Category Archives: Criminal

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 →

Choice vs Coercive Control: The Alberta Court of Appeal Decision in R v Naslund

By: Jennifer Koshan

PDF Version: Choice vs Coercive Control: The Alberta Court of Appeal Decision in R v Naslund

Case Commented On: R v Naslund, 2022 ABCA 6 (CanLII)

In January 2022, a majority of the Alberta Court of Appeal overturned a joint sentencing submission in the appeal of Helen Naslund, a woman who killed her husband after she sustained decades of his abuse. The sentencing decision of Justice Sterling Sanderman accepted the joint submission by the Crown and defence of 18 years imprisonment for the offence of manslaughter. This sentence was notorious for having imposed one of the longest known sentences for a survivor of intimate partner violence (IPV) who resorts to homicide. The sentencing decision was unreported, but quickly gained media attention and led to a petition to overturn the sentence imposed on Ms. Naslund. Writing for a majority of the Court of Appeal, Justice Sheila Greckol (Justice Kevin Feehan concurring, Justice Thomas Wakeling dissenting) reduced Ms. Naslund’s sentence to 9 years imprisonment. Continue reading →

#Don’tDisbelieveHer: Towards Recognition of Myths and Stereotypes about Intimate Partner Violence at the Supreme Court of Canada

By: Jennifer Koshan

PDF Version: #Don’tDisbelieveHer: Towards Recognition of Myths and Stereotypes about Intimate Partner Violence at the Supreme Court of Canada 

Case Commented On: Barendregt v Grebliunas, 2021 BCCA 11 (CanLII); appeal allowed, 2021 CanLII 124350 (SCC; written reasons to follow)

Over the last 20 years, there has been significant progress in the judicial recognition of rape myths and stereotypes (see e.g., R v Seaboyer; R v Gayme, 1991 CanLII 76 (SCC), [1991] 2 SCR 577 and more recently, R v Barton, 2019 SCC 33 (CanLII)). Federally appointed judges must now undertake to participate in education on sexual violence and its social context, but no similar duty exists for judicial education about intimate partner violence (IPV) (see a discussion here). Unfortunately, myths and stereotypes about IPV are not uncommon in Canadian case law. To name a few, survivors of IPV, who are disproportionately women, face allegations that they have lied about or exaggerated IPV out of vengeance, jealousy, or to gain an advantage in family law proceedings; that IPV ends at separation or is irrelevant unless it is physical; and that exposure to IPV has no impact on children (see e.g., here at 46-47). Allegations like this have been called out in feminist socio-legal literature for decades as being grounded in myths and stereotypes, but there are only a handful of cases in which the Supreme Court of Canada has explicitly recognized myths and stereotypes about IPV. Continue reading →