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Jennie Abell, Elizabeth Sheehy, Natasha Bakht
Captus Press,
ISBN
978-1-55322-264-4
(2012)
Criminal
Law & Procedure: Proof, Defences, and Beyond is a criminal law
casebook aimed primarily at law students in Canadian law schools. The volume
surveys the leading cases on the traditional subjects covered in introductory
criminal law courses, including proof of actus reus and mens rea
and defences such as mistake of fact, automatism, and intoxication, among
others. The book also includes emerging legal paradigms and defences: for
example, in chapters on the legal treatment of corporate homicide; the defence
of color of right — most commonly invoked by Aboriginal peoples in
defence of their lands; and the newly reformed defence of self-defence. The
casebook draws upon secondary sources to illuminate the implications of
criminal defences (for example, for gays and lesbians, persons with
disabilities, and those vulnerable to police entrapment) and demonstrates how
the Charter, particularly section 15 (the equality principle), can be
invoked to broaden defences, such as duress, or narrow other defences like
provocation. Criminal
Law & Procedure: Proof, Defences, and Beyond continues to explore
current cases, legislation, and materials that raise critical and current
issues in law relevant to legal educators and law students, as well as for
those in law-related disciplines such as criminology or sociology. Up-to-date
as of July 2013, new cases and discussion in this latest edition include: Criminal Law &
Procedure: Proof, Defences, and Beyond is the companion volume to Criminal
Law & Procedure: Cases, Context, Critique. Now in their fifth edition,
both volumes can be used alone or together.
Introduction 1 Definition of Crime A. PROBLEMATIZING
THE DEFINITION OF “CRIME” • R v Banks B. THE CONTINGENCY
OF THE DEFINITION OF “CRIME” C. CHALLENGES TO THE
DEFINITION OF “CRIME” • A Feminist Review of Criminal Law • Reference re: Section 293 of the Criminal Code of Canada 2 Colonization and the Imposition of Criminal Law A. OUTLAWING THE
POTLATCH AND THE SUN DANCE • The Struggle for Survival: Indian
Cultures and the Protestant Ethic in British Columbia • Senseless Drumming and Dancing B. EARLY “MURDER”
TRIALS • Killing the Shamen C. POISONING THE
LAND • No Safe Place. • Killing the Shamen (Continued) D. THE APPROPRIATION
OF LAND AND THE ROLE OF THE MILITARY E. TREATY RIGHTS AND
SOVEREIGNTY F. FURTHER EXAMPLES
OF COLONIALISM 3 Aboriginal Peoples and Criminal Law • A Presentation to
the Western Workshop of the Western Judicial Education Centre • Royal Commission
on the Donald Marshall, Jr. Prosecution: Digest of Findings and Recommendations • Submission to the
Aboriginal Justice Inquiry • The
Argument for Aboriginal Justice Systems 4 Enforcement of the Law A. CLASS • R v White. B. SEXUAL
ORIENTATION • Little Sisters Book and Art Emporium
v Canada C. RACISM • Leo LaChance • MISSING ABORIGINAL WOMEN • Wilson Nepoose (5 years in custody) D. MISCARRIAGES OF
JUSTICE • David Milgaard (22 years in custody) • Guy Paul Morin (10 years in custody) • Simon Marshall (6 years in custody) • Steven Truscott (10 years in custody) • Louise Reynolds (2 years in custody) • Brenda Waudby (2 years in custody) • Sherry Sherrett-Robinson (1 year in
custody) • Tammy Marquardt (13 years in custody) • Australian Cases: Lindy Chamberlain,
Kathleen Folbigg. • U.K. Cases: Birmingham Six; Guildford
Four; Maguire Seven E. REMEDIES • Appeals • Extra-Judicial Review • Civil Remedies • Commissions of Inquiry 5 Sentencing A. ISSUES IN
SENTENCING. • Maximum and Minimum Sentences. • Sentencing Options • Purpose of Sentence; Aggravating and
Mitigating Factors • Process of Sentencing B. THE POLITICS OF
SENTENCING. C. CORPORATE
CRIMINALITY D. CULTURAL
CONFLICTS? THE RELEVANCE OF CULTURE TO SENTENCING • R v Gladue E. RACE AND RACISM • R v Hamilton F. CIRCLE SENTENCING
AND FIRST NATION INITIATIVES • Circle Sentencing Criteria • Role of Appellate Courts • Critique of Sentencing Circles • The Role of the Victim in the Criminal
Justice System: Circle Sentencing in Inuit Communities • Hollow Water First Nation’s Community
Holistic Circle Healing Project. G. A STUDY IN
SENTENCING: VIOLENCE AGAINST WOMEN • R v Inwood (Appellant’s Factum) • R v Inwood (Respondent’s Factum) • R v Inwood H. CHARTER IMPLICATIONS
• R v Hebb 6 Prisons and Parole A. PUNISHMENT • Discipline . • Armstrong v Warkworth • Transfer • Segregation • Criminal Prosecution B. PRISON CONDITIONS
•
Overcrowding •
Riots •
Search and Seizure •
Physical Security •
Medical Treatment and Rehabilitation •
Democratic Rights •
Conjugal Visits C. RACISM IN PRISON D. WOMEN IN PRISON • Commission of Inquiry into Certain
Events at the Prison for Women in Kingston E. ABORIGINAL
PEOPLES F. PAROLE 7 Law and Order • Law and Order and
Security: “Getting Tough on Crime” • Democracy and
Terror: October 1970 . • Law and Order and
Security: “Getting Tough on Crime” (Continued) • The
