Adelina Iftene | Dalhousie University (original) (raw)
Books by Adelina Iftene
The Annual Review of Criminal Law 2020 is an analysis of the most significant case law and statut... more The Annual Review of Criminal Law 2020 is an analysis of the most significant case law and statutory developments in 2020 and their impact on the practice of criminal law in Canada. The authors, who have written extensively on criminal law, procedure, and sentencing, draw upon their varied experience to chronicle and analyze the most significant case law and statutory developments, detailing how they impact the practice of criminal law in Canada.
University of Toronto Press, 2019
Built around the experiences of older prisoners, Punished for Aging looks at the challenges indiv... more Built around the experiences of older prisoners, Punished for Aging looks at the challenges individuals face in Canadian penitentiaries and their struggles for justice. Through firsthand accounts and quantitative data drawn from extensive interviews, this book brings forward the experiences of federally incarcerated people living their "golden years" behind bars. These experiences show the limited ability of the system to respond to heightened needs, while also raising questions about how international and national laws and policies are applied, and why they fail to ensure the safety and well-being of incarcerated individuals. In so doing, Adelina Iftene explores the shortcomings of institutional processes, prison-monitoring mechanisms, and legal remedies available in courts and tribunals, which leave prisoners vulnerable to rights abuses.
Some of the problems addressed in this book are not new; however, the demographic shift and the increase in people dying in prisons after long, inadequately addressed illnesses, with few release options, adds a renewed sense of urgency to reform. Working from the interview data, contextualized by participants’ lived experiences, and building on previous work, Iftene seeks solutions for such reform, which would constitute a significant step forward not only in protecting older prisoners, but in consolidating the status of incarcerated individuals as holders of substantive rights.
Journal articles by Adelina Iftene
Criminal Law Quarterly , 2021
Since 2011, s. 745.51, which provides sentencing judges with the option of imposing consecutive p... more Since 2011, s. 745.51, which provides sentencing judges with the option of imposing consecutive periods of parole ineligibility for multiple murders, has been applied over 50 times, with nearly half of the accused being sentenced to what is effectively lifelong imprisonment. In late 2020, the Quebec Court of Appeal (QCCA) declared s. 745.51 unconstitutional and struck it down in Bissonnette c R. This article reviews the constitutional arguments upheld by the QCCA in Bissonnette and weighs them against the challenges that trial judges have encountered in applying s. 745.51 since 2012. By drawing on a qualitative review of cases in which s. 745.51 has been applied, as well as Charter principles, sentencing case law and international practices, this article posits that the QCCA was correct in its approach to s. 745.51, both in finding it unconstitutional and in finding that the provision should not be read down to render it constitutional. This article advances the central argument that, in the context of an already problematic sentencing regime for murder, a piece of legislation that allows for consecutive periods of parole ineligibility of any length, even when its application is circumscribed to certain offenders, will likely continue to raise issues in its application and effects. Thus, when Bissonnette is heard by the SCC, the QCCA’s decision should be upheld. Moreover, Parliament would be well advised to resist any attempts to rewrite this provision and pass another version of it.
Dalhousie Law Journal, 2021
This article documents the Nova Scotia provincial prison system’s experience in dealing with COVI... more This article documents the Nova Scotia provincial prison system’s experience in dealing with COVID-19 during the first wave, including its uniquely swift decarceration efforts.
In reviewing Nova Scotia’s response to the pandemic, a couple of positive steps are apparent and may be instructive for other jurisdictions in times of crisis. However, Nova Scotia’s overall response to the pandemic has exhausted its already stretched thin resources and it has not been without its flaws. This is partly due to pre-existing issues that became obvious during this crisis. In addition, the decarceration efforts did not prove sustainable. After the first wave of the pandemic the number of people in custody has gone up again, which overshadows some of the positive steps taken during the first wave. Thus, it is a good opportunity to reflect on some of the systemic issues that plague Nova Scotia’s (and other jurisdictions’) criminal justice systems and which have rendered responding to a crisis significantly more difficult. These issues – including overcrowding, high rates of pre-trial detention, lack of support upon release, lack of transparency of prison systems, etc. – can no longer be ignored and ought to be addressed with priority.
One goal of this investigation is to identify a set of best practices that can help Canadian prisons systems with their short-term responses to crisis in a manner that is compliant with both international and national public health policies and human rights. Another goal of this investigation, based on the systemic weaknesses highlighted by the pandemic, is to advance longer-term recommendations that would improve the criminal justice system and help maintain lower levels of incarceration.
Manitoba Law Journal , 2020
The Supreme Court of Canada released its decision of R v Hart in July of 2014. The decision provi... more The Supreme Court of Canada released its decision of R v Hart in July of 2014. The decision provided a two-prong framework for assessing the admissibility of confessions obtained through the undercover police tactic known as "Mr. Big". The goal of the framework was to address reliability concerns, to protect suspects from state abuse, and to reduce the risk of wrongful convictions. The first prong of the test created a new common law evidentiary rule, under which Mr. Big obtained confessions are now presumptively inadmissible. The second prong revamped the existing abuse of process doctrine. In this article, the authors review the last five years of judicial application of the new Hart framework. In total, all 61 cases that applied Hart were analyzed qualitatively and quantitatively, looking at whether the goals of the Hart framework have been met, what effect the framework has had on the admissibility of Mr. Big obtained confessions, and what, if any, shortcomings the framework has. The authors argue that the flexibility and discretion built into the Hart framework have resulted in an inconsistent application of the two-prong test. In the end, the framework has had a negligible impact on the number of confessions that are admitted.
