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Methods And Severity: The Two Tracks Of Section 12, Benjamin Berger, Lisa Kerr
Methods And Severity: The Two Tracks Of Section 12, Benjamin Berger, Lisa Kerr
Articles & Book Chapters
This paper argues that there are two main routes – two tracks – by which one can arrive at the fundamental wrong at the heart of section 12 of the Charter. On the “methods track”, the state can run afoul of section 12 by using intrinsically unacceptable methods of treatment or punishment. For historical reasons, jurisprudence on this track is not well developed in Canada, though it would clearly prohibit the death penalty and most methods of corporal punishment. On the “severity track”, the concern is with excessive punishment. Here, even where the state has chosen a legitimate method of …
What Humility Isn’T: Responsibility And The Judicial Role, Benjamin Berger
What Humility Isn’T: Responsibility And The Judicial Role, Benjamin Berger
Articles & Book Chapters
In recent years, academic literature has given some attention to humility as an important adjudicative principle or virtue. Drawing inspiration from a Talmudic tale, this chapter suggests that the picture of judicial humility painted in this literature is not only incomplete, but even potentially dangerous so. Seeking to complete the picture of what this virtue might entail, this piece explores the idea that humility is found in awareness of one’s position and role in respect of power, and a willingness to accept the burdens of responsibility that flow from this. The chapter examines elements of Chief Justice McLachlin’s criminal justice …
Unreasonable Disagreement?: Judicial–Executive Exchanges About Charter Reasonableness In The Harper Era, Matthew A. Hennigar
Unreasonable Disagreement?: Judicial–Executive Exchanges About Charter Reasonableness In The Harper Era, Matthew A. Hennigar
Osgoode Hall Law Journal
Assessments of “reasonableness” are central to adjudicating claims under several Charter rights and the section 1 “reasonable limits” clause. By comparing Supreme Court of Canada rulings to facta submitted by the Attorney General of Canada to the Court, this article examines the federal government’s success under Prime Minister Harper at persuading the Supreme Court of Canada that its Charter infringements in the area of criminal justice policy are reasonable, and when they fail to do so, on what grounds. The evidence reveals that the Conservative government adopted a consistently defensive posture in court, never conceding that a law was unreasonable, …
Lets Talk About Sexual Assault A Feminist Exploration Of The Relationship Between Legal And Experiential Discourses, Dana Erin Phillips
Lets Talk About Sexual Assault A Feminist Exploration Of The Relationship Between Legal And Experiential Discourses, Dana Erin Phillips
LLM Theses
This thesis challenges the tendency within feminist legal thought to imagine a sharp division between law and lived experience, and specifically between feminist methods that engage legal discourse and those that invoke grassroots narratives grounded in experience. In order to better elucidate the relationship between legal and experiential discourses, the author compares recent legal discourse on sexual assault focusing on two Supreme Court of Canada decisions with women's own accounts of sexual violence, as presented in mainstream news media in the wake of the 2014 Jian Ghomeshi story. The findings, examined through the lens of feminist scholarship, support a view …
Innocence At Stake: Possibility Of Dna Collection From Arrestees In Canada, Washim Ahmed
Innocence At Stake: Possibility Of Dna Collection From Arrestees In Canada, Washim Ahmed
Osgoode Legal Studies Research Paper Series
Followed by a decision of the Supreme Court of the United States, which approved the collection of a defendant’s DNA upon arrests under the Fourth Amendment, the Minister of Justice, Peter MacKay indicated in an interview with the Globe and Mail that he and his Ministry are considering a similar model for Canada. This paper examines the possibility of a similar legislative framework in Canada and argues that although collection of DNA upon arrests was found justified under the Fourth Amendment, it does not necessarily mean that it will be found justified under the Canadian Charter of Rights and Freedoms. …
Criminalization Of Polygamy In Canada: Historical, Legal And Sociological Analysis, Washi Ahmed
Criminalization Of Polygamy In Canada: Historical, Legal And Sociological Analysis, Washi Ahmed
Osgoode Legal Studies Research Paper Series
The Canadian Criminal Code criminalizes the act of polygamy pursuant to s.290, and bigamy (another act which is similar to polygamy) pursuant to s.293 under the assumption that such practices have an adverse impact on women and children. However, the history of the criminalization of polygamy in Canada suggests that it was enacted deliberately to marginalize a particular minority group. This paper is divided into four chapters. Chapter I discusses the historical background of polygamy and indicates that the criminalization of polygamy in Canada was an adoption of the American legal approach to Mormonism. Chapter II analyzes the provisions of …
Victor's Justice: The Next Best Moral Theory Of Criminal Punishment?, François Tanguay-Renaud
Victor's Justice: The Next Best Moral Theory Of Criminal Punishment?, François Tanguay-Renaud
Comparative Research in Law & Political Economy
In this essay, I address one methodological aspect of Victor Tadros's The Ends of Harm - namely, the moral character of the theory of criminal punishment it defends. First, I offer a brief reconstruction of this dimension of the argument, highlighting some of its distinctive strengths while drawing attention to particular inconsistencies. I then argue that Tadros ought to refrain from developing this approach in terms of an overly narrow understanding of the morality of harming as fully unified and reconciled under the lone heading of justice. In a final and most critical section, I offer arguments for why this …
