Related Papers
Criminal Law Quarterly 66:
Mock-Jurors' Self-Reported Understanding of Canadian Judicial Instructions (is not very good)
2018 •
Richard Jochelson, Michelle Bertrand
Studies of the criminal jury within a Canadian context remain few and far between compared to such research based in other jurisdictions especially the United States. The study of jury work in Canada is significantly curtailed for structural reasons, which we outline below. This makes the study of actual jurors who have served almost impossible in Canada so researchers must use alternative methods to study Canadian juridical issues. The current study used a student sample to investigate comprehension of Canadian Judicial Council (CJC) pattern instructions. 1 This is the first study to interrogate CJC pattern instructions in relatively common and uncomplicated crimes. In this article, we discuss the barriers to jury research in Canada, consider some challenges facing jurors in comprehending legal concepts, and explore the development of pattern instructions in Canada. We then describe the results of our study, which revealed that a majority of participants self-reported a lack of comprehension in the pattern instructions provided and demonstrated a lack of understanding of foundational legal principles based on responses to other questions. This lack of comprehension has implications for policy development and for future studies in the area of juror comprehension.
SSRN Electronic Journal
The Slow Death of the Reasonable Steps Requirement for the Mistake of Age Defence
2020 •
Isabel Grant
Confronting the Sexual Assault of Teenage Girls: The Mistake of Age Defence in Canadian Sexual Assault Law
2019 •
Isabel Grant
Criminal Law Quarterly
Every Moment Counts: The Legal Value of Time in Canadian Criminal Law and Procedure
2021 •
Amar Khoday
Time plays a significant role in the life of the law. Drawing on the work of Elizabeth F. Cohen regarding the political value of time, this article examines the legal value of time. Focusing on Canadian criminal law and procedure, the article illustrates how time is tightly woven into the fabric of various constitutional, statutory and common law norms. As examples, time is fundamental to sentencing, in addition to determining significant issues such as the scope of criminal liability for serious crimes (e.g. first degree murder), whether an accused should be acquitted on the basis of a defence, or whether evidence should be admitted or excluded. This article explores two ways in which time is employed: scientifically measured durational time (drawing from Cohen’s work) and context-sensitive determined time.
MLJ
Manitoba Law Journal 2021 Volume 44(4) Criminal Law Edition (Robson Crim)
2021 •
Richard Jochelson, Frances E Chapman
CONTENTS 1 The Slow Death of the Reasonable Steps Requirement for the Mistake of Age Defence ISABEL GRANT 33 The Troubled History of the Defence of Duress and Excluded Offences: Could the Reasoned Use of Mitigation on Sentencing Prevent Duress from (Further) Becoming Archaic, Gendered, and Completely Inaccessible? FRANCES E. CHAPMAN AND GEORGETTE M. LEMIEUX 85 Fundamentally Flawed: The Arbitrariness of the Corporal Punishment Defence MARK CARTER 109 The Constitutionality of Excluding Duress as a Defence to Murder COLTON FEHR 135 The Availability of the Common Law Defence of Duress to Principals Charged with Murder: An Analysis of the Conflicting Appellate Decisions in R v Willis (TAW) and R v Aravena ROBERT H. TANHA 175 Fitness to Stand Trial and Dementia: Considering Changes to Assessment to Meet Demographic Need SHAUNA SAWICH AND HYGIEA CASIANO 205 Year in Review DAVID IRELAND
Criminal Law Quarterly
Lifting the Judicial Embargo on Race-Based Charter Litigation: A Comment on R. v. Le
2019 •
Danardo S Jones
Legal scholars have long discussed the Supreme Court of Canada’s (”the Court”) erasure of race in its Charter jurisprudence. The lack of recognition is particularly noticeable in the Court’s jurisprudence on policing. It is well-established that African-Canadians and Indigenous people are disproportionately detained, arrested and charged by police, and thereby overrepresented in the criminal process. Criminologists and legal scholars largely agree that biased policing is one of the primary conduits through which Black, Indigenous and other racialized bodies are funnelled into the criminal justice system. Despite this fact, the Court has only ever marginally engaged in a race-based analysis of the Charter rights that are engaged by police encounters. In R. v. Le, the Court may have potentially lifted the judicial embargo on the discussion of race and biased policing; and, in so doing made a significant, and much needed, contribution to critical race Charter litigation. The precedential impact of Le is challenging to predict, but there is reason to hope that Le will provide a veritable roadmap for lawyers who are seeking to mobilize race in the detention analysis under s. 9 of the Charter.
