In R v Kirkpatrick, the Court of Appeal for British Columbia held that consent to sexual activity... more In R v Kirkpatrick, the Court of Appeal for British Columbia held that consent to sexual activity cannot be established where a man proceeds with unprotected vaginal intercourse when his sexual partner has insisted on a condom. While this finding should be uncontroversial, it is in fact contrary to the Supreme Court of Canada ruling in R v Hutchinson. In this comment we argue that the approach taken in Kirkpatrick is correct and consistent with the landmark decision in R v Ewanchuk. We urge the Supreme Court of Canada to reconsider its majority judgment in Hutchinson in order to fully recognize the central role that a condom plays in whether a woman agrees to participate in sexual activity
This article examines the impact of the Supreme Court of Canada decision in R. v. Cuerrier from t... more This article examines the impact of the Supreme Court of Canada decision in R. v. Cuerrier from two vantage points. First, the article examines the impact of the decision on HIV nondisclosure prosecutions. Second, it examines the damage done by Cuerrier to sexual assault law outside of the HIV context. The article argues that Cuerrier has both overcriminalized people living with HIV and distorted the law of sexual assault. Through Cuerrier, and subsequent cases, the Supreme Court of Canada has unduly limited the concept of consent and its voluntariness requirement, and distorted the concept of fraud such that deceptions around sex are only criminalized where they cause a significant risk of serious bodily harm. It is argued that legislatively removing HIV nondisclosure prosecutions from the scope of sexual assault offences, and making corresponding changes to the definition of consent, is the only way to remedy the harm done to people with HIV and to sexual assault law more generally
This paper presents an analysis of the early Charter cases dealing with civil commitment and comp... more 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. This article is available in Osgoode Hall Law Journal: http://digitalcommons.osgoode.yorku.ca/ohlj/vol29/iss4/4 MENTAL HEALTH LAW AND THE COU...
Dans le présent article, les auteures passent en revue trois ans de jurisprudence canadienne impl... more Dans le présent article, les auteures passent en revue trois ans de jurisprudence canadienne impliquant des infractions de nature sexuelle contre des adolescentes âgées de douze à dix-sept ans. Elles tentent d’établir quels types de cas se rendent au tribunal, qu’ils donnent lieu à des condamnations ou non, et quels types de peine sont imposés aux individus condamnés pour ces infractions. Dans la grande majorité des cas examinés, les hommes étaient considérablement plus âgés que les plaignantes. La différence d’âge moyenne entre l’accusé et la plaignante était de dix-neuf ans et, en excluant les membres de la famille, de 15,6 ans. Les quelques cas impliquant de jeunes hommes impliquaient souvent de la violence en plus de l’agression sexuelle. Dans environ 30 pour cent des cas, la plaignante dormait ou était en état d’ébriété lorsqu’au moins une partie de ces agressions était commise. Les cas présentent un portrait des crimes où l’intersection des inégalités et des vulnérabilités con...
This paper is concerned with how courts in British Columbia adjudicate applications by the state ... more This paper is concerned with how courts in British Columbia adjudicate applications by the state to remove children permanently from their parents, usually their mothers. Overwhelmingly, these cases are about single mothers who experience mental disability and addiction, domestic violence, and poverty. Indigenous women are over-represented in our sample. The intergenerational effects of the child protection system also are clear as many of the mothers in our study were themselves raised in state care. The paper highlights the degree to which judges blame women for the precarious circumstances in which they live, which are often a product of austerity measures adopted by states. Courts describe these circumstances as being a function of poor “lifestyle choices”, thus obscuring the role of the state in protecting women from violence, providing safe housing and supporting mothers and children with disabilities. Particularly troubling is the finding that courts are appear to be more wil...
Women with mental disabilities experience high rates of sexual assault. The authors trace the his... more Women with mental disabilities experience high rates of sexual assault. The authors trace the history of the criminal law's treatment of cases involving such acts in order to evaluate whether the substantive law of sexual assault is meeting the needs of this group of women. In particular, the authors focus on the legal issues of consent, capacity, and mistaken belief. The authors situate this discussion in the context of current debates in feminist and critical disability theory, grounding the theory in scholarly research on sexual assault of women with mental disabilities. In considering the law's treatment of sexual violence against this group of women, the authors engage two key theoretical tensions: (1) the supposed dichotomy of protection and autonomy, and (2) the shift from biomedical to social models of disability. The authors conclude that the substantive law of sexual assault is inadequate to meet the needs of women with mental disabilities. The authors propose, as ...
Feminist scholars have demonstrated the gendered nature of intimate violence, and the tendency to... more 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 responsibili...
This article reviews the current sentencing regime for the crime of murder in Canada with a view ... more This article reviews the current sentencing regime for the crime of murder in Canada with a view to identifying its shortcomings and suggesting possibilities for improvement. The article argues that the existing classification of murder into first- and second-degree, and the harsh periods of parole ineligibility attached to a murder conviction should both be abolished. The author argues for a compromise position, which would maintain the important distinction between manslaughter and murder and yet allow sufficient flexibility for trial judges to ensure that sentences for murder, as with other crimes, can be tailored to fit the crime.
For decades, Canadian courts grappled with the issue of whether intoxication should mitigate crim... more For decades, Canadian courts grappled with the issue of whether intoxication should mitigate criminal responsibility. During that time, Parliament avoided dealing with this controversial issue, preferring to leave it in the hands of judges. This paper examines the legislative response to the Supreme Court of Canada’s 1994 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.
