Journal articles: 'Canadian criminal law'

1

Archibald, Bruce P. "Canadian criminal law." Criminal Law Forum 3, no. 3 (1992): 525–39. http://dx.doi.org/10.1007/bf01096367.

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Brown, Robert J. "Hypnosis in Canadian Criminal Law." American Journal of Clinical Hypnosis 27, no. 3 (January 1985): 153–58. http://dx.doi.org/10.1080/00029157.1985.10402596.

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Chesney-Lind, Meda. "Book Review: Canadian Criminal Justice." International Criminal Justice Review 1, no. 1 (May 1991): 155–57. http://dx.doi.org/10.1177/105756779100100124.

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Rikhof, J. "Complicity in International Criminal Law and Canadian Refugee Law: A Comparison." Journal of International Criminal Justice 4, no. 4 (September 1, 2006): 702–22. http://dx.doi.org/10.1093/jicj/mql065.

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Jong, Keana. "Mass Incarceration and Its Devastating Effects." Canadian Journal for the Academic Mind 1, no. 1 (November 7, 2023): 19–29. http://dx.doi.org/10.25071/2817-5344/59.

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This research paper utilizes various sources from Canadian studies and firsthand accounts to identify the issues within penitentiaries and the Canadian criminal justice system. There are numerous pressing issues related to the handling, punishment, and sentencing of crime, many of which stem from racial injustice and underlying societal problems. Inmates endure harsh prison conditions and face barriers when trying to maintain connections with their families and friends. The mental well-being of prisoners is often overlooked, creating an unjust and unfavourable environment for Canadian citizens. The legal system requires reform and improvement to support individuals and promote rehabilitation effectively. Addressing these problems requires focusing on systemic injustices disproportionately affecting minorities and impoverished individuals. Studies have demonstrated that visitation and human contact contribute to law-abiding behaviour in criminals. Therefore, to enhance our criminal justice system, we must address the root causes of crime.

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Garvey, Stephen P. "Erratum to: Canadian Scholars on Criminal Responsibility." Criminal Law and Philosophy 9, no. 2 (November 1, 2013): 365. http://dx.doi.org/10.1007/s11572-013-9263-4.

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Macleod, R. C. "The Shaping of Canadian Criminal Law, 1892 to 1902." Historical Papers 13, no. 1 (April 20, 2006): 64–75. http://dx.doi.org/10.7202/030477ar.

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Résumé En 1892, le parlement canadien adopte le code criminel proposé par Sir John Thompson, et, l'année suivante, il accepte également une loi complémentaire soumise par le même concernant les témoignages de procès. Ces deux lois marquaient une nette réforme de la loi criminelle existante et l'auteur se penche sur les intentions, les motifs, ou encore, les agissements qui ont pu présider à la passation de ces actes de même qu'aux nombreux amendements apportés au code dans la décennie qui suivit. Au premier plan, on retrouve Thompson avec son prestige, ses talents de persuasion, son désir de réforme et sa conviction que le parlement se devait d'être le principal instigateur de tout changement légal au pays. Cette conviction coïncidait d'ailleurs assez bien avec les désirs du parlement qui démontra bien ses intentions à cet égard par le soin et l'attention qu'il apporta à l'étude des divers amendements proposés. D'autres éléments contribuèrent également à amener des changements. De par son caractère national, le code attira l'attention de nombreux groupes de pression qui demandèrent qu'on légifère sur les loteries, les paris, ou encore, sur la boisson. A l'époque, on était convaincu qu'il était possible d'améliorer la société en prohibant certains comportements et, de fait, la majorité des amendements adoptés entre 1892 et 1902 apportait des restrictions à la loi, créait de nouvelles offenses ou multipliait les pénalités. En somme, les réformateurs du dix-neuvième siècle croyaient pouvoir changer la société par le biais de la loi criminelle, convaincus qu'ils étaient qu'une loi plus rationnelle profite à tous. L'on comprend que, pour eux, ceci se soit traduit par un resserrement de la loi. De nos jours, le terme réforme est plutôt synonyme d'adoucissement mais, nous dit l'auteur, ceci relève sans doute de notre vision plus pessimiste du citoyen qui nous fait le considérer comme victime possible de la justice plutôt que bénéficiaire.

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Stroppel, Richard A. "Charter Justice in Canadian Criminal Law by Don Stuart." Alberta Law Review 31, no. 2 (July 1, 1993): 429. http://dx.doi.org/10.29173/alr1216.

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Roach, Kent. "The Effects of the Canadian Charter of Rights on Criminal Justice." Israel Law Review 33, no. 3 (1999): 607–37. http://dx.doi.org/10.1017/s0021223700016083.

