Manitoba Law Journal
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Infanticide Provisions in a Contemporary Context: Should They Stay, or Should They Go?
No full textThe enactment of Sections 233 and 237 of the Criminal Code by Parliament aimed to address the historical prevalence of jury nullification in infanticide cases by offering leniency to offenders, particularly women, in dire circumstances due to societal norms, economic constraints, and a lack of support systems. These legislative measures aimed to find a balance between holding individuals accountable for their actions and recognizing the underlying complexities that led to such tragic outcomes. Nevertheless, a critical examination of the evolving societal attitudes towards women, children\u27s rights, and family structures prompts a re-evaluation of the current legal framework surrounding infanticide. This reassessment delves into the intricate interplay of socio-economic factors that historically influenced juries and justified the leniency provided by Sections 233 and 237.
This paper argues that the existing infanticide provisions in Canada, particularly Sections 233 and 237, no longer align with modern understandings of moral blameworthiness in cases of infanticide. These sections should be replaced by a statutory defence of diminished responsibility. This proposed shift towards a more flexible and morally informed approach to addressing infanticide within the legal system emphasizes the importance of adapting legal mechanisms to meet evolving standards of justice and ethics in society. This call for reform is rooted in a deep understanding of the historical context that shaped existing laws and a forward-looking vision that prioritizes fairness, accountability, and the protection of vulnerable individuals within the criminal justice system
Speaking into a Void: Parliamentary Action Ignored in Sexual Violence Sentencing
No full textCanadian sentencing jurisprudence is heavily reflective of the Alberta Court of Appeal’s determination of a three-year starting point for major sexual assaults in R v Sandercock, even in those jurisdictions that did not adopt it. This decision, issued in 1985, reflects attitudes and beliefs about sexual assault that are outdated and rely on improper myths and stereotypes. The Court also relied on sentencing guidance from England that was revisited in that country the very next year and has been revised numerous times since. Additionally, Parliament has made significant changes to the Criminal Code in the sentencing realm since. Despite these factors and the significantly greater understanding of the harm caused by sexual violence since 1985, courts continue to impose sentences that reflect the Sandercock starting point. Often, courts go below it, failing to account for the significant impacts of sexual violence on offenders.
It is time to revisit sentencing guidance in this area. In this article, we look to comparable legal systems, and demonstrate that while other countries have adjusted their sentencing guidance to reflect the greater understanding that society now has of the harms caused by sexual violence, Canada has not. Instead, judges have talked tough, but failed to follow through. We provide numerous principled reasons that appellate courts across the country need to provide updated sentencing guidance and argue that sentences in this area must increase to properly account for appropriate sentencing principles
Chapter 11: Biography of John Bernard Moore – “John Ellis”
No full textHangman John Bernard Moore died on May 8, 1950, at age 57, due to kidney cancer. The death certificate includes a considerable amount of information that may not be accurate, depending on the knowledge and veracity of the informant, assumed to be his wife, Mary Pratt Moore, or son, calling himself Bernard Moore. Our hangman was said to be born in England on February 5, 1893. His father was Alfred Moore, and his mother was Annie Vale. He was married to Mary Gertrude Pratt. He was said to have resided in Canada for 25 years, most recently on Kennedy Road, Milliken, in the Township of Markham, District of York. Curiously, his profession was listed not as a farmer, but as a mason in the bricklaying business, which he had allegedly been engaged in for the last 14 years. His remains were buried at the Pine Hills Cemetery in Scarborough. As we will see, much of this information is questionable. We know for certain, for example, that he resided in Canada long before 1925
Canadian Freedom of Information Personnel: Views and Lessons Learned
No full textThough there is ample literature on freedom of information law, there is little information that considers the work of freedom of information [FOI] or access to information [ATI] coordinators and the challenges they face. It is even more concerning that no research of this kind has been done in Canada given federal, provincial, territorial, and municipal government commitments to FOI and ATI. Our research seeks to fill this gap. We interviewed nine FOI and ATI government personnel in Canada to explore the complexities of working in this field. We examine their responses to questions about the challenges in their work; the barriers that they encounter; their background and training; their goals; and their views on transparency and public administration. By interviewing those on the “front lines of records requests,” we not only gain insights into the realities of their work, but we also learn how FOI legislation and policies can be improved. These insights are particularly relevant in Manitoba, where the former Progressive Conservative government made many efforts to undermine the principles of FOI. These efforts include a refusal to respond to the Manitoba Ombudsman’s concerns and recommendations, which are, in part, informed by FOI personnel
Introduction
No full textThe first cluster of articles address critical issues around the threshold for declaring an emergency. Definitions create thresholds and thresholds yield power, so such questions are central to maintaining the rule of law in emergency conditions. Notably, a crucial issue before the POEC was the definition of “threats to the security of Canada.” Currently, the Emergencies Act borrows this definition from section 2 of the Canadian Security Intelligence Service Act (CSIS Act). A great deal of testimony before the Commission turned on the question of the interpretation and appropriateness of using the CSIS Act definition in the Emergencies Act context, and ultimately, the POEC Final Report recommended Parliament decouple these Acts. Whether this is the correct course of action is the subject of two articles in this volume
Loyalty, Conscience, and Withdrawal: Are Government Lawyers Different?
