Darcy MacPherson

On 7 November 2003, Royal Assent was given to Bill C-45, An Act to Amend the Criminal Code (criminal liability of organizations). This legislation aims to broaden the criminal liability of corporations and other organizations in two significant ways. First, it expands the basis for corporate criminal liability beyond the existing common law; second, it extends to non-corporate organizations criminal liability previously limited to corporations. Bill C-45 will apply to all fault-based offenses occurring on or after 31 March 2004, it does not apply to offenses of either absolute or strict liability. This paper will discuss the most crucial changes implemented by Bill C-45 and the likely impact of these changes. It concludes that while the government intends to broaden criminal liability through Bill C-45, and in some ways, is successful in so doing, certain parts may require amendment to achieve this goal within the frameworth of the Criminal Code.

On June 2, 2006, in Toronto and its Western suburb, Mississauga, Ontario, hundreds of police officers and security operatives mobilized in simultaneous raids as part of an inter-agency operation dubbed “Project Osage.” This was the single largest terrorism- related sting in Canadian history. It resulted in the largest apprehension of individuals implicated in a “homegrown” terrorist plot that the Western, English-speaking world had ever seen, including the immediate arrest of 15 individuals (including three minors); a further arrest of two other individuals already in prison; and the subsequent arrest of an 18th individual two months later. Notoriously, these 18 individuals became known as the “Toronto 18” and their criminal proceedings as the Toronto 18 trials. By building upon and going beyond a legal examination of the Toronto 18, this book provides insights and perspectives for academics interested in the social-scientific study of terrorism and political violence, as well as government and security agencies that are tasked with the detection and prevention of acts of terrorism on Canadian soil. Legal practitioners and scholars in the area of terrorism will also find unique and useful perspectives on the practicalities of this complex field, including critical insights that may help guide the courts away from some of their previous mistakes.

This volume contains papers presented at the Criminal Justice Evidentiary Thresholds in Canada: The Last Ten Years conference, hosted at the Faculty of Law, University of Manitoba. The conference focussed on the evolution of the law of evidence and the sometimes radical transformations it has seen over the last ten years since the seminal decision of R v Grant in 2009, which reoriented the test for exclusion of evidence at trial. The conference explored questions of the conception of knowledge in modern criminal legal proceedings and the changes in the nature of knowing and constructing criminal responsibility over the last ten years as the information age continues to develop the law of evidence. Unparalleled connectivity, state surveillance capabilities, Canada’s commitment to truth and reconciliation with Indigenous communities, and anxieties pertaining to large scale security calamities (like terror events), have altered the landscape in which crime is investigated, and in which evidence is subsequently discovered, and admitted. The conference discussed and unpacked these issues and developed a tremendous body of scholarship which we are proud to present in this volume. i Continuing the Conversation: Exploring Current Themes in Criminal Justice and the Law DAVID IRELAND AND RICHARD JOCHELSON 1 Reclaiming Prima Facie Exclusionary Rules in Canada, Ireland, New Zealand, and the United States: The Importance of Compensation, Proportionality, and Non-Repetition KENT ROACH 49 An Empirical and Qualitative Study of Expert Opinion Evidence in Canadian Terrorism Cases: November 2001 to December 2019 MICHAEL NESBITT AND IAN M. WYLIE 111 The Unclear Picture of Social Media Evidence LISA A. SIL VER 155 Cree Law and the Duty to Assist in the Present Day DAVID MILWARD 207 Involuntary Detention and Involuntary Treatment Through the Lens of Sections 7 and 15 of the Canadian Charter of Rights and Freedoms RUBY DHAND AND KERRI JOFFE 249 Forensic Mental Health Assessments: Optimizing Input to the Courts HYGIEA CASIANO AND SABRINA DEMETRIOFF 273 Constructing, Assessing, and Managing the Risk Posed by Intoxicants within Federal Prisons JAMES GACEK AND ROSEMAR Y RICCIARDELLI 295 Mr. Big and the New Common Law Confessions Rule: Five Years in Review ADELINA IFTENE AND VANESSA L. KINNEAR 357 Judicial Constructions of Responsibility in Revenge Porn: Judicial Discourse in Non-Consensual Intimate Image Distribution Cases – A Feminist Analysis ALICIA DUECK-READ 391 Harm in the Digital Age: Critiquing the Construction of Victims, Harm, and Evidence in Proactive Child Luring Investigations LAUREN MENZIE AND TARYN HEPBURN 421 Victim Impact Statements at Canadian Corporate Sentencing ERIN SHELEY

On 7 November 2003, Royal Assent was given to Bill C-45, An Act to Amend the Criminal Code (criminal liability of organizations). This legislation aims to broaden the criminal liability of corporations and other organizations in two significant ways. First, it expands the basis for corporate criminal liability beyond the existing common law; second, it extends to non-corporate organizations criminal liability previously limited to corporations. Bill C-45 will apply to all fault-based offenses occurring on or after 31 March 2004, it does not apply to offenses of either absolute or strict liability. This paper will discuss the most crucial changes implemented by Bill C-45 and the likely impact of these changes. It concludes that while the government intends to broaden criminal liability through Bill C-45, and in some ways, is successful in so doing, certain parts may require amendment to achieve this goal within the frameworth of the Criminal Code.

