Rethinking Criminal Law Theory: New Canadian Perspectives in the Philosophy of Domestic, Transnational, and International Criminal Law (September 2010)

Friday, 10 September – Sunday, 12 September, 2010Location: Osgoode Professional Development (OPD)1 Dundas Street West, Suite 2602Toronto, ON, M5G 1Z3 Conference Theme The philosophy of criminal law is at a turning point in Canada. The adoption of the Charter of Rights and Freedoms has given the Supreme Court of Canada unprecedented latitude to engage with principles of moral, political, and legal philosophy when elaborating its criminal law jurisprudence. Be it in the context of discussions about the constitutionalization of various aspects of moral innocence, the harm principle, the rule of law, the availability of legal rights to corporate entities, the justification of state punishment, or the nature of crimes with international dimensions, the works of philosophers like John Stuart Mill, Immanuel Kant, Jeremy Bentham, Hans Kelsen, H.L.A. Hart, Joel Feinberg, Joseph Raz, and George P. Fletcher are already given significant attention. An appraisal of such works in light of Canada’s distinctive problems and opportunities is overdue. Canadian law schools and philosophy departments have sought to keep up with this development by hiring, in recent years, a number of criminal law theorists able to participate in philosophical debate and contribute to its healthy development. The result has been a significant deepening of Canadian scholarship in the philosophy of criminal law, both in relation to Charter-related issues and broader problématiques, since the time that the Law Commissions last explored these fundamental issues. Criminal law theory is now well and alive in Canada and, thus, no longer to be associated exclusively with the older British, German, or American traditions. This Canadian momentum is not only being felt in respect of the study of domestic criminal law. Because of Canada’s leadership in international criminal law, both at the level of the International Criminal Court and of specific war crimes tribunals, Canadian legal theorists have also begun to turn their attention to international criminal law per se, building on their domestic expertise. Transnational issues that exceed the jurisdictional sphere of international criminal law have also started to capture the attention our theorists. The time has come to capitalize on this rapidly developing expertise and bring together leading Canadian theorists of domestic and international criminal law for a conference on Rethinking Criminal Law Theory: New Canadian Perspectives in the Philosophy of Domestic, Transnational, and International Criminal Law. The papers presented at the conference will be published as an edited collection (F. Tanguay-Renaud & J. Stribopoulos, eds., Hart Publishing, 2011) and constitute what is hoped will become an enduring contribution to worldwide theorizing about criminal law. Conference Program See attached file

Moral Judgment, Criminal Law and the Constitutional Protection of Religion

What, if any, is the conceptual relationship between the constitutional protection of religious conscience and the criminal law in a modern liberal democracy? This paper examines this issue in the context of contemporary Canadian criminal law and the protection of religious freedom and equality in the Canadian Charter of Rights and Freedoms. The paper argues that there is a deep, though heretofore unexamined, conceptual tension between these two fields of law: The constitutional protection of religious freedom and substantive criminal law are both centrally concerned with the role of the state in making and enforcing moral judgments, but are contesting this boundary from different directions. This paper first traces a variety of modes of interaction between the constitutional protection of religion and substantive criminal law since the introduction of the Charter in 1982. The paper the n examines certain turns in the Supreme Court’s approach to both religious freedom and the criminal law, offering critical reflections on the current conception of religion, the role of Charter values in contemporary constitutional adjudication, and modern debates about harm in the criminal law. Concluding that all of these developments suggest that the deep moral tension between these two areas is bound to grow in years to come, the paper examines examples drawn from contemporary issues in Canadian criminal law — the role of religion in the defence of provocation and the constitutionality of the criminal offence of polygamy

The Constitutionality of Mandatory Alcohol Screening in Canada

In 2018, random mandatory alcohol screening became a reality of the Canadian justice system. Before the law had even come into effect, it was being welcomed with open arms by some, and immediately castigated as unconstitutional by others. Compelling arguments for both sides have emerged in the wake of debate. Where Bill C-46 has enacted laws which have adversely affected the rights of drivers, an analysis of the new laws written within the Canadian Criminal Code, warrant an audit of their alignment with the Canadian Charter of Rights and Freedoms. This thesis challenges the constitutionality of section 320.27 (2) of the Canadian Criminal Code against sections 7 and 1 of the Canadian Charter of Rights and Freedoms. In drawing on the public’s perception of the law, an array of precedent provided by the Supreme Court of Canada, and an analysis of both sections 7 and 1 of the Canadian Charter, an argument can be made which corroborates the notion that section 320.27 (2) of the Canadian Criminal Code is unconstitutional

Hierarchies of Harm in Canadian Criminal Law: The Marijuana Trilogy and the Forcible “Correction” of Children