No full textThere is a growing recognition that the core concepts and specific rules of legal ethics can have unusual and even unique implications for government lawyers. In this short essay, I examine how loyalty, conscience, and withdrawal apply to government lawyers. I argue that while government lawyers should be slower than lawyers in private practice to exercise their professional discretions to withdraw from a matter, they must be particularly ready to withdraw when unavoidably required – despite any selfless dedication to the ideal of a non-partisan public service
Ending Human-Animal Maltreatment Cycles Through the Use of Trauma- Informed Therapy
No full textThis article proposes that many individuals who commit maltreatment (cruelty or abuse/acts of commission, neglect/acts of omission, or violence) against animals are doing so in reaction to trauma they experienced earlier in their lives. This trauma may have come from events in which individuals experienced direct maltreatment or observed maltreatment, which such individuals then adopted as a way of managing their trauma-induced symptoms and/or trauma-induced mental illness, particularly Post Traumatic Stress Disorder. Legal, mental health, and social work fields should develop an interconnected program that can 1) curb the presence of the human-animal (and hopefully human-human) abuse cycle (or maltreatment cycle) in society; 2) heal or resolve individuals of their underlying, trauma-induced reasons for committing maltreatment; and 3) protect would-be victims from future maltreatment by using trauma- informed therapies like Cognitive Processing Therapy and Eye Movement Desensitization and Reprocessing Therapy
Criminalizing Coercive Control in Canada: Learning from an International Comparative Analysis
No full textWhile coercive control and its role in family and intimate partner violence is not new, there has recently been an emerging movement toward its criminalization in various jurisdictions. This article does not argue that Canada should criminalize coercive control. Instead, given the recent interest in its criminalization, it simply examines how coercive control could be criminalized in Canada. This article begins by reviewing proposed theories and definitions of family violence, intimate partner violence, and coercive control. However, despite extensive literature on these topics, broad conclusions that can be drawn are limited, given the use of varying definitions and theoretical frameworks. Nevertheless, emerging empirical research has attempted to identify and measure coercive control’s key underlying constructs to standardize the operationalization of the term. This article examines this literature alongside legislation against coercive control from other jurisdictions to understand how coercive control could be better addressed legislatively in Canada. However, this article cautions against the likelihood that adding a new criminal offence on its own will have a meaningful effect in helping address the larger issues of family and intimate partner violence. Thus, this article concludes by offering three recommendations to ensure that a coercive control offence has its desired effect
To Serve and Protect the Mental Cost of Policing
No full textPolice officers are exposed to high-stress levels with consistently high ever-evolving demands. In addition to the orders and stress, there is also the exposure to unpredictable danger and physical challenges. However, it was frequently overlooked what impact such work had on a frontline officer\u27s mental health. In recent years there has been a shift to focus on such impacts as the number of officers who committed suicide continued to grow, and the number of officers on leave increased. This paper aims to examine the effect that serving and protecting one\u27s community has on officers’ mental health and its impact on their ability to continue to do their job. Additionally, this paper aims to explore some recommendations for police agencies to adopt to best support active members. More research is ultimately required to determine the impact that Post-traumatic Stress Disorder, Operational Stress Injuries, and other mental health concerns can have on policing. As well, more research is necessary to determine the best practices that would be able to assist officers following a traumatic event or ensuring ongoing good mental fitness and support. Finally, the assistance police officers receive for on-the-job mental health injuries; and the requirement for continuous mental health checks should have the benefit of being standardized across the nation
Les femmes autochtones victimes de violence sexuelle – leur réalité et les obstacles dont elles doivent faire face
No full textL’histoire des peuples autochtones au Canada comporte de nombreuses parties sombres dont le Canada essaie de remédier à présent. « La Commission de vérité et réconciliation nous a enseigné que la réconciliation est impossible sans la vérité, la guérison et la justice » . La vérité sur ce qui s’est passé au Canada envers les peuples autochtones soit la colonisation, et plus encore, les pensionnats. La guérison de ces événements traumatisants qui continuent quotidiennement de hanter les personnes autochtones. Celle-ci peut être faite par les excuses du gouvernement canadien et par un respect et une légitimation des coutumes autochtones.
Les femmes et les filles autochtones ne représentent que quatre pour cent de la population canadienne2. Pourtant, en 2015, elles représentaient 24 % des victimes d’homicide au Canada. Autre statistique inquiétante : les femmes autochtones sont douze fois plus à risque que les femmes allochtones d’être assassinées ou de disparaitre4. Par conséquent, « [l]e simple fait d’être une femme et d’être autochtone constitue un risque ». Elles ont un besoin distinct qu’il faut tenir en compte puisqu’elles subissent une combinaison de racisme et de sexisme6. Bref, les femmes autochtones sont des personnes vulnérables dont il faut protéger et dont il faut porter une attention particulière lorsque des crimes sont commis contre elles. Une attention particulière doit également être prise dans les cas de violence conjugale dont plusieurs femmes autochtones sont victimes.
Le présent travail portera ainsi sur les difficultés des femmes autochtones d’avoir accès à une justice prenant en considération leur intersectionnalité et leurs origines autochtones et historiques. Pour ce faire, le travail sera divisé en trois parties. Tout d’abord, la première partie sera un survol historique de la situation des femmes autochtones au Canada afin de comprendre les répercussions du colonialisme et des pensionnats. Par la suite, la seconde partie portera sur le contexte actuel canadien et les différents obstacles dont les femmes doivent faire face lorsqu’elles sont victimes de violence sexuelle et qu’elles décident de dénoncer. Finalement, la troisième partie analysera les stratégies mises sur pied par le Canada pour aider les femmes autochtones et ceux qui devraient être apportés également.