McGill Law and Health Journal, 2020
In this article, we review the current legislation, policies, and practices related to endof-life... more In this article, we review the current legislation, policies, and practices related to endof-life care for federally incarcerated individuals as set out in statutes, guidelines, and government reports and documents that were either publicly available or obtained through Access to Information requests from the Parole Board of Canada and Correctional Service of Canada (CSC). Based on this review, we describe the status quo, identify gaps, and offer reflections and raise concerns regarding end-of-life care for federally incarcerated individuals. We conclude that there are significant information gaps about the number of people seeking end-of-life care and about how CSC is managing the provision of such care. The sparse information available is nonetheless sufficient to support the conclusion that there are good reasons to be concerned about how end-of-life care is regulated, monitored, recorded, and provided. Significant reforms are needed.
Alberta Law Review, 2017
In the last decade there has been a steady growth in the number of federally incarcerated people ... more In the last decade there has been a steady growth in the number of federally incarcerated people aging in prisons. These individuals have a long list of medical needs while they present a low risk to communities. However, this category of people tends to spend more time in prison than their younger counterparts and face difficulties in being released. Using original empirical data, as well as the existing literature, I argue that a high number of these individuals need to be released through a compassionate release mechanism. This article has two purposes. One is to show that compassionate release does not really exist in Canada. Section 121 of the Corrections and Conditional Release Act-parole by exception-is the closest Canada has to release on humanitarian grounds, but it fails to fulfill this role. The second purpose is to argue that the lack of a functional compassionate release provision is unacceptable, particularly in the context of the increase among the prison population of medical conditions associated with aging. I maintain that a system which is not flexible enough to consider extreme post-incarceration circumstances of an offender, and does not allow for a modification of the place where individuals serve their sentence based on these circumstances, is disconnected from any medical, penological, humanitarian, or constitutional requirements. Finally, I provide a set of recommendations for the redrafting of section 121.
Dalhousie Law Journal, 2017
This article builds the case for expanding s 7 of the Charter of Canadian Rights and Freedoms to ... more This article builds the case for expanding s 7 of the Charter of Canadian Rights and Freedoms to apply to prison regulations and decisions in the specific context of an aging prison population. As original empirical data shows, prisons are highly insensitive to age-related problems, and inappropriate or insufficient medical treatment receives official sanction from a wide range of correctional documents. The stark inadequacies of the current system endanger older prisoners’ security of the person, and sometimes their lives, in ways that violate their rights under s 7, since the deprivations they suffer result from legislative policies and state conduct that are by turn arbitrary, overbroad, and grossly disproportionate. While s 7 has not been used to review such administrative documents or actions before, such a review is both feasible and highly desirable given the current lack of substantial access to justice by prisoners, their heightened vulnerability, and the evolution of the section 7 jurisprudence.
Medical Law International, 2019
Canadian federal legislation setting out the framework for medical assistance in dying (MAiD) in ... more Canadian federal legislation setting out the framework for medical assistance in dying (MAiD) in Canada came into effect in June 2016. Because of section 86(1) of the Corrections and Conditional Release Act, as soon as MAiD became available in the community, it also needed to be made available to federal prisoners. There are some good reasons to be concerned about MAiD in the Canadian corrections system based on logistical, legal, and moral considerations. Fortunately, Canada is not the first country to decriminalize assisted dying and so Canadian policies and practices can be compared to others and take some lessons from their experiences. Thus, by reviewing the legal status of assisted dying in prisons internationally, the regulation of assisted dying, demand for assisted dying from prisoners, and the process for prisoners accessing assisted dying, this article offers a comparative overview of assisted dying for prisoners around the world in an effort to inform Canadian and other jurisdictions’ law, policy, and practice.
Canadian Family Physician Journal , 2020
A federal penitentiary is a prison where individuals serve long sentences, of 2 years or longer, ... more A federal penitentiary is a prison where individuals serve long sentences, of 2 years or longer, including life sentences. Take a second to picture a person serving a sentence in such a place. Who do you see in your mind's eye? Did you imagine a 70-year-old in an advanced stage of multiple sclerosis? Or a 72-year-old with metastatic lung cancer? Or a 55-year-old with an above-the-knee amputation and stage 1 dementia?
