Volume 9, Number 2, 1990
Articles
- The Supreme Court of Canada and Criminal Evidence Reform: Recent Cases on Sexual Abuse of Children and Spousal Murder - Anthony F. Sheppard
The Supreme Court of Canada, in three recent cases dealing with sexual abuse of a child or spousal abuse, has made siginficant changes in the rules of evidence in criminal law. This paper examines the evidentiary rules which these cases give rise to and compares these rules to the traditional similar fact evidence, hearsay, and opinion evidence which they replace. This paper also touches upon the possible consequences of these changed rules on the length, complexity, and cost of criminal litigation.
- Mediating Wife Assault: Battered Women and the "New Family" - N. Zoe Hilton
As the battered women's movement was fighting to politicize wife assault, a movement towards mediation services in and around the court system was also growing. Today, cases of wife assault and other disputes involving battered women and their partners may be channelled into mediation, where assumption of equality in their family offer little or no protection to the battered women. This paper presents the growth of mediation and the effects of mediation philosophy as examples of the failure of reform based on a concept of the public and private as distinct spheres. The public/private dichotomy is now of limited use to feminist arguments, for mediation, although it has limited public accountability, is interdependent with the more formal court process. This study of the ramifications of mediation offers evidence that the theme of the new, egalitarian family is seeping into the family court system, where it conflicts with the more traditional view of the dependent wife, to the disadvantage of battered women. Fighting for formal legal intervention alone fails to address other legal processes and ideologies faced by battered women. Awareness of both formal and administrative justice, and recognition of the ways in which they interact are essential for addresssing the legal response to wife assault. Toward this end, a revised conceptualisation of the public and private distinction is encouraged.
- Riding the Fences: Courts, Charter Rights and Family Law - Stephen J. Toope
The Canadian Charter of Rights and Freedoms has been in force and effect since 1982, but it has had little impact in the area of family law. This is due, in part, to the argument that the law has no place in the private sphere of family relationships and, in part, to the difficulties inherent in applying the language of rights to the family setting. While the Charter could be applied in many family matters, this paper focuses on the effect which the Charter has had in claims to constitutionally-protected privacy, claims relating to freedom of religion and claims of mobility rights. Based on the analysis of the law concerning these issues, the paper concludes that the Charter will probably only cause minor changes to the family law field in the future as the courts are unlikely to reconceptualize various rights to fit within the ordinary family settings
- The Harms of Dichotomy: Access to Welfare Benefits as a Case on Point - Janet Mosher
Dichotomy is present in all aspects of daily life, and is especially influential in the legal treatment of women. This article examines the dichotomy inherent in the public/private, men/women, labour market/family, and independence/dependence characterisations though an analysis of the economic consequences of Ontario welfare law and policy for women as compared to those for men. The article discusses the interaction of these dichotomies within the Ontario welfare system and their ultimate discrimination against women, especially against single mothers. Some suggestions for welfare law reform conclude this article.
- Unborn Child Abuse: Contemplating Legal Solution - Anita Dorczak
With particular emphasis on alcohol and drug abuse, the author review recent medical determinations of fetal risk. The paper explores the lack of legal protection of children prior to birth through American and Canadian cases in the non-abortion context. The author concludes that status confers rights and the status of the unborn is not clear. Protection of the unborn is hindered by ill-focusses attention to issues of personhood, when it is undeniable that a fetus represents a human life and ought to be afforded legal protection by the Charter.
- A Feminist Response to 'Unborn Child Abuse: Contemplating Legal Solution' - T. Brettel Dawson
This paper is an analysis of Anita Dorczak's article "Unborn Child Abuse: Contemplaitng Legal Solution." Dorczak addresses the 'hard questions' of substance use and refusal of medical treatment by pregnant women, and concludes that state intervention through law would be an appropriate measure to protect a fetus from the actions or omissions of its mothers. This paper examines the juridical and social bases of Dorczak's paper, and states that Dorczal's analysis is flawed by its advocacy of the protection of a fetus at the expense of the rights of its mothers. This paper also discusses the persons which such legal intervention would most likely affect, and indicates that society would be better served by the creation of a solution which focusses on the common needs of a pregnant woman and her fetus rather than on a conflict of the rights of the mother and fetus.
Review of Periodical Literature
- Kirstie J. MacLise, "Family Law Reform in British Columbia" (1990) Canadian Family Law Quarterly, Vol. 6 No. 2, 157. - Deborah R. Magerman
- Lorenne M.G. Clark, "Feminist Perspectives on Violence Against Women and Children: Psychological, Social Service, and Criminal Justice Concerns" (1989-1990) Canadian Journal of Women and the Law, Vol. 3 No. 2, 420. - A. Adena Lee
- Jessica P. Greenwald, Alan J. Tomkins, Mary Kenning and Denis Zavodny, "Psychological Self-Defense Jury Instructions: Influence on Verdicts for Battered Women Defendants" (1990) Behavioral Sciences and the Law, Vol. 8 No. 2, 171. - A. Adena Lee
- Lee Struesser, "'The Defence' of 'Battered Woman Syndrome' in Canada" (1990) Manitoba Law Journal, Vol. 19 No. 1, 195.
- Julie Blackman, "Emerging Images of Severely Battered Women and the Criminal Justice System" (1990) Behavioral Sciences and the Law, Vol. 8, 121. - Sharel Akizuki
Book Reviews
- Michael G. Cochrane, Family Law in Ontario: A Practical Guide for Lawyers and Law Clerks. (Aurora: Canada Law Book, 1990). - Yvonne D. Bond
- The Continuing Legal Education Society of B.C., Family Law Restatement for British Columbia. (Vancouver: Continuing Legal Education Society of B.C., 1990). - S.M. Wexler
- J.R. Spencer and Rhona Flin, The Evidence of Children: The Law and the Psychology (London: Blackstone Press Ltd., 1990). - Jill Patrick & John Patrick
- Barry Friesen, Social Worker Empowerment in Child Protection Court (Charles C. Thomas: Illinois, 1990). - Colleen McEachran