Course or Seminar Category: Criminal Law

Evidence

This course will introduce students to the law of evidence in Canada. It will examine how the common law, statutes, and the Constitution interact to govern the proof of facts in both civil and criminal trials. Topics to be addressed include: burdens of proof; the role of the trial judge in managing the introduction of evidence; methods of presenting evidence; witness competency and compellability; relevance; and the various exclusionary rules that operate to limit the kinds of proof that can be received at trial (i.e. the rules governing hearsay, privilege, expert opinion evidence, etc.). The course will engage ethical issues that arise in the context of evidence law. It will consider how some rules of evidence have evolved historically, and it will attend to the social, political, and institutional contexts in which evidence law operates. The course will encourage critical reflection on the theories, purposes, and justifications that animate evidentiary rules, and on how those rules impact different individuals and communities.

To prepare for each class, students will be asked to view pre-recorded lectures and/or complete assigned readings. Students will also complete 10 short online (eClass) exercises outside of class time, designed to help reinforce the material as the semester progresses. Class time will be dedicated to further lectures, discussions, practice exercises, and in-class evaluations.

International Criminal Law

Ending impunity for those responsible for atrocity crimes – such as war crimes, crimes against humanity, genocide and aggression – is one of the goals of international criminal law (ICL). The course aims to provide students with a program oriented to the practice of ICL, underpinned by a strong framework of ICL doctrine and theory. Both substantive ICL (e.g., elements of crime, modes of liability) and procedural ICL (e.g., admissibility of evidence, victim/witness protective measures) will be discussed and debated. They will be studied alongside the policy, geopolitical and ethical considerations of ICL, such as during the creation of new international courts/tribunals (arguably new legal systems) and the conduct of international investigations. The course will consider how ICL relates to and interacts with international humanitarian law (also known as the law of war or the law of armed conflict), international human rights law and public international law.

Four of the key features of the course include the following:
1. Examining, analyzing and applying ICL to contemporaneous and ongoing situations.

2. Surveying, comparing and evaluating the past and ongoing evolution of ICL, which is a relatively new field of law. As part of studying this evolution, students will view it through the lenses of:
(i) Institutions from the International Military Tribunals at Nuremburg and for the Far East, to the ad hoc and permanent tribunals/courts established in the 1990s and 2000s (e.g., International Criminal Tribunal for the former Yugoslavia, International Criminal Tribunal for Rwanda, International Criminal Court), to the recent accountability mechanisms (e.g., UN Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL);
(ii) Crimes such as the four ‘core crimes’ (i.e., war crimes, crimes against humanity, aggression and genocide), terrorism (as considered and applied at the Special Tribunal for Lebanon), and the recently proposed crime of ecocide, and
(iii) Types of individuals and entities accused of atrocity crimes, such as natural persons, corporations and States.

3. Identifying, understanding and incorporating new technologies and techniques in building ICL cases (e.g., investigator or prosecutor roles) and responding to such cases (e.g., defence counsel or legal representative of victims roles), such as open-source videos and photos from social media, satellite imagery, mobile phone call data records and remote video-link interviews.

4. Viewing, analyzing and critiquing ICL through the perspectives of victims, accused, investigative bodies, prosecution offices, defence entities/counsel, victims’ legal representatives, civil society, judges, affected States and third-party States.

Criminal Law II: Cybercrime

Today, cybercrime is on the rise. It is everywhere. It dominates the news. Ransomware attacks. Data breaches. Online sexual violence offences. Digital hate speech. Even our social media is now flooded with conduct that is arguably criminal.
The law is playing catch up in this area, as judges, practitioners, and policymakers struggle to come to grips with how to best deal with this emerging problem. As a result, some of the most challenging and interesting developments in our legal system now arise in the context of crimes committed via the Internet and computers.
This course will explore the legal and policy challenges presented by our online digital world. No prior knowledge of the subject matter is required. We will start with the basics and then move toward an advanced study of cyber-related law and procedure, focusing on how it ought to apply in the digital world. We’ll ask: “What is cybercrime?” What types of conduct ought to be criminalized? We’ll explore some of the key variants of cyber offences that come up time and again, such as hacking and phishing, ransomware, and data theft. We’ll do a deep dive on cryptocurrency. We’ll look at the jurisdictional challenges created by crimes that occur in digital worlds. We’ll look at the ways in which cybercrime differs from traditional crimes and the challenges it poses for law enforcement. And perhaps most importantly, we will devote a significant amount of time to exploring how the criminal law and policy concepts that you learned about in first year might be adapted to apply in the cyber context. Examples of our study will include: considering our expectations of privacy in the digital age; the application of traditional search and seizure concepts to online police work such as taking over Gmail accounts or acquiring a target’s Facebook messages; the right against self-incrimination and right to counsel when it comes to compelling passwords or forced biometric scans; regulating online speech;
prohibiting ransom payments; allowing officers to pose online as sex trafficking victims to capture would-be online predators; monitoring and criminalizing the online distribution of intimate images; etc.

We’ll have a broad, discussion-based course in which we explore the unique problems posed by this emerging area of the law and how society might choose to deal with them.

Criminal Procedure

This course will provide students with an overview of the Canadian criminal process. It will begin with an exploration of police investigative powers. The authority of Canadian police to detain, search/seize, question and arrest will all be considered in detail. Special attention will be given to the limitations imposed on each of these powers by the Canadian Charter of Rights and Freedoms. The course will then shift to a consideration of the criminal process after charges are formally brought, including intake procedures, bail, disclosure (the effects of non-disclosure and/or lost evidence), election and plea, preliminary inquiries, the right to trial within a reasonable time and plea-bargaining. The course will then focus on the trial, including trial venue, jury selection and trial procedure. This will be followed by an overview of the law of sentencing, and a brief consideration of appeals.

Evidence

This course will provide students with a theoretical and practical understanding of evidence law. After discussing evidence law’s place in the legal system, the course will move on to questions about competence and compellability. This will be followed by a consideration of what makes evidence “relevant” – the threshold requirement for admissibility. The rules governing credibility will be considered, as will the most common exclusionary rules, and the exceptions to them. This will include hearsay evidence (and its most common exceptions, including the principled exception), opinion evidence (and its exceptions, including expert evidence), and character evidence (and its exceptions, including the “similar fact” rule). By the end of the course, students should: • Understand the goals of Evidence Law • Understand the sources of Evidence Law and their interrelationships • Be able to identify and analyze evidentiary problems in fact scenarios and resolve them with reference to prevailing evidentiary rules (common law, statutory and Charter). • Understand the procedural requirements for litigating different evidentiary issues. • Understand, on a practical level, how evidentiary issues are litigated.