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.

W(D) Strikes Again!

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.” Continue reading →

Engaging the Criminal Justice System Through JH v Alberta Health Services

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. Continue reading →

Sentencing to the Starting Point: The Alberta Debate

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. Continue reading →

A Look Down the Road Taken by the Supreme Court of Canada in R v Mills

By: Lisa Silver

PDF Version: A Look Down the Road Taken by the Supreme Court of Canada in R v Mills

Case Commented On: R v Mills, 2019 SCC 22

Perhaps we, in the legal world, should not have been surprised by R v Mills, 2019 SCC 22, the most recent decision on privacy and the application of that concept in the s. 8 Charter regime. When it comes to Supreme Court decisions, we tend to dispense with the facts in favour of the principles, but Mills reminds us, facts do still matter in our highest court. Factually, pragmatically, and contextually, we understand that the investigative technique used in Mills simply needs to work. But in the name of principle, precedence, and visionary reach, Mills leaves us wondering. To throw even more dust into the eyes, overlaid on the decision is confusion. The seven-panel decision is fractured, leaving us to count on our fingers who agrees with who to manage some sort of majority decision. In the end, the numeric tally does not really matter. This is a new kind of Supreme Court where everyone agrees in the outcome but how they get there leads us onto the road “less travelled” or to update the metaphor, leads us through the web of internet connections less surfed. Or does it? Mills may be surprising but not unpredictable. It may also be just another decision exploring the reach of privacy in our everyday world and therefore part of the narrative, not the last word. Continue reading →

Why Reconsider W(D)?

By: Lisa Silver

PDF Version: Why Reconsider W(D)?

Case Commented On: R v Ryon, 2019 ABCA 36 CanLII

I have written at great length on the W(D) decision, R v W(D), 1991 CanLII 93 (SCC), and the extraordinary impact that case has on our justice system. In my recent article on the issue, aptly entitled The W(D) Revolution, (2018) 41:4 Man LJ 307, I posit that the decision reflects a watershed moment in the assessment of credibility in criminal cases. The case decision, outlining the analytical approach to be taken in assessing credibility when there are “two diametrically opposed versions” of events, revolutionized such assessments by providing a template for integrating factual determinations within the burden and standard of proof (see e.g. R v Avetysan, 2000 SCC 56 (CanLII) at para 28). The W(D) state of mind was one that ensured that the principles of fundamental justice as distilled through the special criminal burden and standard of proof, would remain front and centre in the ultimate determination of guilt or innocence of an accused. This is not to say that the path towards enlightenment has not been strewn with difficulties. To the contrary, to recognize the imperfections of the decision and to experience the twists and turns of W(D) as pronounced upon in future SCC decisions, is to appreciate the W(D) ethos even more. W(D) has needed reinterpretation and reaffirmation throughout the decades since its release, but the question of whether it needed a reconsideration was at issue in the recent decision from the Alberta Court of Appeal in R v Ryon, 2019 ABCA 36 (CanLII).

Continue reading →