four Supreme Court of Canada appeals were heard that may change our sentencing principles and subsequently our entire conception of a fit and proper sentence.  All four cases evoke the Charter in their drive to clarify, confine, and restrain punishment. The Alberta trilogy of R v Hilbach (argued with the companion case R v Zwozdesky), 2020 ABCA 332, and R v Hills, 2020 ABCA 263 all focus on the interpretation and application of s 12 of the Charter in challenging the mandatory minimum penalties of firearm offences. Bissonnette v R, 2020 QCCA 1585 from the Quebec Court of Appeal, on the stacking of the twenty-five-year parole ineligibilities for multiple convictions of first-degree murder under s 745.51, turns to ss 7 and 12 of the Charter. Finally, in R v Sharma, 2020 ONCA 478, ss 7 and 15 are applied to question the unavailability of conditional sentences for certain offences, particularly for Indigenous offenders. This comment will focus on the trilogy of Alberta cases in Hilbach, Zwozdesky, and Hills, which give us a snapshot of those trending issues that the Supreme Court of Canada will be grappling with when writing their decisions for all these appeals. For further ABlawg reading on the concerns with mandatory minimum sentences, see Erin Sheley, “The Next Shot in the Constitutional Debate Over Mandatory Minimum Sentences for Firearms Offences”; and Daphne Wang, “R v EJB: Another Unconstitutional Mandatory Minimum Sentence”. Continue reading →

If Not Now, When?

By: Lisa Silver

PDF Version: If Not Now, When?

Case Commented On: R v Natomagan, 2022 ABCA 48 (CanLII)

The opening paragraphs of the recent Alberta Court of Appeal decision in R v Natomagan, 2022 ABCA 48 (CanLII), belie the significance of the decision. It commences like many other appellate sentencing decisions, setting out the lower Court’s ruling by focusing on a narrow ground of appeal. In this case, that ground encompasses the Crown appeal against the imposition of a determinate rather than an indeterminate sentence for a designated dangerous offender. By paragraph 3, the Court has shown its hand and finds the sentencing judge “applied the wrong legal standard.” By paragraph 5, the Court allows the appeal and imposes an indeterminate sentence. So far, as expected. But it is in the next paragraph where the decision steps out of the ordinary and becomes a case to read closely, thoroughly, and with interest. There, the Court raises concerns with the “unfettered reliance” on the use of “actuarial risk assessment tools” in determining custodial options for Indigenous offenders within the criminal justice system (at para 6). The Court directly connects these biased risk assessment tools to the overrepresentation of Indigenous offenders in the carceral system (at paras 7 to 13). Finally, the Court provides a well-placed caution requiring judges to make informed decisions in using these tools (at para 141). Despite this warning and well-placed concern, the Court, as foreshadowed by the opening paragraphs, reverts to the usual by finding the offender, Ashton Natomagan, to be an “intractable risk to the public” (at para 137). This means the biased and discriminatory risk assessment tools did not impact the ultimate finding that he was a danger, requiring an indeterminate sentence (at paras 137 to 138). This disconnect between law and reality is a continuing theme in the criminal justice experience of Indigenous offenders. Although this decision is a positive step in recognizing wrongs and attempting to ameliorate injustices, more must be done now to change the future outcomes for Indigenous offenders like Ashton. Continue reading →