Volume 9, Number 1, 1990
Articles
- Dealing with Violent Young Offenders: Transfer to Adult Court and Bill C-58 - Nicholas Bala
The federal government has proposed legislative amendments (Bill C-58) increasing the maximum sentence available in youth court for murder to five years less a day, making the "protection of the public" the paramount concern in deciding whether to transfer a youth into the adult system, and rendering youths transferred to adult court for murder eligible for parole earlier than adults. This paper surveys case law interpreting the present transfer provision, noting the wide disparities in judicial approaches, and provides a summary and critique of Bill C-58. The new law provides welcome additional sentencing flexibility, but is deficient in certain respects, most notably for failing to deal with the place where sentences are served, reviews and statements of young persons The new parole provisions may result in more youths facing murder charges being transferred. However, the new test for transfer may not in itself result in more transfers; it continues to recognise the importance of rehabilitation of young offenders, while reflecting a societal ambivalence about how to respond to violent young offenders.
- Equality Rights and Sexual Orientation: Confronting Heterosexual Family Privilege - Bruce Ryder
Heterosexual married couples are supported by a wide array of legal privileges, benefits, rights and powers. Recently, these legal advantages - which includes, but are not limited to, economic support such as tax and pension benefits - have been extended in some areas to unmarried cohabiting heterosexual couples. Where the law continues to extend advantages to married couples not available to unmarried couples, heterosexual couples can choose to "opt in" to these advantages by marrying. Persons in same-sex relationships, by contrast, have no choice in the matter - they are excluded from the definition of "spouse" and their relationships are legal nullities upon which no legal privilege, benefits, rights or powers are conferred. At the same time, s.15 of the Charter of Rights and Freedoms guarantees equal rights to lesbians and gays. The existence and persistence of this contradictory legal situation can be traced to a compassion/condonation dichotomy in dominant legal attitudes towards gay men and lesbians. The compassion/condonation discursive framework functions to rationalise heterosexism by placing heterosexual privilege beyond critical examination. Until legal decision-makers are willing to confront and dismantle the legal construction of heterosexual privilege, and abandon the "compassion without condonation" approach, there will be neither freedom nor equality of sexual identity.
- Termination of the In Loco Parentis Obligation of Child Support - Keith B. Farquhar
Virtually all jurisdictions in Canada impose by legislation the duty of child support on a person who stands in loco parentis to a child. What is not made clear in much of the relevant legislation is when the obligation terminates. While the conventional view has been that the obligation cannot be brought to an end by an act of unilateral revocation on the part of the alternative parent, it has recently been judicially suggested that an obligation established by an act of will ought logically to be revocable by an act of the same quality. The author examines the relevant Canadian legislation and jurisprudence and concludes that the interests of children outweigh the importance of individual autonomy in this instance.
Comments
- Spousal Support: Is It Fair to Apply New-Style Rules to Old-Style Marriages? - The Hon. Madame Justice Beverley MacLachin
- Restricting Application of the Causal Connection Test: Story v. Story-The Hon. Madame Justice Patricia Proudfoot & Karen Jewell
- Rawluk v. Rawluk: What Are the Limits of the Remedial Constructive Trust? - Anthony F. Sheppard
- The Battered Wife Syndrome and Self-Defence: Lavallee v. R. – Christine Boyle
- Comparative Judicial Embryology: Judges’ Approaches to Unborn Human Life - Bernard M. Dickens
- Mediation Article Elicits Response - Barbara Landau
Review of Periodical Literature
- Susan A. Tateishi, "Apprehending the Fetus en Ventre sa Mere: A Study in Judicial Sleight of Hand" (1989) 53:1 Saskatchewan Law Review 113. - Lisa Martz
- Patricia A. Monture, "A Vicious Circle: Child Welfare and the First Nations" (1989) 3:1 Canadian Journal of Women and the Law 1. - Elena Miller
- Michael J. Fadus, "A Comparison of East and West German Standards for Intervention in Child Abuse and Neglect Cases: Some Puzzling Ironies" (1989) 24 Texas International Law Journal 107. - Ian Schildt
- James R.P. Ogloff, "Children's Intellectual Rights in Canada: A Comparative Constitutional Approach" (1989) 68 Nebraska Law Review 349. - Tamara Hunter
- Peter H. Rossi, "The Family, Welfare and Homelessness" (1989) 4:2 Notre Dame Journal of Law, Ethics & Public Policy 281. - Daniel Meneley
- Katherine Arnup, "Mothers Just Like Others: Lesbians, Divorce and Child Custody in Canada" (1989) 3:2 Canadian Journal of Women and the Law 18. - Morgan Rea
Book Reviews
- Robin Douthitt and Joanne Fedyk, The Cost of Raising Children in Canada (Toronto: Butterworths, 1990). - Greg Lanning
- H. Irving and M. Benjamin, Family Mediation: Theory and Practice of Dispute Resolution (Toronto: Carswell, 1987). - Douglas Chalke