Canadian Journal of Criminology and Criminal Justice, 2017
The number of aging people in prison has been on the rise in the last few decades. Their heighten... more The number of aging people in prison has been on the rise in the last few decades. Their heightened needs place burdens on correctional institutions that have not been encountered before. This article presents the results of a study conducted with 197 older prisoners. This study’s findings identify issues raised by chronic pain in older prisoners and the management of this pain in a prison setting. Correctional Service Canada (CSC) does not acknowledge older prisoners as a vulnerable prison group, and correctional policies thus tend not to include age (and its implications) as a variable worthy of consideration. Data from this study raise some under-explored issues about the matter of aging behind bars that are in need of future research. If the findings are con- firmed in the future, the CSC might find its policies challenged in court. To prevent that from happening, a systematic reform of the CSC’s policies – in particular, the medical ones – will need to be undertaken, with the goal of making them age-sensitive.
International Journal of Law and Psychiatry, 2017
This article is based on a quantitative study investigating the quality of life of older Canadian... more This article is based on a quantitative study investigating the quality of life of older Canadian prisoners. For this study, social science methodology was used to answer certain legal questions, such as: what are the mental health issues of older male offenders and how are these needs influencing the exercise of their legal rights? Are institutions prepared to deal with the increased needs of older offenders? If no, is this an infringement of this group's rights? In this article, the mental health problems of older offenders are first outlined. Second, the legal, policy, and institutional limitations in responding to these problems are described. Based on these findings, it is maintained that a change in the treatment of older offenders is needed. Third, statutory and constitutional challenges are explored. If change does not come voluntarily, it is the duty of the courts to have a flexible and open-minded approach toward different actions that challenge the current prison regime.
Criminal Law Quarterly, 2016
In 2014, the Supreme Court of Canada in R v Hart reviewed the application and evidentiary consequ... more In 2014, the Supreme Court of Canada in R v Hart reviewed the application and evidentiary consequences of Mr. Big operation. For the majority, Moldaver J. changed the common law confessions rule so that it applies in Mr. Big scenarios based on a two-pronged test. Immediately after Hart, the SCC rendered a new decision in R v Mack where the two pronged test was leniently applied in favour of the Crown.
In this article I argue that the SCC approach in Hart and its application in Mack failed to address to the core problems that Mr. Big operations pose. It is the purpose of this paper to review the decision in Hart and its subsequent application in Mack, to point out their shortcomings and to make the case for an alternative solution for the issues raised by Mr. Big investigations.
Canadian Journal of Nursing Leadership, 2020
Background: Increasing incarceration of women disrupts fertility, family formation, parenting and... more Background: Increasing incarceration of women disrupts fertility, family formation, parenting and mother-child relationships. It is common in many jurisdictions, including Canada, to mitigate the harm of separation from the primary parent through programs allowing children to co-reside with their mothers in prison. In this scoping review, we asked the following questions: (1) What are the characteristics of residential mother-child programs in carceral facilities? (2) Who is eligible to participate? (3) How do these programs make a difference to maternal and child health outcomes?
Canadian Journal of Nursing Research, 2021
Background Women are the fastest growing population in Canadian prisons. Incarceration can limit ... more Background Women are the fastest growing population in Canadian prisons. Incarceration can limit access to essential health services, increase health risks and disrupt treatment and supports. Despite legal requirements to provide care at professionally accepted standards, evidence suggests imprisonment undermines sexual and reproductive health. This scoping review asks, “What is known about the sexual and reproductive health of people incarcerated in prisons for women in Canada?” Methods We use the Joanna Briggs Institute methodology for systematic scoping reviews. Databases searched include MEDLINE, CINAHL, PsycINFO, Gender Studies s, Google Scholar and Proquest Dissertations and grey literature. The search yielded 1424 titles and abstracts of which 15 met the criteria for inclusion. Results Conducted from 1994–2020, in provincial facilities in Ontario, British Columbia, Alberta and Quebec as well as federal prisons, the 15 studies included qualitative, quantitative and mixed metho...
Dalhousie Law Journal , 2020
Queen's Law Journal , 2014
Prisoners can be tragically wronged by the prison system, as highlighted by the recent Ashley Smi... more Prisoners can be tragically wronged by the prison system, as highlighted by the recent Ashley Smith case. Tort actions have proven to be a problematic form of recourse for them. Negligence claims made by prisoners face many obstacles at every stage of the analysis: the duty of care, standard and breach, and causation. The authors offer an overview of tort litigation coming out of Canadian prison with a focus on health care based negligence claims, risks arising from other prisoners and the risk of self-harm. They find that these cases are unevenly resolved when the plaintiff is a prisoner. The paper further considers “conditions of confinement” and attempts to determine whether this standard could give rise to a novel duty of care. The authors outline several impediments to the imposition of such a duty. They note that Canadian courts are reluctant to impose duties on public actors, particularly when the conduct in question walks the fine line between operational and policy-oriented action. Improving conditions of confinement would be an expensive undertaking and the imposition of a duty of care would involve costly funding decisions, so the authors determine that the courts would be unlikely to accept it as a legitimate duty of care. If tort litigation can be made more accessible to prisoners the end result may be the improved enforcement of their entitlements and the betterment of internal prison conditions.
