Category Archives: Criminal

R v Theriault: A Case of Epistemic Injustice

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Case Commented On: R v Theriault, 2020 ONSC 3317 (CanLII)

On the morning of Friday, June 26, 2020 – among more than 20,000 other people – I tuned into the YouTube live stream on which Ontario Superior Court Justice Joseph DiLuca gave his judgment in the criminal trials of Michael and Christian Theriault (R v Theriault, 2020 ONSC 3317 (CanLII)). The brothers, one of whom is a Toronto police officer, stood accused of assault and aggravated assault on Dafonte Miller, a young Black man, who lost his eye in their clash.

Const. Michael Theriault was acquitted of aggravated assault and attempting to obstruct justice in the case, and was convicted only of the lesser charge of simple assault. His brother Christian Theriault was acquitted of all charges. On August 6, 2020, it was announced that the Crown has appealed the acquittals.

The Theriault acquittals unsettled me – persistently, in the weeks to follow. The accused were acquitted of aggravated assault, despite strong Crown evidence, and fact findings of the court, that the two grown white men had gratuitously and violently beaten Miller, a Black teenager. Nearly as unsettling was the fact that the trial judge had insisted, capably, and with sophistication, that he understood what he called the “racialized context” of the encounter (at para 11). The objective of this post is to explore the apparent contradiction in Theriault between the verdicts, on one hand, and Justice DiLuca’s claim that he considered the racialized context, on the other. This post does not purport to be an appellate brief for the Crown, although some argument relates to potential legal and factual errors in Theriault.

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Like A House of Cards: Sentencing McKnight

By: Lisa Silver

PDF Version: Like A House of Cards: Sentencing McKnight

Case Commented On: R v McKnight, 2020 ABQB 443 (CanLII)

Law abhors a vacuum; to be meaningful, legal rules and principles must be tethered to reality. This means the law is animated by the factual circumstances of each particular case. Law garners gravitas or weight in the application of the law to the facts. In short, the law needs context. This basic proposition is particularly important in sentencing an offender after conviction by a jury. Once the jury trial ends, the trial judge is no longer the “judge of the law” (R v Pan; R v Sawyer, 2001 SCC 42 (CanLII) at para 43) but transforms into the sentencing judge, who must work with both fact and law. The recent Alberta Queen’s Bench sentencing decision by Justice Sulyma in R v McKnight, 2020 ABQB 443 (CanLII), highlights the difficulties inherent in this judicial transition and the need for clarification in this area. Not unlike the metaphorical “house of cards”, the decision also demonstrates the importance of the foundational facts to the integrity of the entire sentencing process.

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Adding Zora to the 1L Crime Syllabus

By: Lisa Silver

PDF Version: Adding Zora to the 1L Crime Syllabus

Case Commented On: R v Zora, 2020 SCC 14 (CanLII)

It is never too soon to start thinking about the fall semester – in fact, I keep a running list of changes to make to my syllabus throughout the year. But this year, it seems that the newest Supreme Court of Canada decision in R v Zora, 2020 SCC 14 (CanLII), is going to be added to my syllabus in more places than one. Zora is a rare decision in which the Court does much with so little. I do not say this flippantly but seriously. On the surface, the issue of whether the offence of failure to comply with a release order under section 145(3) of the Criminal Code, RSC 1985, c C-46, requires objective or subjective mens rea seems trite. In fact, any 1L student might be asked to do such an analysis on a law school exam. Yet, Zora soars as Justice Sheilah Martin expertly analyzes the issue holistically, humanely and firmly anchored in the Charter. In doing so, Justice Martin, on behalf of the entire Court, is weaving together a narrative based on the histories of all those accused who have carried their bail conditions like dead weight, from the moment of arrest and right up to the courtroom doors. In this post, I will share 5 reasons why I am adding Zora to my 1L Crime syllabus.

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Supreme Court of Canada Finally Addresses Racial Profiling by Police

By: Meryl Friedland

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Cases Commented On: R v Le, 2019 SCC 34 (CanLII); R v Ahmad, 2020 SCC 11 (CanLII)

Nine minutes. This is the length of time that a police officer pressed a knee to the neck of George Floyd in the United States, while he lay on the ground immobilized, pleading, stating he couldn’t breathe. Nine minutes is a shockingly long time for Constable Chauvin to have exerted deadly force on a human being whom he had already rendered vulnerable. He could only do this without interference because of the power provided to him by the state. He could only do this because violent race-based state conduct is nothing new – far from it.

Our current Canadian protests expose the local experience of abusive and racist police tactics, both systemic and overt, against Black, Indigenous, and other racialized Canadians. These protests and the action urged by them have the potential to mobilize and enact change. The criminal justice system is reactionary, but it can still send a message denouncing unlawful conduct with the aim of preventing it from recurring. Recently, the Supreme Court of Canada has given us new tools in this fight, by addressing racial profiling twice in the past year in R v Le, 2019 SCC 34 (CanLII) and R v Ahmad, 2020 SCC 11 (CanLII). It has taken an exceptionally long time for our highest court to give us these tools. Although these judgments are a start, unquestionably there is still much work to be done, both in and out of the courts.

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Regulating Covid-19 From the Criminal Law Perspective

By: Lisa Silver

PDF Version: Regulating Covid-19 From the Criminal Law Perspective

The focus of this post is criminal law. This is a bold statement considering we are, with this COVID-19 crisis, currently deeply within the regulatory world. There is so much to unpack in the area of regulation and COVID-19 that to focus on one area is dissatisfying. There are, however, many of my colleagues both here in Alberta and across the country discussing various aspects of the regulatory “new normal”. Specifically, I suggest a look at ABlawg where there are a number of COVID-19 related posts from colleagues writing in their areas of expertise such as statutory interpretation and law-making, health, human rights, environmental and energy law. Many of these areas overlap with the criminal law perspective but I will try to keep this post anchored in more classical criminal law concerns. This will require a discussion of regulatory offences, specifically those arising in the time of COVID-19, which enforce a regulatory scheme through the criminal sanction. By using criminal law concepts to enforce the regulatory scheme, these regulatory offences are subject to those criminal law legal principles which describe, define and confine offences. In this discussion, I will look at the general precepts of regulatory offences, how this form of liability connects to traditional criminal law concepts and then apply our knowledge to a COVID-19 measure involving social or physical distancing. This application will be done through a survey of that measure across Canada to identify the ways in which we are responding in the context of regulation. This survey will provide the basis for some preliminary recommendations based on lessons learned through the review of these regulatory, and in some instances, non-regulatory measures. Continue reading →