Category: Criminal Page 26 of 39

By: Lisa Silver

PDF Version: Does the Stinert Decision Signal the End of the Preliminary Inquiry?

Case Commented On: Regina v Stinert, 2015 ABPC 4

For years the efficacy of the preliminary inquiry has been questioned, studied and pronounced upon by lawyers, government officials, and the courts. Despite debate and amendments, the inquiry still exists as the legislative “shield” between the accused and the Crown, protecting, as Justice Estey explains in the 1984 majority decision of Skogman v The Queen, [1984] 2 SCR 93 (at page 105), “the accused from a needless, and indeed, improper, exposure to public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process.” However, the preliminary inquiry is at risk. Both levels of government see no value in the procedure, only costs. The courts, since Skogman, have followed suit finding the preliminary inquiry irrelevant and contrary to the efficient and effective administration of justice. Certainly, the recent Alberta Provincial Court decision in Regina v Stinert, 2015 ABPC 4 reflects this view and, as argued in this post, may signal the end of the preliminary inquiry.

Mental Illness and Sentencing: Blaming the Mentally Ill for their Lack of Cooperation with Inadequate Treatment in R v Maier

By Glen Luther

On March 30, 2015

In Criminal

By: Glen Luther, Q.C. and Dr. Mansfield Mela

PDF Version: Mental Illness and Sentencing: Blaming the Mentally Ill for their Lack of Cooperation with Inadequate Treatment in R v Maier

Case Commented On: R v Maier, 2015 ABCA 59

Mental illness presents a difficult issue for the sentencing judge. The Criminal Code, RSC 1985, c C-46 requires that in sentencing an accused a court must apply the fundamental principle of sentencing, contained in s. 718.1, which requires that:

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

In sentencing a mentally ill offender who has been convicted of an offence a judge must decide on the degree of responsibility of the offender and balance that against the gravity of the offence. It is clear of course that many mentally ill individuals are in fact guilty of the offence they committed as the provisions of s.16 of the Code relating to criminal responsibility are very narrow and exempt only the rare individual from being seen as having committed their crime. How then do we sentence the guilty but mentally ill offender and how do we decide how responsible they are for the offending behaviour?

A Remarkable, Plain Language Judgment from the Ontario Court of Justice

By John-Paul Boyd

On March 6, 2015

In Access to Justice, Criminal

By: John-Paul Boyd

PDF Version: A Remarkable, Plain Language Judgment from the Ontario Court of Justice

Case Commented On: R v Armitage, 2015 ONCJ 64 (CanLII)

A few weeks ago, Mr. Justice Nakatsuru of the Ontario Court of Justice released a remarkable judgment in the case of R. v Jesse Armitage. A flood of decisions in criminal matters are released every day, and in that sense Justice Nakatsuru’s sentencing decision in Armitage was not exceptional. What sets the judgment apart are the judge’s decisions to direct his opinion to the offender and to write that opinion entirely in plain language.

A Case for Adopting the Lewko Approach to Refusal Law

By Dylan Finlay

On March 4, 2015

In Criminal

By: Dylan Finlay

PDF Version: A Case for Adopting the Lewko Approach to Refusal Law

Case Commented On: R v Soucy, 2014 ONCJ 497

Obtaining breath samples from those suspected of driving while impaired is a necessary practicality in enforcing impaired driving law. A police officer must have a legal authority to demand that an individual supply a sample of his or her breath, and there must be legal ramifications should that individual decline. Consequently, s. 254(5) of the Criminal Code, RSC 1985, c C-46 makes it an offence to fail or refuse to comply with a breath demand, without a reasonable excuse. As a criminal offence, s. 254(5)’s necessary elements include both an actus reus and a mens rea. Two deeply divided lines of authority arise from interpreting s. 254(5)’s requisite mens rea, or culpable state of mind.

Open Letter to Parliament on Bill C-51

By Admin

On February 28, 2015

In Constitutional, Criminal

Editor’s Note: Several Faculty members signed this letter, the full version of which is available here.

An open letter to members of Parliament on Bill C-51

Dear Members of Parliament,

Please accept this collective open letter as an expression of the signatories’ deep concern that Bill C-51 (which the government is calling the Anti-terrorism Act, 2015) is a dangerous piece of legislation in terms of its potential impacts on the rule of law, on constitutionally and internationally protected rights, and on the health of Canada’s democracy.

Beyond that, we note with concern that knowledgeable analysts have made cogent arguments not only that Bill C-51 may turn out to be ineffective in countering terrorism by virtue of what is omitted from the bill, but also that Bill C-51 could actually be counter-productive in that it could easily get in the way of effective policing, intelligence-gathering and prosecutorial activity. In this respect, we wish it to be clear that we are neither “extremists” (as the Prime Minister has recently labelled the Official Opposition for its resistance to Bill C-51) nor dismissive of the real threats to Canadians’ security that government and Parliament have a duty to protect. Rather, we believe that terrorism must be countered in ways that are fully consistent with core values (that include liberty, non-discrimination, and the rule of law), that are evidence-based, and that are likely to be effective.