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The Canadian Charter of Rights and Freedoms enacted in 1982 set off a “constitutional revolution” with profound effects on criminal justice. A criminal lawyer who left the country in 1982 would find that the law has changed dramatically in less than two decades. A system based on legislative supremacy and judicial reluctance to exclude evidence because of unfairness outside of the courtroom has evolved into one based on judicial review and the judicial application of standards of due process or adjudicative fairness at all stages of the criminal process. The law reports and reviews are now dominated by Charter jurisprudence whereas previously they focused on common law, statutes and legislative law reform. American notions of Miranda warnings, warrant and disclosure requirements and the exclusion of unconstitutionally obtained evidence have taken root in Canadian law. This paper will outline some of the major changes brought about by the Charter.

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Lafontaine, Fannie. "Parties to Offences under the Canadian Crimes against Humanity and War Crimes Act : an Analysis of Principal Liability and Complicity." Les Cahiers de droit 50, no. 3-4 (March 4, 2010): 967–1014. http://dx.doi.org/10.7202/039346ar.

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The Crimes against Humanity and War Crimes Act presents an interesting mosaic of law applicable to the domestic prosecution of genocide, crimes against humanity and war crimes. The definitions of offences refer essentially to international law, whereas the available defences, justifications and excuses are those of both Canadian law and international law, and the modes of participation in offences are exclusively those of Canadian law. This raises the question of the relevance and effectiveness of the legislative choice to apply domestic law to the principles of liability for international crimes. The present study offers a preliminary and limited analysis of certain modes of participation in offences provided for by the Act, namely perpetration and complicity pursuant to section 21 of the Criminal Code. This analysis aims at assessing, in light of the principles developed in international criminal law with respect to individual responsibility, whether and how Canadian law may be adapted to the particular — collective — nature of international crimes.

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Adam, Barry D., Jason Globerman, Richard Elliott, Patrice Corriveau, Ken English, and Sean Rourke. "HIV Positive People’s Perspectives on Canadian Criminal Law and Non-Disclosure." Canadian Journal of Law and Society / Revue Canadienne Droit et Société 31, no. 01 (April 2016): 1–23. http://dx.doi.org/10.1017/cls.2016.3.

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Abstract The largest survey to date of people living with HIV regarding attitudes toward criminalization of HIV non-disclosure, this study investigates: sources of legal information available to HIV-positive people; perceptions of how criminal prosecutions and media coverage affect understanding of rights and responsibilities of self and others; and where HIV-positive people themselves stand on the role the criminal justice system should play. While mainstream media constructions of criminal iconography do affect PHA views, those who have higher levels of formal education, are active in the dating scene, and have been living longer with HIV hold less punitive views than those who do not. While the overall pattern of agreement on where to draw the line in criminal prosecution holds regardless of demographic characteristics, there is some statistically significant variation in degree of punitiveness according to sexual orientation and gender as well.

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Roach, Kent. "The Primacy of Liberty and Proportionality, Not Human Dignity, When Subjecting Criminal Law to Constitutional Control." Israel Law Review 44, no. 1-2 (2011): 91–113. http://dx.doi.org/10.1017/s0021223700000972.

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This comment argues that courts should focus on the negative liberty interests of the accused and the proportionality of state-imposed limits on those interests, as opposed to the human dignity of either the accused or the victim, when determining the constitutionality of criminal laws. The first part of the comment examines the Canadian experience with regard to the constitutional control of the criminal law. Canadian courts have focused on the liberty of the accused but have been unwilling to consider how the liberty interests of the accused can be subject to proportionate limitations. The next part suggests that human dignity has a dual character that can both support and oppose many controversial parts of the criminal law and as such is not particularly helpful for courts in assessing the constitutionality of criminal laws. The third part critically examines the presumptions of constitutionality proposed by Gur-Arye and Weigend and suggests that human dignity has little work to do in these presumptions. The last part suggests that a focus on the negative liberty of the accused and the proportionality of the state's limits on those rights provides the best foundation for constitutional control of the criminal law.

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David, Jean-Denis. "Sources of Public Confidence in the Canadian Criminal Justice System." Canadian Journal of Criminology and Criminal Justice 63, no. 3-4 (October 1, 2021): 47–68. http://dx.doi.org/10.3138/cjccj.2020-0059.

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This study examines factors associated with public confidence in the Canadian criminal justice system. It further examines whether interaction with this legal authority leads to varying bases for this confidence. Using data from the 2009 Canadian General Social Survey, this study found that satisfaction with sentencing severity was among the least important sources of confidence. Instead, satisfaction with the extent to which the Canadian criminal justice system provides justice quickly and its ability to determine guilt were the most prominent bases for public confidence. Satisfaction with the extent to which the justice system helps victims and ensures a fair trial for accused persons were found to be intermediate sources of confidence. However, these factors’ relative importance differed to some extent based on previous interactions with this legal authority. This study argues for a need to better inform the public on the workings of the Canadian criminal justice system.

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Vidmar, Neil. "The Canadian Criminal Jury: Searching for a Middle Ground." Law and Contemporary Problems 62, no. 2 (1999): 141. http://dx.doi.org/10.2307/1192255.