Canadian Medical Association Journal , 2012
This article reviews the potential effects of Bill C-10 and related legislation that provide for ... more This article reviews the potential effects of Bill C-10 and related legislation that provide for more legal minimum sentences and reduce the possibility of conditional release. Without more resources overcrowding - an already pressing issue in Canadian corrections - will increase. We further review the potential effects of overcrowding as exemplified in other jurisdiction.
Book Chapters by Adelina Iftene
Canadian Prisons: Understanding the Canadian Correctional System (Oxford University Press), 2020
VULNERABLE The Law, Policy & Ethics of COVID-19, 2020
Correctional Service of Canada and the provincial prison systems have a duty to provide incarcera... more Correctional Service of Canada and the provincial prison systems have a duty to provide incarcerated individuals with health services that are comparable to those in the community, but they have failed to do so during the COVID-19 pandemic. There are inherent practical difficulties to implementing health care in prisons. In addition, prison demographics include a higher proportion of populations that are vulnerable to disease. These factors together mean that the prison response to COVID-19 must involve depopulation and the implementation of guidelines provided by public health agencies in all institutions. So far, the measures taken have been insufficient, as is evidenced by the rapid rates of spread of COVID-19 within prisons compared to the community. An overreliance on segregation of incarcerated individuals as a preventive measure raises concerns under s. 7 of the Charter of Rights and Freedoms (the Charter) and international human rights. There are also equality concerns under s. 15 of the Charter, given the high proportion of Indigenous people in prison. Ultimately, some prison systems’ failure to respond adequately to the pandemic impedes the successful flattening of the curve and will likely prolong the life of COVID-19 in the community. It highlights the urgency of the much-needed prison reforms that have been overlooked for decades.
The Annual Review of Criminal Law 2020 is an analysis of the most significant case law and statut... more The Annual Review of Criminal Law 2020 is an analysis of the most significant case law and statutory developments in 2020 and their impact on the practice of criminal law in Canada. The authors, who have written extensively on criminal law, procedure, and sentencing, draw upon their varied experience to chronicle and analyze the most significant case law and statutory developments, detailing how they impact the practice of criminal law in Canada.
University of Toronto Press, 2019
Built around the experiences of older prisoners, Punished for Aging looks at the challenges indiv... more Built around the experiences of older prisoners, Punished for Aging looks at the challenges individuals face in Canadian penitentiaries and their struggles for justice. Through firsthand accounts and quantitative data drawn from extensive interviews, this book brings forward the experiences of federally incarcerated people living their "golden years" behind bars. These experiences show the limited ability of the system to respond to heightened needs, while also raising questions about how international and national laws and policies are applied, and why they fail to ensure the safety and well-being of incarcerated individuals. In so doing, Adelina Iftene explores the shortcomings of institutional processes, prison-monitoring mechanisms, and legal remedies available in courts and tribunals, which leave prisoners vulnerable to rights abuses.
Some of the problems addressed in this book are not new; however, the demographic shift and the increase in people dying in prisons after long, inadequately addressed illnesses, with few release options, adds a renewed sense of urgency to reform. Working from the interview data, contextualized by participants’ lived experiences, and building on previous work, Iftene seeks solutions for such reform, which would constitute a significant step forward not only in protecting older prisoners, but in consolidating the status of incarcerated individuals as holders of substantive rights.
Criminal Law Quarterly , 2021
Since 2011, s. 745.51, which provides sentencing judges with the option of imposing consecutive p... more Since 2011, s. 745.51, which provides sentencing judges with the option of imposing consecutive periods of parole ineligibility for multiple murders, has been applied over 50 times, with nearly half of the accused being sentenced to what is effectively lifelong imprisonment. In late 2020, the Quebec Court of Appeal (QCCA) declared s. 745.51 unconstitutional and struck it down in Bissonnette c R. This article reviews the constitutional arguments upheld by the QCCA in Bissonnette and weighs them against the challenges that trial judges have encountered in applying s. 745.51 since 2012. By drawing on a qualitative review of cases in which s. 745.51 has been applied, as well as Charter principles, sentencing case law and international practices, this article posits that the QCCA was correct in its approach to s. 745.51, both in finding it unconstitutional and in finding that the provision should not be read down to render it constitutional. This article advances the central argument that, in the context of an already problematic sentencing regime for murder, a piece of legislation that allows for consecutive periods of parole ineligibility of any length, even when its application is circumscribed to certain offenders, will likely continue to raise issues in its application and effects. Thus, when Bissonnette is heard by the SCC, the QCCA’s decision should be upheld. Moreover, Parliament would be well advised to resist any attempts to rewrite this provision and pass another version of it.
Dalhousie Law Journal, 2021
This article documents the Nova Scotia provincial prison system’s experience in dealing with COVI... more This article documents the Nova Scotia provincial prison system’s experience in dealing with COVID-19 during the first wave, including its uniquely swift decarceration efforts.
