Criminal law publications

Books and articles

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Published book

Manning, Mewett and Sankoff –
Criminal Law, 5th Edition

A comprehensive treatise on Canadian Criminal law, this entirely revamped work addresses both the foundational principles of the criminal law and the offences in the Criminal Code, as well as defences and some procedural matters. I also co-authored the 4th ed., released in 2009.First released in 1978, Mewett and Manning on Criminal Law has long been Canada’s leading academic treatise on criminal conduct. The new edition is over 1400 pages and provides an entirely revamped and expanded analysis and critique of the doctrines of criminal responsibility including consideration of the theoretical foundations upon which liability is imposed and the confines required by emerging human rights norms. …more

Published chapters

Criminal Law and Justice

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).

Published articles

Criminal Law and Justice

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 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 for the criminal law.

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 criminal trial created a tremendous stir online and in the media. In a sequel to my original paper on the topic, I examine 10 important legal questions arising from the trial with the objective of clarifying the issues in this important criminal case. Download article

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 criminal trial created a tremendous stir online and in the media. Unfortunately, much of the commentary is rife with error. 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. Download article

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

This article explores the crime of forcible confinement, considers its shortcomings, and proposes a new way of approaching the offence. Download article

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 decision in R. v. Cairney. In it, I critique the majority’s approach to the “suddenness” element in provocation, suggesting that it was questionable in light of the statutory language, jurisprudence and historical rationale of the defence and wrongly driven, at least in part, by a mistaken desire to assess provocation as a justification based defence, rather than an excuse. Download article

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.

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.

The Perfect Storm: Section 12, Mandatory Minimum Sentences and the Problem of the Unusual Case (2013) 22 Constitutional Forum 3

by Parliament, drawing an analogy between the forces driving a conflict between s. 12 and the new sentencing rules to a “perfect storm”, where several established Charter doctrines are pushing in opposite directions, leading to an inevitable collision between the courts, existing Charter jurisprudence and Parliament. Download article

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.

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.

Published articles

Charter of Rights and Criminal Justice

Rewriting the Charter to Provide Stronger Due Process and Evidentiary Protection (2008) 40 Supreme Court Law Review (2d) 349

This paper explores some of the more controversial decisions rendered under ss.11 and 24 of the Charter and considers how the Charter could be “re-drafted” to rectify the results.

Majority Jury Verdicts and the Charter of Rights and Freedoms (2006) 39 University of British Columbia Law Review 333

This article examines the use of majority jury verdicts around the world and poses an intriguing question: If this process were imported into Canada, would it withstand Charter scrutiny? Download article

Generally Speaking, We’re Going in the Right Direction – A Response to the Honorable Claire L’Heureux-Dubé (2006) 3 Ohio State Journal of Criminal Law 491

This article was solicited by the Ohio State Journal of Criminal Law to respond to an address made by L’Heureux-Dubé that was critical on the use of the Charter of Rights in the criminal law context. The article reflects upon the Charter’s impact on criminal justice since its inception, and rejects the contention that it has been misused to the advantage of criminal defendants, and to the detriment of victims and a wider conception of “justice”.

The Judicial Obligation to Raise Bill of Rights Issues [2003] New Zealand Law Journal 446

Co-authored with Scott Optican — This article reacts to the use of the Bill of Rights Act 1990 as a mechanism for excluding evidence, and to the judicial decision to ignore potential human rights violations when they are not raised by counsel.

Articulable Cause Based Searches: This Cooke May Spoil the Broth (2002) 2 Criminal Reports (6th) 41

Focusing upon the British Columbia Court of Appeal decision in R. v. Cooke (2002) 2 C.R. (6th) 35, this article critiques an unfortunate development in Canadian search and seizure law to equate searches incident to detention with searches incident to arrest. This article was cited favourably on this point by the Manitoba Court of Appeal in R. v. Willis (2003) 174 CCC (3d) 406 and by the Quebec Court of Appeal in R. v. Vigneault (2003) 182 CCC (3d) 322. Much of the law reviewed in this article was clarified by the Supreme Court of Canada in the decision of R. v. Mann (2004) 185 CCC (3d) 308 (SCC).

Crown Disclosure after Mills: Have the Ground Rules Suddenly Changed? (2000) 28 Criminal Reports (5th) 285

This short article examined the Supreme Court of Canada’s landmark decision in R. v. Mills, [1999] 3 S.C.R. 668. It critiques the Court’s controversial conclusion that the legislation did not even implicate an accused person’s right to disclosure, on the basis that this right never extended to material over which a witness retained a reasonable expectation of privacy.

Suspicious Searches: What’s So Reasonable About Them? (1999) 24 Criminal Reports (5th) 124

Co-authored by Stephane Perrault — This article considered the trend of courts to sanction searches of various types where law enforcement officials possessed a “reasonable suspicion” of illegal activity. Rather than critiquing the standard itself, this article focused upon the manner in which the standard was applied, citing instances where judges appeared to accept various indicia as providing “suspicion” notwithstanding the absence of any objective indicators that the indicia were actually suspicious. The article’s approach to (and definition of) reasonable suspicion was expressly adopted by the Supreme Court of Canada in R. v. Kang-Brown, [2008] 1 S.C.R. 456.

R. v. Edwards: When Two Wrongs Might Just Make A Right (1996) 45 Criminal Reports (4th) 330

Co-authored with Ursula Hendel — My first published work, this article was critical of the Supreme Court of Canada’s decision to reject Charter applications where the applicant was not personally affected by the State conduct. In essence, the article suggests that two wrongs (the original breach, and the decision by the Crown to try and admit the evidence against the accused) could make a right.

Constitutional Exemptions: An Ongoing Problem Requiring A Swift Resolution (2003) 36 University of British Columbia Law Review 231

This article examines the status of the exemption remedy and explores the effects of delaying a resolution to the critical question: how should a court treat a situation where legislation is constitutional in most of its applications but occasionally has an impact that is unconstitutional? This article was a follow-up and expanded exploration of the issues considered in “Constitutional Exemptions: Myth or Reality” (2000). Download article

Constitutional Exemptions: Myth or Reality (2000) 11 National Journal of Constitutional Law 409

This article reviews the history of exemptions and examines their legal foundation. It argues that creation of a valid exemption remedy will require a fair amount of legal creativity, as such a remedy is not generally in accord with the Charter’s structure or established Supreme Court precedent. This article was cited approvingly by the Supreme Court of Canada in its landmark decision on exemptions, R. v. Ferguson. Download article