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Hoffman, Allan M. "Book Review: Youth and the Canadian Criminal Justice System." International Criminal Justice Review 11, no. 1 (May 2001): 134. http://dx.doi.org/10.1177/105756770101100114.

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Michalski, Joseph H. "Mental health issues and the Canadian criminal justice system*." Contemporary Justice Review 20, no. 1 (September 25, 2016): 2–25. http://dx.doi.org/10.1080/10282580.2016.1226817.

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MacCarthy, Liam. "Indigenous Incarceration in Canada." Canadian Journal for the Academic Mind 1, no. 1 (November 7, 2023): 31–49. http://dx.doi.org/10.25071/2817-5344/50.

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Canadian sentencing law reform in 1996 and the R. v. Gladue 1999 Supreme Court landmark decision, Canada introduced an internationally unique requirement for Canadian courts in sentencing Indigenous offenders to give special consideration to systemic factors in order to address the historic and ongoing experiences of Indigenous people in the criminal justice system Canada. While these reforms to the criminal justice system were centred around alleviating the egregious level of incarcerated Indigenous people, this analysis will reveal the implementation of Gladue principles has not been the transformative change many have hoped for. This Canadian policy research paper argues that the Canadian government’s Gladue policy has been underfunded and requires a commitment to the complete implementation of Gladue Reports and Gladue Courts to accomplish its objectives of considering the systemic circumstances of Indigenous offenders and providing criminal justice in a culturally appropriate manner.

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18

Parker, Graham, and Desmond H. Brown. "The Genesis of the Canadian Criminal Code of 1892." American Journal of Legal History 35, no. 1 (January 1991): 111. http://dx.doi.org/10.2307/845592.

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Tutty, Leslie M. "Book Review: Women, Crime, and the Canadian Criminal Justice System." International Criminal Justice Review 11, no. 1 (May 2001): 139–40. http://dx.doi.org/10.1177/105756770101100118.

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CHAPPELL, DUNCAN. "Law Reform, Social Policy, and Criminal Sexual Violence: Current Canadian Responses." Annals of the New York Academy of Sciences 528, no. 1 Human Sexual (August 1988): 379–87. http://dx.doi.org/10.1111/j.1749-6632.1988.tb42089.x.

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Kirkup, Kyle. "Indocile Bodies: Gender Identity and Strip Searches in Canadian Criminal Law." Canadian journal of law and society 24, no. 1 (April 2009): 107–25. http://dx.doi.org/10.1017/s0829320100009790.

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RésuméCet article se penche sur la question des sexes non normatifs et des sexualités dans le contexte du monde complexe des procédures criminelles. S'appuyant sur une lecture deForrester v. Peel (Regional Municipality) Police Services Board et al., soit une décision récente où une prisonnière transsexuelle alléguait avoir subi une discrimination en raison de son sexe, cet article fait le lien entre les fouilles à nu et un système plus large de pouvoir corporel. Les corps « trans » sont ciblés non seulement parce qu'ils sont perçus comme différents mais aussi parce que cette différence symbolise quelque chose de particulier, à savoir un échec des régimes qui réglementent les corps à partir d'une construction binaire, rigide et essentialiste du sexe. Ainsi, les corps « trans » deviennent à la fois la cible d'observations, de normalisations et d'examens non seulement de la part de la police, mais aussi de la société dans son ensemble.

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Bowns, Ava J., Crystal J. Giesbrecht, and Kaila C. Bruer. "How judges in Canadian criminal courts define intimate partner violence." Journal of Community Safety and Well-Being 9, no. 2 (June 13, 2024): 81–86. http://dx.doi.org/10.35502/jcswb.387.

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Intimate partner violence (IPV) is a substantial problem in Canada, leading to over 100,000 victims reporting to police in Canada annually. However, there is no legal definition or Canadian Criminal Code offence for IPV. The purpose of this study was to examine how judges in the Canadian prairie provinces (Alberta, Saskatchewan, and Manitoba) define IPV in criminal cases. One hundred full-text, written judicial decisions from 2016 to 2022 were analyzed. Findings indicate that judges tend to discuss IPV as it relates to sexual and psychological violence; threats, coercive control, and physical violence; isolation and stalking; economic abuse and threats to take children away. Given that current Canadian law does not recognize psychological abuse as a criminal offence, this may signal a need for the creation of a legal definition of IPV to align with how more directly it is being discussed in courtrooms.

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Mykhalovskiy, Eric, and Glenn Betteridge. "Who? What? Where? When? And with What Consequences? An Analysis of Criminal Cases of HIV Non-disclosure in Canada." Canadian journal of law and society 27, no. 1 (April 2012): 31–53. http://dx.doi.org/10.3138/cjls.27.1.031.

