Category: Criminal Page 11 of 39

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.

SCC Overturns ABCA Ruling on Mandatory Interlocutory Injunction re: Information on Media Outlet’s Website

By Linda McKay-Panos

On March 7, 2018

In Constitutional, Criminal

By: Linda McKay-Panos

PDF Version: SCC Overturns ABCA Ruling on Mandatory Interlocutory Injunction re: Information on Media Outlet’s Website

Case Commented On: R v Canadian Broadcasting Corp., 2018 SCC 5 (CanLII) (“CBC SCC”)

The Supreme Court of Canada (SCC) recently overturned the Alberta Court of Appeal’s ruling on this case and reinstated the Alberta Court of Queen’s Bench decision. This case has been the subject of previous blog postings by my colleague, Hasna Shireen; see here, here and here.

Tracing the Likeness of Colten Boushie in the Law Classroom

By Lisa Silver

On February 22, 2018

In Aboriginal, Criminal, Legal Education

By: Lisa A. Silver

PDF Version: Tracing the Likeness of Colten Boushie in the Law Classroom

On January 29, 2018, the nation’s gaze was decidedly fixed on Battleford, Saskatchewan where the second-degree murder trial of Gerald Stanley was commencing. From that first day of jury selection to the present, there is a general sense of shock, outrage and disbelief from so many corners of our country. In the legal community, there is much debate on the legal issues arising from the trial as well as concerns with jury selection, the ethical duties of jurors, and the presence of discriminatory practices that are embedded in our justice system. Many voices are being heard that are challenging the traditional common law perspective. Several of these voices are from the Indigenous community who are speaking from their heart and from their own personal experiences. As part of this reaction, the legal community is debating these issues through a variety of lenses and from all sides. Like most everyone touched by this case, I have read these accounts with interest. As a lawyer who practiced criminal law and now teaches it, my initial reaction is typically lawyerly: to parse the charge to the jury for legal errors, to debate the efficacy of peremptory challenges and to call for change in our justice system. But the overwhelming message, and in my view, the message which needs to be presented in the law classroom is not just one promoting a legalistic analysis but one providing a broader more meaningful message framing this case and this verdict as part of an overarching theme or subtext, which can be traced in the law classroom.

Alberta Court of Queen’s Bench Introduces the Accelerated Habeas Corpus Review Procedure

By Amy Matychuk

On February 9, 2018

In Constitutional, Criminal

By: Amy Matychuk

PDF Version: Alberta Court of Queen’s Bench Introduces the Accelerated Habeas Corpus Review Procedure

Case Commented On: Latham v Her Majesty the Queen, 2018 ABQB 69 (CanLII)

In an attempt to address the proliferation of habeas corpus applications from inmates in Alberta institutions, the Alberta Court of Queen’s Bench (Edmonton) has introduced a new procedure to prevent vexatious habeas corpus applications from wasting court resources. Habeas corpus is a constitutional remedy for an unlawful loss of liberty (see s 10(c) of the Charter, which provides for the right “to have the validity of … detention determined by way of habeas corpus and to be released if the detention is not lawful.”) Since 2014, Alberta inmates have attempted to use habeas corpus to air an increasing number of grievances about their conditions of detention. Because the only remedy available on a habeas corpus application is release from detention, it applies narrowly to deprivations of liberty within an institution (such as transfers from lower to higher security) and is useless as a means of addressing complaints about prison conditions. Nevertheless, Alberta inmates appear either to have misunderstood this limitation or to have ignored it, and the Court of Queen’s Bench has introduced a procedure designed to keep the most senseless of these applications from reaching the hearing stage and thus wasting judicial time.

R v EJB: Another Unconstitutional Mandatory Minimum Sentence

By Daphne Wang

On January 5, 2018

In Constitutional, Criminal

By: Daphne Wang

PDF Version: R v EJB: Another Unconstitutional Mandatory Minimum Sentence

Case Commented On: R v EJB, 2017 ABQB 726 (CanLII)

In a previous post, Professor Erin Sheley commented that R v Nur, 2015 SCC 15 (CanLII), may have started a “widespread dismantling of the Criminal Code’s policy of gun-related mandatory minimums.” Since Nur, constitutional challenges to mandatory minimums have reached beyond gun-related crimes. The Supreme Court of Canada in R v Lloyd, 2016 SCC 13 (CanLII), held the one-year mandatory minimum for drug trafficking under s 5(3)(a)(i)(D) of the Controlled Drugs and Substances Act, SC 1996 c 19, to be unconstitutional (at para 56). By doing so, the SCC left other offences with mandatory minimums vulnerable to constitutional challenge under s 12 of the Charter. Following Lloyd, the recent Court of Queen’s Bench decision R v EJB found the one-year mandatory minimum for sexual exploitation under s 153(1.1)(a) of the Criminal Code, RSC 1985, c C-46, to be of no force or effect (at para 90).