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"This is a reference tool for criminal law practitioners on section 11(b) of the Canadian Charter of Rights and Freedoms, which guarantees the right to a trial within a reasonable period of time. It discusses key cases and topics of interest."-- Provided by publisher.
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By: Lisa Silver PDF Version: Who is Responsible for Extreme Intoxication? Case Commented On: R v Brown, 2021 ABCA 273 (CanLII) (Supreme Court of Canada Appeal Hearing Scheduled for November 9, 202…
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When the Ontario Court of Appeal upheld the criminal defence of extreme intoxication this summer, the public backlash was swift and withering. Ontario NDP Leader Andrea Horwath urged the Attorney General to appeal the decision, stating “we should be supporting survivors of sexual assault and violent crime, not making it even harder.” Professors Elizabeth Sheehy […]
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The actio libera in causa doctrine, as originally formulated by various Enlightenment philosophers, concerns the imputation of responsibility to actors for actions unfree in themselves, but free in their causes. Like our Enlightenment counterparts, contemporary philosophers of criminal law, as well as most Western legal systems (both common law and civil), allow that persons can be responsible for acts that are not free when performed, provided they were free in their causes. The actio libera doctrine allows us to impute unfree actions to persons, provided they were responsible for causing the conditions of unfreedom that characterizes those actions when performed. This doctrine seems to be instantiated in a great many actual legal practices. But I argue that we must distinguish between two importantly different understandings of the doctrine itself and its application in law. On the one hand, the actio libera doctrine allows us to waive the voluntariness requirement that is generally needed for criminal liability. On the other hand, it disallows defendants to appeal to defences they would otherwise be entitled to use to block liability, if they culpably created the conditions of their own defence. The first case involves rules of imputation, while the second concerns culpability, and justifying the actio libera doctrine therefore faces different challenges in the two cases.
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On June 8, 2020 the Ontario Attorney General Doug Downey said that the Crown would be seeking leave to appeal Sullivan & Chan to the Supreme Court of Canada. 12 This is a time of opportunity in the intoxication/NMDA sphere. The Supreme Court will (likely) have an opportunity to define this defence and requisite elements, and/or Parliament will have an opportunity to redraft s. 33.1 to bring much needed clarity. This comment will give some thoughts on the appeal of Sullivan & Chan, and the state of intoxication and automatism going forward examining both the voluntariness and the mens rea required.
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