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AbstractThe use of criminal-law powers to respond to people with HIV who place others at risk of HIV infection has emerged as a focal point of AIDS advocacy at global, national, and local levels. In the Canadian context, reform efforts that address the criminalization of HIV non-disclosure have been hampered by the absence of data on the contours, scale, and outcomes of criminalization. This article responds to that gap in knowledge with the first comprehensive analysis of the temporal trends, demographic patterns, and aggregate outcomes of Canadian criminal cases of HIV non-disclosure. The authors draw on insights into the role that rendering social phenomena in numerical terms plays for the governance of social life in order to make criminalization “visible” in ways that might contribute to activist responses. The article examines temporal trends, demographic patterns, and outcomes separately. In each instance, the pattern or trend identified is described, potential explanations for findings are offered, and an account is given of how the data have informed efforts to reform criminal law. Particular attention is paid to the following key findings: a sharp increase in criminal cases that began in 2004; the large proportion of recent criminal cases involving defendants who are heterosexual Black, African, and Caribbean men; and the high proportion of criminal cases resulting in conviction. The article closes with suggestions for future research.

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Nazaretian, Zavin, and David M. Merolla. "Questioning Canadian Criminal Incidence Rates: A Re-analysis of the 2004 Canadian Victimization Survey." Canadian Journal of Criminology and Criminal Justice 55, no. 2 (April 2013): 239–61. http://dx.doi.org/10.3138/cjccj.2012.e18.

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Rico, José M. "Le droit de punir." Théories et recherches 19, no. 1 (August 16, 2005): 113–40. http://dx.doi.org/10.7202/017229ar.

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The main objective of this essay is to put forward some ideas in the right to punish. These ideas are put in the Canadian context and in relation to the criminal law. The criminal procedure and the criminal justice system. The first part defines the proper concepts : aims, justifications, scopes, limits and interconnections. Results cannot be properly evaluated if the basic definitions are not clear and precise. The second part presents a model for the revision and reform of criminal policies and practices. This model is based on a study of drug legislations and practices.

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Price, Daniel M. "United States v. Stuart." American Journal of International Law 83, no. 4 (October 1989): 918–23. http://dx.doi.org/10.2307/2203382.

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In response to a request by Canadian tax authorities under the United States-Canada Double Taxation Convention (Convention), the U.S. Internal Revenue Service (IRS) issued summonses to obtain U.S. bank records concerning certain accounts of respondents, Canadian citizens whose Canadian tax liability was under investigation. Respondents sought to quash the summonses, arguing that because under 26 U.S.C. §7609(b) the IRS is prohibited by U.S. law from using its summons authority to obtain information about a U.S. taxpayer once a case is referred to the Justice Department for prosecution, and because the tax investigation of respondents was part of a Canadian criminal investigation, the IRS should be precluded from using its summons authority to honor the Canadian request under the Convention. Unsuccessful in the district court, respondents prevailed in the U.S. Court of Appeals for the Ninth Circuit, which held that under the “good faith” standard applicable to enforcement of domestic summonses, the IRS may issue a summons pursuant to a Convention request only if it first determines and makes an affirmative statement to the effect that the Canadian investigation has not reached a stage analogous to a Justice Department referral by the IRS. The U.S. Supreme Court (per Brennan, J.) reversed, and held: (1) that if the summons is issued in good faith, it is enforceable regardless of whether the Canadian request is directed toward criminal prosecution under Canadian law; and (2) neither United States law nor anything in the text or the ratification history of the Convention supports the imposition of additional requirements. Justice Kennedy (joined by O’Connor, J.), concurring in part and in the judgment, filed a brief opinion to state his view that it is unnecessary to decide whether Senate preratification materials are authoritative sources for treaty interpretation. Justice Scalia, concurring in the judgment, wrote separately to oppose the use of such materials in treaty construction.

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Evans, Catherine L. "Heart of Ice: Indigenous Defendants and Colonial Law in the Canadian North-West." Law and History Review 36, no. 2 (May 2018): 199–234. http://dx.doi.org/10.1017/s0738248017000657.

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In 1885, in the midst of the North-West Resistance in which Indigenous people took up arms against the colonial Canadian state, three Cree men executed an elderly Cree woman. At their trial for murder, the defendants were found guilty. They avoided execution because colonial authorities became convinced that they believed that their victim was a wendigo, a cannibal spirit. Killing a wendigo was justified under Cree law and so, argued one judge, the defendants lacked the mens rea necessary to sustain a murder conviction. The history of this case shows the limits of colonial legal jurisdiction and sovereignty. Scarce resources, hostile territory and Indigenous resistance hampered the colonial state's efforts to consolidate its legal control over the Canadian frontier. This essay notes the importance of these forces, but also argues that common law jurisprudence itself could impair the ability of the state to hold Indigenous defendants criminally responsible. Colonial officials regularly invoked the idea that Indigenous people adhered to different legal and normative orders in order to illustrate their supposed inferiority. However, this official recognition of the legal pluralism of the North-West could undermine a defendant's responsibility and cut against efforts to assert the exclusive jurisdiction of Canadian criminal law.

