Manitoba Law Journal
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Indigenous Oral History Reader
No full textThe oral history of Indigenous people in Canada has been recognized by mainstream legal systems in Canada over the past few decades as being of fundamental importance in court cases and negotiations with Indigenous peoples. As Indigenous peoples further exercise their right to self-government, they will continue drawing their oral traditions to define and develop their autonomous legal system.
This anthology attempts to collect a wide variety of materials that embody many perspectives. It attempts to place those materials within a conceptual framework that might be helpful in looking at Indigenous oral history, and indeed oral history generally. That framework includes viewing oral history in three dimensions of time - testimony about recent events, oral histories that encompass an individual\u27s lifetime, and oral traditions that are passed down from generation to generation. The framework includes looking at oral history in the context of how many cultures and traditions incorporate oral history in their legal systems and cultures. It asks both how values and methods differ among communities and how they reflect widespread or virtually universal tendencies. The framework also invites the reader to consider the different ways in which oral evidence can or should be reinforced or qualified by references to other sources of information, such as other oral evidence, documentary testimony and physical evidence of various kinds.
It is hoped that this collection will be of assistance to others in studying or developing their own teaching materials in this dynamic area
Making an ‘ASH’ out of Gladue: The Bowden Experiment
No full textThe Gladue requirements have been an active element of the criminal law in Canada for over two decades, yet Indigenous incarceration rates have continued to rise precipitously and established approaches to risk management in sentencing and corrections have relegated many Indigenous offenders to longer sentences served predominantly in higher security institutions. In 2006, Correctional Service Canada “incorporated the spirit and intent of Gladue [into] case management practices both in the institutions and in the community,” stressing that Gladue provided ‘direction’ and that Indigenous “social history must be taken into consideration in developing policies and in decision-making impacting on the individual offender.” This paper analyzes CSC’s adoption of Gladue principles in its practices, focussing on the use of the ‘Aboriginal Social History’ and its impacts on Indigenous case management, especially with regard to security classifications and overrides. A comparison of Gladue reports and Aboriginal Social Histories informs of the troubles in the trickle-down from Gladue principles to practice in CSC
Wrongful Extradition: Reforming the Committal Phase of Canada’s Extradition Law
No full textThere has recently been an upswing in interest around extradition in Canada, particularly in light of the high-profile and troubling case of Hassan Diab who was extradited to France on the basis of what turned out to be an ill-founded case. Diab’s case highlights some of the problems with Canada’s Extradition Act and proceedings thereunder. This paper argues that the “committal stage” of extradition proceedings, involving a judicial hearing into the basis of the requesting state’s case, is unfair and may not be compliant with the Charter and that the manner in which the Crown conducts these proceedings contributes to this unfairness. It also argues that regardless of the Act’s constitutionality, in light of Diab and other disturbing cases, the time is ripe for law reform to ensure that extradition proceedings are carried out in a way that is consistent with Canadian public policy. Some suggestions for reform are made, as well as a proposal for a serious Parliamentary effort.
 
Pungent Sound: Analyzing the Criminal Enforcement of Environmental Law in the Pacific Northwest
No full textViolations of environmental law involving significant harm or culpable conduct may require the application of criminal enforcement tools to punish offenders and deter future offences. Yet, we know very little about how this enforcement apparatus has operated historically in the Pacific Northwest. We undertake content analysis of all 2,588 environmental criminal prosecutions resulting from EPA criminal investigations from 1983-2019. We select and analyze all 230 prosecutions adjudicated in Washington, Oregon, and Idaho, with the goals of understanding charging and sentencing patterns, as well as drawing out the broader themes that define such prosecutions over the last 37 years. We find that over $125 million in monetary penalties were assessed to defendants , as was some 753 years of probation, 139 years of incarceration, and over 10,000 hours of community service. Forty-three percent of prosecutions focused on water pollution, 18% hazardous waste, 10% air pollution, and 24% on state-level offences. We conclude with suggestions for bolstering the criminal enforcement apparatus in the name of strengthening the substance of environmental laws in the region, including greater resources, public salience, and community policing
California Wrongful Incarceration Compensation Law: A History That is Still Being Written
No full textFrom current popular media and social commentary, one might imagine that the issue of wrongful incarceration and compensating the victims of it is only a 21st Century issue. Quite the contrary is true; the issue is as old as the criminal justice system itself—and in California, the history of wrongful conviction parallels the state’s history.
Judge Learned Hand remarked that our system of justice “has been always haunted by the ghost of the innocent man convicted. It is an unreal dream.” California alone has had over 200 wrongfully convicted people exonerated since 1989. Of these exonerees, less than 40% have received any type of compensation for the time they spent wrongfully imprisoned. That is because “exoneration guarantees only one thing—release from prison.”[4] While the laws in California have been steadily changing to support the people the state has wrongly convicted monetarily, the law still leaves far too many exonerees with nothing.
