Criminal Law and Criminal Justice

PUBLISHED ARTICLES

The Mens Rea for Animal Cruelty Offences after R v Gerling: A Dog’s Breakfast (2016) 26 Criminal Reports (7th) 267:  In R. v. Gerling, the British Columbia Court of Appeal reached some questionable conclusions about the mens rea that applies to the cruelty against animals offences in the Criminal Code. Amongst other errors, the decision seemed to confuse an evidentiary presumption with a mens rea standard, and then replace the applicable subjective mens rea standard with an objective one. In this comment, I discuss the decision and examine what it does both for the criminal law and the protection of animals. 

Still The Worst $90,000 Ever Spent: 10 More Questions About Mike Duffy, Nigel Wright, the Criminal Code and the Canadian Criminal Justice System (2015): Mike Duffy’s ongoing criminal trial has created a tremendous stir online and in the media. In a sequel to my original paper on the topic, I examine 10 more important legal questions arising from the trial with the objective of clarifying what might be happening in this landmark criminal case. [Available exclusively on SSRN.com. To read, click here]

The Worst $90,000 Ever Spent: 10 Questions About Mike Duffy, Nigel Wright, the Criminal Code and the Canadian Criminal Justice System (2015): Mike Duffy’s ongoing criminal trial has created a tremendous stir online and in the media. Unfortunately, the commentary is rife with speculation and error, much of it caused by the strange nature of the charges, and the conduct of the Crown and defence.  In this piece, I examine the charges brought in relation to the infamous $90,000 cheque and discuss 10 key questions arising from the trial with the objective of clarifying what might be happening in this landmark criminal trial. [Available exclusively on SSRN.com. To read, click here]

Why Should a Confinement Need to Be “Significant” to Attract Liability? A Proposal to Clarity and Reform the Current Approach to Forcible Confinement [with Adrienne Funk]: (2015) 62 Criminal Law Quarterly 150: On the surface, the crime of forcible confinement is straightforward enough.  Nonetheless, because of some strange turns in the jurisprudence, the common law now requires confinement to be of a “significant” duration before a conviction can be imposed, even though the statute says nothing along these lines. This article explores how this confusing state of affairs came to be, considers the ramifications of this development, and proposes a solution. To read a version of this paper, click here.

R. v. Cairney: Predictable Responses and the Diminishing Defence of Provocation:(2014) 5 CR (7th) 254: This commentary focuses on the Supreme Court of Canada’s latest decision on provocation, the Cairney judgment from Alberta.  In it,  I critique the majority’s approach to the “suddenness” element in provocation, suggesting that it was: (1) questionable in light of the statutory language, jurisprudence and historical rationale of the defence; (2) troublesome given the facts of the case; (3) likely to have undesirable ramifications in future for a host of actors who might otherwise claim provocation; and (4) wrongly driven, at least in part, by a mistaken desire to assess provocation as a justification based defence, rather than an excuse. To read a version of this paper, click here.

The Failure to Enforce the Criminal Law: Does it Impede the Development of Social Discourse on Important Policy Issues? (2013) 46 Housei Riron (Niigata LJ) 1: In this article, I  examine the educative function served by the criminal law, and consider whether Canada´s relentless expansion of the penal sanction has diluted this role.  I will use Canada’s federal prohibition against cruelty to animals as an example to show how the use of the penal sanction has set back society’s treatment of animals.  The “dramas” staged through a criminal trial have effectively created a narrative where only extreme types of malicious treatment against animals is wrongful.  In the process, the law has warped the public’s sense of what improper conduct against animals is, and impeded debate on this important issue.

Khawaja: Mixed Messages on the Meaning of Intent, Purpose and Desire (2013) 97 C.R. (6th) 280: In a recent decision reviewing Canada’s terrorism legislation, the Supreme Court made a number of controversial statements regarding the fault elements of certain terrorism offences.  In this commentary, I review these statements and consider their impact on the future of mens rea in Canadian criminal law in general, and the crime of participating in a terrorist offence in particular.

Is Three A Crowd? Victims in the Sentencing Phase of Trial [2007] New Zealand Law Review 459: This paper explores the role of victims in the sentencing process, and particularly considers the use of victim impact statements (VIS), and examines how their effectiveness has been reduced by court imposed restrictions, despite a clear legislative intention to allow for greater participation by victims.  For the most part, the judges and lawyers who run the system have reacted by subverting VIS, forcing them to comply with traditional justice goals, muting the impact of this new tool and reducing the benefits it was intended to provide.   The primary contention is that restricting the participation of the victim as the information model has done may well be unnecessary, as it risks undermining the purposes for which the new legislation was enacted and limiting the benefits it intended to achieve.  Moreover, while there are certainly risks to a system that focuses exclusively on the restorative goals emphasized by the use of VIS, it is not clear that advancing victim satisfaction as a secondary purpose necessarily inhibits the established aims of the sentencing process.

Wrongful Convictions and the Shock Wave Effect [2006] New Zealand Law Journal 134: This article reviews a 2006 report on Miscarriages of Justice in New Zealand and a subsequent conference to explore the country’s approach to wrongful convictions.  In the article, I explore the power of wrongful convictions as an agent for change and drawing upon the experience in Canada, describe how the revelation of wrongful convictions can create a climate for wide scale change to the criminal justice process with unexpected ramifications.

BOOK CHAPTER

Constituents in the Trial Process – The Evolution of the Common Law Criminal Trial in New Zealand (2007): This article provides a broad overview to the criminal trial process and how it has evolved in New Zealand, focussing on the “players” in the system, and three essential elements of New Zealand criminal justice: 1) crime being regarded as a harm against the State rather than the victim; 2) the trial being adversarial rather than inquisitorial in nature; and 3) the availability of trial by jury for serious crime.  This work was commissioned as a Chapter by Professor Warren Brookbanks and Associate Professor Julia Tolmie (eds.) for their book entitled Perspectives on Criminal Justice in New Zealand (Lexis-Nexis: Butterworths, 2007).