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Piñero, Verónica B. "The Semantics of Repression: Linking, Opposing, and Linking again Rehabilitation and Protection of Society." Revue générale de droit 36, no. 2 (October 27, 2014): 189–263. http://dx.doi.org/10.7202/1027109ar.

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Having explored the youth criminal legislation enacted by the Canadian federal government from the year 1857 to the year 2005, the author attempts to demonstrate that youth criminal intervention has moved from the notion of "child protection" to the notion of "protection of society." The significance of this theoretical shift is that, while the former sort of intervention is mostly concerned with the notions of "reintegration" and "inclusion", the latter is concerned with the notions of "deterrence" and "exclusion." For this study, the author first analyzes the societal factors that led Canadian parliamentarians to enact the Juvenile Delinquents Act (1908). In addition, she focuses on a specific amendment enacted in the year 1924 that "increased" the number of behaviors to be controlled through criminal law legislation. Second, the author discusses the circumstances that led parliamentarians to enact the Young Offenders Act (1982) and the Youth Criminal Justice Act (2002). Moreover, she examines an amendment enacted in the year 1995 that modified the declaration of principles of the Young Offenders Act by introducing the notion of "crime prevention." Finally, she analyzes a case law released in the year 2003 by the Quebec Court of Appeal, Québec v. Canada. This decision declared the unconstitutionality of some specific sections of Bill C-7 (current Youth Criminal Justice Act) that allow the disclosure of young offenders' private information and reverse the onus probandi for the imposition of adult sentences on young offenders. The position of the author is that, even though those sections can be unconstitutional, they are coherent with current theoretical trends in the area of youth criminal law intervention.

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Nesbitt, Michael. "Violent crime, hate speech or terrorism? How Canada views and prosecutes far-right extremism (2001–2019)." Common Law World Review 50, no. 1 (February 16, 2021): 38–56. http://dx.doi.org/10.1177/1473779521991557.

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Fifty-six individuals were charged with terrorism between December 2001 when Canada first enacted its antiterrorism criminal offences and December 2019. Not a single such individual was associated with a far-right group or espoused a far-right ideology. Over the same period of time, Canada saw a rise in far-right violence and crime, including several deadly attacks that raised the spectre of terrorism. This article seeks to identify why terrorism has not been associated with the activities of those on the far right, how Canada has prosecuted far-right violence if not for terrorism and what the implications are for Canada’s criminal prosecutions going forward. It finds that since December 2001 all publicly reported hate speech cases and cases where an individual’s sentence was aggravated for hate have involved individuals espousing far-right rhetoric; likewise, all but one case where the media raised the spectre of terrorism but no such charge ensued can be described as being motivated by far-right ideation. In the result, Canadian law punishes more seriously Al-Qaida (AQ)-inspired extremism than far-right extremism, while stigmatizing the former more than the latter. The time has thus come to tackle head-on the concept of ideology in Canadian criminal law, and how the law treats various ideologies.

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Stalker, M. Anne. "Self-Defence and Consent: The Use of Common Law Developments in Canadian Criminal Code Analysis." Alberta Law Review 32 (June 1, 1994): 484. http://dx.doi.org/10.29173/alr1170.

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Davis, Simon. "Changes to the Criminal Code Provisions for Mentally Disordered Offenders and their Implications for Canadian Psychiatry." Canadian Journal of Psychiatry 38, no. 2 (March 1993): 122–26. http://dx.doi.org/10.1177/070674379303800210.

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Bill C-30, implemented in February 1992, made a number of significant changes to the Criminal Code provisions concerning the assessment, treatment and disposition of mentally disordered persons charged with a crime, including persons considered to be unfit to stand trial or pleading insanity. The changes deal mainly with procedural law and the civil rights of persons being assessed or held in custody, and put limits on where, how long and for what purpose persons may be detained. The new law abolishes the automatic, indeterminate detention of persons found unfit to stand trial or not criminally responsible on account of mental disorder. The changes may mean that the forensic psychiatric route is now a more “attractive option” for defendants. The new law may create administrative problems for clinicians by leading to increased requests for psychiatric assessments while at the same time constraining the assessment process.

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Sargent, Neil. "Law, Ideology and Corporate Crime: A Critique of Instrumentalism." Canadian journal of law and society 4 (1989): 39–75. http://dx.doi.org/10.1017/s0829320100001538.

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AbstractThe paper explores the limitations of class instrumentalist analyses of law in accounting for the failure of the criminal justice system to control corporate crime. The first part of the paper examines current theoretical perspectives in Canadian corporate crime research, with particular emphasis on the class instrumentalist analyses of law which predominate in the literature. The remainder of the paper seeks to develop a critical analysis of corporate crime which avoids the reductionism of such class instrumentalist analyses. In particular, it is argued that attempts to theorize the failure of the criminal justice system to respond to corporate crime require investigation not only of external factors influencing the enactment and enforcement of legislation, but also of the manner in which ideological discourses are articulated through the form and content of criminal law in such a way as to reproduce the popular consent for the differential treatment of suite and street crime. Failure to problematize the ideological role of criminal law in legitimating the differential treatment of corporate and street crime is likely to undermine attempts to make corporate offenders more accountable for their illegal behaviour by further criminalizing certain types of corporate behaviour.