In reviewing Nova Scotia’s response to the pandemic, a couple of positive steps are apparent and may be instructive for other jurisdictions in times of crisis. However, Nova Scotia’s overall response to the pandemic has exhausted its already stretched thin resources and it has not been without its flaws. This is partly due to pre-existing issues that became obvious during this crisis. In addition, the decarceration efforts did not prove sustainable. After the first wave of the pandemic the number of people in custody has gone up again, which overshadows some of the positive steps taken during the first wave. Thus, it is a good opportunity to reflect on some of the systemic issues that plague Nova Scotia’s (and other jurisdictions’) criminal justice systems and which have rendered responding to a crisis significantly more difficult. These issues – including overcrowding, high rates of pre-trial detention, lack of support upon release, lack of transparency of prison systems, etc. – can no longer be ignored and ought to be addressed with priority.
One goal of this investigation is to identify a set of best practices that can help Canadian prisons systems with their short-term responses to crisis in a manner that is compliant with both international and national public health policies and human rights. Another goal of this investigation, based on the systemic weaknesses highlighted by the pandemic, is to advance longer-term recommendations that would improve the criminal justice system and help maintain lower levels of incarceration.
Manitoba Law Journal , 2020
The Supreme Court of Canada released its decision of R v Hart in July of 2014. The decision provi... more The Supreme Court of Canada released its decision of R v Hart in July of 2014. The decision provided a two-prong framework for assessing the admissibility of confessions obtained through the undercover police tactic known as "Mr. Big". The goal of the framework was to address reliability concerns, to protect suspects from state abuse, and to reduce the risk of wrongful convictions. The first prong of the test created a new common law evidentiary rule, under which Mr. Big obtained confessions are now presumptively inadmissible. The second prong revamped the existing abuse of process doctrine. In this article, the authors review the last five years of judicial application of the new Hart framework. In total, all 61 cases that applied Hart were analyzed qualitatively and quantitatively, looking at whether the goals of the Hart framework have been met, what effect the framework has had on the admissibility of Mr. Big obtained confessions, and what, if any, shortcomings the framework has. The authors argue that the flexibility and discretion built into the Hart framework have resulted in an inconsistent application of the two-prong test. In the end, the framework has had a negligible impact on the number of confessions that are admitted.
McGill Law and Health Journal, 2020
In this article, we review the current legislation, policies, and practices related to endof-life... more In this article, we review the current legislation, policies, and practices related to endof-life care for federally incarcerated individuals as set out in statutes, guidelines, and government reports and documents that were either publicly available or obtained through Access to Information requests from the Parole Board of Canada and Correctional Service of Canada (CSC). Based on this review, we describe the status quo, identify gaps, and offer reflections and raise concerns regarding end-of-life care for federally incarcerated individuals. We conclude that there are significant information gaps about the number of people seeking end-of-life care and about how CSC is managing the provision of such care. The sparse information available is nonetheless sufficient to support the conclusion that there are good reasons to be concerned about how end-of-life care is regulated, monitored, recorded, and provided. Significant reforms are needed.
Alberta Law Review, 2017
In the last decade there has been a steady growth in the number of federally incarcerated people ... more In the last decade there has been a steady growth in the number of federally incarcerated people aging in prisons. These individuals have a long list of medical needs while they present a low risk to communities. However, this category of people tends to spend more time in prison than their younger counterparts and face difficulties in being released. Using original empirical data, as well as the existing literature, I argue that a high number of these individuals need to be released through a compassionate release mechanism. This article has two purposes. One is to show that compassionate release does not really exist in Canada. Section 121 of the Corrections and Conditional Release Act-parole by exception-is the closest Canada has to release on humanitarian grounds, but it fails to fulfill this role. The second purpose is to argue that the lack of a functional compassionate release provision is unacceptable, particularly in the context of the increase among the prison population of medical conditions associated with aging. I maintain that a system which is not flexible enough to consider extreme post-incarceration circumstances of an offender, and does not allow for a modification of the place where individuals serve their sentence based on these circumstances, is disconnected from any medical, penological, humanitarian, or constitutional requirements. Finally, I provide a set of recommendations for the redrafting of section 121.
Dalhousie Law Journal, 2017
This article builds the case for expanding s 7 of the Charter of Canadian Rights and Freedoms to ... more This article builds the case for expanding s 7 of the Charter of Canadian Rights and Freedoms to apply to prison regulations and decisions in the specific context of an aging prison population. As original empirical data shows, prisons are highly insensitive to age-related problems, and inappropriate or insufficient medical treatment receives official sanction from a wide range of correctional documents. The stark inadequacies of the current system endanger older prisoners’ security of the person, and sometimes their lives, in ways that violate their rights under s 7, since the deprivations they suffer result from legislative policies and state conduct that are by turn arbitrary, overbroad, and grossly disproportionate. While s 7 has not been used to review such administrative documents or actions before, such a review is both feasible and highly desirable given the current lack of substantial access to justice by prisoners, their heightened vulnerability, and the evolution of the section 7 jurisprudence.
