The Role of Section 718.2(a)(ii) in Sentencing for Male Intimate Partner Violence against Women

This article examines sentencing for male intimate partner violence against women since the 1996 enactment of s 718.2(a)(ii) of the Criminal Code, which requires that a spousal/common-law relationship between an offender and victim be considered an aggravating factor in sentencing. The article argues that, while in general appellate courts in Canada are taking this violence seriously, cases involving level I sexual assaults still demonstrate the longstanding tendency to treat the intimate relationship as mitigating. Further appellate guidance is necessary on how courts should reconcile s 718.2(a)(ii) with s 718.2(e), which requires that all options other than incarceration be considered when sentencing an Indigenous offender. The author argues that it is important for courts to at least consider the systemic problem of intimate violence against Indigenous women when sentencing male offenders in these cases

Legislated Ableism: Bill C-7 and the Rapid Expansion of MAiD in Canada

This paper explores the recent expansion of medical assistance in dying to disabled people who are suffering intolerably but are not at the end of their lives. The paper argues that it is impossible to separate suffering caused by an irremediable disability and suffering caused by the impacts of systemic ableism, which include high rates of poverty, social isolation and exclusion for people with disabilities. The paper suggests that this expansion raises constitutional issues under s. 15 and s. 7 of the Charter because it is premised on a view that portrays disability as potentially worse than death and thus denies people with disabilities the protection of the criminal law that is provided to other Canadians. The paper concludes that there is no safe way for the state, through the medical system, to be involved in ending the lives of people with disabilities who are not otherwise dying

The Prosecution of Non-Disclosure of HIV in Canada: Time to Rethink Cuerrier

The author of this article argues that Canada’s current approach to the criminalization of HIV transmission is deeply flawed and cries out for clarification. The article first considers the risk of transmission of HIV under various conditions, as determined by recent scientific studies, and concludes that HIV is not easily transmissible through sexual activity. It next examines several crucial factors that contribute to the significance, or lack of significance, of sexual activity by HIV-positive individuals, concluding that the current law creates a “numbers game” for triers of fact. The article then proceeds to a comparative analysis of other Commonwealth countries, demonstrating that Canada is unique in the scale of its prosecution of HIV transmission, as well its reliance on assault and sexual assault. The article concludes by examining several specific problems with the Cuerrier test, and proposes future directions which the Supreme Court could consider

Rethinking Risk: The Relevance of Condoms and Viral Load in HIV Nondisclosure Prosecutions

An HIV-positive individual who fails to disclose his or her status to a sexual partner may face charges ranging from nuisance to murder for such behaviour, with the most common charges being aggravated assault and aggravated sexual assault. The number of prosecutions in Canada against individuals who fail to disclose their HIV-positive status to their sexual partners has risen over the last ten years. At the same time, scientific advancements in treatment options and our understanding of transmission, condom usage, and viral load are constantly influencing the assessment of the risk that nondisclosure poses to the complainant in any given case. The author reviews the recent case of R. v. Mabior, the first judgment in Canada to criminalize nondisclosure in the context of protected sex. She argues that encouraging condom use is so important, and that the use of condoms reduces the risk of transmission so significantly, that the criminal law should distinguish between protected and unprotected sex in cases of nondisclosure. The author proceeds to critique the trial judge\u27s reliance on viral load as a factor in determining whether nondisclosure poses a significant risk of serious bodily harm under the test established in Cuerrier. The author argues that the accused\u27s viral load, unlike condom use, is not a manageable standard on which to base culpability

The Normal Ones Take Time\u27: Civil Commitment and Sexual Assault in R. v. Alsadi

This comment addresses the issue of whether a woman who is civilly committed in a psychiatric facility can ever give a valid consent to sexual activity with someone employed by that facility to ensure her safety and protection. The paper argues that such a consent would be involuntary and invalid because it was obtained as a result of an abuse of a position of trust. It is argued that the imbalance of power between a civilly committed psychiatric patient and, in Alsadi, a security guard employed by the hospital is so significant that no meaningful or voluntary consent can be given by the woman involved

