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Between 2006 to 2008, no less than three public inquiries recommended that, absent a reasonable likelihood of re-prosecution, prosecutors should allow the wrongfully convicted to be acquitted and not be subject to prosecutorial stays. Prosecutorial stays are an exercise of prosecutorial discretion under. 579 of the Criminal Code that can only be challenged with evidence of flagrant impropriety. They do not provide protection against double jeopardy. They can amount to a third “legal limbo” verdict between guilty and not guilty. Only two prosecutorial services in Canada have adopted the three inquiry recommendations in their guidelines or deskbooks. This failure has real world consequences: namely at least five cases involving seven accused in four different provinces since 2016 where convictions were overturned because of new evidence relevant to guilt or innocence only to be the subject of a prosecutorial stay which deprived the previously convicted person of a verdict on the merits. In addition to being at odds with the three inquiry recommendations, such uses of prosecutorial stays promote continued suspicion of the wrongfully convicted and create two classes of the wrongfully convicted: those who are acquitted and those who only receive a prosecutorial stay.
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The author traces the history of criminal appeals legislation in Canada from the Crown Cases Act of 1848 to the present. Through his analysis he illustrates the various forces giving rise to change and amendment, with special emphasis on the strong and often inappropriate influence of British legislation. In addition, the author examines the aim of national uniformity in criminal procedure, and the way in which appeals legislation has fostered this aim.
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The appeal plays a central role in the modern Canadian criminal justice system. Appellate rulings are the primary means by which, through the assessment of trial error, substantive criminal law and the law of evidence evolve and develop. Scarcely more than a century ago, however, formal criminal appeals were unknown to Anglo-Canadian criminal procedure. What provoked the creation of a criminal appellate procedure? Why and how did criminal appeals emerge in Canada at the end of the 19th century? Answers to these questions can enrich our appreciation of the essential nature and function of the modern criminal appeal. This article examines the 19th century English debates on the establishment of a criminal appeal and places these debates in the context of the loss of the old forms of jury control in the 18th century. The author shows that the emergence of the criminal appeal was closely tied to a 19th century debate between the judges of England and members of the legal profession about the frailties of trial by jury and the need for a new means of trial error correction. The author argues that, accordingly, the modern criminal appeal is best understood as, at core, a mechanism of jury control. [PUBLICATION ABSTRACT]
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How intimate partner violence (IPV) is conceptualized affects what we see when we look at situations involving IPV and what we think the solutions to the problem of IPV are—either in individual cases or in the development of broader legal and policy responses. In this article, it is suggested that while conceptualizing IPV as coercive control is an improvement over previous understandings, it does not go far enough. Coercive control must be located within a broader conceptualization of IPV as a form of social and systemic entrapment if it is not to operate in a harmful manner for victim-survivors.
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This article examines the doctrine of abuse of process in Canadian criminal law in the light of two recent events, the decision of the Supreme Court of Canada in Amato c. R. and the adoption of the Canadian Charter of Rights and Freedoms.
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Courts around the world moved quickly in determining how to conduct proceedings remotely in response to COVID-induced shutdowns. However, both implicitly and by their actions, in the initial wake of pandemic closures Canadian courts demonstrated a consensus that jury trials could only be conducted in person, even as other proceedings moved to a digital realm. We provide a snapshot of what Canadian courts’ initial responses were in adapting to their new reality. We then highlight general issues that need to be considered in conducting court proceedings online, as well as describe issues specific to criminal jury trials. Our contention is that the failure of Canadian courts to address these issues, and their failure to make any considerations towards conducting jury trials remotely despite doing so for nearly all other proceedings, leaves the jury trial vulnerable to obsolescence in a digital world.
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