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Allen, Derek. "Evidence, Persuasion and Diversity." Informal Logic 40, no. 2 (July 6, 2020): 237–54. http://dx.doi.org/10.22329/il.v40i2.6329.

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My topic is the theme of the E-OSSA 12 conference, namely Evidence, Persuasion and Diversity. I will present relevant material from a selection of Canadian legal cases, along with background information as needed and commentary. My primary focus will be on two landmark Supreme Court of Canada cases—an Aboriginal law case and a case that was both a constitutional law case and a criminal law case.

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White, Diane V. "Sports Violence as Criminal Assault: Development of the Doctrine by Canadian Courts." Duke Law Journal 1986, no. 6 (December 1986): 1030. http://dx.doi.org/10.2307/1372629.

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MacAlister, David. "Book Review: The Genetic Imaginary: DNA in the Canadian Criminal Justice System." International Criminal Justice Review 16, no. 2 (September 2006): 125–26. http://dx.doi.org/10.1177/1057567706290539.

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Kaye, Julie, and Bethany Hastie. "The Canadian Criminal Code Offence of Trafficking in Persons: Challenges from the Field and within the Law." Social Inclusion 3, no. 1 (February 23, 2015): 88–102. http://dx.doi.org/10.17645/si.v3i1.178.

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Despite early ratification of the United Nations Trafficking in Persons Protocol, the <em>Criminal Code</em> offence of trafficking in persons in Canada has received little analytical or interpretive attention to date. Adopted in 2005, this offence has resulted in successful convictions in a limited number of cases and criminal justice authorities have continued to rely on alternate or complementary charges in cases of human trafficking. In particular, prosecutions for cases involving non-sexual labour trafficking remain extremely low. This article provides a socio-legal examination of why the offence of trafficking in persons in Canada is under-utilized in labour trafficking cases. Based on an analysis of data generated from 56 one-on-one interviews gathered from a variety of actors involved in counter trafficking response mechanisms and a legal examination of the key components of the offence, we argue that definitional challenges have resulted in narrow understandings and problematic interpretations of the Criminal Code offence. Such narrow interpretations have resulted in restricted applicability, particularly in cases of labour trafficking. More broadly, the article points to the need to address the limitations of the <em>Criminal Code</em> while formulating responses to trafficking that are not dependent on criminal law.

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Sassòli, Marco, and Marie-Louise Tougas. "International Law Issues Raised by the Transfer of Detainees by Canadian Forces in Afghanistan." McGill Law Journal 56, no. 4 (September 13, 2011): 959–1010. http://dx.doi.org/10.7202/1005850ar.

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The transfer of Afghan detainees to Afghan authorities by Canadian forces raised concerns in public opinion, in Parliament, and was the object of court proceedings and other enquiries in Canada. This article aims to explore the rules of international law applicable to such transfers. The most relevant rule of international humanitarian law (IHL) applies to prisoners of war in international armed conflicts. However, the conflict in Afghanistan, it is argued, is not of an international character. The relevant provision could nevertheless apply based upon agreements between Canada and Afghanistan and upon unilateral declarations by Canada. In addition, international human rights law (IHRL) and the very extensive jurisprudence of its mechanisms of implementation on the obligations of a state transferring a person to the custody of another state where that person is likely to be tortured or treated inhumanely will be discussed, including the standard of care to be applied when there is an alleged risk of torture. While IHL contains the rules specifically designed for armed conflicts, IHRL may in this respect also clarify as lex specialis the interpretation of concepts of IHL. Finally, the conduct of Canadian leaders and members of the Canadian forces is governed by international criminal law (ICL). This article thus demonstrates how IHL, IHRL, and ICL are intimately interrelated in contemporary armed conflicts and how the jurisprudence of human rights bodies and of international criminal tribunals informs the understanding of IHL rules.

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Giberson, Emma R., Brooke Tracy, Laura Kabbash, Scott T. Ronis, Mary Ann Campbell, and Lena Gryshchuk. "Section 19 Conferencing in the Canadian Youth Criminal Justice System." Canadian Journal of Criminology and Criminal Justice 65, no. 2 (April 1, 2023): 97–118. http://dx.doi.org/10.3138/cjccj.2022-0044.