In R v Kirkpatrick, the Court of Appeal for British Columbia held that consent to sexual activity... more In R v Kirkpatrick, the Court of Appeal for British Columbia held that consent to sexual activity cannot be established where a man proceeds with unprotected vaginal intercourse when his sexual partner has insisted on a condom. While this finding should be uncontroversial, it is in fact contrary to the Supreme Court of Canada ruling in R v Hutchinson. In this comment we argue that the approach taken in Kirkpatrick is correct and consistent with the landmark decision in R v Ewanchuk. We urge the Supreme Court of Canada to reconsider its majority judgment in Hutchinson in order to fully recognize the central role that a condom plays in whether a woman agrees to participate in sexual activity
This article examines the impact of the Supreme Court of Canada decision in R. v. Cuerrier from t... more This article examines the impact of the Supreme Court of Canada decision in R. v. Cuerrier from two vantage points. First, the article examines the impact of the decision on HIV nondisclosure prosecutions. Second, it examines the damage done by Cuerrier to sexual assault law outside of the HIV context. The article argues that Cuerrier has both overcriminalized people living with HIV and distorted the law of sexual assault. Through Cuerrier, and subsequent cases, the Supreme Court of Canada has unduly limited the concept of consent and its voluntariness requirement, and distorted the concept of fraud such that deceptions around sex are only criminalized where they cause a significant risk of serious bodily harm. It is argued that legislatively removing HIV nondisclosure prosecutions from the scope of sexual assault offences, and making corresponding changes to the definition of consent, is the only way to remedy the harm done to people with HIV and to sexual assault law more generally
This paper presents an analysis of the early Charter cases dealing with civil commitment and comp... more 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. This article is available in Osgoode Hall Law Journal: http://digitalcommons.osgoode.yorku.ca/ohlj/vol29/iss4/4 MENTAL HEALTH LAW AND THE COU...
Dans le présent article, les auteures passent en revue trois ans de jurisprudence canadienne impl... more Dans le présent article, les auteures passent en revue trois ans de jurisprudence canadienne impliquant des infractions de nature sexuelle contre des adolescentes âgées de douze à dix-sept ans. Elles tentent d’établir quels types de cas se rendent au tribunal, qu’ils donnent lieu à des condamnations ou non, et quels types de peine sont imposés aux individus condamnés pour ces infractions. Dans la grande majorité des cas examinés, les hommes étaient considérablement plus âgés que les plaignantes. La différence d’âge moyenne entre l’accusé et la plaignante était de dix-neuf ans et, en excluant les membres de la famille, de 15,6 ans. Les quelques cas impliquant de jeunes hommes impliquaient souvent de la violence en plus de l’agression sexuelle. Dans environ 30 pour cent des cas, la plaignante dormait ou était en état d’ébriété lorsqu’au moins une partie de ces agressions était commise. Les cas présentent un portrait des crimes où l’intersection des inégalités et des vulnérabilités con...
This paper is concerned with how courts in British Columbia adjudicate applications by the state ... more This paper is concerned with how courts in British Columbia adjudicate applications by the state to remove children permanently from their parents, usually their mothers. Overwhelmingly, these cases are about single mothers who experience mental disability and addiction, domestic violence, and poverty. Indigenous women are over-represented in our sample. The intergenerational effects of the child protection system also are clear as many of the mothers in our study were themselves raised in state care. The paper highlights the degree to which judges blame women for the precarious circumstances in which they live, which are often a product of austerity measures adopted by states. Courts describe these circumstances as being a function of poor “lifestyle choices”, thus obscuring the role of the state in protecting women from violence, providing safe housing and supporting mothers and children with disabilities. Particularly troubling is the finding that courts are appear to be more wil...
Women with mental disabilities experience high rates of sexual assault. The authors trace the his... more Women with mental disabilities experience high rates of sexual assault. The authors trace the history of the criminal law's treatment of cases involving such acts in order to evaluate whether the substantive law of sexual assault is meeting the needs of this group of women. In particular, the authors focus on the legal issues of consent, capacity, and mistaken belief. The authors situate this discussion in the context of current debates in feminist and critical disability theory, grounding the theory in scholarly research on sexual assault of women with mental disabilities. In considering the law's treatment of sexual violence against this group of women, the authors engage two key theoretical tensions: (1) the supposed dichotomy of protection and autonomy, and (2) the shift from biomedical to social models of disability. The authors conclude that the substantive law of sexual assault is inadequate to meet the needs of women with mental disabilities. The authors propose, as ...
Feminist scholars have demonstrated the gendered nature of intimate violence, and the tendency to... more 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 responsibili...
This article reviews the current sentencing regime for the crime of murder in Canada with a view ... more This article reviews the current sentencing regime for the crime of murder in Canada with a view to identifying its shortcomings and suggesting possibilities for improvement. The article argues that the existing classification of murder into first- and second-degree, and the harsh periods of parole ineligibility attached to a murder conviction should both be abolished. The author argues for a compromise position, which would maintain the important distinction between manslaughter and murder and yet allow sufficient flexibility for trial judges to ensure that sentences for murder, as with other crimes, can be tailored to fit the crime.
For decades, Canadian courts grappled with the issue of whether intoxication should mitigate crim... more For decades, Canadian courts grappled with the issue of whether intoxication should mitigate criminal responsibility. During that time, Parliament avoided dealing with this controversial issue, preferring to leave it in the hands of judges. This paper examines the legislative response to the Supreme Court of Canada’s 1994 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.
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Papers by Isabel Grant