Media’s Hypocrisy and Oka 8 Introduction to Criminal Procedure A. CLASSIFICATION OF
OFFENCES • Summary Conviction Offences • Section 553 Offences • Section 469 Offences • Other Indictable Offences B. PRIVATE
PROSECUTIONS C. TRIAL PROCESS • Overview • Preliminary Inquiry • Jury Trial D. CHARTER
RIGHTS 9 Policing A. INTRODUCTION B. POLICE METHODS (i) Entrapment (ii) Questioning (iii) Use of Force (iv) High Speed Chases (v) Police “Construction” of a Case (vi) RACIAL PROFILING • R v Thompson • Spirit-Murdering the Messenger: The
Discourse of Fingerpointing as the Law’s Response to Racism • Alberta • British Columbia • Manitoba • Nova Scotia • R v RDS • Ontario • R v Brown • Québec • Saskatchewan (vii) Selective Law Enforcement • Sexism • Jane Doe v Metropolitan Toronto
Commissioners of Police • Homophobia • A Queer Response to Bashing:
Legislating Against Hate C. LEGAL RESPONSES
TO POLICING (i) Criminal Charges (ii) Civilian Complaints (iii) Civil Litigation (iv) Coroner’s Inquests (v) Public Inquiries (vi) Law Reform (vii) Activism 10 Arrest and Detention A. ARREST •
Introduction to Powers of Arrest •
Resisting Arrest and Obstruction •
R v Biron •
The Charter and Arrest: ss 9 and 10 •
Citizens’ Arrest Powers •
R v Chen et al B. DETENTION •
What Is a “Detention”? •
R v Grant •
R v Suberu •
Was the Detention Authorized by Law? •
R v Mann •
R v Peck • R v Clayton C. SECTION 24(2)
EXCLUSION OF EVIDENCE •
R v Grant (Continued) • R v Harrison 11 Search and Seizure A. IS IT A SEARCH? • R v Patrick B. IS THE LAW
REASONABLE? • Hunter v Southam • The Politics of the Charter C. WAS SEARCH
AUTHORIZED BY LAW? • R v MRM • R v AM • R v Kang-Brown • R v Golden D. WAS SEARCH
CARRIED OUT IN A REASONABLE MANNER? • R v Gogol • R v Hornick • R v SF • R v Bonds E. THE QUESTION OF
REMEDY • R v Hornick (Continued) • R v SF (Continued) 12 Right to Counsel A. RIGHT TO COUNSEL
UPON ARREST OR DETENTION • R v Suberu • R v Sinclair B. RIGHT TO COUNSEL
AT TRIAL • Certificates • R v Rushlow • R v Fleischman • Young Persons • Prisoners • Duty Counsel Services • Clinic Services C. SYSTEMIC BARRIERS
TO ACCESS TO COUNSEL: SECTION 15? • The Standard of Social Justice Applied
to an Evaluation of Criminal Cases Appearing Before the Halifax Courts 13 Bail A. INTRODUCTION TO
BAIL • Report of the Aboriginal Justice Inquiry
of Manitoba B. GROUNDS FOR
DETENTION • R v Hall • R v AD • R v Harutyunyan C. REVERSE
ONUS SITUATIONS Index of Cases
Jennie Abell, B.A., LL.B., LL.M., is Director of Women's Studies and an associate
professor in the Faculty of Law at the University of Ottawa, where she has been teaching
"Criminal Law and Procedure" since 1988. Prior to that, she taught in the area
of law and social policy with the School of Human Justice, University of Regina. Both her
pedagogy and her scholarship draw on her earlier work as a criminal defence lawyer with a
legal aid clinic in Northern Saskatchewan, where she represented poor people and Aboriginal peoples. Her research interrogates the relationships between
traditional law practice, feminist activism, and critical legal education; feminist
analysis of criminal law and violence against woman; and criminialization of poverty and access to justice. Elizabeth Sheehy, LL. B., LL.M., LL.D. (Honoris Causa), is a
professor in the Faculty of Law at the University of Ottawa. She teaches
Criminal Law, Criminal Procedure, Sexual Assault Law and Defending Battered Women on Trial. She has worked on
criminal law reform from many vantage points, including consultation with the
department of Justice Canada, research for the Self-Defence Review, case
preparation with the Women's Legal Education and Action Fund, and advocacy work
with women's organizations such as the National Association of Women and the Law
and the Canadian Association of Elizabeth Fry Societies. Her research and
writing concentrates on violence against women, equality analysis, and criminal
law reform issues such as self-defence for battered women. Natasha Bakht (BA, MA., LLB, LL.M is an associate professor of law at the University of Ottawa who teaches criminal law, family law and a seminar on multiculturalism. She is called to the bar of Ontario and completed her LL.M at New York University School of Law as a Global Hauser scholar. She served as law clerk to Madam Justice Louise Arbour at the Supreme Court of Canada. Professor Bakht's research interests are in the intersecting area of religious freedom and women's equality. She was an active member of the Women's Legal Education and Action Fund (LEAF) from 2005-2009, advancing women's rights through litigation. She has worked with the National Judicial Institute to educate Canadian judges on matters of religion and culture. She is the current English language Editor of the Canadian Journal of Women and the Law (CJWL). Her articles have addressed religious arbitration in family law, Muslim women's attire and she has edited the collection Belonging and Banishment: Being Muslim in Canada (Toronto: TSAR, 2008).
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