Contextualizing Criminal Defences: Exploring the Contribution of Justice Bertha Wilson

Abstract:     
The authors survey the opinions of Justice Wilson in three important criminal defence cases: R. v. Perka, R. V. Hill, and R. v. Lavallee. These cases reveal the development of her understanding of equality in criminal law, ranging from a formal individualistic understanding of equality in Perka through to a nuanced substantive approach to equality in Lavallee. Next, the authors discuss two different ways that context figures in those opinions, to: (1) understand the accused's actions, and (2) to locate the defence itself in its social and historical context to reveal biases and inequalities reflected therein. Finally, the authors examine the Supreme Court's more recent approach to defences, highlighting the ways in which Justice Wilson's equality-informed contextual approach has been both present and absent in some of the Court's recent decisions.

Number of Pages in PDF File: 11

Keywords: Criminal Law, Defences, Justice Bertha Wilson, Canada, Supreme Court, Self-Defence, Provocation, Necessity

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