ABLawg

By: Drew Yewchuk

PDF Version: Myths, Stereotypes, and Credibility in Sexual Offence Trials

Case Commented On: R v CMG, 2016 ABQB 368 (CanLII)

R v CMG, 2016 ABQB 368 (CanLII) is a Crown appeal of the acquittal of an accused of sexual offences. Justice Sheilah Martin ultimately ordered a new trial due to errors of law by the trial judge regarding self-incrimination, allowing myths and stereotypes to influence the judgment, and failing to make certain factual findings with sufficient clarity (at para 108). This post will review the errors of the trial judge, with a particular focus on the trial judge’s comments regarding the credibility of the complainant. The post concludes with a suggestion on how decisions relating to the credibility of complainants in trials for sexual offences should be written.

Taking Proportionality Seriously in Charter Adjudication: R v KRJ

By Stephen Armstrong

On September 9, 2016

In Constitutional, Supreme Court of Canada

By: Stephen Armstrong

PDF Version: Taking Proportionality Seriously in Charter Adjudication: R v KRJ

Case Commented On: R v KRJ, 2016 SCC 31 (CanLII)

Introduction

The rights and freedoms enshrined in the Charter are not absolute. They are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (Canadian Charter of Rights and Freedoms, section 1). In R v Oakes, 1986 CanLII 46 (SCC), Chief Justice Brian Dickson established the legal standard by which an infringement of a Charter protected right may be justified, which has come to be known as the “Oakes test.” An infringing law must (1) pursue a pressing and substantial objective, (2) be rationally connected to that objective, (3) minimally impair the right or freedom in question, and (4) there must be a proportionality of effects between the deleterious and salutary effects of the law (Oakes at paras 69-70). It is possible to find each of these elements described in somewhat different language throughout the case law, but these four components are the essence of the Oakes test.

In R v KRJ, 2016 SCC 31 (CanLII), the Supreme Court of Canada was tasked with delicately balancing the Charter right of an offender not to be punished by the retrospective application of a punitive law, against Parliament’s objective of protecting children from sexual violence perpetrated by recidivists (KRJ at para 64). I will elaborate on the substance of the decision below, but what is of interest to me in this case is the lengthy and substantial “proportionality of effects” analyses engaged in by Justices Andromache Karakatsanis (writing for the majority), Rosalie Abella (dissenting in part), and Russell Brown (dissenting in part). The most substantial point of disagreement between the three judgements occurred at the final stage of the Oakes test.

The South China Sea Award and the duty of “due regard” under the United Nations Law of the Sea Convention

By Julia Gaunce

On September 8, 2016

In International Law, Law of the Sea

By: Julia Gaunce

PDF Version: The South China Sea Award and the duty of “due regard” under the United Nations Law of the Sea Convention

Decision Commented On: Award on the Merits of the Annex VII Tribunal, In the Matter of the South China Sea Arbitration, The Republic of the Philippines v The People’s Republic of China, 12 July 2016

As recited in an earlier post by Nigel Bankes, the Annex VII Tribunal in the South China Sea Arbitration (SCSA) handed down its Award on the Merits in the dispute between the Philippines and China on 12 July 2016. The dispute between the parties involves China’s extensive maritime claims in the South China (many within the context of the so-called nine dash line), claims in relation to fishing activities by Chinese flagged vessels, as well as claims in relation to China’s dredging and construction activities associated with reclamation activities on a series of maritime features in the South China. The Tribunal ruled in favour of the Philippines on almost all issues in its 479 page unanimous and comprehensive decision.

This post examines the Tribunal’s interpretation of the duty of “due regard” under the United Nations Law of the Sea Convention (LOSC) Article 58(3) in the course of its consideration of Submission No. 9 by the Philippines. That submission requested that the Tribunal declare that “China has unlawfully failed to prevent its nationals and vessels from exploiting the living resources in the exclusive economic zone of the Philippines” (at para 717). The obligation of “due regard” is one of the key mechanisms adopted in the LOSC to balance the potentially competing interests of coastal states and other uses of the new maritime zone, the exclusive economic zone, recognized by LOSC.

The International Human Right to Science and its Application to Geoengineering Research and Development

By Kristin Barham

On September 7, 2016

In Environmental, Human Rights, International Law

By: Kristin Barham and Anna-Maria Hubert

PDF Version: The International Human Right to Science and its Application to Geoengineering Research and Development

International Agreements Commented On: Article 27 of the 1948 United Nations Universal Declaration of Human Rights, and Article 15 of the 1966 United Nations International Covenant on Economic, Social and Cultural Rights

“Scientific and technical advances bring unquestioned benefits, but they also generate new uncertainties and failures, with the result that doubt continually undermines knowledge, and unforeseen consequences confound faith in progress.”

Sheila Jasanoff, “Technologies of Humility: Citizen Participation in Governing Science” (2003) 41 Minerva 223, 224

There is a growing body of social science literature emphasising a need for science and technological innovation to be more accountable to society and to take into account the full spectrum of uncertainties surrounding these processes. These calls are often manifested as calls for greater reflexivity, transparency and public participation in R&D. Environmental law – with its focus on the prevention of environmental harm and precaution – provides an important site for regulation and governance for many advances in science and technology. There is an obvious logic to this choice, given the countless examples of technologies that have contributed to environmental damage at various phases of their lifecycles. However, there are conceptual limits to the application of environmental law for governing upstream R&D, as environmental obligations primarily aim at preventing or minimizing actual physical harm to the environment. Precautionary risk assessment and management are examples of governance tools for asserting greater control over research and innovation processes. However, although environmental law is increasingly informed by a broader framework of sustainable development that draws upon a range of legal subject areas, an environmental framing does not directly target the social and ethical concerns that dominate the early stages of science and the development of emerging technologies.

Making Sense of Aboriginal and Racialized Sentencing

By Joshua Sealy-Harrington

On September 5, 2016

In Aboriginal, Criminal

By: Joshua Sealy-Harrington and David Rennie

PDF Version: Making Sense of Aboriginal and Racialized Sentencing

Cases Commented On: R v Laboucane, 2016 ABCA 176 (CanLII); R v Kreko, 2016 ONCA 367 (CanLII)

In R v Laboucane, 2016 ABCA 176 (CanLII), the Alberta Court of Appeal strongly criticizes the Ontario Court of Appeal’s decision in R v Kreko, 2016 ONCA 367 (CanLII), where the Ontario Court of Appeal allegedly approached the sentencing of Aboriginal offenders too leniently, and “almost” interpreted the Criminal Code as providing for automatic sentence reductions in all cases with Aboriginal offenders (Laboucane at para 67).

The Alberta Court of Appeal’s critique warrants a review not only of this alleged disagreement between appellate courts, but also of the lack of clarity in Aboriginal sentencing more broadly. In addition, following a summary of the principles underlying Aboriginal sentencing, we argue that many of those principles should be applied in the context of sentencing racialized communities in Canada, and in particular, in the context of Black offenders.