Category Archives: Criminal

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 →

Who is Responsible for Extreme Intoxication?

By: Lisa Silver

PDF Version: Who is Responsible for Extreme Intoxication?

Case Commented On: R v Brown, 2021 ABCA 273 (CanLII) (Supreme Court of Canada Appeal Hearing Scheduled for November 9, 2021)

What you are about to read is not the usual case commentary. I will not summarize, analyze, or otherwise slice and dice the decision from the Alberta Court of Appeal in R v Brown, 2021 ABCA 273 (CanLII), a case upholding the constitutionality of s 33.1 of the Criminal Code, RSC 1985, c C-46. Rather, I will provide context for the case, setting out the underlying principles at stake and the controversies underpinning the conflicting legal perspectives. Section 33.1 was a response by our lawmakers to the Supreme Court of Canada’s ultimate decision in R v Daviault, 1994 CanLII 61 (SCC), [1994] 3 SCR 63, which found the rule against using intoxication as a defence for general intent offences unconstitutional under s 7 of the Charter (Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11), where the accused was in a state of extreme intoxication. Section 33.1 promptly foreclosed this limited defence where the accused person used violence against or interfered with the bodily integrity of any person. Although the section was added to the Criminal Code in 1995, a mere one year after the release of Daviault, it is only recently that appellate courts have weighed in on the constitutionality of that section. Continue reading →

Appellate Court Discusses Impact of Mental Health on Sentencing in Overturning Jail Term for Possession of Gun

By: Meryl Friedland

PDF Version: Appellate Court Discusses Impact of Mental Health on Sentencing in Overturning Jail Term for Possession of Gun

Case Commented On: R v Fabbro, 2021 ONCA 494 (CanLII)

The Ontario Court of Appeal recently released R v Fabbro, 2021 ONCA 494 (CanLII), which addresses the sanction for a criminal offence committed during a mental health crisis. The facts of the case and grounds of appeal relate to a suicide attempt and suicidal ideation, which are discussed throughout this post. Mr. Fabbro’s charges related to possession of a firearm that he was using in an attempt to end his life. The sentencing judge decided that Mr. Fabbro should go to jail for two years for this. The Court of Appeal overturned the decision and substituted a conditional sentence order – colloquially, ‘house arrest’ or jail in the community. Continue reading →

Lost in Precedent: Preserving “the Rule of Law” Through the Minimization of Identity

By: Emma Arnold-Fyfe

PDF Version: Lost in Precedent: Preserving “the Rule of Law” Through the Minimization of Identity

Case Commented On: R v Blackplume, 2021 ABCA 2 (CanLII)

Editor’s Note

During Equity, Diversity and Inclusion (EDI) Week at the University of Calgary in February 2021, the Faculty of Law’s EDI Committee held a research-a-thon where students undertook research on the law’s treatment of equity, diversity and inclusion issues. We are publishing a series of ABlawg posts that are the product of this initiative. This post is the second in the series.

Introduction

The case of R v Blackplume, 2021 ABCA 2 (CanLII) involved consideration of whether the accused should be declared a dangerous offender and consequently subjected to an indeterminate sentence. The accused, Lucy Blackplume, survived a severely traumatic childhood, often witnessing domestic violence and drug and alcohol abuse. She was “repeatedly sexually assaulted by various relatives and others from a young age” (at para 8). In addition to having cognitive functions at the level of a 9- or 10-year-old, Ms. Blackplume suffers from various personality disorders, psychopathy, and Fetal Alcohol Spectrum Disorder. It is not possible for her to appreciate the consequences of her actions, “exercise self-control, or filter impulses” (at para 7).

The criminal record of Ms. Blackplume began in 2008 with a conviction for sexual assault, and she has spent almost 12 years in institutions. While institutionalized, she has spent “notable periods of time in segregation, isolation or observation,” and over that time has been the target of threats because of, among other things, her gender expression (at para 11). Previous efforts to treat Blackplume’s conditions, including through a fifteen-month high-intensity sex-offender treatment program, have been unsuccessful (at para 12).

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Harnessing the Power of AI Technology; A Commentary on the Law Commission of Ontario Report on AI and the Criminal Justice System

By: Lisa Silver and Gideon Christian

PDF Version: Harnessing the Power of AI Technology; A Commentary on the Law Commission of Ontario Report on AI and the Criminal Justice System

Report Commented On: Law Commission of Ontario, The Rise and Fall of AI and Algorithms In American Criminal Justice: Lessons for Canada, (Toronto: October 2020).

The Law Commission of Ontario (LCO) recently released its Report on the use of artificial intelligence (AI) and algorithms in the Canadian criminal justice system. The Report, which is the first of three papers on the issue, is one of the most comprehensive discussions of the use of AI and algorithmic technologies in the criminal justice system to date. In Canada, AI use in the criminal justice system is limited and not easily subject to in-depth review. In the United States, however, AI and algorithms are used extensively throughout the justice system, particularly in pre-trial release decision-making. Not surprisingly, then, the Report draws from this American experience to arrive at a number of recommendations for application to the Canadian context. Based on those lessons learned, the LCO Report warns of “the risk of adopting unproven and under-evaluated technologies too quickly to address long-standing, complex and structural problems in the justice system” (at 7). Yet, in the midst of this cautionary tone, the Report also recognizes that AI use in the criminal justice system will likely increase in the future. The Report proactively outlines a framework for such use by urging AI regulation, the application of legal protections to AI, and community involvement in developing AI best practices. All of these warnings and recommendations are extremely useful but the Report begs the basic question of whether the justice system should be using machine intelligence, with its embedded biases, in matters that can profoundly change people’s lives. Ultimately, the Report should stand as a timely reminder of the unharnessed power of technology and the realistic potential for injustice when it is used without restraint.

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