Tagged criminal law

Why some courts don’t get consent in sex offence trials

Canadian courts have recently come under intense scrutiny over the treatment of complainants in trials of sexual assault offences.  From the judicial discipline proceedings against Judge Robin Camp, who asked the assault complainant why she “couldn’t just keep [her] knees together,” and referred to her as “the accused,”  to the acquittal of taxi driver Bassam Al-Rawi on the basis that a woman intoxicated to the point of loss of consciousness could give consent, some trial courts seem to have been disregarding the Supreme Court of Canada’s clear ruling in its 2011 decision, R. v. J.A. Since J.A., the law of sexual assault in Canada…

Drama and Irony in a Canadian Courtroom?

With the nation riveted to news reports from a fraud, breach of trust and bribery trial in an Ottawa courtroom, Canada reaches a milestone in its legal history.  Behold, Canadians as mass spectators of our justice system “get” the role of dramatic irony, the narrative device used by playwrights to exploit the discrepancy between audience knowledge…

Canada’s Marbury v. Madison? Not quite.

As reported in the Globe and Mail, Justice Colin Westman has joined a chorus of Canadian judges refusing to apply the law, as a protest against the federal government’s criminal sentencing legislation.  Whatever the merits of their political views on the subject, the rebellious judges threaten a constitutional showdown which they will not, and should not win.  As lawyers and law students, it is important for us to understand why judicial rebellion is not judicial independence.  Judicial rebellion harms judicial independence.  To see this, one has to understand the source of judicial power.

Why Civil Litigators Have to Keep Current on Criminal Law

In the privacy of mediation rooms, I often listen to assertions made by counsel about certain facts, such as soft-tissue injuries suffered in a car crash, and then I ask: How are you going to prove that? I may as well have asked a question about Heidegger’s thoughts on the revelation of reality.  The lack, most of the time, of a satisfactory answer to my question comes from the apocryphal nature of the rules of civil evidence in Canada, and from the dearth of actual trial experience among litigators called to the bar in the last 15 years. (la version française…

An academy of criminal law for Ontario

This is my final post on the Law Society of Upper Canada’s articling consultation.  During the last few months, some interesting ideas have emerged from various quarters. (la version française suit) First, the “articling” crisis is perceived to be a Toronto-centric problem.  It has long been known to be a predominantly Ontario problem, probably because Toronto is a magnet for would-be lawyers not only from Ontario but also from the rest of Canada and some common-law jurisdictions abroad.  Anecdotal accounts of small-town firms unsuccessfully seeking articling students to fill jobs may suggest that it is not, ultimately, the Toronto bar’s…

Your future in Criminal Law

Twenty-five years from now, historians, criminologists and other observers of criminal law in Canada may very well look back to a 2005 lecture given by Justice Michael Moldaver (now of the Supreme Court of Canada), to the Criminal Lawyers Association.  Will they ask, why did we not see the symptoms of a dying branch of our profession? (la version française suit) The important excerpt from the lecture, quoted at the opening of a comprehensive report by the Ontario courts on criminal procedure, pointed to a trial process spiraling out of control.  He repeated his call to action in a 2006…