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Under the authority of the Youth Criminal Justice Act (YCJA), Section 19 conferences aim to bring together relevant professionals to discuss diversionary and rehabilitation options for Canadian youth involved in the justice system. However, these options’ use and process has not been examined at the local level where practices may vary from the national vision. To offer insight into their use and processes, the current study used semi-structured qualitative interviews with 40 service providers engaged in Section 19 conferences in New Brunswick, Canada. Although there was perceived value in these conferences (i.e., youth involvement in the process, the sharing of expertise, and collaborative planning across systems), weaknesses in conference processes also were observed (i.e., systemic disorganization, inconsistency in communication and collaboration, concern about effectiveness, and limited resources and support for youth). These findings are discussed in terms of challenges that key stakeholders face in Section 19 conferences that may influence their impact, as well as considerations for areas of improvement in conferencing processes to enhance their value. Overall, Section 19 conferences should be utilized more often, which may be best achieved by clarifying the operational procedures and roles of participants, including elucidating how they can best leverage the roles of stakeholders to service the goals of effective diversion and rehabilitation.

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39

Swainger, Jon. "Book Review: Essays in the History of Canadian Law: Crime and Criminal Justice." International Criminal Justice Review 6, no. 1 (May 1996): 134–36. http://dx.doi.org/10.1177/105756779600600112.

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40

Sutherland, Kate. "Book Reviews, The Common Law Tort of Defamation, and the Suppression of Scholarly Debate." German Law Journal 11, no. 6 (June 1, 2010): 656–70. http://dx.doi.org/10.1017/s2071832200018782.

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Professor Joseph Weiler will soon stand trial for criminal libel in France for refusing to remove a book review from a website associated with an academic journal for which he serves as editor. His case has disturbing implications for all those who write, edit, and publish critical scholarly work. In this article, I explore those implications for Canadian scholars at home and as members of a global scholarly community. I assess the likelihood of success of a similar complaint under Canadian defamation law, and I consider the impact of libel chill and libel tourism. I conclude that although the defendant in such a case would have a good chance of prevailing under Canadian law through the defense of fair comment, a threat to academic freedom remains that requires action on the part of individuals and institutions committed to its preservation and enhancement.

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Lafrance, Sébastien. "Sentencing Youth in Canada: A Suitable Balanced Approach for Vietnam or Falling from Charybdis to Scylla?" Vietnamese Journal of Legal Sciences 5, no. 2 (December 1, 2021): 1–15. http://dx.doi.org/10.2478/vjls-2021-0011.

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Abstract This paper examines the sentencing regime that applies to the youth in Canada. The origins, history, evolution and challenges that faced this sentencing regime are reviewed. Its comparison with its Vietnamese counterpart allows the author to identify specific elements that could perhaps be improved in Vietnam not forgetting the many relevant differences that exist between the Canadian and Vietnamese criminal law systems. The author submits that the Canadian experience regarding youth sentencing should be considered as a good example for Vietnam.

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Marquis, Greg, Jim Phillips, Tina Loq, and Susan Lewthwaite. "Essays in the History of Canadian Law. Vol. 5: Crime and Criminal Justice." American Journal of Legal History 39, no. 4 (October 1995): 512. http://dx.doi.org/10.2307/845509.

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43

Sosnow, Clifford R. "Canadas Sanctions Regime Regarding Iran: How Much has Changed in a Post-Joint Comprehensive Plan of Action Regulated Market?" Global Trade and Customs Journal 11, Issue 3 (March 1, 2016): 140–45. http://dx.doi.org/10.54648/gtcj2016015.

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The negotiation of the Joint Comprehensive Plan of Action (‘JCPOA’) further to the United Nations Security Council (‘UNSC’) Resolution of 20 July 20151 (‘July 2015 UNSC resolution endorsing the JCPOA’) portends, on full implementation, several significant changes affecting commercial and financial transactions in and with Iran.2 However, for anyone in Canada and Canadians abroad, the question is whether the JCPOA will result in a repositioning of Canadian sanctions compliance regarding Iran to respond to this evolving Iran sanctions regime. This article will explain that although there will be changes to Canada’s sanctions regime for Iran, most of the current sanctions regime will remain in place now and that for most business in Canada the status quo will prevail for the foreseeable future. This article discusses why. But before doing so, it is important to note that Canadian regulators can seek and in fact have sought criminal sanctions including incarceration for violations of Canada’s sanctions laws on Iran.

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Paradis, Jennifer D. "Essays in the history of Canadian law volume 5, crime and criminal justice." Journal of Criminal Justice 23, no. 2 (January 1995): 204–5. http://dx.doi.org/10.1016/0047-2352(95)90051-9.

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SIMOURD, DAVID J., and JENNIFER VAN DE VEN. "Assessment of Criminal Attitudes." Criminal Justice and Behavior 26, no. 1 (March 1999): 90–106. http://dx.doi.org/10.1177/0093854899026001005.

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The present study investigated the criterion-related validity of two measures of criminal attitudes—the Criminal Sentiments Scale-Modified (CSS-M) and the Pride in Delinquency Scale (PID)—among a sample of 141 Canadian federally incarcerated offenders. Eighty-seven offenders whose current conviction was for a violent offense and 54 offenders whose current conviction was for a property-based offense completed both measures and were compared. Scores on the measures also were evaluated against a variety of criminal history and postrelease measures. The results indicated that both the CSS-M and PID are significantly related to criminal behavior and can predict recidivism. The results also show that the CSS-M is a better measure among violent offenders, whereas the PID is preferred for nonviolent offenders. These results are discussed within the context of theory, research, and practice.

