We live in four dimensions of space, famously described by the space-time continuum imagined by Albert Einstein. In legal terms, a courtroom is an example of this kind of space we perceive when practicing law. If we look outside of law and further into the field of physics, even more dimensions are possible – upwards of 26 according to the Closed Unoriented Bosonic String Theory. This article is concerned with a previously unacknowledged dimension of the law, found within the confines of the sentencing hearing. In the recent Supreme Court of Canada decisions of R v Hills, 2023 SCC 2 (CanLII) a ..read more

I recently read a fascinating book on the art of indexing written by Dennis Duncan entitled “Index, A History of the.” Dennis Duncan is a lecturer in English at the University College London with a particular interest in book structure including translation. His definition of indexing, at its basic level, is a “system adopted as a timesaver, telling us where to look for things” (I found this definition by using the book’s index at “indexes, definition of” that pointed me to page 3). Originally, the index had pride of place in the front of the text but gradually, as table of contents became de ..read more

The law of evidence gets a bad rap. Too often, I hear lawyers muse that the rules of evidence are to be learned by rote and applied strictly. Evidence, if you know the rules, is simply a matter of application. There’s no magic, so the naysayers say, when it comes to evidence; it is what is, or it isn’t. The rules cannot change facts, nor can they create them. As a teacher and connoisseur of the law of evidence, I disagree. Evidentiary principles are built on legal and factual relationships that can be complex and intriguing. There is a hidden joy to those rules and principles. Yet, at the same ..read more

The day before the National Day of Truth and Reconciliation, I moderated a fantastic panel on advocacy. At the start of the event, I made a territorial land acknowledgement and renewed my own personal commitment to advancing reconciliation in my teaching and learning. I can think of no better way to do this than to write a blog post sharing what I see as a positive trend emerging in case law on real and meaningful reconciliation efforts for Indigenous peoples in the criminal justice system. Whether these efforts will have the kind of impact needed to generate change for Indigenous peoples will ..read more

The recent Alberta Court of Appeal decision of R v Germain, 2022 ABCA 257 (CanLII), reads like a judge’s “how to” manual for applying the sentencing principle of parity. Here, the Court not only discusses the role of parity in making a sentencing determination but also provides a step-by-step approach to applying the principle in practice. To do this, the Court relies on precedent and deference, the cornerstones of appellate review of sentencing. Significantly, the decision attempts to reconcile a long line of Court of Appeal decisions on starting points, with recent direction b ..read more

The week of March 21 was a momentous occasion for criminal law. In that week, over the course of three days, four Supreme Court of Canada appeals were heard that may change our sentencing principles and subsequently our entire conception of a fit and proper sentence.  All four cases evoke the Charter in their drive to clarify, confine, and restrain punishment. The Alberta trilogy of R v Hilbach (argued with the companion case R v Zwozdesky), 2020 ABCA 332, and R v Hills, 2020 ABCA 263 all focus on the interpretation and application of s 12 of the Charter in challenging the mandatory minim ..read more

The opening paragraphs of the recent Alberta Court of Appeal decision in R v Natomagan, 2022 ABCA 48 (CanLII), belie the significance of the decision. It commences like many other appellate sentencing decisions, setting out the lower Court’s ruling by focusing on a narrow ground of appeal. In this case, that ground encompasses the Crown appeal against the imposition of a determinate rather than an indeterminate sentence for a designated dangerous offender. By paragraph 3, the Court has shown its hand and finds the sentencing judge “applied the wrong legal standard.” By paragraph 5, t ..read more

What you are about to read is not the usual case commentary. I will not summarize, analyze, or otherwise slice and dice the decision from the Alberta Court of Appeal in R v Brown, 2021 ABCA 273 (CanLII), a case upholding the constitutionality of s 33.1 of the Criminal Code, RSC 1985, c C-46. Rather, I will provide context for the case, setting out the underlying principles at stake and the controversies underpinning the conflicting legal perspectives. Section 33.1 was a response by our lawmakers to the Supreme Court of Canada’s ultimate decision in R v Daviault, 1 ..read more

Truth and Reconciliation is a continuing process. Every day, we should be mindful of the harm caused and that continues to be caused to Indigenous peoples by our society, our justice system and by our laws that fail them. Today is the National Day of Truth and Reconciliation. It is a day of remembrance, sadness, and acknowledgement of loss: the loss of children, of culture and of dignity. But it is also a day of hope, peace and action. I will mark the day by learning about and acknowledging the harms caused to indigenous people by my presence and by the legal system. But I will also try t ..read more

In Conlin v Edmonton (City) Police Service, 2021 ABCA 287 (CanLII) [Conlin], a 5-panel court of appeal refines the threshold standard by which public complaints against the police are assessed by the Chief under s 45(3) of the Police Act, RSA 2000, c P-17. In doing so, the court clarifies past appellate decisions but stops short of fully expressing the Chief’s authority to send an allegation to a disciplinary hearing under the Act. As part of this power, the Chief exercises a screening function under s 45(3). If the Chief is of the “opinion” that the complain ..read more