"Prisoner Never Gave Me Anything For What He Done:" Aboriginal Voices In The Criminal Court, Shelley A. M. Gavigan
"Prisoner Never Gave Me Anything For What He Done:" Aboriginal Voices In The Criminal Court, Shelley A. M. Gavigan
Articles & Book Chapters
Aboriginal people participated in different ways in the criminal process in the earl years of the North- West Territories region of Canada, including, as accused persons, as Informants, and as witnesses. Their participation was often mediated by the police, Indian agents and sometimes their Chiefs. Their word were also mediated by interpreters, both linguistic and cultural and their signatures were invariably marked as "X" on their depositions. Scholarship that has examined the relationship of Aboriginal peoples to the criminal law has tended to interrogate the criminalization and moral regulation strategies implicit in the process of colonization and domination of the …
Enforcement Effectiveness In The Canadian Capital Markets, Poonam Puri
Enforcement Effectiveness In The Canadian Capital Markets, Poonam Puri
Commissioned Reports, Studies and Public Policy Documents
This paper focuses on the fundamental principles underlying effective enforcement by regulators. In particular, this paper analyzes the critical role of the criminal law and judges in effectively addressing capital markets misconduct. It also analyzes how securities regulators can best structure the wide discretion that is afforded to them in designing enforcement strategies and policies that are effective, fair, transparent and accountable. This study also examines the current allocation and division of enforcement responsibilities in respect of the capital markets amongst the numerous entities involved and explores contentious issues related to the current overlapping and concurrent jurisdiction. Finally, this study …
From Jailbird To Jailbait: Age Of Consent Laws And The Construction Of Teenage Sexualities, Kate Sutherland
From Jailbird To Jailbait: Age Of Consent Laws And The Construction Of Teenage Sexualities, Kate Sutherland
Articles & Book Chapters
Age of consent laws provide an obvious example of direct state intervention into the sexual lives of teenagers. But the reach of this body of law extends further than this, operating in complex and contradictory ways that generate a range of distributive effects. For example, the roles that parents and welfare officials play in enforcement decisions have an impact on broader struggles between teenagers, parents, and state officials over teenage sexual activity and sexual values. Further, in those contexts where age of consent laws do not apply or where they are not enforced, teenage sex will be left in the …
Legal Rites: Abjection And The Criminal Regulation Of Consensual Sex, Kate Sutherland
Legal Rites: Abjection And The Criminal Regulation Of Consensual Sex, Kate Sutherland
Articles & Book Chapters
The application of criminal law to consensual sex is an arena of conflict and contest between conservative and liberal forces in the United States, with occasional feminist interventions. The same arguments tend to recur on each side of the debate. Conservatives assert the appropriateness and necessity of enforcing a particular Judeo-Christian sexual morality through law. Liberals argue for tolerance of private consensual sexual conduct. When the debate shifts from the private to the public arena, conservatives may argue privacy principles, asserting the right of bystanders to be let alone, whereas liberals may shift to freedom of expression arguments. In this …
Retribution Revisited: A Reconsideration Of Feminist Criminal Law Reform Strategies, Dianne L. Martin
Retribution Revisited: A Reconsideration Of Feminist Criminal Law Reform Strategies, Dianne L. Martin
Osgoode Hall Law Journal
Were the last 30 years of feminist law reform activity around criminal justice misdirected? Or, if not misdirected, have the efforts been appropriated and manipulated by the New Right? This commentary reflects on this history, and on the failures of the retributive justice project generally, and argues for a reexamination of both. The discussion focuses on the tactics of the New Right and on the retributive goals of some victims' rights organizations as a means of highlighting the unintended consequences of key feminist initiatives around violence against women. Finally, the commentary identifies alternatives to retribution and a need for careful …
Prosecuting Women For Welfare Fraud In Ontario: Implications For Equality, Errlee Carruthers
Prosecuting Women For Welfare Fraud In Ontario: Implications For Equality, Errlee Carruthers
Journal of Law and Social Policy
No abstract provided.
Petit Treason In Eighteenth Century England: Women's Inequality Before The Law, Shelley A. M. Gavigan
Petit Treason In Eighteenth Century England: Women's Inequality Before The Law, Shelley A. M. Gavigan
Articles & Book Chapters
This article examines the English law of petit treason (murder of a husband by his wife or a master by a servant or a religious superior by a religious inferior) and its implications for married women charged with murdering their husbands. From 1351-1828, a woman accused of killing her husband was liable to be indicted not for willful murder but for the aggravated offense of petit treason and, until 1790, she faced public execution by burning if convicted. Relying on eighteenth century legal treatises, reported cases, press accounts of women's trials, and second my sources, the author discusses the cases …