Tag Archives: law

The Carter decision: Of Power and Permission

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Carter and the right to end one’s life

Last week the British Columbia Court of Appeal decided to allow the Attorney General’s appeal to the constitutional challenge of the assisted suicide prohibition: the Carter case.[1] This case featured two persons named Gloria Taylor and Lee Carter. Both suffered from intractable and progressive diseases, and wished to have the option of physician assisted suicide when their life would become intolerable (they both passed away before the appeal was rendered). However, s 241(b) of the Criminal Code makes aiding or abetting a person to commit suicide a crime.[2] Ms. Carter and Taylor challenged the constitutionality of the section alleging a violation of their right to life, liberty and security of the person, and of their right to equality.[3] One of the major hurdles they faced was that a similar issue involving the same section of the Code was challenged on similar grounds and had been decided by the Supreme Court of Canada in the past.[4] In Rodriguez, the plaintiff lost her appeal to the Supreme Court by a close 5 to 4 vote. Nevertheless, the trial judge, Justice Smith, found that she was not bound by the Supreme Court ruling because this case raised three new grounds: (1) the right to life was not at stake in Rodriguez; (2) two principle of fundamental justice did not exist at the time of Rodriguez, overbroadness and gross disproportionality; (3) the majority did not consider s 15 (equality) in its entirety in addition to the fact that recent Supreme Court decisions changed the applicable test.[5] She found in the plaintiffs’ favour and declared the section unconstitutional with a grace period of one year for the government.

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Of Law School and Troglodytes: A survival guide

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Note: My apologies for the lateness of this third and last instalment on law school advice. A member of my family recently passed away, and therefore time and will were missing in action.

The beginning of law school is an exciting moment, as are many new experiences. You are now entering (or you have already entered for some time) the deep, damp, dark and cold underground labyrinth that is law school. You are now a troglodyte … I mean student at law. The comparison to a troglodyte may seem unflattering, but like those mythical creatures you will now dwell in your own world cut out from reality and you will be blind to anything that is not related to law. At first, this strange new world will appear bizarre and unfamiliar, but as you grow accustom to it, it is the rest of the world that will become strange and distant. I may be exaggerating, but barely. It is not a negative thing per se and far from a uniquely law school phenomena (many professional schools create similar settings). Nevertheless, it can sometime be overwhelming and difficult to deal with since we have little frame of reference. Fear not brave new proto-troglodytes for I will try to help you on your quest with these tips and advice on how to survive (and maybe succeed) in law school.

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So you still want to go to law school? How to pick a law school

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If you read through my last post and still think law school is for you, than you now have the difficult task of choosing where to apply, and, once you get admission letters, of where to go. Choosing a law school is like choosing any other program; everyone will have different priorities and taste. In that respect, this guide is not meant to determine what you should prioritize; instead it is meant to assist you in balancing your preferences with the reality of law school. The following list of consideration is therefore not built in order of importance. It is your task to determine which consideration is more important to you. You should, however, consider them all and avoid basing your decision solely on one point. Moreover, I’m always happy to discuss the matter further with readers in the comments or via email.

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One step forward, two steps back: the SCC, immigration & refugee law and discretion

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The past decade has not been kind to migrants. The events of 9/11 added extra hurdles to immigration process as immigration authorities’ paranoia grew. Western countries’ hospitality is much colder as xenophobia increased fuelled by right wing political groups such as the Tea Party in the USA, the Front National in France or the Conservatives in Canada and the UK. In Canada, since the election of the conservative government of Prime Minister Harper, we have adopted a series of reforms in immigration and refugee law. The focused is now on so called “desirable” migrants, usually people with education and language proficiencies in English or French.[1] Inadmissibility rules continue to prohibit family from reuniting, disabled and sick migrants from settling, and otherwise qualified migrants with tenuous link to alleged terrorist groups from immigrating.[2] Parliament adopted the so called Balanced Refugee Reform Act in 2010 making it harder for refugees to seek protection in Canada.[3] Additionally, Refugees’ access to health care was cut by the federal government.[4] Many of those changes are being or will be challenged in court. Whether these challenges will succeed is hard to predict as the Supreme Court has tended to be deferential towards the government on immigration and refugee issues. Two cases handed down in the last two months may shed some light on what the future holds for refugee and immigration law.

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Colonial Sentencing: Incarcerating Aboriginal people – Part III

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Part I and Part II.

3. Reforming Aboriginal Sentencing

This section outlines possible course of actions to remedy the over incarceration of Aboriginal people through a reform of Aboriginal sentencing. In all circumstances, it is suggested that the government should at least enact an exception to mandatory minimum sentences for Aboriginal people if the circumstances warrants it in order to fully allow sentencing judge to implement s 718.2(2) of the Criminal Code. It is also suggested that a reform of Aboriginal sentencing should be accompanied with other socio-economic measures to properly deal with the over incarceration of Aboriginal people. More importantly, I acknowledge the fact that I am not Aboriginal and do not speak in Aboriginal people’s name. In the end effective and long-lasting solution will have to emanate and/or receive the accent of Aboriginal people in order to be legitimate and to further decolonisation goals.

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Colonial Sentencing: Incarcerating Aboriginal people – Part II

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Part I

2. Sentencing of Aboriginal Peoples

A. Sentencing Law in Canada

As succinctly demonstrated, Aboriginal over incarceration is a complex problem with various consequences on our society. Part of the problem and solution comes from the Canadian sentencing regime. Before exploring how the regime could be modify in hope of diminishing over incarceration, it is important to understand how it currently works. Sentencing is the last step of the criminal justice process and happens after a finding of guilt by a trial court or a plea of guilt.[1] When the accused pleads guilty as the result of a plea bargain, there is often a joint submission by the defense and the Crown on the appropriate sentence.[2] If not, there is a sentencing hearing where a judge determines the appropriate sentence after hearing both parties. Both parties can appeal the sentence to a court of appeal if the sentence was not predetermined by law, such as for murder where a sentence of life imprisonment is mandatory.[3] Sentencing courts hold a lot of discretion when determining sentences, and are usually limited by only a maximum sentence and in certain cases a minimum sentence or a mandatory sentence.[4] Judges are however not completely free to determine a sentence as they must follow broad sentencing principles as established first by common law and subsequently codified in the Criminal Code. The overarching principle of sentencing is proportionality, meaning that a “sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”[5] Other principles include the consideration of aggravating and mitigating circumstances, sentences should be similar for similar crime in similar circumstances, and the least restrictive appropriate sentence should be impose.[6] Sentences should also fulfil the following goal: denounce unlawful conduct; deter the offender and other persons from committing offences; separate offenders from society, where necessary; assist in rehabilitating offenders; provide reparations for harm done to victims or to the community; and promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.[7]

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