Medical Law International, 2019
Canadian federal legislation setting out the framework for medical assistance in dying (MAiD) in ... more Canadian federal legislation setting out the framework for medical assistance in dying (MAiD) in Canada came into effect in June 2016. Because of section 86(1) of the Corrections and Conditional Release Act, as soon as MAiD became available in the community, it also needed to be made available to federal prisoners. There are some good reasons to be concerned about MAiD in the Canadian corrections system based on logistical, legal, and moral considerations. Fortunately, Canada is not the first country to decriminalize assisted dying and so Canadian policies and practices can be compared to others and take some lessons from their experiences. Thus, by reviewing the legal status of assisted dying in prisons internationally, the regulation of assisted dying, demand for assisted dying from prisoners, and the process for prisoners accessing assisted dying, this article offers a comparative overview of assisted dying for prisoners around the world in an effort to inform Canadian and other jurisdictions’ law, policy, and practice.
Canadian Family Physician Journal , 2020
A federal penitentiary is a prison where individuals serve long sentences, of 2 years or longer, ... more A federal penitentiary is a prison where individuals serve long sentences, of 2 years or longer, including life sentences. Take a second to picture a person serving a sentence in such a place. Who do you see in your mind's eye? Did you imagine a 70-year-old in an advanced stage of multiple sclerosis? Or a 72-year-old with metastatic lung cancer? Or a 55-year-old with an above-the-knee amputation and stage 1 dementia?
Canadian Journal of Criminology and Criminal Justice, 2017
The number of aging people in prison has been on the rise in the last few decades. Their heighten... more The number of aging people in prison has been on the rise in the last few decades. Their heightened needs place burdens on correctional institutions that have not been encountered before. This article presents the results of a study conducted with 197 older prisoners. This study’s findings identify issues raised by chronic pain in older prisoners and the management of this pain in a prison setting. Correctional Service Canada (CSC) does not acknowledge older prisoners as a vulnerable prison group, and correctional policies thus tend not to include age (and its implications) as a variable worthy of consideration. Data from this study raise some under-explored issues about the matter of aging behind bars that are in need of future research. If the findings are con- firmed in the future, the CSC might find its policies challenged in court. To prevent that from happening, a systematic reform of the CSC’s policies – in particular, the medical ones – will need to be undertaken, with the goal of making them age-sensitive.
International Journal of Law and Psychiatry, 2017
This article is based on a quantitative study investigating the quality of life of older Canadian... more This article is based on a quantitative study investigating the quality of life of older Canadian prisoners. For this study, social science methodology was used to answer certain legal questions, such as: what are the mental health issues of older male offenders and how are these needs influencing the exercise of their legal rights? Are institutions prepared to deal with the increased needs of older offenders? If no, is this an infringement of this group's rights? In this article, the mental health problems of older offenders are first outlined. Second, the legal, policy, and institutional limitations in responding to these problems are described. Based on these findings, it is maintained that a change in the treatment of older offenders is needed. Third, statutory and constitutional challenges are explored. If change does not come voluntarily, it is the duty of the courts to have a flexible and open-minded approach toward different actions that challenge the current prison regime.
Criminal Law Quarterly, 2016
In 2014, the Supreme Court of Canada in R v Hart reviewed the application and evidentiary consequ... more In 2014, the Supreme Court of Canada in R v Hart reviewed the application and evidentiary consequences of Mr. Big operation. For the majority, Moldaver J. changed the common law confessions rule so that it applies in Mr. Big scenarios based on a two-pronged test. Immediately after Hart, the SCC rendered a new decision in R v Mack where the two pronged test was leniently applied in favour of the Crown.
In this article I argue that the SCC approach in Hart and its application in Mack failed to address to the core problems that Mr. Big operations pose. It is the purpose of this paper to review the decision in Hart and its subsequent application in Mack, to point out their shortcomings and to make the case for an alternative solution for the issues raised by Mr. Big investigations.
Canadian Journal of Nursing Leadership, 2020
Background: Increasing incarceration of women disrupts fertility, family formation, parenting and... more Background: Increasing incarceration of women disrupts fertility, family formation, parenting and mother-child relationships. It is common in many jurisdictions, including Canada, to mitigate the harm of separation from the primary parent through programs allowing children to co-reside with their mothers in prison. In this scoping review, we asked the following questions: (1) What are the characteristics of residential mother-child programs in carceral facilities? (2) Who is eligible to participate? (3) How do these programs make a difference to maternal and child health outcomes?
Canadian Journal of Nursing Research, 2021
Background Women are the fastest growing population in Canadian prisons. Incarceration can limit ... more Background Women are the fastest growing population in Canadian prisons. Incarceration can limit access to essential health services, increase health risks and disrupt treatment and supports. Despite legal requirements to provide care at professionally accepted standards, evidence suggests imprisonment undermines sexual and reproductive health. This scoping review asks, “What is known about the sexual and reproductive health of people incarcerated in prisons for women in Canada?” Methods We use the Joanna Briggs Institute methodology for systematic scoping reviews. Databases searched include MEDLINE, CINAHL, PsycINFO, Gender Studies s, Google Scholar and Proquest Dissertations and grey literature. The search yielded 1424 titles and abstracts of which 15 met the criteria for inclusion. Results Conducted from 1994–2020, in provincial facilities in Ontario, British Columbia, Alberta and Quebec as well as federal prisons, the 15 studies included qualitative, quantitative and mixed metho...
