- Rebecca Jaremko Bromwich
Carleton Undergrad Student Criminal Blogs Compilation 2019
Students in my undergraduate law and legal studies criminal law class were invited this term to author blog posts. Here is a compilation of excerpts from their best work this term.
As an aside, thank you, Carleton students, for many great years! Your energy, intelligence, and enthusiasm are an inspiration. As I move back into the legal profession and away from my full time faculty role, I look forward to watching you rise as colleagues and professionals in many fields relating to criminal law.
Student Essay Excerpts:
"All murders committed during a forcible confinement be treated as first-degree murder pursuant to section.231(5)(e) of the Criminal Code. This provision thus covers a wide range of scenarios in which offenders may have varying degrees of moral blameworthiness,51 and yet shoehorns them all into one severe sentence. This same reasoning toppled s.95(1) to a s.12 Charter violation in R v. Nur,  1 SCR 773, and as such, so too must this provision fail."
"Anti-stalking legislation should not require subjective fear on the part of the victim for culpability of the accused. There is no consensus on an objective standard of fear within the psychology community which is arguably the community best equipped to define fear, identify the presence of fear and clarify if the emotional response of fear is predictable and could be successfully subjected to an objective test. Rather it seems as though the bench has sought to create a standard for which there is no objective scientific support and as a result, base findings of fault on actus reus which cannot reasonably or objectively be measured. "
"The infanticide provision should be reformed. Fear or anxiety over social disapproval, or financial stress, is not an excuse for murder, it is a reflection of the persistent continuation of the patronization of women. Stereotypes about women still exist and women’s bodies are unjustly over policed. By narrowing the scope of the provision to focus on women that suffer from postpartum psychosis or another medically recognized severe dissociation from reality, we can then emphasize how our feminist efforts to create avenues to help women in need, are there for all women to utilize and benefit from. In essence, I believe that a discussion on the intersectional issues of aiding women in crisis must be had. We must consider that through robust social programming, we can work to mitigate the stress of motherhood and protect both mothers and their children. "
- Danica Nardi-Lamadeleine
"When an individual with a mental illness commits a crime but is not found NCRMD due to the severity of their illness, they are obligated to go through the criminal justice system. However, due to the increasing number of individuals with less serious illnesses such as depression, anxiety, double personality disorder, the psychiatric facilities are exceeding their capacity in the penitentiary system. Additionally, these people often encounter segregation which aggravates the situation and their mental state. Therefore, they are not receiving the adequate care to be reintegrated into society at the end of their sentence, which results in the cycle of recidivism."
- Dagny Connolly
"Scientific research on mental disturbance related to childbirth widely disproves “that all women who murder their infants are suffering from serious mental disorder.”15 The image of a vulnerable mother frames the accused as a “victim” deserving of increased leniency over other criminals. Infanticide acts as a partial defence to murder, even in circumstances where the mens rea for murder was established. Current legislation needs reform to reflect the value a human life holds; infanticide law should not allow mothers to get away with murder."
"In light of contemporary scientific knowledge on the affects of postpartum depression in both females and males, that the determination of fault under the law of homicide, specifically infanticide, as described in section 233 of the Criminal Code, be reformed.1 This reform is to include both men and women to the current gender-specific provision, an operationalized definition of a mental disturbance that is defined as a mens rea element, and a requisite threshold that is casually connected to both the birth and the killing."
"If R v Latimer,  1 SCR 3 was revisited today, new consideration should be given to cognitive distortions in light of what we now know about how, even if legally and practically, a person has options, a parent may have given up and may genuinely believe killing their child is the only option. The notion of necessity distorts the mind, and therefore the fault under the law of homicide should be reformed to incorporate understanding of this cognitive distortion."
"Treating homicide of peace officers as first degree murder under Section 231 (4) of the Criminal Code of Canada creates bias and distrust within our society. Police officers are a very important aspect in society and their lives should be protected, however, the provision does not do this. It in turn states that lives of civilians are of less degree of importance than agents of the state."
-Tashera Joseph Mofford
"law enforcement members should not be protected by special laws because of their position in society. For these reasons, it is in Canadians’ best interest to change the determination of fault for first-degree murder."
"In reality, the crime of infanticide is usually committed because of a variety of contextual factors, like maternal inadequacy, pre-existing mental illness, prior physical and sexual abuse, mercy killings, and substance abuse.11 These factors are common and may be experienced by anyone in a caretaking position. The image of the family unit is always changing, and Canadian law must change in response. The infanticide provision was created to give a less harsh sentence to new mothers,12 but I believe this must extend to anyone in a caretaking position that may experience the same contextual factors listed above that a biological new mother may face."
"The Criminal Code has other provisions that are more effective in addressing a mother who murders her newborn baby. For example, s. 229 of the Criminal Code defines culpable homicide by using general terms.7 This provision does not specify the relationship between the victim and the offender, or the sex of the offender, so it can be more broadly applied to all individuals. This causes the purpose of the infanticide provision to be redundant since there are broader provisions and defences that already deal with a mother murdering her child."
"It is evident that reform is needed as infanticide is rooted in “unsound and outmoded notions of mental disturbance, reflects an anachronistic view of women, and is arbitrarily restrictive”.24 Justice is alleged to be blind however, women are being granted dispensation which ignores the experiences of nonbirth parents."
"The mens rea of Canada’s infanticide law must be reformed as the current provision provides dangerous leniency, makes unfounded claims that lack modern medical evidence and is sexist in nature."
"The blameworthiness that is proportionate to a conviction of murder requires a subjective knowledge of the likelihood of death. For this reason, the stigma applied to such a crime should not be applied in cases where death is accidental."
"Corporate wrongdoing resulting in death be dealt with under the first-degree murder provision irrespective of the planned and deliberate requirements and this crime should be considered an absolute liability offence to exclude the ‘due diligence’ defence."
"I do not dispute the fact that the crime of killing a police officer is of utmost severity. However, I would argue that the current provision of said crime outlined in s. 231(4) of the Criminal Code of Canada30 is unjust and requires amendment. The rigidity of s. 231(4) and the disregard for the proof of subjective mens rea can cause offenders to be treated unjustly due to the lack of consideration for mitigating factor."
"The right to be treated equally and without discrimination should extend to the amount of value placed on individual lives. The enactment of this law implies that certain persons, such as peace officers, have higher value, and therefore any acts which result in the death of these persons are to be punished more severely. In a society wherein the primary duty of the government is to the citizens, it is unconstitutional that this law exists."
" The CCC, S.231(2) declares, “Murder is first degree when it is planned and deliberate”.For murder to be planned and deliberate, the actus reus element must be accompanied by the mens rea or “guilty mind”. If both these elements are present when a murder has occurred, a charge of first degree murder should be actively enforced. When improving S.231(4) of the CCC, the determination of fault should be reformed so that mens rea is present at all times. This change will eliminate the present inconsistency between S.231(2) and S.231(4) of the CCC, where a first degree murder charge is resultant only if the homicide is planned and deliberate."
"Under Section 235(1), all murder is punishable by a minimum of life imprisonment.24 The only distinction is made in Section 745(a) and (c) where first degree murder convictions carry a minimum of twenty-five years of parole ineligibility while second degree carry a ten year minimum.25 Rigid sentencing provisions make it difficult to impose fit sentences for crimes with varying facts."