Second Chances: Bill C-72 and the Charter

This paper examines the legislative response to the Supreme Court of Canada\u27s decision in R. v. Daviault. The author argues that Bill C-72, which limits the defence of extreme intoxication, is constitutional because of its strong underpinnings in equality. The author reviews the statistics on violence against women and the role of intoxication in that violence to illustrate why the defence of intoxication raises issues of sex equality. The author argues that a court assessing the constitutionality of Bill C-72 should consider this strong foundation in equality and the fact that the Bill is the result of a careful balancing of the interests at stake by a democratically elected legislature

Intimate Partner Criminal Harassment Through a Lens of Responsibilization

Feminist scholars have demonstrated the gendered nature of intimate violence, and the tendency to put the responsibility on women to avoid both sexual and physical violence. The degree to which this responsibility is based on stereotypes about the “good victim” has been well documented in the context of sexual assault. This paper applies these insights to the context of intimate partner criminal harassment. All available statistics suggest that intimate partner criminal harassment is committed overwhelmingly by men against former female intimate partners. This crime affects thousands of women annually and can have devastating implications for their physical and mental health. Using criminal harassment decisions over the past decade, this paper argues that the elements of the offence – specifically the requirements that the accused cause the complainant to fear for her safety, that this fear be reasonable, and that he intend to harass her – feed into the tendency towards responsibilization. Women are disbelieved if they fail to report the harassment promptly to police, fail to obtain a restraining order, fail to demonstrate their fear in predictable ways, or fail to communicate to their harassers that the harassment is unwanted. The accused’s behaviour, by contrast, is never subjected to a standard of reasonableness. After analyzing the case law on criminal harassment, and reviewing the approach taken in other jurisdictions, the paper concludes that legislative reform is a necessary step towards providing an adequate criminal justice response to this serious problem

The Boundaries of the Criminal Law: The Criminalization of the Non-Disclosure of HIV

In this paper, the author examines the trend toward the increased criminalization and punishment of persons with HIV who fail to inform their sexual partners of their HIV-positive status. Since the Supreme Court of Canada\u27s decision in R. v. Cuerrier, such behaviour may constitute aggravated assault or aggravated sexual assault, the latter offence carrying a maximum sentence of life imprisonment. The paper surveys the Canadian case law and highlights the trend towards the imposition of increasingly harsh sentences. After reviewing public-health and criminal law options for dealing with non-disclosure of one\u27s HIV status, the author concludes that criminal law should only be invoked in the most serious circumstances and only where all other public health measures have been exhausted. Criminal law should be reserved for individuals who demonstrate a pattern of non-disclosure either over time or with different sexual partners. The author also explores the social and legal reasons behind the apparent contradiction that, despite the improved prognosis for persons with HIV sentences for those who knowingly transmit the virus have become increasingly severe

Mental Health Law and the Courts

This paper presents an analysis of the early Charter cases dealing with civil commitment and compulsory treatment of individuals under provincial mental health legislation. The author describes two models for dealing with these issues: the paternalistic model and the social control model. She argues that Canadian courts have adopted a paternalistic approach and, as such, have failed to recognize the adversary relationship between the state and the individual which forms the basis of involuntary psychiatry. Courts have thus failed to develop the kinds of procedural protections that are available in the criminal law context. The author proposes that courts making decisions dealing with civil mental health issues should rely less on paternalism and recognize the serious deprivations of liberty at stake for individuals in the mental health system

Intimate Femicide: A Study of Sentencing Trends for Men Who Kill Their Intimate Partners

This article examines sentencing trends over the past 18 years for men who kill their intimate partners. Using a sample of 252 cases, the article demonstrates that periods of parole ineligibility for second degree murder rose significantly after the Supreme Court of Canada’s decision in Shropshire but have more recently levelled off to a range that is still higher than the pre-Shropshire era. With respect to manslaughter, changing social attitudes and the amendments to the Criminal Code making the spousal nature of the crime an aggravating factor have resulted in increasingly severe sentences for spousal manslaughters. While a large number of the cases in this sample involved the intoxication of the accused and/or the victim, the defence of intoxication rarely reduced murder to manslaughter. Similarly, the number of successful provocation defences was lower than expected