Criminal Law/Policy

April 25, 2015

Fear-Mongering

Irwin Cotler has table a private member’s bill, C-669, that would give judges the ability to reduce any mandatory minimum sentence provided by the Criminal Code in any manner that [the judge] considers just and reasonable, taking into consideration the circumstances of the offence, victim and offender, the sentencing principles set out in [the Code], and… Continue reading

Constitutional law, Criminal Law/Policy

judicial independence, mandatory minimum, sentencing, tough on crime
April 14, 2015

Nothing Is Always Absolutely So

This morning, the Supreme Court has delivered its decision in R. v. Nur, 2015 SCC 15, striking down as “cruel and unusual,” and therefore contrary to s. 12 of the Charter, a mandatory minimum sentence for the simple possession of a restricted or prohibited firearm that is either loaded or stored with easily accessible ammunition,… Continue reading

Constitutional law, Criminal Law/Policy

Charter, mandatory minimum, sentencing, tough on crime
January 25, 2015

Contesting Expertise in Prison and at Large

I wrote on Thursday about a very interesting article by Lisa Kerr, “Contesting Expertise in Prison Law,” which argues that courts should be less deferential to prison administrators and should take facts, especially social science evidence about the real-life operation of prisons and the lives of prisoners into account, as well as that lawyers need to… Continue reading

Constitutional law, Criminal Law/Policy

Charter, deference, evidence, expertise, prison, social science
January 22, 2015

Fighting Expertise with Expertise

Lisa Kerr, a brilliant colleague of mine at the JSD programme at NYU and soon-to-be professor at Queen’s, has recently published a fascinating article called “Contesting Expertise in Prison Law,” explaining the practical and normative importance of expertise and evidence in prisoners’ rights adjudication. I am no doubt biased, but I think it deserves to be read… Continue reading

Constitutional law, Criminal Law/Policy

Canada, Charter, deference, evidence, expertise, prison, social science
January 11, 2015

A Heap of Trouble

It’s just one decision, and in all likelihood a legally correct one at that ― and yet, precisely because it is likely correct, it illustrates any number of things that are wrong in Canadian law: Thibault c. Da Costa, 2014 QCCA 2437. The case arose out of disciplinary proceedings instituted by the syndic of the… Continue reading

Administrative Law, Criminal Law/Policy

deference, reasonableness, retroactivity, Rule of Law, standard of review
December 17, 2014

Judge Kopf on Mandatory Minimums

At his blog Hercules and the Umpire, Richard G. Kopf, a judge on the U.S. District Court for the District of Nebraska, has a fascinating post on mandatory minimum sentences, which I would urge anyone who has been following the Canadian debate about them to read. (Indeed, this is the rare occasion on which you should… Continue reading

Criminal Law/Policy

judicial independence, mandatory minimum, sentencing, separation of powers, tough on crime
December 16, 2014

The Elephant in the Conference Room

In my post discussing the Supreme Court’s recent decision in R. v. Fearon, 2014 SCC 77, which held that (some) warrantless searches of cell phones incident to arrest were constitutional, I “wonder[ed] whether Justice Cromwell was swayed by his conclusion ― irrelevant and apparently unsupported ― that the robbery of which Mr. Fearon is accused is ‘a crime… Continue reading

Criminal Law/Policy, The Justice System

crime rates, evidence, social science, Supreme Court of Canada
December 12, 2014

Call Dropped

Yesterday, the Supreme Court delivered its decision on the constitutionality of warrantless searches of cell phones incident to arrest, R. v. Fearon, 2014 SCC 77. By a 4-3 majority, the Court held that such searches are constitutional provided that some limits are respected. The dissent would only have allowed such searches in very limited “exigent… Continue reading

Constitutional law, Criminal Law/Policy, New Technologies

cell phones, Charter, privacy, search
December 4, 2014

A Standing Invitation

Today the Québec Court of Appeal dismissed the federal government’s appeal from the Superior Court’s decision in Barreau du Québec c. Canada (Procureur général), 2014 QCCS 1863, which granted the Québec Bar public interest standing to challenge the constitutionality of the mandatory minimum sentences ― all 94 of them ― introduced by the so-called Safe Streets… Continue reading

Constitutional law, Criminal Law/Policy

bar, judicial independence, judicial review, mandatory minimum, sentencing, separation of powers, standing, tough on crime
November 19, 2014

Tell Them Carefully

Cross-border disclosure of wiretaps survives the scrutiny of a (politely) divided Supreme Court. Continue reading

Constitutional law, Criminal Law/Policy

privacy, surveillance, wiretaps