An Opportunity for Equality: Kokopenace and Nur at the Supreme Court of Canada
(2014) 61 Criminal Law Quarterly 465.
27 Pages Posted: 27 Mar 2015
Date Written: March 27, 2015
The last thirty years have seen the tentative emergence of an expanded conception of criminal law, a conception which takes account of the constitutional value of equality. Much of my scholarship argues that equality offers a jurisprudential window into the undeniable fact that those subjected to criminal law are disproportionately the victims of structural inequality, a fact that is routinely invisible in much theorizing about criminal law. The fall term of 2014 offered the Supreme Court an opportunity to incorporate equality analysis in two important criminal law cases. In Kokopenace, the Court will consider the scope of an Aboriginal defendant’s constitutional right to a representative jury roll and in Nur, the Court will rule on the constitutionality of mandatory minimum sentences for the offence of gun possession. This essay identifies, in advance of the Supreme Court’s ruling, the jurisprudential moments where substantive equality values could be influential. Whether and how the Supreme Court is prepared to identify an equality rights violation, or name equality as a relevant analytical factor, is difficult to predict. Historically, the Court has preferred to ground its criminal law analysis in more familiar criminal law concepts such as fundamental justice, fair trial, and privacy. There are understandable reasons for this reluctance related to judicial economy, but also legitimately related to the deep complexities associated with identifying, measuring and balancing the different and sometimes incommensurate equality claims presented by particular issues. In my view, these cases offer the Court two discrete criminal justice opportunities to affirm its commitment to substantive equality in a larger political context where the systemic and structural dimensions of criminal justice issues are deliberately and explicitly undervalued.
Keywords: Criminal Law, Constitutional Law, Equality, Discrimination, Jury Selection, Impartiality, Aboriginal Peoples, Mandatory Minimum Sentences, Cruel and Unusual Punishment, Proportionality
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