RobsonCrim Blog
Sewing the Seeds of Tragedy: Loud Parties, Mischief and Warrantless Entries
2021 •
John Burchill
Published RobsonCrim University of Manitoba online. https://e3cbbe55-6089-4059-936a-b66747ca36c0.filesusr.com/ugd/bab59a_81498a133e1c4ddcbf9777662ae8dd29.pdf
Criminal Law Quarterly
The Presumption of Sanity, Automatism and R. v. H. (S.): Is it Insane to Have a Presumption of Insanity?
2015 •
Frances E Chapman
This article will attempt to trace the history of the defence of automatism to understand the radical transformation regarding the presumption of sanity in the last several years. In particular, the definition and historical perspectives of automatism will be discussed. The traditional burden of proof and a comparison of mental disorder and non-mental disorder automatism will then be explained. Then the history of the insanity defence will be examined with reference to the presumption of sanity. The cases of R. v. Rabey and R.v.Parks will be discussed with a focusonthe continuing danger theory, and internal and external divisions within the defence of automatism. Then the case of Stone and the very recent Ontario Court of Appeal decision in R. v. H. (S.) will be critically examined. Focusing on the latest case from the court that there should be a presumption of mental disorder on the part of the accused, the paper will close with a look forward to the future of this very troubled a...
" Ipeelee and the Duty to Resist " (2017) 21 Canadian Criminal LR 73
Marieandree Denisboileau
In this article, the authors take a critical look at s. 718.2(e) of the Criminal Code and how courts have interpreted it after Ipeelee from a legal pluralism standpoint. They suggest that the interpretation given by the Court opens the way to a form of resistance from the judiciary against the problem of Aboriginal over- representation in the criminal justice system and the hegemonic approach of the Canadian state with respect to Aboriginal legal orders. However, based on a thorough analysis of 635 decisions rendered after Ipeelee by trial and appellate courts between 2012 and 2015, the authors conclude that this innovative approach was, in turn, met with significant resistance by judges. The authors finally address the main practical and epistemological hurdles that can explain the limited impact of that approach in sentencing and suggest that this resistance could be overcome by promoting judicial innovation as well as the revitalization of the Aboriginal legal system. —————————— Cet article pose un regard critique sur l’art 718.2e) du Code criminel et sur l’interpre´tation qu’il a rec¸ue de la part des tribunaux apre`s l’arreˆt Ipeelee, sous l’angle du pluralisme juridique. Nous sugge´rons que l’interpre´tation propose´e par la Cour ouvre la porte a` une forme de re´sistance du pouvoir judiciaire a` l’e´gard de la surrepre´sentation des personnes autochtones dans le syste`me de justice criminelle et de la posture he´ge´monique de l’E´tat canadien a` l’e´gard des ordres juridiques autochtones. En nous fondant sur une analyse exhaustive de 635 de´cisions de premie`re instance et d’appel rendues apre`s l’arreˆt Ipeelee entre 2012 et 2015, nous concluons toutefois que cette approche innovatrice fait a` son tour l’objet d’une grande re´sistance de la part des juges. Nous discutons ensuite des principaux obstacles d’ordre pratique et e´piste´mologique qui peuvent expliquer l’impact limite´ de cette approche en matie`re de de´termination de la peine et sugge´rons que cette re´sistance pourrait eˆtre surmonte´e en soutenant a` la fois l’innovation judiciaire et la revitalisation des syste`mes de droit autochtone.
The Offence of Keeping a Common Bawdy House in Canadian Criminal Law
Stuart Russell