This paper examines the Supreme Court of Canada’s use of the concept of “harm” in its decisions in R. v. Malmo-Levine, which upholds the criminal prohibition on marijuana possession, and Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), which upholds the reasonable correction defense for parents and teachers charged with assaults against children in their care. The author argues that these decisions employ contradictory characterizations of the role of harm in determining the proper scope of the criminal law. Although the majority in Malmo-Levine cites protecting vulnerable groups from harm as a valid purpose of the criminal law, the Court fails in Canadian Foundation to adequately consider how the reasonable correction defense in fact perpetuates the harms children suffer as a result of socially accepted physical discipline. Further, the Court suggests in Malmo- Levine that conduct causing only trivial harm within the de minimis range cannot legitimately attract criminal sanction, but the n claims in Canadian Foundation that the reasonable correction defense is necessary to prevent families from being torn apart when parents are charged with assault for trivial touchings. The author supports the Court’s decision in Malmo-Levine, but argues that its reasoning in Canadian Foundation ignores discrimination against a vulnerable group

Hierarchies of Harm in Canadian Criminal Law: The Marijuana Trilogy and the Forcible “Correction” of Children

This paper examines the Supreme Court of Canada’s use of the concept of “harm” in its decisions in R. v. Malmo-Levine, which upholds the criminal prohibition on marijuana possession, and Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), which upholds the reasonable correction defense for parents and teachers charged with assaults against children in their care. The author argues that these decisions employ contradictory characterizations of the role of harm in determining the proper scope of the criminal law. Although the majority in Malmo-Levine cites protecting vulnerable groups from harm as a valid purpose of the criminal law, the Court fails in Canadian Foundation to adequately consider how the reasonable correction defense in fact perpetuates the harms children suffer as a result of socially accepted physical discipline. Further, the Court suggests in Malmo- Levine that conduct causing only trivial harm within the de minimis range cannot legitimately attract criminal sanction, but the n claims in Canadian Foundation that the reasonable correction defense is necessary to prevent families from being torn apart when parents are charged with assault for trivial touchings. The author supports the Court’s decision in Malmo-Levine, but argues that its reasoning in Canadian Foundation ignores discrimination against a vulnerable group

Examination of Witnesses in Criminal Cases

The newest edition of Examination of Witnesses in Criminal Cases maintains its status as a key text on the topic. Author Earl J Levy, a national leader in the area of criminal law, has worked with the Criminal Lawyers’ Association, taught criminal law courses at various Canadian law schools, and has over 50 years experience as a litigator. The book, now in its seventh edition, contains necessary updates, and improvements have been made to both format and content while maintaining a similar, logical overview as in previous editions

Conjugal Homicide and Legal Violence: A Comparative Analysis

This article examines the defences in English and Canadian criminal law available to battered women who kill their abusers. The article sets out in detail the formation and evolution of the doctrinal interpretation, in English law, of the defences of provocation, diminished responsibility, and self-defence. Current case law is examined, including the recent cases of Thornton and Ahluwalia. The objective of the essay is to provide a critical context, namely the legal construction of the phenomenon of conjugal violence, in which we can see the current elaboration of these defences. The Canadian position is investigated, by means of a thorough reading of Laval/e, in order to provide a comparative critique of the inadequacies of the English criminal defences. In conclusion, the article proposes several possible sources of reform, through which the defences in English law might be brought closer to the Canadian position

The Constitutionality of Mandatory Alcohol Screening in Canada

In 2018, random mandatory alcohol screening became a reality of the Canadian justice system. Before the law had even come into effect, it was being welcomed with open arms by some, and immediately castigated as unconstitutional by others. Compelling arguments for both sides have emerged in the wake of debate. Where Bill C-46 has enacted laws which have adversely affected the rights of drivers, an analysis of the new laws written within the Canadian Criminal Code, warrant an audit of their alignment with the Canadian Charter of Rights and Freedoms. This thesis challenges the constitutionality of section 320.27 (2) of the Canadian Criminal Code against sections 7 and 1 of the Canadian Charter of Rights and Freedoms. In drawing on the public’s perception of the law, an array of precedent provided by the Supreme Court of Canada, and an analysis of both sections 7 and 1 of the Canadian Charter, an argument can be made which corroborates the notion that section 320.27 (2) of the Canadian Criminal Code is unconstitutional

A Review of Decisions Rendered by the Supreme Court of Canada in Criminal Matters: January 1 to November 30, 2017

This column will review those decisions rendered by the Supreme Court of Canada, between January 1 and November 30, 2017, that involved criminal causes or matters. In 2017, the Supreme Court of Canada considered a multitude of issues involving criminal law, including defences, evidence, and sentencing. The Court also considered the application of the Canadian Charter of Rights and Freedoms, Constitution Act, 1982, to various criminal-law provisions and procedures. Let us start with the Supreme Court’s consideration in 2017 of criminal offences

Revisiting the Defence of Diminished Responsibility

My goal in this article is to revisit the defence of diminished responsibility. There are three things that, taken together, suggest to me that a defence of diminished responsibility ought to be made available to certain individuals accused of certain criminal offences. The first is that Canadian criminal law already recognizes a number of defences that reflect ideas about diminished responsibility. The second is that despite the availability of these specific defences to criminal liability, no general defence of diminished responsibility is formally recognized in Canadian criminal law. And the third is that given the Supreme Court of Canada’s ongoing interest in the connection between criminal liability, fundamental justice, and the principle of normative involuntariness, we should take seriously the idea that a defence of diminished responsibility ought to be recognized and made available to certain offenders who suffer from substantial volitional impairments. My paradigmatic example of a volitional impairment is Fetal Alcohol Spectrum Disorder (FASD)