This article will mark through the history of wrongful convictions in California, explain California’s compensation laws and how they have been amended over time, and discuss possible remedies to strengthen the current iteration of the law. Part II of this article will give the history of wrongful convictions in California and the impact those wrongful convictions have on exonerees and society. Part III will look at California’s compensation statute and how it has been applied throughout the State’s history. Part IV will conclude with recommendations for the future
Reconsidering Luxton in the Post-Nur Revolution: A Brief Qualitative and Quantitative Analysis of Recent Challenges to Mandatory Minimums and Other Sentencing Provisions
No full textIn the 1990 decision of R v Luxton, the Supreme Court of Canada (SCC) upheld the mandatory minimum for first-degree murder as constitutional in large part because of the existence of the Faint Hope Clause Regime, which was abolished in 2011. Since then, Parliament has also codified proportionality as the fundamental principle of sentencing. Similarly, the SCC has rendered the Gladue line of cases. These changes suggest that the reasons for upholding Luxton may no longer be as valid now as they were back then. Recognizing that legal argument is as much a sociological phenomenon as it is about the law, the thesis of this article is that it is only recently that challenges to mandatory minimums have gained sufficient momentum to give a challenge to Luxton a fighting chance. Nur sent a strong signal to lower courts that unjustified constraints on their ability to impose proportionate sentences would no longer be tolerated. To quantitatively and qualitatively test this theory, the inventory of cases from MMS.watch will be analyzed to show that Nur sparked a revolution that has not only seen an increase in the number of challenges brought against mandatory minimums, but an increase in their success rate and reach. Then, using three key 2020 decisions from three different Appellate Courts, recent trends in judicial thinking that demonstrate both a boldness that is finally ready to take on Luxton, as well as support for some of the reasons for overturning Luxton, will be highlighted. 
Algorithmic Policing Technologies in Canada
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Canadian law enforcement agencies are applying algorithmic technologies to identify individuals at the regional, provincial, and federal levels. These technologies connect templated facial images to an array of informational fragments that are collected from databases scattered between the public and private sectors. While that is the case, these surveillance technologies continue to be authorized under SCC jurisprudence, as opposed to legislation enacted by Parliament. Algorithmic technologies collate and analyze disparate information from public and private databases to identify patterns, which are then used to generate formulas to ‘predict’ future trends. Kate Robertson and colleagues explain that implementation of APTs by Canadian police services holds serious deleterious potential for the Charter rights of Canadians, with consequences that disproportionately affect people of colour. Be that as it may, the most malevolent consequence of applying APTs may be their application of generalized formulas to generate recommendations used to intercept individuals based on biased and inaccurate information. Although not authorized by statute, surveillance technologies continue to be permissible under common law authorities. Richard Jochelson explains the inappropriate nature of this approach, arguing in the alternative that the court’s traditional role calls for application of the Oakes test to determine if state surveillant practices fall within its constitutional limits. Considering APT’s serious implications for Charter protected rights, this paper calls on legislators to implement dedicated legislation to govern the use of surveillant technologies in law enforcement, with a particular focus on regulating the use of APTs. Failure to do so risks an unprecedented expansion of prejudicial policing practices, which may act to crystallize the existing biases in law enforcement practices into objective ‘scientific’ outputs that may hold serious deleterious potential for Canada’s most vulnerable populations
The Availability of the Common Law Defence of Duress to Principals Charged with Murder: An Analysis of the Conflicting Appellate Decisions in R v Willis (TAW) and R v Aravena
No full textThe topic of whether an accused charged as a party to murder can access the common law defence of duress has been a controversial subject in Canada. Unlike in Britain where the House of Lords in R v Howe categorically decided to deny the common law defence to all parties to the offence of murder, the law in Canada has been more hospitable to offenders charged with murder. Aiders and abettors and those charged under the common intention provisions of the Criminal Code of Canada are given access to the defence. The question of whether a principal to murder has access to the common law defence of duress has not yet been decided by the Supreme Court of Canada. In R v Aravena, the Court of Appeal for Ontario was inclined to the view that the defence be extended to principals to murder to give effect to the Charter principle of moral involuntariness. However, in a subsequent decision, R v Willis (TAW), the Court of Appeal for Manitoba refused to follow Aravena, finding that the denial of the common law defence of duress to principals to murder, as provided for in s. 17 of the Criminal Code, was constitutional, based on a proper understanding and application of the principle of moral involuntariness. The Supreme Court of Canada refused leave from the decisions in both Aravena and Willis, leaving the law of duress confused and unsettled as between these two appellate decisions. In this article, it will be argued that there are five reasons to prefer the holding in Aravena to the holding in Willis
Blurred Lines: A Critical Examination of the Use of Police Officers and Police Employees as Expert Witnesses in Criminal Trials
No full textThere is a two-step inquiry in determining whether expert opinion evidence is admissible. The party calling the evidence must first satisfy the threshold requirements of admissibility, demonstrating that the expert evidence is relevant, necessary, not precluded by any exclusionary rule, and that it is provided by a properly qualified expert. If this threshold stage is satisfied, the court progresses to the second stage, the discretionary gatekeeping step, wherein the trial judge assesses whether the expert evidence is sufficiently beneficial to justify admission, meaning that the benefits flowing from admission outweigh any potential harm. The Supreme Court of Canada has clarified that experts must be impartial, independent, and unbiased. These factors must be considered at both steps of determining the admissibility of expert evidence and are also relevant to the determination by the trier of fact as to how much weight should be placed upon admissible expert testimony. That there are three potential points in the trial process at which expert objectivity is considered underscores the importance of ensuring that expert evidence is impartial, independent, and free of bias. This paper analyzes recent Canadian case law in relation to the use of expert witnesses and determines that structure-related concerns ultimately pertaining to bias have played a significant role in court determinations as to the admissibility of expert evidence. Guided by this finding, the authors propose a new two-stream expert structure in order to present a model for proactively reducing concerns relating to impartiality, independence, and bias about experts called by the Crow
The Long-Term Influence of Failed Amendments
No full textThe Long-Term Influence of Failed Amendments