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Howes, David. "Introduction : Culture in tne Domains of Law." Canadian journal of law and society 20, no. 1 (April 2005): 9–29. http://dx.doi.org/10.1353/jls.2006.0010.

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In their introduction to Law in the Domains of Culture, Austin Sarat and Thomas Kearns write: “[l]aw and legal studies are relative latecomers to cultural studies. To examine [law in the domains of culture] has been, until recently, a kind of scholarly transgression.” The same could be said in reverse: cultural studies (including anthropology) are a relative latecomer to law and legal studies, but in the last few decades there has been a striking irruption of cultural discourse in the domain of law.It is as if the acquisition of some degree of “cultural competence” has become a duty in legal circles. Not only are there seminars and courses in “cultural sensitivity” for judges, lawyers, and law enforcement officers, but “the culture concept” now informs many judicial decisions regarding Aboriginal rights, and “the cultural defense” (while hotly contested by some, and still lacking official approbation) has become a feature of numerous criminal trials involving immigrants. Interestingly, the Canadian Charter of Rights and Freedoms refers to “the multicultural heritage of Canadians”, and makes the preservation and enhancement of this heritage a condition of its own interpretation.

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Campbell, Kathryn M. "The Right to Silence and the Pendulum Swing: Variations in Canadian and Scottish Criminal Law." Wrongful Conviction Law Review 1, no. 3 (December 21, 2020): 291–313. http://dx.doi.org/10.29173/wclawr37.

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The right to silence is afforded to suspects in criminal cases as part of a number constitutional protections contained within Canadian law through the Charter of Rights and Freedoms. It is closely linked to other such rights, including the right to counsel, the right against self-incrimination and the presumption of innocence. Moreover, in some cases, the denial of this right has resulted in convictions in error through false confessions and wrongful convictions. Decisions by the Supreme Court in Canada in recent times can be viewed as a slow encroachment onto individual Charter rights in favour of the needs of law enforcement. In Scotland, until recently, while afforded a right to silence suspects could still be questioned for up to six hours without a lawyer present. While other measures existed to protect an individual’s right to a fair trial, such practices were out of step with the European Convention on Human Rights Article 6(1) right to a fair trial. In the decision in Cadder v HMA, greater protections to suspects were introduced regarding the right to silence and the right to counsel, and the Criminal Justice (Scotland) Act 2016 later consolidated the relevant law on this matter. The focus of this paper will be to examine how the right to silence in both Canadian and Scottish law has evolved through statute and case law and the implications of this for law enforcement practices, the protection of rights and the safety of convictions.

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Schabas, William A. "Canadian Implementing Legislation for the Rome Statute." Yearbook of International Humanitarian Law 3 (December 2000): 337–46. http://dx.doi.org/10.1017/s1389135900000684.

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Canada has been very much at the centre of the establishment of the International Criminal Court (ICC) since the momentum shifted in late-1994 from the International Law Commission (ILC) to more broadly representative bodies established by the General Assembly. It was Canada that chaired the ‘like-minded’, a group of states active during the several sessions of the Preparatory Committee and during the Diplomatic Conference in Rome from 15 June to 17 July 1998. The ‘like-minded’ were committed to invigorating the ILC's draft statute by enhancing the independence of the Prosecutor and trimming the sails of the Security Council. At Rome, Canadian diplomat Philippe Kirsch was elected chair of the Committee of the Whole, and he directed the intense negotiations throughout the five-week session. Kirsch crafted the final package of compromises that was submitted to the Conference at its close, on the morning of 17 July, and that succeeded in rallying the vast majority of delegations when put to a vote later that day. Since then, Kirsch and his team have presided over the ongoing work of the Preparatory Commission.

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SIMOURD, DAVID J. "The Criminal Sentiments Scale-Modified and Pride in Delinquency Scale." Criminal Justice and Behavior 24, no. 1 (March 1997): 52–70. http://dx.doi.org/10.1177/0093854897024001004.

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The present study explored the utility of two measures of criminal attitudes—the Criminal Sentiments Scale-Modified (CSS-M) and the Pride in Delinquency scale (PID)—among a sample of 114 Canadian federally incarcerated offenders. The study examined the psychometric properties and construct validity of the measures, administered as part of a prerelease psychological assessment. The results indicated that both are reliable and valid measures of criminal attitudes. Implications of the findings with respect to theory and practice are considered.

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Boyd, Neil. "Letter to the Editor,Canadian Journal of Criminology and Criminal Justice." Canadian Journal of Criminology and Criminal Justice 49, no. 1 (January 2007): 125–26. http://dx.doi.org/10.3138/b953-070w-6754-8272.

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Journal articles on the topic 'Canadian criminal law'

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