Economics can in fact be used to promote human rights. While others make distinctions between the intentional use of nuclear material as a part of a weapons system, on the one hand, and the inadvertent release of material in a nuclear accident on the other, the author points out that for those affected by the release, the distinction may not really be meaningful. Therefore, he refers to both collectively as ‘nuclear releases’. The author then turns to the connections between nuclear issues and disability. Some are positive; others are not. Disablement often leads to a downturn in economic performance. But, the relationship does not work only one way. Economic downturn (almost inevitable after nuclear releases) can lead to psychological disablement in far greater number than the physical consequences from the release. Also, regardless of who provides care to those who were disabled prior to the release (whether family members or paid service providers), disabled persons are generally...

This article considers the implications of the recent Supreme Court of Canada decision in Peoples Department Stores v. Wise for the law of directors' fiduciary duties. The Court’s decision is attacked on two grounds. First, the author criticizes the Court’s interpretation and treatment of the phrase "the best interests of the corporation" as found in the Canada Business Corporations Act. It is argued that the decision in Wise rejects the traditional interpretation of this phrase which was previously accepted to mean "the best interests of the shareholders collectively. " This rejection raises the spectre of the debate between the "shareholder primacy " model of directors' duties and broader "pluralist" alternatives. By undercutting the lynchpin of the "shareholder primacy" model, the author suggests that the Court has left a vacuum in the law because the Court failed to outline what is to replace this traditional interpretati...

L'auteur commence par décrire ses expériences avec Dianne Pothier comme professeure de droit et mentore. Il analyse ensuite la décision de la Cour suprême du Canada dans l'arrêt Krangle c Brisco, qui portait sur l'obligation alléguée d'un médecin négligent de pourvoir aux besoins d'un adulte ayant, au cours de son enfance, souffert de cette négligence. Deux facteurs compliquaient les choses. D'abord, au moment de la poursuite, le gouvernement au pouvoir au moment du litige aurait couvert les coûts liés aux soins de l'enfant à l’âge adulte. Ensuite, l'enfant n'avait que dix ans au moment de l'audience devant la Cour suprême du Canada. Le gouvernement allait-il continuer d'offrir le programme à l'enfant pendant toute sa vie ? La Cour a traité de ces questions en prévoyant un fonds en fiducie. L'auteur soutient qu'il existe une meilleure solution. Même s'il accepte la position de la Cour selon laquelle le gouvernement devrait ...

This article discusses potential legal arguments that can be made for a lottery player in a seemingly hopeless situation: buying a winning lottery ticket immediately before the deadline, only to find out that the ticket was mistakenly dated for the next week’s draw. Although the lottery rules and regulations and the courts’ interpretation thereof are strongly slanted against lottery players, the authors nevertheless argue that a consistent and coherent application of traditional contract law principles could favour the claimant. They note that Canadian courts have rarely been consistent in their application of contract law to lottery situations, with courts sometimes characterizing lottery advertisements as both an offer and an invitation to treat. Even so, whether the lottery corporation is construed as the offeror or the offeree, the authors contend that a diligent analysis of the formation of the underlying contract could entitle the claimant to the prize. The article concludes t...

This article lays out a series of approaches for establishing an enforceable human right to palliative care in Canada. The article first examines international human rights instruments to which Canada is a signatory, and concludes that they offer limited assistance to palliative care advocates. The article then examines two promising Charter challenges. The first, based on section 15, argues that since palliative care is provided unevenly to those who require it, the equality provisions of the Charter could compel equitable provision of palliative care to Canadians with life-limiting illnesses. The second is based on section 7, and argues that failure to provide palliative care may impose an unacceptable level of psychological stress on those at the end of life. The article concludes with a look at the limitations of a Charter challenge, includ-ing justification under section 1 of the Charter, and the lack of empirical evidence necessary to conclusively prove the arguments advanced ...

The identification doctrine refers to the attribution of mental states to a corporation. This article analyzes the two types of situations in which this doctrine is used. Tlte first is where the Crown wishes to hold a corporation liable for crimes requiring proof of mental fault. Canadian Dredge & Dock Co. Ltd. v. R. serves as the cornerstone case in which the doctrine is firmly established as a "sword" against corporations in the criminal law. The second situation in which the doctrine has been used is where the corporation sues in tort, and the defendant wishes to say that the mental state of the plaintiff corporation disentitles recovery. In other words, the doctrine can be used as a "shield" for individuals against claims in tort by corporations.Legislative amendments to the Criminal Code have altered criteria for the doctrine in the criminal law. These changes do not affect the "shield" use of the doctrine, which is still governed by the common law...

In this article, the author critically analyzes the Supreme Court of Canada’s decision in Peoples Department Stores Inc. v. Wise. This decision interpreted s. 122(1) of the Canada Business Corporations Act in a way so as to declare that it was “obvious” that the duty of care placed on directors and officers is owed to a broad range of beneficiaries, including creditors. The author argues that the decision, while defensible, was neither “obvious” nor was it appropriate. The amendments to the Ontario Business Corporations Act may come closer to the intentions of Parliament in passing the Canada Business Corporations Act. Furthermore, the rules of statutory interpretation are employed to demonstrate that the broadened duty of care found by the Supreme Court may actually cause directors and officers to be more self-interested, rather than putting the interests of the corporation ahead of their own. Such a change in approach may lead to statutory absurdity or a violation of the presumpti...