Dalhousie Law Journal , 2020
Queen's Law Journal , 2014
Prisoners can be tragically wronged by the prison system, as highlighted by the recent Ashley Smi... more Prisoners can be tragically wronged by the prison system, as highlighted by the recent Ashley Smith case. Tort actions have proven to be a problematic form of recourse for them. Negligence claims made by prisoners face many obstacles at every stage of the analysis: the duty of care, standard and breach, and causation. The authors offer an overview of tort litigation coming out of Canadian prison with a focus on health care based negligence claims, risks arising from other prisoners and the risk of self-harm. They find that these cases are unevenly resolved when the plaintiff is a prisoner. The paper further considers “conditions of confinement” and attempts to determine whether this standard could give rise to a novel duty of care. The authors outline several impediments to the imposition of such a duty. They note that Canadian courts are reluctant to impose duties on public actors, particularly when the conduct in question walks the fine line between operational and policy-oriented action. Improving conditions of confinement would be an expensive undertaking and the imposition of a duty of care would involve costly funding decisions, so the authors determine that the courts would be unlikely to accept it as a legitimate duty of care. If tort litigation can be made more accessible to prisoners the end result may be the improved enforcement of their entitlements and the betterment of internal prison conditions.
Canadian Medical Association Journal , 2012
This article reviews the potential effects of Bill C-10 and related legislation that provide for ... more This article reviews the potential effects of Bill C-10 and related legislation that provide for more legal minimum sentences and reduce the possibility of conditional release. Without more resources overcrowding - an already pressing issue in Canadian corrections - will increase. We further review the potential effects of overcrowding as exemplified in other jurisdiction.
Canadian Prisons: Understanding the Canadian Correctional System (Oxford University Press), 2020
VULNERABLE The Law, Policy & Ethics of COVID-19, 2020
Correctional Service of Canada and the provincial prison systems have a duty to provide incarcera... more Correctional Service of Canada and the provincial prison systems have a duty to provide incarcerated individuals with health services that are comparable to those in the community, but they have failed to do so during the COVID-19 pandemic. There are inherent practical difficulties to implementing health care in prisons. In addition, prison demographics include a higher proportion of populations that are vulnerable to disease. These factors together mean that the prison response to COVID-19 must involve depopulation and the implementation of guidelines provided by public health agencies in all institutions. So far, the measures taken have been insufficient, as is evidenced by the rapid rates of spread of COVID-19 within prisons compared to the community. An overreliance on segregation of incarcerated individuals as a preventive measure raises concerns under s. 7 of the Charter of Rights and Freedoms (the Charter) and international human rights. There are also equality concerns under s. 15 of the Charter, given the high proportion of Indigenous people in prison. Ultimately, some prison systems’ failure to respond adequately to the pandemic impedes the successful flattening of the curve and will likely prolong the life of COVID-19 in the community. It highlights the urgency of the much-needed prison reforms that have been overlooked for decades.
Perspectives on Evidentiary Privileges, 2019
Public Health Law and Policy in Canada , 2019
Canadian Journal of Law and Society, 2020
Red Zones is an original investigation, through quantitative and qualitative data, into the frequ... more Red Zones is an original investigation, through quantitative and qualitative data, into the frequency, causes, and consequences of spatiotemporal conditions of release at bail, probation, and conditional sentences. Using an interdisciplinary lens, Marie-Eve Sylvestre (a legal scholar), Nicholas Blomley (a geography scholar), and Céline Bellot (a social work scholar) tell the story of a criminal justice system which has methodically taken control over and regulated peoples' time and space, leading to both the suppression of individual auto-determination and the erosion of the Canadian system of rights. Resisting the seemingly "normalizing" effect of the widespread use of conditions in the current justice system, the authors uncover the broad implications these conditions have on bodies, identities, society, and the rule of law. An obvious contribution of this book is its analysis of an unprecedented and extremely rich data collection (comprised of nearly 95,000 court cases from Montreal and Vancouver) and its quantitative analysis, provided in Part II of the book. Through quantitative data, the authors depict the frequency and types of geographic conditions of release imposed at bail, on probation, and on other conditional sentences, as well as the people most likely to be subjected to them, and the effects of those conditions. The book therefore fills a significant gap in the literature, which is important given that on a yearly basis around 120,000 people in Canada live under court imposed conditions (about three times more than the number of people in prisons). 1 These numbers do not include the many people who are on bail with conditions. Yet, with a few exceptions, most Canadian literature on sentencing and punishment revolves around incarceration. 2 Sylvestre, Blomley, and Bellot sound the alarm on the hidden dangers of using conditions of release to respond to the harms of incarceration. Beyond the original and much needed data, the value of Red Zones also resides in the clarity with which it reveals that conditions of release are not an alternative to incarceration. Rather, prison and conditions are "on the same carceral continuum" (120-24). Marginalized people are overrepresented at all stages of the penal system. They often end up in the system because of the criminalization of their vulnerabilities. The numerous and oftentimes arbitrary conditions placed on individuals criminalizes behaviours 1
![Research paper thumbnail of Do Independent External Decision Makers Ensure that "An Inmate's Confinement in a Structured Intervention Unit Is to End as Soon as Possible"? [Corrections and Conditional Release Act, Section 33] 1](https://attachments.academia-assets.com/67626386/thumbnails/1.jpg)
](The analyses and the writing of the report was carried out by the three of us based on data recei... more The analyses and the writing of the report was carried out by the three of us based on data received in January 2021 from Correctional Service of Canada (CSC). Even though they are not paying for this work, it is probably worth mentioning that the views implied or expressed in this report are those of the authors and are not necessarily those of CSC or Public Safety Canada. We do wish to thank Public Safety Canada and CSC for giving us the opportunity to do this work for them by giving us access to their data. Some expenses that we incurred in doing this work have been covered by the Geoffrey Hinton Criminology Fund. Finally, we would like to thank the many people who read and commented on earlier drafts of parts or all of this paper. 187 stays Received 1 review 50 stays Received 2 reviews (a total of 100 reviews) 15 stays Received 3 reviews (a total of 45 reviews) 9 stays Received 4 reviews (a total of 36 reviews) 3 stays Received 5 reviews (a total of 15 reviews) 1 stay Received 6 reviews (a total of 6 reviews) Total Number of stays = 265
![Research paper thumbnail of Do Independent External Decision Makers Ensure that "An Inmate's Confinement in a Structured Intervention Unit Is to End as Soon as Possible"? [Corrections and Conditional Release Act, Section 33] 1](https://attachments.academia-assets.com/67626390/thumbnails/1.jpg)
](The analyses and the writing of the report was carried out by the three of us based on data recei... more The analyses and the writing of the report was carried out by the three of us based on data received in January 2021 from Correctional Service of Canada (CSC). Even though they are not paying for this work, it is probably worth mentioning that the views implied or expressed in this report are those of the authors and are not necessarily those of CSC or Public Safety Canada. We do wish to thank Public Safety Canada and CSC for giving us the opportunity to do this work for them by giving us access to their data. Some expenses that we incurred in doing this work have been covered by the Geoffrey Hinton Criminology Fund. Finally, we would like to thank the many people who read and commented on earlier drafts of parts or all of this paper. 187 stays Received 1 review 50 stays Received 2 reviews (a total of 100 reviews) 15 stays Received 3 reviews (a total of 45 reviews) 9 stays Received 4 reviews (a total of 36 reviews) 3 stays Received 5 reviews (a total of 15 reviews) 1 stay Received 6 reviews (a total of 6 reviews) Total Number of stays = 265
Criminal Justice and Evidentiary Thresholds in Canada: The Last Ten Years, 2020
This volume contains papers presented at the Criminal Justice Evidentiary Thresholds in Canada: T... more 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
by Richard Jochelson, Lisa A. Silver, ruby dhand, HYGIEA CASIANO, James Gacek, Adelina Iftene, Robson Crim, Hadar Aviram, Darcy MacPherson, CHRISTOPHER LUTES, BRAYDEN MCDONALD, Kathleen Kerr-Donohue, and Rebecca Jaremko Bromwich
Manitoba Law Journal Criminal Law Edition, 2020
Volume 43(4) is divided into three sections. The first section is entitled International Contri... more Volume 43(4) is divided into three sections. The first section is entitled International Contributions and highlights the work of two leading international scholars. The second thematic section is entitled Current Issues in Criminal Law and delves into issues as diverse as the use of victim impact statements and the Mr. Big investigatory process. The third and final section is a stand-alone Year in Review in which we present a paper summarizing the most recent Supreme Court of Canada and Manitoba Court of Appeal cases.
CONTENTS
Continuing the Conversation: Exploring Current Themes in Criminal Justice and the Law
DAVID IRELAND AND RICHARD JOCHELSON
International Contributions
1 Moral Character: Making Sense of the Experiences of Bar Applicants with Criminal Records
HADAR AVIRAM
35 Corporate Criminal Liability 2.0: Expansion Beyond Human Responsibility
ELI LEDERMAN
Current Issues in Criminal Law
85 The Dangers of a Punitive Approach to Victim Participation in Sentencing: Victim Impact Statements after the Victims Bill of Rights Act ELIZABETH JANZEN
107 To What Types of Offences Should the Criminal Code Rules on Organizational Criminal Liability Apply?: A Comment on 9147-0732 Québec Inc c Directeur Des Poursuites Criminelles et Pénales
DARCY L. MACPHERSON
145 Criminal Law During (and After) COVID-19 TERRY SKOLNIK
181 If You Do Not Have Anything Nice to Say: Charter Issues with the Offence of Defamatory Libel (Section 301)
DYLAN J. WILLIAMS
209 Hart Failure: Assessing the Mr. Big Confessions Framework Five Years Later
CHRISTOPHER LUTES
Year in Review
245 Robson Crim Year in Review
BRAYDEN MCDONALD AND KATHLEEN KERR-DONOHUE